Sure, at least one would be Republican appointed (you can't get to 4 without that). But you were putting the blame squarely on the Republican appointees, despite having not the slightest idea if any Democratic appointed justice wanted to grant cert also.
According to the the
Rules of the Supreme Court of the United States:
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:
- (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
- (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
- (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.
It seems to me that the question of presidential criminal immunity is
very much an "important question of federal law that has not been, but should be, settled by the Supreme Court." It's an important question of federal law and the Supreme Court has never ruled directly on it. These are undeniable facts. Whether it "should be" settled by the Supreme Court is more arbitrary, but if we're talking about something involving the presidential powers, the Supreme Court is the one that's normally expected to give the final verdict.
Another interesting thing here, in regards to why the Supreme Court should take it up, is the fact that... Jack Smith (the prosecutor here)
asked them to. Back in December he tried to have them take the case directly instead of having the appeals course do it first as it normally done. The appeal request (available
here) gave as a reason "only this Court can definitively resolve them" as why the Supreme Court should take it up. So ironically, the prosecutor himself said the Supreme Court was the only one that could definitively resolve the issue. Sure, they didn't take it up right away like he asked, but he still put forward the argument they should take it up because
only they could definitively resolve them. (I'll get into the question of them not taking it up back then later) So the guy who is bringing the suit went on record saying the Supreme Court should be the one to resolve it.
Waiting "over a month" for a hearing is not anything odd at all from what I can tell; people act like this is somehow especially slow, but it's not, it's fairly normal. You point to Nixon's case as being faster. Aside from the fact it's not
that much faster, it's a fairly odd comparison point; not only is it just one case, it's also a case from
fifty years ago. Information from fifty years ago on how quickly cases were scheduled or decided from does not seem a valid point of reference as to whether a particular case nowadays is being done slowly or not.
Now, you mention the "timing on here is critical". In what way? If the trial should get delayed so much that it only happens after the election, then... the election will be held just fine. It doesn't rely on the trial in any way to happen. The reason the timing of the trial versus the election matters isn't because it actually affects how the government holds the election in any way. Contrast this with the 14th Amendment case where a question of something like "can this candidate be on the ballot?" is the sort of thing that absolutely
must be decided before the election).
So what is the reason, then? Well, the reason people have given in this topic isn't anything remotely legal, but a political one: The trial should occur before the election so that it should be determined before the election because... well, the reason for that hasn't been given explicitly in this topic, but the implicit reason--which has been given explicitly by others--is because it's important to how people might vote in the election. The more neutral way to frame this would be so voters are aware of the situation, but of course others will more bluntly say the goal is to hurt Trump. Whether one takes the more neutral tone or the more blunt one, the reason it's "critical" is because people want it done earlier so it could potentially affect the presidential election. That's a purely political reason.
What is the "urgency" and "seriousness" of it that required it to be done by the Supreme Court then? Again,
political reasons like "so people can go into the election with better knowledge" really doesn't qualify. Those aren't real reasons--not real
legal reasons, at least--why it needed to be done faster.
Earlier I linked to Jack Smith's request to the Supreme Court that they take it up directly rather than having it go to the appeals court (
here it is again). As noted, he referred to how the Supreme Court was the only one who could definitively resolve it. But what was the reason that it had to be done right away, and couldn't just go through the normal appeals process?
Again, people say it's because it's urgent to get that trial over before the election so that people can make proper decisions on who to vote for (others are more explicit in it being a way to try to hurt Trump, but I'm going with the more charitable explanation). In other words, the admitted desire of people to have the trial happen faster is
in order to affect the result of the election. Trying to time a trial in order to affect an election goes against legal norms, and in fact is explicitly prohibited by the rules of the Department of Justice.
Observe:
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
Here, it explicitly says that prosecutors may
never select the timing of any action for the purpose of affecting an election or giving an advantage/disadvantage to a candidate. Even though people are openly and clearly declaring they want the trial earlier in order to affect the election.
Now, to be fair, just because people are loudly and publicly saying they want the timing to be before the election in order to affect its result doesn't mean that's Jack Smith's motivation. I can't read minds, after all. But we can look at the reasons that were given. On page 13 (with a little on the prior page) it gives its reasoning as to why it's so important the Supreme Court hear the case
right away and skip the normal appeals process, which is... because if it didn't, then on an appeal the Supreme Court might not be able to hear the case this term. It doesn't seem to give a clear reason as to why it's important to have it heard this term, but that's the point it stresses, so that the Supreme Court can hear it this term.
The thing is, it is hearing it this term. So clearly any feeling the Supreme Court absolutely had to have it decided in December in order for it to hear it this term was unwarranted, because... it is hearing it this term. So we're left with apparently two possibilities.
The first is that the attempt for the appeal was a legitimate desire to leave the possibility that the Supreme Court could get to it before the end of the current term.
The second is that Jack Smith wanted this done with before the election in order to have an effect on it. But since that's against the rules he couldn't openly say it, so he just ambiguously claimed the issue was actually about Supreme Court terms.
If it's the former, then that means the Supreme Court not taking it up before the appeals court didn't have any problematic effect. If it's the latter, then there's a problem, but it's not with the Supreme Court, but rather the prosecutors who are breaking the rules in deliberately trying to affect an election with a trial.
Although written before the Supreme Court formally took up the case (this was when it was considering it), this article by Jack Goldsmith seems to have some good information on the subject (and I admit to have taken some information in my post from it) indicating that really the Supreme Court hasn't done anything particularly odd in regards to this case so far:
Special Counsel Jack Smith’s rush to try Donald Trump violates Justice Department rules and presents tricky issues for the Supreme Court on the immunity issue.
www.lawfaremedia.org
