HLPR Blog: Notice and Comment

By Daniel Cotter*

On October 31, 2019, the House voted along party lines, 232-196, to formalize the impeachment inquiry procedure.  Republicans had insisted that the process must be formalized and that a vote was required before the House could conduct an impeachment inquiry.  That insistence is misplaced and is a myth of the impeachment process that is not supported by the Constitution or by the past impeachment processes of the presidents.                                                                                           

Andrew Johnson

President Andrew Johnson was the first president to be impeached.  His impeachment process moved quickly from his action on February 21, 1868, when Johnson fired Secretary of War Edwin Stanton without congressional consent, in violation of the Tenure of Office Act.  Three days later, the House voted along party lines, 128-47, to impeach Johnson.  There was no impeachment inquiry, and on February 29, 1868, the House committee reported ten articles of impeachment.

Richard Nixon

President Richard Nixon was only the second president for whom the House began to consider the question of impeachment.  In his case, the process took place mainly out of the public eye even though we tend to remember the televised investigations.  On October 30, 1973, ten days after the Saturday Night Massacre, the House Judiciary Committee voted, 21-17, to give its Chairman, Peter W. Rodin, Jr., the power “to issue subpoenas without the consent of the full committee.”  For the next several months, until February 6, 1974, when the House formalized the impeachment inquiry by a vote of 410-4, the Judiciary Committee operated mostly in private.

On February 6, 1974, the House passed Resolution 803,  which “provid[ed] appropriate power to the Committee on the Judiciary to conduct an investigation of whether sufficient grounds exist to impeach Richard M. Nixon, President of the United States.” But even after the vote, the House Judiciary Committee operated mainly in closed session.  On May 9, 1974, the House Judiciary Committee opened public hearings on the question of impeaching President Nixon.  The open hearings lasted for twenty minutes.  As Woodward and Bernstein wrote in their book, “The Final Days”:

“At 1:08 P.M., Chairman Peter Rodino brought down the gavel to open the House Judiciary Committee’s formal hearings on impeachment. The ceremony, following seven months of staff investigation, was carried live on national television for twenty minutes.  Then, after a brief debate, the committee voted, thirty-one to six, to close its doors for business- consideration of the evidence.”

For the next two months, the Committee remained behind closed doors until it began debate on articles of impeachment.  The Committee eventually recommended three articles of impeachment against Nixon.  Because Nixon resigned before the full House could vote, not much of the actual impeachment inquiry was conducted in the public’s view.

William Clinton

President William Clinton’s timeline also does not support the myth of full public hearings and debate over whether to impeach a president.  In Clinton’s case, a special  counsel was appointed in January 1994.  More than four years later, the Starr Report was delivered to the House.  Two days later, the House passed Resolution 525, “[p]roviding for a deliberative review by the Committee on the Judiciary of a communication from an independent counsel, and for the release thereof, and for other purposes” and authorizing the House Judiciary Committee to determine “whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced.”

On October 8, 1998, the House adopted Resolution 581 with procedures similar to those for the Nixon impeachment.  On November 19, Starr was interviewed by the Committee in a public hearing.  But between the time of the resolution and the midterm elections on November 3, the Committee held no serious impeachment-related hearings.  Starr’s interview was one of the few efforts the Committee took to do any investigation into Clinton’s alleged wrongdoing.

An examination of the three impeachment inquiries in our nation’s history is instructive in overcoming the myth put forth by the White House and Republicans that President Trump is being treated differently from other presidents.  It is simply not unusual for most of the investigation and activity preceding formal articles of impeachment to occur without public hearings.

* Daniel Cotter is a lawyer practicing in Chicago.  He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).

 

By Daniel Cotter*

On October 8, 2019, White House Counsel Pat A. Cipollone wrote an eight-page letter to House Speaker Pelosi, and to Chairmen Engel, Schiff, and Cummings. The letter was described as being without legal basis and wrong.  It is a dangerous letter for many reasons, including that it inaccurately addresses what impeachment is and how the process works.

