Notice & Comment

Ninth Circuit Review-Reviewed: Is CA9’s En Banc Process Driving Disagreement?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business.

CA9’s En Banc Process Is Broken . . . 

A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth Circuit’s en banc procedures have become a driver of dysfunction and disharmony. 

Before I get to my point, here’s a quick refresher on CA9’s en banc process. In the Ninth Circuit, the full court (29 active judgeships) votes whether to grant a party’s petition (or a judge’s request) for an en banc rehearing. If a majority (of the full court) grants the petition/request, then the rehearing is performed by a subset panel of 11 judges, comprised of the Chief Judge and 10 additional judges drawn by lot. Those are the rules of the game. 

Yet recent media reports suggest these rules are being gamed. Earlier this year, based on interviews  with anonymous CA9 judges, the LA Times reported that “Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans.” 

Got that? According to the LA Times, members of the court’s Democratic majority (16 of 29 active judges) would deny a rehearing rather than risk the ~30% chance that an 11-judge en banc bench would draw a majority of Republican appointees. 

I think we witnessed this unfortunate phenomenon last month, when the full court refused to rehear Vega-Anguiano v. Barr. Setting aside the facts and law of this immigration controversy, the important point is that 12 judges dissented to the court’s denial of an en banc hearing. Mind you, there are about 12.5 active judgeships on the average U.S. Circuit Court of Appeals (excluding CA9). Think about that! In other jurisdictions, 12 agreeing judges likely reflects a unanimous court and yet, in the Ninth Circuit, 12 judges can’t get a rehearing. 

Worse still, the divide falls along partisan lines. All 12 of the dissenting judges are Republican appointees. These threshold votes aren’t public (other than when judges sign onto a dissent or concurrence to the denial of a rehearing), so we don’t know if it was a straight party-line vote. But we know that 12 of the 13 Republican appointees dissented, so the vote was, at the very least, very nearly along partisan lines, if not entirely. 

The bottom line is that the court’s actions are bearing out the LA Times’s reporting about the influence of political gamesmanship on en banc procedures. That’s worrisome, because this broken process is worsening divisions on CA9, as is explained in the next section. 

. . . And It’s Getting Worse 

In Vega-Anguiano v. Barr, the 12 dissenting judges didn’t gently demur. Instead, they joined a scathing dispositionauthored by Judge Mark Bennett. In this fashion, the minority accused the court of “rewrite[ing] the statute, and “then work[ing] backwards to rationalize the rewrite through a series of inaccurate and internally inconsistent statements.” 

Before, I’ve speculated that there’s been a rise in sharply worded dissents to the full court’s denials of a rehearing. More broadly, I worried about how these opinions affect collegiality. Now, however, I’m wondering about the role played by the Democratic majority’s reported hardball. If, as I suppose, it’s common sense for the full court to rehear a case whenever a dozen judges so desire, then it would be frustrating to be among the 12 spurned judges. And that frustration could spill into harshly worded dissents. 

The upshot is that there seems to be a feedback loop driving division on the Ninth Circuit. The arrival of Trump appointees incurred distrust from the old guard, who are now gaming the en banc system. Thus stymied, the new judges lash out in dissents, which further drives distrust. Rinse, wash, & repeat.  

I’m alarmed, but I’m also unsure what can be done. Judicial limits are mostly a function of informal norms regarding propriety and restraint. Simply put, there is little to stop Article III judges from coloring their decisions with political strategy, if that’s what they want. Alas, such coloration seems to be at play in CA9—even beyond the en bancshenanigans described in this section. To wit, the LA Times last month published yet another blockbuster report based on anonymous interviews with sitting judges, which is the subject of the next section. 

CA9 Judges (again) Dish to LA Times

In a front-page article published on November 30th, the LA Times reported that “some federal judges postponed retirement plans rather than give President Trump the opportunity to name more conservatives to the nation’s powerful appeals courts.” According to one anonymous CA9 judge, “Clinton judges across the country have just been holding on” for a Democratic presidency. A different CA9 judge cautioned that “[t]he real issue is going to be the Senate.” The implication—as stated by the LA Times, was that “getting like-minded liberals past a Senate Republican majority probably would be challenging.”

It’s a troubling piece. I’m not a member of either political party nor any legal association, so maybe I’m naïve. But it’s shocking to me that judges could think in such starkly partisan terms, as if judgeships are assigned to the two factions. I’m even more shocked that multiple judges would convey these sentiments to the press. Regardless, the article lends further credence to the notion that CA9 has become polarized to an unhealthy degree. 

Divisive Dubitante 

Judge Lawrence VanDyke is the newest member of the court, having assumed office in January of 2020. His lack of seniority creates a striking background to his scorched earth dubitante opinion in Sanchez Rosales v. Barr

VanDyke wrote separately that the court’s precedent “is silly and well illustrates our court’s nasty habit of muddying immigration law.” Far from being an isolated case, he wrote that “this type of absurdity is regular fare in our immigration cases.” Overall, VanDyke described “[o]ur circuit’s immigration jurisprudence” as being “a hot mess.”

Though I largely agree with his sentiment, I’m skeptical of his tone, which seems too sweeping and pusillanimous. As a general matter, Judge VanDyke’s opinion lends further credence to the narrative of a divided court, where luck of the draw (on a three-judge panel) is more important than the quality of either party’s legal arguments.

William Yeatman is a research fellow at the Cato Institute

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