Date: January 12, 2006
Senator: Kyl
Topic:
Contents
SPECTER: Thank you, Senator Hatch.
Senator Leahy?
LEAHY: Well, Mr. Chairman, I realize we have some retired and very distinguished retired judges, but some current judges. Insofar as the current judges, their cases are appealed to the Supreme Court. If Judge Alito becomes a member of the Supreme Court, he'll have to rule on appeals from their decisions.
And so I think, rather than create a difficulty for them or for Judge Alito if he is confirmed, I think I will not avail myself of a chance to ask questions of this unprecedented panel.
SPECTER: Thank you very much, Senator Leahy.
Senator Kyl?
KYL: Thank you, Mr. Chairman.
I just had a question -- and I think, Judge Lewis, it was a comment that you made that raised this question in my mind.
There was a point made about the circulation of opinions among all of the judges on the court.
When a three-judge panel has tentatively made a decision in a case and circulates an opinion, is that opinion circulated among all the judges? And then do all of the judges have an opportunity to comment on that in some way?
(UNKNOWN): Yes.
KYL: Any of you -- Judge Lewis?
LEWIS: Yes, that is correct. And that is why the opinion is the opinion of the entire court, in the end, when it is released.
I should let Chief Judge Scirica address the current practice. I've been off the court for some time.
SCIRICA: Thank you.
LEWIS: But I assume it's done the same way. Is it not, sir?
KYL: This is interesting to me because I practiced before the 9th Circuit Court of Appeals and that same opportunity, I think, is not as available.
LEWIS: Yes.
ALDISERT: That, Senator -- that was invented by Judge Biggs in the late 1930s.
KYL: In the 3rd Circuit, sir?
ALDISERT: Yes.
SCIRICA: We circulate all of our precedential opinions to the entire court before they are ever published; that is, before the litigants or before the public sees them.
We do not do that with a category that we call not precedential opinions. They are handled by the panel themselves unless there is a dissent, in which case we circulate them as well.
Now, of course, when a litigant loses a case, that litigant has the opportunity to file a petition for rehearing. And that goes to the entire court, because the litigant usually asks both for panel rehearing before the original panel and also before the entire court.
And so for precedential opinions it gets sent to the court on two different occasion -- one before it is ever published and one after it is published.
KYL: I'm curious, what happens if there's a strong opinion by one of the judges on the court who did not sit on the original three- judge panel?
SCIRICA: Well, that's...
KYL: Different from the conclusion.
SCIRICA: Any judge on our court, on the initial circulation or even on the circulation for the petition for a rehearing may write to the entire court or may write to the opinion writer or may write to the panel expressing his or her disagreement.
It's one of the wonderful things about an appellate court, because we view the panel decisions that are precedential as opinions of the court, more than just the opinion of the panel or the opinion of the author of the case.
And there's often this wonderful dialogue that goes back and forth between the opinion writer or the panel and the judge who may have concerns about what is being decided. And it can sometimes can go on for days, sometimes the panel will, or the author, will say, "I want to think about this. I want to have the opportunity to revisit this issue."
SCIRICA: And sometimes it takes weeks before the panel comes back with a new opinion, often a revised opinion. This is part of the collegial aspect of the court.
KYL: This should be very reassuring to the litigants...
BARRY: And sometimes we'll go en banc before the opinion ever issues.
(UNKNOWN): Often the panel will change its mind, say, "We got it wrong."
KYL: It's very interesting, and I appreciated the opportunity to at least mention that. And I, too, want to thank all of you for your willingness to be here, to take time out, but most especially to speak on behalf of a colleague who I know you all admire a great deal. And I thank you for that very much.
Contents
Prev
Next
Last