The Constitution includes much on impeachment in Articles I, II, and III.  The original document before amendments contains 4,543 words, and the provisions that address impeachment total 208 words, or 4.6% of the Founding Fathers’ directives.  Impeachment was of obvious import.

Article I, §2 provides:

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

Article I, §3, includes the Senate duties in impeachment:

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Article II, §4 provides who may be impeached:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Finally, Article III, §2 informs we the people that cases of impeachment are not subject to jury trial, providing:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Federalist Papers also include some guidance on impeachment, specifically,  Federalist No. 65 and No. 66, addressing the Senate’s power to try impeachments. The current Senate rules also provide general guidance for the Senate.

A read of these documents and prior impeachments would give the White House and those who argue the process is illegal or partisan some evidence that impeachment and the process is political in nature. As noted in Federalist No. 65, impeachment applies for cases where there is “abuse or violation of some public trust.” One could ask 1999 Representative Graham about that notion.

 

With all of the historical evidence, the following assertions from Cipollone do not stand up.

Your “Inquiry” Is Constitutionally Invalid and Violates Basic Due Process Rights and the Separation of Powers.

This statement is absurd on its face. The Constitution separates the impeachment process into the various branches. The President is the one who is attempting to subvert the “separation of powers” by attempting to influence and block Congress’s role and powers in impeachment.

The Invalid “Impeachment Inquiry” Plainly Seeks To Reverse the Election of 2016 and To Influence the Election of 2020.

Impeachment removes from office an elected federal official for the crimes listed in the Constitution and for “abuse or violation of some public trust.” The House is tasked with investigating and bringing impeachment charges if they are valid, and the Founders designed it that way.  There is no basis to suggest that a past or present election might be collaterally addressed.

There Is No Legitimate Basis for Your “Impeachment Inquiry”; Instead, the Committees’ Actions Raise Serious Questions.

The Constitution does not address what process the House must follow. The House is given unlimited discretion as to how the House proceeds up to and including an impeachment vote.  In addition, since the Clinton impeachment, House Republicans significantly changed the rules on the powers of committee chairs.  Furthermore, there are no rules requiring any formal inquiry authorization.  The House has broad authority, and, if the impeachment process gets to a trial, the Senate will have great discretion in how the trial proceeds. As the Supreme Court made clear in Nixon v. United States (1993), there is no judicial oversight on the impeachment process. Impeachment is nonjusticiable as it “involve[s] a political question that c[an] not be resolved by the courts.”

The White House letter has no basis in history or text and amounts to a diatribe with no legal bearing.  It is another indication of the dangerousness represented by the current President of the United States in his view of the Constitution, its separation of powers, and its plain language.

 

* Daniel Cotter is a lawyer practicing in Chicago.  He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).

By Sarah J. Morath*

You don’t need to be an elected official, a CEO, or a celebrity like Leonardo DiCaprio to create environmental change. You don’t even need to be an adult.  Sixteen-year-old Greta Thunberg illustrates that individual action by everyday individuals, matters.  What began with a lone school girl sitting on the steps of the Swedish parliament instead of at her desk quickly grew into a movement.  Climate change discussions have resumed and E.U. nations have responded.  Greta’s singular action, while seemingly insignificant, was meaningful when collectively amplified.

The assertion that individuals together can bring about change is nothing new.  Collective individual action has been critical to the success of every social movement over the past century, and its importance to the environmental movement should not be discounted.  For more than a decade, scholars and scientists have reiterated the important role individuals play in solving the most pressing environmental problems: climate change, biodiversity loss, plastic pollution.^[1]  Even the authors of the landmark environmental statutes of the 1970s, such as the Clean Water Act and Clean Air Act, understood the importance of individual action, as the citizen suit provisions show.

Individuals matter.  The “Greta effect” is real, but striking is not the only option for individuals.  In addition to striking, individuals can sue, support, spend, share, and ultimately steer decision makers, businesses, and each other to advance environmental goals. Collectively, individual action can help create the environmental change we so desperately seek.

