Rex Heinke Quoted by Law360 on Alleged “Panel Stacking” in Circuit Courts

For its article “Despite New Claims, Judicial Stacking More Myth Than Reality,” Law360 quoted Akin Gump Supreme Court and appellate practice co-head Rex Heinke on claims by the Coalition for the Protection of Marriage that a 9th Circuit panel that overturned same-sex marriage bans in Idaho and Nevada was stacked with judges predisposed to favor expanded rights for gays and lesbians.

While the article notes isolated instances of stacked panels in the past, Heinke notes that these should be considered a historical exception. He pointed to mandated randomness procedures and the difficulty of compromising the system’s integrity in, for example, the 9th Circuit, which has nearly 50 active and senior-status judges: “To credit this motion you have to believe that not only did a certain group of judges and people in the administrative office all get together to make this happen, but that they’ve never gotten caught. Anytime you get two panels in a row and you’re unhappy about the judges you may wonder, but statistically that sort of thing happens.”

The article notes that there are two phases involved in assigning cases to appellate panels: selection of the three judges for the panel and assignment of a case to the panel. Heinke notes that the two phases are separated by months, though some coordination is necessary given the distances that will need to be travelled by the jurists: “If you take the 9th Circuit, which is very broad geographically, there’s simply a lot of logistics in saying on this particular day three judges—one from Phoenix, one from Honolulu, one from Portland—will all be in the same courthouse in Pasadena. So you’d have to game the panels, and then game the assignment of cases to the panel.”