Who’s To Blame?

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I want to dig in a bit more on our exclusive this morning about the appeal before the 11th Circuit that has dragged on for nearly seven years since oral arguments with no decision from the court.

As I said earlier, it’s not clear WHY this is happening. But I don’t think we have to throw our hands up in the air in helplessness and lament another broken institution without accountability. It’s pretty clear where responsibility for this fiasco lies.

It falls to the chief judge of the appeals court to make sure the circuit judges stay on task and when they veer wildly off course to nudge things back on track. And that’s where this gets interesting. When the case first came to the court, one of the judges on the three-judge panel hearing it was none other than the chief judge himself!

Ed Carnes was chief judge of the 11th Circuit from 2013-20. It is one of the ironies of the case that it dragged on for so long that Carnes eventually took senior status and stepped down as chief judge without the case being disposed of. Carnes, 72, is a Harvard Law grad and was appointed to the appeals court in 1992 by President George H.W. Bush. Before his appointment, he’d spent most of his career with the Alabama attorney general’s office (a party to this case but there’s nothing untoward about that).

So one of the big questions is why did Carnes let this case that he’s actually sitting on drag on for so long? We don’t know.

But it’s not just Carnes. William Pryor, Jr., 60, a George W. Bush appointee, became the new chief judge in 2020. The time since he became chief judge is close to long enough for most appeals to run their course. But this one continues to linger, and it’s not clear what, if anything, Pryor has done to move it along, or why he hasn’t succeeded in doing so.

Pryor, a Tulane law grad who clerked for the legendary John Minor Wisdom on the 5th Circuit and later became a protege of Jeff Sessions, served as Alabama attorney general from 1997-2004. So the Alabama attorney general’s office, which was on the losing end of the district court ruling and appealed the case, runs through both chief judges. But again I find it unlikely that has anything to do with the slow pace of things. In fact, the Alabama attorney general took the unusual step last year of filing a “motion for ruling” to try to nudge the court to decide the case already. Nada.

So to recap briefly, judges have an obligation to manage cases and issue rulings in a timely fashion. Especially on an appeals court, the case flow and appeals schedules are fairly regimented and predictable, within a certain range. This case is so far outside the norm that legal experts we told about it were astonished. The obligation to process the case with all due dispatch falls to the judges themselves, but when they fall down on the job, the chief judge typically intervenes to get this fixed. In this case, the chief judge was actually on the three-judge panel! And the new chief judge doesn’t seem to have managed to unstick the case in the two years he’s been in the position.

So that’s where we are. It’s mystifying. It’s an embarrassment to the court. And worst of all, it’s an ongoing travesty of justice.

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