Centerfield

Reforming the Judiciary: Fact and Fiction

Almost everyone who's paid attention to the press or, say, The Daily Show, in the aftermath of the Terri Schiavo case has been aware of an intensifying effort by the conservative faction to "reform" the federal judiciary. House Majority Leader Tom DeLay (R-Tex.) has famously hinted at using Congress's impeachment power to rein in "activist" judges. Senator John Cornyn (also R-Tex.) also complained about judges, both Democrat- and Republican-appointees, and, in widely decried and later retracted remarks on the Senate floor, almost seemed to explain away recent violence against judges in Georgia and Illinois as a frustration with judicial activism. Comments like these, and the current tension in the Senate over the so-called nuclear option on confirming judicial nominees, illustrate that the war between conservative and liberal is moving beyond the raucous halls of Congress and into the staid halls of the federal courts.

The proposal to defund the judiciary has been raised here at Centerfield, and comments to that thread have suggested a distinction be made between proposals offered by social conservatives to exact vengance upon the judiciary and genuine judicial reform. There's another reform proposal, possibly more subtle, often overlooked by those outside the legal world, and easily colored as an effort by conservatives to stiffle the independence of the judiciary: splitting the Ninth Circuit.

The proposal is not new, but may be picking up new momentuum as conservative frustration and conservative power coincide. The Ninth Circuit is known in legal circles as the most liberal federal court of appeals in the country (just as the Fourth Circuit is known as the most conservative). It has, for example, ruled against the pledge of allegance and the individual right to carry handguns. The Los Angeles Times quoted James Dobson, founder of Focus on the Family, targeting the Ninth Circuit specifically. "Very few people know this, that the Congress can simply disenfranchise a court," Dobson said. "They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn't exist anymore, and it's gone."

But is circuit splitting just another example of conservative retribution?

The United States Court of Appeals for the Ninth Circuit sits, as do its 11 regional brethren, immediately below the Supreme Court of the United States on most federal questions. It begins in the east at Montana's border with the Dakotas, swinging south through Idaho and Nevada, around Utah, to pick up Arizona. It then spreads west to include Washington, Oregon, California, Alaska, Hawaii, Guam, and the Northern Mariana Islands. At the last census, it was home to just under 57.5M Americans--almost twice the size of its nearest competitor.

Because the Supreme Court of the United States hears so few appeals (the 2004 Year-End Report on the Federal Judiciary records 91 cases argued in the Supreme Court in its 2003 Term (ending June 2004)), the regional courts of appeals are the only appellate forum available for most federal litigants. The Administrative Office of the United States Courts records 59,509 appeals filed in the 12 regional courts of appeal; 12,929, almost 22%, were filed in the Ninth Circuit. And little wonder: the Ninth Circuit is the appellate circuit for 15 of 94 federal judicial districts (almost 16%)--the closest competitor has 10 districts--and 112 of 679 federal district judges (again, about 16%). On its bench sit 28 of the 167 federal appeals judges (again, about 16%, but almost half as many again as its nearest competitor).

There's an active debate within the legal community about whether the size of the Ninth Circuit hinders its effectiveness. Appellate judges elsewhere tend to work closely with each other and develop a sense of collegiality; that's missing on the Ninth Circuit because there are so many judges that they don't see each other on the common three-judge panels very frequently. Moreover, most circuit courts sit en banc, meaning all the active judges of the appeals court hear the same case, in order to hear mini-appeals from the three-judge panels' decisions. Not so with the Ninth Circuit. Because it has 28 active judges, only the chief judge of the court and ten randomly chosen judges sit on the en banc "panel". See Circuit Rule 35-3. This means that a majority of the court is excluded from the en banc review. And the en banc decision is the final decision of the circuit--there is no higher appeal but to the Supreme Court of the United States, which, again, rarely accepts such requests for review.

(And, it should be observed circuits have been split before: the 10th Circuit was created from the 8th, and the 11th from the 5th.)

So proposals to split the Ninth Circuit do seem to have merit beyond the mere anti-judicial rhetoric of social conservatives. But there are many diffferent ways to skin a cat. There are currently two proposals in the House, H.R. 211 (sponsored by Michael Simpson (R-Idaho) and Tom DeLay) and H.R. 212 (sponsored only by Mr. Simpson). H.R. 211 ("the DeLay bill") would split the Ninth Circuit into three circuits: California, Guam, Hawaii, and the Northern Mariana Islands in the 9th; Arizona, Idaho, Montana, and Nevada in a new 12th; and Alaska, Oregon, and Washington in a new 13th. H.R. 212 ("the Simpson bill") would split the Ninth Circuit in two: California, Arizona, and Nevada in the 9th; and Guam, Hawaii, the Northern Mariana Islands, Idaho, Montana, Alaska, Oregon, and Washington in a new 12th.

One might think that splitting the Ninth Circuits three ways would be better than two. But the empirical data show otherwise. I've created a graph comparing the caseloads for each circuit under both proposals here. You can easily see that, though the DeLay bill creates three circuits, there remains a staggering imbalance between the circuit caseloads--though the new 12th Circuit bears the burden, while the new 13th circuit has a caseload half as heavy. The Simpson bill distributes the burden much more evenly.

So why the two proposals? Here's a hint: look at how the red states and blue states are distributed in the two bills. The DeLay bill puts California in a circuit all its own, relatively speaking; the Simpson bill ignores the politics and focuses purely on geographic blocks and caseloads.

As my example shows, not all moves to change the federal judiciary are threats to its independence. But even genuine reform efforts can be Trojan horses for social conservatives and partisan fanatics. The devil is in the details, and, unfortunately, we have to look at the "nuances"--God forbid.