Bench Memos

Hijinks in the Ninth Circuit Clerk’s Office?

A follow-up to my two posts last month highlighting concerns about notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important cases with a strong ideological valence:

Buried in this New York Times article is some very surprising news. For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, from what I can tell from my own inquiries, this practice was not even commonly known among the Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

Ninth Circuit chief judge Alex Kozinski, who disclosed the practice to the New York Times, expressed his “full confidence” in the “professionalism and objectivity” of the Ninth Circuit’s staff. But I have to wonder when he first learned of the practice—and whether he insisted that it be changed as soon as he learned of it.

One other peculiarity: According to a letter from the party—the Coalition for the Protection of Marriage—challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that it may have abused that discretion.

Relatedly, I’ll note this recent blog post by Slate’s Mark Joseph Stern that contends that the Coalition for the Protection of Marriage is arguing that the “judges were crooked” and that “several judges on the circuit are unscrupulous and corrupt.” But there is nothing about the Coalition’s argument that necessarily implicates any judges in any possible wrongdoing, and it would indeed be astounding if any judge were complicit.* The alleged “appearance of departure from a neutral process” comes instead from the assignment of cases by the clerk’s office. There would be no reason for a wayward actor in the clerk’s office to inform any judges of his mischief—and plenty of reason not to.

Along with a generous comment about me, Stern laments that I have “join[ed] the chorus of conspiracy theorists.” But, as my post made clear, concerns about Reinhardt’s assignments “have circulated for years” and long predate the recent marriage case. The recent disclosure about the previously unknown practice of assigning “cases on a fast track” and the apparent incompleteness of that disclosure aggravate, rather than alleviate, my concerns that something has long been rotten in the Ninth Circuit clerk’s office.

If anyone considers it unthinkable that government bureaucrats might abuse their discretion to pursue an ideological agenda, please meet Lois Lerner.


* But as the NYT article acknowledges (and as I discussed in this post):

The possibility that courts might sometimes bend the rules in assigning cases is not completely implausible. In the civil rights era, the Fifth Circuit steered cases involving racial equality to more liberal panels.


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