Monday, December 15, 2008

Party Animals in the Sixth Circuit

Remember the HAVA suit against Jennifer Brunner during the runup to the election? The Republicans filed suit against Ohio's Secretary of State alleging that she was violating the Help America Vote Act1. A three judge panel of the Sixth Circuit ruled that the suit should be dismissed, then the entire Sixth Circuit sitting en banc overturned the panel's decision. Then the Supreme Court reversed again.

A story in last week's Washington Post put the case in a broader context. The Republican dominated Circuit hs been using its discretionary power to rehear en banc to overturn panel decisions the majority doesn't like:

    "Anytime two of us show up on a panel and they don't like it, they yank it," said one Democratic-appointed judge on the circuit, who spoke on the condition of anonymity to avoid directly provoking colleagues.

    That may be only a slight exaggeration, according to a Washington Post review of all of the circuit's en banc rulings in the past decade. In the past five years, initial verdicts by panels dominated by Democratic appointees were clearly reversed by Bush's appointees and other Republican picks 17 times, out of 28 decisions issued by the full court.

This is arguably an abuse of the en banc power:
    Under 6th Circuit rules, full court, or "en banc," hearings are allowed in order to ensure "uniformity of the court's decisions" when separate panels of three randomly appointed judges disagree, or when questions of "exceptional importance" are at stake. But some of the court's Democratic appointees allege that the Republican-appointed majority is grabbing and reversing cases whenever those judges disapprove of the social consequences of the Democratic appointees' rulings.
Much of the article focuses on criminal appeals and the whole thing is worth the click-thru. H/t Stefan Padfield at Akron Law Cafe whose link eventually gets you there.

One last point. The accompanying graphic shows that in 2001 the circuit was essentially split with 27 vacancies. The vacancies at that time pretty much account for the shift during the Bush years. In the second Clinton term Republican Senators were refusing to allow dozens of Clinton's appointees an "up or down vote" leaving several circuits and district courts with similar gaping vacancies. We cannot allow whatever shenanigans the Rs try to pull with Obama's nominees this time around.

1The suit itself was somewhat Bizarro World. The Act requires state election officials to compare voter rolls against public databases to create a sort of EZ Pass for voters deemed bona fide before showing up at the polls. Republicans being Republicans wanted to covert it into a Help REAL America Supress the Vote Act.