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A project tracking federal judicial nominations and courts.
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OPPOSITION TO EFFORTS TO SPLIT THE NINTH CIRCUITEDITORIALSThe Register-Guard [OR] Editorial (Sept. 28, 2006) The Honolulu Star-Bulletin [HI] EDITORIAL (Sept. 24, 2006) The New York Times [NY] EDITORIAL (Sept. 23, 2006) The Register-Guard [OR] EDITORIAL (Nov. 28, 2005) San Francisco Chronicle [CA] EDITORIAL (Nov. 20, 2005) Honolulu Star-Bulletin [HI] EDITORIAL (Nov. 18, 2005) San Jose Mercury News [CA] EDITORIAL (Nov. 17, 2005) The Modesto Bee [CA] EDITORIAL (Nov. 14, 2005) Sacramento Bee [CA] EDITORIAL (Nov. 11, 2005) Seattle Post-Intelligencer EDITORIAL (Nov. 9, 2005) Juneau Empire [AK] EDITORIAL (Oct. 16, 2005) Honolulu Star-Bulletin EDITORIAL (June 21, 2005) Seattle Post-Intelligencer EDITORIAL (June 21, 2005) Sacramento [CA] Bee EDITORIAL (Feb. 13, 2005) Legal Affairs, EDITORIAL (Jan.--Feb. 2004) Perhaps the best reason not to split the court comes from the late Justice Byron White of the Supreme Court, who five years ago chaired a commission that did a thorough study on the workings of the federal courts of appeals. “There is one principle that we regard as undebatable,” the commission wrote. “It is wrong to realign circuits (or not to realign them) and to restructure courts (or to leave them alone) because of particular judicial decisions or particular judges.” The wisdom of White’s guidance is borne out by the Ninth Circuit’s recent history. The circuit’s ruling in the pledge case has made it into something of a piñata for conservatives who oppose the decision. But examine the jurisprudence of the circuit, and you will see that the pledge case is hardly an accurate reflection of the circuit’s broad and diverse group of judges. The Ninth Circuit is actually marked by ideological discord much more than by consistent liberalism (see "The Big Kozinski”). In the few Ninth Circuit rulings that the Supreme Court reviewed in its last term, the circuit was reversed at about the same rate as the other circuits. It was a Republican appointee who penned the decision to remove “under God” from the pledge, and the panel was bitterly split 2-1. The enthusiasm for dividing the Ninth to conquer its supposed liberalism is reason enough not to divide it at all." Full text Tucson Citizen, EDITORIAL (Oct. 8, 2004) [N]ew judges have been added and there is no indication that the 9th Circuit has been unable to function effectively. Rep. Rick Renzi, an Arizona Republican . . . cited a 9th Circuit ruling on grazing and another that removed the phrase "under God" from the Pledge of Allegiance. "These contemptuous judgments tear at the moral fabric of our nation, disregard the will of the people and force a corrupt ideology upon our society," he fustigated. Give credit to Renzi for honesty. He admits he wants to break up the 9th Circuit because he doesn't agree with its judicial decisions. But contrary to Renzi's bloviating, federal courts are not supposed to follow the will of the people. That is what the legislative branch of government does. The judicial branch interprets laws. The House vote to break up the 9th Circuit is a blatant attempt to override the separation of the branches of government. And it is doomed to fail because the Senate is strongly opposed. But this vote is more than nonsensical. It could also kill the underlying legislation . . . ." Full text COMMENTARYGuest Column by Chief Judges Robert S. Lasnik and Robert H. Whaley in The Seattle Times (October 13, 2006) Columnist Richard Ruelas in The Arizona Republic (October 13, 2006) Comment by Thomas Healy in FindLaw (September 25, 2006) Article by Carl Tobias in LegalTimes, Vol. XXIX, No. 35 (August 28, 2006) Column by Joel Connelly in the Seatle Post-Intelligencer (May 15, 2006) Op-ed by Lloyd B. Miller and Kenneth J. Diemer in the Anchorage Daily News (March 23, 2006) Op-ed by Prof.Carl Tobias in The Washington Times (Dec. 30, 2005) Editorial Column by Jim Kiser in The Arizona Daily Star (Dec. 2, 2005) ...Several readers took exception to my column last Sunday in which I opposed splitting the 9th Circuit Court of Appeals. Predominantly, they argued in e-mails that the San Francisco-based 9th "circus" Court, as reader John Friedel described it, is so liberal that it is out-of-touch with the more conservative political climate in Arizona and other Western states. "Is the court in synch with Arizona values? Arizona patriotism? Arizona voters' religious beliefs? Arizona's desire for secure borders? Arizona's support for faith-based groups such as the Boy Scouts? I think not!" wrote Friedel, for one example. That courts should reflect the political views of the area they serve is an interesting argument. What about the idea of an independent judiciary that operates above the political fray? Isn't that embedded in the Constitution that conservatives so profess to respect and follow? If courts can be split up and assigned territories for ideological reasons, then the courts no longer are independent of the legislative or executive branches. To me, it is critically important to keep the courts as independent as possible of the ever-shifting political winds. But if my e-mailers are any gauge, that is a constitutional nicety that many people would abandon." Animated cartoon by Mark Fiore about Ninth Circuit split and other issues in the House budget bill (Nov. 30, 2005) Op-Ed by Patrick Cathcart in The Daily Journal (Nov. 25, 2005) Op-Ed by Roxie Bacon and Don Bivens in The Arizona Republic (Nov. 21, 2005) Editorial Column by Jim Kiser in the Arizona