"Veteran" Ninth Circuit Judges Complain to L.A. Times About New Ninth Circuit Judges

Judges should not leak internal proceedings to the media

|The Volokh Conspiracy |

Last September, "sources familiar with the private Supreme Court deliberations" talked to CNN about the Census Case. It was not clear who spoke to the media. Was it one or more Justices? Law clerks? Court staff? People who were in touch with the Justices or law clerks? These leaks were troubling. Confidential deliberations should remain confidential–especially when press reports paint some members of the Court in an unfavorable light. These disclosures corrode collegiality. Indeed, there have been new rounds of rumors about leaks in the Title VII SOGI cases.

This problem, regrettably, is not limited to the Supreme Court. On Saturday, Maura Dolan of the L.A. Times interviewed "several judges on the 9th Circuit" about the impact of President Trump's new nominees. Dolan noted that "some" of the judges "declined to discuss their colleagues or inner deliberations." That "some" should have been "all." Why would any judges discuss their "colleagues" or opine on "internal deliberations"?

Alas, some judges "refused to be quoted by name, saying they were not authorized to speak about what goes on behind the scenes." In other words they spoke on background, not for attribution. Judges cannot speak on background. Ever. Generally, when a source says, "I am not authorized to speak publicly," that statement suggests that, given the proper authorization, she could speak publicly. But judges can never speak publicly about internal deliberations. No authorization can be given by any superior authority. Shame on those judges who spoke on background to the press.

At least one judge was willing to have quotes attributed to him: Judge Milan D. Smith Jr. The story leads with a picture of Judge Smith in chambers. And what did Judge Smith tell the Times?

"Trump has effectively flipped the circuit."

It is common enough for commentators to speak in terms of "flipping" circuits. I'll admit, I use that phrase from time-to-time, but it is a gross summary. But here, we have a judge describing his circuit in purely political terms.

Smith also opined on how the flip will affect the court's jurisprudence:

Of the senior judges who will be deciding cases on "merits" panels — reading briefs and issuing rulings — 10 are Republicans and only three are Democratic appointees, Smith said.

"You will see a sea change in the 9th Circuit on day-to-day decisions," Smith predicted.

Judge Kim McLane Wardlaw also spoke to the press on record, though her comments were more neutral:

Ninth Circuit Judge Kim McLane Wardlaw, a Clinton appointee, noted that most of the Trump appointees are still in transition, with the heat of the political process of Senate confirmation not far behind them. She said she was optimistic the 9th Circuit would continue to be collegial.

What did the anonymous judges say about the "flip"?

To be sure, some of the new appointees to the 9th Circuit have quickly won the respect of their colleagues. But the rapid influx of so many judges — most without judicial experience — has put strains upon the court and stirred criticism among judges appointed by both Democratic and Republican presidents.

"Ten new people at once sends a shock wave through the system," a 9th Circuit judge said.

Which new colleague drew the most ire? Judge Daniel Collins. (I mentioned Judge Collins in a recent post; he did not join all of Judge Bumatay's originalist dissental.)

Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.

Some judges said that in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges' rulings in language that some colleagues found combative, they said.

Hold on. There is a court rule that prohibits communications late at night? Is that actually a rule in the Ninth Circuit?!

Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.

Active judges vote on the calls behind the scenes, and the public becomes aware of a failed effort only when dissents are later filed by the judges who favored reconsideration. Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time. The court has so far rejected most of Collins' calls.

"Collins has definitely bulldozed his way around here already in a short time," one 9th Circuit judge said. "Either he doesn't care or doesn't realize that he has offended half the court already."

Half the court? Perhaps the most striking quote of the article: due to the sheer size of the Ninth Circuit, "[m]ost 9th Circuit veterans have yet to have had any experience with the new appointees, and it could take years before they serve on a panel with each of them." This sort of broad-brush criticism is unfounded, and extremely premature. How could one judge already assume what "half the court" thinks?

