A Curious Panel Selection Procedure

Published December 15, 2014

San Francisco Daily Journal

This piece also appeared in the Los Angeles Daily Journal. The hyperlinks do not appear in the published versions.

Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals has long seemed to enjoy remarkable good fortune in getting assigned to sit on ideologically charged cases. Suspicions that his good fortune hasn’t been entirely due to luck were bolstered recently when the 9th Circuit revealed that its clerk’s office had had a longstanding but undisclosed practice of assigning expedited cases — which tend to be of special importance — to the calendar panel with the most senior presiding judge. The arch-liberal Reinhardt was appointed to the court by President Jimmy Carter in 1980 and has long been very senior among active judges, so this practice would have especially benefited his case assignments.

Concerns that judges or court clerks might engineer case assignments for ideological purposes can’t simply be dismissed. A Texas Law Review article from 2000 makes a compelling case that 5th Circuit case assignments in civil-rights cases in the early 1960s were manipulated to ensure pro-civil rights majorities. In a controversial case a decade ago, the 6th Circuit’s chief judge added himself to an open spot on a panel instead of using the random draw that court rules required. In trying to minimize his violation, one of his colleagues offered the curious excuse that the chief judge did that frequently.

Judges and court clerks are people, too. They have their biases and their temptations to indulge those biases, especially when they think they can get away with it. Respect for the courts depends on the public’s trust that they act impartially. That’s why it’s important that courts develop and implement transparent procedures designed to ensure that the assignment of judges to cases is random and neutral.

Just before his term as 9th Circuit chief judge ended, Alex Kozinski kindly responded by email to questions I posed to him about the 9th Circuit’s now-abandoned practice of assigning expedited cases. I’m sorry to say that his responses didn’t alleviate my concerns.

For starters, it’s not at all clear that other 9th Circuit judges were ever informed of this practice. (Kozinski’s response is vague on the point.) One veteran judge wrote to tell me he had never heard of it. That’s consistent with what I’ve heard from other chambers.

Even more telling was Kozinski’s evident lack of interest in ensuring that case-assignment shenanigans don’t occur. I referred him to a law-review article that faults the 9th Circuit for having a case-assignment system that could be abused and suggested that the article might be of interest to him. His blunt reply: “No.”

The practice that the 9th Circuit has now abandoned was rife with potential for abuse. Among other things, the clerk’s office staff has been delegated authority to decide which cases to expedite, and it can select among calendar weeks in a way that affords plenty of opportunity for panel-shopping. So, for example, the clerk’s office ordered the Nevada marriage case expedited to “be calendared as soon as possible” and then passed over other calendar weeks to assign it to a panel with Reinhardt as the presiding judge.

There’s also evidence that the clerk’s office didn’t uniformly apply the practice and that it may simply have used it as one of several tools to direct cases to Reinhardt. Under the practice, the anti-Proposition 8 appeal in 2010 apparently should have gone to a panel headed by Mary Schroeder. Instead, it went to a panel headed by Reinhardt (who, to compound the irregularities, declined to recuse himself even though the American Civil Liberties Union affiliate his wife then headed had taken part in the case and she had publicly celebrated the district-court ruling against Prop. 8).

The 9th Circuit has also been faulted for failing to separate the process of assigning judges to panels from the process of assigning cases to panels. That lack of separation makes it all the easier for rogue personnel to engineer the assignment of cases to panels with particular judges.

A new study by law professors Adam S. Chilton and Marin K. Levy finds that case assignments in several circuits, including the 9th, display “statistically significant deviations from random assignment.” In particular, they find that the deviation in the 9th Circuit is ideological in nature. While they refrain from inferring or alleging that the skewing is intentional, they provide ample cause for others to wonder.

Having operated a system that allows for abuses, the 9th Circuit owes it to the public to conduct a thorough investigation into how its case-assignment process has in fact operated. That investigation, preferably assigned to an outsider, should require information from clerk’s office staff as well as from the various chief judges over the years. Among other things, it should aim to uncover just how and when the recently disclosed practice of assigning expedited cases developed and operated. It should also examine case assignments as to which questions have been raised. And it should yield a detailed public report on these matters as well as on how the case-assignment process should be improved.

As Kozinski himself recently noted, chief judges “don’t get picked because of [their] administrative skills.” But that’s no excuse for them not to ensure that their courts have in place neutral rules that are administered faithfully. As the U.S. Supreme Court observed a few years ago — in the course, as it happens, of blocking the broadcasting of the anti-Prop. 8 trial and condemning the violation of rules by Kozinski and U.S. District Judge Vaughn Walker — “If courts are to require that others follow regular procedures, courts must do so as well.”

If the 9th Circuit fails to act responsibly on this matter, it will be inviting an investigation by the Senate or House judiciary committee.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to National Review Online’s Bench Memos blog on judicial matters.

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