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.