That was the recent ruling of the U.S. Supreme Court in Yovino v. Rizo, a case decided at the end of February. The Ninth Circuit Court of Appeals had issued its opinion, which included the vote of Judge Stephen Reinhardt, eleven days after Reinhardt passed away in March 2018. The Ninth Circuit panel justified the decision to include Reinhardt’s vote by noting:
“Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”
The Supreme Court disagreed, explaining that federal judges “are appointed for life, not for eternity.”
Donald Scarinci has a nice breakdown of the opinion and the underlying case in The Observer.
In what has become almost an annual rite, a member of Congress has introduced a bill to split the Ninth Circuit Court of Appeals into two. The new bill (S. 3259), proposed by Alaska Senator Dan Sullivan, would also add 57 new judgeships around the country, and would additionally give permanent status to eight existing temporary judgeships.
Senator Sullivan explained:
“In 1970, Chief Justice Warren Burger warned that ‘a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people,’ and cautioned that inefficiency and delay in our courts of appeals could destroy that confidence. Unfortunately, as it is currently constituted, the Ninth Circuit Court is inefficient, it delays, and therefore denies justice for millions of Americans. We cannot allow the confidence in our system of justice to be undermined by continuing a court of appeals that is so large and so unwieldy.”
The efficiency concerns are real, but this bill is probably going nowhere.
From Mark Brnovich and Ilya Shapiro in the Wall Street Journal (may require subscription). Key grafs:
The Ninth Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national median. Judge Richard Tallman, a Clinton appointee on the Ninth Circuit who favors a split, told the Senate last summer that a legal brief in a pending appeal “is frequently years old and contains stale case law, by the time we can get to it.”
A second problem is the court’s unpredictability. Federal appeals courts hear cases in three-judge panels. But the Ninth Circuit has 29 judgeships, meaning there are more than 3,600 combinations of three. Judges can go years before hearing cases with some of their colleagues.
The composition of the Ninth Circuit is, of course, as much a political question as a legal and organizational one. But it’s worth considering–as Brnovich and Shapiro remind us–that the question is not purely political. The circuit’s sheer size has a dramatic impact on its efficiency, predictability, and workload. Splitting it may well be the right thing to do.
James Duff, Director of the Administrative Office of the U.S. Courts, circulated a memo last week stating that “The Chief Justice has asked me to establish a working group to examine the sufficiency of the safeguards currently in place within the Judiciary to protect court employees, including law clerks, from wrongful conduct in the workplace.”
The announcement comes in the wake of Ninth Circuit Judge Alex Kozinski’s sudden retirement, spurred by several allegations of workplace harassment in his chambers. The Chief Justice has referred the matter to the Second Circuit Judicial Conference for investigation shortly before Kozinski resigned.
A report and recommendations are expected by May.
The Washington Post has the story here.
In another example of judges ruling on the status of other judges, a panel of the Ninth Circuit Court of Appeals has upheld the propriety of Montana’s nonpartisan judicial elections. The nonpartisan scheme was challenged by a judicial candidate who argued that his inability to seek, accept, or use political endorsements in his campaign violated his First Amendment rights. Citing recent Supreme Court precedent, the panel upheld the state’s restrictions on political endorsements.
The full opinion is 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?”