Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition

I've regularly posted judicial clerkship statistics on this blog. This year, I offer something slightly different: "Federal Judicial Clerkship Report of Recent Law School Gradates, 2018 Edition," a report I've posted on SSRN.

This Report offers an analysis of the overall hiring of recent law school graduates into federal judicial clerkships between 2015-2017 for each law school. It includes an overall hiring report, regional reports, overall hiring trends, an elite hiring report, and trends concerning judicial vacancies.

A preview of overall placement:

There's also been a decline in total law school federal clerkship placement, likely attributable in part to the rise in federal judicial vacancies:

For these and more, check out the Report!

In the Orange County Register: "Judicial vacancies threaten the rule of law"

Last week, the Orange County Register published my opinion piece, "Judicial vacancies threaten the rule of law." It begins:

There is a judicial crisis in California, but you won’t hear the judges talking about it. Those professionals work tirelessly without complaint. But California needs more federal judges, and it needs them with higher salaries. Otherwise, access to justice will be diminished, and the rule of law will be threatened.

Is the ABA any good at evaluating judicial nominees?

The American Bar Association ("ABA") has long been evaluating federal judicial nominees, and it has received some scrutiny for how it goes about doing so. There have been empirical studies to show that Republican-nominated judicial candidates tend to receive lower scores than Democratic-nominated candidates, studies which admittedly offer their own limitations.

...as an aside, I've also found it interesting to dig through the ratings of those who appeared on President Donald Trump's "list" of prospective Supreme Court nominees:

Brett Kavanaugh: revised rating Q (sm), WQ (min) (backstory on downgraded rating here)

Thomas Hardiman: Q (sm), NQ (min) [on nomination to Third Circuit, WQ (1 abstention)]

Raymond Kethledge: WQ (sm), Q (min)

Amul Thapar: WQ (1 abstention)

Diane Sykes: WQ (sm), Q (min)

Steven Colloton: Q (sm), WQ (min), NQ (min)

Raymond Gruender: Q

Neil Gorsuch: WQ

Timothy Tymkovich: Q (sm), NQ (min)

Bill Pryor: Q (sm), NQ (min)

Federico Moreno: Q

To be fair, there are different traits that might make one a good district court judge, appellate judge, and Supreme Court justice. But it's worth noting, I think, that the very candidates a Republican presidential administration considers as most worthy of a Supreme Court nomination received, on the whole, fairly middling grades from the ABA.

Back to the topic at hand. I want to set those aside for a moment these debates, and look instead at something else. Is the ABA any good at doing what it purports to do?

As the Standing Committee on the Federal Judiciary reports, "the Committee focuses strictly on professional qualifications: integrity, professional competence and judicial temperament." The goal is to "ensure that the most qualified persons serve on the federal judiciary."

Is the ABA any good at that?

In part, that's because the ABA is typically looking backward at a candidate's record, then trying to project it forward to how the ABA believes that person will behave as a judge. It might be the case that past performance is an indicator of future success, but it also might be the case that the ABA is relying on weak measures of "qualifications."

One problem is the "rating" system itself, which lacks any nuance and instead offers the kind of thumbs-up/thumbs-down (and thumbs-sideways) of a movie review. Yes, there are probably several minutes of thoughtful film commentary that could precede that final rating, but, here, the ABA actually leaves all that commentary on the cutting room floor. All we have are opaque inputs and a single output.

One of the criteria that the ABA uses is "experience," and it includes some hard-and-fast proxies for experience: "The Committee believes that a prospective nominee to the federal bench ordinarily should have at least twelve years’ experience in the practice of law." This isn't a terribly thoughtful criterion, even if it has the advantage of being a fairly clear rule. That said, one would be hard-pressed to think a rule like this does very much to fill out the term "qualified" or "not qualified." After all, Roger Ebert might well have said, "If a movie comes in under an hour twenty, I give a thumbs down." But if we have no rush to get younger judges, then perhaps it's a fairly harmless criterion.