Strike

The Global Climate Strike, the first of its kind, grew out of Greta’s weekly one-person protest over her country’s failure to reduce CO₂ emissions and meet Paris Agreement goals.  News outlets report that 6 million people joined the September 20, 2019 strike, almost six times the number of people who went on strike with Greta in March and May of this year, and far surpassing the turnout for the People’s Climate March in 2014 and the 2017 March for Science.  On September 20, children were not the only ones striking.  The day before the strike, Amazon tweeted that 1,500 Amazon and 700 Google tech workers were walking out in support of the Global Climate Strike.

While striking can involve marching, a strike differs from a march because it includes the additional decision by the person striking to miss something required (e.g., school or work). By not showing up for work or school, strikers hope their concerns will not only be heard but acted upon. And its use in the environmental movement is new and promising.

Sue

Long before global climate strikes, citizens went to court to make their voices heard.  The citizen suit provisions of the Clean Air Act, the Clean Water Act, the Endangered Species Act, and others allow everyday individuals to sue the Environmental Protection Agency (EPA) when it fails to perform a statutory duty or act.  “Impact litigation” of this kind uses the judicial system to change the law for many rather than for an individual plaintiff.  In essence, citizen suit provisions empower citizens and allow them to play a primary role in the development of environmental jurisprudence.

There are limits to citizen suits.  First, citizen suits apply only to government actors and actions, not to private parties or corporations. Citizen suits are also subject to the whims of politics and the current administration’s efforts to deregulate industry and create barriers to citizen suits has led some scholars to question the future of the citizen suit. Finally, litigation is expensive and time-consuming.  Nevertheless, the EPA reports 389 active cases, which suggests that citizen suits are a tool that should not be overlooked.

Support

Perhaps a simpler way to create change is to support environmentally friendly propositions and politicians at the ballot box.  This means voting in every election, even in non-presidential election years.  Recently, propositions have allowed the public to weigh in on a variety of environmental matters.  For example, this year in Texas, Proposition 5 concerns a sales tax on sporting goods.  A vote for Proposition 5 is a vote in favor of a constitutional amendment to dedicate tax revenue from the sale of sporting goods to the Texas Parks and Wildlife Department and the Texas Historical Commission.

Renewable energy propositions have also appeared on ballots.  Arizona’s Proposition 127 would have required electric utilities to source 50% of their electricity from solar and other renewable resources by 2030.  Unfortunately, this proposition failed, in part due to the unfavorable wording of the propositions, which framed the use of renewable sourcing in negative terms. Additionally, negative ads—paid for by the oil and gas industry—threatened that consumers would see an increase in their utility bill.  The failure of this proposition underscores the importance of educating voters about environmental issues.

Spend (and Save)

Individuals can also vote with their wallets.  Market surveys reveal that consumers are increasingly willing to purchase—and often pay more for—goods from companies that align with their values and causes.  The conscious consumer’s influence is reflected in the rise of B-corporations or “benefit corporations” such as Ben & Jerry’s, Patagonia, and The Body Shop.  Unlike traditional for-profit businesses that operate solely to generate revenue for the benefit of the owner, partners, or shareholders, B-corps operate with two missions: create profit and pursue a social or environmental mission.

Rather than substituting an environmentally harmful product for a less harmful one, consumers can forgo the purchase altogether.  Perhaps inspired by Marie Kondo’s popular decluttering strategies and driven by personal debt concerns, the minimalist lifestyle is trending across the United States, especially among Millennials.  Whether this continues remains to be seen, but bottom line: less spending means less environmental harm.

Share

In addition to saving, an individual can share data and information as a “citizen scientist.”  A more recent phenomenon, citizen science has exploded with the development of the internet.  And today, people all over the globe are becoming part of a growing movement comprising citizens who gather, share, and analyze environmental data.

The projects are as diverse as the individuals involved.  With apps such as iNaturalist, individuals can upload photographs of plants, animals, and other organisms allowing scientists to track populations and measure biodiversity. Scientists are also using citizen data to study air quality in the Appalachian Mountains, the bleaching of coral reefs in Hawaii, and plastic pollution along beaches in Newfoundland.  Technology has made it even easier for citizen scientists to interact with scientists across the globe.  As a result, the government no longer has absolute control over environmental data gathering and dissemination,^[2] making citizen science one of the most powerful tools for environmental protection in the 21^st century.

