The New York Law Journal has this piece on the Second Circuit's decision to rehear Muntaqim v. Coombe en banc.
I realize that readers from other circuits may not understand my unhealthy obsession with this case. Muntaqim is of particular interest because (a) the same issue is currently sub judice before the en banc 11th Circuit, and (b) the en banc Second Circuit split 5-5 on this exact same issue in 1996, in Baker v. Pataki.
You also have to understand that the CA2 takes cases en banc with alarming infrequency. In the nine years since Baker was decided, the CA2 has taken a grand total of eight cases en banc -- one other in '96, one in each of '97, '98 and '99, none in 2000, two in 2001, none in 2002, one in 2003, and one other in 2004. In contrast, the Ninth Circuit 's website indicates that it has already taken 19 cases en banc this year. So you can see where the excitement comes from.
The dynamics of Muntaqim are also interesting: for example, Judge Cabranes, who wrote the panel decision in Muntaqim, was recused in Baker (as was Judge Calabresi). Judge Meskill voted one way in Baker and the other way in Muntaqim, and the other four judges who argued in Baker that the plaintiff had a valid Voting Rights Act claim (Judges Feinberg, Newman, Kearse, and Fred Parker) will not be part of the en banc. Two of the five judges on the other side of Baker (Chief Judge Walker and Judge Jacobs, who were joined by Judges Mahoney, Miner and McLaughlin), meanwhile, are still around. Thus, before the case is heard, I presume that there are five votes (of a 15-member en banc court) solidly in favor of adhering to the Muntaqim panel's decision -- Chief Judge Walker, Judge Jacobs, and the three panelists, Judges Cabranes, Meskill, and Cardamone.
On the other hand, we know that Judges Calabresi, Sotomayor, Parker, Straub, Pooler, Sack, and Katzmann voted for en banc rehearing. Given the CA2's usual reluctance to take cases en banc, I presume that they are at least leaning in the opposite direction. (Judge Jacobs also voted to rehear the case, but specifically noted his support for the panel decision).
That makes the "known" vote 5-7, with judges Wesley, Hall and Raggi unaccounted for. My amateur court-watching leads me to predict that Judges Wesley and Hall will side with the court's other conservatives, making Judge Raggi the deciding vote. Guess we know who to watch on April 7.
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