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Miers Case on Hold Until Wednesday

          A panel of judges (Ginsburg, Randolph and Tatel) of the D.C. Circuit has granted an “administrative stay” of Judge Bates’s order in the Miers contempt case.  This stay is not the relief that the Executive Branch is asking for, which is a stay pending appeal, but a brief stay while the court considers whether to grant a stay pending appeal.  The stay issued on September 4, the date on which the White House was supposed to turn over non-privileged documents to the Judiciary Committee.  Presumably, it did not do so. 

            The appellate panel ordered the parties to address three questions by next week: (1) whether there is appellate jurisdiction over the appeal; (2) whether the case will become moot on expiration of the 110th Congress; and (3) if the court has jurisdiction and issues a stay pending appeal, what briefing schedule would the parties propose on the merits.  The final brief on this is due the afternoon of September 10; Harriet Miers is scheduled to testify on September 11. 

            I am not sure what to make of this.  You have a panel of two Republican appointees (Ginsburg and Randolph) and one Democratic appointee (Tatel).  Obviously they recognize the importance of this matter and want to think about it carefully.  I also suspect that they would like (a) to dispose of the case on the narrowest possible grounds and (b) reach a unanimous decision if possible. 

            Finding no appellate jurisdiction may be the simplest way to achieve these objectives (I am assuming that the exercise of jurisdiction here is either discretionary or a very close call legally).  OTOH, they may want to try to put pressure on the parties to resolve the issue through negotiation, which would require exercising appellate jurisdiction.  But it is hard to figure out how they can put pressure on both parties at the same time.  Perhaps they could give the parties a short period to work out a settlement with the proviso that the good faith of each party’s effort would be considered in ruling on a stay pending appeal. 

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