Steer^[3]

An added benefit of citizen science is that it is enabling citizens to steer environmental discussions at the local and national level, from boardroom to classroom.  For example, in 2010, a 9-year-old boy from Vermont calculated that 500 million plastic straws are discarded per day.  A few years later, a Texas A&M student posted a video of a sea turtle with a straw lodged in its nasal cavity.  Together, this statistic and video launched the plastic straw ban movement.

Individuals can also steer the investing decisions of large corporations or the operating decisions of universities and institutions.  Shareholders are increasingly demanding climate change be factored into business decisions. College-age students have successfully campaigned for universities to retire coal-fired power plants and convert to cleaner energy sources.

Finally, individuals can help steer discussions about the environment by joining community groups or non-profits.  Conservation of our land, water, and air through public education is an important mission for these groups.  Education is a critical component of citizen engagement, and it can further encourage individuals to sue, strike, support, share, and steer.

Conclusion

Individual action should not replace the regulatory, international, or technological approaches of the past.  In fact, in striking, Greta’s message was that adults need to do more and governments need to act faster.   Existing environmental laws should be strengthened and enforced, global agreements to combat climate change should be supported, and innovative ideas and new technologies should be pursued. But when traditional approaches stall or are dismantled, remember: individual action equals collective change.

---

* Professor Sarah J. Morath teaches Lawyering Skills and Strategies at the University of Houston Law Center.  Professor Morath earned her JD from the University of Montana School of Law, her Master’s in Environmental Studies from Yale University, and her BA from Vassar College.  She writes about environmental, food, and animal law and policy.  Her book Our Plastic Problem: Costs and Solutions is forthcoming from Cambridge University Press 2021.  The author thanks Professors James Salzman and JB Ruhl for their helpful comments.

^[1] See generally, James Gustave Speth, Red Sky at Morning: America and the Crisis of the Global Environment (Yale University Press 2004); Jason Czarnezki, Everyday Environmentalism: Law, Nature, and Individual Behavior (Island Press 2011).

^[2] George Wyeth, LeRoy C. Paddock, Alison Parker, Robert L. Glicksman, Jecoliah & Williams, The Impact of Citizen Environmental Science in the United States, 49 Envtl. L. Rep. News & Analysis 10237 (2019).

^[3] Thanks to Professor JB Ruhl for the sixth S.

By Daniel Cotter*

The formal impeachment inquiry into allegations of President Trump’s dealings with Ukrainian President Volodymyr Zelensky is ramping up quickly. Much has been discussed about the impeachment process and what happens if Trump is impeached. Article II, Section 4 of the United States Constitution provides for impeachment, stating:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The Constitution drafters in 1787 then set forth the process for an impeachment of the “President, Vice President and all civil officers,” granting the power to Congress in a two-part process. Article I, Section 2, Clause 5 of the Constitution provides for the role of the House in any impeachment:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Once the House votes for impeachment, the Constitution then transfers the responsibility to the Senate. Article I, Section 3, Clauses 6 and 7 provide:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

Historically, the Clause 6 language that the Senate “shall have the sole Power to try all Impeachments” has been understood to require a trial if the House voted by a majority to charge an officer of the United States. However, like we saw during the Merrick Garland debacle a few years ago, there is no mandate on the Senate to act in the Constitution.

While the current Senate rules provide that upon impeachment by the House, the Senate immediately will conduct a trial, there is no mandate that the Senate move. Specifically, the Senate rules state:

Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.

Senate Majority Leader Mitch McConnell confirmed those rules and the responsibility of the Senate, stating that the Senate “has no choice” but to try President Trump if the House impeached him. Whether McConnell and the Senate would actually do so is an open question, given their past behavior on many historical Senate procedures and rules, including holding a hearing and exercising its “advice and consent” in judicial nominees.

As with advice and consent, the Constitution does not mandate by its words that the Senate actually hold an impeachment trial. As noted above, the Senate has “the sole Power,” but that grant does not require any activity, and McConnell and the Senate could simply revise their current rules or ignore them.

