Judges Rehearing Recall Case Differ From Panel Colleagues

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The 11-judge panel that will review the decision to postpone California's recall election (search) is far more conservative than the three-judge panel that first moved to delay it, legal experts told Fox News on Friday.

The 9th Circuit Court of Appeals (search) set aside Monday afternoon to rehear the case made for delaying the Oct. 7 election, inching back the decision whether to postpone a statewide confidence vote for Democratic Gov. Gray Davis (search).

Earlier this week three judges on the circuit court ruled that the election should be postponed because six counties have not had time to update their punch card machines, which they concluded are more prone to error than other voting equipment. Without prompting, the court agreed the next day to review requests for a rehearing of the case by the full court.

On Friday, the judges agreed to hear the case. Chief Justice Mary Schroeder (search) and 10 others were selected to preside.

None of the three judges who postponed the election will be on the review panel, though they were eligible in the random drawing to establish the 11-judge review panel.

Two well-known conservatives — Diarmuid O'Scanlon, appointed by former President Ronald Reagan, and Andrew Kleinfeld, appointed by former President George H.W. Bush, were selected for the review panel.

Seven justices on the panel were appointed by former President Bill Clinton. But two of them — Richard Tallman and Johnnie Rawlinson — have reputations as "Clinton conservatives."

None of the court's other most liberal justices — Clinton appointee Marsha Berzon or Stephen Reinhardt, who was appointed by former President Jimmy Carter, will be on the review panel. Reinhardt recused himself because he's married to the president of the Southern California chapter of the American Civil Liberties Union (search), which brought the suit that led to the postponement.

In essence, the ACLU has gone from one of the courts most sympathetic to its cause in the three-judge panel, to a potentially much more hostile 11-judge review panel.

"I'll be surprised if they come out the same way the three judges did," said Vikram Amar, a Hastings College of the Law legal scholar who noted the composition of the larger panel favors a reversal. "Then again, who knows what they are going to do?"

The panel was chosen from among 23 available judges.

The Associated Press contributed to this report.