Close en banc decisions -- especially in high-profile or politically charged matters -- are often the result of a sharp ideological split. But not always. This opinion is an example of the latter.
The Ninth Circuit decides 6-5 (really, 6 3/4 to 4 1/4, with Judge Kozinski being the 1/4) that a conviction for domestic violence under Arizona law isn't necessarily a "crime of violence" because Arizona law authorizes a conviction under this statute for reckless (but unintentional) conduct, and hence under the Supreme Court's categorical approach doesn't automatically trigger deportation. The dissent's contrary analysis is captured in its memorable opening line, which states: "Men do not beat their wives by accident."
Given the holding, you might think that the liberals would be in the majority and the conservatives in dissent. But this is only slightly the case.
Sure, Judges Reinhardt, Schroeder, and Hawkins (appointed, respectively, by Carter, Carter, and Clinton) are in the majority. But so are Judges Bea and Clifton -- two Bush II appointees -- as well as Judge Noonan, who was appointed by Reagan (and who's on the en banc court only because he was also on the panel). Moreover, Judge Kozinski -- another Reagan appointee --essentially (albeit "reluctantly") agrees with the majority as well, though he concurs since he'd remand rather than reverse. The majority of these seven votes are thus from Republican (rather than Democratic) appointees.
The dissent is similarly somewhat of an ensemble cast, and includes three votes you'd very much expect (Judges O'Scannlain, Bybee, and Callahan, the first a Reagan appointee and the others from Bush II) but also includes Judge Wardlaw, a Clinton appointment. The legal analysis also is somewhat ideologically shifted, and one need only look at footnote 11 of the majority opinion to get a hint of what I mean, in which one finds the liberal Judge Reinhardt citing and relying upon Justice Scalia's position that legislative history is irrelevant to the interpretation of the statute in response to the conservative dissenters' (apparently newfound) view that legislative history is highly relevant to the interpretation of this statutory text. Not the usual type of analysis from these particular judges!
There's surely some results-oriented analysis here, but there are also surely reasoned differences as well. It's a good example of the truism that you can't always count the votes based entirely on political or ideological stripes. (Though, to be sure, notice the emphasis on the word "always". An important caveat.)
