Debate Brews over Splitting 9th Circuit Court
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TOUR GUIDE: This is probably the most elaborate and the most famous of the courtrooms. There have been some famous trials here. Tokyo Rose was tried in this room.
SPENCER MICHELS: The 9th Circuit Court of Appeals with headquarters in politically liberal San Francisco has become an ideological target for many conservatives. Even on public tours, where visitors can explore the recently restored 1905 granite, marble and redwood courthouse, the intensity of feeling over some of the courts’ rulings creeps into the guide’s narrative.
TOUR GUIDE: I gave a tour to a fundamentalist Christian group, and they were here mainly to see where the devil dwells.
SPENCER MICHELS: The Notorious Ninth, as it is sometimes called, is the largest of the 12 federal appeals circuits, with 47 working judges. The court represents nine states in the West plus two Pacific islands. It has inspired such animosity because of several key rulings. Most recently, a 9th Circuit panel approved the use of medical marijuana in California, a decision the Supreme Court could reverse this year.
The court has drawn ire for protecting the forests, the spotted owl and salmon, decisions seen as favoring environmentalists and against timber, mining and commercial fishing interests. The 9th Circuit drew its most intense criticism with its pledge of allegiance decision.
STUDENTS RECITING PLEDGE OF ALLEGIANCE: …one nation, under God, indivisible, with liberty and justice for all.
SPENCER MICHELS: The judges ruled in 2002 that inclusion of “under God” in the pledge was an “endorsement of religion,” and therefore unconstitutional. That decision was overturned by the Supreme Court on a technicality. The critics, like Alaska Sen. Lisa Murkowski, say the court is out of synch with many of its constituents throughout the West, and needs to be split up.
SEN. LISA MURKOWSKI, R-Alaska: The pledge decision highlights how out of touch this court is from common sense and constitutional values.
SPENCER MICHELS: But 9th Circuit Judge Alex Kozinski, a Reagan appointee, says the ruling on the pledge was written by an judge appointed by Richard Nixon.
JUDGE ALEX KOZINSKI, 9th Circuit Court of Appeals: That was a Republican judge, appointed by a Republican president, a conservative judge reading the law. Reading the Supreme Court cases and making up his mind not based on a finger in the wind, not based on a fear that whether it will be split or politicians will be unhappy or the president will be unhappy but based on the case before him. It seems to me that this is what makes this country truly great — that we can have a judiciary where the person who appoints you doesn’t own you.
SPENCER MICHELS: Now, a number of senators and representatives support breaking up the court, including Republican Sen. Orrin Hatch, who thinks it’s just too liberal.
SEN. ORRIN HATCH, R-Utah: It is also a court that is seriously out of balance, with 17 of its 24 active judges appointed by Democratic presidents. It is about time that we let the 9th Circuit Court of Appeals know that, as the most reversed court in the country, to think twice before they do something like this.
SPENCER MICHELS: University of California law professor Vikram Amar has studied the court’s record and says it is in the mainstream when it comes to how often it is overruled by the Supreme Court.
VIKRAM AMAR: I found that the kind of common impression people have of the 9th Circuit as kind of a rogue circuit, and an excessively liberal circuit that’s always getting reversed by the Supreme Court much more than other courts is actually inaccurate and increasingly so.
SPENCER MICHELS: Judge Kozinski agrees, and also disputes the allegations that the court is too liberal.
JUDGE ALEX KOZINSKI: I was appointed by President Reagan; I’ve been here 20 years. So I don’t consider myself anybody’s liberal. And yet I can say with some confidence that cries that the 9th Circuit is so liberal are just simply misplaced.
SPENCER MICHELS: Even when not attracting the political limelight, the court is busy. Last year, 14,000 appeals were submitted to the circuit’s judges, who work throughout the west. The judges usually hear cases in three-judge panels there is no jury, and rarely any audience, as the judges question attorneys from opposing sides.
SPOKESPERSON: In other words, you want to answer the question you wished I’d asked, and not the question I did ask.
SPENCER MICHELS: In most federal appellate courts, all the judges meet en banc, as it’s called, to hear some important cases. But the 9th Circuit is so big that only 11 of its judges make up an en banc panel, as in the case to halt the California recall election.
SPOKESPERSON: What is your position on the relationship on the timing of the recall to the ballot initiative?
SPOKESPERSON: I appreciate that, your honor…
SPENCER MICHELS: The sheer size of the 9th Circuit and rapid population growth in the west, prompted a bill last year in Congress to split the court into three separate circuits.
SPOKESPERSON: What your response to him –
SPENCER MICHELS: Ninth Circuit Judge Diarmuid O’Scannlain, a Reagan appointee and one of nine judges who favor the breakup, agrees with that concept. He argues that the court’s size leads to too many three-judge panels, which then produce decisions that are at odds with each other.
JUDGE DIARMUID O’SCANNLAIN: We get consistently criticized because people will find a case of our court that says one thing here, and then another case, again from our court from a different panel, that says something totally inconsistent.
SPENCER MICHELS: The 9th Circuit’s chief judge, Mary Schroeder, a Jimmy Carter appointee from Arizona, disagrees.
CHIEF JUDGE MARY SCHROEDER: Occasionally, there are conflicts, when two panels disagree, and we have a process, an en banc process, where we resolve those conflicts and create authority that is binding on the circuit.
SPENCER MICHELS: As for efficient administration, innovations like judges meeting via satellite, and increased use of computers has made the court function smoothly, says the 9th Circuit clerk.
CATHY CATTERSON: And I think in large party it is manageable because of the changes in technology that allows one to keep track of all these cases.
SPENCER MICHELS: But the administrative and size issues are a smokescreen, according to Rep. Howard Berman.
REP. HOWARD BERMAN, D-Calif.: Believe me, my colleagues, the original proponents of this split and many of its supporters are doing this not based on judicial efficiency, but on ideology.
SPENCER MICHELS: If Congress splits the court for political reasons, that curtails its independence, argues Chief Judge Schroeder.
CHIEF JUDGE MARY SCHROEDER: I think that there are constitutional implications if realignments are made for the wrong reasons, because I think we must be concerned if Congress decides that it is going to punish a court or a circuit for decisions that are unpopular. The constitution prevents Congress from getting rid of judges it doesn’t like.
SPENCER MICHELS: Judge O’Scannlain sees no constitutional issue in splitting the court, since it’s been done before.
JUDGE DIARMUID O’SCANNLAIN: With all due respect to my chief judge, that is sheer nonsense. How can you say that there is a threat to judicial independence to talk about splitting the 9th, when there was no threat to judicial independence in putting New England and New York into two separate circuits back in the early 1800s; I mean, I’m sorry, I just don’t think there is any merit to that argument.
SPENCER MICHELS: UCLA law professor Eugene Volokh is a self-described conservative who follows the 9th Circuit and the debate over its decisions. He says such controversy is inevitable.
EUGENE VOLOKH: There are some judges who have rendered incorrect decisions, and decisions where perhaps their ideology has colored their judgment of the Constitution too much. But I think that’s very much the exception and not the rule, and again that’s something that is to be expected. This is criticism that people have been making of judges for 200 years in America. That’s just the nature of things when you’ve got democratic appointees and well as Republican appointees on the courts.
SPENCER MICHELS: The bill to break up the court passed the House last year, but did not reach the Senate. Two such bills were introduced this year, and so the debate over whether to break up the 9th Circuit, for political or administrative reasons, continues.