From Worst to First?

"Change is in the air" on the Ninth Circuit Court of Appeals, despite its reputation as the most liberal court of appeals in the nation.

Judge Milan D. Smith, Jr. discussed this change, one he has termed "a metamorphosis," in a recent lecture and discussion sponsored by the HLS Federalist Society and HLS Latter Day Saints. Smith, a 2006 appointee to the Ninth Circuit and older brother of United States Senator Gordon Smith, shared his theories as to why the Circuit's reversal percentage is significantly lower this year than in previous years and why its decisions have taken on a more moderate jurisprudence.

The Supreme Court accepted only ten cases from the Circuit for the 2007-08 term, almost half as many as in past years. Smith emphasized that the Supreme Court only grants certiorari to one-fifth of one percent of Ninth Circuit decisions on average, a lower percentage than other Circuits. He credits this "mainstreaming" of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

"It's very rare anymore that you're [going to] have three Carter judges sitting together [on a panel]," said Smith.

Smith believes the current composition of the Circuit explains the reduction in extreme opinions: "We have 27 active judges and 22 senior judges [on the Circuit] . . . . Of those, Carter appointed 15 in total." Of the 15 Carter appointees, two have passed away, one has retired completely from the court, and nine have moved into senior status, a form of semi-retirement whereby a judge vacates his seat and hears a diminished caseload but keeps his full salary. Almost every Carter appointee is now over the age of 70, and Smith stated that it will not be long before the remainder of them "leave this vale of tears." Only three Carter appointees remain active, including former Chief Judge Mary M. Schroeder and well-known Judge Stephen Reinhardt. According to Smith, the less critical atmosphere which allowed the appointment of these more strident and ideological judges changed during the Reagan administration.

"Post-Robert Bork . . . it became clear that the tectonic plates were sliding," said Smith, citing the contentious 1987 hearings and refusal by the Senate to confirm Judge Bork to the Supreme Court seat vacated by Justice Lewis Powell.

"He had 30 years of writings that [the Senate] used to hang [Bork]," said Smith. "The less you write, the better" in terms of one's chances for confirmation in the post-Bork climate.

According to Smith, the Senate became much more concerned with nominees to the Ninth Circuit who were within the mainstream of jurisprudential thinking. If one political party does not have "at least 60 votes in the current political climate," a judge "outside of the mainstream" has little chance of confirmation because the minority will likely filibuster, the refusal to vote for cloture to end discussion and bring the main issue to the floor for a vote, which requires a three-fifths majority of Senators.

Smith cited Judge Carolyn Kuhl's failed nomination as an example of Senators taking this more active role in the nomination process. Kuhl withdrew her name from consideration in December, 2004 after a three-year battle for confirmation. Controversy arose after it was discovered that Kuhl, while on the Los Angeles Superior Court, dismissed a tort of intrusion claim brought by a female hospital patient after her doctor allowed a pharmaceutical company representative to observe her breast examination. The patient claimed she thought the representative was another physician. Kuhl did allow other claims to proceed and the parties settled soon after. Democrats in the Senate filibustered her nomination in 2003, a practice which Smith sees continuing even though Democrats are now in the majority: "They [Republican Senators] will filibuster just like the Democrats did when the shoe was on the other foot."

Smith posits that these factors have resulted in the appointment of more moderate Reagan, George H.W. Bush, and Clinton nominees: "if you have shown that you are a reasonable, fair-minded person, you [will likely] be appointed and confirmed."

Smith also pointed to recent en banc decisions on the Circuit which have reversed controversial and "out of the mainstream" panel opinions, some of which may not have been re-heard in previous years. A three-judge panel opinion written by Judge and Clinton-appointee Marsha L. Berzon in Bates v. United Parcel Service found that a group of hearing impaired employees who could not pass the Department of Transportation hearing examination, mandated by the Department only for vehicles weighing over 10,001 pounds by mandated by UPS for all drivers, could not be categorically excluded from UPS driving positions of vehicles under that weight regardless of UPS's claimed defense of "business necessity" without violating the Americans with Disabilities Act.

Sitting en-banc, the court reversed by a 13-2 majority. Of the eight Clinton appointees sitting for the rehearing, only one, Judge Berzon, did not sign on to the majority and another, Judge M. Margaret McKeown, wrote for the majority. Smith, a self-described mainstream judge and member of the en banc rehearing in Bates, claims that such outcomes show this new alignment of the moderate Clinton appointees with mainstream Republican-appointed judges on the court.

While the Circuit's reversal rate and extreme jurisprudence may be decreasing, its reputation may not be improving as quickly. Smith closed his discussion by urging those in attendance to "say a good word for the Ninth Circuit." If Smith's trend continues, it may become increasingly easier to do just that.