[UPDATE: After reading my post, Legal Sports Report has pulled their article while they review.]
The influential sports-law blog Legal Sports Report is following NCAA and has a lengthy and interesting post today about the en banc process, but the post is wrong on a few points. My original post yesterday on Third Circuit en banc procedures is here.
The Legal Sports Report post claims, “We do not know yet which judges will be on the en banc panel,” explaining:
Generally, recusal decisions are not known until the matter is set for argument, and sometimes not until the day of the argument.
Some have speculated that, because the court’s order granting rehearing en banc named only nine of the active judges as having voted on the en banc petition (judges listed as “Present”), the other three judges who were not named are recused. This speculation is unwarranted.
There were no recusals noted in the court’s order (typically reflected as “Judge Smith took no part in this decision.”). The absence of the three judges (Chief Judge McDonald [oops: he means McKee] and Judges Chagares and Schwartz [Shwartz, actually]) is most likely a reflection of a quirk in the court’s rules.
Petitions for rehearing en banc are circulated to all active judges. The judges wishing to grant rehearing must affirmatively notify the clerk. Judges wishing to deny rehearing, however, may either affirmatively notify the clerk or simply make no response at all; either way, their vote counts as a “no” because rehearing en banc requires a majority of active judges, not a majority of active judges who vote.
So, although one or more of the three active judges not named in the order may have recused themselves, the more likely explanation is that they simply did not vote on the petition for rehearing but will still sit on the en banc panel.
This is wrong. The fact that McKee, Chagares, and Shwartz did not sign the order granting rehearing en banc in NCAA means they will not participate in the rehearing because they have recused themselves, not that they “simply did not vote.” The docket for each en banc case is explicit about this, listing the judges who signed the order granting rehearing en banc with the label “Coram.”
Don’t believe me? Look at Langbord, the gold-coins en banc argued earlier this week. Greenaway is not listed on the on order granting rehearing, and he did not participate in the argument. The last en banc with a recusal before that was Al-Sharif. Chagares is not on the order granting rehearing, and he did not participate in the argument.
(Also, the “sometimes not until the day of the argument” statement is wrong too, as Third Circuit practitioners well know.)
Given that error, all of this is wrong, too:
Bottom line, assuming no recusals, we can expect the en banc panel to have 14 or 15 judges—the 12 active judges plus Senior Judges Rendell and Barry, and possibly Judge Restrepo if he is confirmed prior to argument. Thus, New Jersey will need to find eight votes in order to prevail (a tie vote would leave the district court decision in force as the final decision, but a tie is highly unlikely—in case of a tie, one judge would likely switch sides and join a narrow decision in order to provide finality to the issue).
These missteps aside, it’s an intelligent post with some plausible head-counting, and I recommend it.
UPDATE: One other thing. I said Legal Sports Report’s head-counting was plausible, but that doesn’t mean I think it’s right. The post reasonably predicts that in NCAA the more liberal judges will side with Congress and more conservative judges with the state. But, in predicting which judges will fall into which camp, the post hypothesizes that the liberals are the judges nominated by Dem presidents and the conservatives are the ones nominated by Republicans. In a lot of circuits that would be give you a reasonably accurate guesstimate, but not here. As I’ve shown in detail here, http://thirdcircuitblog.com/judges/a-closer-look-at-the-third-circuits-recent-en-banc-cases/, nominating party does not match up very well with vote ideology in the court’s recent en banc cases.