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COURT TO REVIEW RECALL
The panel must now address the two original, competing arguments in the case. Shelley maintains that balloting would be fair and that the federal courts should not interfere with an ongoing state election. The ACLU argues that allowing the election to go forward would guarantee the same post-election chaos that surrounded the 2000 presidential voting.
When the 9th Circuit invokes its seldom-used en banc procedure to revisit a case, as it has in the recall case, those panels frequently overturn the original decision. But with so many judges on the nation's largest appeals court, the composition of en banc panels can often be a key factor in deciding whether a ruling is affirmed or overturned.
Legal experts were unanimous in saying the wooden balls did not bounce the ACLU's way, describing the panel's composition as conservative -- particularly by the standards of the 9th Circuit, which has developed a reputation as the most liberal federal appeals court in the country.
Among other things, the three judges that rendered Monday's decision -- liberal Democratic appointees Harry Pregerson, Sidney Thomas and Richard Paez -- were left off the 11-judge panel.
The panel includes three Republicans, including the court's two most conservative members, Diarmuid O'Scannlain and Andrew Kleinfeld, and a bloc of appointees of former President Bill Clinton who often vote with the court's conservative wing.
``I don't think they could have drawn a worse panel'' for the ACLU, said Michele Landis Dauber, a Stanford University law professor and former 9th Circuit clerk. ``It's all over now but the hand-wringing.''
Even attorneys for recall advocate Ted Costa could scarcely contain their glee at the panel composition. Los Angeles attorney Charles Diamond, who will argue for Costa on Monday, remarked that he now knows how the ACLU ``felt when the original panel was selected.''
Legal experts say that if the 9th Circuit now allows the election to go forward on schedule, it almost surely takes the U.S. Supreme Court out of the equation. ``If these 11 judges reverse, it's exceedingly unlikely the Supreme Court would come into the case at the invitation of the ACLU,'' said Vikram Amar, a Hastings College of the Law professor.
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