a panel consisting of Justice Sandra Day O’Connor, Chief Judge Alex Kozinski, and Judge Sandra Ikuta. The especially cool thing about this is that Judge Ikuta clerked for both of her fellow panel members. This might well have happened before with other judges, but I expect that it has been quite rare.
troll_dc2 says:
It is also noteworthy that the panel will be hearing cases at two different law schools, one of which is named for Justice O’Connor. I wonder whether this is something that is set up for the benefit of law students.
October 19, 2009, 6:41 pmBZ says:
One of my cases is before this panel, and I’ve been part of these law school-based hearings before. This is a periodic demonstration for the law school communities involved of the true workings of the appellate courts. The State Supreme Court does it as well. Aside from the fact that the courtroom is unusual and often quite crowded, it’s an argument and the surroundings melt away when you’re in the fray.
October 19, 2009, 6:56 pmDNJ says:
Of course, Eugene also clerked for two members of the panel (Chief Judge Kozinski and Justice O’Connor).
Who gets to preside? I think the answer is the Chief Judge, who – IIRC – takes precedence over all judges on his court except the Circuit Justice. Justice O’Connor, of course, used to be the Circuit Justice for the Ninth Circuit, but since her retirement it has been Justice Kennedy.
October 19, 2009, 7:01 pmBrian says:
Doubtless some better-informed Volokh commenter will know whether Justice O’Connor, writing for the Supreme Court, ever over-ruled Judge Kozinski, writing for the 9th Circuit. If so, having both a the same panel might be something of a first (although, at one level down, I guess it more often happens when District Judges sit on Appellate panels.)
In any case the audio of 9th Circuit oral arguments are typically released the next day here. Given Chief Judge Kozinski’s sometimes fun or quirky way of presiding, it might be interesting.
October 19, 2009, 7:08 pmDave N says:
I was wondering the same thing, and reached the same conclusion.
I did find it odd that ASU Students for Life v. Crow is being heard at the University of Arizona rather than at Arizona State University, given the case’s very obvious ASU connection.
Finally, BZ is 100% right about these kinds of things. I have had the privilege of arguing at both Stanford University and the University of California. While there is a much, much larger audience than usual, once the argument itself starts, the attorneys are oblivious of the crowd.
October 19, 2009, 7:56 pmTNeloms says:
I’m not a lawyer; can someone explain what exactly this panel is? I don’t understand how it works.
October 19, 2009, 8:28 pmAE says:
I sat through the oral arguments at ASU today. As a 1L, I found it a very interesting experience. I didn’t have much clue about how that aspect of appeals worked until today.
I was also entertained by Judge Kozinski’s sense of humor and Justice O’Connor’s aggression. I almost felt bad for the attorneys she was attacking.
October 19, 2009, 9:02 pmU.Va. Grad says:
My (admittedly pulled from my posterior) guess is that it’s precisely because of the connection to ASU that Crow is being heard in Tucson. To the extent that the goal of holding court at law schools is providing an educational experience for law students, hearing a case on a hot-button topic directly related to a campus organization might stand in the way of that goal by drawing a capacity crowd that’s mostly undergrad partisans of one side or the other and keeping law students out of the auditorium.
October 19, 2009, 9:48 pmDNJ says:
On the United States Courts of Appeals (of which the Court of Appeals for the Ninth Circuit is one), panels of three judges usually hear cases. Kozinski and Ikuta are both judges of the Court of Appeals for the Ninth Circuit, and Kozinski is presently the Chief Judge of the Court. Justice O’Connor is a retired Associate Justice of the Supreme Court of the United States and is sitting by designation (by the Chief Justice of the United States), pursuant to 28 U.S.C. 294(a).
October 19, 2009, 10:11 pmDNJ says:
Interestingly, from previous cases where Justice O’Connor has sat on a Court of Appeals by designation, it seems that she takes precedence over Circuit Judges. But I still think that the Chief Judge takes precedence over her.
October 19, 2009, 10:14 pmCrazyTrain says:
I don’t know what you mean by “takes precedence over” — if you means that she presides over the panel (which is the question addressed by the comment you are responding to), you are wrong. She certainly does not preside over a panel when she sits on the 9th Circuit even if the presiding judge is not the Chief (which is usually the case). She may be listed on the opinion ahead of the other Judges (including the most senior active circuit judge, who presides over the panel), but that is the norm. Indeed, the 9th Circuit lists judges in order of seniority without regard to whether they are active or senior. So, it is not at all uncommon for the presiding judge on a panel to be listed last, after two other senior judges on the panel.
