Bench Memos

Law & the Courts

Improving the Ninth Circuit

At the outset of the Trump administration, Democratic appointees on the Ninth Circuit outnumbered Republican appointees by a margin of 18 to 7. Plus, 21 of the court’s 29 authorized judgeships are (or, more precisely*, are regarded as being) in states that have two Democratic senators, with 15 in California alone. So if the Senate’s blue-slip privilege were to give home-state senators an effective veto on nominations, it would be difficult to impossible to appoint judicial conservatives in those states. Therefore, even with the four vacancies that then existed, it might have been tempting to write off the Ninth Circuit as a lost cause.

No one should think that now.

With the recent death of Stephen Reinhardt (Carter appointee), the retirement of Alex Kozinski (Reagan appointee), and the transition of Richard Tallman (Clinton appointee) to senior status, the Democratic appointee margin is now 16 to 6, with seven pending vacancies and one declared future vacancy. Further, Senate Judiciary Committee chairman Grassley has committed to allow the blue-slip process to be used only to ensure consultation between the White House and home-state senators, not to give those senators a veto.

If the Trump administration fills the eight vacancies, the count of Democratic appointees to Republican appointees will fall to 16-13. (The declared future vacancy is that of a Republican appointee, N. Randy Smith, so filling that vacancy won’t increase the net Republican appointee number.) Further, some nine or so of those 16 Democratic appointees are, or will very soon be, eligible to take senior status or retire, so it’s not entirely farfetched to envision a scenario in which Republican appointees make up a majority of the Ninth Circuit.

In any event, improving the Ninth Circuit dramatically does not depend on establishing a majority of Republican appointees on that court. Whereas the other circuits all use a full en banc court to resolve intracircuit conflicts or reconsider panel decisions, the Ninth Circuit uses a “limited en banc panel” that consists of the chief judge (Clinton appointee Sidney Thomas) and ten other active-service judges selected randomly. Increasing the number of Republican appointees from 6 to 13 would dramatically increase the probability of an en banc panel with a majority of Republican appointees. Right now, there is a 0.4% probability of such a panel. With 13 Republican appointees, the probability would soar to 24.9%. (With my own statistics lessons being a distant memory, I’ve enlisted the assistance of a statistician, though I of course am accountable for any errors.)

Increasing the number of Republican appointees from 6 to 13 would also markedly increase the probability of ordinary argument panels with a majority of Republican appointees. Because senior judges and district judges often sit on panels, the math here is more uncertain, and I’ve had to use some simplifying assumptions. The ballpark numbers I’ve come up with indicate that the probability of a panel with a majority of Republican appointees would rise from the 20-25% range to the mid-40% range.

It is unlikely that all eight of these Ninth Circuit vacancies will be filled this year, especially as nominations have not yet been made for five of them. So here, as with the broader cause of judicial confirmations throughout the country, it is especially important that Republicans retain control of the Senate in this November’s elections.

* Authorized judgeships are not in fact assigned by state.

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