In addition, the Supreme Court has previously considered what constitutes the Senate performing its function to “try all Impeachments.” In Nixon v. United States, 506 U.S. 224 (1993), the Court held that the Article III courts could not opine on impeachment proceedings and that the Senate can, except for the few specifics included in the Constitution, use whatever procedures or form of trial it deems appropriate. So, McConnell and the GOP might start the hearings, then adjourn and never hear, or they might call only the President and have a very short examination, then vote the impeachment articles down.

The impeachment trial of Andrew Johnson might give some insights into the adjournment route. The House filed eleven articles of impeachment against Johnson. After the trial, the Senate decided to vote on the three articles they believed most likely to result in Johnson’s conviction. On each of the three articles, the Senate voted 35-19, one vote short of the required vote. Having failed on two separate days to convict on those three charges, the Senate adjourned. No vote was ever taken on the remaining eight articles of impeachment charged against Johnson.

The Trump team has indicated that even before it gets to the Senate, they might seek refuge in the courts. However, they are wrong on that count because the Constitution gives the courts no role in the impeachment process, as decided in Nixon. This issue is all the more complicated here because, for impeachment trials on the President and Vice President, “the Chief Justice shall preside.” If the courts went against Nixon and got involved in the impeachment process, Chief Justice Roberts would have an inherent conflict.

We will soon see if the executive branch and the Senate follow the rules if and when formal impeachment articles are filed by the House. The Senate might try to short-circuit the process, but that attempt might hurt Republicans come 2020. But even if the House does files articles of impeachment, the Senate has no clause definitively requiring it to hold a trial.

* Daniel Cotter is a lawyer practicing in Chicago.  He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).

By Michael J. Hasday*

When the State of California and Planned Parenthood recently sued the Trump Administration over regulations implementing an abortion gag rule,^[1] they must have thought they had a good chance before the famously liberal Ninth Circuit Court of Appeals.   But lady luck was not on their side.   Although the majority of judges on the Ninth Circuit were appointed by Democratic presidents, the random draw turned up three Republican-appointed judges for the panel hearing the case.^[2]   The three Republican appointees then promptly ruled for Trump.

In an apparent attempt to reverse the rogue decision, the majority of active judges on the Ninth Circuit authorized en banc review.^[3] But because the Ninth Circuit has so many judges, it alone among the federal appellate courts employs a limited en banc review, where only eleven of its active judges sit en banc, consisting of the chief judge and ten other active judges who are randomly selected.^[4] Accordingly, limited en banc allows for “minority rule” in a subset of cases,^[5] such as when the random draw results in six or more judges holding minority views for that particular case.^[6]  And that is what appears to have happened here: even though 15 of the 26 active judges were Democratic appointees, the limited en banc panel consisted of seven Republican and four Democratic appointees.^[7]  The limited en banc panel subsequently voted 7-4, upholding the three-judge panel decision, with all votes on “party” lines.^[8]

Although a few Ninth Circuit judges have criticized the limited en banc procedure because of the possibility of minority decisions,^[9] most of the judges on the Ninth Circuit have apparently accepted the limited en banc procedure based on the “Churchill democracy defense”:  it is the worst system, except for all others.^[10]  For example, Ninth Circuit Chief Judge Sidney Thomas has defended the limited en banc procedure by pointing out that, while the rules allow for a full en banc review after a limited en banc decision, the Ninth Circuit has never exercised this option.^[11]  In a similar vein, Thomas refers to an experiment the Ninth Circuit conducted with a more robust limited en banc panel, with 15 judges instead of 11, intended to bring more “representativeness” to the limited en banc panel.  The experiment proved to be unpopular with both the Ninth Circuit judges and the bar as being too unwieldy.^[12]  Finally, the nuclear option for replacing the limited en banc procedure—splitting the Ninth Circuit into two or three smaller circuits—is opposed by nearly all the judges on the Ninth Circuit, Democratic and Republican appointees alike.^[13]  However, there is another way that the Ninth Circuit can fix its limited en banc representativeness problem while retaining the efficiency of the current procedure—a method I introduce here^[14] and name the “Grouping Method.”

