29
of the Buckland panel were Democratic judges. That decision, however, was subsequently
reversed by an en banc panel in United States v. Buckland (2001) (en banc). That panel
consisted of four Republican and seven Democratic judges. The vote on the constitutionality
issue was eight to three, with all four Republican and four Democratic judges in the majority
Three Democratic judges dissented on that issue.
In terms of individual judges’ votes on all the circuits studied, five of 17 Democratic
judges voting on this matter in the absence of binding precedent voted in favor of holding § 841
unconstitutionality (29.4%) No Republican judge voted in favor of holding the statute to be
unconstitutional (0/12). Democratic judges in circuits other than the Ninth were as consistent as
Republicans in voting against the more liberal position (0/12). All told, however, Democrats on
the Ninth Circuit voted five to four in favor of the more liberal position.
14
Analysis
The behavior of Democratic judges on the Ninth Circuit suggests that policy goals played
a role in judicial choice on this Apprendi ambiguity. The behavior of Democratic judges in other
circuits suggests, however, that a different dynamic existed outside of the Ninth Circuit. None of
the other circuits focused on the issue of § 841’s constitutionality like the Ninth Circuit. A panel
of three Democratic judges in the Sixth Circuit, in fact, rejected the constitutionality argument in
a footnote (United States v. Martinez 2001, 256 n.6), and a panel comprised of two Democratic
judges and one Republican judge in the Third Circuit initially reached the same conclusion in an
unpublished per curiam, which the panel ordered published after a government request to that
effect (United States v. Kelly 2001). The constitutionality argument, it seems, was simply not
given much credence by these three-judge panels.
Convention