"That combination— the desire to participate in politically salient cases, and the desire to change their result— is a recipe for a completely politicized judiciary."
"The system of random selection of judges is one of those “norms” you often hear about as the foundation of a democratic system of government. If the judges selected to hear a case are selected via a political process, then you will get political results, and just as important, you will create a public perception that the results are political. "
So what do we do about it? The federal courts were stuffed with these people by an aggressive Republican Party in control of the Senate, particularly the supreme court, and we know it's completely politicized.
Faced with judicial integrity crises in the past in the UK, entire new court systems were set up to bypass and overrule the problem courts. I have read some of the convoluted history of this. Is this a path forward? It seems like it would require amending or abrogating the Constitution, but maybe not?
The UK has the advantage of an unwritten constitution; it could be changed simply through consensus (and has been, many times in the 19th century and even in recent years), though English judges do not state a new Constitutional principle until they are sure a supermajority of the public agrees. "Contrary to the British constitution" means "repellent to the fundamental fiber of British people" or something similar, using the *other* meaning of "constitution". (This is probably the way the 9th amendment ought to be approached here, as a side note.)
You make one good recommendation for reform. It doesn't go far enough. The public has no confidence in the federal judiciary and it's getting even less as time goes on and more and more nonsense and bullshit comes out in the form of "court rulings". Every time a nonsensical ruling comes out with thin, incoherent excuses for results-oriented judging, and there've been a lot lately, confidence declines.
Bush v Gore was of course a HUGE hit to the credibility of the federal judiciary; they backed off from such nonsense for a while, but they seem to have redoubled in spades most recently with the Texas SB8 situation (where they could have declared that judges and court officers were liable for accepting "bounty" cases, which has enough legal precedent; or declared that nobody can file suit without a cognizable interest, which has more legal precedent; both while ducking the question of abortion entirely -- but instead they let it go into effect in pure results-oriented judging); and with the insane ruling attacking the OSHA vaccine mandate (which made up a bunch of bullshit and contradicted everything about the OSHA act -- its so-called reasoning could be used to prohibit fire escape regulations); and the latest Texas lower federal court ruling attacking the federal mandate for its own employees (which made up a bunch of bullshit and contradicted pretty much all of employment law).
What can be done to get judges who *act like judges*? I mean, I know I don't have a judicial temperment, which is why *I have not tried to become a judge*, but neither do a bunch of the federal judges appointed by Trump, or Clarence "I don't recuse myself in cases where my wife is implicated" Thomas. Nobody should have confidence in the federal judiciary; it's Taney-level bad.
Only the removal of the unjudicial from the bench will restore confidence. It can't be done by impeachment because impeachment is broken and has never worked properly, not from day one: it's too hard to get 2/3 in the Senate for *anything*. What are the alternatives?
Here's a radical one: Congress could establish a Court of Judicial Qualifications to determine whether judges are currently engaging in "good behavior". If they are ruled not to be, obviously, they aren't judges any more; Constitution is clear on that!
En banc is also allowed for questions of exceptional importance (importance being in the eye of the voting judge majority/beholder). This piece ignores that separate basis for en banc review, which would justify the initial en banc procedure (at least in really important cases) and the decision to take any case en banc, regardless of whether there is a circuit law conflict or not. It would also justify en banc review simply for error correction, even without a split.
It's not a perfect process, but I don't see why a full circuit shouldn't (whenever it wants to) decide to address an important question via en banc procedure.
Maybe prudentially the "initial en banc" should be reserved for truly rare cases, but it doesn't seem to be abused (maybe the Trump judges will see fit to start using/abusing it more).
Also, leaving things to SCOTUS where there is an intra-circuit conflict (as suggested in the comment below) is not a practical solution. SCOTUS rarely grants cert and needs an extremely good reason to do so. Particularly in a circuit the size of the Ninth, there will be (and frankly, there already are) conflicting panel decisions on various points of law that are important to litigants and district courts, but not truly cert-worthy (particularly in the eyes of the current high court which is granting cert less and less and hearing many fewer cases than it used to). Given that conflicts can and do arise, why shouldn't circuits have a way to resolve the problem short of making litigants go to SCOTUS?
