Posted 10:43 AM by Robert

Divide The Ninth Circuit To Make It Less Immodest III

Prior posts in the Man Without Qualities (here and here) have taken strong exception to an article in the Wall Street Journal by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas objecting to the proposed division of that Court. Now the Journal has published a letter by two other, more sensible, Ninth Circuit judges expressing exceptions substantially similar to those expressed here (albeit expressed with an appropriately more judicial, restrained tone). From the Wall Street Journal - November 23, 2004; Page A19"

Congress has a strategic opportunity to do what it has been discussing since long before we were appointed circuit judges by Presidents Reagan and Clinton: reorganize the Ninth Circuit. Compared with the other federal appellate courts, the Ninth Circuit Court of Appeals employs more than twice the average number of judges, handles almost triple the average number of appeals, and is fast approaching three times the average population served.

Last month the House passed and sent to the Senate a bill to restructure this goliath into three: a Mountain Circuit comprised of Arizona, Nevada, Montana and Idaho; a Pacific Northwest Circuit of Oregon, Washington and Alaska; and a new Ninth Circuit of California and Hawaii, which, as reduced, would still be the largest circuit in the country in population, caseload and judges. Nevertheless, in a Nov. 10 Rule of Law commentary ("Don't Split the Ninth Circuit!"), two of our colleagues, Judges Alex Kozinski and Sidney R. Thomas, spied skullduggery afoot. Congressional progress, they say, was "by stealth and procedural manipulation." House passage last month, they say, was a "surprise move before the Nov. 2 election." And the purpose of the split, they say, was for the "increased convenience of a few judges."

Contrary to our colleagues' challenge, this largest federal judicial circuit in the nation has been the subject of lengthy and repeated hearings in the current as well as prior sessions, congressionally mandated study commissions, white papers and even passage in certain sessions by one body of Congress or the other; now is the time for the Senate to act. A substantial number of circuit and district judges support the legislation. More importantly, in statements to the White Commission, four justices of the Supreme Court have advocated restructuring as well. In any event, Congress ordains the creation and structure of federal courts; judges don't get to do that under the Constitution.

By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size.

The 47 judges who hear and decide Ninth Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague's dispositions while simultaneously resolving one's own assigned cases.

Smaller circuits would allow us to correct more of our mistakes. The Ninth has grown to such a size that it cannot perform the en banc (or full court) review process that is an important error-reviewing function for every other court of appeals. Even the roughly two-dozen cases that are reheard each year are not subject to a true en banc process. The Ninth Circuit is simply too big to rehear an erroneous three-judge panel decision as a full court. Instead, we are the only circuit to sit on "limited" eleven-judge en banc panels drawn by lot, so that a "majority" consists of six judges who may actually represent the minority view of the full court. It is unacceptable in a democracy that a mere six judges could potentially override the views of the other twenty-two active judges.

Diarmuid F. O'Scannlain
Richard C. Tallman
U.S. Judges for the Ninth Circuit
Portland, Ore.

Judges O'Scannlain and Tallman demonstrate persuasively that some judges on the Ninth Circuit can get things exactly right.

Posted 10:14 AM by Robert

Why Not Change "Democrats" to "Predictables"!?

From the Man Without Qualities - November 13, 2004:

How long will it be before the Democrats decide that the real problem was in the primary schedule, convention date and rules, and other minor procedural matters - as they have after every disaster since 1968 - and again start spending way too much time and energy running down those dead ends?

From Boston.com - November 24, 2004:

Democratic National Committee Chairman Terry McAuliffe is on the verge of appointing members to a national Democratic commission that will consider whether the primary calendar should be changed for the 2008 presidential election. U.S. Sen. Carl Levin of Michigan, whose pressure helped create the commission, hopes it will challenge Iowa and New Hampshire's status as the leadoff states. Iowa holds its presidential caucus first, usually in mid-January, followed eight days later by the New Hampshire primary, a schedule that's followed by the Republican Party as well. .... "Most states think there ought to be fairer system where no state or two states have a privileged position every four years," Levin said Wednesday. "We're not a party of privilege. We don't like people having privileged positions. And that applies to our own primary and caucus system, I would think." Dingell, who's married to U.S. Rep. John Dingell, was more critical of the part Iowa and New Hampshire played in this year's election. Both states helped Massachusetts Sen. John Kerry win the Democratic nomination, but President Bush narrowly won Iowa in the Nov. 2 national election and nearly won New Hampshire on his way to defeating Kerry.

From Opinion-Journal - The Grassroots Can Save Democrats by Joe Trippi:

[T]he problem for Democrats is not Mr. Rove; it's that they're doing the same thing over and over again, expecting a different result. That's the definition of insanity.

On the other hand, Mr. Trippi's support for Howard Dean (Mr. Trippi managed Howard Dean's presidential campaign) again demonstrates that the definition of "insanity" has many application in the particulars. The path Governor Dean and his supporters took itself seems a lot like the path taken by George McGovern and his supporters - the same thing over and over again, expecting a different result.

MORE: On the Trippi disconnect.

Posted 9:43 AM by Robert

Parallel Lives

From The Haunting of the Presidents - A Paranormal History of the U.S. Presidency:

Publicly, Richard Nixon professed no interest in the paranormal or supernatural. Privately, he had more contact with the subject than people ever realized. We said earlier that when Nixon was besieged by the Watergate scandal he roamed White House corridors at night talking to portraits of late Presidents, perhaps hoping for advice from their spirits.

From The Hollywood Reporter - Rather deserves respect By Ray Richmond (link from DRUDGE):

Describing his love of CBS and CBS News, Rather observed in the interview last year: "In my mind and the minds of the people I work with, this is a magical, mystical kingdom -- our version of Camelot. And we feel we are working at a kind of roundtable of King Arthur proportions. Now, it may be that this kingdom exists only in our minds. But that makes it no less real for those of us who live it every day." And then there was this: "Ed Murrow's ghost is here. I've seen him and talked to him on the third floor of this building many times late at night. And I can tell you that he's watching over us."

From The New York Daily News - Dan's fall is Nixonian by Michael Goodwin:

To the end, Gunga Dan liked to play the part of the crusading journalist, a regular reporter just digging up the facts. That was his TV persona. In real life, his hubris made him more like Richard Nixon than Walter Cronkite. And like Nixon, the coverup was his downfall.