Additionally, the committee makes other kinds of ex ante determinations about what makes a good judge, like "substantial courtroom and trial experience as a lawyer or trial judge is important." These tend to skew the judiciary toward those with more practical experience, true; it also skews toward litigators and trial lawyers. For appellate judicial nominees, the ABA places "somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts." It prizes certain types of experience: "While the Committee recognizes that civic activities and public service are valuable experiences for a prospective nominee, they are not a substitute for significant experience in the practice of law in either the private or public sector."

For those presidents who pre-screened their lists of applicants with the ABA, the results can be frustrating. President Barack Obama saw the ABA reject 14 of his prospective judicial nominees as "not qualified" his first three years in office. As Obama administration officials complained, "In particular, they have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors."

Now, perhaps these ABA litigators are right, and perhaps their criteria are superior. Could that be measured? That would be a new and valuable place for future ABA studies. But that is also difficult to quantify. Allow me to offer a few thoughts.

First, we have a handful of notoriously bad-behaving judges we can examine.

Thomas Porteous was rating unanimously "qualified" (not "well qualified"), but he was impeached and removed for committing perjury by signing false financial disclosure forms and abusing his judicial office.

Samuel Kent was unanimously rated "well qualified," but he was impeached and later resigned from office for lying about sexual misconduct involving female employees.

Mark Fuller, in contrast, received a "qualified" rating with a minority "not qualified," before resigning after an investigation involving allegations about spousal abuse. (I should add, maybe this is a hard thing to measure ex ante....)

Second, I looked to a couple of the examples cited recently of more controversial nominees, and then I examined what litigants had to say about those judges in the Federal Judicial Almanac.

Roger Benitez received a substantial majority "not qualified," with a minority "qualified." Here's highlights from the Federal Judicial Almanac on him:

Alison Nathan received a majority "qualified," with a minority "not qualified." From the Almanac:

As a law professor who has to read (often inconsistent) student evaluations of my own performance each semester, I'm well aware of the limitations evaluations like these might present. But, in my view, they reflect, on the whole, that both judges are, with some possible weaknesses, capable and competent (even "qualified") judges. And, of course, perhaps someone will counter that using the Almanac has an entirely different set of flaws to evaluate judges.

Now, I have no idea how many Type I & Type II errors come out of the ABA judicial nominating process, at least to the regard that it's trying to anticipate who is "qualified" for the bench. I just cherry-picked a few examples, and I made no effort to dig deeper.

Additionally, these judges are hardly a random sample. They are selected, at times, to comport with the ABA criteria, and, with a couple of recent Republican administration exceptions, exclude candidates unanimously rated "not qualified." Other political reasons sink some nominees. Some items arise so far in the future that perhaps the ABA could not reasonably have been thought to be capable of evaluating that candidate's qualifications.

That said, I do think there would be tremendous value in examining the Federal Judicial Almanac entries of recent nominees and trying to compare them with ABA ratings. I assume, but perhaps I am wrong in the assumption, that the correlation between "qualified" ratings and the feedback from litigants is uneven. Additionally, I wonder if, over the course of a judge's career, the judge's capabilities (particularly instincts regarding exercises of discretion) improve to a degree that lessen the significance of any shortcomings. (Admittedly, learning on the job may be cold comfort to some early litigants!)

All this is to say, I wonder, setting aside the political critiques of the ABA at the moment, whether its evaluation process is even doing what it's designed to do in the first place.

RSS feeds of federal appellate opinions

Even after the death of Google Reader, I've been an avid RSS user for many years, most recently using Feedly. RSS is a simple feed for web pages, and an RSS reader aggregates those feeds into a single location. I follow hundreds of blogs this way, but more than that. I can follow the updates to a pending state law on the legislature's website, the columns from an opinion writer at a newspaper, or an agency's updates in the Federal Register. And unlike Twitter (where I probably have to see it pop up at the top of my feed, and the author must actively share the piece) or Facebook (where I might be stymied by the News Feed's proprietary algorithm that only lets me see certain content), I get to see everything, and everything is held until I open my reader and peruse the headlines.

