The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels. This short article at Law.com provides some limited background on the move, including comment from one circuit judge:
“It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.”
The Ninth Circuit is the only circuit that does not have every judge sit on every en banc panel. This has been one of the size-related criticisms leveled against it. The Ninth Circuit’s unique en banc procedure has been defended by judges from the circuit in testimony to Congress, including Judge Thomas and Judge Kozinski, each in his capacity as the en banc coordinator for the court.
Judge Thomas’s testimony in 2005 included his view that the 15-judge panels would “ameliorate” the concern that the use of only 11 judges on en banc panels results in a decision by less than a majority of the court’s judges.
Long before the court adopted the 15-judge panel, Judge Kozinski’s statement in 2003 claimed that the large size of the court was a benefit to en banc review because even though not all judges sit on the en banc panel, “[t]he fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit.”
As this testimony demonstrates, the debate over the size of the Ninth Circuit court has been going on for years. And if this recent spike in blog posts about the size of the court is any indication, the debate isn’t going to end any time soon.