At least one judge on the Ninth Circuit Court of Appeals has asked for briefs to consider whether the court should review yesterday’s decision by a three-judge panel of that court to delay the California recall election. Based on this request, the clerk of the Ninth Circuit has entered an order requesting briefs on whether rehearing before the court en banc should be granted.
Cases in the federal courts of appeal are normally heard by panels of three judges. A losing litigant can petition the court to rehear his case en banc, or, at least in the case of Ninth Circuit, the court can vote to do so on its own accord. For rehearing to occur, a majority of the court’s 25 judges would have to vote for the rehearing
If the court votes to to rehear the case, in most courts that means the entire court would decide it. However, because the Ninth Circuit is so big it is an exception to this practice. In the Ninth Circuit such rehearings occur before a panel of 11 judges randomly drawn from the whole court of 26 judges (I believe that one of the 26 has recused himself from participation in the case). At this point we don’t have a breakdown on the court’s roster of 25 non-recused judges and can’t assess the likelihood that rehearing will be granted, but we know that the three judges who were responsible for the panel decision are certain to vote against it.
It would be a very good thing if the Ninth circuit itself were to reverse yesterday’s renegade decision, thereby taking the Supreme Court off the hook. If the Supreme Court is called on to reverse, the case would be eligible to become the latest in the Democrats’ litany of “anti-democratic” outrages perpetrated by Republicans.
UPDATE and PREDICTION by BIG TRUNK: The Ninth Circuit has entered an order staying the panel decision pending further proceedings. In addition to Judge Stephen Reinhardt, one additional Ninth Circuit judge has recused herself (Judge Kim Wardlaw) from further proceedings in the case. The votes of 13 of the remaining 24 judges will be necessary for rehearing to occur. The three judges on the panel opinion are guaranteed “no” votes; a vote for rehearing will therefore require 13 of the remaining 21. Of the 24 judges who will vote on whether rehearing should occur, 15 are Democrats and 9 are Republicans. It ain’t gonna happen. (Click here for the lineup of Ninth Circuit judges; only “active” judges vote on rehearing.)
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