Yes, RSS can be a bit wonky to the average user, but it's an essential way for me to gather news. That includes federal appellate judicial opinions. Below, I've aggregated the RSS feeds of each of the federal courts of appeal. When given the option, I chose all opinions instead of only "published" or "precedential" opinions. When given the option, I also chose the "summary" or "daily" option that aggregated all the day's opinions into a single RSS item rather than ones that would separate them into independent items. In the event you find a better feed or an error, please let me know!

First Circuit

Second Circuit (no longer operating)

Third Circuit

Fourth Circuit

Fifth Circuit

Sixth Circuit (no RSS, only email subscriptions)

Seventh Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

Eleventh Circuit

D.C. Circuit

Federal Circuit (no RSS)

Visualizing law school federal judicial clerkship placement, 2014-2016

The release of the latest ABA employment data offers an opportunity to update the three-year federal judicial clerkship placement rates. Here is the clerkship placement rate for the Classes of 2014, 2015, and 2016. Methodology and observations below the interactive visualization. The "placement" is the three-year total placement; the "percentage" is the three-year placement divided by the three-year graduating class total.

The placement is based on graduates reported as having a full-time, long-term federal clerkship. (A one-year term clerkship counts for this category.) I thought a three-year average for clerkships (over 3600 clerks from the graduating classes of 2014, 2015, and 2016) would be a useful metric to smooth out any one-year outliers. It does not include clerkships obtained by students after graduation; it only includes clerkships obtained by each year's graduating class.

I included some schools that had only one or two year's worth of data, like the separate Penn State schools. Additionally, I merged the entries for William Mitchell and Hamline into Mitchell|Hamline. The three schools in Puerto Rico are excluded.

I should add that we've actually seen a slight decline in graduates placed into federal clerkships, just under 1200 for the second year in a row. Given last year's figures, some might think this is a trend toward judges hiring more clerks with work experience. I'm not sure that's the case. Instead, I would venture to guess that because the Senate last confirmed a federal judge in November 2015, we may be experiencing an unusual number of vacancies--and, therefore, lack of slots for clerkship hires. In the event the President nominates, and Congress confirms, these judges, we could see a few hundred more clerkship openings in the near future. And if Congress chooses to create more judgeships consistent with the recommendations of the Federal Judicial Center, we'd see even more.

I'll highlight two smaller charts first. The first is New York law school placement.

School Pct Total Clerks
Cornell University 6.5% 36
New York University 5.8% 84
Columbia University 5.0% 64
Brooklyn Law School 2.4% 26
Fordham University 2.0% 25
Syracuse University 1.8% 10
University of Buffalo-SUNY 1.2% 7
St. John's University 1.2% 9
Cardozo School of Law 1.2% 13
Albany Law School 1.1% 6
City University of New York 1.1% 4
Pace University 0.7% 4
New York Law School 0.7% 8
Hofstra University 0.7% 6
Touro College 0.0% 0

The second is California law school placement.

School Pct Total Clerks
Stanford University 27.1% 153
University of California-Irvine 12.5% 40
University of California-Berkeley 12.3% 110
University of California-Los Angeles 4.0% 39
Pepperdine University 3.5% 20
University of Southern California 2.9% 18
University of California-Davis 2.8% 14
Loyola Law School-Los Angeles 2.3% 26
University of San Diego 2.0% 15
University of California-Hastings 1.7% 17
Thomas Jefferson School of Law 0.7% 5
California Western School of Law 0.6% 4
McGeorge School of Law 0.4% 2
Chapman University 0.2% 1
University of San Francisco 0.2% 1
Southwestern Law School 0.1% 1
University of La Verne 0.0% 0
Western State College of Law 0.0% 0
Golden Gate University 0.0% 0
Whittier Law School 0.0% 0
Santa Clara University 0.0% 0

An overall raw chart is below.

