Pamela MacLean had this story in the National Law Journal this morning on increased en banc reviews in the Ninth Circuit. (We had previously noted here an Ninth Circuit en banc decision overturning a criminal case panel decision in favor of the defendant, something new and refreshing here in the Far West.) As if on cue, the Ninth decided in favor of the government in an immigration case. The question involves the validity of regulations allowing a lower level government employee to renew a removal (deportation) order previously issued by an immigration judge when the alien walks back in through the revolving door. Every other circuit to consider the question has upheld the regulation, but a panel of the Ninth issued one of those idiosyncratic decisions the court is notorious for, striking them down.

Today's decision, like the one noted in my previous post, shows the ideological fault lines between the left and the hopeless left. In the majority are three judges appointed by Republican Presidents, Judges Kozinski (author), Rymer, and Bybee, plus Democrat-appointees Chief Judge Schoeder and Judges Hawkins, Graber, and Gould. The dissenters are Judges Thomas (author), Pregerson, Reinhardt, and W. Fletcher.

Although the Ninth remains a liberal court and will be one for the foreseeable future, there appears to be a spark of hope that judges with enough sense that they do not consider reversal by the Supreme Court to be a "badge of honor" may now hold the balance of power. It would help if the White House and the Senate would put some priority on filling the vacancies with persons of sense and doing so promptly to further nudge the notorious Ninth back toward the mainstream.