In my previous post, I offered reasons to doubt that the Ninth Circuit’s supposed longstanding practice of assigning expedited cases to the available panel with the most senior presiding judge was consistently applied. In this post, I’ll simply illustrate the extraordinary potential for abuse that inhered in that practice even if it was consistently applied.
Consider this February 2014 order expediting oral argument in the Nevada marriage case. The decision to expedite was made not by Ninth Circuit judges but by clerk’s office staff, exercising the power delegated to them under Circuit Rule 27-7. The order states, “This case will be calendared as soon as possible.”
The clerk’s office ended up calendaring the case for the week of September 8, which under the supposed practice resulted in its being assigned to the panel of Reinhardt, Gould, and Berzon. But there were lots of other calendar weeks available. So it would seem that the clerk’s office staff had its pick of panels, and, further, that it could determine beforehand that selecting the week of September 8 would yield the panel of Reinhardt, Gould, and Berzon.
A system in which clerk’s office staff can decide which cases to expedite and can select among calendar weeks in a way that affords plenty of opportunity for panel-shopping is a system rife with potential for abuse. Perhaps that potential wasn’t exercised to generate Judge Reinhardt’s highly improbable pattern of case assignments, but quite possibly it was. Having operated a system that allows for such abuse, the Ninth Circuit can hardly fault anyone for being suspicious.