St School Pct Total Clerks
CT Yale University 31.0% 200
CA Stanford University 27.1% 153
MA Harvard University 17.6% 312
IL University of Chicago 15.8% 98
VA University of Virginia 15.2% 159
NC Duke University 12.7% 82
CA University of California-Irvine 12.5% 40
CA University of California-Berkeley 12.3% 110
MI University of Michigan 11.1% 119
TN Vanderbilt University 10.3% 58
PA University of Pennsylvania 9.8% 77
TX University of Texas at Austin 9.4% 100
IL Northwestern University 8.0% 66
AL University of Alabama 7.6% 35
MT University of Montana 7.5% 18
IN University of Notre Dame 7.0% 37
LA Tulane University 6.6% 45
KY University of Kentucky 6.5% 26
NY Cornell University 6.5% 36
VA Washington and Lee University 6.1% 24
IA University of Iowa 5.9% 25
VA William and Mary Law School 5.8% 36
NY New York University 5.8% 84
GA University of Georgia 5.8% 36
NC University of North Carolina 5.7% 40
VA University of Richmond 5.5% 25
NY Columbia University 5.0% 64
TX Baylor University 5.0% 20
MN University of Minnesota 4.9% 37
PA Temple University 4.8% 34
MO Washington University 4.5% 32
MS University of Mississippi 4.3% 19
DC Georgetown University 4.1% 81
AR University of Arkansas, Fayetteville 4.1% 15
UT Brigham Young University 4.1% 17
WA University of Washington 4.0% 22
CA University of California-Los Angeles 4.0% 39
WV West Virginia University 3.8% 14
UT University of Utah 3.8% 14
GA Mercer University 3.8% 16
DC George Washington University 3.7% 59
DC American University 3.7% 49
GA Emory University 3.6% 31
KS University of Kansas 3.6% 13
IL University of Illinois 3.6% 19
CA Pepperdine University 3.5% 20
MO University of Missouri 3.4% 13
MA Boston College 3.3% 25
WY University of Wyoming 3.3% 7
VA Regent University 3.0% 10
SD University of South Dakota 3.0% 6
TX Texas Tech University 3.0% 18
TN University of Memphis 2.9% 10
NC Wake Forest University 2.9% 15
CA University of Southern California 2.9% 18
CA University of California-Davis 2.8% 14
PA Pennsylvania State University 2.8% 5
GA Atlanta John Marshall Savannah 2.8% 1
MS Mississippi College 2.7% 12
MD University of Maryland 2.7% 21
GA Georgia State University 2.7% 16
IN Indiana University - Bloomington 2.6% 16
TX Southern Methodist University 2.6% 19
NV University of Nevada - Las Vegas 2.6% 10
VA George Mason University 2.6% 12
LA Louisiana State University 2.6% 15
SC University of South Carolina 2.5% 15
KY University of Louisville 2.5% 9
OH Ohio State University 2.5% 14
AZ University of Arizona 2.4% 10
FL Florida State University 2.4% 17
NY Brooklyn Law School 2.4% 26
LA Loyola University-New Orleans 2.4% 15
NE Creighton University 2.4% 9
ME University of Maine 2.4% 6
CA Loyola Law School-Los Angeles 2.3% 26
TN University of Tennessee 2.3% 10
CT University of Connecticut 2.2% 11
OH University of Toledo 2.2% 7
DC Howard University 2.2% 8
CO University of Colorado 2.2% 11
FL University of Florida 2.1% 20
CA University of San Diego 2.0% 15
PA Widener-Commonwealth 2.0% 5
NY Fordham University 2.0% 25
WI University of Wisconsin 1.9% 12
AZ Arizona State University 1.8% 11
NY Syracuse University 1.8% 10
NJ Rutgers Law School 1.8% 22
OH Case Western Reserve University 1.7% 7
CA University of California-Hastings 1.7% 17
NE University of Nebraska 1.7% 6
OR Lewis and Clark College 1.6% 10
WI Marquette University 1.6% 10
NM University of New Mexico 1.5% 5
NC Elon University 1.5% 4
OH University of Cincinnati 1.5% 5
TX University of Houston 1.4% 10
MO University of Missouri-Kansas City 1.3% 6
