A follow-up to this post from last Thursday:
On Friday, the same First Circuit panel—Lynch, Boudin, Lipez—that denied Doe’s motion for reconsideration (over Lipez’s dissent) reversed course after Doe filed his motion for en banc reconsideration, so Harvard law professor Jeannie Suk Gersen will represent Doe at oral argument tomorrow on the appeal before that panel.
It’s still difficult to make sense of what’s happened:
1. One theory is that First Circuit judge David Barron denied Doe’s initial motion to allow Gersen to represent him on the ground that doing so would require Barron to recuse himself from the case. That would have been unsound reasoning on Barron’s part: If there were some unknown basis on which Barron would have to recuse, Doe’s right to counsel should have trumped any interest or duty on Barron’s part in sitting on the appeal. What’s more, Barron shouldn’t have decided the motion if he had a conflict.
On this same theory, Barron went on to remove himself from the case, but the announced merits panel nonetheless initially denied Doe’s motion for reconsideration.
2. Another possibility is that the undisclosed panel consisted all along of Lynch, Boudin, and Lipez and that Barron thought that granting the motion would require one of them to recuse. Again, it would have been wrong for him to deny the motion on that basis. Further, the panel’s initial denial of the motion for reconsideration would seem to show that Barron was wrong to think that one of the three judges would have to recuse, for it that were so, that judge should not have taken part in the denial. Perhaps Barron was initially informed that one of the three would have to recuse, but on further consideration the judge decided otherwise.
3. Yet another possibility is that the undisclosed panel initially had another judge who got off the panel before it was announced. That still makes it a puzzle that the reconstituted panel would have denied the initial motion for reconsideration.
Perhaps all’s well that ends well. But Barron’s initial order seems impossible to justify and wasted a lot of Doe’s attorneys’ time (and presumably a lot of Doe’s money).