The makeup, and result, of this en banc panel is darn interesting. It's one of the last 11-member en bancs, as the Ninth Circuit went to a 15-member panel starting January 1, 2006 (and this case was argued on December 15, 2005). (The Ninth Circuit will allegedly evaluate the 15-member composition after two years; however, I can already tell you now that there's no chance they'll go back.)
The panel draw was also statistically interesting. The Ninth Circuit, as you know, tilts 16-10 towards judges appointed by Democrats, and it was 16-8 -- two-third Democrats -- when this panel was drawn. However, the panel drawn for this criminal habeas case was a 7-4 Republican majority, and that's even after the automatic inclusion of the chief judge (the Carter-appointed Judge Schroeder). So the random draw pulled both Reagan appointees (Kozinski and O'Scannlain), both Bush I appointees (Rymer and Kleinfeld), and three-quarters of the existing Bush II appointees (Bea, Bybee and Callahan), while pulling none of the Carter appointees and only three of the thirteen Clinton appointees (Wardlaw, Paez, and Berzon). Statistically, that's both highly unlikely and very interesting. Moreover, from a practical perspective, if you're the defendants in this criminal habeas case -- which challenged the California prosecutor's allegedly race-based use of peremptory challenges -- you've got to be totally crying in your beer once you hear the panel. Meanwhile, in the California Attorney General's Office, the announcement of the panel had to have been cause for rousing cheers and multiple high-fives.
Finally, perhaps most interesting -- particularly in light of the above -- is the result. The defendant wins, and the panel reverses the murder convictions on a 6-5 vote. As probably expected, especially given the facts of the case, the defendants win all of the four Carter appointees. But they also win Judge Kozinski as well as, in a somewhat surprising outcome, Judge Bybee. The rest of the Republican appointees dissent.
What's perhaps most fascinating about this case is to ponder whether the panel composition actually made a difference -- if only at a low (and perhaps subconsious level) -- to Judges Kozinski and Bybee. Particularly in light of the swirling controversy about potentially splitting the Ninth Circuit. To my knowledge, there has never been a successful full-court en banc call. But had this case gone the other way -- had Judge Kozinski and/or Judge Bybee gone the other way -- I think there'd have been a serious possibility that this case would have been the first. Because I have no doubt how it would have come out had the entire court reviewed the matter.
Given those facts, I can't help wondering whether the result in this case wasn't altered on several different levels by the composition on the panel. It's a really intriguing case study, and so definitely worth mention.