This is a darn interesting opinion by Judge O'Scannlain. It's powerful, compelling, and darn sophisticated in its approach. I like it.
It's an asylum case, and we all know the background of those. Some Ninth Circuit judges have never met a candidate for asylum they didn't like and want to let in. Others have never met a candidate they didn't hate and want to kick out. Those may be slight exaggerations. But only slight. This is an area in which emotion -- or at least politics -- tends to run fairly deep.
When you read all of these various decisions, you often have a view (as I do) about which end of the spectrum Judge O'Scannlain tends to be near. But what I particularly like about this opinion is that, unlike many asylum opinions, which are relentlessly results-oriented, this one is actually pretty darn fair. Not that you can't tell where Judge O'Scannlain's inclinations lie, because you assuredly can. But I thought that his factual analysis was fairly neutral and principled. And -- and this is the thing I was most surprised about -- it's crystal clear that Judge O'Scannlain here is neutrally applying precedent that he doesn't like and would prefer not to follow, and yet does, in fact, apply. That's darn rare in asylum cases, where you can almost always find precedent that supports the result you want to reach, in large part because the prior authorities are so split and divisive in their approaches, depending on who was on the relevant panel that wrote the opinion.
Now, I'm no dummy. My keen sense is that Judge O'Scannlain is definitely pulling a Marbury here; in other words, that he's granting asylum in this case, even though he doesn't particularly want to, in order to craft a decision that slams the general principles that require this result and hence affect other asylum claims more broadly. Such an approach also saves the opinion -- which slams a variety of prior Ninth Circuit cases -- from potential en banc review, as both sides of the aisle will find something they like in the opinion and neither will be especially interested in using this particular case as the vehicle to reshape circuit precedent.
But, be that as it may -- and perhaps, in part, because of it -- I like the opinion. It's smart. It's principled. It makes a lot of sense. And, in a lot of what he says, I think that Judge O'Scannlain is entirely right.
So good job, Dairmuid. It's an impressive opinion. One that I wouldn't have been nearly as smart enough to write.