Court reform—or court packing?

A new effort is underway in Congress to break up the territory of the U.S. Court of Appeals for the Ninth Circuit because it is supposedly too liberal.

Opponents of the idea say it’s a poorly concealed effort to pack the federal courts.

The court, which has the largest section of geography in the nation, is the federal appeals court for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. The current legislation would put all the intermountain states and the Pacific Northwest states into a new 12th circuit and leave the Ninth with California and the Pacific jurisdictions (Guam, Hawaii, and the Marianas). The court has 28 active judges and an unknown number of senior-status members (judges who have retired but sometimes participate in cases).

The court has often issued attention-getting decisions, such as a ruling on the Pledge of Allegience. The court ruled that when students are forced to recite the pledge, with its religious reference, it violates religious protection language of the U.S. Constitution.

U.S. Sen. John Ensign of Nevada, a Republican, is sponsoring a measure breaking up the court. Last year, discussing a similar measure, he questioned whether the Ninth Circuit was in tune with “the views and values of the people of Nevada” but this year is portraying the breakup as administrative reform: “Right now, citizens living under the Ninth Circuit face incomparable delays and judicial inconsistencies. … The Ninth Circuit has the highest cases-per-jurist ratio.”

Ensign’s Nevada colleague, Senate Democratic floor leader Harry Reid, is opposing the breakup. His aide, Tessa Hafen, said the breakup would make administrative problems worse, not better: “[The] proposed split is inequitable—[it] divides [the] present Ninth into new Ninth and Twelfth and leaves the new Ninth with 200 more cases per judge than they have now.”

The measure hit a major obstacle last week when the Republican chair and ranking Democratic member of the Senate Judiciary Committee both opposed the change, which supporters were trying to make through a budget measure.

“The reorganization of appellate circuits is a major policy initiative and would impact the system of justice for millions of Americans,” Sens. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., said in a letter to congressional budget committee members. “The issue is squarely under the jurisdiction of the Judiciary Committee and any budgetary issues are merely incidental. Accordingly, we oppose including any such measures in any [budget] reconciliation package.” The House last week delayed a vote on the measure. Hafen says Reid considers the judiciary panel the proper vehicle for creating new circuits.

Not all agree with the claim that the Ninth Circuit is a liberal court. In “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.” He pointed to 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.

The Pledge of Allegiance case got front-page coverage from coast to coast, while the recall and detainee rulings received far less publicity.

The court’s reputation may come not from its rulings but its location—the West is more often on the cutting edge of new social forces than other circuits, as with medical marijuana in Nevada and other western states, assisted suicide in Oregon, and gay marriage in California. And when decisions come down, such as the Ninth Circuit ruling on the Pledge of Allegiance, they are thrown into a glare of spotlight out of all proportion to their actual importance because they present novel and colorful issues that other circuits experie