Some really "inside the 9th Court" info. A "Must Read."
From the "How Appealing Blog," The Web's first blog devoted to appellate litigation
How can I say that the eleven-judge en banc panel that will rehear the California recall election case is "conservative" when eight of the judges were nominated by Democratic Presidents? Two points. First, I'm using the term "conservative" relative to the composition of the typical en banc panel one sees from the Ninth Circuit. Second, three of the court's smartest and most conservative judges are on the panel, while none of the leading liberal voices from the court are on the panel. Also, Judge Tallman, while a Clinton nominee, was actually selected by a Republican Senator as part of a deal to get someone else's nomination approved. Judge Rawlinson, also a Clinton nominee, regularly votes with the Ninth Circuit's more conservative judges. And Judges Silverman, Graber, McKeown, and Gould are viewed as moderates by and large. [Update: A reporter who regularly covers the Ninth Circuit has emailed to say that Judges Silverman and Gould are "conservative-moderate" and that "the recall proponents just hit a home run."]
Perhaps Judge Kozinski sums it up best in this paragraph from an article that appeared in USA Today back in February 2003:
Four of President Clinton's 14 appointees to the 9th Circuit have turned out to be "really excellent, conservative jurists," says Kozinski, who was appointed by President Reagan, a Republican. After Congress expanded the court by 10 seats in 1978 and President Carter, a Democrat, filled them, "the court was dominated by liberals," Kozinski says. "But now it's really quite balanced. Any notion that there is a conservative wing or a liberal wing or a consensus or an embattled minority on one side, I think is total hokum."
Some former Ninth Circuit law clerks lend their insights: One emails:
As a former Ninth Circuit clerk, and an appellate lawyer who follows that Court closely, I agree with your assessment of the panel. It is a right-leaning panel, by Ninth Circuit standards, and it may well save the Supreme Court from having to make a difficult decision on whether to intervene. The proponents of the recall were lucky, but they were also aided by the fact that three left-leaning judges were recused.
To add another thought, while judicial vote counting is hardly a precise science, it seems likely that some of the "right-leaning moderates" voted to take the case en banc. Even if you assumed that all ten active conservative appointees (including Tallman) voted for en banc, they would still need two more to comprise a majority. The vote to take the case en banc therefore likely required two folks like Rawlinson, Gould, or Silverman, who will be the swing votes on Monday's panel.
The only exception to this imprecise science would be if some left-leaning judges adopted the viewpoint, criticized by Judge Reinhardt in his concurrence to the denial of rehearing in the pledge case, that the case would be en banc-worthy because of its importance, even if the panel got it right. In my experience, few judges actually vote on that basis, and given the Court's need to expedite this decision, I tend to doubt that judges comfortable with the panel result would have voted for en banc.
Another writes:
As a former clerk for Judge Thomas, I find this en banc draw fascinating. Kozinski and Thomas have sparred in the past, and while they respect each other, I think Kozinski will seize an opportunity to overturn a significant opinion like this one -- and I think we all know now that Judge Thomas probably wrote it.
Assuming Schroeder votes to stick with the panel opinion, Kozinski will be the senior member of a reversing majority so he'll have the chance to write it. We all know Kozinski likes the spotlight and he'll jump at the opportunity to write the opinion, have his face in the national spotlight, and once again be the pride of the Republican party. I will guarantee you that he sees this as an opportunity to get his name back in the ring for a potential Supreme Court slot. I think he just may find a way to get it done.
Kleinfeld and O'Scannlain will vote with Kozinski for sure. And I think Kozinski can get Graber, Tallman, and Rawlinson to go with him. That's the six he needs.
If Kozinski pulls it off, he'll be the most well known appellate judge in the country for a short while, and if Bush gets re-elected, there will probably be at least two, maybe three openings on the Court during the next term and Kozinski will be an obvious choice for an easy confirmation (especially since Bush won't have Estrada to put on the Court).
Call me a conspiracy theorist, but I think this really could happen.
Another beauty of this panel is that even if the result is 6-5 to let the recall occur on October 7th as originally scheduled, the six would presumably consist of an equal number of Democratic and Republican nominees, preventing critics from arguing that the decision was simply another example of partisan politics at work in the judiciary, which was the criticism most often aimed at the U.S. Supreme Court's ruling in Bush v. Gore. And, of course, such a ruling by the en banc Ninth Circuit would take the U.S. Supreme Court off the hook from having to review this case, whereas the original three-judge panel's ruling seemed to dare the Supreme Court to get involved.
posted at 4:40 PM by Howard Bashman
Eleven-judge en banc Ninth Circuit panel has voted to allow C-SPAN to televise Monday's oral argument concerning whether California's recall election should be postponed: You can access today's order, entered at the direction of a majority of the judges on the en banc court, at this link. The oral argument is scheduled to begin at 4 p.m. eastern time, 1 p.m. pacific time, on Monday and to last approximately one hour. Update: Maybe I'm being especially dense, but from the language of the order I cannot tell whether permission has been given to broadcast the oral argument live or simply to record the argument and broadcast it at some later time. Time will tell.
posted at 6:56 PM by Howard Bashman
Difference in strategy between those seeking to keep the recall election on schedule: The "California Insider" Web log by Sacramento Bee Columnist Daniel Weintraub reports here that "Recall sponsor Ted Costa's lawyers have just filed a motion with the court asking to split the allotted 30 minutes of time with the attorney general, who is representing Secretary of State Kevin Shelley." Costa is represented by some very highly qualified attorneys (see the front page of his brief in support of rehearing), and, according to Weintraub's description, Costa has presented persuasive reasons why his lawyers should have time to address the en banc court.
posted at 8:53 PM by Howard Bashman
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