What should be done
with the 9th Circuit?

In the view of conservatives, at least, the 9th U.S. Circuit Court of Appeals (with jurisdiction over California, eight other Western states, plus Guam and the Northern Marianas) is the Peck's Bad Boy of federal appellate courts. It has 24 active judges, any three of whom, chosen at random, can affirm or reverse a case appealed to them from the district court below. Their decision, in turn, can be reversed only by 11 members of the full court (again, chosen at random) acting "en banc," or by the Supreme Court of the United States.

Since a majority of the 24 judges are liberals, ranging from fairly moderate to near-hysteric, important cases often wind up in the hands of a threesome dominated by judicial leftists like Judge Stephen Reinhardt. (The Supreme Court has overruled Reinhardt's decisions so often that he has been reduced to calling these legal spankings a badge of honor.)

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This reputation of the 9th Circuit is unquestionably one of the reasons there are constant calls for the circuit to be split in two, or even three. There are currently bills before Congress that would accomplish this in various ways, most of which would put California in a circuit of its own (along with the hapless Pacific islands) and create one or two new circuits for the other states now in the 9th. Since most or all of the judicial nutcases hail from California, the result would be a 9th Circuit crazier than ever, but most or all of the eight other states would be spared having to participate in its lunatic deliberations.

Many thoughtful observers, however, believe there are sound reasons, having little or nothing to do with Judge Reinhardt and his ilk, for breaking up the 9th. Its jurisdiction encompasses almost 40 percent of the nation's land mass and one-fifth of its population (58 million people), and it requires nearly double the number of judges in the average circuit. As a result, nearly a fourth of all federal appellant litigants undergo a longer than average time in the processing of their cases.

The trouble is that there are equally thoughtful people on the other side of the argument. They point to the inevitable expense involved in creating new circuits (estimated at upward of $100 million apiece), and stress that the 9th Circuit's processes, from appeal to disposition, take, on average, just 14 months, compared to a national average of 11 – hardly an outrageous difference. Finally, they charge, with some justice, that the critics' real desire is to split California itself between two circuits (thereby diminishing its liberal impact) – a step that is effectively impossible, for technical reasons.

Ironically, to the extent that the hidden motive of the 9th-splitters is to reduce the clout of the current liberal majority on its bench, there is a solution available that avoids the various problems that a split would inevitably raise. The 9th Circuit is currently authorized by law to have 28 judges, yet there are only 24. If President Bush would simply appoint qualified conservatives to those four vacancies, the balance on the court would shift distinctly to the right. The current liberal majority is not large, and four additional conservatives would, in many cases, produce a radically different – i.e., conservative – result.

What's holding the president up? To be sure, California's two liberal Democratic senators – Barbara Boxer and Dianne Feinstein – would do everything in their power to block the nominees. But the Republicans control the Senate 55 to 45, and under the agreement reached by the bipartisan Gang of Fourteen, the Democrats have pledged not to filibuster Bush's choices for judgeships save in "extraordinary circumstances." If they break that promise and try to filibuster highly qualified conservatives, the Republicans can always invoke the "nuclear option" (i.e., change the Senate rules to confirm the tradition that judicial nominations are not to be filibustered), and ratify the nominations anyway.

The 9th Circuit, by liberal rulings that the Supreme Court has firmly reversed, has made itself offensive to what Sen. Charles Schumer, D-N.Y., likes to call "mainstream opinion" in the United States. The means are at hand to change that, for the foreseeable future.