At least one judge wasn't too concerned about Collins:

Another judge predicted that even the hard-charging Collins, educated at Harvard and Stanford, "will mellow."

"I think he will be fine, though he will never be a go-along-get-along guy," the judge said.

Dolan reported that "Collins did not respond to a request for an interview." Nor should he have responded.

Two unnamed judges also criticized Judge Ryan D. Nelson:

But Trump appointee Judge Ryan D. Nelson rattled other members of the court when he suggested during a hearing in August that the 9th Circuit remove a respected San Francisco district judge, Edward M. Chen, from a case. The 9th Circuit rarely takes cases away from district judges and only in extreme situations.

Chen, a former ACLU lawyer, was serving as a federal magistrate when Obama elevated him to the district court. Nelson complained about him during a hearing on a case in which Chen imposed an injunction on a Trump plan to take away protected status from many immigrants.

"You can reverse Ed Chen from time to time, but to suggest from the bench that are you are going to reassign" a case is "off the reservation," one longtime 9th Circuit judge said. "Ed is an extremely well respected judge."

Another veteran called Nelson's suggestion "beginner stuff."

"When he is in a china shop, he doesn't walk around with caution," the judge said.

These comments are demeaning and patronizing.

Nelson, an Idaho lawyer who worked as general counsel for a wellness consumer goods company, did not respond to a request for comment.

Nor should have have commented. Once again, the Trump nominee took the higher road.

Some of the judges commended certain new colleagues. This selective praise reaffirms the conclusion that other judges are not as well liked.

Though conservative, the Trump appointees to the 9th Circuit are not monolithic. Two Trump appointees — Bade, a former federal court magistrate, and Mark J. Bennett, a former attorney general of Hawaii — are regarded by their colleagues as experienced and collegial.

Trump appointee Eric D. Miller also has drawn positive reviews from both Democratic and Republican appointees. Before his appointment, Miller headed up the appellate division of a major law firm.

"I think he will be a good judge," a 9th Circuit veteran said.

Much of these simmering tensions concerns the en banc process. Dolan explains that for decades, "with Democratic nominees heavily outnumbering Republicans, there were usually enough votes to overturn conservative decisions by three-judge panels." No longer.

The D.C. Circuit experienced similar growing pains in the 1980s after President Reagan made a series of prominent appointments. In short order, Reagan pushed the court's balance to the right. An 1988 Wall Street Journal article declared, en banc review "has become a weapon for some Reagan appointees seeking to steer federal courts in a more conservative direction." Judge Robert Bork helped lead that charge. Soon this frequent usage of en ban created a very hostile culture on the court. Chief Judge Harry Edwards and later Chief Judge Douglas Ginsburg helped to repair this culture. (My colleague Adam White describes this history in a 2014 WSJ Op-Ed.)

In 2015, now-Chief Judge Sri Srinivasan opined on the relationship between rapid changes in his court's composition, and the en banc process:

"On my court, no one had been confirmed to the court for seven years at the time that I was confirmed," said Srinivasan, noting that the D.C. Circuit's active judges before he arrived included four Republican appointees and three Democrats. "In quite rapid succession, four of us who were appointed by President Obama were appointed in the matter of a few months."

"If we lived in a world where we had the rule of a judge, rather than the rule of law, you would have seen an absolute sea change, an avulsive change in the law as it was interpreted, applied and rendered by our court," the judge added. "And I think in at least some spheres there was probably some apprehension about that — or glee about that — depending on one's perspective [but] we didn't see an immediate sea change in decisions, we didn't see an overruling of prior precedent, we didn't see an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with."

(As a Texas property professor who demands his students know the difference between accretion and avulsion, I appreciate his choice of adjective.)

The Ninth Circuit is going through growing pains. I suspect the en banc process may be lively at first, but will eventually calm down. In any event, these disclosures represent a breach of judicial decorum. Judges should not complain about their colleagues to the press. And judges certainly should not talk about internal deliberations–ever. These leaks will foment a toxic culture on the court, that can take years to correct. Chief Judge Sidney Thomas should weigh in to explain that these statements are inappropriate.