I didn't think I needed to go through all this, but no, en banc review was not created to review "important" cases. Here's the history: the "Circuit" Courts of Appeal were not actually created as unitary courts. They were a refinement on the "Circuit Courts" created in the early Judiciary Acts- appeals were heard by courts "riding circuit" and consisting of 3 judges drawn from different courts. In other words, your appeal was heard by a 3 judge panel, with review (sometimes discretionary, sometimes mandatory) to the US Supreme Court on federal issues.
The modern Circuit Courts of Appeal were created in 1863 to cut down on the burdens of circuit riding. The 3 judge panels would now be drawn from a group of judges designated to hear appeals from that circuit.
From 1863 until 1940 or so, THERE WAS NO EN BANC REVIEW. In other words, the Circuit Courts of Appeal ONLY spoke through three judge panels.
En banc review was first sanctioned in the 1941 Textile Mills Securities case, and then codified in the 1948 statute I cited in the piece. Here is what Judah Labovitz said in the Pennsylvania Law Review in 1962: "There is littIe doubt that the en banc procedure, although otherwise useful as a means of bringing particularly important issues to the attention of more judges, was developed for the resolution of intracircuit conflict." That was the reason for it! There was no reason why you needed to depart from 3 judge panels- the system worked just fine- except for the fact that there could be intracircuit conflicts. That's it. (By the way, a lovely aside: Mr. Labovitz is apparently still practicing personal injury law in Pennsylvania, with 57 years of experience! https://www.attorneys.org/judah-i-labovitz-1033664 .)
So there was really no reason to ever expand it past intracircuit conflict, and you haven't given one. First, "because it wants to" is not a good reason for inferior court judges not randomly assigned to a case to decide it. If it were, why don't we have District Court en bancs all the time too? Why is it only Court of Appeals judges that get to have the fun?
Second, the argument that these are important cases conflicts with your argument about SCOTUS review. If these are really important cases, the chances of SCOTUS review are much higher. Indeed, just as a general matter, there are some cases that are obviously destined for SCOTUS review and a lot of the opinions of even judges assigned to the case are pretty superfluous, as we know SCOTUS is going to do whatever it wants. This is doubly true for judges who weren't assigned the case and are just jealous and want to get in the spotlight.
But also, even if SCOTUS doesn't review some of these cases, that would make them no different from all the other cases in which SCOTUS exercises its discretion and doesn't do error correction. If it is so important to correct errors made by 3 judge panels, why not make en banc review mandatory? (I know the answer- the judges don't want the workload- but that's the point: they want to act like Supreme Court Justices and pick all the fun cases while ignoring all the other ones to keep their workload down.)
As for initial en banc, there's just no reason for it at all. In a case that is "important" enough to get initial en banc, you can just go 3 judge panel and then up to the Supreme Court. There's no reason other than politics and trying to reverse the result for the "full court" to intervene.
Finally, you don't address the issue of dissents and concurrences from denials at all. Here you have cases where en banc hasn't even been granted, and you have judges not assigned to the case popping off. That's indefensible.
The “exceptional importance” criterion is in FRAP 35. It has been there for a long time- decades at least.
Although en banc review may have been initially intended to fix conflicts, its has expanded for whatever reason (I don’t know the development of FRAP 35 but I presume there was some reason for adding “importance” as a criterion-if there wasn’t I’d be interested to know. My point is, the piece doesn’t address this despite decrying the use of EB for political purposes. If importance is a criterion and it is in the eye of the beholder (I think it inherently is) then the rule contemplates the court having a political role to play there. “Political” loosely or strictly defined.
Cases can be important enough to get EB review but not important enough to get scotus review. And besides, EB review for intracircuit splits of authority is not always used for important questions. It is used to clarify the law and — help the DJs, circuit panels, and litigants faced with competing lines of authority.
On dissentals and concurrals I do have more reservations. They come closer to advisory opinions. But then again by that definition isn’t very dissent or concurrence from a 3-judge panel opinion advisory? If those are permissible and non-advisory it becomes harder to draw lines agains concurrals/dissentals. That said they do put off panel judges in a weird advocacy role. Problematic.
