Ninth Circuit Takes A Step Towards "En Banc" Review of National Guard Cases From California and Oregon
Setting aside a Court Rule, it stays Panel Opinion on a TRO issued by Portland Judge, and suggests en banc vote will be complete by Tuesday of next week.
Late in the day on Friday, the En Banc Coordinator for the Ninth Circuit issued and Order staying the effect of the earlier Panel Opinion in Oregon v. Trump issued on Monday, October 20. According to the Order, the Stay will remain in effect until Tuesday, October 28, but which date the Court is expected to complete the vote on whether to take the case for rehearing en banc.
There are 29 Judges in the Ninth Circuit. In every other Circuit, an “en banc” court would mean that every full-time active Judge on that Court would rehear the arguments, ask their own questions, and then vote on the result.
Because of its size, the Ninth Circuit rule is a bit different. An “en banc” court generally includes 11 Judges — the Presiding Judge plus 10 other Judges “randomly” chosen by a computer program. The “en banc” can include Senior Judges but only if the Senior Judge in question was part of the original panel that decided the case. That means Senior Judge Susan Graber, a Clinton appointee, is eligible for selection to be one of the 10 Judges to rehear the case.
The current Presiding Judge is Mary Murguia, an Obama appointee. She was previously appointed by Pres. Clinton to be a district judge in Arizona. As a sign of how much things have changed in the confirmation process, she was confirmed by the Senate in an 89-0 vote in 2011.
