Bench Memos

Reinhardt Anomalies—3,350-to-1 Odds

I’ve presented evidence that arch-liberal Ninth Circuit judge Stephen Reinhardt has benefited from unusual case assignments by the Ninth Circuit clerk’s office. I’m now pleased to highlight a massive statistical analysis of Ninth Circuit case assignments that uncovers statistically significant anomalies that uniquely favor Reinhardt. According to the study’s author, the odds that random chance would have generated Reinhardt’s pattern of case assignments are “about 3350 to 1”—yes, that’s three thousand, three hundred fifty to one—against. Here’s an excerpt:

If diverters in the clerk’s office were to manipulate assignment by favoring certain judges who could be counted upon to decide cases in the intended direction, how might this be evidenced? A favored judge might hear a lower number of cases than average per year, being assigned the same total work but more cases having heavy weights. A favored judge, assigned more of the weightier cases because of diversions in his direction, might have a higher percentage of his cases orally argued than do his colleagues. A favored judge might sit on fewer cases with an uncongenial majority (meaning a majority of Republican appointees) than do his colleagues, because this wastes his valuable time. A favored judge might sit on a higher than average percentage of panels consisting of three Democratic appointees, since this both gives the greatest chance of success in achieving an expansive ruling and may discourage the parties from further appeals in such cases.

There is one judge whose statistics are at the far end of the distributions in all four of these areas. His name is Stephen Reinhardt.

Considered alone, Judge Reinhardt’s numbers in any of these areas might not be too remarkable. But considered all together, they represent an implausibility beyond what may reasonably be believed to be random chance: they are statistically significant.

A few additional notes:

1. For professional reasons, the study’s author has chosen to use a pseudonym. He has identified himself to me, and I have independently confirmed his identity.

2. I don’t claim the ability to assess the merits of the study. So that others could do so, the study’s author has made all of his underlying data public. I will be happy to call attention to any serious criticisms of his study.

3. As the reader of the study will discover, the author also finds that Ninth Circuit judge Barry Silverman (a Clinton appointee) appears to have been disfavored in case assignments. The author offers some “pure speculation” why this might be the case. If any reader familiar with the Ninth Circuit has any insights on this matter, I’d welcome them.

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