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A project tracking federal judicial nominations and courts.

Editorials and Opinion


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The Supreme Court Just Gutted a Gorsuch Opinion — and Made Him Look Extreme (New York Magazine, 03/22/17)
Ed Kilgore column: Gorsuch’s opinion in Luke P., by contrast, added the word “merely” to this framework. Under Luke P., the benefits offered to a disabled student “must merely be ‘more than de minimis.’” That one word effectively transformed the floor that the court placed below disabled students in 1996 into a ceiling. Gorsuch transformed a rule instructing school districts that they must do more than nothing into a rule instructing them that they don’t need to do any more than a little more than nothing.... That Neil Gorsuch, for whatever reason, chose to interpret the law as guaranteeing these kids skimpier services than Samuel Alito and Clarence Thomas felt appropriate casts a shadow

Viewpoints: Why splitting the 9th Circuit is a bad idea: Professor: Proponents say the court is too big, slow and wrong to properly serve Arizona. That's not true. (Arizona Republic, 03/19/17)
Prof. Gary L. Stuart: The debate over whether to divide the 9th Circuit is a political masquerade in search of a principle. The principle should be just and fair decisions rendered as timely as possible. It’s time to remove the masks and reveal the facts.... Gov. Ducey and Sen. Flake use two primary arguments to show the 9th Circuit should be split. The first is that the U.S. Supreme Court overturns 77 percent of the 9th Circuit decisions. Respectfully, that’s not the case. In 2015 the Ninth Circuit issued 6,551 decisions. Eleven of those cases were reviewed by the U.S. Supreme Court. Eight were reversed. That means more than 99.9 percent of its rulings were left in place. In fact, between 2010 and 2015 the 9th Circuit’s reversal rates comes in third behind the 6th Circuit and the 11th Circuit. The second argument is that the Ninth Circuit is simply too big and too slow. Judge Alex Kozinski disagrees. The 1985 appointee of President Ronald Reagan, who served as the Ninth Circuit’s Chief Judge from 2007 to 2014, said; “There are economies of scale by having a large circuit, and the court could decide cases faster if it had more judges.” The current Ninth Circuit Chief Judge, S.R. Thomas said; “delay would increase substantially if the court were split—both the old ninth and the new 12th.”... Justice Anthony Kennedy, warned against ideological court tweaks in 2007.

Why the Ninth Circuit Shouldn't Be Split (Recorder, 02/09/17)
The Recorder reached out to practitioners to let them make their best arguments for keeping the circuit as it is. Here’s what they had to say ...

Op-Ed California's notoriously liberal ‘9th Circus' court of appeals is growing more centrist (Los Angeles Times, 09/11/16)
Ben Feuer: "The court’s reputation for leftist judicial activism is so legendary that conservative groups mount perennial efforts to split up the 44-judge court .... Obama’s appointees have been less predictably left-leaning in their judgments, particularly on criminal matters. Nearly 60% of Obama’s 9th Circuit appointees are former criminal prosecutors (a percentage that will increase if Lucy Koh, nominated in February, is confirmed).... Obama’s appointees are arriving at some conservative outcomes. Former prosecutor Jacqueline Nguyen, for example, wrote an opinion approving Royal Dutch Shell’s oil-drilling plan off the coast of Alaska against a challenge by environmental groups under the Endangered Species Act, and over a dissent from Carter appointee Dorothy Nelson. Nguyen also dissented in another case to say that a police officer might reasonably have used his Taser on the neighbor who was 40 feet away from an arrest taking place. Likewise, Mary Murguia, another former prosecutor, joined two Republican-appointed judges in holding that cancer-causing diesel exhaust doesn’t qualify as the kind of health-endangering “hazardous waste” that would allow citizens to sue a polluting rail yard. Yet another former prosecutor, Paul Watford, who is frequently mentioned for a Supreme Court seat, dissented from a decision favoring a capital punishment prisoner. Even though he didn’t like the result, he said, Watford concluded binding precedent meant the inmate filed his death penalty challenge too late.... Yes, it still has more of its rulings overturned by the Supreme Court than other circuit courts, but that isn’t because of an extreme political bent; rather, it’s because of the large number of cases the court hears and the willingness of states within its jurisdiction to experiment with novel laws. ... Ultimately, because the 9th Circuit has grown more centrist, it’s the next president’s picks that could have an outsized effect."

