Break Up 9th Circuit Appeals Court

Conservatives frustrated by the notoriously liberal, San Francisco-based U.S. Court of Appeals for the 9th Circuit may finally have a chance to do something about it.

Thanks to the new Republican majority in both houses of Congress and a rarely invoked congressional check on the power of the judicial branch, lawmakers could narrow the geographic scope of the long-infamous circuit court that recently banned the Pledge of Allegiance and nullified the 2nd Amendment right to keep and bear arms. Congress could then create a new circuit court to serve many of the states in the Northwest.

Rep. Mike Simpson (R.-Idaho) told Human Events last week that he will propose a bill near the beginning of the new Congress to break up the 9th Circuit. There are 11 regional U.S. Circuit Courts, but the 9th is by far the largest, currently covering nearly 60 million Americans in nine Western states—Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington and Hawaii—and the Northern Mariana Islands. Simpson’s bill would narrow the 9th Circuit to comprise just California, Arizona and Nevada and then create a new circuit for the other states.

Simpson’s bill, which received a House subcommittee hearing this summer (HR 1203) but never got a vote because of time constraints, is expected to pass the House Judiciary Committee in 2003.

Simpson said that his bill enjoys broad support in the Rocky Mountain and Pacific Northwest regions. It also has bipartisan appeal. In 1995, attorneys general in five states from those regions—including Democrat Ted Kulongoski, now governor-elect of Oregon—wrote a letter to Senate Judiciary Chairman Orrin Hatch (R.-Utah) in support of breaking up the 9th Circuit.

Although the circuit’s chief judge, Mary Schroeder, opposes the proposal, some of the circuit’s judges support it. One of them, Judge Diarmuid O’Scannlain, testified before the House Judiciary Subcommittee on Courts. "There is nothing sacred about the 9th Circuit keeping essentially the same boundaries for over 100 years," he said in the July 23 hearing. "The only legitimate consideration is the optimal size and structure for judges to perform their duties."

Simpson claimed that his bill also has support in the Senate, boosting the chances that it could become law. The identical Senate bill (S 346) had seven Republican co-sponsors last year, including both Idaho senators, both Alaska senators and Gordon Smith of Oregon. Hatch, who was poised last week to become Judiciary Committee chairman, did not respond by press time to inquiries as to whether he would support the bill or make it a priority.

Simpson told Human Events that his motives in breaking up the 9th Circuit have little to do with the court’s reputation for liberal judicial activism. "I’d like to say that it’s all the political reasons and the decisions that they make," he said. "But what it is, actually, is that the 9th Circuit is too large a circuit."

Geographically, the circuit stretches from Alaska to Arizona and from Montana to Hawaii. It is also the most populous circuit by more than 15 million people and, with 28 judgeships, has nearly twice as many as the next-largest circuit.

Simpson blamed the court’s excessive size for the fact that the circuit relies on ten-judge panels to make decisions in major cases, unlike other circuits in which the full complement of the circuit’s judges normally hear critical cases.

"You don’t have the opportunity for all the judges to decide on some of these rogue three-judge panel decisions that are coming out," commented Eric Schippers of the Center for Individual Freedom.

This may partly explain the circuit’s reversal rate, which is higher than that of any other U.S. circuit. In the last term, more than three-fourths of the circuit’s decisions appealed to the Supreme Court were reversed. And this marked an improvement over previous years: In the 1996-97 term, the Supreme Court reversed 27 of 28 appeals from the 9th Circuit.

The 9th Circuit’s caseload has also proven too large. In his annual report on the federal judiciary released last week, Chief Justice William Rehnquist noted that the number of cases in the 9th Circuit has increased 115% since 1984. "The caseload is so great that decisions coming out of the 9th Circuit are delayed longer than other circuits," Simpson said.

According to U.S. judiciary statistics, in 2000 there were 116 appeals that the 9th Circuit took more than 12 months to consider after submission—nearly four times as many as the next slowest court. Judiciary statistics also show that in the year ending September 2001, the 9th Circuit took, on average, 16 months—longer than any other circuit, and 50% longer than the other circuits averaged together—to hand down final decisions, starting from the time appeals are filed.

In 1997, Congress explored the issue of breaking up the circuit by establishing a commission headed by former Supreme Court Justice Byron White. Although the commission’s report on the circuit contained several points in favor of a breakup, it argued instead for creating three "divisions" within the circuit—an arrangement unlike that in any other circuit.

Schippers said that the circuit’s controversial decisions help to add popular appeal to Simpson’s bill. "You are starting to see a backlash not only in Congress but in the public as well, and that is certainly going to add fuel to the fire to split the circuit," he told Human Events, citing the recent decisions on the Pledge of Allegiance and the 2nd Amendment. Schippers added that the court’s rulings often seem particularly outrageous to residents of the conservative mountain states in the circuit. "There is a real disconnect between the people in Idaho or Montana and some of the decisions being made in San Francisco," he said. "This court is definitely not representative of the people there."

