In mid-December, I published a column in the San Francisco Daily Journal and the Los Angeles Daily Journal (sister legal newspapers) in which I called for the Ninth Circuit to investigate whether its process for assigning judges to cases has been abused for ideological purposes. I’m pleased to learn from a recent Daily Journal article (which, alas, is available only to subscribers) that judicial-ethics expert Arthur Hellman has seconded my call. Some excerpts from the article:
Arthur D. Hellman, a professor at the University of Pittsburgh School of Law and an authority on judicial ethics, said he’s convinced the 9th Circuit is in the clear but believes a probe is warranted.
“I have known [the circuit’s executive officer] Cathy Catterson for many years, and I have absolute confidence that she would never countenance any kind of panel packing,” he emailed.
Hellman’s comment came with a strong suggestion that the circuit nevertheless address the claims publicly.
“In this as in so many other aspects of federal court operations, ‘trust me’ is no longer an adequate response,” he wrote….
Hellman said he continues to doubt the accusations of unfairness.
“At the same time,” he said, “the revelations raise questions that are not adequately answered by Judge Kozinski’s responses to Mr. Whelan. For example, he doesn’t explain why seniority should outweigh the court’s strong commitment to randomness in the assignment of cases to panels.”
Hellman, who was director of the 9th Circuit’s central legal staff in the late 1970s, called for a formal investigation of the allegations and a report to the public of the findings.
“Also, because the matter was raised in a result-oriented fashion – in litigation by people unhappy about particular outcomes – it is important to examine the court’s procedures outside the context of an adversary dispute,” he wrote. He suggested bringing in a retired federal judge to direct an inquiry.
Beyond the specifics of what exactly went on, Hellman wrote, “I was surprised by Judge Kozinski’s apparent lack of curiosity – not to mention his apparent ignorance of court procedures and their evolution.”
(The bracketed phrase is in the original; I’ve added the underlining and the hyperlink. The reference in the second-to-last sentence is to the pending petition for rehearing en banc in the Nevada marriage case, which the article discusses at greater length.)
I’ll note that the reporter’s opening summary of Hellman’s position—“he’s convinced the 9th Circuit is in the clear”—seems to overstate what Hellman actually says. Hellman’s “absolute confidence” that Catterson “would never countenance any kind of panel packing” doesn’t mean that he excludes the possibility of undetected wrongdoing by others. The article’s later phrasing of his position (“continues to doubt the accusations of unfairness”) is much softer than the opening summary.