Last week, we explored where the Ninth Circuit's many visiting judges call home. This week, we investigate a slightly different subject: which president appointed those visiting judges? Some court watchers have suggested that federal courts of appeals tend to invite visiting judges who reflect the ideological preferences of those with the authority to extend these invitations.1 To see whether there's any evidence to support that theory in the Ninth Circuit, we examined which president nominated each of the visiting judges who sat with the Court between January 2014 and June 2020 (for court of appeals judges who previously served as district court judges, we counted the more recent nomination). Of course, we caveat this investigation by noting that the identity of the president who nominated a judge may be only loosely correlated, if at all, with that judge's jurisprudence.
But setting aside the caveat, the results of our examination appear—at least at first glance—to strongly suggest that the Ninth Circuit's visiting judges may be selected, at least in part, based on the party of the president who nominated them. The following table looks at how many days visiting judges sat on the Ninth Circuit, broken down by which president appointed each judge:
|
Appointed by |
2020 (thru June) |
2019 |
2018 |
2017 |
2016 |
2015 |
2014 |
Average |
|
Trump (R) |
0% |
.4% |
.7% |
1% |
N/A |
N/A |
N/A |
.4% |
|
Obama (D) |
22.3% |
23.4% |
26.2% |
25.4% |
25.6% |
23.3% |
13.5% |
23.4% |
|
W. Bush (R) |
15.1% |
16.5% |
14.6% |
13% |
16.3% |
12.9% |
13.5% |
14.5% |
|
Clinton (D) |
46.8% |
37.1% |
36.1% |
36.2% |
35.9% |
40.5% |
35.7% |
37.8% |
|
H.W. Bush (R) |
5% |
12.5% |
10% |
14.6% |
3.3% |
10.8% |
13.5% |
10.6% |
|
Reagan (R) |
10.8% |
9.3% |
11.9% |
7.9% |
19% |
9.1% |
17.5% |
11.6% |
|
Carter (D) |
0% |
.8% |
.7% |
1.3% |
0% |
.9% |
1.8% |
.8% |
As this table illustrates, judges appointed by President Clinton are far and away the most common visiting judges in the Ninth Circuit, accounting for anywhere from 35.7% to 46.8% of guest sittings in the Court each year (and three of the four most frequent guests covered in last week's post—Judges Sessions, Block, and Rakoff). All together, judges appointed by Democratic presidents account for far more sitting days (roughly 62% in total) than their colleagues appointed by Republican presidents (roughly 38%).
But while this initial glance at the data might seem to tell a fairly straightforward story, digging deeper into the numbers complicates the picture. After all, the dearth of sittings by Trump-appointed judges can be explained in part by the recentness of these judicial appointment—indeed, Trump-appointed judges didn't exist for half of the period from which data was collected, and even the most senior Trump appointees have been sitting for less than four years. Similarly, to take the other extreme, judges appointed by President Carter are relatively few and far between compared to their more recently appointed colleagues, and thus one would not expect Carter appointees to fill a significant number of the Ninth Circuit's slots for visiting judges.
For these reasons, it's far more informative to compare who is accepting the Ninth Circuit's invitations to who the Ninth Circuit could invite. Because the pool of federal judges is constantly fluctuating, the following chart compares those judges who visited the Ninth Circuit in 2019 to the pool of active non-Ninth-Circuit federal judges as it existed in late 2019:
|
Appointed by |
2019 Visiting Judges |
2019 Pool of Active Federal Judges |
Ratio of Ninth Circuit Visits to Presence in Pool of Active Judges |
|
Trump (R) |
0.4% |
21.4% |
0.02 |
|
Obama (D) |
23.4% |
44% |
0.53 |
|
W. Bush (R) |
16.5% |
20.9% |
0.79 |
|
Clinton (D) |
37.1% |
9.7% |
3.82 |
|
H.W. Bush (R) |
12.5% |
1.7% |
7.35 |
|
Reagan (R) |
9.3% |
2.2% |
4.23 |
|
Carter (D) |
0.8% |
0.1% |
8 |
This snapshot suggests that the most likely factor determining whether a given judge visits the Ninth Circuit is not ideology, but rather seniority—a factor that may influence both the invitations the Ninth Circuit extends and the willingness of judges to accept those invitations. Judges appointed by the three most recent presidents are all underrepresented in their Ninth Circuit visits as compared to their presence generally in the pool of active federal judges. By contrast, appointees of the four prior presidents are all overrepresented. George W. Bush appointees, who sit roughly in the temporal middle of the chart, are the most accurately represented group, accounting for 16.5% of guest sittings and 20.9% of the pool of active federal judges generally.
Thus, the predominance of Clinton-appointed judges may be explained not by any supposed pattern of ideological preference, but rather that such appointees are sitting in a sweet-spot of both seniority and a relatively large numerical presence. In the next decade or so, as more Clinton appointees retire while more George W. Bush appointees reach this sweet spot, the mix of judges visiting the Ninth Circuit may change substantially.
Footnote
1 See Todd C. Peppers, Katherine Vigilante & Christopher Zorn, Random Chance or Loaded Dice: The Politics of Judicial Designation, 10 U.N.H. L. REV. 69 (2012); Jeffrey Budziak, The Strategic Designation of Visiting Judges in the US. Courts of Appeals, 26 JUST. SYS. J. 233, 249 (2015).
Originally Published by Morrison & Foerster, December 2020
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Morrison & Foerster LLP. All rights reserved
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
