9th Circuit's territory

Some Supreme Court watchers say the U.S. Supreme Court has rarely met a 9^th Circuit opinion that it wouldn’t love to overturn. This past term, that trend seems to show little signs of abating.

According to the Los Angeles Times, the Court reversed or vacated decisions from the appellate court covering the nation’s western states a whopping 73 percent of the time.

And while that percentage is on par with past terms, lately the justices of the Supreme Court has been increasingly willing to sharply criticize the reasoning of the west-coast based federal appellate judges, the Times points out.

But one 9^th Circuit judge, Judge Stephen Reinhardt – who has been  a target of the Supreme rebukes on more than one occasion – pointed out that the Court’s justices often take aim at each other, so he wasn’t taking it personally.

“If anything, it’s a compliment. I get treated like the others on the [Supreme] Court,” he told the Times.

“With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future. … In addition, the Judicial Council of the Ninth Circuit has noted the ‘desperate need for judges’ to fill current vacancies, and it is now clear that continuing my nomination will not address that need any time soon.”

~ Goodwin Liu, in a letter Wednesday to President Barack Obama withdrawing his nomination to the 9th Circuit Court of Appeals after a Republican-led filibuster.

Amid the swelling controversy over whether justices of the Supreme Court should recuse themselves from cases where there is an appearance of family, social or political ties to parties, one justice turned to her trial lawyer skills to avoid a question on the issue.

Justice Sonia Sotomayor, in Philadelphia to accept an award from the local bar association, was asked by Fox Rothschild co-chairman Abraham Reich whether justices of the nation’s highest court would be bound by the same ethical mandates as other federal judges.

“In a high profile case, the failure to recuse could have a significant impact,” Reich told the ABA Journal. “I asked her whether or not there would be a change” to make justices subject to the same code of ethics.

“I don’t know,” Sotomoyor replied, according to the Legal Intelligencer. She added: “I used to teach my potential witnesses just to answer the questions asked.”

Imagine public defenders being given IOUs instead of paychecks by the federal government for representing defendants. Or federal court clerks, stenographers, bailiffs and security guards going without paychecks, throwing into question whether court houses could operate at all.

Those are some of the consequences that will result if Washington lawmakers don’t come up with a resolution in the ongoing budget battle, judicial officials warned yesterday.

If Congress’ budget  impasse continues, leading to the government shutdown, “litigation might be grinding to halt for a while,” D.C. Circuit Chief Judge David Sentelle said yesterday after a meeting of the Judicial Conference, according to the Associated Press.

Federal trial courts would be hardest hit, Sentelle said, since appellate courts’ time schedules aren’t as sensitive as those of district courts, the BLT blog reported.

The Conference also issued a statement airing some other concerns regarding Congress’ ongoing budget battle, including the fact that the views of the Judicial Branch are not being represented during budget negotiations.

Who are the hardest working people in government? According to the Washington Post, the answer may be federal judges.

Judicial vacancies are at a ‘crisis’ level as the number of empty seats on the bench rises steadily with judges retiring at a rate of about one per week, the Post reports. The high retirement rate and stalled judicial confirmations in the Senate have caused the number judicial vacancies to double since President Barack Obama took office.

In the Southwest, the situation is particularly dire, with immigration and drug cases filling the dockets and not enough judges to hear them in a timely manner.

The situation caused Judge Roslyn Silver, Chief Judge of Arizona’s federal trial court (who succeeded the late Judge John Roll) to declare a judicial emergency, extending the deadline to put defendants on trial without violating the Speedy Trial Act.

The result: remaining judges have caseloads reaching the ceilings, and some judges – like Central Illinois Chief Judge Michael McCuskey – have to take extraordinary measures like commuting 90 miles to try to fill the gaps. “I had a heart attack six years ago, and my cardiologist told me recently, ‘You need to reduce your stress,’” McCuskey told the Post. “I told him only the U.S. Senate can reduce my stress.”

Virginia’s attorney general said Thursday that he would ask the U.S. Supreme Court for direct review of the Virginia federal court ruling invalidating part of the health care overhaul that became law last year.

Attorney General Kenneth T. Cuccinelli said he would seek to bypass the 4^th Circuit Court of Appeals and go directly to the nation’s highest court because the uncertainty over whether Congress had the authority to mandate health care coverage required fast resolution.

“Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that in the end may be declared unconstitutional,” Mr. Cuccinelli said according to The New York Times.

Two federal courts have upheld the law, while courts in Virginia and Florida struck down the individual mandate as violative of the Constitution’s Commerce Clause. The Florida Court declared the entire law invalid.

Meanwhile, Utah GOP Sen. Orrin Hatch said Justice Elena Kagan should recuse herself when the challenge to the law reaches the Supreme Court. And he said, that move could create a 4-4 tie among the justices.

“I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court,” Hatch said Wednesday evening on Fox News, The Hill reports. “That means the lower court decision will be the acting law.”

Within minutes of yesterday’s ruling by a Florida federal court striking down the law overhauling the nation’s health care system in its entirety, the White House condemned the ruling as “judicial activism.”

“We don’t believe this kind of judicial activism will be upheld and we are confident that the Affordable Care Act will ultimately be declared constitutional by the courts,” White House Deputy Senior Advisor Stephanie Cutter posted on the White House blog.