AR University of Arkansas, Little Rock 1.3% 5
OH Ohio Northern University 1.3% 3
ND University of North Dakota 1.3% 3
NJ Seton Hall University 1.3% 8
AL Samford University 1.2% 5
IL Southern Illinois University-Carbondale 1.2% 4
NC Campbell University 1.2% 5
NY University of Buffalo-SUNY 1.2% 7
NY St. John's University 1.2% 9
KY Northern Kentucky University 1.2% 5
NY Cardozo School of Law 1.2% 13
MA Boston University 1.2% 8
PA University of Pittsburgh 1.2% 7
PA Villanova University 1.2% 7
TX Texas Southern University 1.1% 5
OK University of Oklahoma 1.1% 5
NY Albany Law School 1.1% 6
PA Penn State - Dickinson Law 1.1% 1
NY City University of New York 1.1% 4
OK University of Tulsa 1.1% 3
MA Northeastern University 1.1% 6
SC Charleston School of Law 1.1% 5
PA Penn State Law 1.0% 2
FL Stetson University 1.0% 9
VA Liberty University 1.0% 2
MI Michigan State University 1.0% 9
WA Gonzaga University 1.0% 4
PA Drexel University 1.0% 4
MI Wayne State University 0.9% 4
OR University of Oregon 0.9% 4
ID University of Idaho 0.9% 3
FL University of Miami 0.9% 10
NY Pace University 0.7% 4
NY New York Law School 0.7% 8
NH University of New Hampshire 0.7% 2
NY Hofstra University 0.7% 6
VT Vermont Law School 0.7% 3
PA Duquesne University 0.7% 3
IL Loyola University-Chicago 0.7% 5
FL Florida A&M University 0.7% 3
CA Thomas Jefferson School of Law 0.7% 5
MO Saint Louis University 0.7% 4
IN Valparaiso University 0.6% 3
CA California Western School of Law 0.6% 4
IL John Marshall Law School 0.6% 7
OH University of Dayton 0.6% 2
TN Belmont University 0.6% 1
WA Seattle University 0.6% 5
CO University of Denver 0.6% 5
TX St. Mary's University 0.6% 4
IA Drake University 0.6% 2
OH Cleveland State University 0.5% 2
DE Widener University-Delaware 0.5% 3
MN University of St. Thomas (Minnesota) 0.5% 2
OH University of Akron 0.5% 2
IL Chicago-Kent College of Law-IIT 0.5% 4
TX South Texas College of Law 0.5% 5
AZ Arizona Summit Law School 0.5% 4
DC Catholic University of America 0.4% 2
AL Faulkner University 0.4% 1
IL Depaul University 0.4% 3
FL Ave Maria School of Law 0.4% 1
LA Southern University 0.4% 2
CA McGeorge School of Law 0.4% 2
MD University of Baltimore 0.3% 3
IL Northern Illinois University 0.3% 1
FL St. Thomas University (Florida) 0.3% 2
TX Texas A&M University 0.3% 2
KS Washburn University 0.3% 1
IN Indiana University - Indianapolis 0.3% 2
CA Chapman University 0.2% 1
OK Oklahoma City University 0.2% 1
MA Suffolk University 0.2% 3
MI University of Detroit Mercy 0.2% 1
NC North Carolina Central University 0.2% 1
CA University of San Francisco 0.2% 1
MN Mitchell|Hamline 0.2% 2
FL Barry University 0.1% 1
FL Nova Southeastern University 0.1% 1
MA New England Law | Boston 0.1% 1
CA Southwestern Law School 0.1% 1
NC Charlotte School of Law 0.1% 1
TN Lincoln Memorial 0.0% 0
ID Concordia Law School 0.0% 0
VA Appalachian School of Law 0.0% 0
CA University of La Verne 0.0% 0
MA University of Massachusetts Dartmouth 0.0% 0
CT Quinnipiac University 0.0% 0
HI University of Hawaii 0.0% 0
RI Roger Williams University 0.0% 0
CA Western State College of Law 0.0% 0
DC District of Columbia 0.0% 0
MA Western New England University 0.0% 0
CA Golden Gate University 0.0% 0
OR Willamette University 0.0% 0
OH Capital University 0.0% 0
CA Whittier Law School 0.0% 0
NY Touro College 0.0% 0
GA Atlanta's John Marshall Law School 0.0% 0
FL Florida International University 0.0% 0
CA Santa Clara University 0.0% 0
FL Florida Coastal School of Law 0.0% 0
MI Thomas M. Colley Law School 0.0% 0