EDITORIAL: Gazette opinion: Daines' politicking epitomizes what's wrong with Congress (Billings Gazette [MT,WY], 02/22/16)
"Montana Sen. Steve Daines is so worried about the federal court system's backlog and Americans' access to justice that he really must insist that no new Supreme Court justice be confirmed until after the election of the next president. Sometime next year. Confused? So are we.... Days earlier, Daines fretted on the floor of the U.S. Senate about the terrible backlog in the Ninth Circuit Court of Appeals, the federal circuit of appeals which includes the Montana District. In fact, he's so concerned that's he's supporting a bill to make a brand new federal circuit court of appeals. ... His obligation — his oath — to uphold the Constitution says that he will advise and consent on judicial nominations. Nowhere does it say delay and deny.... It seems almost unbelievable to us that Daines could sponsor legislation to speed up the courts while simultaneously wanting to stall and delay. It's typical, though. The Republican-led Senate has more than 140 confirmation hearings to conduct, many of them for openings on the federal bench. Maybe instead of sponsoring new legislation, Daines should be urging Senate leadership and his own party to uphold their Constitutional duty to give these nominees an up-or-down vote."

[Sen.] Moran doing it right this time on judicial nomination (Wichita Eagle [KS] , 08/04/13)
Editorial Department blog by Rhonda Holman: "Good for Sen. Jerry Moran, R-Kan., for stepping out front Thursday to endorse President Obama’s nomination of Kansas Supreme Court Justice Nancy Moritz (in photo) for the 10th U.S. Circuit Court of Appeals in Denver. And good for Obama for finally addressing the long-vacant Kansas seat on the court, ... If Roberts concurs, Kansas can set a new example for how to get federal judicial openings filled in a divided government."

Hating on the Ninth Circuit: Funny But a Little Depressing (Wall Street Journal, 01/26/12)
Law Blog By Joe Palazzolo: "The idea of breaking the Ninth Circuit into pieces had been proposed in the past,... The idea fizzled.... about 70% of the Ninth Circuit’s cases come from California, so no matter how you slice it, the state is going to have a huge docket and outsized influence. Kozinski is against splitting the Ninth and, in fact, supports combining some of the smaller circuits, particularly in the Northeast....once people take a deeper look, rather than relying on “uniformed commentary,” they’ll realize the Ninth isn’t going anywhere, he said....Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education. (Like, um, where would California appeals go?) “Frankly, when I first heard the idea [of abolishing the court], I started laughing,” said one judge, who declined to be named. “But once you get over the funny the part, it’s a little depressing.”"

Which Newt is the good Newt? (Politico, 11/28/11)
Jeff Greenfield: "To be blunt, he often sounds like a blend of demagogue and bully. . . . The Gingrich as demagogue-bully has been on frequent display this cycle. . . . You don’t like the liberal opinions of the 9th Circuit Court of Appeals? “Congress can say, ‘All right, in the future, the 9th Circuit can meet, but it will have no clerks.’ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library either.’”

This time, how about a debate of substance? (Washington Post, 11/04/11)
George F. Will,Opinion Column: "Regarding domestic affairs, most of the candidates — Jon Huntsman and Mitt Romney have admirably refrained — have been barking about courts and especially about the Supreme Court, a.k.a. “nine oligarchs in robes” (Rick Perry). Rick Santorum wants to “eliminate” the often liberal 9th Circuit Court of Appeals, although it is not clear why that is necessary ... a fulminating Gingrich speaks of cutting funding for the 9th Circuit’s electricity, law clerks and library. Michele Bachmann and Paul think that Congress should restrict the jurisdiction of federal courts. The common theme of the candidates complaining about the courts is that, in Perry’s words, “activist” judges “deny us the right to live as we see fit.” Indeed, courts sometimes do that. And conservatives sometimes applaud, vigorously and rightly. Perry did when the Supreme Court, properly enforcing the Second Amendment, said that the elected representatives of the residents of Washington, D.C., and Chicago could not do as they saw fit, and as a majority of their constituents probably favored, regarding gun control. Perry, Gingrich, Bachmann, Santorum and Paul ardently hope that five Supreme Court justices will be active enough to declare unconstitutional the individual health insurance mandate enacted by majorities in both houses of Congress."

Thanksgiving and the Federal Courts: The Recent Choices by and Regarding the Courts For Which We Should Truly Be Grateful (Findlaw, 11/21/07)
Commentary by Carl Tobias posted in Findlaw's writ on the possibility of splitting the Ninth Circuit Court of Appeals

Commentary: Congress should restore comprehensive clean water protection (Albuquerque Tribune [NM], 08/15/07)
Divided Supreme Court Clean Water Act decisions, coupled with heavy lobbying by special interests have removed protections to the point where entire trout streams holding good, clean water, no longer have any protection at all.

Northwest doesn't need its own federal court circuit  (Seattle Times [WA] , 10/13/06)
Op-Ed by Columnists Robert Lasnik & Robert H. Whaley, Contrary to the view that the Pacific Northwest deserves its own federal court circuit, we, the chief district judges in the two trial courts that serve the state of Washington, strongly support keeping the 9th Circuit Court of Appeals as is.

