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Bench Memos

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Flawless Reasoning from Rosemary Barkett



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Yes, I’m being facetious.  Sort of.

Regular readers of This Day in Liberal Judicial Activism will recognize Eleventh Circuit judge (and former Florida justice) Rosemary Barkett as a leading candidate for the distinction of worst appellate judge in the country.  An alert reader has called to my attention the curious course of conduct by Barkett in the case of United States v. Dodge.  In brief:

1.  In January 2009, Barkett was one of two judges in the per curiam panel majority that ruled that Matthew Mason Dodge, a man convicted of transferring obscene material to a minor, was not required to register as a sex offender under the federal Sex Offender Registration and Notification Act.  (I’d bet that Barkett was the primary author of the per curiam opinion; I say that both because its poor quality and convoluted reasoning are reminiscent of Barkett’s work generally and because the other judge who joined the opinion was Donald C. Pogue of the U.S. Court of International Trade, sitting by designation.)  Judge Charles R. Wilson (also a Clinton appointee) dissented.

2.  Just last week, the en banc Eleventh Circuit, on rehearing in the case, unanimously reached the opposite result of Barkett’s panel and ruled that Dodge was required to register.  Judge Wilson converted his panel dissent into the en banc opinion, which was joined by every other judge—except Barkett, who, without offering any reasoning at all, stated merely that she “concurs in the result.” 

I am not contending that the statutory issue in the case is an easy one, nor have I examined the question with enough care even to have a view whether the en banc court reached the right result.  Instead, I’d simply like to point out how utterly irresponsible it is for Barkett, after her panel vote, not to offer any effort at a reasoned explanation for her flip on the bottom line.  As the reader who called this to my attention asks, “When is the last time you saw an appeals court judge concur in an opinion that reverses and vacates her very panel opinion and not even bother to explain herself?” 


Tags: Whelan


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