JUDGE O’SCANNLAIN SPEAKS AT FEDERALIST SOCIETY MEETING: Today I attended a meeting of the Los Angeles Federalist Society, at which Ninth Circuit Judge Diarmuid O’Scannlain gave a talk on splitting the Ninth Circuit. Among those in attendance were Ninth Circuit Judge Alex Kozinski, and Bush nominee Carolyn Kuhl.
Judge O’Scannlain began by noting Judge Kuhl’s pending nomination, and stating his belief that judicial confirmations are far more difficult today than when he was confirmed in 1986. He said that only 6 weeks passed from the day that President Reagan first called him to inform him of his nomination, to the day he was confirmed by the Senate. He acknowledged that the confirmation process has since become much more difficult. He said that he hopes Judge Kuhl will be confirmed soon — a statement that received a warm round of applause from those in attendance.
Judge O’Scannlain then moved on to his main topic: splitting the Ninth Circuit. Many of the reasons he cited in favor of splitting the circuit were similar to the reasons he gave in this interview with Howard Bashman. Judge O’Scannlain distributed a handout with numerous charts demonstrating that the Ninth Circuit is unique in terms of its size, geographical breadth, and heavy caseload. In addition to workload concerns, the huge size of the circuit creates the danger of inconsistent precedents. For these reasons, Judge O’Scannlain clearly believes that a split is going to happen sooner or later.
What interested me were some of the non-statistical arguments he made in support of a circuit split. For example, he cited the recent en banc decision allowing the California recall election to go forward as an argument in favor of a circuit split. Judge O’Scannlain reminded the audience that he was on the eleven-judge en banc panel which voted unanimously (11-0) to allow the election to go forward. But, he noted, the original panel was unanimous (3-0) in favor of the opposite result. In light of that fact, Judge O’Scannlain wondered whether the judges on the en banc panel were truly representative of the entire circuit. He noted that there were more than 11 active judges who participated in neither the original decision nor the en banc decision — enough to form a completely different en banc panel that could (in theory) come to a different decision. Judge O’Scannlain favors a small enough circuit that all active judges can participate in an en banc panel without its becoming too unwieldy.
Judge O’Scannlain also said that he thinks there is more recent momentum in Congress favoring a circuit split because of the Pledge of Allegiance case. He said that this was a bad reason to split the circuit, and that the case for the circuit split should rest on the statistical arguments he gave, not on the existence of cases like the Pledge of Allegiance case. The Ninth Circuit’s reversal rate was another factor that Judge O’Scannlain said should not be considered as a valid reason to split the circuit.
Judge O’Scannlain discussed some of the different proposals for splitting the circuit, which he had already discussed at length in his interview with Howard Bashman. Judge O’Scannlain said that, in his opinion, much of the angst over the precise manner of splitting the circuit was unnecessary. After all, he said, the new Twelfth Circuit would almost certainly adopt Ninth Circuit precedent as its governing precedent on day one — just as the Eleventh Circuit had adopted Fifth Circuit precedent on the first day after the split of the Fifth Circuit. Also, he noted that any of the proposed splits would still result in a majority of Democratic appointees in the new circuits.