Patterico's Pontifications



Filed under: General — Patterico @ 10:44 pm

PORTRAIT OF THE EN BANC JUDGES: Complete with photographs. As always, via How Appealing.


Filed under: General — Patterico @ 5:39 pm

EN BANC HEARING WILL BE ON TV: The order that says so is here.

UPDATE: It will be televised live on C-SPAN. Get those VCRs ready!

MORE VOTE-COUNTING: How Appealing has

Filed under: General — Patterico @ 1:58 pm

MORE VOTE-COUNTING: How Appealing has gotten a couple of e-mails from former Ninth Circuit judicial clerks with interesting insights on the vote-counting. Consistent with what I said immediately below, one former clerk says: “Kleinfeld and O’Scannlain will vote with Kozinski for sure. And I think Kozinski can get Graber, Tallman, and Rawlinson to go with him. That’s the six he needs.” The clerk adds that (because, as I say below, Schroeder is almost certain to vote to uphold the panel opinion), if the en banc court reverses, Judge Kozinski will likely write the opinion as the senior member of the majority.

I’m licking my chops now. It truly is payback time!! But this payback will be articulate, intelligent, and principled. What could be sweeter?

BIG NEWS: Rational people in

Filed under: General — Patterico @ 1:47 pm

BIG NEWS: Rational people in California have some reason to celebrate, as the en banc panel reconsidering the bogus recall decision is a good one. The judges will include Chief Judge Schroeder and Circuit Judges Kozinski, O’Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson.

Kozinski, O’Scannlain, and Kleinfeld are solid folks. Kozinski is a brilliant libertarian, and O’Scannlain and Kleinfeld are solid conservatives. Schroeder is a raging liberal — about the worst on the panel, as far as I can tell. Tashima is fairly liberal. I know little about the rest. However, there is nobody from the original panel (it often happens), and no Reinhardts or Pregersons. That’s all good news.

The reportage from How Appealing says conservatives did well with the other picks. Howard Bashman says: “Judge Tallman, while a Clinton nominee, was actually selected by a Republican Senator as part of a deal to get someone else’s nomination approved. Judge Rawlinson, also a Clinton nominee, regularly votes with the Ninth Circuit’s more conservative judges.” Bashman also says Judges Silverman, Gould, Graber, and McKeown are moderate (a reporter says the first two of those are “conservative/moderate).

When I hear a judge described as “moderate,” I don’t know what to think. That label often means: “fairly liberal.” Still, this sounds like a panel that may well reverse.

Let me do some vote-counting. I will be a little presumptuous and assume that I know how some will vote; the obvious caveat is that people do sometimes surprise you.

Conservatives need only 6 votes. I would say they have 3 in Kozinski, O’Scannlain, and Kleinfeld. (Schroeder is a definite vote to uphold the panel opinion, and I would guess Tashima is another.) The question is whether conservatives can pick up 3 more votes from among Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson. From what I am hearing, it is not an outlandish hope.

The fun begins on Monday, at 1:00 p.m. local time in San Francisco. That is when the argument will take place, and we’ll get (second-hand, through our reliable media) a chance to assess whether those six judges will yield 3 more votes.

BREAKING NEWS: How Appealing reports

Filed under: General — Patterico @ 11:32 am

BREAKING NEWS: How Appealing reports that the Ninth Circuit has, contrary to Patterico’s prediction yesterday, granted en banc review of the bogus recall decision.

Not sure how to feel about this, but I’m hopeful it means this ridiculous decision can be interred without having to involve the Supremes. As Howard Bashman at “How Appealing” points out, the important information is: who are the eleven judges who will rehear the case? If you know that, you know a lot. Unfortunately, this critical information is not yet available. I will report it to you when I learn it.


Filed under: General — Patterico @ 10:04 am

EDITING STANDARDS AT FINDLAW: I was interested to read a piece on the recall by Vikram David Amar, a California law professor who has a regular column at But I couldn’t get past the first couple of paragraphs, which I quote below, because of the stunning number of typographical errors. Keep in mind that this is a completely accurate quotation, cut and pasted from the article:

What a difference a couple of weeks makes. I had intended to use this column to talk a bit more about California’s Proposition 54, the so-called Racial Privacy Initiative scheduled for the next statewide ballot. But the meaning and the merits of Prop. 54 were shoved aside by On September 15, the U.S. Court of Appeals for the Ninth Circuit’s ruliedng on Mondaythat the Proposition, along with the more publicized and more important gubernatorial recall election, must be pushed forward backfrom itsthe October 7 date everyone had been counting onto a date thatwhich could be as late as next March. During the interim,, when antiquated punch-card machines currently that are in use in some populous counties are to canbe replaced by more modern and ostensibly more accurate machinery. The opinion was issued by a three-judge panel, per curiam – that is, without a named author.

As of this posting, that Monday’sruling by a three-judge panel iis in legal limbo as the entire Ninth Circuit decides whether to hear the case en banc – , that is, by a panel of eleven of its judges, rather than just three. But whatever happens from here on out, an analysis of the reasoning of the three-judge panel’s per curiam (that is, without a named author) opinion is certainly warranted.

It’s like this was written by a twelve-year old child. I count almost a dozen errors in those two short paragraphs, many of which could have been picked up by a spellchecker (which, by the way, is a tool not available to this blog).

As for what he is trying to say in the piece — who knows?

UPDATE: It looks like they have finally cleaned the piece up. Maybe I’ll try to read it now.

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