A vote on breaking up the 9th Circuit, Schippers said, could force liberals to side either with or against the Pledge of Allegiance in a meaningful floor vote—not merely a symbolic one, such as the resolution adopted immediately after the Pledge of Allegiance decision.

In June, a three-judge panel on the 9th Circuit ruled that the Pledge of Allegiance represents an unconstitutional establishment of religion because it contains the phrase "under God." The outlandish opinion included the statement that "the mere fact that a pupil is required to listen every day to the statement ‘one nation under God’ has a coercive effect." Sen. Robert Byrd (D.-W.Va.) wryly remarked after the decision that the Declaration of Independence, which also contains references to God, could be the next document "struck down" by the rogue circuit.

More recently, a three-judge panel on the 9th Circuit ruled, notwithstanding the 2nd Amendment’s plain language, that there is no constitutional "right of the people to keep and bear arms." In an extremely tortured decision, circuit judges held that the 2nd Amendment somehow refers a right given to state-run militias—even though every other amendment in the original Bill of Rights refers to the rights of individual citizens of the United States and not state-run organizations. (See article by Prof. Nelson Lund, page 18.)

Earlier this month a 9th Circuit panel effectively kept Clinton-era roadless rules in place for national forests in the Western United States. Despite the disastrous results this summer of the Clinton Administration’s fight to keep logging companies from building fire roads, the court issued a preliminary ruling reinstating the rules after a U.S. District court had temporarily blocked their enforcement. Environmental concerns drive much of the conservative opposition to the current make-up of the 9th Circuit, since the San Francisco-based court covers a number of Western states, and thus has huge sway over such hot-button issues as endangered species, wetlands rules and development.

Liberty Counsel

Petition to the President of the United States and Members of Congress

I speak as an American citizen. The recent decision of the 9th Circuit Court of Appeals in San Francisco where the Pledge of Allegiance was ruled Unconstitutional is an attack on America by way of the legal system. We are indeed "One Nation Under God."

To declare that anyone who pledges allegiance to the Flag of our Country is breaking the law is to declare the President of the United States and every member of Congress to be law breakers.

It has become abundantly clear that the two judges that voted for this must be impeached and removed from office. Please use the authority that you have been invested with and immediately vote to impeach judges Stephen Reinhardt and Alfred Goodwin.

Date: June 27, 2002

From: Mathew Staver, Esq.

Judges that Ruled America is not "One Nation Under God" Must be Impeached!

On June 26, 2002, I was in a meeting out of my office when I received a call that a federal court ruled the Pledge of Allegiance unconstitutional. My first reaction was to question whether the call was a prank, and when I realized the caller was serious, my reaction turned to shock and outrage.

The decision to declare the Pledge of Allegiance unconstitutional was handed down by what is known as the Ninth U.S. Circuit Court of Appeals, the most liberal circuit court of appeals in the country. This court is the most reversed court in the country by the United States Supreme Court.

Although I am confident that this decision will be reversed, it’s a tragedy that it comes so close on the heels of September 11. The two judges that ruled in the majority essentially spit in the face of every veteran who shed blood to preserve the freedom of all Americans. This court essentially has turned its back on those who are currently overseas to defend this country in the war against terrorism.

Urgent Petition

The Ninth Circuit has always been a radical, left-leaning court. A recent survey showed that 80%-90% of the Ninth Circuit’s decisions are reversed by the U.S. Supreme Court. In one recent term, the Supreme Court reversed 24 of the Ninth Circuit’s decisions, and 16 of those decision were reversed by a 9-0 opinion by the United States Supreme Court. It’s hard to find the United States Supreme Court unanimously agreeing on anything, but one thing it has agreed on is that the Ninth Circuit is in left field.

It is time for Congress to take action and impeach the two judges on this Federal Court. They will only act if we all get involved and let them know our outrage. I am asking you to sign this petition and forward it to all your friends. You may not be able to go overseas and fight for our freedoms, but you can take a stand by signing this petition.

One of the two judges in the majority, Stephen Reinhardt, is a holdover from the liberal judges appointed by President Carter. This judge is even left of the Ninth Circuit Court. Judge Reinhardt once issued an opinion that the United States Constitution guarantees the right to assisted suicide. This decision was overruled. During one term of the Supreme Court, this same judge was unanimously reversed 5 separate times by the High Court on 5 separate cases. Obviously a judge like this does not belong on a Federal Court.

