The Ninth Circuit is beginning to convince me that it is no longer the worst federal appellate court in the country, though I suppose it’s the Fourth Circuit that has done even more to persuade me that it deserves the title.
I recently highlighted the Ninth Circuit’s surprising and welcome denial of rehearing en banc of the divided panel ruling in Green v. Miss United States of America. In that case, an “openly transgender female”—i.e., a man identifying as a woman—challenged the Miss United States of America pageant’s requirement that competitors in its beauty pageants be “natural born female[s]”—i.e., actual women. The panel majority ruled that the First Amendment’s protection against compelled speech meant that the pageant was entitled to summary judgment, as the plaintiff was “seek[ing] to use the power of the state to force Miss United States of America to express a message contrary to what it desires to express.”
A denial of rehearing en banc today in Martinez v. Clark similarly indicates that the hard Left of the Ninth Circuit is no longer dominant. A unanimous panel, in an opinion by Judge Patrick Bumatay, ruled last June that federal courts lack jurisdiction to review the discretionary determination that an illegal alien is a danger to the community such that he is not entitled to be released on bond. Judge Jacqueline Nguyen (an Obama appointee) and Judge Eric Miller (a Trump appointee) joined Bumatay’s opinion.
Eleven judges, all of whom are appointees of Democratic presidents, disagreed with today’s denial of rehearing en banc. But four of the eleven are senior judges, who don’t have a vote in the matter. So only seven of the twenty-nine judges in active status are on record in support of rehearing the case en banc.
There are 16 Democratic appointees in active status on the Ninth Circuit. It’s possible that some of the nine who are not publicly recorded as voting for rehearing en banc in fact did so. But had all nine done so—or even all eight other than panel member Nguyen—rehearing would have been granted.
The Democratic appointees who did not publicly support rehearing en banc are Clinton appointees Gould and Rawlinson, Obama appointees Nguyen, Watford (whose resignation is effective tomorrow), Owens, and Friedland (!), and Biden appointees Sanchez, Thomas, and Johnstone.
I don’t recall ever seeing so many senior judges objecting to denial of rehearing en banc. I wonder if the Old Guard will increasingly resort to this vehicle.