Sometimes it helps to take things in chronological order, if only to see how things develop over time.
(1) On May 30th of last year, the panel issued this opinion. [Pardon me for the lack of links right now; I'm in DC using a Mac, and can't quite figure out how to get the links to work -- I'll figure it out soon enough.] Which reversed the district court and granted a new trial to a defendant who was convicted of, inter alia, hiring a hit man to take out a federal judge.
(2) That same day, I posted this. Which basically said: Wow. You had on the one hand a massive, detailed opinion by Judge Willy Fletcher. Strident, too. But you had an equally strident dissent. By Judge McKeown, no less. I pointed out that you don't see something like this that often. Two people who are generally sympatico nonetheless going at it in their respective opinions. With not a single hold barred.
(3) Later that year, the case then gets taken en banc. Your faithful reviewer then comments on that event, saying (among other things) that "I bet this one results in a split opinion" in the en banc court.
(4) Today the en banc court issues its opinion. Guess who wins as between Judges Fletcher and McKeown? I'll give you a hint. The dissent to the en banc opinion is written by . . . Judge Fletcher.
But let me say this as well. This is about as conservative an en banc panel as you're likely to draw in the Ninth Circuit. As well as a hard-core right/left split. Who's in the dissent? The four judges drawn for the en banc panel appointed by Democrats: Judges Fletcher, Pregerson, Wardlaw and Paez. Who's in the majority? Seven judges, each of whom was appointed by a Republican: Judges Kozinski, O'Scannlain, Kleinfeld, Callahan, Bea, Ikuta, and Randy Smith.
Mind you, a Clinton appointee -- Judge McKeown -- authored the panel dissent. I'm also quite positive -- even with no inside information -- that several Democratic appointees voted to take the case en banc, which suggests that they too may have been sympathetic to what ends up in the en banc court as the exclusive view of Republican appointees.
That said, this case shows you a couple of things. First, panel draws may well matter. Second, they can occasionally be unrepresentative of the court as a whole. Finally, as I mentioned to Chief Judge Kozinski at dinner one evening, there may well be practical, concrete consequences as a result of the Ninth Circuit's decision to go back to 11- (from the "experiment" with 15-) judge panels.
I'm not saying that the extra four would have all broken with the dissent on this one and thus turned a 7-4 into an 8-7 the other way, particularly given our knowledge of either certain or likely Democratic defections here. But it's definitely possible. And, both more importantly as well as more generally, the case assuredly raises an issue regarding the representativeness -- or lack thereof -- of limited en banc panels. Sometimes they mirror the court as a whole. Other times, not so much.
So, as I predicted, a split opinion. A split, as it turns out, in the most traditional manner. In a case that raises broad institutional questions equally important as the difficult doctrinal issues upon which both the majority and dissent rightly spill much ink.
