Short-Circuited Reasoning and Obstructionist Filibustering 12/29/2003
By Jan LaRue, Chief Counsel
URL:http://www.cwfa.org/articles/5043/LEGAL/judges/index.htm
The 9th Circuit—where judicial activists run amok—and Senate liberals who want to keep it that way.
The U.S. Court of Appeals for the Ninth Circuit is the largest federal court of appeals and holds a big record—it's been overturned more times than pancakes at IHOP. Sometimes its rulings are so outlandish that even liberal Democrats express "outrage." Truth is, the activist judges on the circuit court are exactly the kind of judges who liberal democrats consider "mainstream." They want judges who will change public policy in ways that the majority of legislators and the public oppose, and they're willing to let the judges take the heat for it.
The U.S. Court of Appeals for the Ninth Circuit encompasses Alaska, Hawaii, Washington, Oregon, California, Arizona, Nevada, Utah, Idaho, Montana, Guam and the Mariana Islands.
The reversal rate of the 9th Circuit by the U.S. Supreme Court is about 80 percent—higher than any other federal circuit.
In one session, the Supreme Court reversed 28 out of 29 decisions of the 9th Circuit—that’s 97 percent. In the 1996-97 term, the Supreme Court reversed the 9th Circuit 9-0 in at least 16 cases. In the fall of 2002, the Court reversed the 9th Circuit unanimously in three summary reversals in one day. During the 2002-03 Supreme Court term, the Court, by March 3, 2003, had reversed 10 of 30 opinions from the Ninth Circuit. Democratic presidents appointed 16 of the judges on the panels that were reversed; Republican presidents appointed three. Bill Clinton appointed more than half of the judges now sitting on the 9th Circuit.
Following are summaries of some of the more infamous 9th Circuit rulings, most of which have been reversed:
‘Incarceration Insemination’
Gerber v. Hickman, 264 F.3d 882 (9th Cir. 2001): The court granted a state prisoner’s right to procreate by mailing his sperm to his wife. A full panel of the court re-heard and reversed that decision.
The prisoner alleged that the defendant, the prison's warden, and the state Department of Corrections denied his fundamental right to procreate in violation of the Fourteenth Amendment guarantee of substantive due process. The prisoner desired to collect and mail his semen to a laboratory that would impregnate his spouse, who was not incarcerated. The district court ruled that the prisoner had no right to procreate that survived during his incarceration and denied relief. The court of appeals reasoned that a prisoner had a fundamental right to procreate after incarceration, and a right to be married while incarcerated. Although the prisoner was not entitled to conjugal visits because he was serving a life sentence, the court found that the warden had not raised a legitimate penological objective that would justify a total ban on the artificial insemination of a non-incarcerated partner.
‘Puff the Magic Circuit’
U.S. v. Oakland Cannabis Buyer’s Coop, 190 F.3d 1109 (9th Cir. 1999): The U.S. Department of Justice obtained an injunction prohibiting respondents, an organization and its director, from distributing marijuana in violation of the federal “Controlled Substances Act.” According to the 9th Circuit, the medical necessity defense was a “legally cognizable defense” that likely would apply in the circumstances. The Supreme Court reversed the decision.
‘Cross-Dresser Crosses Border’
Hernandez-Monteil v. INS, 225 F3d 1084 (9th Cir. 2000): The court held “as a matter of law that gay men with female sexual identities in Mexico constitute a ‘particular social group’ and that Giovanni Hernandez-Monteil is a member of that group. His female sexual identity is immutable because it is inherent in his identity; in any event, he should not be required to change it. Because the evidence compels the conclusion that Geovanni suffered past persecution and has a well-founded fear of future persecution if he were forced to return to Mexico, we conclude that the record compels a finding that he is entitled to asylum and withholding of deportation.”
Did you catch this? “In any event, he should not be required to change it.” They’re not so sure his sexual identity is “immutable” after all—and it really doesn’t matter.
‘Under God and Out-of-Their Minds’
Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002): The court held that the addition of the words “under God” to the Pledge of Allegiance, and a school district's policy and practice of teacher-led recitation of the Pledge, were unconstitutional.
