Legal News

Out West, Winds Shift, But En Banc Dissents Might Be Here to Stay

By Ashby Jones

Over the last eight years, the Ninth Circuit, a court historically known in equal parts for its left-leaning tilt and vast geographical reach, has been moving rightward. President George W. Bush appointed seven judges to the court. And the effective use of a once little-used procedure has allowed the conservatives greater influence on the court.

But now, President Obama will get the chance to shift the balance on the court back to the left. Two judgeships are vacant, a third is slated to open up next year, and a congressional bill could add six new judgeships to the court, bringing the number of active judges up to 35. Click here for a LA Times article from the weekend that provides a good shapshot of where the court is now — and where it’s poised to go.

Still, according to the article, a renewed push to the left might not be able to blunt the impact of a tool used effectively by conservatives in recent years — the dissent from the denial of an en banc hearing. Conservatives have effectively used those dissents as a signal flare to the U.S. Supreme Court. The maneuver is used almost exclusively at the 9th Circuit.

Judge Consuelo M. Callahan (pictured), named to the court in 2003, said she believes dissent-from-denial opinions are an effective tool.

“I’ve heard from Justice [Anthony] Kennedy that they do look at dissents from denial, that it doesn’t go unnoticed how many people signed,” she said of the high court’s radar.

Shaun Martin, a University of San Diego law professor and veteran appeals court analyst, believes the conservatives appointed by Bush to the 9th Circuit are especially active in calling cases to the Supreme Court’s attention that offer an opportunity to undo some of the liberal judicial policymaking of the 1960s. The 9th Circuit has issued a number of decisions — known to stick in the craw of conservatives — that strengthened the rights of criminal suspects.

“I think a court has to be consistent in its rulings, which is why I put so much time and effort into the en banc process,” said Judge Diarmuid F. O’Scannlain, just behind Kozinski as the longest-serving active judge among the conservatives. “We’re not doing as good a job as we should be doing in correcting internal inconsistencies.”

Full post as published by Law Blog - WSJ.com on April 20, 2009 (boomark / email).