9th Circuit, Federal Judges, Politics

Is The 'Nutty Ninth' Circuit Coming To Its Senses?

Is the court that conservatives love to hate turning a corner?

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The Ninth Circuit courthouse in Pasadena.

The Ninth Circuit courthouse in Pasadena.

Last week’s saucy footnote was a classic Ninth Circuit dust-up. Judge Diarmuid F. O’Scannlain, a leading conservative on that court, chastised his liberal colleagues for “sp[inning] out of the known legal universe and now orbiting alone in some cold, dark corner of a far-off galaxy, where no one can hear the scream ‘separation of powers.'”

But will such deliciousness, the color and controversy that make the Ninth Circuit worth writing a novel about (affiliate link), fade away over the years? Check out this fascinating and insightful piece by noted appellate lawyer Ben Feuer, chairman of the California Appellate Law Group and a former Ninth Circuit clerk himself (to Judge Carlos Bea), in the Los Angeles Times:

The U.S. 9th Circuit Court of Appeals, based in San Francisco, has long been the court conservatives love to hate.

Rush Limbaugh calls it the “Ninth Circus.” Right-wing bloggers refer to the “Nutty Ninth.” There’s even an illustrated children’s book titled “Help! Mom! The Ninth Circuit Nabbed the Nativity.” (affiliate link).

The court’s reputation for leftist judicial activism is so legendary that conservative groups mount perennial efforts to split up the 44-judge court, the largest in the nation. In 2011, Newt Gingrich called for abolishing the “anti-American” circuit outright.

The past eight years of appointments by President Barack Obama could have set the court up for another generation of dual-barreled progressivism — and commensurate conservative loathing. But that’s not how it seems to be turning out. Instead, the 9th Circuit seems to be growing more centrist.

Will conservatives not have the Ninth to to kick around anymore? If so, it will be due in large part to leading liberals taking their leave, Feuer explains:

The last of the Carter-appointed judges are now retiring, or at least taking partial retirement (so-called “senior status”). [Judge Harry] Pregerson, 92, went “senior” in 2015. [Judge Stephen] Reinhardt, 85, is the only active Carter-appointed judge left on the court.

There are, to be sure, younger liberals who are willing to assume Judge Reinhardt’s mantle. See, e.g., Judge Marsha Berzon, the Darth Vader to Reinhardt’s Emperor Palpatine.

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But Judge Berzon is a (Bill) Clinton appointee. It seems that liberals don’t have much to thank Obama for when it comes to their beloved Ninth:

Obama’s appointees have been less predictably left-leaning [than the Carter appointees] in their judgments, particularly on criminal matters. Nearly 60% of Obama’s 9th Circuit appointees are former criminal prosecutors (a percentage that will increase if Lucy Koh, nominated in February, is confirmed). By contrast, about 30% of President Clinton’s appointees and 20% of Carter’s appointees served as criminal prosecutors.

This shift is notable because lawyers who work for the government’s enforcement wing, in particular criminal prosecutors, have a conceptually different approach to law than other lawyers. Many private litigators, public interest lawyers and some government lawyers (like public defenders) often further their clients’ interests by looking for holes in established law and ways to challenge legal precedents. Prosecutors, by contrast, generally focus on enforcing precedents and plugging holes: After all, their client is the government, the embodiment of established law.

Very true, and very well-put by Feuer. This analysis explains why many progressives would love to see a former defense attorney — say, Judge Jane Kelly (8th Cir.) — on the Supreme Court, to balance out the former prosecutors and government lawyers.

So what does this all mean in the end? Here is Feuer’s bottom line:

Ultimately, because the 9th Circuit has grown more centrist, it’s the next president’s picks that could have an outsized effect. A slew of strong conservative or liberal appointees could noticeably move the court’s political median and renew existential battles over its future.

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Hillary Clinton is far from the left’s dream candidate. But if liberals want to keep the Ninth Circuit in their corner, it’s time for them to get with her.

P.S. Disclosure: I clerked for Judge O’Scannlain (and I’m looking forward to seeing him later this month at the law clerk reunion celebrating his 30th anniversary on the bench).

California’s notoriously liberal ‘9th Circus’ court of appeals is growing more centrist

Earlier: In The Ninth Circuit, Nobody Can Hear You Scream
I’m With Her… I Guess

David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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