October 19, 2009, 10:42 pmOrin Kerr says:
I would guess this hasn’t happened before.
October 19, 2009, 11:12 pmCraig Reiser says:
I know Justice O’Connor has been sitting on circuits since she retired, but didn’t know until recently that she was required to do so. Is there any way for her to–if she wanted–stop sitting by designation on circuit panels?
Very cool, in any event.
October 19, 2009, 11:33 pmDNJ says:
Ah, that makes more sense. I assumed that the first-listed judge was the presiding one, which is the case with most courts. Somewhat confusingly, the practice regarding the ordering of judges’ names varies among the circuits. In some circuits Senior Circuit Judges will be listed after the active judges (and described as “Senior Circuit Judge” rather than “Circuit Judge”) and, similarly, retired justices will be listed after active judges.
October 19, 2009, 11:36 pmDNJ says:
Well, I don’t think the Chief Justice would designate her if she didn’t want him to.
October 19, 2009, 11:39 pmCraig Reiser says:
What I’m really wondering is whether she could collect a salary without doing it…I guess the answer is no?
October 19, 2009, 11:43 pmEC2 says:
Pretty sure she could never hear another case on any court and still collect her full salary until the day she dies. Thats the way it works for lower court judges when they take senior status, the only stipulation is that in order to be entitled to a pay raise (but not cola adjustments) the judge must maintain a certain caseload, i think it is 1/3 of a full docket.
October 20, 2009, 12:07 amJay says:
DNJ-
October 20, 2009, 12:09 amIn regard to this important area of the law, one thing I noticed recently is that both the 5th and 11th Circuits appear to list judges in the same way–all as “Circuit Judges” regardless of whether they’re senior. But they actually have different philosophies, apparently, as the 11th puts senior judges last–say “Carnes, Pryor, and Anderson, Circuit Judges”–while the 5th puts them first–say “Reavley, Smith, and Elrod, Circuit Judges.”
DNJ says:
28 U.S.C § 371(b) means that she can only collect the salary of an Associate Justice if she meets the requirements of subsection (e), which basically requires that she have a workload of at least one-quarter of that of an active judge, whether by hearing cases, performing other judicial duties, or performing administrative duties relating to the court system or another government entity. However, , even if she doesn’t do this, under subsection (a) she will receive an annuity equal to her salary when she retired. I think the only practical difference is that she will not receive any increases in salary if she doesn’t continue to work.
28 U.S.C. § 294(a) also makes it clear that a retired justice can only be assigned to perform such judicial duties “as he is willing to undertake.” So even if the Chief Justice wanted to assign Justice O’Connor to sit against her will, he couldn’t.
October 20, 2009, 12:17 amDNJ says:
There’s a circuit split! How long until the SC resoves this vital issue?
October 20, 2009, 12:37 amDave N says:
I would only add that the three-judge panels are drawn semi-randomly and that any Article 3 judge or senior judge can sit by designation on a panel — which includes Supreme Court Justices (they don’t, but Senior Justices like O’Connor do), federal appellate judges from other circuits, district judges, and even judges from such esoteric courts as the International Court of Trade.
October 20, 2009, 1:41 amTNeloms says:
DNJ and Dave N, thanks a lot for the explanation. I had no idea that other Judges could be selected for the panel.
October 20, 2009, 2:17 amJay says:
Dave N–
October 20, 2009, 2:50 amTrue; the fact that CIT judges may be appointed to appellate panels illustrates the odd fact that the CIT is an Article III court, with life-appointed judges. You’ll notice that no Court of Federal Claims, Tax Court, or Court of Appeals for the Armed Forces judges ever appear on circuit panels, because they all serve on Article I courts. The 11th Circuit in particular seems weirdly obsessed with having CIT judges sit with it; I’m not sure if they feel like they’re short staffed, but they only have one, relatively recent, vacancy, so it seems odd.
Prosecutorial Indiscretion says:
I wonder if the other panelists will stick Judge Ikuta with the drafting duties – old habits die hard. To be a fly on the wall at that conference . . .
October 20, 2009, 8:59 amKestrel says:
“The 11th Circuit in particular seems weirdly obsessed with having CIT judges sit with it; I’m not sure if they feel like they’re short staffed, but they only have one, relatively recent, vacancy, so it seems odd.”
They also have one of the heaviest, if not the heaviest, caseload per judge among the Circuits, but the judges don’t want to increase the size of the court.
October 20, 2009, 10:30 am