Orin Kerr , June 22, 2007 at 11:16am] Trackbacks Judicial Activism Switching Sides?:



The first judge wrote a short concurrence noting that the court was bound by Supreme Court and circuit precedent, and thus had little choice but to rule in the government's favor. The second judge dissented, taking issue with decades of caselaw from the Supreme Court and lower courts and urging the rejection of the Supreme Court's test and the substitution of a new, more restrictive test to better protect the rights of minorities from abusive police practices.



The fascinating thing about this? The concurring judge was the Democratic short-lister, David Tatel. The dissenting judge was the Republican short-lister, Janice Rogers Brown.



Thanks to In a decision handed down today, United States v. Goddard , two judges who are each on the short-list for a future Supreme Court nomination of their respective parties came down on opposite sides of a Fourth Amendment case. How they lined up is pretty interesting.The first judge wrote a short concurrence noting that the court was bound by Supreme Court and circuit precedent, and thus had little choice but to rule in the government's favor. The second judge dissented, taking issue with decades of caselaw from the Supreme Court and lower courts and urging the rejection of the Supreme Court's test and the substitution of a new, more restrictive test to better protect the rights of minorities from abusive police practices.The fascinating thing about this? The concurring judge was the Democratic short-lister, David Tatel. The dissenting judge was the Republican short-lister, Janice Rogers Brown.Thanks to Howard for the link.