Bench Memos

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The D.C. Circuit’s 12th Seat Becomes the Ninth Circuit’s 29th


A court-security bill (H.R. 660) on its way to be signed into law by President Bush includes a provision that eliminates the 12th seat on the D.C. Circuit and gives the Ninth Circuit one more seat—its 29th.  This provision of the bill takes effect on January 21, 2009.  Two thoughts:


1.  There had been controversy over whether the D.C. Circuit ought to have 10 or 11 seats, and that controversy had been used by some on the Senate Judiciary Committee as a reason not to act on Peter Keisler’s pending nomination, since Keisler would become the 11th active judge on the D.C. Circuit.  This soon-to-be-law plainly reflects the Senate’s judgment that the D.C. Circuit should have 11 seats, and it thus ends that controversy.  All the more reason for the Senate Judiciary Committee to move promptly to report Keisler’s nomination to the Senate floor and for the Senate to confirm Keisler, who was nominated nearly 18 months ago and who had his hearing more than 16 months ago.  (The fact that the provision eliminating the 12th seat does not take effect until January 2009 is irrelevant to this point; what matters is that there will continue to be an 11th seat.)    


2.  This article reports that Senator Feinstein regards the new Ninth Circuit seat as belonging to California: 


“California needs more judges,” Feinstein said in a statement. “The Senate has recognized that it makes sense to take a judgeship from where it is needed least, and put it in California, where it is needed most.”


Feinstein’s proposition is flawed in two respects.  First, H.R. 660 assigns the new seat to the Ninth Circuit, not to California specifically.  Indeed, so far as I am aware, no provision of federal law assigns any federal appellate seat to a specific state.  Second, Ninth Circuit (and other federal appellate) judges, no matter where they have their chambers, hear the same mix of appeals from district courts in different states in their circuit.  In other words, California’s supposed need is equally served whether the new seat is in California or elsewhere.


Wrong as it is, Feinstein’s statement does reflect the unfortunate political reality that the Senate, favoring (as I discuss in this essay) the self-serving interests of individual senators over considerations of judicial quality, has permitted senatorial influence to extend to supposed home-state appellate seats. 

Tags: Whelan


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