It's a Section 1983 case against a school district that strip searched a 13-year old girl in a futile attempt to find a pill of prescription-strength ibuprofen. The Ninth Circuit takes the case en banc after the panel issues a majority opinion authored by a Bush II appointee (Judge Clifton) that finds no constitutional violation over the dissent of a Clinton appointee (Judge Thomas). At which point the en banc court reverses the panel on a 6-5 vote.
Clearly, draws matter. The conservatives predictably went one way and the liberals another. Right?
Wrong.
The three dissenters on the en banc panel who contended that the strip search was totally okay (and hence didn't violate the child's rights) consisted of (1) a Reagan appointee (Chief Judge Kozinski), (2) a Bush II appointee (Judge Bea), and (3) a Clinton appointee (Judge Hawkins). The two dissenters who contended that the strip search was a constitutional violation, but that this violation wasn't clear and hence the defendants had qualified immunity, consisted of two Clinton appointees (Judges Gould and Silverman). And the six judges on the majority, who found that there was both a violation and no qualified immunity, admittedly consisted of a Carter appointee (Judge Pregerson) and three Clinton appointees (Judges Wardlaw, Fisher, and Paez), but it was the swing votes of two of the most recent Bush II appointees -- the Judges Smith -- that made the difference.
Yes, draws matter. But justice doesn't entail merely voting along the lines of the person who appointed you. Especially in cases like this one, the wisdom and judgment of the particular judge matters. Sometimes a lot.
