Bench Memos

Law & the Courts

The Mystery of the Missing Ninth Circuit Judge

One curious development in the Ninth Circuit is that Trump appointee Eric D. Miller has been entirely absent from dissents from denial of rehearing en banc.

Over Miller’s eleven months on the court, there have been (according to my review of some quick research by an assistant) a dozen orders, including yesterday’s in Edmo v. Corizon, Inc., in which Republican-appointed judges have dissented from the court’s refusal to rehear a case en banc. Some of those orders—e.g., in Biel v. St. James School, Dai v. Barr, and Kayer v. Ryan—have drawn dissents from all or nearly all Republican appointees except Miller. One Democratic appointee even dissented from the order in Kayer.

Unless I’m missing it, Miller has not yet publicly dissented from a denial of rehearing en banc. In the twelve orders during his tenure, Judges Ikuta, Bennett, and Nelson have dissented eight times, and Judge Collins, who joined the court nearly three months after Miller and thus took part in only nine of the twelve orders, has dissented seven times. Even Judge Milan Smith, a George W. Bush appointee widely regarded as a moderate liberal, has dissented five of the twelve times.

What’s going on?

Perhaps Miller has been voting for en banc review in many or most of these cases and has decided, for whatever reason, not to register a public dissent when the en banc call fails.

Perhaps his time and energy have been consumed by the cases to which he has been assigned.

Perhaps he’s decided to be more an observer than a participant in en banc votes during, say, his first year on the court.

Perhaps he doesn’t think that en banc review is worthwhile.

Or perhaps—a much more alarming (and, I would think, implausible) alternative—he’s inclined to believe that the original panels didn’t commit the grievous errors that his conservative colleagues perceive.

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