OK, help me get the appeals process straight with the TX abortion bill

[Rstrstx]

I know right now Scalia has given the state until the 12th to respond and can either rule on it himself or let the whole court take it up. I've read that if he rules for the 5th circuit then Planned Parenthood apparently can refile with another Supreme Court justice. So the ban may or may not stay in place (my guess is that they'll find a sympathetic judge), but in either case the 5th circuit looks like it will decide the case in January.

My question re. the 5th circuit are the following:

If Scalia or the 2nd judge on the Supreme Court decides to reinstate the stay can the state refile as well with another judge or is the matter settled? (I'm thinking not, unless they could request a full-court hearing). I assume the 2nd judge PP turns to has the option to take it up with the whole court as well?

I know either a 3-judge panel or the entire court can hear the case. Who decides which it will be?

Ok, I (sort of) found the answer to this one in the 5th Circuit's procedural rules:
An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.
It didn't say who makes that determination

And, most importantly:

If a 3-judge panel hears the case, will it be the same 3 that lifted the stay or another set of judges? I assume judges are chosen randomly? Does the clerk determine the judges?


These are simple questions that are seemingly impossible to find answers to without pouring over huge volumes of legalspeak documents.

[Gothmog]

1. I am not a litigator but I will try to help

I know that the 5th Cir. does not like en banc requests. One of my partners had a case before the 5th Cir. and they told her that en banc rehearings are not favored and that the court will assess costs if you attempt this. My firm's client decided not to appeal an adverse ruling by a panel.

I found a 2008 pdf article on the 5th Cir. rules http://www.tex-app.org/articles/prado_ut08.pdf If you look at page 4, a motion for en banc hearing will not be voted on unless one judge on the panel adopts or pushes such motion. If one judge champions the motion then the court votes on it as a whole.
Looking at a Wikipedia listing of judges there are 11 5th Cir. Justices appointed by Republicans and 6 appointed by Democrats with two vacancies. http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Fifth_Circuit I would not hold my breath on a favorable en banc review.

Priscilla Owen is a nut case and should never have been allowed to serve on the bench.

[Rstrstx]

2. Oh I know they don't like en banc cases, BUT

the case in question seems to fit their requirement for the rare times one is used, which is basically that the case has to be a BFD (a Big Deal). Interesting to know that one of the judges can request an en banc hearing, but I thought the loser in the case could request one as well, I may be wrong. I imagine money is no object for either side in this case so the cost for an en banc hearing is probaly small potatoes compared to what the lawyers are making. I would also venture to guess that if the state loses they would request one and if PP loses they'll just opt to go straight to the SCOTUS, but you never know.

I still don't know whether the same 3 justices that lifted the stay will be the same 3 trying the case, that's the $60,000 question. If it is, the outcome is a foregone conclusion unless the SCOTUS reprimands them or makes it clear that it has little chance of being upheld at Up High.

Couldn't agree with you more about Priscilla, I thought Republicans wanted judges who wouldn't "legislate from the bench". Ha! And Harry needs to threaten to change the filibuster rules for all these vacancies, I heard John Cornyn talking the other day about how important it was to keep Obama from "stacking" the DC court of Appeals (it's actually called "filling vacancies" but he can't seem to get that through his pointy little head). Lord only knows what would happen if one of the 4 and a half conservative judges on the SCOTUS were to kick the bucket or otherwise need to retire suddenly, all hell would break loose (Obama's trying to stack the court!! )