Could the Ninth Circuit rule on its own split?

U.S. Senator Jeff Flake (R-AZ) has introduced a bill (one of four currently in Congress) to split the Ninth Circuit Court of Appeals into two circuit courts.  Apparently in response to reports that Ninth Circuit judges opposed the bill, Senator Flake asked the Ninth Circuit Executive for clarification on the court’s ability to rule fairly if the legislation were adopted and subsequently challenged. This week,  Cathy Catterson, the Circuit Executive of the Ninth Circuit Court of Appeals, responded with an unqualified yes.

Given that bills to split the Ninth Circuit have been introduced many times since 1941, and have never gained serious traction, it is hard to see this as anything more than political posturing.  But the regular recurrence of the proposal again illustrates the deep interdependence of the federal courts.  Indeed, circuit reorganization is literally an existential issue, affecting active judgeships, resources, case assignments, precedent, and internal court dynamics.  The judges naturally have an interest in the outcome, but they lack any direct say in it.

So let’s play out the hypothetical.  Could the Ninth Circuit judges rule on the reorganization of their own court?  And what would that look like?

It’s important to note at the outset that it would take a very specific combination of claims, parties, and events to even get to the stage in which the Ninth Circuit could address the issue. A plaintiff would first have to establish standing to bring suit, showing a particular injury in fact caused by the legislation. I am not aware of any on-point precedent here: a quick search revealed no challenges, for example, to the creation of the Eleventh Circuit or the Federal Circuit in the early 1980s. As one basis for standing, one might try to argue injury from a radical change in the law, since a provision in the Flake bill would not bind the newly created circuit court to Ninth Circuit precedent. (This is different from the creation of the Eleventh Circuit in 1981, in which the courts quickly clarified that Fifth Circuit precedent was still binding on the new circuit.) Notwithstanding this historical difference, it strikes me that it would be hard to establish harm just because of a change in the expected law.  Law changes all the time.

The most direct harm from the circuit split might fall on the judges or court staff themselves, in the sense that the reorganization might disrupt internal court procedures and business. So a judge herself could probably gain standing as a plaintiff, given carefully tailored and appropriate claims.

The venue would also be relevant; the Ninth Circuit cannot hear an appeal unless it originates from a district court within that circuit. The general federal venue statute, 28 U.S.C. § 1391(b), would seem to allow a suit filed in a district court within the Ninth Circuit, since the bulk of the alleged harm would fall there.  But venue might also be proper, say, in the U.S. District Court for the District of Columbia if the named defendant was the government entity charged with enforcing the legislation. So even a valid challenge might not appear before the Ninth Circuit solely because it was filed elsewhere.

Assuming a proper case could be filed and determined, and an appeal lodged, within the Ninth Circuit, the court would also very likely face a disqualification issue before reaching the merits of the appeal. There are several federal recusal and disqualification statutes designed to prevent judges from ruling in cases in which they have a personal interest. And of course, every Ninth Circuit judge would have an interest in the outcome of the case.  But there are interests and there are interests, and not every personal interest is disqualifying.  This would not be a case, for example, in which all the judges would be disqualified for having a direct financial or fiduciary interest in the case, or a family relationship with the parties, or  personal bias or prejudice against a party.

A somewhat stronger basis for disqualification would be the mere appearance of impartiality.  28 U.S.C. § 455(a) states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Universal disqualification of the Ninth Circuit bench under Section 455(a), however, is still unlikely. The appearance of partiality is measured by an objective standard: would a hypothetical reasonable observer believe that the judge could not be impartial?  But a reasonable observer is also hypothesized to be thoughtful and well-informed, not merely suspicious or speculative. A well-informed observer might well conclude that the judges could decide the validity of a statute fairly.  More to the point, the judges themselves might conclude that a well-informed observer would think that.

28 U.S.C. 144 also provides for judicial disqualification upon a specific motion by a party . Certainly a motion would not be out of the question, although Section 144 is premised on bias or prejudice against a party or counsel.  Again, it seems unlikely that the court would conclude that it is collectively biased.

Moreover, even if the judges concluded that Section 144 or 455(a) did apply (in the latter case, say, if one or more of the judges was also a plaintiff), the court could still invoke the Rule of Necessity, a centuries-old doctrine providing that “when all are disqualified, none are disqualified.” Bottom line: the Ninth Circuit judges could almost certainly decide the case.

But at this point the most critical challenge arises. Even if the Ninth Circuit judges could legally hear a challenge to a proposed split, how could they decide the case in a way that would appear both fair and impartial?  Ms. Catterson’s letter is one step toward addressing the problem, emphasizing in no uncertain terms that the judges can separate personal interests from professional duties. If a real case were to materialize, the court would need to make good on those assurances.

Two distinct approaches to assuring legitimacy are possible here.  The first option would be to decide the case very narrowly–with an almost mechanical feel–by citing heavily to precedent and canons of statutory construction and downplaying any personal interest. No one could blame judges so doing so–cases like this are a live wire.  The question is whether the determined appearance of objectivity would go far enough.

The second, much bolder, option would be to openly acknowledge the judges’ inescapable interest in the case, and wrap the decision in the larger context of the judiciary’s important societal role.  This is essentially the approach the Federal Circuit took a few years ago in Beer v. United States, a case challenging the existing salaries of all federal judges.  Given the clear financial interest every judge on the court had in the case, Judge Randall Rader chose to frame his majority opinion in light of society’s need for judicial independence.  He began with the observation that “The Constitution erects our government on three foundational corner stones—one of which is an independent judiciary.  The foundation of that judicial independence is, in turn, a constitutional protection for judicial compensation.”  He closed with the admonition that “[t]he judiciary, weakest of the three branches of government, must protect its independence and not place its will within the reach of political whim.”  And along the way, he methodically emphasized the “connections amongst protections for Life, Liberty, and the Pursuit of Happiness, protections for judicial independence, and protections for judicial compensation.”  Should the Ninth Circuit conclude that its division was somehow incommensurate with the basic functions of the judiciary, it might adopt this tone in explaining its decision.

The approach in Beer will not work in every case, but it does suggest that when the stakes are personal, courts can try to gain legitimacy and support for their decisions by being unrepentant educators and advocates for their own profession.


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