Lest one think that one's draw doesn't matter at all, compare these two en banc cases, which came out within a day of each other. (Plus, I have a question about one of these panels, and for the life of me can't figure out the answer.)
The first is Landrigan v. Schriro, a decision that came out on March 8th. This is a habeas death penalty case in which the petitioner raises a claim of ineffective assistance of counsel. The en banc panel randomly drawn for this one includes all three remaining active Carter appointees (Schroeder, of course, as well as Pregerson and Reinhardt), the less results-oriented -- and more idiosyncratic -- of the two Reagan appointees (i.e., Kozinski rather than O'Scannlain), and four Clinton appointees (Hawkins, Wardlaw, Fletcher, and Berzon). All of whom vote in favor of the petitioner. Indeed, these 8 are even joined by a Bush appointee, Clifton. But the other two Bush appointees, Callahan and Bea, dissent.
By contrast, there's United States v. Gourde, a decision that came out the next day. This is another criminal en banc case, but both the context (e.g., the underlying criminal offense) and who's on the panel is quite a bit different. This is a child pornography case, and the issue is whether there was probable cause to believe that the defendant had actually downloaded any illegal pornography sufficient to uphold a warrant to search his computer. This panel has the same two Bush appointees who dissented in Landrigan -- Callahan and Bea -- as well as two GHW Bush appointees (Rymer and Kleinfeld), two Reagan appointees (O'Scannlain and Brunetti), three (fairly moderate, especially in criminal cases) Clinton appointees (Gould, McKeown, and Thomas), and two Carter appointees (Schroeder and Reinhardt). And they uphold the search on a 9-2 vote. The two judges who dissent here are the ones you might well imagine, at least if you follow these things: Reinhardt (not a big shocker) and Kleinfeld (who, like Kozinski, will occasionally vote with the left on a critical issue of privacy or other substantially important constitutional liberty). The death penalty is one thing. Kiddie porn is another. For all the alleged liberals on the Ninth Circuit, this is a court that has a lot of moderate to conservative votes on criminal matters. Tangentially, on the merits, this is a great set of opinions to read. Both the majority and the dissents make some darn good points. All of these opinions are definitely worth the time.
Okay, so here's my question. One which I've now spent four minutes trying to figure out, without success. So I'll publicly shame myself by revealing my stupidity, and then someone can e-mail me and tell me the simple answer that is totally obvious to everyone but me. Here it is: Why is Melvin Brunetti on this en banc panel? Circuit Rule 35-3 provides that the en banc court shall consist of 11 (now, 15) active judges. Judge Brunetti went senior back in 1999. Why's he on the panel? I honestly can't figure it out.
Again, sorry if I'm being stupid here. I'm sure it's not the first time. Nor -- by any means -- the last.
P.S. - Many thanks to those who e-mailed me and reminded me that senior judges who sit on the panel are eligible to sit on the en banc court. Which is why Judge Brunetti is where he is. Oh, yeah. I remember now. Thanks! (Interestingly, I had looked up these rules prior to the post, but there's a pretty substantial textual problem with the Ninth Circuit rule that allows senior panel judges to sit on the en banc court, which I read -- credibly, I think -- to allow them on the en banc court only if they go senior after the panel opinions issues. I'm sufficiently interested in the subject to maybe write some more on this topic later, but I shan't bother anyone with it now. Anyway, thanks again!)
