the Case of the Freeper FRiva Feva is under scrutiny - super-sleuths are welcomed
come resolve the way to yesterday's Target Post, you're not out of the running yet
win your registration fees to the FRive Las Vegas Conference if you dare
Posted on 06/27/2002 9:54:00 AM PDT by Jean S
The Ninth Circuit Court of Appeals is making headlines again. Ruling that the Pledge of Allegiance is unconstitutional is but one example of a larger problem--and a pattern of well-documented judicial inanity from that court. Here's an article from our March 25, 2002 issue that examines some other outrageous decisions as well as the causes of judicial activism in the 9th Circuit.
Rulings From the Rogue Court
Posted March 4, 2002
By Hans S. Nichols
Laurence Tribe may be the most liberal lawyer in America. Yet, at a Senate committee hearing in December, he warned of the "international embarrassment" that could befall the country if "some rather liberal judge out in the 9th Circuit" were to involve that court in prosecuting terrorists.
Tribe's comments caught the attention of top Bush officials and Republican senators. If someone such as Tribe, a Harvard law professor who suggested a "corrective election" on behalf of his client Al Gore, is offering such ready criticism of the 9th U.S. Circuit Court of Appeals, it's a dire sign indeed. The "runaway court" must have fallen off the left coast and into the Pacific.
Of course, geographically, the sprawling 9th Circuit long has been in the Pacific. It's also in the Rockies, notes Rep. Mike Simpson (R-Idaho), author of legislation to break the court into more manageable entities. Stretching from the Northern Marianas to Montana and from Alaska to Arizona, the 9th Circuit covers 38 percent of this country's landmass and houses 20 percent of its population. "It's clear that the 9th Circuit is far too large to respect what our Founding Fathers had in mind when they determined the size of the federal courts," Simpson tells Insight.
No one can dispute that the 9th Circuit is the largest in the country. What is contested, however, is just how much of a "rogue court" it is, if at all. Conservatives long have charged that its reversal rates by the Supreme Court are disproportionately higher than the other appeals courts. "Twenty percent of the American population lives in the circuit in which the rule of law is regularly being challenged by the issuance of activist opinions by ideologically driven federal judges," says Sen. Jeff Sessions (R-Ala.).
"How does the joke go?" asks Michael Horowitz, a judicial scholar at the Hudson Institute. "Judge, I'm appealing a ruling from the 9th Circuit, but I have other reasons as well."
That this circuit has become a judicial laughingstock might be treated as a mere oddity if there were a remedy in sight, say Republican aides, conservative activists and nonpartisan judicial scholars. The court may be in "La-La land," as Simpson puts it, but not everyone agrees with this characterization. Defenders explain its high reversal rate as part of the natural tension between the trial and appeals courts, claiming that this can have a positive impact on the rule of law.
In any event, most of today's hot-button legal issues find a flash point in the 9th Circuit — from assisted-suicide laws in Oregon to the legalization of medical marijuana in California to a wide range of privacy issues on police searches and seizures. In February, the court made news by chipping away at the widely successful and voter-approved "three-strikes-and-your-out" law in California.
But according to county district attorneys in Western states, the damage done by this court's rulings are difficult to quantify. They believe that law-enforcement officers are reluctant to pursue leads aggressively for fear that the court ultimately will reprimand them. "It's really demoralizing," says Josh Marquis, the district attorney in Clatsop County, Ore.
The last stop before the Supreme Court, the U.S. Courts of Appeal are divided into 11 geographic districts. While the appeals courts — and, below them, the federal circuit courts — hear thousands of cases each year, the Supreme Court usually weighs in on only a handful. For example, in the 1999-2000 term, 67 cases reached the high court. Typically, the number ranges from 50 to 120 per year, legal experts say.
According to dozens of legal scholars and former judicial clerks, the 9th Circuit has more than earned its reputation as a "runaway court." It has by far the highest overrule record since the federal judiciary was expanded in 1978. In one year, the 1996-1997 session, the Supreme Court reversed 27 of the 28 cases it considered from the 9th Circuit. This number is all the more arresting upon further examination, say both conservative and liberal legal analysts, because 17 of the cases were overturned by unanimous decisions. "When the Supreme Court overrules you unanimously, they are sending a message," says Arthur Hellman, a law professor at the University of Pittsburgh. Given that today's Rehnquist court generally is considered moderate to conservative — including liberal jurists such as Stephen Breyer and Ruth Bader Ginsburg — these unanimous reversals are most revealing about the 9th Circuit's distemper and disrespect for the Supreme Court.
