Bench Memos

Chief Judge Kozinski Responds

By e-mail, I took the liberty of sending Ninth Circuit chief judge Alex Kozinski my post from Tuesday titled “Hijinks in the Ninth Circuit Clerk’s Office?” and asked whether he might be willing to answer some questions from me on the record. Chief Judge Kozinski generously agreed to do so. Here are my questions and his answers. (For sake of clarity, I’ve inserted “[AK:]” before his answers and “[EW:]” before a couple of my remarks.) 

1. When did you first learn that the clerk’s office had a practice of assigning expedited cases to the available panel with the most senior presiding judge?

[AK:] It’s been the practice as far back as I can remember.

2. When (if ever) were Ninth Circuit judges generally informed of this practice?

[AK:] I don’t know.  Perhaps before my time.

3. When did this practice begin?

[AK:] I don’t know.

4. Is this a practice that the clerk’s office maintains was followed uniformly?

[AK:] This has been our practice and I have no reason to doubt it’s been followed.

5. What steps, if any, have you or your predecessors as chief judge taken to ensure that no individual in the clerk’s office has discretion to assign a known case to a known panel?

[AK:] We train and supervise our staff and trust them to follow instructions.

[EW:] (The law-review article that I refer to in this post might be of interest to you.)

[AK:] No.

6. What steps, if any, have you or your predecessors as chief judge taken to address concerns that Judge Reinhardt seems to be favored by the case-assignment process?

[AK:] As you know, this has been made the subject of a pending petition for rehearing so I cannot comment.

[EW:] I of course welcome any additional comments you may have.

[AK:] Nothing further.  Have a good day.

I then asked Chief Judge Kozinski whether he would entertain follow-up questions, and he again generously agreed to do so. Here are my questions and his responses:

1. Given that you have long been aware of the practice, what led you to change it only recently?

[AK:] It was discussed during an Executive Committee meeting a few months ago and a majority expressed a preference for selecting among similarly-situated panels by random draw.

2. What was the justification for the old practice?

[AK:] I suppose it was viewed as consistent with our general practice of deferring to seigniority, such as selecting who presides, order of speaking at conference and assignment of opinions.  I can’t be sure as I wasn’t around when the practice got started.  Can’t say I gave it much thought.

***

I’ll probably reserve any further comments on this matter until I return to the office next week. In the meantime, if there are any other Ninth Circuit judges who would like to weigh in with their insights (either on the record or with a general descriptor (e.g., “a Democratic appointee”)), please contact me.

Update (around 4 p.m.): I’ve already heard from one Republican appointee on the Ninth Circuit who had never heard of the clerk’s office practice. (The most recent Republican to join the court joined it in 2007, so every Republican appointee has had at least the last seven years of experience.)

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