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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: D. Long who wrote (8296)	9/17/2003 2:31:47 AM
From: LindyBill	Respond to of 793788

Critics Argue 9th Circuit's Leanings By Edward Walsh Washington Post Staff Writer Wednesday, September 17, 2003; Page A10 Before it stopped the California gubernatorial recall election in its tracks, the U.S. Court of Appeals for the 9th Circuit was probably best known as the judicial body that had declared that the recitation of the Pledge of Allegiance in public schools was an unconstitutional act. That decision, initially rendered by a divided three-judge panel last year and reaffirmed by the court in February, caused an uproar. The House passed a nonbinding resolution condemning the court decision by a vote of 400 to 7 while conservatives intensified their criticism of the 9th Circuit as an out-of-control bastion of liberalism. "Conservatives recognize that it has staked out for itself a willful position at odds with what we think the law is in the rest of the country," said Paul Rosenzweig, a senior legal fellow at the Heritage Foundation. Liberals dispute that, arguing that the 9th Circuit, more than some of the more conservative appellate courts, correctly applies the law. Now the two sides with starkly different views of this court have a new case to argue about, with the 9th Circuit's intervention in the attempt to recall Gov. Gray Davis (D) from office. On Monday, a unanimous panel of three 9th Circuit judges ordered the Oct. 7 balloting postponed until March, saying the use of older punch-card voting machines in six counties would disenfranchise mostly poor and minority voters. Yesterday, the court asked lawyers on both sides of the case for briefs on whether the panel's decision should be reviewed "en banc," by a body of 11 9th Circuit judges. Controversy is nothing new to the 9th Circuit, the largest and busiest of the nation's 13 circuit courts of appeals. It has jurisdiction over cases from California, Alaska, Hawaii, Washington, Oregon, Idaho, Nevada, Arizona, Montana, Guam and the Northern Mariana Islands. While most appellate courts have 16 or fewer judges, the 9th is authorized to have 28 active judges. There are 26 judges serving on the court, 17 of whom were appointed by Democratic presidents Jimmy Carter and Bill Clinton. Half of the 26 judges are from California, the most liberal state within the court's jurisdiction. It is not its makeup, however, but some of its decisions in high-profile cases that have given the court a reputation as the most liberal of the appellate courts. In the Pledge of Allegiance case, the three-judge panel ruled that the words could not be recited in public schools because the phrase "under God," which was inserted into the pledge by Congress in 1954, amounted to an unconstitutional government endorsement of religion. In another case that attracted widespread attention, a panel of 9th Circuit judges ruled 2 to 1 that a prisoner had a right to send his sperm to his wife for the purpose of artificial insemination. That decision was reversed after an en banc rehearing by other 9th Circuit judges. Conservatives charge that the 9th Circuit is not only the most liberal of the appellate courts, but also the one that is reversed most often by the Supreme Court. "The Supreme Court now spends a large amount of its time reversing them," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento. "Its main problem is it has too many judges who are results-oriented and decide according to their opinions rather than the law. We've got a long string of wrong decisions, and the Supreme Court is not capable of correcting them all." But others dispute the assertion that the 9th Circuit is the most reversed of the appellate courts. Erwin Chemerinsky, a University of Southern California law professor, said that in its past term, the Supreme Court reversed 74 percent of the cases it reviewed from all of the appellate courts and 75 percent of the cases it heard from the 9th Circuit. He said the 9th Circuit's reversal rate has closely tracked the national average the last several years. Chemerinsky also said that the 9th Circuit's reputation for unbridled liberalism was the result of a "very unfair and inaccurate attack" by conservatives. "Its absolutely diverse ideologically, and its reversal rate is right at the national average," he said. "For every liberal there is a very conservative judge. For every moderate liberal you can point to a moderate conservative. There is no consensus on the court, certainly no liberal consensus." washingtonpost.com