In just a few days America will celebrate its 226th birthday on the Fourth of July. In spite of what a couple of liberal judges say, this is still "One Nation Under God."It is imperative that every patriotic American signs this petition.

This petition will immediately be forwarded to all 535 members of the U.S. Congress. Those members have the authority to remove these judges. This petition will also be sent to President George W. Bush.

After you sign this petition, please forward this web link to everyone you know. Every family member and friend must join together with us and take a stand against this assault of the American spirit.

Urgent Petition

Let everyone in America in every schoolhouse and every church house lift their voices and their pens and cry out that we are indeed "One Nation Under God."

Ninth Circuit Court of Appeals Reorganization Act of 2001 (Introduced in House)

HR 1203 IH

107th CONGRESS

1st Session

H. R. 1203

To amend chapter 3 of title 28, United States Code, to divide the Ninth Judicial Circuit of the United States into two circuits, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

March 22, 2001

Mr. SIMPSON introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend chapter 3 of title 28, United States Code, to divide the Ninth Judicial Circuit of the United States into two circuits, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Ninth Circuit Court of Appeals Reorganization Act of 2001'.

SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.

Section 41 of title 28, United States Code, is amended--

(1) in the matter before the table, by striking `thirteen' and inserting `fourteen'; and

(2) in the table--

(A) by striking the item relating to the ninth circuit and inserting the following:

`Ninth

Arizona, California, Nevada.';

and

(B) by inserting between the last 2 items the following:

`Twelfth

Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, Washington.'.

SEC. 3. NUMBER OF CIRCUIT JUDGES.

The table in section 44(a) of title 28, United States Code, is amended--

(1) by striking the item relating to the ninth circuit and inserting the following:

20';

and

(2) by inserting between the last 2 items the following:

8'.

SEC. 4. PLACES OF CIRCUIT COURT.

The table in section 48(a) of title 28, United States Code, is amended--

(1) by striking the item relating to the ninth circuit and inserting the following:

`Ninth

San Francisco, Los Angeles.';

and

(2) by inserting between the last 2 items at the end the following:

`Twelfth

Portland, Seattle.'.

SEC. 5. ASSIGNMENT OF CIRCUIT JUDGES.

Each circuit judge in regular active service of the former ninth circuit whose official station on the day before the effective date of this Act--

(1) is in Arizona, California, or Nevada is assigned as a circuit judge of the new ninth circuit; and

(2) is in Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, or Washington is assigned as a circuit judge of the twelfth circuit.

SEC. 6. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.

Each judge who is a senior judge of the former ninth circuit on the day before the effective date of this Act may elect to be assigned to the new ninth circuit or to the twelfth circuit and shall notify the Director of the Administrative Office of the United States Courts of such election.

SEC. 7. SENIORITY OF JUDGES.

The seniority of each judge--

(1) who is assigned under section 5 of this Act; or

(2) who elects to be assigned under section 6 of this Act;

shall run from the date of commission of such judge as a judge of the former ninth circuit.

SEC. 8. APPLICATION TO CASES.

The provisions of the following paragraphs of this section apply to any case in which, on the day before the effective date of this Act, an appeal or other proceeding has been filed with the former ninth circuit:

(1) If the matter has been submitted for decision, further proceedings in respect of the matter shall be had in the same manner and with the same effect as if this Act had not been enacted.

(2) If the matter has not been submitted for decision, the appeal or proceeding, together with the original papers, printed records, and record entries duly certified, shall, by appropriate orders, be transferred to the court to which the matter would have been submitted had this Act been in full force and effect at the time such appeal was taken or other proceeding commenced, and further proceedings in respect of the case shall be had in the same manner and with the same effect as if the appeal or other proceeding had been filed in such court.

(3) A petition for rehearing or a petition for rehearing en banc in a matter decided before the effective date of this Act, or submitted before the effective date of this Act and decided on or after the effective date as provided in paragraph (1), shall be treated in the same manner and with the same effect as though this Act had not been enacted. If a petition for rehearing en banc is granted, the matter shall be reheard by a court comprised as though this Act had not been enacted.

SEC. 9. DEFINITIONS.

In this Act, the term--

(1) `former ninth circuit' means the ninth judicial circuit of the United States as in existence on the day before the effective date of this Act;

(2) `new ninth circuit' means the ninth judicial circuit of the United States established by the amendment made by section 2(2)(A); and

(3) `twelfth circuit' means the twelfth judicial circuit of the United States established by the amendment made by section 2(2)(B).

SEC. 10. ADMINISTRATION.

The court of appeals for the ninth circuit as constituted on the day before the effective date of this Act may take such administrative action as may be required to carry out this Act and the amendments made by this Act. Such court shall cease to exist for administrative purposes on July 1, 2003.

SEC. 11. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective on October 1, 2001.

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