Truly impermissible in my view are the dissenting statements by senior judges who don’t even have an eb vote. This is something OScannlain started doing post senior status. While an active judge may complain because he/she lost and had a stake in the eb hearing never held, the senior judge is truly on the sidelines, it’s like a litigant writing a dissental.
Not just trying to be disagreeable, your post and overall point are quite interesting and thought provoking.
I do realize FRAP 35 currently contains rather open-ended criteria for en banc reviews; that's not surprising given who wrote it. But Rule 35 does not capture the actual reason why Court of Appeals judges were given this extraordinary, unprecedented power to overturn the work of 3 judge panels. Had there not been an issue with intra-circuit conflicts, this power would have never been granted in the first place. I think Rule 35 is bad and am calling for Congress to vitiate it with a federal statute.
I don't think any case is "important enough to get en banc review". That shouldn't be a criterion, because that just empowers circuit judges to act as a political bloc and interfere with the operation of random selection. Just as I don't believe any case is important enough for District Judges to override random selection and go en banc either. This criterion should not exist.
I also don't think it "helps" anyone for Circuit Courts of Appeal to speak up when there is no intra-circuit conflict. A panel opinion is just as binding. Indeed, the fact that panel opinions are binding circuit precedents is itself completely contradictory of the notion that we need to hear from the "full" court. The whole point of making panel opinions binding precedents is so we don't have to hear from the "full" court. Maybe the "full" court thinks the precedent is wrong, but who cares what they think? Just like we don't care what the other District Judges think when a single District Judge rules on something.
As for the difference between a panel dissent and a dissent from a denial of rehearing en banc, the difference is that the panel judge has been assigned to decide the case. There's a long tradition that dissents are not advisory opinions, dating back to the first sittings of the US Supreme Court, which decided cases seriatim. Maybe that tradition is wrong, but it is historically grounded and seems like powerful evidence that Article III permits it. In contrast, there is no long tradition of dissents from denials en banc- as far as I can tell, the practice is less than 50 years old, and, as I said, these are opinions by judges who have never been assigned the case. Not only did they never get assigned the case as part of a panel, but even if we concede the legitimacy of the en banc power, the Court voted AGAINST en banc review. The Court literally voted "you are not a part of this case". And yet they issue an opinion anyway! That's REALLY advisory.
And, I obviously agree with you about the statements by Senior Judges.
Fundamentally, we are facing an increasingly politicized judiciary, and we have to think of ways of disempowering judges from engaging in politics. I'll probably do a post on forum shopping at some point; I've already done a post on nationwide injunctions, plus the en banc post. The theme of all of these things is that lower court judges are acting more nakedly politically than they have in the past, and that unlike the Supreme Court's political actions, which are very hard to do anything about, Congress has complete control of the lower courts and can tell inferior court judges to shape up. It should.
Here we do differ philosophically. I wish the courts were not “political” but they were designed to be so from the founding. The president (political) selects the nominee (politically connected) who is confirmed by the Senate (political). Life tenure is a bulwark protecting the weakest branch and has other purposes as well but is not in my view intended to render judges apolitical. I am reminded of Posners remark that the Supreme Court is a political court. The trump judges are rank partisans. But there were rank partisans on the bench before and the difference is that there are more of them now. I am pessimistic that much can realistically be done about it. So why not let all voices be heard including the defenders fighting the truly rank partisans or trumpies.
Sitting “en banc” has roots tracing back before ‘48. For example the Cal Supreme Court used to sit sometimes in panels and sometimes en banc. Before the turn of the 20th century. Orders from the CSC still say “en banc” on them - a neat artifact because the court never sits in panels at all now.
You are confusing the selection of judges with their conduct. Judges are definitely selected for political reasons, but there are supposed to be norms of independence once they get there. Indeed, the entire point of life tenure (and the constitutional provision prohibiting diminution of judicial salaries) is to ensure that once the judge gets on the court, he or she can screw the politician or party or faction that sponsored him or her without fear of reprisal.
