(This article originally appeared January 6, 2003.)
Conservatives frustrated by the notoriously liberal, San Francisco-based U.S. Court of Appeals for the 9th Circuit may finally have a chance to do something about it.
Thanks to the new Republican majority in both houses of Congress and a rarely invoked congressional check on the power of the judicial branch, lawmakers could narrow the geographic scope of the long-infamous circuit court that recently banned the Pledge of Allegiance and nullified the 2nd Amendment right to keep and bear arms. Congress could then create a new circuit court to serve many of the states in the Northwest.
Rep. Mike Simpson (R.-Idaho) told HUMAN EVENTS last week that he will propose a bill near the beginning of the new Congress to break up the 9th Circuit. There are 11 regional U.S. Circuit Courts, but the 9th is by far the largest, currently covering nearly 60 million Americans in nine Western states?Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington and Hawaii?and the Northern Mariana Islands. Simpson√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs bill would narrow the 9th Circuit to comprise just California, Arizona and Nevada and then create a new circuit for the other states.
Simpson√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs bill, which received a House subcommittee hearing this summer (HR 1203) but never got a vote because of time constraints, is expected to pass the House Judiciary Committee in 2003.
Simpson said that his bill enjoys broad support in the Rocky Mountain and Pacific Northwest regions. It also has bipartisan appeal. In 1995, attorneys general in five states from those regions?including Democrat Ted Kulongoski, now governor-elect of Oregon?wrote a letter to Senate Judiciary Chairman Orrin Hatch (R.-Utah) in support of breaking up the 9th Circuit.
Although the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs chief judge, Mary Schroeder, opposes the proposal, some of the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs judges support it. One of them, Judge Diarmuid O√?¬Ę√Ę‚??¬¨√Ę‚??¬ĘScannlain, testified before the House Judiciary Subcommittee on Courts. “There is nothing sacred about the 9th Circuit keeping essentially the same boundaries for over 100 years,” he said in the July 23 hearing. “The only legitimate consideration is the optimal size and structure for judges to perform their duties.”
Simpson claimed that his bill also has support in the Senate, boosting the chances that it could become law. The identical Senate bill (S 346) had seven Republican co-sponsors last year, including both Idaho senators, both Alaska senators and Gordon Smith of Oregon. Hatch, who was poised last week to become Judiciary Committee chairman, did not respond by press time to inquiries as to whether he would support the bill or make it a priority.
Simpson told HUMAN EVENTS that his motives in breaking up the 9th Circuit have little to do with the court√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs reputation for liberal judicial activism. “I√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęd like to say that it√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs all the political reasons and the decisions that they make,” he said. “But what it is, actually, is that the 9th Circuit is too large a circuit.”
Geographically, the circuit stretches from Alaska to Arizona and from Montana to Hawaii. It is also the most populous circuit by more than 15 million people and, with 28 judgeships, has nearly twice as many as the next-largest circuit.
Simpson blamed the court√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs excessive size for the fact that the circuit relies on ten-judge panels to make decisions in major cases, unlike other circuits in which the full complement of the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs judges normally hear critical cases.
“You don√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęt have the opportunity for all the judges to decide on some of these rogue three-judge panel decisions that are coming out,” commented Eric Schippers of the Center for Individual Freedom.
This may partly explain the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs reversal rate, which is higher than that of any other U.S. circuit. In the last term, more than three-fourths of the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs decisions appealed to the Supreme Court were reversed. And this marked an improvement over previous years: In the 1996-97 term, the Supreme Court reversed 27 of 28 appeals from the 9th Circuit.
The 9th Circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs caseload has also proven too large. In his annual report on the federal judiciary released last week, Chief Justice William Rehnquist noted that the number of cases in the 9th Circuit has increased 115% since 1984. “The caseload is so great that decisions coming out of the 9th Circuit are delayed longer than other circuits,” Simpson said.
According to U.S. judiciary statistics, in 2000 there were 116 appeals that the 9th Circuit took more than 12 months to consider after submission?nearly four times as many as the next slowest court. Judiciary statistics also show that in the year ending September 2001, the 9th Circuit took, on average, 16 months?longer than any other circuit, and 50% longer than the other circuits averaged together?to hand down final decisions, starting from the time appeals are filed.
In 1997, Congress explored the issue of breaking up the circuit by establishing a commission headed by former Supreme Court Justice Byron White. Although the commission√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs report on the circuit contained several points in favor of a breakup, it argued instead for creating three “divisions” within the circuit?an arrangement unlike that in any other circuit.
Schippers said that the circuit√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs controversial decisions help to add popular appeal to Simpson√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs bill. “You are starting to see a backlash not only in Congress but in the public as well, and that is certainly going to add fuel to the fire to split the circuit,” he told HUMAN EVENTS, citing the recent decisions on the Pledge of Allegiance and the 2nd Amendment. Schippers added that the court√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs rulings often seem particularly outrageous to residents of the conservative mountain states in the circuit. “There is a real disconnect between the people in Idaho or Montana and some of the decisions being made in San Francisco,” he said. “This court is definitely not representative of the people there.”
A vote on breaking up the 9th Circuit, Schippers said, could force liberals to side either with or against the Pledge of Allegiance in a meaningful floor vote?not merely a symbolic one, such as the resolution adopted immediately after the Pledge of Allegiance decision.
In June, a three-judge panel on the 9th Circuit ruled that the Pledge of Allegiance represents an unconstitutional establishment of religion because it contains the phrase “under God.” The outlandish opinion included the statement that “the mere fact that a pupil is required to listen every day to the statement √?¬Ę√Ę‚??¬¨√?Ň?one nation under God√?¬Ę√Ę‚??¬¨√Ę‚??¬Ę has a coercive effect.” Sen. Robert Byrd (D.-W.Va.) wryly remarked after the decision that the Declaration of Independence, which also contains references to God, could be the next document “struck down” by the rogue circuit.
More recently, a three-judge panel on the 9th Circuit ruled, notwithstanding the 2nd Amendment√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs plain language, that there is no constitutional “right of the people to keep and bear arms.” In an extremely tortured decision, circuit judges held that the 2nd Amendment somehow refers a right given to state-run militias?even though every other amendment in the original Bill of Rights refers to the rights of individual citizens of the United States and not state-run organizations.
Earlier this month a 9th Circuit panel effectively kept Clinton-era roadless rules in place for national forests in the Western United States. Despite the disastrous results this summer of the Clinton Administration√?¬Ę√Ę‚??¬¨√Ę‚??¬Ęs fight to keep logging companies from building fire roads, the court issued a preliminary ruling reinstating the rules after a U.S. District court had temporarily blocked their enforcement. Environmental concerns drive much of the conservative opposition to the current make-up of the 9th Circuit, since the San Francisco-based court covers a number of Western states, and thus has huge sway over such hot-button issues as endangered species, wetlands rules and development.