If Ninth Circuit judges feel talkative, there is a far more pressing topic that warrants their comments: Judge Reinhardt. On Friday, Dolan wrote an article about Olivia Warren's allegations. As far as I can tell no judges spoke to Dolan on-the-record, or off-the-record. Dolan reported, "A spokesperson for the 9th Circuit was not immediately available for comment."

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  1. The complaints smack of an elitist attitude that has developed in that circuit and fomented for more then 30 years. That is “business as usual” and the denizens there could care less that new colleagues, who have equal power on an organizational level, won’t “get with the program” and “play by the (old) rules”.

    Is there anything that violates the appellate or local rules for a judge to call for an en banc vote? I couldn’t find anything in writing. It is just an (old) “rule”. Same with sending memos “after hours”. Nothing in the public operating rules for the circuit that forbid a colleague from emailing out a memo late at night. Just another complaint that new judges aren’t fitting into the old mold that their liberal colleagues would like very much to continue.

    1. It will be amusing watching all of the liberals at volokh who decried trump even mentioning the politics of the ninth and other circuits as outrageous.

      There has been a realignment largely thanks to Reid and his use of the nuclear option. Of course the left states that it isnt Reids fault, that conservatives would have done it anyways, ignoring actual actions.

      Now we have Sotomayor blaming politics on judicial reasoning she is losing at the USSC. The courts have always been political, especially for judges who lean left. Just count the number of national injunctions overturned under Trump. The left is just mad they are losing the power base they had built up with the help of conservative cowardice in the face of the media. This is why Soros and others are pouring so much money into local AG and DA races.

      1. Exactly. They know that even if the injunctions are overturned, the damage (in the delay) has already been done. It’s too bad Trump isn’t 1/10th the fascist the left says he is. If I was Trump, I would have ordered the Air Force to fire rockets at these people’s houses. I suspect traitorous leftist judges would change their tune if they saw their friends’ wives and children burned alive.

        1. And before anyone asks, do I “support” targeting civilians? Absolutely not. War sucks, and so does collateral damage. But I recognize that it is effective in demoralizing your enemy. Trump is ultimately a decent person, which is why he has been reserved in responding to the attacks on his authority he has been dealt from the left throughout his presidency.

          If Israel is justified in bulldozing terrorists’ houses, as I believe they are, Trump would be justified in targeting his enemies in similar fashion.

          1. This guy is a big fan of your civility standards, Prof. Volokh.

            Want to remind everyone of the words you forbid non-conservatives to use, such as “sl%ck j*w” or “cop s^cc@or?” Or of the Volokh Conspiracy standards that led to the banning of Artie Ray (for making fun of right-wingers, not for gassing certain judges or using Air Force rockets against political rivals)?

            Carry on, clingers. Just don’t expect to be taken seriously by your betters, especially those who operate our strongest law schools.

            1. Just remember when more Bernie Bros start beating Trump supporters and talking about “revolution” and putting “nazis” (read conservatives) in gulags how much you abhorred right-wingers even jesting about “violence”. Somehow I think your tune is either going to be mute or “who cares!”

              1. The belligerent Sanders supporters are an affliction for the Democratic Party resembling the Tea Party supporters for the Republican Party.

                I hope the Democrats are not corroded as much as the Republican Party was.

                1. Yeah, remember all those violent Tea Party supporters that trashed the landscape and beat up people trying to film them?

                  Put down the vodka, you’re drunk.

              2. Jimmy, your reaction to the criticism of the guy advocating for targeting the families of liberal judges is to speculate about reactions to an imaginary worse Antifa.

                Get a grip.

                1. I didn’t advocate for that.

                  1. You absolutely fucking did.

                    Stop lying, you bigoted POS.