Daily Star (Nov. 27, 2005) Op-Ed by John C. Yoo, Eric M. George in the San Francisco Chronicle (Nov. 23, 2005) Op-Ed by Merrilee MacLean and David Burman in the Seattle Post-Intelligencer (Nov. 23, 2005) Op-Ed by Law Professor Carl W. Tobias in The National Law Journal (Nov. 21, 2005) Forum Column by Erwin Chemerinsky in the Los Angeles Daily Journal (Nov. 15, 2005) Op-Ed by Senator Dianne Feinstein (D-CA) in the Los Angeles Times (Nov. 12, 2005) Op-Ed by Alan Schorr in the Juneau Empire (Nov. 9, 2005) Op-Ed by Wendy Holton in The Montana Lawyer (June/July 2005) Op-Ed by Joanne Cronrath Bamberger in The Washington Examiner [DC] (July 1, 2005) Op-Ed by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas in The Wall Street Journal (Nov. 14, 2004) Column by Dahlia Lithwick, courts columnist for Slate.com. Originally appeared in the Los Angeles Times (Oct. 12, 2004)Reprinted here in the Dodge City Daily Globe (Oct. 14, 2004) The Recorder, LETTER TO THE EDITOR (April 18, 2003) Mr. Mitchell concedes, as surely he must, that the recent Ninth Circuit decision on the Pledge of Allegiance is not a basis for splitting this or any other circuit, but suggests that Congress will ignore its duty and act in such a punitive matter eventually, and urges Chief Judge [Mary] Schroeder to work now with Congress to accomplish a split that is acceptable to the court. We disagree with this premise. The White Commission found: "There is one principle that we regard as undebatable: It is wrong to realign circuits (or not realign them) and to restructure courts (or leave them alone) because of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less." The notion that preemptive action is necessary to avoid congressional lawlessness is a repugnant one, and we do not accept it. Those in favor of dividing the circuit identify the most persuasive reason for doing so as size. But size alone is not a justification for splitting the circuit. The only genuine justification would be failure of the circuit to operate effectively. On that issue, the White Commission concluded: "There is no persuasive evidence that the Ninth Circuit (or any other circuit, for that matter) is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall." The Long Range Planning Commission in 1995 concluded that, "Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent consistent circuit law in the face of increasing workload." No such evidence has been shown. Chief Judge Schroeder and her administrative staff have succeeded in effectively managing the circuit. The Ninth Circuit has requested additional judges so that it can deal with the increased workload, largely attributable to a spike in the number of immigration cases on the court's docket, a spike that is by no means limited to the Ninth Circuit. Last month the Judicial Conference announced that it will ask Congress for seven new judges for the Ninth Circuit, surely a more economical way to deal with heavy case loads than the enormous expense of creating new infrastructure involved in splitting the circuit, which will need those new judges anyway. Mr. Mitchell also incorrectly implies that Chief Justice Schroeder alone or (nearly alone) carries the torch for an intact Ninth Circuit. Not so. Chief Judge Procter Hug Jr. noted in his statement to the House Judiciary Committee last summer that "a great majority of the judges and lawyers in the Ninth Circuit" have opposed efforts to split the circuit, including all of the past chief judges. As Professor Hellman indicated in his statement to the congressional subcommittee, both of the earlier circuit splits the creation of the Tenth Circuit from the old Eighth Circuit and the creation of the Eleventh Circuit from the old Fifth Circuit, occurred only after "the legal community in the affected region had reached a consensus that division was warranted." Professor Hellman noted that when the old Eighth Circuit was split in 1929, and again when the old Fifth Circuit was split in 1980, all of the affected judges had expressed their approval, and division was supported by the bar associations in the affected states. No consensus for splitting the Ninth Circuit exists. Mr. Mitchell also ignores the positive benefits of a large circuit, and specifically the areas in which the Ninth Circuit has been an innovator. The Ninth Circuit Bankruptcy Appellate Panel (BAP) has been so effective that Congress has urged other circuits to follow suit, and other circuits now have begun to follow suit. The BAP offers litigants an alternative appeal procedure where single judge bankruptcy orders can be determined by a panel of experienced bankruptcy judges. While hypothetically a smaller circuit could have led the way on this issue, it was the Ninth Circuit that did so. The Ninth Circuit also was early to embrace technology to facilitate court administration and communications among the circuit judges. A single circuit also promotes uniformity of judicial decisions. Separate circuits, even if guided by historical Ninth Circuit precedent, will inevitably strike their own paths. Indeed, the House bill would shift Arizona to the Tenth Circuit, a stare decisis nightmare in which thousands of cases decided by district courts in the Ninth Circuit will be heard by circuit court judges in the Tenth Circuit, which will mean either that those litigants will find that the law governing their appeal may be irreconcilably inconsistent with the law administered by the district court, or that the Tenth Circuit itself potentially will be following distinctly different federal law precedent in different cases, the kind of "wildly inconsistent decisions" Mr. Mitchell