In a heated Senate debate in 2000 about splitting the district, Sessions looked at the three-year span from 1996-1999 when the 9th Circuit was reversed on 54 of the 63 cases examined by the Supreme Court — a reversal rate of 86 percent. The next-highest totals belonged to the 8th Circuit, which had 24 cases reviewed and 14 reversals. The 1999-2000 term saw a slight tapering off, with the Supreme Court reviewing 11 of the 9th Circuit cases and reversing eight of them. But that number was higher than any other circuit that year. In the most recent year for which figures are available, the 2000-2001 session, the Supreme Court considered 15 cases from the 9th Circuit, 11 of which it reversed.
Some Democrats try to explain the large number of reversals by citing the sheer number of cases that the 9th Circuit considers, but it is the rate of reversal that is remarkable. Others suggest that the West Coast has more "aggressive and creative lawyering," with legal eagles testing untried and unorthodox arguments while the rest of the nation just watches, astonished.
Conservatives have their own theories. Tom Jipping of the Free Congress Foundation explains that of the 26 active judges on the bench in the 9th Circuit, 14 were appointed by Bill Clinton and three by Jimmy Carter. In fact, since the court was expanded in 1978 from 13 to 23 judges, it always has been dominated by Democratic appointees.
For a time in the early eighties, Carter had appointed 15 of the 23 judges, many of whom were very liberal even by Carter standards, says Hellman, who has followed the court for more than 20 years. "That high concentration of fresh judges in the late seventies created a dynamic unique in the federal judiciary," Hellman tells Insight. Many of the new judges were reacting against the perceived conservative tilt of their older colleagues, and "as a group they created quite a blitz," Hellman continues. The result was that in the 1982-83 term, the 9th Circuit had 26 cases reviewed by the Supreme Court, 25 of which were reversed.
While there are several methods for bringing a rogue circuit to heel, none appear very effective at present, which worries Senate Republicans. With only two vacancies, President George W. Bush can't expect to tip the balance of the 28-seat court by appointing a few conservative jurists. One long-discussed option would be to split the circuit into smaller and more manageable units, something "that ain't going to happen as long as the Dems control the Senate," according to a senior Republican aide.
That leaves "public slap downs," when the Supreme Court summarily overturns the lower court's decision without even holding new oral arguments. But since "reversal is almost a badge of honor to some judges in the 9th," according to a former clerk, this tactic holds even less promise. While it widely is assumed that judges don't like to be reversed by a higher body, many court watchers believe this consideration does not exist on the 9th Circuit. "They just don't care about being reversed out there," Horowitz explains. Since the sting of reversal has worn off, "ultimately, they can issue more decisions than the Supreme Court could ever hope to review," he continues.
A former clerk agrees: "The operating assumption is that all but a fraction of its cases will not be corrected by the Supreme Court, especially on immigration." This indicates a problem much larger than the high reversal rates because "hundreds and thousands of bad cases slip through the cracks," says the former clerk. "So you have judges that are flagrantly ignoring Supreme Court precedent because the high court just doesn't have the time to review all the cases."
It certainly was not Ronald Reagan who first realized the potential of the appeals and circuit courts to reshape public policy. Reagan packed the judiciary with conservative jurists, and Clinton attempted to do the same with liberals — salting the lower courts with those sympathetic to his own ideology, and even to the left of it, as a way to appease radical factions in the Democratic Party.
"It used to be that the political battles occurred at the Supreme Court level," says one court watcher, "but now that's shifting, especially with Democrats in control of the Senate." Since Bush's election, Senate Republicans have noticed that Democrats are upping the ante on lower-court judges. Witness the bloody fight over Charles Pickering, a nominee for the 5th U.S. Circuit Court of Appeals, who at press time still hadn't received a vote in the Senate Judiciary Committee (see Fair Comment, March 11).
If the Pickering battle is about drawing lines in the sand and establishing the tone for the Senate's role in advice and consent on presidential judicial nominees, then the nomination process indeed will be messy and protracted, say Capitol Hill aides. With Senate Democrats spoiling for ideological slugfests about judges, the problem of the 9th Circuit probably isn't about to go into remission.
For those living under the 9th, the situation is a frustrating one. "We just want out," says a lawyer in Idaho's attorney general's office. "We don't care where. Just put us in another circuit."
Hans S. Nichols is a reporter for Insight.
I can't imagine that standard applied in other professions.
Surgeons are unsuccessful 95% of the time.
Pilots miss the runway 95% of the time.
etc., etc., etc.
No more so than Clinton and Carter did with flaming liberals - perhaps even less so.
the Case of the Freeper FRiva Feva is under scrutiny - super-sleuths are welcomed
come resolve the way to yesterday's Target Post, you're not out of the running yet
win your registration fees to the FRive Las Vegas Conference if you dare
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.