                    1. Sounded like hyperbole to me.

                    2. And before anyone asks, do I “support” targeting civilians? Absolutely not. War sucks, and so does collateral damage. But I recognize that it is effective in demoralizing your enemy.

                      That’s not hyperbole, Jimmy. Quit rationalizing for a psycho just because he’s on your side.

                2. Antifa violence isn’t imaginary, fuckwit.

                3. ” reactions to an imaginary worse Antifa.”

                  You mean like what?

                  People driving cars into crowds of Trump supporters?
                  People assaulting others because they wear a MAGA hat?

        2. Trump’s fascist tendencies (which you obviously share) have been somewhat held in check by the fact that he’s running for re election. There’s no guarantee that would continue into a second Trump term. You may yet get the fascism you yearn for.

    2. And you can’t fail to think that if this was an Obama appointment, like a hardcore feminist, breaking up a traditionally conservative circuit that the tone of the article would have been “you go gurllll!” It probably would have included “action photos” of the “professional modern woman” breaking up “the old boys network” and “challenging authority” by doing things like calling for en banc votes when she didn’t agree with panels and working overtime by sending out memos after hours.

      But instead we get standard anti-Trump shoddy journalism…

  2. “You will see a sea change in the 9th Circuit on day-to-day decisions,” Smith predicted.

    What does that even mean? What are day-to-day decisions? What aren’t?

    If his intention is to exclude the prominent, politically charged cases, and only focus on the routine cases, I would think that the opposite is the case. Most cases that deal with routine legal issues are not going to be affected by the ideology of the judge. It is the politically charged ones where the difference is most felt.

  3. So, the 9th Circuit court had a reputation as being too out of touch with the rest of the country. Indeed, it had the most reversals by the SCOTUS of any circuit court, and the most unanimous reversals.

    A quick look shows that 19 non-Trump appointees who are current Circuit court judges, just 3 were appointed by a republican. Bush H.W. The recent appointments will bring the court more into line with the rest of the country. I’m sure it’s new to the old judges though.

    1. Edit. George W. Not H.W.

    2. The 9th circuit earned that reputation after President Carter nominated 15 judges to the 9th. Funny that our anon hero judge didn’t seem to have any issues with that history.

      1. So, that’s an interesting story. A big part of the reason that happened was the expansion of the court in 1978, which added 10 new circuit court judge-ships in the 9th district in 1978.

        That alone probably had a dramatic effect, both culturally (10 new judges being appointed at once) and from a political-point of view. Two of them held over till Obama’s

        Of those 10, 6 of the seats came up again under Clinton for reappointment, and, one held out till Trump, and 2 came up again under Obama (1 of which held out till Trump). So, of those ten 1978 judge-ships, 9 basically stayed “Democratic.” It had a massive effect.

  4. Last September, “sources familiar with the private Supreme Court deliberations” talked to CNN about the Census Case. It was not clear who spoke to the media.

    So maybe none of that creative writing exercise pretending to be ‘reporting’ should ever be considered?
    ‘Anonymous sources’ are no sources at all. If they won’t sign their name to it, it is not the truth.

    1. There used to be a time where journalist ethics would prohibit the use of “anonymous sources” without some high level of screening. Now a guy with a Twitter account pretending to be a whistleblower trashing Trump gets prime space on the MSM websites.

  5. Milan Smith is an example of the new wind Trump is blowing. He was 64 when he went on the court. 15-20 years older than the typical Trump appointment. No wonder he is bitter, seeing all these young guys when he is one foot in the grave.

    Plus, he only got his job because his brother was a US senator.

  6. This palace intrigue stuff has little substance to it.

    Except, perhaps as a tonic for the troops who want to play the old hit ‘Super Liberal Ninth Circuit.’

    1. “This post is so unimportant I’m going to post about how unimportant it is.”

