Will Congress split the 9th District?
9th Circuit Fires Up Conservatives Again
The ruling on the recall election may provide more ammunition for Republican efforts in Congress to split up the appeals court.
By Megan Garvey
Times Staff Writer
September 17, 2003
The U.S. 9th Circuit Court of Appeals' history of controversial rulings and reversals by the U.S. Supreme Court have made it a frequent target of attacks from conservatives, who say the court's liberal judges ignore established law.
Monday's ruling by a three-judge panel to delay California's recall election fueled long-burning fires.
"Outrageous, outlandish, out of control. They are making a mockery of the judicial system," House Majority Leader Tom DeLay (R-Texas) told reporters Tuesday. He dubbed the randomly selected judges who made the ruling "poster triplets for judicial activism."
Rep. Howard L. Berman (D-North Hollywood) called conservatives' steady complaints about the 9th Circuit "stock rhetoric."
"These judges were appointed to life terms so that they would make decisions based on principles and justice and not on the politics of the moment," Berman said.
"Sometimes people in the legislative branch have a hard time accepting that, but our founding fathers — they knew what they were doing."
With its 26 judges, 17 of them appointed by Democratic presidents, the 9th Circuit is widely considered to be the most liberal in the nation's federal appeals circuit. The court has so many Democratic appointees in large part because it was expanded in the 1970s, during the Carter administration.
Critics point to its high rate of reversal by the U.S. Supreme Court, which has overturned about 80% of cases reviewed from the 9th Circuit over the last seven years. In many instances, the reversals were unanimous, which critics cite as evidence that the 9th Circuit disregards existing law.
But other circuit courts, most of which have far smaller caseloads, sometimes are reversed at higher rates than the 9th. In any case, the Supreme Court reviews only a tiny percentage of judicial rulings made each year.
Already, the 9th Circuit is the target of bills introduced by Republicans in Congress that seek to split the massive Western court in two — a proposal Democrats allege is motivated more by politics than judicial expediency.
The move to split the court dates back more than a decade, predating some of the 9th Circuit's most controversial decisions. Most notably last year, in a 2-1 ruling that drew pickets to the homes of ruling judges and condemnation from many in Washington, the 9th Circuit found that requiring the Pledge of Allegiance in schools was an unconstitutional endorsement of religion because it includes the words "under God."
At a hearing last year on splitting the 9th Circuit, Rep. Howard Coble (R-N.C.) alluded to the passions stirred by the court when he reminded his fellow committee members he looked forward to a "civil discussion." He called the discussion about to take place "the latest installment of a long-running saga involving the 9th and its operations."
The panel's decision to delay the Oct. 7 recall election — which was stayed a week to allow appeals — "will be more ammunition," said Chapman University law professor John Eastman. "I suspect you will see more congressional efforts to limit the scope of jurisdiction of federal courts on elections."
The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, in addition to the U.S. territories of Guam and the Northern Mariana Islands. In contrast, the jurisdiction of the 2nd Court of Appeals includes only Connecticut, New York and Vermont.
In addition to the 9th Circuit's unpopular Pledge of Allegiance decision, other controversial rulings include:
• A decision earlier this month to overturn the judge-imposed death penalty sentences of more than 100 inmates in Arizona, Idaho and Montana. The ruling retroactively applied a recent U.S. Supreme Court decision that juries must make all key findings in capital cases.
• Upholding of a 1996 California law, backed by voters, that allowed marijuana to be used for medical purposes. In a 2001 decision, the U.S. Supreme Court overruled the 9th Circuit, saying there were no exceptions to federal drug laws.
Then, this year, the 9th Circuit in a 3-0 decision upheld a lower court's ruling that barred federal prosecutors from taking action against doctors who advised patients that marijuana might benefit them medically. The Bush administration has asked the U.S. Supreme Court for permission to strip prescription privileges from doctors who make such recommendations.
• A decision last December effectively blocking plans for new oil drilling off the California coast until the California Coastal Commission reviews them for environmental hazards. The Bush administration decided not to appeal the ruling to the U.S. Supreme Court, but has sought to rewrite federal rules to limit states' ability to control the areas off their shorelines.
One ruling that drew no conservative ire was a decision late last year to permit Gennifer Flowers, who says she had a long-term affair with former President Clinton, to pursue a libel and conspiracy case against Clinton's wife, Sen. Hillary Rodham Clinton (D-N.Y.) and two former top presidential aides, James Carville and George Stephanopoulos.
The author of the House bill seeking to split the 9th Circuit, Rep. Michael K. Simpson (R-Idaho), said he hopes to bring the matter to a vote sometime in this session. He said the 9th Circuit's decision to delay California's recall will "stir those passions" that have made discussions of the court's fate as much about politics as policy.
But he called political considerations a "separate issue" from the size of the court, the principal reason he said it should be divided. "I'm not sure if the recent controversy helps or hurts me," Simpson said. "It takes the matter away from the administration of justice to the political arena. It may add sponsors, but it also adds opposition."
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9th Circuit facts
Some noteworthy facts about the San Francisco-based 9th U.S. Circuit Court of Appeals:
• The court is known for being the nation's most-reversed federal appeals court — partly because its 40 presidentially appointed judges make it the largest federal appeals bench in the nation.
• It also is viewed as the most liberal federal appeals court.
• It is most noted for its 2002 opinion that declared the Pledge of Allegiance unconstitutional when recited in public schools. That decision has been appealed to the U.S. Supreme Court.
• Two weeks ago, the 9th Circuit overturned more than 100 death sentences in Arizona, Idaho, Montana and Nevada. That case is likely to be taken to the U.S. Supreme Court.
• The Supreme Court reversed the 9th Circuit after it upheld the right of California marijuana clubs to dole out pot to the sick.
• The Supreme Court reversed a 9th Circuit ruling overturning a law allowing tenants to be evicted from federal housing for drug use.
• The 9th Circuit reversed its ruling that inmates have a right to mail their sperm from prison.
• Contrary to its liberal image, the court reinstated tough Reagan-era drug-sentencing laws.
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THE RECALL CAMPAIGN
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