Ideology and En Banc Review

Abstract

panels comprising of or dominated by more liberal judges, Reagan-appointed judges were said to be voting indiscriminately for en bane consideration of those decisions.9 This controversy over en bane decision making was highlighted in a remarkable series of opinions from the United States Court of Appeals for the District of Columbia in 1987.At the time of the opinions, that Circuit consisted of eleven active judges: six appointed by President Reagan (including Bork and Ginsburg), and the balance by Presidents Carter and Johnson.Three decisions had been rendered by panels composed of or dominated by Carter-and Johnsonappointed judges, 10 and each was voted to be reheard en banc by six to five courts, along strict appointive lines.Some time later, Judge Laurence Silberman, a Reagan appointee, changed his vote to rehear the cases en bane, and the change resulted in reinstatement of the panel decisions." 1 The other Reagan appointees, now in dissent, issued a statement arguing that en banc hearings were necessary because the panel decisions were "clearly wrong" or "at the very least, highly dubious."12 Judge Harry T. Edwards, a Carter appointee, issued a statement criticizing the dissenters' criteria for en bane review as "self-serving and result-oriented."13 Implicit 9. See Wermiel, supra note 7, at 70, col.2; see also Response Prepared to White House Analysis of Judge Bork's Record (Biden Report), reprinted in 9 CARDOZO L. REv.219, 243-44 (1987) (reprinted from Senate Judiciary Committee Consultants, Biden Report, Sept. 2, 1987) (noting Judge Bork's dissent from the District of Columbia Circuit's vacatur of en bane rehearings, see discussion infra text accompanying notes 10-16); Pear & Gerth, Court Choice in Focus: A Portrait of Ginsburg, N.Y.Times, Nov. 1, 1987, at 34, col.6 (same analysis for Judge Ginsburg).But see A Response to the Critics of Judge Robert H. Bork, 9 CARDOZO L. REv.373, 386-87 (1987) (reprinted from United States Department of Justice-Office of Public Affairs, 1987) (criticizing focus on Judge Bork's en bane behavior, because views expressed in dissent from denial of rehearing en bane "are of necessity tentative").The en bane process also seems to be gaining greater attention in the press.Kg., 9th Circuit to Rehear Gay Rights Case, Nat'l L.J., June 20, 1988, at 6 (commenting on Watkins v. United States Army, 847 F.2d 1362 (9th Cir.1988) (order granting rehearing en bane)).10.The three panel decisions were: United States v. Meyer, 810 F.2d 1242 (D.C.Cir.1987) (3-0 decision; dismissal of information not proper upon a finding of vindictive prosecution), vacated & reh'g en banc granted, 816 F.2d 695 (per curiam), opinion vacated & rehg en bane order vacated, 824 F.2d 1240 (D.C.Cir.1987) (per curiam en bane), cert.denied, 108 S. Ct. 1121 (1988); Martin v. D.C. Metro Police Dep't, 812 F.2d 1425 (2-1; summary judgment on issue of immunity inappropriate until plaintiff has opportunity to conduct limited discovery to support claim of unconstitutional motive), vacated in part & reh'g en bane granted, 817 F.2d 144 (per curiam), vacated & opinion reinstated & reh'g en bane order vacated, 824 F.2d 1240 (D.C.Cir.1987) (per curiam en bane); Bartlett ex rel Neuman v. Bowen, 816 F.2d 695 (2-1; limiting judicial review of constitutional questions under the Medicare Act), reh'g en bane granted, order of June 8, 1987 reinstated & reh'g en bane vacated, 824 F.2d 1240 (D.C.Cir.1987) (per curiam en bane).Review of one of the cases, United States v. Meyer, Was subsequently denied by the Supreme Court.11. Statements on the vacation of the en bane rehearings are published at 824 F.2d 1240 (D.C.Cir.1987).As Judge Silberman observed, the D.C. Circuit on the same day vacated a decision to rehear a fourth case en bane, though no vote was recorded and no concurring or dissenting statements were issued.Meyer, 108 S. Ct. at 1246; see Mississippi Indus.v. Federal Energy Regulatory Comm'n, 808 F.2d 1525 (D.C.Cir.), reh'g en bane vacated, 822 F.2d 1103 (D.C.Cir.), cert.denied, 108 S. Ct. 500 (1987).For more recent examples of opinions joined by all judges appointed by Democratic presidents, see Hammon v. Barry, 841 F.2d 426, 427 (D.C.Cir.1988) (Mikva, J., joined by Wald, C.J., Robinson, R. Ginsburg, & Edwards, JJ., dissenting from order vacating previous order granting rehearing en bane); Center for Auto Safety v. Thomas, 847 F.2d 843, 844 (D.C.Cir.1988) (en bane) (same judges issuing statement on equally divided vote); Inmates of Occoguan v. Barry, 850 F.2d 796, 796 (D.C.Cir.1988) (same judges dissenting from denial of rehearing en bane).12.

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