      1. To be fair, none of sarcastros posts are ever important.

        1. To be truly fair, are any of our posts really that important?

          1. To be cosmically fair, is *anything* important?

              1. To you you are. Ashes to ashes, dust to dust.

                1. True.

                  Importance is in the eye of the beholder.

    2. I don’t know, I found the comment about their being a rule about late-night memos interesting. Even more, if in fact such a rule does exist, Blackman chose to mock it rather than shame the judge in question for violating it. So, judges can never speak on background (but no rule cited) and should be ashamed for doing so. But, when a comment is that a judge has violated an internal court rule (which is, at least, claimed to be a rule), then it’s the rule itself that should be shamed.

      I always learn something new from the Professor.

      1. There are a lot of “rules” that maybe aren’t specifically written as rules, but are things that courts are expected to follow. I don’t recall ever seeing a rule that a judge couldn’t wear googly-eye goggles while on the bench. But if a judge showed up doing that, I would understand people saying that it was a breach of courtroom decorum.

        Here, maintaining the appearance of impartiality and the rule of law means refusing to criticize the actions of new judges, avoiding treating the court as a political body, refraining from giving your own political views, and treating the court as a monolithic entity, rather than a series of judges who decide on their own whims.

        That’s a whole lot different than ridiculing a “rule” that likely isn’t actually a rule and, if it is, would be stupid one to follow. Particularly in a world of smartphones, computers, and telecommuting.

  7. “Judges cannot speak on background. Ever.”

    Shouldn’t that be the content of a stern email from Chief Justice Roberts to all federal judges? Is Roberts slacking in his job of supervising the judiciary?

    1. He has Sotomayors statement to worry about.

      1. Why should he worry about it?

        It was mostly a statement of facts.

        Is he going to send her to the principal’s office?

    2. Is Prof. Blackman quoting some federal rule here, or is that just his opinion? Why is it such a terrible thing if federal judges talk to reporters, on or off the record? I’m not sure I really understand the point of the post, other than possibly gloating about “liberal” judges’ discomfort at the new Trump appointees.

      1. It’s just clinger commentary destined to change course as soon as prevailing partisan purpose shifts.

        1. Fuck off, slaver.

        1. Thanks. I just read that. There’s not much explicit to cover the actions discussed in this blog. But this part of the code may apply.

          “However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.”

          This too might apply to discussions about internal deliberations.
          “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.”

        2. Thank you for that, Mr. Nieporent.

      2. I doubt there’s an express rule prohibiting judges from speaking on background; more likely it’s one of those unwritten norms that judges ordinarily follow (the kind of thing our current President likes to flout). My own politics lean to the left, but, based on many years’ experience as a staff attorney at a state supreme court, I think background comments by judges, particularly those that are critical of other members of the court, are a bad idea: They impair the collegiality of the court and are destructive of the court’s reputation by reinforcing the notion that judges decide cases based on their political views. Here, Judge Wardlaw’s comments seem OK, but those of Judge Smith and the judges who anonymously criticize Judges Collins and Nelson are, in my view, inappropriate. I agree with Blackman that Judges should never allow a reporter to describe views of that nature. Maura Dolan has been around for decades, and I don’t think she would have included those comments unless the judges who made them authorized her to do so.

  8. Leftists show themselves every day to be disgusting, disloyal, traitorous savages.

    1. yawn

  9. I wonder if Josh Blackman hasn’t understood that behavioral norms are just a phony pretense and that the left is empowered and encouraged to casually violate those norms whenever they like while simultaneously criticizing the right for even a hint at a potential violation.

    I remember when questioning an election was wrong in 2016. Then it became a calling card for the left — so common that no one even remarks on it any more.

    We’ve seen the same thing over and over. Anyone paying attention no longer takes any of the talk of behavioral norms seriously. We recognize it as just another form of partisan blather. Too bad for anyone who wants good behavior — but that’s what the US government sphere has become.

