When a three-judge panel of the US Ninth Circuit Court of Appeals recently declared the Pledge of Allegiance unconstitutional because it includes the phrase "under God," it set off an immediate explosion of patriotism and religiosity. But it also brought to full political boil a long-simmering debate over the federal court system.
Not only is the San Francisco-based court the largest federal appellate court in the US, it's also the most liberal (according to its critics) and the one most likely to be overturned by the US Supreme Court. The court's approach may be just fine with all those liberals in the dominant urban areas along the Pacific Coast. But for years, it's rankled conservatives in "real West" places like Idaho, Montana, and Alaska.
They also feel that their states' cases get short shrift. "It's an old axiom that justice delayed is justice denied. But in many cases, Montanans are being denied justice entirely," says US Sen. Conrad Burns (R) of Montana. "About 60 percent of Ninth Circuit appeals come from California, and the court is dominated by California judges whose rulings are affected by their understanding of laws and precedents in their own state."
It's the largest federal appeals court in the US, covering nine states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), plus Guam and the Northern Mariana Islands. Its judges are responsible for about 55 million Americans and more than a third of the nation's land far more than any of the other 10 federal appellate regions.
Now, there's a movement afoot to break it up. A proposal in Congress would keep California, Nevada, and Arizona in the Ninth Circuit, and would create a new Twelfth Circuit out of the remaining states and territories.
"The Ninth Circuit is a big and cumbersome dinosaur that is in dire need of reorganization in order to provide better judicial service ... for all the people of the West," says US Rep. Mike Simpson (R) of Idaho, the bill's author.
Members of the court themselves are divided over whether the Ninth Circuit should be split in two. "The problem with the Ninth Circuit can be stated quite simply," Ninth Circuit Judge Diarmuid O'Scannlain of Portland, Ore., told a House Judiciary subcommittee recently. "We are too big now, and we are getting bigger every day."
Ninth Circuit Chief Judge Mary Schroeder, who opposes the legislation, says the greatest need is for more judges. "Our circuit is the fastest growing in the United States," she says. "We have had no additional judgeships since 1984. Our caseload since that time has doubled." She also points out that setting up a new appellate court could mean costly construction and bureaucratic duplication.
Others contend that while the Ninth Circuit may have had a tendency to be overturned by (arguably) a more-conservative US Supreme Court, that is no longer true.
"In recent years, our reversal rate has not been markedly different from those of other Circuits," Ninth Circuit Judge Sidney Thomas told the lawmakers. "On a percentage basis, there were seven other circuits whose reversal rates exceeded ours."
Indeed, the US Supreme Court recently upheld two controversial decisions by the Ninth Circuit: one that OK'd government regulations on land development near Lake Tahoe, and another that protected the First Amendment rights of "virtual" child pornography.
The squabble over the Ninth Circuit comes as the White House works to put its stamp on the federal court system. "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate," President Bush told a GOP fundraising event in Dallas last March.
The most visible fight at the moment is actually over in the Fifth Circuit (covering Louisiana, Mississippi, and Texas), where Texas Supreme Court Justice Priscilla Owen has been nominated to serve. Conservatives are pushing her cause, and liberals are fighting her - both because of her earlier rulings on abortion.
It's a controversial nomination. Even White House legal counsel Alberto Gonzales, when he was on the Texas Supreme Court with Judge Owen, called one of her dissents "an unconscionable act of judicial activism."
Meanwhile, Mr. Bush now has the opportunity to fill five vacancies on the Ninth Circuit with lifetime appointments.
As for a possible split-up of the Ninth Circuit, some people are already seeing undesirable consequences. A number of conservatives in Arizona and Nevada, for example, worry that cutting the Ninth Circuit to just their states and California would leave them even more dominated by the San Francisco-based court.
Then again, even judicial appointments can turn out unfavorably in some people's eyes, as President Eisenhower found out with Supreme Court Chief Justice Earl Warren: Against expectations, Chief Justice Warren oversaw some of the most progressive decisions in the court's history, including one-person-one-vote, school desegregation, and "Miranda" warnings to protect the rights of those arrested.
One historical footnote to the current controversy: The judge who wrote the "under God" decision was appointed to the Ninth Circuit by Richard Nixon.