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May 8, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 at 12:48 PM | Permalink


Great article

Posted by: Rendy Andriyanto | May 8, 2017 1:47:47 PM

Doug, I think that senior judges, if on panel, get to participate, and I think that if new judges want to participate, they can.

Posted by: federalist | May 8, 2017 3:08:22 PM

The retiring McKesgue was not on the panel, so I think he is out once his replacement is confirmed. And are you saying the newbies can jump in after oral argument? Not saying such an approach would be bad or problematic but it is not the SCOTUS norm.

Posted by: Doug B. | May 8, 2017 4:25:02 PM

Doug, it's not the SCOTUS norm, but if the court would otherwise be evenly split, then the new Justice would vote. I think the new judges would have the right to join.

Posted by: federalist | May 8, 2017 5:19:00 PM

Changing membership developments: http://www.ohio.com/editorial/peter-m-shane-ohio-s-justices-flip-over-the-rule-of-law-1.765436#.WRB_r8dIRvo.twitter

Posted by: Joe | May 8, 2017 8:52:36 PM

The first thing I noticed on the April 25 order was that Gilbert Merritt was missing from the en banc court rehearing the case.

Posted by: DaveP | May 9, 2017 8:14:31 AM

According to 6th Cir. Internal Operating Procedure 35(c):

(c) Composition of En Banc Court. The en banc court is composed of all judges in regular active service at the time of a hearing or rehearing, any senior judge of the court who sat on the original panel, and, if no oral argument en banc is held, any judge in regular active service at the time that the en banc court agreed to decide the case without oral argument.

Posted by: Jonathan Pyles | May 9, 2017 10:58:50 AM

Ty, Jonathan.

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