    1. I suspect that Prof. Blackman well understands the hypocrisy of “behaviorial norms” and that this post was written with a touch of irony. Talking about preserving the collegiality of SCOTUS in light of the Sotomayor outburst, and the emphasis on “Republican” and “Democrat” judges [pace CJ Roberts] are clues to that.

  10. Nelson, an Idaho lawyer who worked as general counsel for a wellness consumer goods company, did not respond to a request for comment.

    With that background, the Ninth Circuit must have been a consolation prize for losing out as Director of National Intelligence.

    1. A little research goes a long way.

      “Nelson previously served as a Deputy Assistant Attorney General in the Environment and Natural Resources Division of the United States Department of Justice and as Deputy General Counsel for the Office of Management and Budget. He also served as special counsel for the United States Senate Committee on the Judiciary and as a law clerk for the Senate Legal Counsel.”

      It’s fairly standard in line with previous appointed judges, who had government service

    2. The company he worked for has 1.2 billion in annual sales. A significant company for Idaho.

      Its general counsel would deal with HR issues, regulatory issues, financing, contracts, litigation and a host of other legal issues.

      Its just snobbery because its not Big Law litigation that this is not good judge training.

    3. The ABA, that hotbed of radical right-wing legal advocacy, rated him Qualified, and did so unanimously. Not their highest rating (which is Well Qualified), but certainly not some backwoods dunce.

      See here:

      https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.authcheckdam.pdf

  11. ” In other words they spoke on background, not for attribution. Judges cannot speak on background. Ever. ”

    Blackman has spoken.

    1. Be careful what you ask for. Yet another thing destined for downstream “weaponization against the left”?

  12. I just find it funny that Harry “Balls” Reid created this monster for the Left with his flagrant attack toward Senate traditions. Can’t say I am sad to see the results.

    1. When you sputter and mutter about enlargement of the Supreme Court, I will savor the moment, complemented by a barrel-aged beer.

      1. Heck, drink the full barrel.

      2. Will you also savor the moment when Republicans take the Congress and the Presidency in the next election after the initial Court enlargement and then triple the size of the Supreme Court?

        Where do you see this ending? Go ahead, declare war and launch the first volley. But, the results may be rather like when Japan did something similar almost 80 years ago.

        1. As America’s electorate improves — fewer rural, religious, bigoted, backward, and/or white voters — the prospects of Republican competitiveness in national elections diminish.

          The bigots don’t win, not over time, in America. Our national history is vivid on this point.

          1. Glad to see you agree that the Democrat bigots are doomed.

  13. So when libs say trump is destroying our institutions, they mean they’re destroying our institutions in the name of #resistance.

  14. I’m in agreement that federal judges ought not speak to the press about the personal relationships and drama that occurs in their court. My own view is that such conduct undermines the institution, and thus the very judge who is speaking. But that is a preferred standard, which is quite different from an actual rule, statute, or code of conduct.

    I am curious then what the basis is for Blackman’s claim, “In other words they spoke on background, not for attribution. Judges cannot speak on background. Ever. Generally, when a source says, “I am not authorized to speak publicly,” that statement suggests that, given the proper authorization, she could speak publicly. But judges can never speak publicly about internal deliberations.”

    The closest to a “rule” that I could find (in an albeit brief search) that might be applicable here is is Canon 3(4)(6) from the “Code of Conduct for United States Judges,” which is posted on the Administrative Office of the U.S. Courts website. That rule states:

    “A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.”

    I was not able to find anything in the Code of Conduct that refers to “speaking on background,” nor anything that explicitly states a judge may “never” do that. But, as Blackman has claimed such a rule (a judge can never speak on background) there must be something that I am missing. What the, is the basis for that claim?

  15. Pretty funny; Ginny Thomas is running a purge operation in DC and Prof Blackman is worried that judges are commenting on the ongoing R judicial takeover. And SCOTUS is now the court of first resort for the Trump administration unhappy with any DC decisions anywhere.

