Bench Memos

Stealth Former Reinhardt Clerk Defends Reinhardt

An article in today’s San Francisco Daily Journal (subscriber-only) on the Ninth Circuit’s denial of the en banc petitions in the Nevada and Idaho marriage cases includes this passage on whether the Ninth Circuit ought now to conduct an investigation into its case-assignment practices:

M. Edward Whelan III, a conservative writer and president of the Ethics and Public Policy Center said Monday that the circuit’s thumbs down on the Sevcik en banc call opens the door.

“Now that the question is no longer presented in a pending case, it’s time for the 9th Circuit to conduct a serious investigation of the troubling evidence that its case-assignment process has been ideologically rigged,” he emailed.

Not all agree. “You don’t need an investigation whenever someone raises a silly claim,” said Shaun Martin, author of the California Appellate Report blog and a University of San Diego School of Law professor.

“I’m certain that the 9th Circuit could improve its process,” said Martin, who sits on a circuit advisory rules committee. “The judiciary is inherently a work in progress. But the claim that the process is deliberately biased, or that it was tilted here to achieve an intended result, is unworthy of substantial credence.”

I of course agree with law professor Shaun Martin that “You don’t need an investigation whenever someone raises a silly claim.” But I was surprised to see him so cavalierly apply that assessment to the Ninth Circuit’s situation. Is he even aware, I wonder, of the evidence of anomalies that I’ve presented that led judicial-ethics expert (and former Ninth Circuit administrator) Arthur Hellman to second my call for an investigation? If so, does he have any explanation for these anomalies? 

Wondering who Shaun Martin is, I located his USD bio, which states that he “clerked for the U.S. Court of Appeals Ninth Circuit” but, very oddly, doesn’t identify the Ninth Circuit judge for whom he clerked. I then checked his blog, which offers “Thoughts on recent Ninth Circuit and California appellate cases,” but discovered that its “complete profile” of him says virtually nothing. How strange, I thought, that someone who clerked for the Ninth Circuit would write a blog about Ninth Circuit decisions without making readily available to his readers which Ninth Circuit judge he clerked for.

So I decided to contact someone whom I figured would know Shaun Martin, and, as the title of this post gives away, I was informed—surprise!—that Martin is a former Reinhardt clerk. To confirm what I was told, I was then able to locate an old blog post of Martin’s in which he writes: “How much I love my former boss, Judge Reinhardt.” (On a quick skim, it would seem that a reader of plenty or most of his other posts about Reinhardt rulings wouldn’t know that he clerked for Reinhardt. I’m not suggesting that he needs to include that fact in every post that involves Reinhardt, but it certainly ought to be in a readily accessible bio.)

I confess that if I had clerked for Reinhardt, I would be inclined to conceal that fact. But it doesn’t appear that it’s embarrassment that has Shaun Martin obscuring his connection to Reinhardt.

In any event, how fitting that unbeknownst to San Francisco Daily Journal readers (and, I’m guessing, to the reporter, who I presume would otherwise have disclosed the fact) the person contending that no investigation is needed into whether the Ninth Circuit case-assignment process has illegitimately benefited Reinhardt is none other than a former Reinhardt clerk.

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