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Is Splitting the Ninth the Answer? (What Was the Question?):

Is there anything wrong with the Ninth Circuit? Anything that splitting the Court would solve? For more on these questions see this post at SCOTUSBlog by Ben Winograd and this post by Ethan Leib on Prawfsblawg.

Dave N (mail):
If you practice outside of California but in the Ninth Circuit, a Circuit split would assuredly reduce (if not eliminate) the possibility of having either Judge Pregerson or Judge Reinhardt on your panel.
7.12.2007 8:47pm
franklyn a:
19 reversals out of >6000 cases is ~0.3%. That just doesn't strike me as a very high percentage or something in need of a fix.

As a non-lawyer, when i read about the 9th circuit court &its reversal rate, the issue comes across as the 9th being one of those entities that conservatives "love to hate".
7.12.2007 9:47pm
Attila (Pillage Idiot) (mail) (www):
I once came across a case in which the Ninth Circuit confronted an en banc decision on the disputed issue, which had been followed by six panel decisions that not only differed with the en banc decision but didn't even mention it. (The court proceeded to ignore -- I mean, distinguish -- the en banc decision and go with the panel decisions.)

Splitting the circuit, in my view, would reduce, prospectively, the number of precedents the judges would have to keep up with, and there would be somewhat greater fidelity to those precedents.
7.12.2007 10:37pm
c.f.w. (mail):
How about reform the Senate to proportional representation? In 2004, top 20 states (40% of states) had 75% of population. If a referendum were held nationwide - as is done routinely in CA - I suspect 75% of voters (or more) would agree to amend the Constitution to elect senators like we do members of Congress (say 1 Senator for every 1 million people, with no state to have less than 1 Senator).

The problem here is the USSCT is off the beam more than the 9th Circuit, I suspect. That could change with a sort of nullification by the popular will of the 2 Senators per rule - which gives people in nine states with less than 1 million persons in each state vastly superior enfranchisement over the people in the top 20 states.

The written amendment procedures in the Constitution can properly be ignored here, because they are undemocratic - giving small states veto power over the top 20 states, for what reason? The old reason was slavery, in large part, but that issue is gone.
7.12.2007 11:35pm
Dave Hardy (mail) (www):
Can they put Arizona in the part that gets Kozinski?

I've had several cases in the 9th. In two of them, it was apparent that the judges had not bothered to read the briefs. In the other two, they had. One of them, however, split with two or three prior panels (down to holding a prior decision was no longer good law, in the face of a Supreme Court ruling ... which another panel had held was good law, after that ruling.)

One of those in which they hadn't read the briefs -- involved a very narrow issue, and so the brief's argument was but seven pages long. They completely ignored argument I (which was supported by some modest authorities such as the face of the statute and two on-point rulings), discussed only argument II, even tho both were utterly independent bases for reversal.
7.13.2007 1:29am
BruceM (mail) (www):
You can't only focus on reversals. YOu have to focus on implicit affirmations, that is, when there is a circuit split and the SCOTUS grants cert on the issue from a different circuit court with whom the 9th agrees, and affirms that court implicitly affirming the 9th circuit, too. For example, there is a circuit split and the 1st, 3rd, 5th, 7th, and 9th circuits go one way, and the 2nd, 6th, 8th, 10th, and D.C. circuit go another (the other circuit courts have not addressed the issue). The SCOTUS grants cert on a case from the 7th circuit and affirms it. That means the 9th circuit was affirmed too, while the 2nd, 6th, 10th, and D.C. circuits were implicitly reversed.

I remember reading a statistic (i wish I could remember where) that showed when you factor in such implicit affirmations, the 9th circuit is not the most reversed circuit court of appeals and is in line with all the other 11.

So, I don't buy the "fact" that the 9th circuit is reversed so much more than all the other federal circuit courts.
7.13.2007 2:30am
Kieran Jadiker-Smith (mail):
I'm opposed to a split of the Ninth Circuit until science can clone Judge Kozinski. Or at least until a president appoints someone with an equally, er, appealing accent.
7.13.2007 3:36am
Dave N (mail):
s.f.w. has made the same proposal twice in several days. However, the beauty of the Constitution is to give power to the smaller states. Fortunately, the Constitution is resistant to the blatant power grab he proposes.
7.13.2007 11:19am
Dave N (mail):
my apologies. I was responding to "c.f.w."
7.13.2007 11:20am
Dave N (mail):
BruceM--I would be interested in seeing that statistic.
7.13.2007 11:22am
Hattio (mail):
Dave N,
Exactly. Why does he think smaller states would go along with this???
7.13.2007 1:10pm
Jeff R.:
Note that cfw's proposal is even less likely to happen than your standard, run-of-the-mill constitutional amendment, since Article V gives each individual state veto power over any amendment that would give it less-than-equal Senate representation.

(And I'm sure that an amendment that changed the Senate representation rule and simultaneously redacted that portion of Article V wouldn't pass the smell test even on a windy day.)

(Which is why, most likely, he proposed discarding the Constitution itself in favor of implementing mob rule. So that a more democratic senate could screen Supreme Court Judges more capable of defending the now-nonexistent Constitution...)
7.13.2007 1:44pm
theobromophile (www):

I'm opposed to a split of the Ninth Circuit until science can clone Judge Kozinski. Or at least until a president appoints someone with an equally, er, appealing accent.

Maybe we can mandate that new appointees spend time in Bucharest before investiture.
7.13.2007 4:48pm