  16. Interesting: From the FRAP/9th Circuit rules:

    The Clerk utilizes a matrix composed of all active judges and those senior judges who have indicated their availability. The aim is to enable each active judge to sit with every other active and senior judge approximately the same number of times over a two-year period and to assign active judges an equal number of times to each of the locations at which the Court holds hearings.

    Interesting logic problem — say 10 novices of a different intellectual bent enter the “matrix.” It seems that they would rarely sit together, as they would have to cycle through the others (and if the two year cycle isn’t per-judge and rolling, catch up to the others). Inherently , the system privileges the politics held by a plurality of the judges.
    The newbies would always be either outvoted or split, assuming that everyone votes according to party-political principles. (But in this case, the real problem is in the minor premise.)

  17. You know, when I think about the judicial branch in the Trump era, the things that tend to cause me concern include things like judicial independence and continuing the rule of law. While I can accept that our courts will slant further to the right, due to the efforts of McConnell and whoever is picking these judges for Trump, I worry that a new slate of inexperienced judges with an inappropriately deferential view of Trump’s actions will expand the power of the president, limit the oversight abilities of Congress, and punt on an expanding number of issues for various existing and newly-invented reasons.

    That is bad for our country; it is bad for our freedoms.

    Josh, here, would prefer to write thousands of words on judicial decorum and the clerk-hiring process.

    More proof, if any were needed, that law professors are frauds.

  18. We told him to stop calling for en banc review and sending memos in the middle of the night. Nevertheless, he persisted.

    1. Somebody should point out to these judges that you can mute your phone when you go to bed, and not be woken by the notification when a text message arrives. It will still be waiting for you in the morning.

    2. Whew, good one.

  19. Thought about this on the walk from coffeehouse to rooms. Intuitive, and not a statistics guy, so probably wrong, but nonetheless:

    Let “Old Guard” = Y(1,2,3,…n)
    Let “Young Turk = X(1,2,3…n)
    Two systems: (1) Random; (2) Two year cycle without replacement

    Scenario 1: Y=29; X=1
    Random: Each 3 judge panel has a 1/10 chance of x(1).
    Cycle: x(1) will sit on 15 panels until re-cycling. (Assuming proceedings are short enough, and others freely rotate.)
    Statistically (perhaps?) even. But (1) when X sits with y(1) and y(2), the y’s judges know that they won’t have to deal with x(1) again for two years, and are less willing to bargain; (2) if cycles can’t be complete cycles, i.e., if not every y will sit with x, the chances of such a panel decrease each time x(1) sits in the determined rotation, but remain constant in the random panels.

    Scenario 2: Y=20; X=10
    Random: Each 3 judge panel will likely have 1 x; about 1/5 will have a plurality of X (1/3 X (2 x 1/3)) (Again, not a statistics guy. Likely wrong.)
    Cycle: X(1) sits with y(1); y(2). Y(1) will not sit with x(1) or y(2) again, but has roughly a 1/3 chance of sitting with an X, and a 1/5 chance of being in minority.
    Closer, but if not every judge can bat the cycle or ring the changes, with each panel with an x, y is going to be less willing to bargain, knowing that not only will x not recur, but in the future she is facing x(n-1), as opposed to random’s x(n).

    Again, likely wrong, not a math guy. Cheers.

  20. “daddy, it’s starting!”

  21. Blackman is wrong.

    Internal proceedings SHOULD be leaked. ESPECIALLY if they put a member of the judiciary in a bad light.

    The public has an absolute right to know how the sausage is made. Judges are entitled only to lifetime appointments, but not secrecy.

    The best disinfectant is sunlight.

    1. I too wonder what the justification for all this secrecy is.

      If judges find the details of their deliberations embarrassing maybe they should change the way they go about it.