Congress, the executive, and the FBI: what makes a "constitutional crisis"?

A few longer, meandering thoughts from a few Twitter threads overnight....

President Donald Trump fired Federal Bureau of Investigation ("FBI") Director James Comey last night. As I tweeted last October, the Office of Legal Counsel has long held the view that the FBI director may be removed "at the will of the president." The removal is certainly constitutional. There is a design of independence in the FBI director--he is given a 10-year position, which is designed to insulate him from political pressure, such as the pressure of renewal by the same president who hired him. But that does not mean that he is legally independent.

Much of the commentary that erupted has elided some of these legal and political distinctions. But it's worth noting that the firing itself has elided these distinctions. And it's worth emphasizing why our constitutional order is functioning quite well--hardly a "constitutional crisis." That said, the next political steps will be significant in the extent to which they protect the institutions, and the checks, the Constitution has created.

President Trump could have fired Mr. Comey for no reason whatsoever. But he didn't. He provided reasons linked to Mr. Comey's handling of Hillary Clinton's email server. As commentators have already noted, elements of this justification seem oddly post hoc or a solution in search of a justification. Some have speculated that the true reason was on account of the investigation into the possible relationship between members of the Trump campaign and Russia. (Indeed, President Trump mentions in the cover letter that he is gratified that Mr. Comey has informed him "on three separate occasions" that he is not under investigation.)

Here we see an important legal/political distinction. Legally, President Trump needed no such justification; politically, he felt compelled to come up with a reason. (Apparently, that reason has not been sufficiently persuasive to many.) Because of a political tradition of rarely firing the director of the FBI (President Bill Clinton is the only other to do so, after a lengthy investigation and fact-finding)

Some have opined about the problems of this regime--how can the President be able to fire at will the very person investigating him? Consider Justice Antonin Scalia's words in dissent in Morrison v. Olson (1988) (some citations excluded):

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.  The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed. Reg. 30738 (1973).

As Professor Adrian Vermeule has carefully pointed out, the remedies here are political. And they are considerably more powerful, I think, than many otherwise anticipate.

First, the Senate has the power to consent to appointment of the next FBI director.

Second, the House can initiate impeachment proceedings.

Third, Congress can authorize the creation of a special prosecutor to investigate (who might still be removable at the will of the Attorney General).

Fourth, Congress can create an independent commission to investigate the matter.

The likelihood is perhaps another matter. It is worth noting that these political solutions work under limited circumstances: if party that controls the Senate (or Congress) is not the President's party, or if there is bipartisan support for these political solutions, or if one waits for an intervening election, or if Congress can override the President's veto on new legislation. There is some suggestion that this may be a bipartisan moment, at least among some influential moderate and independent Senators. Time will tell. But these are the costs of a political system like we have, as Justice Scalia pointed out in Morrison.

Two notable solutions are likely unavailable.

The first is the independent counsel--the very thing that was approved in Morrison v. Olson. Much time has passed since 1988, and many view Justice Scalia's dissent as unusually prophetic. It may be that the Supreme Court would overrule Morrison--indeed, Justice Elena Kagan offered remarkable praise for Justice Scalia's dissent, and it may well be the case that there are five votes to overturn Morrison. Some in Congress have already mentioned such a possibility, but I believe that would be dead on arrival in Congress, much less in the courts.

