He did rule by ignoring it and inviting an amicus to gather facts and argue the case against dismissal. When you start to play tiddlywinks rather than umpire baseball, you are way out of bounds, and a writ of mandamus is designed to fix that.
As Powell argued in her brief
"[w]hen the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course." In Re Reyes, 814 F.2d 168, 170 (5th Cir. 1987). If there is a threshold question concerning ... jurisdiction to review the district courts interlocutory order ... [this Court] first consider[s] whether the district court legally erred. Fokker Servs., 818 F.3d at 740.
Unfortunately, Sullivan knows the DC Circuit has his back on this one, and will deny the request. We are well beyond the court system as you and I know it, but a completely hijacked system that upends the Constitution.
In a rational world, every federal judge would be a clone of Clarence Thomas. Anyone who says that judges have to “interpret” the Constitution may as well use the Constitution as toilet paper.
But the Chief Justice must now really feel his options are closing. The Cavanaugh hearings ripped open an old scab over a perennial but still festering wound, the fact that the Supreme Court has become a super legislature and a super administrative state whose overreach compels political interests to protect themselves by fighting over appointments to the courts.
First the Democrats did away with the filibuster concerning appointments to inferior federal courts and then the Republicans returned the favor concerning appointments to the Supreme Court. A man of many faults, Mitch McConnell nevertheless has acted with unaccustomed alacrity in filling vacancy on the court with purportedly conservative judges and justices. The pretext is falling away, Republicans are virtually openly acknowledging that we have to get our judges into the system while we can because the system is broken otherwise.
All of this is another way of saying that the Democrats have politicized the court system and the Republicans have finally if belatedly acted in self-defense. I believe that John Roberts is far less concerned about the politicization of the court than he is about the appearance of politicization of the court. After all, Roberts himself has demonstrated a keen ability to play politics.
Now comes the Flynn fiasco and, thanks to the overreach of Judge Sullivan, the partisanship of his court as a metaphor for the entire broken court system is now undeniable and unavoidable even by the left-wing media, a metaphor that will be exposed for the whole world to see day after day.
I have no idea how the Court of Appeals will react to the application for mandamus brought on by Flynn's attorney but I would bet that Chief Justice Roberts would like to see a sure and quick ending to this fiasco, not so much for the preservation of justice but for the preservation of the reputation of his court and his subordinate courts. If the Court of Appeals fails to act and take the matter out of Sullivan's hands, Sullivan will get his way and the whole fiasco will play out on the front pages at least into July . Roberts cannot want that.
Ultimately, this matter might well get to the Supreme Court because it does touch on separation of powers between the executive and judicial branches and it has much to do with due process of general Flynn and, finally, it requires serious attention as to how court procedures should be administered.
Sooner or later, Chief Justice John Roberts and the rest of those leftists on the Supreme Court will have to do what is necessary to save the court and, perhaps incidentally to their consideration, save the Constitution and the rule of law in America.