As for the California Supreme Court, that was really a different system with the same name. The California Supreme Court was a court of last resort, and at the same time was the only appellate court in the state at the time (a system that several states still have). So it essentially operated as both a court hearing appeals of right- which were often summarily affirmed by three judge panels- and as the court of last resort, though en banc 7 justice hearings and rulings.
In contrast, a federal Court of Appeals is never a court of last resort, except on an issue of state law where there is no certification statute (and most states allow certification now). So the justification for en banc practice in California doesn't apply here. If you wanted to modify my statute to allow for en bancs when the issue is a pure issue of state law and cannot be certified, fine, do it. My concern is preventing them from defeating random selection in politically salient cases.
Actually the historical scholarship about the department system at the California Supreme Court indicates that many cases were heard in the three justice departments and then reheard en banc. So I don’t agree that the California system was “different” as you describe.
You say that en banc review is intended "to resolve the conflict between two published opinions from panels in the same circuit." At times that's true. But not always. It is also the vehicle through which a circuit court can overturn an earlier precedential opinion that has proved erroneous. If en banc review is eliminated, how would a circuit court ever do so? Your call for reform doesn't seem to acknowledge or answer that issue.
And it seems like an important one. It's a pillar of appellate jurisdiction that one panel is bound by, and thus cannot overrule, another panel's earlier decision. En banc review is required to do so---for good reasons.
Insofar as your solution is to do away with that rule and allow an appellate panel to overrule past circuit precedent, that would seem to exacerbate the issue of court politicization. Insofar as the solution is that flaw circuit precedent must be address through the Supreme Court's discretionary grant of cert., that would seem to require demonstrably flawed precedent to remain on the books for years. Any call to do away with en banc review altogether would seem to need a better solution than that. Any thoughts?
My answer is SCOTUS can do that. Just like when a District Court makes a mistake, a higher court, rather than an en banc District Court, is the normal vehicle to correct it.
A Court of Appeals acts through three judge panels. There's nothing wrong with this, and no real reason why it ever needs to act as a full court to correct mere error, because there is a higher court that can do that.
Well, you said it:
"That combination— the desire to participate in politically salient cases, and the desire to change their result— is a recipe for a completely politicized judiciary."
"The system of random selection of judges is one of those “norms” you often hear about as the foundation of a democratic system of government. If the judges selected to hear a case are selected via a political process, then you will get political results, and just as important, you will create a public perception that the results are political. "
So what do we do about it? The federal courts were stuffed with these people by an aggressive Republican Party in control of the Senate, particularly the supreme court, and we know it's completely politicized.
Faced with judicial integrity crises in the past in the UK, entire new court systems were set up to bypass and overrule the problem courts. I have read some of the convoluted history of this. Is this a path forward? It seems like it would require amending or abrogating the Constitution, but maybe not?
The UK has the advantage of an unwritten constitution; it could be changed simply through consensus (and has been, many times in the 19th century and even in recent years), though English judges do not state a new Constitutional principle until they are sure a supermajority of the public agrees. "Contrary to the British constitution" means "repellent to the fundamental fiber of British people" or something similar, using the *other* meaning of "constitution". (This is probably the way the 9th amendment ought to be approached here, as a side note.)
You make one good recommendation for reform. It doesn't go far enough. The public has no confidence in the federal judiciary and it's getting even less as time goes on and more and more nonsense and bullshit comes out in the form of "court rulings". Every time a nonsensical ruling comes out with thin, incoherent excuses for results-oriented judging, and there've been a lot lately, confidence declines.
Bush v Gore was of course a HUGE hit to the credibility of the federal judiciary; they backed off from such nonsense for a while, but they seem to have redoubled in spades most recently with the Texas SB8 situation (where they could have declared that judges and court officers were liable for accepting "bounty" cases, which has enough legal precedent; or declared that nobody can file suit without a cognizable interest, which has more legal precedent; both while ducking the question of abortion entirely -- but instead they let it go into effect in pure results-oriented judging); and with the insane ruling attacking the OSHA vaccine mandate (which made up a bunch of bullshit and contradicted everything about the OSHA act -- its so-called reasoning could be used to prohibit fire escape regulations); and the latest Texas lower federal court ruling attacking the federal mandate for its own employees (which made up a bunch of bullshit and contradicted pretty much all of employment law).