The second is a judicial remedy. The battle here will play out between Congress and the executive--and into the political realm in 2018, given our frequency of elections in the United States. The federal courts--absent, perhaps, weighing in on the constitutionality of some such possible new legislation in the future--will remain on the sidelines.

Finally, I've seen people refer to this as a "constitutional crisis," but, as Professor Orin Kerr notes, this phrase has become something too broad. This isn't the Civil War; this is a significant political controversy, to be sure, that will be carried out in Congress, in the executive, and in the election cycle. But it's something our Constitution is actually fairly equipped to handle. What the results will be, and whether one finds those results acceptable, is, I think, quite a different matter.

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.
A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.
. . .
I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Politifact fact-check: the Ninth Circuit is, in fact, the most reversed federal court of appeals

Recently, cable news personality Sean Hannity commented that the Ninth Circuit is the "most overturned court in the country." Politifact rated that claim as "false." But Politifact's analysis is seriously flawed and suffers from selective analysis of the evidence, and misrepresentation of the evidence in other respects.

I recently had the opportunity to appear on NPR's AirTalk to support a proposal from Arizona Senator Jeff Flake's office to split up the United States court of Appeals for the Ninth Circuit. The "Judicial Administration and Improvement Act of 2017" would keep California, Oregon, Hawaii, and some U.S. territories in the Ninth Circuit. It would create a new Twelfth Circuit out of Arizona, Nevada, Montana, Idaho, Washington, and Alaska.

One reason for splitting the circuit is systemic dysfunction in the Ninth Circuit. It has 29 active judges, (but four vacancies at the moment) nearly the size of the 30-member Arizona Senate (to speak on terms for those from the Grand Canyon State). That's nearly twice as large as the 17-member Fifth Circuit. It's little wonder that decisions take longer (often much longer) to issue from the Ninth than anywhere else. Splitting the circuit would help create a new "Mountain Circuit" that would function fairly effectively, and the new Ninth Circuit would remain the largest circuit in the country.

More judges might help the Ninth speed along cases, but it would not help its high reversal rate. That's because the court lacks the ability to self-correct with true en banc procedures; the entire 29-member court can't really assemble, and it's left instead to a lottery of some subset of these judges to correct errors from three-judge panels. And in a lottery of three judges among 29, some combinations are sure to be greater outliers than others. Splitting the circuit would allow it to have true en banc procedures and minimize reversal rates.

The Ninth Circuit's legacy is cemented by instances like October Term 1996, when it went 1-for-28, the stuff of legend. The Ninth Circuit is reversed more often perhaps because its size accounts for poorer outcomes.

So, to Mr. Hannity's claim that the Ninth Circuit is the "most reversed." While there are arguments raised in the Politifact piece that "most reversed" may have limited normative significance, that's a separate argument. (But, Politifact can't help itself to weigh in on the normative claim, concluding, "More broadly, experts say this statistic is a poor way of comparing courts.") Instead, as a matter of pure math, is the Ninth Circuit the "most reversed"?

Politifact says no. The answer is resoundingly yes.

Politifact chooses a cohort of data from 2010 to 2015 to conclude that the Ninth Circuit is the third-most reversed, behind the Sixth and Eleventh Circuits. But why pick this window of time?

I used the same analysis with slightly different data--Politifact uses the SCOTUSBlog Stat Pack, which is slightly simpler and less comprehensive in time than the Harvard Law Review statistics, which I opted to use (and may result in some slight variations of the numbers). Because of changes to the Harvard Law Review statistics system, I also didn't have ready access to Eleventh Circuit data between OT1994 and OT1996.

The chart below displays the cumulative reversal rate, which includes opinions from the Supreme Court that reverse a court, vacate an opinion from a court, or reverse in part or vacate in part. It is the cumulative reversal rate based on the term listed: so, for instance, OT2014 data is the cumulative reversal rate for OT2014 & OT2015; OT2013 is the cumulative reversal rate for OT2013, OT2014, and OT2015. I ran the figures for the Sixth, Ninth, and Eleventh Circuits.

