Man Without Qualities

Wednesday, September 17, 2003

Davis Descending XLV: Eleven Or Twenty-Six?

The federal Ninth Circuit court of appeals will probably review the decision of the three-judge Ninth Circuit panel postponing the October recall election. Most media stories have suggested that the reviewing panel will probably be a "limited en banc" panel consisting of eleven judges out of the total twenty-six "active" Ninth Circuit judges now serving. Those eleven are supposed to be the chief judge (who the court rules provide is to serve on every en banc panel) and ten judges chosen by lot.

But an eleven member limited en banc panel is not mandated by Ninth Circuit rules, and the use of such a panel in this case will be a further serious embarrassment for the Ninth Circuit.

The Ninth Circuit Rule governing the make up of en banc panels (Circuit Rule 35-3) provides that such a panel will normally have eleven members. But that same Circuit Rule 35-3 also provides: In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.

A random set of ten judges will not necessarily be a representative sampling of the full twenty-five. The Ninth Circuit three-judge panel whose decision is to be reviewed already represents the ACLU's "hitting the jackpot" (Mickey Kaus' term) in the random process that selected that panel.

How many more serious decisions are there in this democracy than one forbidding an election to change the chief executive of the nation's largest state? If review of this loopy three-judge opinion is not one of those "appropriate cases [for which] the Court may order a rehearing by the full court" then what is? Are we supposed to believe that the Ninth Circuit judges have something better to do with their time?

There is no reason for the Ninth Circuit to allow the possibility that some bizarre eleven judge panel might be chosen by lot. Indeed, the matter to be reviewed is so serious, and the three-judge panel's opinion is so egregiously wrong, there is no excuse for the entire 26 judges not to be involved.

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