Recent dissental track records in the Ninth Circuit
The “dissental”—an opinion dissenting from the denial of rehearing en banc—is a popular tool in the Ninth Circuit. The circuit is large, and it has historically seen high reversal rates before the United States Supreme Court.
I thought I’d look at recent dissentals in the Ninth Circuit, given the arrival of a number of judges appointed by President Donald Trump, and who joined them.
A few methodology notes. A judge may write a “statement” concerning the denial of rehearing en banc, or an opinion concurring in the denial of rehearing en banc; I include neither in this tally. I do not include those judges who publicly voted in favor of rehearing en banc but did not join the dissental. Only those who joined the (or one of the) dissentals are included.
I track 17 dissentals from January 1, 2019 to August 24, 2020. (UPDATE: Thanks to the astute observation of “@fedjudges” on Twitter, I missed a few the first time around!) Most Trump-appointed judges joined the court after January 1, 2019 (but there are some interesting late 2018 ones I exclude!). I include the dates they assumed office, but it’s not clear when, for instance, how quickly some would begin to participate on en banc votes (or feel comfortable joining a dissental after taking the bench). Those who have retired or taken senior status before today are listed as “others.” If the judge did not join a dissental, it’s in gray; if they did, it’s marked with an “x” and is in orange. I cleared out any shading for opinions released on the day a judge took office or earlier.
You can click on the image to zoom in. Historically, Judges Conseulo Callahan and Sandra Ikuta have been among the most reliable dissental participants, with some regular voting from Judge Milan Smith, the only three President George W. Bush appointees left active on the Ninth Circuit. Among these fourteen cases with dissentals, there was one dissental joined by Judge Ronald Gould (a President Bill Clinton appointee) and one by Judge John Owens (a President Barack Obama appointee), and no other instances of a Democratic-appointed judge joining a dissental.
The bulk of joining (or writing!) dissentals has come from Trump appointees (with recognition that some judges joined the Ninth Circuit during this window).
Ryan Nelson: 12
Mark Bennett: 10
Dan Collins: 10
Bridget Bade: 9
Dan Bress: 7
Lawrence VanDyke: 6
Kenneth Lee: 5
Patrick Bumatay: 5
Danielle Hunsaker: 1
Eric Miller: 0