Tuesday, May 10, 2011

Fourth Circuit panel announced

Here is the panel for this morning's arguments in Liberty University v. Geithner and Virginia v. Sebelius:

* Judge Diana Gribbon Motz, appointed by President Clinton.

Motz is no Stephen Reinhardt, but she is relatively liberal, at least for a Democrat on the Fourth Circuit. Among her more famous rulings, she voted to reverse a district court decision that had ordered an end to school busing for desegregation in Richmond, and she held in the al-Marri case that the President could not declare civilians legally residing in the United States to be "enemy combatants" and hold them in military detention indefinitely. She did author the opinion ruling against the government in United States v. Comstock, however, a case concerning federalism and, specifically, the breadth of the Necessary and Proper Clause.

* Judge Andre M. Davis, appointed by President Obama.

Again, indications are that he is a relatively liberal judge, at least for the Fourth Circuit (though I concede the term is a bit crude in this context). One example: United States v. White, 620 F.3d 401 (CA4 2010), in which he held (over a dissent from Judge Niemeyer) that it was an unconstitutional deprivation of liberty to force a prisoner to take anti-psychotic drugs.

* Judge James A. Wynn, appointed by President Obama.

Same general liberal lean, at least based on what we know. Consider Legend Night Club v. Miller, 2011 WL 541136 (CA4 2011), in which Judge Wynn invalidated a Maryland statute that effectively prohibited adult entertainment establishments from selling alcoholic beverages at their clubs. Writing for the court, Judge Wynn held that the statute was subject to intermediate scrutiny under the First Amendment, and that it was unconstitutionally overbroad. Judge Clyde Hamilton--a G.H.W. Bush appointee, now on senior status--dissented.

As the senior judge on the panel, Judge Motz will preside, and the odds are that she would assign the opinion to herself.

This could not have turned out much better for the United States and General Katyal.