Last week we noted in our sister publication that three newly minted Obama appointees to the Ninth Circuit issued a public dissent from a death penalty decision (albeit in a more collegial fashion than a few of their more senior colleagues).
We're about to find out more about the Obama judges, as four have been assigned to an en banc panel in a closely watched case on consumer arbitration contracts, and to another hard-fought death penalty appeal. With the rest of each 11-member en banc panel more or less evenly divided among established conservatives, liberals and moderates, the Obama appointees as a group would appear to hold the balance of power in each case.
Judge Mary Murguia, appointed to the court in 2010, and Judges Morgan Christen, Paul Watford and Andrew Hurwitz, all of whom arrived this year, will join Chief Judge Alex Kozinski and Judges Harry Pregerson, M. Margaret McKeown, William Fletcher, Richard Tallman, Consuelo Callahan and Milan Smith for argument Dec. 11 in Kilgore v. KeyBank National Association. The case will determine whether the Federal Arbitration Act preempts a California rule that prohibits the arbitration of claims for broad, public injunctive relief. Consumer groups and the U.S. Chamber of Commerce have been lobbying the court as amici curiae.
Detrich v. Ryan, to be argued Dec. 10, is an Arizona death case where a three-judge panel of the Ninth Circuit has twice granted a petition for habeas corpus. After the first ruling the U.S. Supreme Court ordered the court to reconsider under it's new, stricter standards for habeas corpus, but the panel stuck with its ruling, though Judge McKeown dissented.
Judges Murguia, Christen and Watford plus Obama appointee Jacqueline Nguyen will join Kozinski, Fletcher and Bea along with Judges Stephen Reinhardt, Susan Graber, Ronald Gould and Carlos Bea for Detrich.
The rulings, which likely will take months to issue, could also give early indications of how willing the Obama appointees are to push back against Supreme Court trends, something the Ninth Circuit has a long-established reputation for doing. Since first reining in consumer arbitration with its landmark 2011 ruling AT&T Mobility v. Concepcion, the high court has been quick to smite other appellate courts' attempts to carve out exceptions to the decision.
The Supreme Court also has been aggressive about reversing federal courts that use habeas corpus to second-guess state court death penalty decisions.