What's Next in the Florida Case


By Hadley Heath

The Defendants in the Florida case did as they were told and filed for appeal in the Eleventh Circuit.  They also filed a motion for expedition, hoping to get the ball rolling a little faster. 

The 26 plaintiff states in the Florida case then asked that the court hear their case en banc.  This means all 10 of the judges in this appellate court would hear the case, instead of a 3-judge panel (as is customary).

Most recently, Eleventh Circuit Chief Judge Joel Dubina responded to these requests.  On March 11, he granted the motion for expedition.  In fact, he went even further and set the dates ahead of what the Defendants proposed.  Mark your calendars:

·        April 4 for the Administration’s opening brief

·        May 4 for the plaintiffs’ response brief

·        May 18 for the Administration’s reply

·        May 25 for the plaintiffs’ reply.

Dubina stated that the Plaintiff’s request for an en banc trial remains pending, but that the above schedule will stand regardless.

I like Avik Roy’s analysis (from Forbes blog) of the Eleventh Circuit, even if it is “relatively superficial:”

The Eleventh Circuit has twelve seats, of which two are vacant, for a total of ten sitting judges. They are:

  1. William H. Pryor, Jr., of Alabama, appointed in 2004 by George W. Bush.
  2. Stanley Marcus, of Florida, appointed in 1997 by Bill Clinton.
  3. Frank M. Hull, of Georgia, appointed in 1997 by Bill Clinton.
  4. (Vacant)
  5. Joel Frederick Dubina, of Alabama, appointed in 1990 by George H.W. Bush.
  6. Gerald Bard Tjoflat, of Florida, appointed in 1975 by Gerald Ford.
  7. Rosemary Barkett, of Florida, appointed in 1994 by Bill Clinton.
  8. Edward Earl Carnes, of Alabama, appointed in 1992 by George H.W. Bush.
  9. Beverly B. Martin, of Georgia, appointed in 2010 by Barack Obama.
  10. Charles R. Wilson, of Florida, appointed in 1999 by Bill Clinton.
  11. J.L. Edmonson, of Georgia, appointed in 1986 by Ronald Reagan.
  12. (Vacant)

So, for those counting, that’s five judges appointed by Republicans, and five appointed by Democrats. (The conservative track record of judicial appointments by Republican presidents, especially Gerald Ford and George H.W. Bush, is quite mixed.)

Fittingly, a 2004 study of the appeals courts by Cass Sunstein, David Schkade, and Lisa Ellman, which reviewed nearly 5,000 appeals court rulings, found that the Eleventh Circuit was the sixth-most conservative out of the twelve federal appeals courts. That is to say, pretty much in the center.

So, based on my relatively superficial analysis, it would seem that anything could happen at the Eleventh Circuit.


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