Judge O’Scannlain, who wanted the full panel of the court to rehear the case, disagreed with the decision. His dissenting opinion is a zinger: “We should have reheard Newdow I en banc, not because it was controversial, but because it was wrong, very wrong—wrong because reciting the Pledge of Allegiance is simply not ‘a religious act’ as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense. We should have given 11 judges a chance to determine whether the two-judge majority opinion truly reflects the law of the Ninth Circuit. Reciting the Pledge of Allegiance cannot possibly be an ‘establishment of religion’ under any reasonable interpretation of the Constitution.” Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2002).
The Supreme Court will review the decision. Justice Scalia’s priceless comments will be sorely missed from the Court’s opinion because he has recused himself from the case.
‘Smoke Got in Their Eyes’
Raich v. Ashcroft, 2003 U.S. App. LEXIS (9th Cir. Cal., December 16, 2003): On December 16, the court reversed a district court denial of an injunction to the appellants who also sought a declaration that the federal Controlled Substances Act (CSA) is unconstitutional to the extent it purports to prevent them from possessing, obtaining, manufacturing, or providing cannabis for medical use.
After acknowledging that the circuit has upheld the CSA several times against Commerce Clause challenges, guess what? The court said, “[T]he appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority. The district court found that the Commerce Clause supports the application of the CSA to the appellants. Indeed, we have upheld the CSA in the face of past Commerce Clause challenges. … But none of the cases in which the Ninth Circuit has upheld the CSA on Commerce Clause grounds involved the use, possession, or cultivation of marijuana for medical purposes.”
‘Waging War Miranda-Style’
Gherebi v. Bush, 2003 U.S. App. LEXIS 25622 (9th Cir. Cal., December 18, 2003): On December 18, the court held that the Executive Branch may not hold uncharged citizens of foreign nations in indefinite detention in territory under the “complete jurisdiction and control” of the United States while effectively denying them the right to challenge their detention in any tribunal anywhere, including U.S. courts.
“We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, and that, contrary to the government’s contention, Johnson neither requires nor authorizes it. In our view, the government’s position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.” [Big hint to certain Supreme Court justices who seem more enamored with international law than they are with U.S. law.]
Isn’t it interesting that in a 43-page decision involving the authority of the president under congressional “authorization for use of military force,” the court not once refers to the president in his role as commander-in-chief?
Judge Graber’s dissent says it best: “The second sentence of its opinion contains the key to the majority’s errors here: ‘The issues we are required to confront are new, important, and difficult.’ … Although the issues that we confront are important and difficult, they are not new. Because the issues are not new, we are bound by existing Supreme Court precedent, which the majority misreads. Because the issues are important and difficult, the Supreme Court has decided to revisit them, and we should await the Supreme Court's imminent decision. In Johnson v. Eisentrager … the Supreme Court held that an enemy alien who was detained by the United States military overseas could not bring a petition for habeas corpus in the courts of the United States. Our courts lack jurisdiction in that circumstance, and the sole remedy for the enemy alien lies with the political branches of government. … Two of our sister circuits have reached the identical conclusion. … As the Supreme Court explained, the petitioners in Johnson could not bring a habeas petition because they committed crimes, were captured, were tried, and were being detained outside ‘any territory over which the United States is sovereign.’ The majority invents the novel proposition that, because the Supreme Court used the phrase ‘territorial jurisdiction’ more often than it used the term ‘sovereignty,’ the former concept governs and the latter may be disregarded. … Counting phrases is not, in my view, a valid method of analyzing the Court’s meaning.”
‘Killing Me Softly’
Compassion in Dying v. Washington, 49 F.3d 586 (9th Cir. 1995): The court found a constitutional right to physician-assisted suicide. The Supreme Court reversed the decision.
Judge O’Scannlain, who wanted the full panel of the 9th Circuit to rehear the case, disagreed with the decision and here's why: “By promulgating a new constitutional right, one unheard of in over two hundred years of American history, six men and two women—endowed with life tenure and cloaked in the robes of this court—have enacted by judicial fiat what the people of the State of Washington declined to do at the polls only five years ago. By our failure to convene the full court to rehear this case, a mere one-third of the twenty-four active judges eligible to vote has been empowered to strike down criminal laws, not just in Washington, but in Alaska, Arizona, California, Hawaii, and Montana, as well as in Idaho and Nevada to the extent they criminalize assisted suicide through common law, as they currently do. Because our failure to rehear this case as a full court permits a minority of our court to nullify the public will without adequate justification, I must respectfully dissent.” Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996).
