Recently in Federal Courts Category

As we have noted on this blog multiple times, the Supreme Court has often (and correctly) rebuked the Court of Appeals for the Ninth Circuit for failure to follow the standard for reviewing state criminal judgments prescribed by Congress and elaborated by the Supreme Court. A growing minority of judges of the Ninth Circuit itself are rebuking their colleagues on the same point, and the dispute is getting increasingly strident. Here is the opening of the dissent from denial of rehearing en banc in the Arizona capital case of Kayer v. Ryan, No. 09-99027:

Application (19A230) granted by the Court. The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court's July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment. JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from grant of stay.

U.S. Attorney General William Barr has this op-ed in the WSJ with the above title. The subhead is "The Dreamers case shows how willful courts can ruin the chance for political compromise."

When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered.

*      *      *

That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life,not for eternity.

With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt's death but subsequently withdrawn, see supra, at 1 n., we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time.

It's springtime, and we all know what blooms in the Spring.  That's right, amendments to the rules of procedure for federal courts.

The odd system for these rules is that the Judicial Conference recommends them to the Supreme Court, the Court adopts them (as recommended or with its own alterations) tentatively by sending them to Congress before May 1, and if Congress does nothing by December 1 they take effect.

The amendments are on the Supreme Court's order page.

The amendment to Rule 41 of the Appellate Rules is noteworthy.  It addresses abusive delay in issuing the mandate.  The Judicial Conference explains:

The proposed amendments to Rule 41 (Mandate: Contents; Issuance and Effective Date; Stay) would revise subdivision (b) to clarify that an order is required for a stay of the mandate - the court of appeals cannot delay issuance of the mandate by mere inaction. It would also renumber subdivision (d)(2)(B) to subdivision (d)(2), and would address a potential gap in the rule by amending subdivision (d)(4) (former subdivision (d)(2)(D)). The proposed amendment to subdivision (d)(4) provides that a mandate stayed pending a petition for certiorari must issue immediately once the court of appeals receives a copy of the Supreme Court's order denying certiorari, unless the court of appeals finds that extraordinary circumstances justify a further stay. Also, the reference in prior subdivision (d)(2)(D) to the filing of the Supreme Court's order is replaced by a reference to the court of appeal's receipt of a copy of the order for greater clarity.

See Arizona's certiorari petition in Ryan v. Poyson, No. 17-1274.

One-fifth of America's population lives in the Ninth Circuit, and for most federal cases the decision of the Court of Appeals is the last word.  The Supreme Court can only take a small fraction of the cases.  The Ninth Circuit is out in left field and has been since a major expansion of the court allowed President Carter -- and Senator Alan Cranston -- to pack its left wing in the late 1970s.

One would think that fixing this court would be a major priority for a Republican administration, but as I noted here a few months ago, that has not been the case.

The court is authorized 29 active judgeships.  There are seven vacancies, with an eighth coming in August.  Simply counting the Ds and Rs, the court is presently 16-6, so 7 more Rs would bring it to 16-13, decently close to balance.  But it is more complicated than that.  There is considerable variation among the Ds.  Some are reasonable and will rule according to precedent when it is clear, and others are simply searching for an excuse to reach the Politically Correct result.

One very large problem at present is the persistent failure of the Ninth Circuit to grant rehearing en banc to rein in a rogue panel when it issues a clearly wrong decision with a Politically Correct result, such as the one summarily reversed by the Supreme Court this morning.  Although only five currently active judges joined the opinion dissenting from rehearing en banc, I will bet there were others who voted that way without joining the opinion.  (The actual votes are not disclosed, and some judges do not approve of the practice of issuing opinions on these votes.)  If all seven vacancies were filled with persons of sense, we would have a real shot at correcting the Ninth's more egregious panel errors with rehearings en banc.

At present, we have only two nominees for seven, going on eight, vacancies.  Both the White House and the Senate need to put the pedal to the metal to get them filled.  That said, they must be careful to insure that they are filled with people possessed of common sense, integrity, and devotion to upholding the Constitution that the people enacted, not one made up by judges.

The United States has sued the State of California in federal district court in Sacramento, the state capital, seeking a declaration that three state statutes enacted for the specific purpose of hindering enforcement of federal immigration law are unconstitutional.  The case is United States v. California, et al., 2:18-cv-00490-JAM-KJN, U.S. District Court for the Eastern District of California, assigned to Judge John Mendez.

California moved to transfer the case to the Northern District, headquartered in San Francisco.  The ostensible reason is that there are common questions with the grant-money cases already going on there.  The real reason is that the Northern District would assign the case to Judge Orrick, whose rulings to date demonstrate that he is so vehemently on their side that he is essentially a member of The Resistance.  See this post.

This morning Judge Mendez denied the motion.

Update:  The hearing on the preliminary injunction is set for June 20.

Alex Swoyer reports for the Washington Times:

The Senate confirmed another one of President Trump's Circuit Court nominees on Tuesday over "blue slip" protests from Democrats, who said the nominee never should have been given a hearing, let alone a vote.

Minnesota Supreme Court Justice David Stras was confirmed to the 8th U.S. Circuit Court of Appeals by a 56 to 42 vote, becoming Mr. Trump's 13th Circuit Court pick to clear the Senate.

But Democrats said Justice Stras was only placed on the federal bench after Republicans disregarded the "blue slip" tradition, which allows home state senators to sign off on judges from their home states.

Congressman Trey Gowdy has announced he will not seek reelection, Reid Epstein reports for the WSJ.

On Wednesday, Mr. Gowdy said he would be "returning to the justice system."

"I will not be filing for re-election to Congress nor seeking any other political or elected office," he said. "Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system."

Surely he is not worried about reelection if he chose to run.  His district is solidly Republican.  He must have something else in mind.

Hmmm.  "Returning to the justice system," but not any "political or elected office."  The latter rules out his old job as local prosecutor or a run for state attorney general, which are both elected offices.  The federal judicial vacancy website lists one current vacancy on the Fourth Circuit with no nominee and one upcoming vacancy.  There is a South Carolina District Court vacancy, but it has a nominee already.

Does Mr. Gowdy have his eye on the Fourth?  He would be a definite improvement to a court that has gone downhill lately.

There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.