Nullify the Nutty Ninth

The arrogance of the San Francisco-based U.S. Court of Appeals for the 9th Circuit is perfectly personified by Judge Harry Pregerson, a member of the three-judge panel that has tried to postpone California’s special October 7 gubernatorial recall election.

Pregerson has a vendetta against the rule of law.

President Jimmy Carter nominated him to the appeals court in September 1979. A month later, on Halloween, a Democrat-controlled Senate rubber-stamped his confirmation along with 18 other Carter-nominated judges. (They have been haunting the courts ever since. )

Pregerson did cause a bit of a stir at his confirmation hearing when he was asked what he would do if he found himself in a conflict between what the law actually said and what, in his conscience, he believed the law ought to say. “My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn,” he told the committee. “If I had to follow my conscience or the law, I would follow my conscience.”

Liberal Agenda

Imagine if something like that had slipped from the lips of Alabama Atty. Gen. Bill Pryor, or Texas Supreme Court Justice Priscilla Owen, or U.S. District Judge Charles Pickering-all Bush appellate court nominees now being filibustered by Senate Democrats.

These Republicans have sworn that if, as judges, they confront a conflict between what they conscientiously believe the law ought to be and what the Supreme Court says it is, they will enforce the law as defined by the Supreme Court. They will not write a new law for themselves.

Their guarantees have not been good enough for Senate Democrats, who have packed our highest courts with Harry Pregersons. They do not want conservative judges who will faithfully carry out the law (even when they profoundly disagree with it). They want judges who share the liberal agenda of the Democratic Party and who can be counted on to advance that agenda through federal court action whenever they can get away with it.

That’s what the 9th Circuit did last week when it ordered the postponement of California’s recall election. It advanced the Democratic Party agenda.

Nothing better symbolizes the liberal hypocrisy about the courts than Judge Pregerson’s Ten Commandments-informed conscience. If that conscience would indeed force the judge to oppose unjust rulings even when they are settled law, why didn’t it force him to dissent from the 9th Circuit’s February decision declaring the Pledge of Allegiance unconstitutional because it mentions God-as it has, undisturbed by federal courts, for 50 years?

It seems Judge Pregerson’s tender conscience is not so much attuned to the values of the Boy Scouts as it is to the Democratic Party platform.

Tellingly, earlier this year Pregerson did find a law his conscience could not bear. When the U.S. Supreme Court upheld California’s “three-strikes-and-you’re-out” criminal-sentencing law, and ordered the 9th Circuit to clear its books of appeals of that law, Pregerson refused to comply. Sitting on a three-judge panel assigned to clear the cases, he dissented. “In good conscience,” wrote Pregerson, “I can’t vote to go along with the sentence imposed in this case.”

One of Pregerson’s liberal colleagues on the panel, Judge Stephen Reinhardt, agreed to the sentences only under protest. “I concur on compulsion of the Supreme Court decision,” he wrote. Reinhardt was one of the authors of the 9th Circuit’s decision declaring the Pledge unconstitutional. Had his conscience driven him to join Pregerson on the three-strikes appeals, the United States would have had, in effect, a federal appellate court that had seceded from the Union.

Were they to do so and take only San Francisco with them, many Americans might bid them a fond farewell.

But the 9th Circuit is the nation’s largest. Its jurisdiction includes not only all of California, but also Arizona, Nevada, Montana, Idaho, Oregon, Washington, Alaska and Hawaii. It has 26 active judges, 17 appointed by Democratic Presidents.

The 50 million Americans within this vast region are routinely subjected to the jurisprudential malpractice of Pregerson & Co. Over the past seven years, reports the Los Angeles Times, the decisions of this court have been overturned 80% of the time when they were brought to the Supreme Court-often unanimously.

Among the court’s recent radical decisions: declaring there’s no individual right to keep and bear arms, retroactively throwing out the death sentences of more than 100 convicted murderers, ruling that marijuana “clubs” can distribute pot in violation of federal drug laws because a California ballot initiative approved so-called “medical” marijuana, blocking oil drilling off California’s coast, forbidding federal housing authorities from evicting drug users, and granting prisoners the “right” to mail sperm to their partners. As HUMAN EVENTS goes to press, we even learn that another three-judge panel of the 9th Circuit has ruled that the government cannot deport Somali illegal aliens.

No one who knows the 9th Circuit was surprised when it cancelled a democratic election. It is the long-standing habit of this court to nullify the democratic will of the people.

Now it is time for the people to nullify the 9th Circuit.

Republican Rep. Mike Simpson of Idaho has introduced a bill, HR 2723, that would break up the circuit. California, Arizona and Nevada would stay where they are. But all the other states currently in the 9th Circuit would come under a new federal appeals court, the 12th Circuit. This court would be headquartered in Portland and Seattle. Republican Senators Lisa Murkowski of Alaska and Larry Craig of Idaho are cosponsoring a bill similar to Simpson’s in the Senate.

Breaking up the 9th Circuit won’t remove Harry Pregerson from the bench. It won’t stop liberal Democratic Senators Dianne Feinstein and Barbara Boxer of California from blocking and preempting conservative nominees to the San Francisco-based court. But it will liberate the rest of the American West from the tyranny of a court that has all too often shown contempt for the Constitution.

President Bush and the Republican leadership on Capitol Hill should work to get Mike Simpson’s bill passed in this Congress or better yet, by the end of this year.