Reduce Reversals by Splitting the Ninth Circuit?

If you’ve followed any of the debate about splitting the Ninth Circuit into two circuits, check out incoming Vanderbilt law professor Brian Fitzpatrick’s op-ed piece in the Los Angeles Times from Wednesday, in which he asserts that the Ninth Circuit’s size is partly to blame for its high reversal rate because it makes it more likely that two “extreme” judges will be assigned to the same panel:

Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions.

We know that all judges are not created equal. Some are more ideologically extreme, more willing to push the law in a liberal or conservative direction, to find ways around precedents they do not like. Such extreme jurists are a minority on any federal court of appeals, but these courts don’t typically decide cases by a majority vote of their entire memberships. Rather, cases are heard by panels of three judges selected at random. So, despite their small overall numbers, extreme judges will occasionally make up a 2-1 majority.

Professor Fitzpatrick goes on to a more specific numerical analysis.

Prawfs Blawg challenges Fitzpatrick’s contention that the Ninth Circuit’s reversal rate indicates that it is “not doing a very good job.”  There’s some lively debate in the comments there.

This post by Jonathan Adler at The Volokh Conspiracy briefly summarizes Fitzpatrick’s piece and likewise generates some energetic discussion in the comments.

SCOTUSBlog has the most detailed statistical counter-analysis.  Again, check the comments.

Finally, the Wall Street Journal Law Blog summarizes Fitzpatrick’s piece. Do I even need to tell you to check the comments?

After reading all the comments, one conclusion is inescapable: an “extreme judge” is in the eyes of the beholder.  Now there’s a shock.

UPDATE (7/16/07): University of Richmond law professor Cullen Seltzer has a column at Slate entitled “In Defense of the 9th Circuit.” I’m guessing that all those commenters who told the Tennessee-based writer of the L.A. Times piece not to tell us how to do things in California are going to find commentary from this Virginia professor to be less objectionable.