When I first looked at who joined the dissent from the failure to take this case en banc, I thought it contained all of the usual conservative suspects. It's another state habeas case in which the panel grants relief and the right wing attempts (but fails) to take the matter en banc. In that regard, this case is very similar to Musladin v. LaMarque, which came down the previous working day (and which I discuss here and here) and in which the exact same thing transpired.
But first glances can sometimes be deceiving. Sure, it's mostly the same group, as Callahan, O'Scannlain, Kleinfeld, Tallman, Bybee, and Bea each join both dissents. But, somewhat surprisingly, the dissent in this case includes Judge Gould, who didn't join the dissent from the refusal to rehear Musladin. Weird, since my sense is that Musladin is the somewhat weaker case on the merits. Perhaps Judge Gould was spooked by the fact that the Supreme Court previously GVR'd this case, which shouldn't matter, but which sometimes creates a perception of future reversal. (Shameless self-promotion: Cf. Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551 (2004)). Perhaps even more significantly, guess who joined the dissent in Musladin but who doesn't join the dissent in this one? Judge Kozinski.
I found that fact particularly interesting because (1) I think that it reaffirms my belief (which I've previously discussed) that Alex is not a knee-jerk jurist, and (2) in light of the fact that his stock as a potential Supreme Court nominee -- on the assumption that Meirs gets tubed -- is (at least according to some) on the rise, and is (again, according to some) much higher than the super-long-shot status he previously held. Now, even the little birdies who're chirping on the subject basically put him at 25-1 or so. Still, that's a fair piece higher than many, and much better odds than he previously had. So interesting to see his take on this one, as well as to ponder how his reactions to cases like these would play with the public in the event he were nominated to the Court.