It would be hard for Politifact to manufacture a window that more perfectly enables it to refuse Mr. Hannity's claim. If you begin to include any earlier terms, the Eleventh Circuit quickly falls behind the Ninth in reversal rates; by including a 12-year window back to OT2004, the Ninth Circuit is the most reversed, and holds that trend back through cumulative data to at least OT1994.

Now, there are, of course, many ways to slice such data. Is the Ninth Circuit relatively better than it has been? (Answer: yes, but not by much--its cumulative reversal rate since OT2012 was around 80%, not much better than the rate of around 82% since OT1994). Is the Ninth Circuit not as bad as other circuits in recent years? (Answer: yes, but only with a fairly limited window of time.)

But for Politifact to so brazenly rate Mr. Hannity's claim as "false" displays its choice to evaluate his claim through a single and precise window--perhaps to achieve a result that the fact-checker desired to reach.

Below are charts for the 9th Circuit and 6th Circuit reversal rates dating back to OT1994.

9th Circuit rev/vacate total rev rate
OT1994 14 17 82%
OT1995 11 13 85%
OT1996 27 28 96%
OT1997 14 17 82%
OT1998 14 18 78%
OT1999 9 10 90%
OT2000 13 17 76%
OT2001 14 18 78%
OT2002 18 23 78%
OT2003 19 25 76%
OT2004 16 19 84%
OT2005 15 18 83%
OT2006 19 21 90%
OT2007 8 10 80%
OT2008 15 16 94%
OT2009 11 15 73%
OT2010 19 24 79%
OT2011 18 24 75%
OT2012 12 14 86%
OT2013 10 11 91%
OT2014 10 15 67%
OT2015 8 10 80%
Total 314 383 82%
6th Circuit rev/vacate total rev rate
OT1994 4 7 57%
OT1995 2 4 50%
OT1996 2 3 67%
OT1997 3 3 100%
OT1998 2 4 50%
OT1999 3 4 75%
OT2000 5 7 71%
OT2001 9 10 90%
OT2002 5 7 71%
OT2003 6 8 75%
OT2004 7 11 64%
OT2005 6 8 75%
OT2006 4 7 57%
OT2007 2 3 67%
OT2008 5 5 100%
OT2009 7 7 100%
OT2010 5 6 83%
OT2011 5 5 100%
OT2012 2 2 100%
OT2013 9 11 82%
OT2014 4 5 80%
OT2015 3 4 75%
Total 100 131 76%

Additionally,  and inexplicably, the Politifact analysis includes this absurd claim:

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

Just as it would be wrong to look at the total number of reversals--the Ninth Circuit is the largest circuit, and we would expect it to have the most raw reversals (and the most raw affirmed opinions) over a period of years, such as 314 reversals in a little over 20 years, which dwarfs all others--it would be just foolish to look at a single year's data for which circuit had the highest reversal rate. While it sounds impressive that the Ninth Circuit was "never" the "highest" in a single year for 12 years, Politifact's own reporting in this same piece explains why a single year's data is a silly metric:

In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

There are plenty of years where a single circuit's record is 0-1, or 0-2, giving it a 100% reversal rate; meanwhile, the Ninth Circuit, with an appeals load of at least 10, and often more than 15 cases, it almost assuredly guaranteed at least one decision affirming what the court did.

Politifact's fact-check, then, is false.

It's worth emphasizing that what bearing this particular claim has on the merits of a decision to split the Ninth Circuit into smaller courts is a different matter. There are many good reasons for dividing the Ninth Circuit up, which I discussed in my AirTalk interview, and which Mr. Flake's offices will surely raise to his constituents.

On the precise point raised by Mr. Hannity, however, he is, at least in some measure, quite right--the Ninth Circuit is, in recent history, the most reversed federal court of appeals.

Please notify me of any errors in the data!