Bench Memos

Law & the Courts

Collegiality, Liberal Style, on the Ninth Circuit

Irony alert: In this front-page article in the Los Angeles Times, several “veteran” Democratic appointees on the Ninth Circuit launch anonymous attacks on the supposed lack of collegiality of some of their new colleagues. Gee, how collegial of them to do so. And how strange that judges who “refused to be quoted by name” would defend their unattributed attacks by “saying they were not authorized to speak about what goes on behind the scenes.” If they’re not authorized to speak in their own names, on what possible basis do they think that they’re authorized to give anonymous quotes?

Judge Daniel P. Collins (disclosure: my former co-clerk for Justice Scalia and a longtime friend) is a particular target of the criticism. The complaints about how he “has appeared oblivious to court tradition” are amusing.

First, we’re told, Collins “has sent memos at all times of the night in violation of a court rule.” But from what I can tell, no such “rule” exists. And why would anyone prefer to get the memo the next day? A judge who prefers not to work as hard as Collins can make his or her own decision to read the memo in the morning. (Addendum: There evidently is some sort of preferred practice regarding memos the day before en banc votes.)

The second complaint is that Collins “objected to other judges’ rulings in language that some colleagues found combative.” To illustrate the point, the article notes that in a dissent from denial of rehearing en banc Collins called one panel decision “‘deeply flawed,’ ‘plagued’ by legal error and marked by ‘confused analysis.’” (The internal quotes are Collins’s words.) In response, two Democratic appointees said that his dissent “misrepresents the legal context of the case and wildly exaggerates the purported consequences of the panel opinion.” (Emphasis added.) On a scale of combativeness, I don’t see how the language of the Democratic appointees would get a lower score than Collins’s would, and I would have thought that “veteran” judges would have thicker skin.

The much more important question ought to be who is right. On that question, I’d bet big on Collins. I’ll also note that the issue at stake did not have the typical liberal vs. conservative ideological valence: Collins was defending the ability of Indian tribes to detain and investigate non-Indians for suspected violations of state and federal law within the boundaries of Indian reservations.

The third complaint is that Collins “moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel.” Further: “Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time.”

As soon as he joined the Ninth Circuit, Collins had not just a right but a duty to exercise his full responsibilities as a judge. The idea that he shouldn’t have taken part in en banc matters until he “had been assigned to his first panel” makes no sense. And having clerked on the Ninth Circuit when Judge Alex Kozinski came onboard, I doubt very much that there is anything about Collins’s first year on the court that is “unprecedented.”

I’m confident that Collins won’t be intimidated by this anonymous bullying. As one judge puts it, “I think he will be fine, though he will never be a go-along-get-along guy.” I think that Collins will be excellent, and when it comes to judicial decisionmaking, go-along-to-get-along strikes me as a vice rather than a virtue.

The article also makes a drive-by attack on Judge Lawrence VanDyke. It quotes the ABA’s harsh critique of VanDyke but makes no mention of the scathing criticism that the ABA received. (See, for example, Josh Blackman’s Atlantic essay.) It also notes that “VanDyke cried during his confirmation hearing when attempting to rebut criticism that he might be unfair to the LGBTQ community.” I find it very odd that VanDyke’s critics use his crying against him. VanDyke’s tears accompanied his moving testimony that “it is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect.” That strikes me as quite a rebuttal to the ill-founded charge against him.

Most Popular

Biden as Paradox

It is now conventional punditry that should Joe Biden win in November, his vice president, in 1944-style, will sooner rather than later become president. Biden, to reboot and secure the identity-politics base, thought he had to discriminate by sex and race in advance by selecting his vice president. But given ... Read More

Biden as Paradox

It is now conventional punditry that should Joe Biden win in November, his vice president, in 1944-style, will sooner rather than later become president. Biden, to reboot and secure the identity-politics base, thought he had to discriminate by sex and race in advance by selecting his vice president. But given ... Read More
U.S.

Yes, Meet Rioters with Overwhelming Force 

Restoring order to America’s cities isn’t a complicated proposition. All it requires is resources and determination and a firm rejection of the longstanding progressive fallacy that an overwhelming police presence is “provocative” and “escalatory” and must be avoided. As has been established ... Read More
U.S.

Yes, Meet Rioters with Overwhelming Force 

Restoring order to America’s cities isn’t a complicated proposition. All it requires is resources and determination and a firm rejection of the longstanding progressive fallacy that an overwhelming police presence is “provocative” and “escalatory” and must be avoided. As has been established ... Read More
Politics & Policy

The Suicide of the Cities

I noted on Twitter last night that rioting, coming right after the virus, is a catastrophe for the cities. Regardless of whether Trump or Biden is elected in November, it's easy to envision the following happening: Americans will flee the cities as they did in the post-1968 era. Thirty years of great progress for ... Read More
Politics & Policy

The Suicide of the Cities

I noted on Twitter last night that rioting, coming right after the virus, is a catastrophe for the cities. Regardless of whether Trump or Biden is elected in November, it's easy to envision the following happening: Americans will flee the cities as they did in the post-1968 era. Thirty years of great progress for ... Read More