    2. I think it’s hard to make a case for “leaks.” Leaks are far too often strategic, and, worse yet, often an alliance between the media and the leaker. The above post was, largely, a commentary on how rare such leaks are (andfor that as well as other reasons) inappropriate. When the LA Times and the left-leaning judges who are losing their long time control over the court combine to leak, then one can reasonably ask why. Requiring deliberations to be open would be a preferred choice, and would the LA Times refusing to publish off-the-record or effectively anonymous quotes. Even better, a complete transcript of the LA Times’ interviews should be published.

  22. Maybe this is another sign that the 9th circuit needs to be broken up.
    https://www.cato.org/publications/commentary/split-ninth-circuit-not-because-its-liberal

  23. Sounds like some right wing judges need a safe space

    1. They have the Volokh Conspiracy

    2. They’re not the ones whining like a stuck pig.

  24. Poor Democratic judges in the 9th don’t get to legislate from the bench anymore.

  25. The LA Times has done a tremendous disservice to the Judiciary. I have to wonder: Is there an unstated agenda in choosing to write this story?

    I was quite surprised to read of the quotations of active judges discussing other judges on the bench. What does that do to the collegiality that we are told is so prized, and so prevalent in the judiciary. It undermines good working relationships and trust. Why would a sitting judge ever want to do that?

    If ever a time for Chief Justice Roberts to issue a stern rebuke, this is it.

    1. He only rebukes President Trump. Not Obama calling him a hack to his face, or his FISA court underlings supporting the Federal Class in their unlawful political spying on Candidate Trump.

  26. More leftist whining. If you disagree with them there’s something wrong with you, not them. Then they’ll call you fascists (without understanding its meaning, racist and______ (fill in the blank).

    1. Yeah, people on the right never impugn the motives or patriotism of people with whom they disagree.

      1. People who do not wish to be called racists should ditch the racism.

        Otherwise, they should wear it. As frequently as can reasonably be arranged.

        Reject political correctness, such as enabling bigots to hide behind euphemisms such as “traditional values,” or “color-blind,” or “heartland,” or “family values,” or “Republican.” Call a bigot a bigot.

        1. Yes, you should ditch the racism, you fucking bigot.

  27. As a Texas lawyer and a canoeist, I find accretion and avulsion interesting concepts, especially when coupled with Texas law of navigable streams.

    When employed by the Texas General Land Office, which among other things administers the state’s ownership of the beds of navigable streams, I was part of a team sent to look into a dispute between abutting owners on the north side of a river. They both asserted ownership of a river island. Our conclusion was that the island was a headland cut off from the south bank by an avulsive event. If so, it belongs to the owner of the south bank. But it was small and of no use to him.

  28. Some crybaby hack-in-blacks crying they cant push their activist nonsense on the rest of us.

  29. If these leakers were respectable, they’d simply donate their judicial papers to some university archive. They wouldn’t talk to icky *journalists* with an *agenda* which readers will have to assess for themselves.

  30. I would like this post better if it also advised the new appointees to show a little patience, humility, and institutional respect, not to rush in and try to change everything at once, not to show contempt for people they disagree with, not to ask to recuse judges just because you disagree with them, and generally not to engage in behavior that might cause more senior judges of a different philosophical bent to want to complain to the press about you.

    Judges are human. The new appointees need to show they are members of the independent judiciary, not the President’s personal representatives or yes-men. That means they need to show the existing judges some respect.

    1. And yes, they probably haven’t violated any written rules. But that’s not the point. Civil institutions, like civil societies, can’t long endure on written rules alone. If you get into a leadership position, more is expected of you than just not violating any written rules.

  31. “If Ninth Circuit judges feel talkative, there is a far more pressing topic that warrants their comments: Judge Reinhardt.”

    Newbie mistake.

    Ninth Circuit judges accused of impropriety get a pass at the Volokh Conspiracy. Just ask the proprietor. Or former judge Kozinski.

  32. NPR picked this story todate up and dressed it up.

    Fact: there are more judges appointed by democratz than republicans 16 vs 13.

    Assertion (questionable?): For the last couple of decades the 9th has been more centrist.

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