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Fritz Feds

Wednesday, April 07, 2004

The Eighth Circuit re-examines the Eighth Commandment (along with the other nine)

How Appealing points to this article from the Omaha World-Herald that reports that the Eighth Circuit has vacated the panel decision declaring the Ten Commandments monument in Plattesmouth, Nebraska unconstitutional and granted a rehearing en banc.

The American Center for Law and Justice, the organization representing the city of Plattesmouth, has issued this optimistic press release. The World-Herald reports the ACLU's reaction thus:

ACLU Nebraska Executive Director Tim Butz said the ruling is not a setback. "I'm sure the entire court wanted to look at it," he said. "This is an interesting case that is playing out across the country. We're not afraid of the order."

Of course Mr. Butz is going to say that, but I think this is a much worse sign for the ACLU than he is willing to admit. According to the Eighth Circuit's Internal Operating Procedures, a majority of the active service judges need to vote for rehearing to get an en banc rehearing. In this case, that means that there had to have been five of the nine active service judges voting for re-hearing.

The stated standard for approving an en banc rehearing is this:

Petitions for rehearing are not favored by the court and are granted infrequently. Petitions for rehearing en banc require substantial processing and the expenditure of time by judges who have not participated in the case, as well as by the hearing panel, and should be reserved for cases necessary to maintain and secure the uniformity of decisions or that raise questions of exceptional importance.

The en banc panel will be composed of the nine active judges (with the president who nominated them):

Hon. James B. Loken, Chief Judge (G.H.W. Bush)
Hon. Roger L. Wollman (Reagan)
Hon. Morris S. Arnold (G.H.W. Bush)
Hon. Diana E. Murphy (Clinton)
Hon. Kermit E. Bye (Clinton)
Hon. William Jay Riley (G.W. Bush)
Hon. Michael J. Melloy (G.W. Bush)
Hon. Lavenski R. Smith (G.W. Bush)
Hon. Steven M. Colloton (G.W. Bush)

In addition, the two senior judges who were on the original panel can choose to be on the en banc panel. They are Hon. Pasco M. Bowman (Reagan) and Hon. Richard S. Arnold (Carter).

This would mean an eleven judge panel, with six votes needed to uphold the constitutionality of the Ten Commandments monument in question. Although the original panel broke down on the party line of the nominating president, that can hardly be taken for granted in this case. But if it means anything, the panel would consist of 8 Republican nominees and 3 Democratic nominees. If Judge Bowman and the (at least five) active judges who voted for the en banc rehearing vote for the Ten Commandments, that would be enough to keep the monument in place.

Of course it is possible that one or more of the judges who voted for a rehearing is not interested in reversing the three judge panel and simply think this is a "question[] of exceptional importance." But my tentative (and admittedly premature) impression is that the odds favor the City of Plattsmouth and the ACLJ, and they are not in favor of the ACLU.


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