Those rumblings out on the Left Coast are not another earthquake. At least not of the geological kind.
The 9th Circuit covers nine states and two territories. Its 28 full-time positions make it by far the largest circuit in the country. It is not difficult to understand why it is also the most erratic, most political and most activist circuit in the country. More than two-thirds of its current full-time judges are Democrat appointees. President Clinton appointed more of the 9th’s current judges than all other presidents combined. This is truly the Clinton court.
The 9th Circuit’s press office touts it as “the busiest of the nation’s 12 regional appeals courts.” It certainly gives the Supreme Court plenty to do. The Supremes have issued decisions in 50 cases so far in the 2002-03 term, and 15 of them are from the 9th Circuit. That’s three times as many as any other circuit. It’s more than the cases from the 2nd, 4th, 5th, 6th, 7th, 10th and 11th Circuits combined.
Liberal judicial activists’ long-term lock on the 9th Circuit is by design. Nearly half the circuit’s current full-time judges are based in California. Senators try mightily to dictate appointments to positions in their states, and California’s leftist senators have helped move the 9th Circuit steadily in that direction. Eight of the 10 current California-based judges are Clinton appointees.
The rumbling you hear comes as California’s leftist senators try to keep President Bush’s 9th Circuit nominees from being confirmed. He has nominated someone to all three current vacancies. Those vacancies, by the way, are each “judicial emergencies” because of their duration and impact on the court’s caseload. Yet the abortion extremists are once again screaming “filibuster” and they want yet another woman put in the stocks. President Bush nominated Los Angeles Superior Court Judge Carolyn Kuhl to the 9th Circuit 737 days ago to a position that has been vacant since 295 days before that.
Who knows, maybe they will also target San Francisco Superior Court Judge Carlos Bea, nominated to the 9th Circuit on April 11. After all, leftists say they like diversity. They are filibustering Honduran-born Miguel Estrada on the East Coast, and now’s their chance to bar the courthouse door to Spanish-born Judge Bea. Funny … all the Democrats’ filibuster targets are women and immigrants (we won’t go there right now).
Since appeals courts consider cases in randomly chosen panels of three, courts with vacancies sometimes have to ask judges from other jurisdictions to help out. The 9th Circuit did that when it declared the Pledge of Allegiance unconstitutional. It did it again recently when the court ruled that the U.S. Constitution’s Second Amendment “right of the people to keep and bear arms” is actually a government right, not an individual citizen’s right at all. Carter appointee Judge Stephen Reinhardt wrote this bizarre opinion, and the panel included a Clinton appointee and an Eighth Circuit judge sitting “by designation.”
The real impact of the 9th Circuit’s imbalance comes when the full circuit is asked to review a three-judge panel decision. In this case, the court declined. Six judges dissented from that decision, Judge Alex Kozinski writing: “Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted … [but] when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.” By the way, one Clinton judge joined the dissent, but he’s from Seattle.
Giving in to “the temptation to pick and choose” is called judicial activism. And for those deluded into thinking that obstructing judicial appointments began with Republicans under President Clinton, Judge Kozinski was confirmed by a razor-thin 54-43 in 1985. He would no doubt be filibustered today (he was born in Romania).
The fault line is once again opening on the Left Coast, and I hope the judiciary survives the quake.