Bench Memos

Re: Hijinks in the Ninth Circuit Clerk’s Office

As I noted in my update to my Q&A with Ninth Circuit chief judge Alex Kozinski, a Republican appointee to the Ninth Circuit informed me last Friday that he or she had never heard of the clerk’s office supposed longstanding practice of assigning expedited cases to the available panel with the most senior presiding judge.

I doubt very much that this supposed practice—which purportedly helps to explain some of Judge Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on ideologically charged cases—was in fact uniformly applied. I’m not in a position to conduct a thorough review of the clerk’s calendaring practices, but I have immediately run across an apparent anomaly—in the appeal of the anti-Prop 8 ruling, as it happens.

In August 2010, a motions panel ordered that the anti-Prop 8 appeal be expedited and “be calendared during the week of December 6, 2010, at [the courthouse] in San Francisco.” From the calendar for that week, we learn that the panel in San Francisco with the most senior presiding judge included Mary M. Schroeder, who joined the Ninth Circuit in 1979 (Reinhardt joined it in 1980) and did not leave active service until 2012. Why, then, did the anti-Prop 8 appeal not get assigned to her panel?

More generally, insofar as this supposed practice is meant to explain Reinhardt’s unusual case assignments, it ought also to have resulted in even more appealing case assignments for the active judges senior to Reinhardt—i.e., Kozinski, Harry Pregerson, and (until 2012) Schroeder. But the concerns that I’ve heard about unusual Ninth Circuit assignments focus specially on Reinhardt.

Also, while I’m grateful that Kozinski responded to my inquiries, his responses strongly suggest a real lack of interest on his part in judicial administration. As I discussed in this post, this Texas Law Review article from 2000, titled “Neutral Assignment of Judges at the Court of Appeals,” surveys assignment systems in the federal courts of appeals and concludes that “all systems permit a certain level of discretion and human intervention that, in the wrong circumstances, could be abused.” It finds specific faults with the Ninth Circuit’s case-assignment procedures. But here’s how my exchange with Kozinski went:

[EW:] 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.

As Kozinski himself has just noted (in an article about his incoming successor as chief judge), chief judges “don’t get picked because of [their] administrative skills.” In a well-functioning judicial bureaucracy with a well-designed case-assignment system, it might well be sensible merely “to train and supervise our staff and trust them to follow instructions.” But Kozinski’s head-in-the-sand approach leaves lots of room for concern that the Ninth Circuit’s case-assignment system may have been abused for ideological purposes. 

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