The Grouping Method

The Grouping Method retains all the key elements of the current limited en banc procedure—eleven active judges on the panel, the chief judge guaranteed placement, and the other active judges having an equal chance to be selected—but slightly tweaks how the random draw occurs.  Instead of a true random draw, some person (e.g., a court administrator), persons (e.g., a committee of experts), or thing (e.g., a computer via an algorithm)^[15] places all the active judges, with the exception of the chief judge, into two equal groups.  Let’s call them Group A and Group B.^[16]  The limited en banc panel is then composed of the chief judge and five randomly selected judges from Group A and five randomly selected judges from Group B.

The person or persons or thing (hereinafter, the “Grouper”) is instructed/programmed to place the active judges into the two groups based on how it predicts the active judges will rule in the particular case.  In other words, if the Ninth Circuit has 28 active judges other than the chief judge, the Grouper should place the 14 judges perceived to be most favorable to Party A into Group A and the 14 judges perceived to be most favorable to Party B into Group B.  In making these placements, the Grouper can make individualized assessments based on how the judges have previously ruled in similar cases, or even in the actual case if the judge was on the original three-judge panel.  The Grouper need not wholly, or even mostly, rely on the proxy of the appointing president’s political party, although the Grouper could certainly also factor in this proxy, particularly for newly appointed judges.

Playing With The House’s Money

The beauty of the Grouping Method is that there is tremendous upside in using it with effectively no downside.  As long as the Grouper makes reasonably accurate groupings, limited en banc panels will be significantly more likely to reflect majority views of the Ninth Circuit.  Moreover, even if the Grouper makes mistakes in the groupings, the Grouping Method could hardly do worse than the current procedure. The following example makes this clear.  Let’s say that for a given case, the chief judge favors Party A, 15 of the other active judges favor Party A, and 13 of the other active judges favor Party B.  Under the current limited en banc procedure, there would be a 24.91 percent chance for a panel with a majority of judges favoring Party B although that’s the minority position for the Ninth Circuit.^[17]  For the purposes of this Essay, I will define this number as the “error rate.”

Under the Grouping Method, if the Grouper is completely accurate in its groupings, it will guarantee a panel with a majority of the judges favoring Party A, i.e., a zero-percent error rate.^[18]  However, even if the Grouper makes mistakes in the groupings, i.e. by placing one or more Party A judges into Group B, the error rate of the resulting panels will still be better than the current procedure, unless the Grouper completely botches the groupings, which would then result in an error rate roughly the same as the current procedure.  The following chart shows the “error rate” for all the possible number of mistakes:

 

Number of Mistakes                                                                                                Error Rate

Zero

(Group A contains 14 Party A Judges, 0 Party B Judges                                       0%

Group B contains 1 Party A Judge, 13 Party B Judges)

 

One

(Group A contains 13 Party A Judges, 1 Party B Judge                                      14.13%

Group B contains 2 Party A Judges, 12 Party B Judges)

 

Two

(Group A contains 12 Party A Judges, 2 Party B Judges                                    19.38%

Group B contains 3 Party A Judges, 11 Party B Judges)

 

Three

(Group A contains 11 Party A Judges, 3 Party B Judges                                    22.20%

Group B contains 4 Party A Judges, 10 Party B Judges)

 

Four

(Group A contains 10 Party A Judges, 4 Party B Judges                                    23.88%

Group B contains 5 Party A Judges, 9 Party B Judges)

 

Five

(Group A contains 9 Party A Judges, 5 Party B Judges                                      24.83%

Group B contains 6 Party A Judges, 8 Party B Judges)

 

Six

(Group A contains 8 Party A Judges, 6 Party B Judges                                      25.28%

Group B contains 7 Party A Judges, 7 Party B Judges)

 

From this chart, we can see that the biggest gains in reduced error rate come when the Grouper makes zero, one, or two mistakes.  If the Grouper makes three, four, or five mistakes, the error rate will only be marginally better than the current procedure (24.91%).  And if the Grouper makes the maximum number of mistakes—six—the error rate will be only marginally worse, by about one-third of one percent.  In sum, no matter how bad a job the Grouper does, it can hardly do worse than the current procedure.  Accordingly, any concern about possible strategic manipulation of the limited en banc panel is remote.  Because even if the Grouper wanted to manipulate the composition of the limited en banc panels by enhancing the probability of minority views on the panel,^[19] the Grouper could effectively do no better than what is currently accepted.

