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December 7, 2005
Is the Ninth Circuit as liberal as some claim?
Journalists have long portrayed the Ninth as the "most liberal" circuit and conservatives have taken the bait, making periodic efforts to break up the circuit. The latest version would put the Intermountain West and the Pacific Northwest into a 12th circuit and leave California and the Pacific jurisdictions (Guam, Hawaii, and the Marianas) in the Ninth. Whether the Ninth is all that liberal is questioned in some legal circles. Its liberal decisions, such as a ruling against the religious language of the pledge of allegiance get massive news coverage, while its conservative decisions, such as rulings supporting the Bush administration on Guantanamo detainees and rejecting minority group challenges to the California recall election that turned Democrat Gray Davis out of the governor's office, are much less noticed. In his law journal article, "The Myth of the Liberal Ninth Circuit," University of Southern California law professor Erwin Chemerinsky wrote, "As a lawyer who often handles civil liberties and civil rights cases before the Ninth Circuit, I have been astounded to hear it described as an activist left-wing court." The court also has some insanely conservative judges, such as Jay Bybee of Nevada, who helped craft the Bush administration's permissive policy on torture. Anyway, last year U.S. Sen. John Ensign, R-Nev., issued a news release on his support for breaking up the Ninth Circuit. It talked about administrative reform, but it laid greater emphasis on the court's rulings of which Ensign did not approve - a dislike he projects onto the public: "The Ninth Circuit Court, as it currently exists, simply cannot handle its caseload. In addition, some of the court's rulings have represented an affront to the views and values of the people of Nevada. In terms of the administration of justice, we will be far better off with the splintering of the Ninth Circuit Court ... Like most Nevadans; I was appalled two years ago when the Ninth Circuit ruled that the Pledge of Allegiance is unconstitutional because of the phrase 'under God.' That ruling is indicative of the mindset of the court and reinforced my belief that the people of Nevada would be better served under the jurisdiction of another court." But this year, when the fight to break up the circuit resumed, Ensign put out another statement that eschewed that rhetoric. Instead, it focused entirely on administrative reform: "This splitting of the Ninth Circuit is absolutely necessary if the residents of Nevada and the other western states are to have equal access to justice. Right now, citizens living under the Ninth Circuit face incomparable delays and judicial inconsistencies ... The largest circuit in the country, the Ninth Circuit encompasses twenty percent of the entire nation's population. The Ninth Circuit has the highest cases per jurist ratio. And the trend is not changing. The Circuit is just too large." Like so many politicians before him, Ensign has decided that concealing his real goal helps him in achieving it. In this case, it's similar to a Democratic president's technique. In 1937 President Franklin Roosevelt proposed a plan that would have allowed him to appoint new justices and retire older ones who had ruled against his programs. It was called the "court packing" plan and was defeated. Roosevelt often described it in administrative terms ("...to make the administration of all federal justice, from the bottom to the top, speedier and, therefore, less costly"). University of Nevada professor Jake Highton, who has written a scholarly paper on the plan, called this approach by FDR "disingenuous." This kind of deviousness has become much too common. There is a consequence to it. It conceals from the public who their candidates and their elected officials really are. Voters go to the polls with bad information. U.S. Sen. Trent Lott of Mississippi, for instance, had long since learned to conceal his white supremacist views from the public, but those views slipped out in 2002 when he said the U.S. should have elected a segregationist as president. It turned out that Lott had been saying such things for a long time but had learned to keep it to himself when the wrong people were within earshot. The public was entitled to know it all along. When politicians talk in code, it means that the public can elect one person to office and get a different person in office. Myers is a veteran capital reporter. His column, "Against the Grain," appears here on Wednesdays. |
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