For the fith year in a row, we looked at which judges were most likely to vote for the same prevailing party as which other judges.  Of course, this year is different because of Judge Effron’s retirement and the rotating fifth judge slot.

This term there were 9 non-unanimous decisions by CAAF.  Four involved lone dissents, two each by Chief Judge Baker and Judge Erdmann.  Obviously the remaining 5 were 3-2 decisions.

The most likely pairing this year was Judge Stucky and Judge Ryan, who voted together in 7 of the 9 non-unanimous opinions and in 31 of all 33 opinions of the court.  That was the second most likely pairing last year, with last year’s most likely pairing (Chief Judge Effron and Judge Erdmann) no longer available.  The least likely pairings this year were a tie.  Chief Judge Baker and Judge Erdmann were on the same side of only 2 of the 9 non-unanimous decisions (and 26 decisions overall).  Judges Erdmann and Stucky were also on the same side of only 2 of the 9 non-unanimous decisions.  The latter pairing was more striking in one respect:  Judges Stucky and Erdmann were not on the same side in any of the 5 3-2 decisions.  Chief Judge Baker and Judge Erdmann, on the other hand, were on the same side (the dissent) in 2 of the 3-2 decisions.

Here are the number of times in which the four non-senior CAAF judges voted for the same prevailing part in non-unanimous cases, with last year’s ranking for that pairing following in brackets:

1.  Judge Stucky & Judge Ryan (7/9) [2]

2.  Chief Judge Baker & Judge Stucky (5/9) [4 – tie]

3.  Judge Erdmann & Judge Ryan (4/9) [3]

4.  Chief Judge Baker & Judge Ryan (3/9) [6]

5.  [TIE]  Chief Judge Baker & Judge Erdmann (2/9) [7]

Judge Erdmann & Judge Stucky (2/9) [4 – tie]

Now let’s look at the pairings for the senior judges.

Senior Judge Cox sat on the court in 15 cses, 5 of which were non-unanimous.  Here’s how he lined up:

1.  [TIE]  Judge Stucky & Senior Judge Cox (4/5)

Judge Ryan & Senior Judge Cox (4/5)

3.  Chief Judge Baker & Senior Judge Cox (2/5)

4.  Judge Erdmann & Senior Judge Cox (1/5)

Senior Judge Effron sat on the court in 18 cases, 4 of which were non-unanimous.  Here’s how he lined up, with last year’s ranking for that pairing among the 10 possible combinations in brackets:

1.  [TIE]  Judge Erdmann & Senior Judge Effron (3/4) [1]

Judge Ryan & Senior Judge Effron (3/4) [8]

3.  Judge Stucky & Senior Judge Effron (2/4) [9 – tie]

4.  Chief Judge Baker & Senior Judge Effron (1/4) [9 – tie]

One Response to “2011 Term end o’ term stats Pt. V — voting blocs”

  1. Gene Fidell says:

    Notwithstanding my comment on an earlier post about the difficulty of drawing conclusions with such a limited database (and with thanks not only to Dwight but also to Socrates [another cup of hemlock, sir?] and Phil), this number-crunching is definitely thought-provoking. One of the Justices once observed that every time there is a new member of the Supreme Court, there is a new “Court.” I don’t know how true that is, doctrinally, of the Court of Appeals, but it seems likely. Hence, when there is protracted reliance on senior judges, as has been the case for this last Term, things may get particularly scrambled and the data analysis may be even more challenging than it would otherwise be for a five-judge court that decides so few cases by plenary decision. Additionally, it’s not even valid to think of it as a 6-member court since two of the six are only acting in roughly half of the cases, so their contribution and pairings would have to be weighted less. To complicate things further, let’s remember that most of what the Court of Appeals does involves the petition docket, where, except for the odd dissent from denial of review, we know nothing.

    Here’s a body of data that would be interesting: what is the breakdown of the “good cause” categories invoked in petitions for grant of review (inconsistency with Supreme Court precedent, inter-CCA splits, etc.), and what if anything does the Court of Appeals say in those (far fewer) cases in which it does grant review as to the reason for doing so.

    Since, one of these months/years, the vacancy caused by expiration of Chief (as he then was) Judge Effron’s term will be filled, a very useful exercise would be to catalog in a systematic way the 3-2 decisions over the last several years in an effort to scope what might conceivably be up for grabs when at last that vacancy is filled. My assumption here is that a dissenter — even one who did not memorialize his/her unwillingness to acquiesce in the majority decision — might look at the newcomer as a possible ally for reopening issues that were resolved by relatively recent 3-2 precedents.