An AP story by Dan Sewell begins, "Even though the administration's warrantless surveillance program is heading toward an appellate court loaded with Bush appointees...." The second paragraph quotes a law professor on what a "conservative-dominated" court is likely to do.
Huh? "Loaded"? "Conservative-dominated"? The Sixth Circuit?
Until quite recently, the 6th was generally known in conservative circles as the 9th upside-down. President Bush has appointed 6 of the 14 active judges, which hardly constitutes being "loaded." That is only one more than the number appointed by President Clinton. Republican appointees are now only a slim 8-6 majority among the active judges. The roster is available here. Further, party of appointment is not a sure guide to ideology, and Republican appointees going left are far more common than Democrat appointees going right. Overall, the article correctly says that the outcome of this case is not a foregone conclusion, but its initial premise that the Sixth is a conservative-dominated court packed with Bush appointees is detached from reality.
Regular versus senior status is important if the case goes to the court en banc. Sixth Circuit Internal Operating Procedure 35 provides,
"The en banc Court is composed of all judges in regular active service at the time of a rehearing, any senior judge of the Court who sat on the original panel, and, if no oral argument en banc were held, any judge who was in regular active service at the time that the en banc court agreed to decide the case without oral argument. Only Sixth Circuit judges in regular active service and who have not recused themselves from the particular case may cast votes on a poll on the en banc petition itself."
If the case goes to a panel first, senior judges are eligible, if willing, to be selected for the panel. There are 8 senior judges on the roster, 3 appointed by President Carter, and 3 by President Reagan, and 2 by the elder President Bush.
Although nearly all cases go to a three-judge panel before they are even considered for en banc decision, this is one of the rare cases that should go directly to the en banc court. En banc determination usually waits until after a panel decision because the usual reason for going en banc is a conflict between panels. However, under Federal Rule of Appellate Procedure 35, a second reason for going en banc is that "the proceeding involves a question of exceptional importance," and that criterion is evident from the outset. It is certainly present in this case.
The government should petition for initial hearing en banc. The Sixth Circuit should hear the case en banc whether the government petitions or not.