What can be done to get judges who *act like judges*? I mean, I know I don't have a judicial temperment, which is why *I have not tried to become a judge*, but neither do a bunch of the federal judges appointed by Trump, or Clarence "I don't recuse myself in cases where my wife is implicated" Thomas. Nobody should have confidence in the federal judiciary; it's Taney-level bad.
Only the removal of the unjudicial from the bench will restore confidence. It can't be done by impeachment because impeachment is broken and has never worked properly, not from day one: it's too hard to get 2/3 in the Senate for *anything*. What are the alternatives?
Here's a radical one: Congress could establish a Court of Judicial Qualifications to determine whether judges are currently engaging in "good behavior". If they are ruled not to be, obviously, they aren't judges any more; Constitution is clear on that!
En banc is also allowed for questions of exceptional importance (importance being in the eye of the voting judge majority/beholder). This piece ignores that separate basis for en banc review, which would justify the initial en banc procedure (at least in really important cases) and the decision to take any case en banc, regardless of whether there is a circuit law conflict or not. It would also justify en banc review simply for error correction, even without a split.
It's not a perfect process, but I don't see why a full circuit shouldn't (whenever it wants to) decide to address an important question via en banc procedure.
Maybe prudentially the "initial en banc" should be reserved for truly rare cases, but it doesn't seem to be abused (maybe the Trump judges will see fit to start using/abusing it more).
Also, leaving things to SCOTUS where there is an intra-circuit conflict (as suggested in the comment below) is not a practical solution. SCOTUS rarely grants cert and needs an extremely good reason to do so. Particularly in a circuit the size of the Ninth, there will be (and frankly, there already are) conflicting panel decisions on various points of law that are important to litigants and district courts, but not truly cert-worthy (particularly in the eyes of the current high court which is granting cert less and less and hearing many fewer cases than it used to). Given that conflicts can and do arise, why shouldn't circuits have a way to resolve the problem short of making litigants go to SCOTUS?
Thanks for the comment.
I didn't think I needed to go through all this, but no, en banc review was not created to review "important" cases. Here's the history: the "Circuit" Courts of Appeal were not actually created as unitary courts. They were a refinement on the "Circuit Courts" created in the early Judiciary Acts- appeals were heard by courts "riding circuit" and consisting of 3 judges drawn from different courts. In other words, your appeal was heard by a 3 judge panel, with review (sometimes discretionary, sometimes mandatory) to the US Supreme Court on federal issues.
The modern Circuit Courts of Appeal were created in 1863 to cut down on the burdens of circuit riding. The 3 judge panels would now be drawn from a group of judges designated to hear appeals from that circuit.
From 1863 until 1940 or so, THERE WAS NO EN BANC REVIEW. In other words, the Circuit Courts of Appeal ONLY spoke through three judge panels.
En banc review was first sanctioned in the 1941 Textile Mills Securities case, and then codified in the 1948 statute I cited in the piece. Here is what Judah Labovitz said in the Pennsylvania Law Review in 1962: "There is littIe doubt that the en banc procedure, although otherwise useful as a means of bringing particularly important issues to the attention of more judges, was developed for the resolution of intracircuit conflict." That was the reason for it! There was no reason why you needed to depart from 3 judge panels- the system worked just fine- except for the fact that there could be intracircuit conflicts. That's it. (By the way, a lovely aside: Mr. Labovitz is apparently still practicing personal injury law in Pennsylvania, with 57 years of experience! https://www.attorneys.org/judah-i-labovitz-1033664 .)
So there was really no reason to ever expand it past intracircuit conflict, and you haven't given one. First, "because it wants to" is not a good reason for inferior court judges not randomly assigned to a case to decide it. If it were, why don't we have District Court en bancs all the time too? Why is it only Court of Appeals judges that get to have the fun?
