The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."