Motive, Means, and Opportunity

The Democratic appointees on the Ninth Circuit should be highly motivated to implement the Grouping Method.  At the start of the Trump Administration, Democratic appointees held an 18-7 advantage on the Ninth Circuit.^[20]  However, the advantage is now only 16-12,^[21] and may be cut further to 16-13 if the Trump Administration is able to fill the remaining vacancy.  A 16-13 ratio will place a majority of Republican appointees on about 1 in 4 limited en banc panels.  This statistical fact has excited one prominent conservative commentator who stated that “the Ninth Circuit’s unique ‘limited en banc panel’ mechanism means that a sizeable increase in the number of Republican appointees can dramatically improve Ninth Circuit law even if that number falls short of a majority.”^[22]  However, what excites this conservative commentator may alarm liberals.  In crude political terms, why should liberals allow conservatives to exercise power via this “statistical loophole” when the whole point of an en banc review is to ensure that the circuit’s majority view prevails in the most important and divisive cases?^[23]  The political stakes are high considering that decisions from the Ninth Circuit impact about one in five Americans.^[24]

The Democratic appointees also have the means to implement the Grouping Method.  The Ninth Circuit has full authority to implement this reform itself by local rule,^[25] i.e., by majority vote of the active judges.^[26]  There is no requirement that limited en banc panels be selected in a random fashion.  Indeed, the Ninth Circuit’s limited en banc procedure already departs from strict randomness as the chief judge is automatically placed on every limited en banc panel.

Finally, in a political environment where leading Democrats are discussing “court-packing” ideas for the U.S. Supreme Court,^[27] this relatively modest proposal may be too good an opportunity to miss.

 

© 2019, Michael J. Hasday.

* Michael J. Hasday is an attorney practicing in New York.

^[1] See California v. Azar, Nos. 19-15974, 19-15979, 19-35386, 19-35394, 2019 U.S. App. LEXIS 18452 (9th Cir. June 20, 2019).

^[2] See Ed Whelan, Re: Ninth Circuit Victory for Trump Administration Defunding of Planned Parenthood, Bench Memos (July 15, 2019, 11:28 AM), https://www.nationalreview.com/bench-memos/re-ninth-circuit-victory-for-trump-administrations-defunding-of-planned-parenthood/.

^[3] See California v. Azar, Nos. 19-15974, 19-15979, 19-35386, 19-35394, 2019 U.S. App. LEXIS 19971 (9th Cir. July 3, 2019).

^[4] LAURAL HOOPER ET AL., FED. JUDICIAL CTR., CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS 36 (2d ed. 2011); Ninth Circuit Rule 35-3.

^[5] See Arthur D. Hellman, Getting It Right: Panel Error and the En Banc Process in the Ninth Circuit Court of Appeals, 34 U.C. Davis L. Rev. 425, 462 (2000) (“almost certainly, some departures from majority rule have occurred” in the limited en banc procedure); Pamela Ann Rymer, The “Limited” En Banc: Half Full, or Half Empty?, 48 Ariz. L. Rev. 317, 321 (2006) (“experience does show that anomalies occur in the limited en banc procedure that could not occur in a true en banc”); Written Testimony of Diarmuid F. O’Scannlain, United States Circuit Judge, United States Court of Appeals for the Ninth Circuit, before the United States Senate, Committee on the Judiciary 12 (July 31, 2018) (the limited en banc procedure “presents the quite real possibility that some of the circuit’s most important or divisive issues will be decided by a substantial minority of judges, who do not represent the true views of our court”).

^[6] In this Essay, I will make the reasonable assumption that a panel with a majority of judges holding the minority view will end up reaching the minority-view decision.

^[7] See Whelan, supra note 2.

