Howard Bashman and Doug Berman have noted yesterday’s 7-7 denial by the Fourth Circuit of en banc review in an ACCA case–United States v. Foster, previously covered here. (My posting has been light, as I have been at what our pilot from RVA called the House of the Mouse.) Apart from ACCA, the opinions and votes regarding en banc rehearing are of interest for what they reveal of the dynamics on the Fourth Circuit:
– The court is roughly evenly split.
– Judge Diaz remains the swing vote in en banc cases. If he voted with the other Obama appointees, this would have gone the other way.
– Judge Motz and Judge King remain leaders among the Democratic appointees.
– Judge Davis does not pass up opportunities to write in big cases. (Might this have something to do with the fact that the Somali pirate opinions have yet to be released?)
– Judge Wilkinson has written solo again in an ACCA en banc decision, this time voting with the Republican appointees.