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Posted on 09/16/2003 8:50:42 AM PDT by Credo
By Andrew Peyton Thomas
PHOENIX, ARIZONA — Once or twice a year, the Ninth Circuit Court of Appeals hands down a ruling so astounding and earth-rattling that the entire nation is forced to take notice, and even commiserate with the poor souls who must live under this tyranny. So it was Monday, when the latest geyser of nonsense came forth in the form of a ruling halting the California recall election. This decision recalled the activism of the Florida supreme court in the 2000 presidential election. But unlike the judges in Florida, the liberal suzerains who reign over the San Francisco-based Ninth Circuit count as their subjects more than one out of six Americans. Those of us who throughout the west who live under this rule — and who have pled for a peaceful separation from the Ninth Circuit — have met with stiff resistance from those who wish to preserve this last empire of untrammeled judicial liberalism.
The Ninth Circuit is by far the largest federal judicial circuit in the nation. This colossus remains intact, despite substantial growing pains, because liberal partisans in Congress have steadfastly thwarted Republican-led attempts to divide the circuit into two more manageable districts. The Ninth Circuit was established in 1866, at a time when most of its current constituent states did not even exist. Now, the circuit comprises nine western states and two Pacific territories — the fastest growing part of the country. In both size (1.3 million square miles) and population (more than 50 million people), the Ninth Circuit dwarfs the other eleven circuits.
Serious proposals to split up the Ninth Circuit have recurred in every decade since the 1930s. One of the most famous was the 1973 Hruska Commission, chaired by Senator Roman Hruska of Nebraska, which recommended that the circuit be divided. The Fifth Circuit, which originally included most of the southern states, experienced high population growth and cried out for similar reform at around the same time. Congress divided the circuit in two in 1980. Today, the Fifth Circuit and its erstwhile half, the Eleventh Circuit, together have only one more judge than the Ninth Circuit.
Strong Democratic opposition to splitting the Ninth Circuit is of a piece with the ongoing filibustering of conservative judicial nominees. Why allow a Republican president and Senate to pack an entirely new circuit with "right-wing" judges, the reasoning goes. The bigger the Ninth Circuit, the greater the reach of liberalism.
A bloated Ninth Circuit carries unpleasant ideological consequences for the nation, particularly those Americans who live within its jurisdiction. Over the last year, the Ninth Circuit has been on a tear, taking full advantage of Democratic protection in Congress. In addition to declaring the Pledge of Allegiance an unlawful infringement of the Establishment Clause (because of the phrase "under God"), another Ninth Circuit panel handed down an equally questionable ruling in Brown v. California Department of Transportation. The court ruled that the California Department of Transportation could not allow American flags to be placed on state highway overpasses without permits unless the agency did the same for antiwar signs. Throughout the western U.S., Old Glory arguably enjoys no greater right to display on public property these days than "No Blood for Oil" placards.
The Ninth Circuit has been busy rewriting the Bill of Rights as well. A three-judge panel this year declared that the Second Amendment does not include an individual right to keep and bear arms, contrary to the express language of the amendment. In American Family Association v. City and County of San Francisco, an organization opposed to homosexuality sued the city and county of San Francisco after it encountered persecution from those governmental entities over its pro-family advertising campaign. The two governmental entities sent a letter to the group denouncing the campaign and linking its message to the murder of Matthew Shepard, passed two resolutions condemning the campaign, and discouraged TV stations from carrying the group's advertisements. The Ninth Circuit dismissed the lawsuit, ruling that these acts of governmental harassment did not violate the First Amendment. In dissent, one judge wryly questioned what would be the reaction if a city council "adopted a resolution condemning Islam because its teaching embraced the concept of a holy war and [was] . . . 'directly correlated' with the bombing of the World Trade Center."
Just two weeks ago, the Ninth Circuit overturned the sentences of three quarters of the inmates on Arizona's death row as well as of inmates in Idaho and Montana. In doing so, the court spurned rulings by the Tenth and Eleventh Circuits, which had applied a recent Supreme Court decision so as not to overturn capital verdicts in their states. One dissenting judge noted that the Ninth Circuit's ruling was "not compatible with Supreme Court precedent, our prior rulings, or the law of our sister circuits."
Obviously, the best response to such activism is to appoint federal appellate judges who will not behave as philosopher-kings. But even if Senate Democrats continue to stonewall President Bush's judicial nominees, they will have a harder time justifying a filibuster of a new, and long-overdue, judicial circuit in the West. Such a division can only help the broader cause of reining in judges who have increasingly little regard for democracy.