U.S. District Judge Roger Vinson is the first judge to rule the entire law unconstitutional based on the provision requiring most Americans purchase health insurance. While a Virginia federal court also struck down the individual mandate portion of the law in December, finding that Congress lacked the authority under the Commerce Clause to pass it, Vinson’s ruling went farther, holding that the law was not severable because “there are simply too many moving parts,” and therefore unconstitutional in its entirety.

Vinson did not enjoin the law from being enforced while the case is appealed, however.

David Rivkin, the attorney representing the 26 states that brought the lawsuit, said the ruling effectively nullifies the health care law in those states. But White House officials strongly disagree, saying “implementation will proceed apace,” according to The Washington Post.

GOP lawmakers lauded the decision.

“ObamaCare is clearly unconstitutional, courts continue to rule against it, and Americans sent a clear message in November to repeal it,” said Sen. Jim DeMint in a statement, adding that all GOP senators support legislation that would repeal the health care law. That measure passed in the House with GOP support, but is an effective dead letter due to its lack of support in the Democrat-controlled Senate.

Democratic lawmakers like Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin blasted the ruling.

“Vinson is wrong in his assessment of the individual mandate,” Harkin said in a statement.  “When people seek medical care without health insurance and don’t pay for it, they aren’t ‘opting out’ of the health care market.  Instead, it adds more than $1,000 per year to the premiums of American families who act responsibly by having coverage.  This clearly affects interstate commerce and is thus within Congress’ power to regulate.”

The shooting Saturday in Tucson that claimed the life of Chief Judge John Roll of the U.S. District Court for Arizona as well as five others, and critically wounded U.S. Rep. Gabrielle Giffords, prompted Chief Justice John G. Roberts, Jr. to make the rare move of issuing a statement.

“The violence in Arizona today has senselessly taken five lives and inflicted tragic loss on dedicated public servants and their families,” Roberts said in a statement released by the U.S. Supreme Court Saturday. “We in the judiciary have suffered the terrible loss of one of our own. Chief Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction, as attorney and judge, for more than 35 years. I express my deepest condolences to his wife Maureen and his children, as well as the other victims and their families. Chief Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it.”

Roll attended an event with Giffords at a Tucson Safeway store to thank her for supporting his push for a judicial emergency on immigration cases, The Wall Street Journal reported.

Roll served on the federal court’s bench since 1991, and as chief judge of the district since 2006. A statement on the court’s website described roll as a “devoted husband, father of three, grandfather of five, and friend to all who knew him. … He was a warm, compassionate judge and inspirational leader in what is one of the busiest districts in the country.”

President Barack Obama called on Americans to join him in a moment of silence for the Arizona shooting victims Monday morning.

The alleged shooter, 22-year-old Jared Lee Loughner, is in federal custody and is scheduled to appear in a Phoenix court on Monday.

The Justice Department will appeal a federal judge ruling striking down a key component of the federal health care overhaul, a step that brings the law one step closer to landing before the U.S. Supreme Court.

Earlier this week, a Virginia federal court held that the federal government lacked authority to require individuals to carry health insurance. The gist of the technical constitutional analysis was that the health care mandate was not an”activity” that the federal government had the power to regulate under the Commerce Clause. Two other federal courts – one in western Virginia and another in Michigan – ruled in the government’s favor against challenges to the law.

But the victory in Virginia may spell good news for challengers seeking to strike the law down, one expert told The Wall Street Journal. Former Solicitor General Gregory Garre told the Journal that challengers are more likely to find support in the appellate court that will hear the government’s appeal – the 4^th Circuit.

“If you had to handicap it, the 4th and the 11th Circuits would be the most friendly to the challengers,” said Garre.

The 11^th Circuit may also get its chance. Arguments in a challenge filed in a Florida Court are set for Thursday.

The robocall snafu that caused thousands of Nevada residents to be awakened in the middle of the night with a message from retired Supreme Court Justice Sandra Day O’Connor has opened a bigger can of worms.

Not only was the justice’s recorded message not intended to ring the phones of Nevadans at 1 a.m. Monday. O’Connor says she never intended for the message to be used at all in automated phone messages, blogs The National Law Journal‘s Tony Mauro.

“I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way,” O’Connor said yesterday in a statement issued by the Court. “In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.”

The statement was released after a National Review Online piece questioned whether O’Connor’s advocacy for a ballot measure that would create a merit-based state judicial selection system violated ethics rules, since the retired justice still sits on federal courts. The Code of Conduct for United States Judges prevents federal judges from participating in political activities.

In the NRO piece, Ed Whelan notes that O’Connor cast the deciding vote Tuesday in Gonzalez v. Arizona, a 9^th Circuit ruling striking down an Arizona law requiring voters to present identification and proof of citizenship before voting. “That’s just one illustration why the ethics rules bar her from engaging in political-campaign activity while still sitting as a federal judge,” Whelan wrote. Mauro notes that Whelan is also president of the D.C.-based Ethics and Public Policy Center.

While Whelan asserts that O’Connor’s participation may violate ethics rules, DePaul University College of Law Prof. Jeffrey Shaman tells Mauro that the Code of Conduct does not apply to Supreme Court justices, although justices have said they adhere to the code anyway.

“The idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process,” Shaman said.