‘Pot-Shot at the Second Amendment’
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002): This case involved a California statute that banned assault weapons.
In order to uphold the statute all the 9th Circuit needed to do was write a one-paragraph holding, to wit: “The Second Amendment to the United States Constitution has never been made applicable to the states through the Due Process Clause of the 14th Amendment. The California Constitution does not include a right to bear arms; therefore, the statute in question is a valid exercise of the police power of the California Legislature.” Instead, the court analyzed the case under the Second Amendment and held that the Amendment provides only a “collective right” of a state-run militia to bear arms rather than an “individual” right.
Judge Kozinski, who wanted the full panel of the 9th Circuit to rehear the case, disagreed with the decision, and gave a superb rebuke of judicial activism: “Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that 'speech, or . . . the press' also means the Internet, see Reno v. ACLU, … and that 'persons, houses, papers, and effects' also means public telephone booths, see Katz v. United States. … When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington. … But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent.
The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people.” Silveira v. Lockyer, 328 F.3d 567 (9th Cir. 2003).
‘A Gender-Bender’
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000): The court held that transsexuals are covered under a civil suit provision of the Violence Against Women Act (VAWA). Douglas Schwenk, a transsexual incarcerated in a state prison, used the Gender-Motivated Violence Act (GMVAP of the VAWA, 42 U.S.C. § 13981(c)), which allows victims of “crimes of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender,” to sue prison guard Robert Mitchell for sexual harassment and assault. The court applied Title VII’s provisions against workplace discrimination and harassment, reasoning that although Title VII originally referred to discrimination motivated by the victim’s “sex” (originally interpreted to mean only a victim’s anatomical characteristics), the meaning has evolved to include discrimination motivated by a victim’s failure to meet society’s expectations for their sex. The court concluded that GMVA’s use of the term “gender” should be given the same definition that the term “sex” now enjoys in Title VII cases.
‘Hanging Chad Strikes Again’
Southwest Voter Registration Education Project v. Shelly, 344 F.3d 882 (9th Cir. 2003): On September 15, 2003, the court ruled that the California recall election must be delayed because the punch-card voting system used in six counties could result in inaccurate vote counts. Because the state has already ordered the systems to be replaced, the court said the election should wait until more accurate machines were set up or people will effectively lose their right to vote. The voting systems that were used to elect Gov. Gray Davis weren’t good enough for an election to remove him from office.
The 9th Circuit based its ruling on the Supreme Court’s decision in Bush v. Gore: “The plaintiffs’ claim mirrors the one recently analyzed by the Supreme Court in Bush vs. Gore. ... As the Supreme Court held in that case: ‘Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another.’” However, the Supreme Court said the question in Bush v. Gore was “not whether local entities, in the exercise [of] their expertise, may develop different systems for implementing elections. … Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”
A full panel of the 9th Circuit reversed the three-judge panel’s decision. Liberal Democrats in the Senate who’ve filibustered some of President Bush’s nominees claim to be concerned about ensuring “balance” on the federal courts. However, Sen. Harry Reid (D-Nevada), the Senate's second-ranking Democrat, has said, “[T]here is not a number [of hours] in the universe that would be sufficient” for debate on certain nominees. Reid’s statement shows that obstructionist Democrats are using the filibuster not to ensure adequate debate, but to change the Constitution by imposing a super-majority vote for judicial confirmations, rather than a simple 51-vote majority.
If Democrat obstructionists really cared about “balance” on the federal courts, especially the 9th circuit, they would support the nominations of two highly qualified nominees to the circuit, Carolyn Kuhl and Janice Rogers Brown rather than continue to deny them up or down votes through unconstitutional filibustering.
Take action: Citizen calls and letters should be sent to obstructionist Democrats leading the filibusters: Sens. Tom Daschle (D-South Dakota), Chuck Schumer (D-New York), Hillary Rodham Clinton (D-New York), Ted Kennedy (D-Massachusetts) and Richard Durbin (D-Illinois). To e-mail them through CWA’s Web site, click here. You can also reach their offices through the Capitol Switchboard: 202-225-3121; or via U.S. mail at: The U.S. Senate, Washington, D.C. 20510. |
