For a long time, it’s been impossible, or nearly so, for the conservative judges on the Ninth Circuit to win the support needed from their moderate or liberal colleagues to grant en banc review of panel decisions that reach liberal results. During the course of Donald Trump’s presidency, the number of appointees of Republican presidents on that court grew from 7 to 13, but the surviving majority of 16 appointees of Democratic presidents continued to leave conservative judges in dissent on en banc calls. But maybe the coalition of Democratic appointees is weakening.
On April 20, the Ninth Circuit granted en banc review of the panel opinion in City of Oakland v. Wells Fargo, which held that the city of Oakland was entitled to pursue its claim that Wells Fargo’s allegedly discriminatory lending practices had reduced its property-tax revenues. Six recusals among the judges meant that 12 Democratic appointees and 11 Republican appointees took part in the en banc vote, so the grant of en banc review required the support of at least one Democratic appointee.
Last Thursday, the Ninth Circuit granted en banc review of the panel opinion in D.D. v. Los Angeles Unified School District. In that case, the majority had ruled that a student pursuing a claim under the Americans with Disabilities Act was not required to exhaust his claim through the administrative procedures prescribed by the Individuals with Disabilities Education Act. A conservative (or moderate conservative) judge was part of the majority and Judge Johnnie Rawlinson, a moderate Clinton appointee, dissented, so the ideological valence of this en banc grant might not be especially strong. But, on an admittedly quick review, this still strikes me as a case in which the support for en banc review would have come heavily from conservative judges.
Perhaps Rawlinson herself led the call for en banc. In order to prevail, she would have had to win over one other Democratic appointee. [Update (5/11): I’ve modified the preceding sentence, as my initial version mistakenly contemplated that the Republican appointee who was part of the majority would have taken part in the en banc vote. Thanks to the reader who pointed out to me that that judge has senior status and, under Ninth Circuit rules, was ineligible to vote on the en banc call.]