One problem with en banc proceedings is that it's sometimes impossible to create a majority coalition in support of any particular approach.
Which sometimes leads to opinions like these.
The majority is absolutely right that the "absolute disparity" approach to juror representation claims is fundamentally flawed. For this reason, there's no way I could agree with Judge Milan Smith (joined by Judges Silverman and Bea), who would retain this approach as circuit precedent. Virtually no one who cares about this stuff supports such a model. Precisely for the reasons the majority articulates.
At the same time, I think that Judge Milan Smith -- as well as Judge Randy Smith -- are exactly right that the majority does a profound disservice by rejecting the absolute disparity approach, surveying the various competing approaches, and then adopting none of them. The majority essentially says: "We overrule circuit precedent adopting X approach. The competing approaches are A, B, C, D and E. So there you have it. Good luck, district courts."
I understand as a political matter why one might perhaps be constrained to do that. You've only got a 7-member majority. Maybe two judges want A, two others want C, one wants a combination of B and E, and so on. Articulating a rule may accordingly be practically impossible.
But, in my view, you've got to try. Essentially what the majority is saying is that it's too hard for them to agree on an approach, so they boot it downstream. District court judges -- since they're solo -- will not have "coalition" problems. And, as a practical matter, these challenges are likely to fail anyway. If only because it's too burdensome and expensive for a single defendant to make the rigorous statistical showing that's required in these cases. Even more so once the Court of Appeals has decline to create a controlling standard, so you're practically required to survey all of 'em.
And, even if those burdens can be overcome, look what happens here. The Court of Appeals unanimously affirms the conviction. Because in this particular case, regardless of the approach, the substantive requirements -- whatever they might be -- aren't satisfied. So too in future cases.
So good luck blowing scarce resources on a challenge that's wildly expensive and also almost certain to fail.
I understand the practical realities here. But I nonetheless can't help thinking that it's just not okay to punt like this. There super smart people on the Ninth Circuit. No one else is in a better position to figure out what the right rule should be. There may well be disagreement.
But you gotta try.
