Democrats' Opposition to Improving the 9th Circuit

The 9th Circuit Court of Appeals continues to display exactly why Republicans are right in their cries to repair the court. Most recently, a three-judge panel of the 9th Circuit Court of Appeals decided venture into the political fray of the California recall election on the side of Democrat Gov. Gray Davis and Bill Clinton (Southwest Voter Registration v. Shelley). The three liberals made the egregious decision to delay the recall vote, which is mandated by the California constitution, and to throw out the ruling of District Judge Stephen Wilson who declined to delay the recall vote because such a ruling would violate the will of the voters.

For years Republican Senators have observed that the 9th Circuit is far too liberal and activist. Several Republicans have offered solutions for this problem, ranging from restructuring the circuit to opposing activist, liberal nominees while urging the confirmation of non-activist nominees in order to better balance the court.

In response to those solutions, Democrats have argued that the 9th Circuit is not a “rogue” court, but is one that well serves the people living in the circuit (Washington, Idaho, Oregon, California, Alaska, Hawaii, Montana, Arizona, Nevada, Guam, and the Commonwealth of the Northern Mariana Islands). They have balked at the notion that the 9th Circuit is imbalanced and have rejected efforts to add more centrist and conservative judges to its bench.

For example, during debate on President Clinton’s controversial nominees to the 9th Circuit – Marsha Berzon and Richard Paez – in March of 2000, Democrats were critical of Republican assertions that the 9th Circuit is “out-of-whack” and a “rogue” court. They vehemently opposed any suggestions that the Senate ought to help balance that court by opposing the Berzon and Paez nominations.

  • “The 9th Circuit is completely within the mainstream of prevailing judicial opinion. . . . [T]his Senate has no right to . . . try to influence the independence of the [9th Circuit] in this way. That is unconstitutional. Our responsibility under the Constitution is to vote on whether to confirm judges. It is not our responsibility, and it is not our right, to try to influence or intimidate judges after they are confirmed.”
    –Senator Tom Daschle (S.D.)
    Congressional Record
    S1255, March 8, 2000
  • “Opponents cite concerns about the allegedly out-of-whack 9th Circuit, which detractors like to call a ‘rogue’ court. . . . Why should we punish the millions of people who live in the 9th Circuit by depriving them of the judges they need to mete out timely and fair justice?”
    –Senator Joseph Biden (Del.)
    Congressional Record
    S1356, March 9, 2000
  • “But more fundamentally, it is simply not factually correct that the 9th Circuit is out of step with the Supreme Court and other circuit courts. . . . In more recent years, the statistics show even more clearly that the 9th Circuit is not a runaway train that somehow needs to be slowed down, but many in the Senate would like it to become a more conservative circuit, perhaps to be broken into two conservative circuits.”
    –Senator Russ Feingold (Wis.)
    Congressional Record
    S1299, March 8, 2000
  • “I think the most disconcerting aspect of this debate, for those who may be watching, is the concern that I would have, having heard many of our colleagues express their virtual desire to influence the 9th Circuit and the decisions made there. . . . If we are saying we ought to vote against someone, or for someone, because we want to influence the direction of a certain circuit, I think we get precariously close to creating the kind of politicization of the judiciary that, to me, is frightening. . . . Let us not say this ought to be some judgment on the 9th Circuit. Let us not say that somehow we want to send a message to the 9th Circuit or any circuit, for that matter. That is not our role. That is not our responsibility.”
    –Senator Daschle
    Congressional Record
    S1365-1366, March 9, 2000

As long as liberals continue to support activist federal jurists and fervently oppose any changes to a court like the 9th Circuit which is out of touch with the rest of the country — except, of course, for the Leftist base of the Democratic Party — we can expect more outrages like the recall ruling, the decision to find the Pledge of Allegiance unconstitutional (Newdow v. U.S. Congress), and the negation of individual Americans’ 2nd Amendment rights (Silveira v. Lockyer).

(This column has been adapted from a paper I wrote for the U.S. Senate Republican Policy Committee.)