Second, the argument that these are important cases conflicts with your argument about SCOTUS review. If these are really important cases, the chances of SCOTUS review are much higher. Indeed, just as a general matter, there are some cases that are obviously destined for SCOTUS review and a lot of the opinions of even judges assigned to the case are pretty superfluous, as we know SCOTUS is going to do whatever it wants. This is doubly true for judges who weren't assigned the case and are just jealous and want to get in the spotlight.
But also, even if SCOTUS doesn't review some of these cases, that would make them no different from all the other cases in which SCOTUS exercises its discretion and doesn't do error correction. If it is so important to correct errors made by 3 judge panels, why not make en banc review mandatory? (I know the answer- the judges don't want the workload- but that's the point: they want to act like Supreme Court Justices and pick all the fun cases while ignoring all the other ones to keep their workload down.)
As for initial en banc, there's just no reason for it at all. In a case that is "important" enough to get initial en banc, you can just go 3 judge panel and then up to the Supreme Court. There's no reason other than politics and trying to reverse the result for the "full court" to intervene.
Finally, you don't address the issue of dissents and concurrences from denials at all. Here you have cases where en banc hasn't even been granted, and you have judges not assigned to the case popping off. That's indefensible.
The “exceptional importance” criterion is in FRAP 35. It has been there for a long time- decades at least.
Although en banc review may have been initially intended to fix conflicts, its has expanded for whatever reason (I don’t know the development of FRAP 35 but I presume there was some reason for adding “importance” as a criterion-if there wasn’t I’d be interested to know. My point is, the piece doesn’t address this despite decrying the use of EB for political purposes. If importance is a criterion and it is in the eye of the beholder (I think it inherently is) then the rule contemplates the court having a political role to play there. “Political” loosely or strictly defined.
Cases can be important enough to get EB review but not important enough to get scotus review. And besides, EB review for intracircuit splits of authority is not always used for important questions. It is used to clarify the law and — help the DJs, circuit panels, and litigants faced with competing lines of authority.
On dissentals and concurrals I do have more reservations. They come closer to advisory opinions. But then again by that definition isn’t very dissent or concurrence from a 3-judge panel opinion advisory? If those are permissible and non-advisory it becomes harder to draw lines agains concurrals/dissentals. That said they do put off panel judges in a weird advocacy role. Problematic.
Truly impermissible in my view are the dissenting statements by senior judges who don’t even have an eb vote. This is something OScannlain started doing post senior status. While an active judge may complain because he/she lost and had a stake in the eb hearing never held, the senior judge is truly on the sidelines, it’s like a litigant writing a dissental.
Not just trying to be disagreeable, your post and overall point are quite interesting and thought provoking.
I do realize FRAP 35 currently contains rather open-ended criteria for en banc reviews; that's not surprising given who wrote it. But Rule 35 does not capture the actual reason why Court of Appeals judges were given this extraordinary, unprecedented power to overturn the work of 3 judge panels. Had there not been an issue with intra-circuit conflicts, this power would have never been granted in the first place. I think Rule 35 is bad and am calling for Congress to vitiate it with a federal statute.
I don't think any case is "important enough to get en banc review". That shouldn't be a criterion, because that just empowers circuit judges to act as a political bloc and interfere with the operation of random selection. Just as I don't believe any case is important enough for District Judges to override random selection and go en banc either. This criterion should not exist.
I also don't think it "helps" anyone for Circuit Courts of Appeal to speak up when there is no intra-circuit conflict. A panel opinion is just as binding. Indeed, the fact that panel opinions are binding circuit precedents is itself completely contradictory of the notion that we need to hear from the "full" court. The whole point of making panel opinions binding precedents is so we don't have to hear from the "full" court. Maybe the "full" court thinks the precedent is wrong, but who cares what they think? Just like we don't care what the other District Judges think when a single District Judge rules on something.
As for the difference between a panel dissent and a dissent from a denial of rehearing en banc, the difference is that the panel judge has been assigned to decide the case. There's a long tradition that dissents are not advisory opinions, dating back to the first sittings of the US Supreme Court, which decided cases seriatim. Maybe that tradition is wrong, but it is historically grounded and seems like powerful evidence that Article III permits it. In contrast, there is no long tradition of dissents from denials en banc- as far as I can tell, the practice is less than 50 years old, and, as I said, these are opinions by judges who have never been assigned the case. Not only did they never get assigned the case as part of a panel, but even if we concede the legitimacy of the en banc power, the Court voted AGAINST en banc review. The Court literally voted "you are not a part of this case". And yet they issue an opinion anyway! That's REALLY advisory.