^[8] See California v. Azar, Nos. 19-15974, 19-15979, 19-35386, 19-35394, 2019 U.S. App. LEXIS 20587 (9th Cir. July 11, 2019).   It did not help matters from the plaintiffs’ perspective that three Democratic appointees had recused themselves from the case.

^[9] See, e.g., Rymer, supra note 5; O’Scannlain, supra note 5.

^[10] See Rymer, supra note 5, at 317 (noting that “lawyers and judges are willing, as a practical matter, to accept the decisions of a limited en banc panel as authoritative” because there is “no realistic alternative in the Ninth Circuit” due to its size).

^[11] See WRITTEN TESTIMONY OF CHIEF JUDGE SIDNEY R. THOMAS, CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, BEFORE THE UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY 51 (Aug. 24, 2017) (“[T]he court has never voted to rehear a case en banc before the full court. This statistic is a testament to the success of the limited en banc court model.”)

^[12] See id. at 53-54.

^[13] See Letter from 34 Ninth Circuit Judges to the U.S. Senate Committee on the Judiciary (July 27, 2017), https://indivisibleeb.org/wp-content/uploads/2017/08/grassley-feinstein-ltr-7-27-17.pdf

^[14] The method is a simplified variation of the “rank-order method” I previously developed.  See Michael J. Hasday, The Rank-Order Method for Appellate Subset Selection, 93 Notre Dame Law. Rev. Online 17 (2017).  The simplified variation is tailor-made for the Ninth Circuit’s limited en banc procedure because the rule which guarantees placement for the chief judge solves the problem of selecting a final judge for an odd-numbered panel if the full set of judges are divided into two groups.  Additionally, the relatively large size of the limited en banc panel makes the individual differences between the judges placed in the same group less important to the overall ideological composition of the panel.

^[15] Computers are already performing this type of “judicial prediction” work to advise clients of their “odds of winning” based on the particular three-judge panel assigned at the Federal Circuit.  See Roy Strom, The Algorithm Will Hire Your Patent Lawyer Now, Bloomberg Law, Aug. 1, 2019, https://biglawbusiness.com/the-algorithm-will-hire-your-patent-lawyer-now.

^[16] If the number of active judges, excluding the chief judge, is odd, then one of the active judges should be eliminated by lot before the sorting process begins.

^[17] All statistical calculations for this Essay are on file with the author.

^[18] Of course, if the chief judge is in the minority, then the error rates will be higher under both the current limited en banc procedure and the Grouping Method.

^[19] This concern would be even more remote if the Grouper is a computer.

^[20] See Ed Whelan, Improving the Ninth Circuit, Bench Memos (May 18, 2018, 10:41 AM), https://www.nationalreview.com/bench-memos/improving-the-ninth-circuit/.

^[21] See UNITED STATES COURTS FOR THE NINTH CIRCUIT, THE JUDGES OF THIS COURT IN ORDER OF SENIORITY (Updated July 2019), https://www.ca9.uscourts.gov/content/view_seniority_list.php?pk_id=0000000035.

^[22] See Ed Whelan, Re: Improving the Ninth Circuit, Bench Memos (Oct. 25, 2018, 2:29 PM), https://www.nationalreview.com/bench-memos/re-improving-the-ninth-circuit/

^[23] See United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689-90 (1960) (“The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions. . . .”) (quoting Albert Branson Maris, Hearing and Rehearing Cases in Banc, in 14 F.R.D. 91, 96 (1954)).

^[24] See Dylan Matthews, How the 9th Circuit Became Conservatives’ Least Favorite Court, Vox (Jan 10, 2018 2:30 PM) (“The Ninth covers a population of 64.3 million people, according to the latest Census data, or nearly 20 percent of the US.”)

^[25] The relevant statute authorizing limited en banc panels only states that a federal appellate circuit with more than 15 active judges may “perform its en banc function by such number [of judges] as may be prescribed by rule of the court of appeals.”  Pub. L. No. 95-486, §6, 92 Stat. 1629.

^[26] See FRAP 47(a)(1) (“Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice.”).

^[27] See Philip Elliot, The Next Big Idea in the Democratic Primary: Expanding the Supreme Court? Time, March 13, 2019, https://time.com/5550325/democrats-court-packing/.