Come on. En banc draws don't really matter at all. They're all pretty representative, right? Nothing really rides on them.
Really?
Here's a 6-5 decision in a Section 1983 case. The six in the majority conclude there's no Section 1983 violation, and the five in dissent conclude otherwise. Who's on top? Two Reagan appointees (Kozinski and O'Scannlain), a Bush I appointee (Rymer), two Bush II appointees (Callahan and Randy Smith), and -- in a somewhat surprising swing vote capacity -- Judge McKeown. Who's on bottom? Five Clinton appointees.
I'll have (much) more to say about this one later. And my thoughts on the matter relate a fair piece to a conversation that Chief Judge Kozinski and I had in Little Italy a few months back.
But I'll just say this for now: Don't think that en banc draws don't matter. They sometimes do. A lot.
P.S. - Can I also just say how much I loved the opening line of the dissent by Judge Thomas, which states that "Gilroy holds itself out as the 'Garlic Capital of the World,' and no one seriously disputes the claim." Hilarious. To which I assumed the following was an unstated but intended inference: "Because who, after all, would ever even want to vie for such a title?"