— Andrew Peyton Thomas, an attorney and author in Phoenix, was the Republican nominee for attorney general of Arizona last year.
Tuesday, September 16, 2003 -
EUREKA -- Monday's federal appeals court decision possibly delaying the Oct. 7 recall election was a bombshell, taking area elections officials and political party leaders by surprise.
So far, few seem thrilled with the ruling, either. When Humboldt County Elections Manager Lindsey McWilliams got word of the decision Monday morning, he and his staff were in the midst of processing some 3,000 absentee ballots that had already been returned from the 12,000 that were mailed out just last week. McWilliams said he's rarely seen such a rapid turnaround time for the ballots, a sign that many people are interested in the race. He estimated thus far the county has spent about $100,000 preparing for the recall election.
"The horse isn't just out of the barn, it's halfway around the track," McWilliams said, reacting to the U.S. 9th District Circuit Court of Appeals decision Monday to block the recall election.
Postponing the race, a ruling that is expected to be appealed to the U.S. Supreme Court as early as today, was based on the fact that six counties in the state still use outdated punch-card ballots, the same type that were used in Florida during the controversial 2000 presidential election.
Humboldt County has for some time stopped using those machines, having converted several years ago to optical-scan ballots. Still, a visibly unhappy McWilliams remarked that while some counties in California are still using the punch-card ballots, the state didn't experience the kinds of problems with the machines that were seen in Florida. He also noted that the punch-card ballots were used in last year's California gubernatorial election.
McWilliams declined to speculate on the outcome of any eventual Supreme Court decision, but said that he and his staff will in the meantime continue moving full-steam ahead. All of the absentee ballots that continue to arrive daily can't be counted until seven days before the election, and so for now not much on that end is affected by the court's decision.
Monday's ruling also was greeted with surprise and not a little disappointment by leading Democrats and Republicans alike.
Brian Mau, chairman of the Humboldt County Democratic Party, said delaying the recall would come at a bad time, considering that he believes Democrats' efforts to beat the recall are just now picking up momentum. He cited, for instance, former President Bill Clinton's highly visible endorsements of Gov. Gray Davis over the weekend. Mau added that Democrats oppose the recall in part because they believe it's a costly distraction from the more pressing problems facing California, such as its fiscal woes.
"The cost is still out there -- we've still wasted $60 million of taxpayers' money," Mau said. "We've distracted the state government from solving problems with the economy. Postponing the election will prolong that instability. It's better to get it over with sooner rather than later."
Mau estimated that hundreds of volunteers have already been mobilized locally by Democrats to help campaign against the recall. As far as what happens next, Mau said he'd check in with the state party headquarters for direction.
Similar uncertainty pervaded among area Republicans. Mike Harvey, chairman of the Humboldt County Republican Party, seemed equally stunned by the news, but he also said he's confident the Supreme Court will not uphold Monday's decision.
"This is a potential mess," Harvey said. "But it's not going to be upheld by the Supreme Court. I think (the Supreme Court is) going to deal with this swiftly and we're going to have the election on Oct. 7."
The argument could be made that the 9th Circuit Court is so old and obsolete that it too, violates the equal protection clause if the 14th. Amendment, as the court claims the punch card voting system does.
In fact, it does. It's rulings have consistently favored the moneyed interests of the urban, LA to Frisco corridor, rather than the general welfare of the populace of the Western United States.
IMO no new judges for the California circuit should be appointed until all or almost all of the original idiots have gone on "senior" status - no regularly assigned cases - at which time none of the new appointees should be federal district judges, and instead consist only of state court judges (mostly California state appellate courts) or lawyers with no judicial experience. The latter idea is to entirely destroy the old 9th Circuit's dysfunctional institutional culture. Appointing new California circuit court judges from the district court bench would tend to perpetuate the 9th's institutional culture, and so the federal district bench here should not have any upward mobility for at least 20 years.
Because you'd be creating a legal mess by putting lots of states in different circuits. For example, suddenly making Arizona subject to all Fifth Circuit precedents is a bad idea. It's much more orderly to have all the states in a new circuit subject to the same old precedents, even if the precedents are Ninth Circus precedents.
By the way, Lisa Murkowski's maiden speech in the Senate was a call for breaking up the Ninth Circuit. She's the new Republican senator from Alaska.
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