The comments came during a panel discussion at the ABA’s white collar conference in Miami.
My earlier thoughts on this issue here.
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? Continue reading “Could the Ninth Circuit rule on its own split?”
This is the first in a series of occasional posts, highlighting scholarship and writings on the relationship between the court system and its external environment.
Tenth Circuit Judge Deanelle Reece Tacha’s 1995 article, Independence of the Judiciary in the Third Century, offers a short and engaging summary of the dependency issues that the federal courts faced at the end of the twentieth century. Much of her description and analysis is equally relevant today.
Judge Tacha notes from the outset that “[e]xamining the independence of the judiciary and perceptions about its erosion requires that one see the issue in both the institutional and the individual sense.” It is natural, and in a sense traditional, to think of independence in terms of tenure protection. But while life tenure protects individual judges from the vagaries of the political climate, it does not protect the judiciary as a whole from resource-related strains.
The Wall Street Journal posted a nice article this weekend on the role of the American bar Association in reviewing and rating federal judicial nominees. (I was quoted, which was also nice!) It gives a good summary of the ABA’s rating process and the history behind it.
The ABA ratings have had their share of controversy, and in an age where everything is increasingly politicized, we should not be surprised if controversy continues. But the ABA’s overt avoidance of political/policy questions, and deliberate focus on the qualities everyone would expect of a good judge (appropriate demeanor, high level of competence, intelligence and legal skills, etc.) make it a worthwhile addition to the overall vetting process. Nor is the ABA alone: similar criteria are used by state judicial nominating commissions across the country.
The ABA’s involvement also underscores an oddity of federal judicial selection: almost everyone gets a say in the timing and substance of judicial nominations except the courts themselves. I’m hard pressed to think of another sizeable organization that is so constrained in hiring its core employees.
If you hit a subscription wall, a PDF of the article is here.