Keeping USCA9 Weird

In some cities with oddball reputations, some residents who are proud of that reputation sport bumper stickers saying “Keep [City] Weird.”

Ninth Circuit Judge Sidney Thomas, the Chief Judge until fairly recently, yesterday announced he is taking senior status effective upon the appointment of his successor. See the court’s press release.

Not mentioned in the press release is that the timing will likely enable President Biden to appoint a like-minded successor while the Democratic Party still holds the narrowest possible majority in the Senate, a majority it is likely to lose in the November election. That is, he can appoint someone favored by the more criminal-friendly wing of his party without needing the consent of a single Republican. In other words, he can keep the Ninth weird.

The Ninth isn’t quite as weird as it used to be. President Obama’s appointments pushed some other circuits left, while President Trump increased the number of judges with sense on the Ninth.

But it’s still pretty weird. President Trump did not get enough appointments to achieve parity. The full court regularly uses its en banc review authority in a backward manner, overruling correct decisions of three-judge panels while letting far-out decisions of rogue panels stand. It should be doing the opposite. The judges dissenting from these let-stand orders regularly warn that the court is defying Supreme Court precedent and likely to get a summary reversal and a scolding, and they are often right.

So we will see who the President chooses and whether the narrow Senate majority rubber-stamps the choice. I hope I am wrong, but I think I am right.