deplores. The Ninth Circuit has established procedures to minimize inconsistent decisions, and where inconsistency appears, the court's limited en banc procedure is designed to restore consistency. Mr. Mitchell's observation that the limited en banc structure "can't be expected to keep up" ignores the empirical data, which shows that suggestions for en banc review were virtually the same in 2002 as in 1996, and that there has been only a moderate rise in en banc hearings from 12 in 1996 to 17 in 2002. The Ninth Circuit needs more judges, not the greater bureaucracy that comes with splitting one circuit into two or even three circuits. There may come a time when the circuit cannot effectively remain intact, and the considerations in favor of a single circuit may be outweighed by the problems attendant to it. Now is not that time. Scott R. Raber FNNote 1. The authors are present and former officers of the Northern District of California Chapter of the Federal Bar Association. The views expressed here are those of the authors and the chapter, and not those of the Federal Bar Association itself. The National Law Journal, OP-ED (Oct. 7, 2002) An astounding interview occurred on the O'Reilly Factor television program, which focused on attacking Reinhardt and in which John Eastman, a law professor at Chapman University, mused on air that the issue of impeaching judges should be revisited. These attacks are filled with factual inaccuracies. For example, many stories have portrayed the 9th Circuit as a court that is virtually always overruled by the U.S. Supreme Court. Some members of Congress have repeated these accusations in calling for the split of the 9th Circuit. But the most recent statistics, from the last term of the court, show that this characterization is incorrect. Last year, the U.S. Supreme Court reversed the lower courts in 75% of the cases it decided. The 9th Circuit was reversed 76% of the time, which is almost identical to the national average. In contrast, the 2d Circuit, the 3d Circuit (albeit in only one case) and the 11th Circuit were reversed 100% of the time; the 6th Circuit was reversed 88% of the time; and the 8th Circuit was reversed 80% of the time. Hugh Hewitt, a nationally syndicated radio host, said that Reinhardt is the "most reversed judge in America." Similarly, Bill O'Reilly said that Reinhardt is reversed "almost routinely." Again, the statistics don't support the accusations. In the last five terms, the high court has reviewed five major 9th Circuit decisions in which the majority opinion was written by Reinhardt. In three of these cases, the court reversed the 9th Circuit; in two, Reinhardt's opinion was affirmed. A 60% reversal rate is less than the national average and hardly qualifies to make him "the most reversed judge in America." A year ago, in Ashcroft v. Zadvydas (2001), the high court affirmed a 9th Circuit opinion by Reinhardt, and reversed a 5th Circuit ruling to the contrary, and concluded that the indefinite detention of nondeportable aliens violates federal law. Last year, in Tahoe Sierra Preservation Council v. Lake Tahoe Regional Development Corp., (2002), the court affirmed a 9th Circuit en banc decision, in which the majority opinion had been written by Reinhardt, and held that a reasonable moratorium on development was not a taking in violation of the Fifth Amendment. Besides, reversal rates say nothing about the quality of a court of appeals' decisions. The role of an intermediate court of appeals is not to predict what the higher court will do. The U.S. Supreme Court gets the last word, but that does not mean by any measure that its interpretation is correct and that the reversed lower court is wrong. Nor does the 9th Circuit fit the description of a court dominated by liberals. To be sure, there are some liberals on the court and Reinhardt is unquestionably liberal. But there are more on that court who would be described by anyone as moderate or as conservative. Last year, the U.S. Supreme Court unanimously reversed the 9th Circuit in two Fourth Amendment cases (United States v. Arvizu and United States v. Knights). One of those opinions (Arvizu) was written by Reinhardt, the other (Knights) was written by Ferdinand Fernandez, a conservative who was the dissenting judge in the pledge of allegiance case. Eastman has stated that "at some point you have to start questioning whether a judge is following their oath of office when they engage in this kind of lawmaking from the bench." This goes beyond the mean spirited to the dangerous; it is reminiscent of the "Impeach Earl Warren" bumper stickers from decades ago. Judicial independence is truly in jeopardy when academics entertain the thought of impeachment of a judge when they disagree with his rulings. Vituperative attacks on a court or a particular judge are easy because the targets cannot respond. Harsh criticism of opinions and their authors is certainly acceptable. But the attacks should be factually accurate and not ad hominem diatribes. I have won and lost cases in the 9th Circuit; some results came from panels that included Reinhardt. I often have disagreed with their rulings, but never have I questioned that my clients received a fair hearing from hardworking judges. That's all we can ask from our courts. The partisan attacks on the 9th Circuit are unfair and just wrong. Erwin Chemerinsky, a visiting professor at Duke University, is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California. He is the author of Constitutional Law: Principles and Policies. Home | Search | Privacy |
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