Tuesday, April 29, 2014

Frost v. Van Boening (9th Cir. - April 29, 2014)

Think that en banc panel draws don't matter much?  Think it's irrelevant that the Chief Judge gets to be automatically put on the panel?

Think again.

It's a 6-5 opinion.  The lineup is pretty much how you'd expect:  left-leaning judges together and right-leaning judges on the other side in this criminal case.  The swing vote is Chief Judge Kozinski.  Who joins the left and gets 'em to six.

Draws will matter less -- at least for a while -- now that the Ninth Circuit has only nine Republican active appointees (really, ten if you count Judge Tallman, as one should) versus 19 Democratic appointees.  That'll be even more the case once Judge Thomas becomes the chief later this year, since they'll then be an automatic left-of-center addition to the panel (as contrasted to the right-leaning, and yet wonderfully idiosyncratic, Chief Judge Kozinski).

But since we're back to 11-member panels, it'll still matter in some cases.  As it does here.