NYT reports that–perhaps a bit suspiciously?–the 11-judge panel that will reconsider the California recall case are

either aligned with the circuit’s more conservative wing or are moderate in the sense of avoiding drastic actions like calling off elections.

“As favorable as the original panel was for the A.C.L.U.,” said Vikram Amar, a professor at Hastings College of the Law in San Francisco, “this is as favorable a panel as you can get for the other side.” The A.C.L.U. Foundation of Southern California represents the civil rights groups in their challenge over punch-card voting.

Howard J. Bashman, a specialist in appellate law in Philadelphia, agreed, calling the panel about as conservative as one is likely to find on the Ninth Circuit.

“The panel seems to be much better than the recall proponents could have hoped for,” Mr. Bashman said.

For one thing, none of the three judges on the original panel are on the en banc panel. The larger panel was, by standard procedure, selected at random from the 23 active judges who had not recused themselves. The only exception was the chief judge, Mary M. Schroeder, who automatically sits on every such panel.

The three judges on the original panel as well as the three who recused themselves from yesterday’s decision were appointed by Democrats and are considered liberals.

Interesting. Of course, this is the joy of judicial activism: Judges should not be so easily pegged by ideology from their decisions.

Also, en banc panels of the Ninth Circuit usually reverse the decisions they review, said Arthur D. Hellman, a professor at the University of Pittsburgh School of Law.

In a study published in 2000, Professor Hellman examined 65 cases from the preceding six years in which 11-judge panels of the court had reconsidered the decisions of three-judge panels. In 43 cases, he said, the decision was unequivocally reversed; in six others the outcome changed in a way the losing side welcomed. In all but five of those 49 cases, the vote to change the outcome was 7-to-4 or more lopsided.

“On the basis of that track record alone,” Professor Hellman said in an interview, “if you were a betting person, the panel of the en banc court is probably going to let the election go forward.”

Nothing like a little consistency to strenghten faith in the rule of law.

Bashman has much more to say on his blog, notably this post.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.