11 Comments
Jan 22, 2022·edited Jan 22, 2022

Well, you said it:

"That combination— the desire to participate in politically salient cases, and the desire to change their result— is a recipe for a completely politicized judiciary."

"The system of random selection of judges is one of those “norms” you often hear about as the foundation of a democratic system of government. If the judges selected to hear a case are selected via a political process, then you will get political results, and just as important, you will create a public perception that the results are political. "

So what do we do about it? The federal courts were stuffed with these people by an aggressive Republican Party in control of the Senate, particularly the supreme court, and we know it's completely politicized.

Faced with judicial integrity crises in the past in the UK, entire new court systems were set up to bypass and overrule the problem courts. I have read some of the convoluted history of this. Is this a path forward? It seems like it would require amending or abrogating the Constitution, but maybe not?

The UK has the advantage of an unwritten constitution; it could be changed simply through consensus (and has been, many times in the 19th century and even in recent years), though English judges do not state a new Constitutional principle until they are sure a supermajority of the public agrees. "Contrary to the British constitution" means "repellent to the fundamental fiber of British people" or something similar, using the *other* meaning of "constitution". (This is probably the way the 9th amendment ought to be approached here, as a side note.)

You make one good recommendation for reform. It doesn't go far enough. The public has no confidence in the federal judiciary and it's getting even less as time goes on and more and more nonsense and bullshit comes out in the form of "court rulings". Every time a nonsensical ruling comes out with thin, incoherent excuses for results-oriented judging, and there've been a lot lately, confidence declines.

Bush v Gore was of course a HUGE hit to the credibility of the federal judiciary; they backed off from such nonsense for a while, but they seem to have redoubled in spades most recently with the Texas SB8 situation (where they could have declared that judges and court officers were liable for accepting "bounty" cases, which has enough legal precedent; or declared that nobody can file suit without a cognizable interest, which has more legal precedent; both while ducking the question of abortion entirely -- but instead they let it go into effect in pure results-oriented judging); and with the insane ruling attacking the OSHA vaccine mandate (which made up a bunch of bullshit and contradicted everything about the OSHA act -- its so-called reasoning could be used to prohibit fire escape regulations); and the latest Texas lower federal court ruling attacking the federal mandate for its own employees (which made up a bunch of bullshit and contradicted pretty much all of employment law).

What can be done to get judges who *act like judges*? I mean, I know I don't have a judicial temperment, which is why *I have not tried to become a judge*, but neither do a bunch of the federal judges appointed by Trump, or Clarence "I don't recuse myself in cases where my wife is implicated" Thomas. Nobody should have confidence in the federal judiciary; it's Taney-level bad.

Only the removal of the unjudicial from the bench will restore confidence. It can't be done by impeachment because impeachment is broken and has never worked properly, not from day one: it's too hard to get 2/3 in the Senate for *anything*. What are the alternatives?

Here's a radical one: Congress could establish a Court of Judicial Qualifications to determine whether judges are currently engaging in "good behavior". If they are ruled not to be, obviously, they aren't judges any more; Constitution is clear on that!

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En banc is also allowed for questions of exceptional importance (importance being in the eye of the voting judge majority/beholder). This piece ignores that separate basis for en banc review, which would justify the initial en banc procedure (at least in really important cases) and the decision to take any case en banc, regardless of whether there is a circuit law conflict or not. It would also justify en banc review simply for error correction, even without a split.

It's not a perfect process, but I don't see why a full circuit shouldn't (whenever it wants to) decide to address an important question via en banc procedure.

Maybe prudentially the "initial en banc" should be reserved for truly rare cases, but it doesn't seem to be abused (maybe the Trump judges will see fit to start using/abusing it more).

Also, leaving things to SCOTUS where there is an intra-circuit conflict (as suggested in the comment below) is not a practical solution. SCOTUS rarely grants cert and needs an extremely good reason to do so. Particularly in a circuit the size of the Ninth, there will be (and frankly, there already are) conflicting panel decisions on various points of law that are important to litigants and district courts, but not truly cert-worthy (particularly in the eyes of the current high court which is granting cert less and less and hearing many fewer cases than it used to). Given that conflicts can and do arise, why shouldn't circuits have a way to resolve the problem short of making litigants go to SCOTUS?

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You say that en banc review is intended "to resolve the conflict between two published opinions from panels in the same circuit." At times that's true. But not always. It is also the vehicle through which a circuit court can overturn an earlier precedential opinion that has proved erroneous. If en banc review is eliminated, how would a circuit court ever do so? Your call for reform doesn't seem to acknowledge or answer that issue.

And it seems like an important one. It's a pillar of appellate jurisdiction that one panel is bound by, and thus cannot overrule, another panel's earlier decision. En banc review is required to do so---for good reasons.

Insofar as your solution is to do away with that rule and allow an appellate panel to overrule past circuit precedent, that would seem to exacerbate the issue of court politicization. Insofar as the solution is that flaw circuit precedent must be address through the Supreme Court's discretionary grant of cert., that would seem to require demonstrably flawed precedent to remain on the books for years. Any call to do away with en banc review altogether would seem to need a better solution than that. Any thoughts?

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