Splitting court may leave Latino judges out of mix (Arizona Republic, 10/13/06)
Richard Ruelas column: Splitting the Ninth Circuit may result in the absence of Latino judges in the new Twelfth Circuit, which would encompass Arizona. "That worries [9th Circuit Judge] Bea, who was nominated by President Bush in 2003 and has his office in San Francisco. A little-noticed issue, he says, is that Arizona would no longer have any Latino judges on its new court. All six Latinos on the current court would probably end up in the reconfigured 9th Circuit. ...The Hispanic National Bar Association opposes the split for this reason. Same with Los Abogados, the Hispanic attorney group."

Keep 9th Circuit intact (Register Guard [OR], 09/28/06)
The march to split the Ninth Circuit is led by conservative lawmakers who want to take a chainsaw to the court because they believe it's dominated by "activist judges" who uphold environmental laws that rankle timber, mining and energy interests in the West.

Will the U.S. Court of Appeals for the Ninth Circuit Finally Be Split? If So, the Reason Will Be Politics, Not Caseload (Findlaw, 09/25/06)
The great Ninth Circuit Split Debate is on again - and this time, both sides think the chances of a split are greater than ever.

Keep 9th Circuit Court of Appeals as one circuit (Honolulu Star-Bulletin, 09/24/06)
Concerned about the possibility of Democrats gaining control of the U.S. Senate in the November elections, Republicans are engaged in a frantic effort to split the 9th U.S. Circuit Court of Appeals into two circuits.

A Bad Court-Splitting Plan (New York Times, 09/23/06)
Proponents of the Ninth Circuit Split claim that it will reduce work load, but in reality, its aim is not efficiency, but a conservative, anti-environmental agenda.

Nevada bar opposes Ensign-backed plan to break up 9th circuit appeals court (Las Vegas Sun, 09/15/06)
The State Bar of Nevada on Friday reaffirmed its opposition to a bill by Sen. John Ensign, R-Nev., to split up the 9th U.S. Circuit Court of Appeals.

Editorial overstated support for Myers, 9th Split (Times-News [ID] , 09/03/06)
Letter to the Editor from Earthjustice's Glenn Sugameli stating that an "editorial overstated support for Myers and the Ninth Circuit split."

Keep It Together (Legal Times, 08/28/06)
Without a strong case of their own, supporters of a 9th Circuit split should defer to judges who oppose division.

Right wing goes after 9th circuit court (Seattle Post-Intelligencer [WA], 05/15/06)
As days grow sunny and long in the West, efforts under cover of darkness in Washington, D.C., seek to split up a Western court that has upheld environmental laws and at times ruled against the federal government.

Scant support for splitting 9th circuit (Anchorage Daily News [AK] , 03/23/06)
Although by any measure the Ninth Circuit is the most productive federal appellate court in the nation, once again a push is under way to split the circuit in two, with the reorganized 9th Circuit covering only California and Hawaii and a new "12th Circuit" to cover Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.

Ninth Circuit Split? Carl Tobias' Washington Times Commentary (Washington Times, 12/30/05)
The United States Court of Appeals for the 9th Circuit survived the most recent, and quite successful, attempt to divide the large appellate court which serves the West.

Is the Ninth Circuit as liberal as some claim?  (Pahrump Valley Times [NV], 12/07/05)
Dennis Myers column: "The court also has some insanely conservative judges, such as Jay Bybee of Nevada, who helped craft the Bush administration's permissive policy on torture."

My opinion Jim Kiser: 9th Circuit 'circus' (Arizona Daily Star, 12/02/05)
To me, it is critically important to keep the courts as independent as possible of the ever-shifting political winds.

A Court Divided (Register Guard [OR], 11/28/05)
But make no mistake: Size and workload aren't the reasons critics want to bust the 9th into pieces. Conservatives have long regarded the 9th Circuit as dominated by "activist judges."

My opinion Jim Kiser: Splitting 9th Circuit bad for Ariz.  (Arizona Daily Star, 11/27/05)
Because Arizona's economic and cultural ties are closer to California than other western states, it's in Arizona's interest that the court not be split.

Editorial Misstates Facts About Ninth Circuit - Again (Daily Journal [CA] , 11/25/05)
A recent newspaper editorial touting the supposed virtues of splitting up the 9th U.S. Circuit Court of Appeals accuses the court of a pro-California bias.

Splitting the court would be a mistake (Seattle Post-Intelligencer [WA], 11/23/05)
One of the great strengths of the 9th Circuit is its diversity -- of judges, lawyers, people and opinions, including opinions about the court itself. We appreciate that diversity, but we respectfully disagree about splitting the court.

Splitting the US Court of Appeals for the Ninth Circuit: A Flawed Plan to Isolate California (San Francisco Chronicle [CA], 11/23/05)
Those who believe that policy drives our members of Congress might think again. Cartography may be their truest passion.