And, I obviously agree with you about the statements by Senior Judges.
Fundamentally, we are facing an increasingly politicized judiciary, and we have to think of ways of disempowering judges from engaging in politics. I'll probably do a post on forum shopping at some point; I've already done a post on nationwide injunctions, plus the en banc post. The theme of all of these things is that lower court judges are acting more nakedly politically than they have in the past, and that unlike the Supreme Court's political actions, which are very hard to do anything about, Congress has complete control of the lower courts and can tell inferior court judges to shape up. It should.
Here we do differ philosophically. I wish the courts were not “political” but they were designed to be so from the founding. The president (political) selects the nominee (politically connected) who is confirmed by the Senate (political). Life tenure is a bulwark protecting the weakest branch and has other purposes as well but is not in my view intended to render judges apolitical. I am reminded of Posners remark that the Supreme Court is a political court. The trump judges are rank partisans. But there were rank partisans on the bench before and the difference is that there are more of them now. I am pessimistic that much can realistically be done about it. So why not let all voices be heard including the defenders fighting the truly rank partisans or trumpies.
Sitting “en banc” has roots tracing back before ‘48. For example the Cal Supreme Court used to sit sometimes in panels and sometimes en banc. Before the turn of the 20th century. Orders from the CSC still say “en banc” on them - a neat artifact because the court never sits in panels at all now.
You are confusing the selection of judges with their conduct. Judges are definitely selected for political reasons, but there are supposed to be norms of independence once they get there. Indeed, the entire point of life tenure (and the constitutional provision prohibiting diminution of judicial salaries) is to ensure that once the judge gets on the court, he or she can screw the politician or party or faction that sponsored him or her without fear of reprisal.
As for the California Supreme Court, that was really a different system with the same name. The California Supreme Court was a court of last resort, and at the same time was the only appellate court in the state at the time (a system that several states still have). So it essentially operated as both a court hearing appeals of right- which were often summarily affirmed by three judge panels- and as the court of last resort, though en banc 7 justice hearings and rulings.
In contrast, a federal Court of Appeals is never a court of last resort, except on an issue of state law where there is no certification statute (and most states allow certification now). So the justification for en banc practice in California doesn't apply here. If you wanted to modify my statute to allow for en bancs when the issue is a pure issue of state law and cannot be certified, fine, do it. My concern is preventing them from defeating random selection in politically salient cases.
Actually the historical scholarship about the department system at the California Supreme Court indicates that many cases were heard in the three justice departments and then reheard en banc. So I don’t agree that the California system was “different” as you describe.
You say that en banc review is intended "to resolve the conflict between two published opinions from panels in the same circuit." At times that's true. But not always. It is also the vehicle through which a circuit court can overturn an earlier precedential opinion that has proved erroneous. If en banc review is eliminated, how would a circuit court ever do so? Your call for reform doesn't seem to acknowledge or answer that issue.
And it seems like an important one. It's a pillar of appellate jurisdiction that one panel is bound by, and thus cannot overrule, another panel's earlier decision. En banc review is required to do so---for good reasons.
Insofar as your solution is to do away with that rule and allow an appellate panel to overrule past circuit precedent, that would seem to exacerbate the issue of court politicization. Insofar as the solution is that flaw circuit precedent must be address through the Supreme Court's discretionary grant of cert., that would seem to require demonstrably flawed precedent to remain on the books for years. Any call to do away with en banc review altogether would seem to need a better solution than that. Any thoughts?
My answer is SCOTUS can do that. Just like when a District Court makes a mistake, a higher court, rather than an en banc District Court, is the normal vehicle to correct it.
A Court of Appeals acts through three judge panels. There's nothing wrong with this, and no real reason why it ever needs to act as a full court to correct mere error, because there is a higher court that can do that.