Tuesday, October 27, 2009

Mohamed v. Jeppesen Dataplan (9th Cir. - Oct. 27, 2009)

Even beyond its mere presence (which is significant itself), there are two additional things worth mention about the Ninth Circuit's order this morning that took en banc the "private lawsuit against enhanced interrogation" opinion.

First, this shows both the upside as well as downside of getting a really good panel draw. As I mentioned when the opinion first came out, this was a very pro-plaintiff (i.e., left-of-center) panel. That's good for initially winning. But it has its downsides when it comes to the en banc vote, since it's not only people like me who can recognize a panel's particular tilt. Something that makes an en banc vote more likely, particularly (as here) in a high-profile, politicized case.

Second, the en banc order is exceptional for the number of judges recused. Some of the judges who recuse themselves do so for the typical reasons; e.g., Judge Reinhardt because the ACLU is counsel to the plaintiff (his wife is the executive director of the Southern California ACLU). But you've got others here that are case-specific; e.g., Judge Bybee, who's name by now is virtually synonymous with enhanced interrogation. Add to these two Judges McKeown, Gould, Milan Smith, and Ikuta and you're looking at 7 total recusals -- a really high number, and something you don't usually see.

So we'll see how this one comes out in the en banc process. It's bound to let a lot of attention.