I know, I know.
It's 113 pages. Single-spaced. Plus, that figure doesn't even contain the majority opinion, since we're talking about a dissent from the denial of rehearing en banc.
Still. If you're going to read one 100+ page dissent from the Ninth Circuit this year, this should be the one.
I say that notwithstanding the fact -- and I know this will turn some people off -- that Judge Willie Fletcher's dissent contains a number of graphs and a number of references to r-squared statistics and the like. Stuff that I appreciate, but I recognize that I'm in the minority on this one.
Let me just pitch the case with the first line from Judge Fletcher's dissent. "The State of California may be about to execute an innocent man." With 100+ pages of support.
Judge Fletcher's opinion is a tour de force. One that's even more impressive when you recognize both how hard it is to go into on appeal the level of factual detail that is evident throughout the opinion as well as when you recognize how (relatively) quickly the thing was cranked out. Wow. Honestly, I'm in awe.
And I say that wholly notwithstanding the merits. Whether you agree or disagree with him, what Judge Fletcher and his chambers have accomplished here is impressive.
Let me say one other thing, too: How much I love my former boss, Judge Reinhardt. Who writes another classic Judge Reinhardt concurrence. Which I totally love. Even when -- as here -- I'm part of the group that he's slamming.
For decades, Judge Reinhardt has wanted the votes of en banc calls to be public, and gets angry that he's not allowed to reveal 'em. And so both expresses that frustration as well as does everything but. His short (page-and-a-half) dissent here continues that refrain, and does so in his inimitable style.
He says that he's in favor of revealing the vote. He blames not only the district court for its failures (as does Judge Fletcher), but also the Ninth Circuit. He also lets you know -- even though he's not allowed to tell you the actual vote -- that "the vote is extremely close, closer than the list of dissenters would suggest." But that's not all. He also says that "The public, the legal academy, our colleagues on other courts, and appointing authorities have a right to judge us based on our performance on the bench," and goes on to say: "In this case, in particular, I believe that public disclosure is important. Revealing how we voted would provide information that would be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted."
Can you read between the lines? What message do you get from all that, and is it similar to mine? Because the import of that language is (deliberately) far from crystal clear, and yet surely reveals information.
Let's dissect it. Okay, so the vote is close. Even though only 12 of the 27 judges have written or signed onto opinions dissenting for concurring from the denial (and hence whose votes we know for sure), we can devine there's a fair number of votes to take it en banc. I figure it's a one-vote swing, or at most two votes. My guess is the former: 13-14 against taking it en banc.
That's the first sentence. The second sentence says it's important that "the public" (that's us), the "legal academy" (that's me), "our colleagues on other courts" (the Supremes), and "appointing authorities" (that's Obama) should know who's voted for what. That says something. He then adds -- in my favorite line -- that disclosing the vote breakdown would "be of interest to those who follow the course of our circuit law and who have drawn certain assumptions about the jurisprudence of various judges that sometimes are unwarranted." In the immortal words of Gary Coleman: Who you talkin' about, Willis?!
Okay, so I'll take that last comment -- intended or not -- as a (perhaps entirely deserved) slam on people who include myself. I'll also pick up the thrown down gauntlet, and reveal publicly my belief as to the breakdown. (I hasten to add that I've neither asked for nor received inside information on this point. Right or wrong, this is all my own external assessment.)
Here are my guesses. We know 11 votes in favor of taking the case en banc from their writing or signing onto dissents from the denial. They're mostly -- but not entirely -- predictable: Judges Fletcher, Pregerson, Reinhardt, Paez, Rawlinson, Wardlaw, Thomas, Fisher, Graber and Berzon (all Democratic appointees), plus Chief Judge Kozinski -- the last being one that's far from a certain vote, and who signs onto Judge Fisher's very nuanced concurrence that essentially says "I don't agree with everything Judge Fletcher says, but this is important enough to take en banc." We know only one published vote against taking the case en banc, Judge Rymer's, but many of the others are fairly predictable.
So let's assume -- for simplicity sake, if nothing else -- that every non-Democratic appointee (other than Chief Judge Kozinski) voted against taking the case en banc. With the 11 known votes in favor, that makes the vote 10-11, with Judges Schroeder, Hawkins, Silverman, McKeown, Gould, and Tallman left.
Here's my take. Gould and Tallman lean right in criminal cases, so -- from my "academic" court-watching chair, I'll put them down as no votes. Judge Schroeder does so as well, so add her to the list of "Shaun Martin Predicted No Votes." I'll put Hawkins and Silverman as "Yes" votes, even though I think they're less strident votes in this regard. Which leaves McKeown, who's especially interesting if only because I think Reinhardt's reference to "appointing authorities" is aimed directly at her end (since her name's been bandied about as a potentiall Supreme Court nominee). I'd put her down as a No vote on this one. Making the vote 13-14 against taking the case en banc.
All this is based purely on my personal assessment of the judges -- alongside, of course, the information that Judge Reinhardt reveals. All those of you on the Ninth: How's my prediction? Maybe not perfect, but I think it's at least close.
Anyway, it's an extremely interesting, if long, set of opinions. Definitely gets your mind flowing, and shows some real work on everyone's part.
