Waiter, there's a liberal judge in my soup!

Waiter, there's a liberal judge in my soup!

Waiter, there's a liberal judge in my soup!

The law, lawyers, and the court.
Nov. 19 2003 6:22 PM

Split Decision

Another reason to divide the 9th Circuit.

The 9th Circuit Court of Appeals is everyone's favorite drop-kick dog these days. The gargantuan federal appeals court, which decides law for most of the Western United States, has been at the center of a series of recent political controversies, from banning the words "under God" from the Pledge of Allegiance to trying to postpone the California recall election at the last minute. The court has also earned the dubious distinction of being the country's most overturned: In the 2002 term, it represented 43 percent of the appellate decisions reviewed by the U.S. Supreme Court and saw 75 percent of those rulings reversed, often unanimously.

Not at all coincidentally, there is a movement afoot in Congress to split the lumbering appeals court into two smaller circuit courts. But if you listened to the recent congressional hearings, you'd come away thinking the need was because the court resembles the household in I Love Lucy, where too many scatterbrained characters make a hash of the most routine chores.

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Every political action needs its Trojan horse, and there's no question Congress takes its cues from the many circuit judges who cite administrative hassles in the sheer scale of their group as the reason for the split. But let's not kid ourselves: The real motive behind the split is to jettison the court's liberal contingent.

Because the Supreme Court hears so few cases a year now, the circuit courts represent the last word on the vast majority of federal cases. The fact that different circuits may come out with slightly different last words is deemed reasonable since, over the years, it's been accepted that the system allows for regional differences in the interpretation of federal law (at least until the Supreme Court has spoken definitively).

Consider it a sort of second-tier federalism. Just as the Constitution intended to give each state some discretion in making law for its own residents, the federal court system is structured to encourage some diversity from region to region. This dynamic has contributed to the personalities of many of the circuits in the country—the Virginia-based 4th Circuit has become known as tough on crime, for example. The New York-based 2nd Circuit has developed expertise in securities law. The 9th Circuit, by contrast, has a growing reputation for judicial activism and decisions that are regularly at odds not only with the rest of the country, but most pointedly with the animal spirits of its own region.

The elephant on the seesaw, of course, is California. That state, known for tilting left, has come to dominate the circuit, with 23 of its active and senior judges hailing from California (that's nearly half the circuit's total) who are nevertheless deciding cases that end up making law for Arizona, Hawaii, Nevada, Alaska, Idaho, Montana, Oregon, Washington, and Guam.

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Living in the shadow of California hijacks the rights of the Northwestern states to act as sovereigns, or so the argument goes. In two days in April of last year, for example, a panel of three California judges reversed the findings of district courts in Idaho and Montana regarding environmental management in those states.  In Native Ecosystems Council v. Dombeck, Carter appointee Dorothy Nelson and Clinton appointee Richard Paez ruled that various environmental regulators (the U.S. Forest Service, the secretary of agriculture, et al.) had improperly permitted timber sales on national forest land and, among other things, "failed to consider the presence of grazing allotment when evaluating sale's effect on Grizzly Bears." The decision reversed Montana District Judge Jack Shanstrom's grant of summary judgment for the government.

Likewise in Neighbors of Cuddy Mountain v. Alexander and Idaho Sporting Congress v. Rittenhouse, judges hailing from the Golden State declared timber sales in Idaho to be in violation of environmental policy objectives. Chief District Judge Edward Lodge in Idaho had found in favor of the government (the seller of that timber) in both cases.

This stark regional dissonance is an important consideration in the plans to split the circuit. In the latest incarnation of the bill to unbind the Northwest from California, sponsored by Idaho Rep. Michael Simpson, Congress would potentially spin off Northwest states including Washington, Oregon, Idaho, and Alaska into a new 12th circuit. Not only would the newly drawn 12th and 9th Circuits be on a more consistent scale with the remaining circuits, but such a division would create a more realistic regional divide, acknowledging the Pacific Northwest and Alaska as culturally and politically distinct. Even if that seems a stretch, at least by virtue of being smaller, the residual districts would allow each state a greater sense of control over its judicial fate.

This effort to preserve regional political integrity has lessons that may echo inside the Beltway as well by shining a light on the remoteness of the judicial nominations process and, especially, those who stand in its way. The president nominates judges under Article II of the Constitution, with the "advice and consent" of the Senate. In turn, under that body's arcane rules, a given nominee can effectively be prevented from becoming a judge in Utah by a senator from New York. The reason is the filibuster, a tool that allows a passionate minority to block action even by a 59-vote majority. Of course, when they put routine judgeships in the hands of the Senate, the Founding Fathers may not have anticipated the extent to which battles over the judiciary would become the meat and potatoes of well-funded, ideological special-interest lobbies (just look at the abortion issue, for example). Blocking judicial nominations by filibuster has been happening more and more frequently, as politicians answer the demands of these constituent groups. Democrats in Congress have prevented an "up or down" vote on six of President Bush's nominees, including, recently, Carolyn Kuhl and Janice Rogers Brown.

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Part of the blame goes to the U.S. Supreme Court, too, for nationalizing certain debates that perhaps would have been better off left to state and local legislatures. But more saliently, if there is room for marginal differences from region to region, as a 9th Circuit split would suggest, then a determination of what is sufficiently "moderate" to get through the Senate should differ for a nominee for Oregon and one for Massachusetts. Positions on regulating guns or the environment that might seem extreme in an East Coast metropolis resonate very differently in states where people hunt and fish and live off the land.

The nominations process is now so regularly bogged down in left-right holy wars that it threatens the judiciary's ability to handle its daily caseloads. Nor is there much hope of a pendulum swinging back to reduce politicization of the judiciary. A recent paper by University of Chicago professor Cass Sunstein, David Schkade, and Lisa Michelle Ellman for the American Enterprise Institute and the Brookings Institution suggests strongly that a judge's rulings can be reliably correlated with the party affiliation of the appointing president. With this fodder in hand, the parties are not likely to stand down from their Senate nomination battles. But keeping the circuits small would at least lend greater accountability to the process. In place of filibusters, nominees might more properly be blocked only by the objections of the senators from the state to which they are assigned.

Reorganizing the unwieldy 9th Circuit would represent a big step toward fostering more regionalism in judicial interpretation, replacing it with two courts better able to reflect the politics and mores of the Southwest and Northwest, respectively. Admittedly, that's just a start, but other steps might follow more or less naturally.

Senators from the various states would feel a great proprietary interest in protecting the integrity of their circuits and insist that national mau-mauers butt out. Many of those pressing to split the 9th Circuit are Republicans who have political goals in mind. Fine. That's exactly the reason for letting circuits hew more closely to the views of the regions they represent: to decrease the extent to which the judiciary is a national ideological battleground.