Short circuited

National | CALIFORNIA: Last week's recall ruling is merely the latest in the string of surprises unleashed by the nation's most activist federal appeals court

Issue: "Isabel's slow march," Sept. 27, 2003

If Gray Davis seemed unflappable throughout his long and humiliating recall ordeal, it may have been because of the California governor's famously bland personality-or it may have been because of his ace in the hole. After a dozen lawsuits in state and district courts failed to stop the recall roller coaster, Mr. Davis and his allies knew they'd eventually get the hearing they'd been waiting for. Their day in court finally came on Sept. 15, and they weren't disappointed (see sidebar).

Going before a three-judge panel of the 9th Circuit Court of Appeals, they must have felt pretty good about their chances. The 9th Circuit, after all, has a well-deserved reputation as the most liberal federal court in the land. Its far-left judicial philosophy puts it in constant conflict with the other 12 appellate districts, forcing the Supreme Court to step in again and again to provide a uniform, nationwide interpretation of the law. Indeed, one-third of all cases before the Supreme Court are appealed from the 9th Circuit, and the justices reverse their Western colleagues in more than 80 percent of the cases they agree to hear.

The judges of the 9th Circuit are known for being staunchly antiÐdeath penalty, pro-abortion, anti-gun, and anti-religion. In recent cases they have argued that the right to bear arms is a "relatively obscure constitutional provision" and that physicians who help their patients commit suicide ought to be protected by the law.

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Most famously it was the 9th Circuit that ruled in June 2002 that some public-school children in California could no longer recite the Pledge of Allegiance because the phrase "under God" violated the separation of church and state. That decision earned the undying scorn of conservatives everywhere, but the court's liberal track record goes back much further. In fact, as early as 1984, then-Justice William Rehnquist lamented that the judges on the 9th Circuit "have a hard time saying no to any litigant with a hard-luck story."

So it was a good thing for Gov. Davis that little has changed in the past 20 years. Of the 26 active judges who serve the sprawling circuit-nine Western states and some 50 million people fall under its purview-Bill Clinton appointed 14 of them and Jimmy Carter another three. Because appellate judges are randomly drawn to hear cases on three-judge panels, the overwhelming Democratic tilt of the 9th Circuit makes it extremely difficult to achieve a conservative majority in any given dispute. With only nine GOP-appointed judges to choose from, the statistical probability of picking a liberal over a conservative is almost 2-to-1.

In the California recall case, all three judges were Democratic appointees-two Clintonites and a holdover from the Carter administration. There could be little doubt as to where their sympathies lay: Sidney Thomas wrote a controversial opinion earlier this month overturning more than 100 capital-punishment cases going back two decades or more. Richard Paez was an outspoken opponent of Proposition 209, which banned affirmative action in California. And Harry Pregerson, an avowed judicial activist, promised in his 1979 confirmation hearing that if the law ever conflicted with his conscience, he would follow the latter.

Republicans have little hope of reforming the 9th Circuit through attrition. The 14 Clinton appointees are mostly 50-something baby boomers who could serve 25 years or more on the bench. President Bush has already had three judges confirmed for the circuit, but even his two additional nominees presently before the Senate Judiciary Committee would barely manage to shift the court a bit rightward.

The best hope for real reform may be splitting the huge circuit in two, essentially isolating California, source of the most left-wing judges. It's been done before-the busy 5th Circuit was recently pared from six states to three-and even some Democrats from smaller Western states favor the plan.

Still, breaking up the liberals' legal stronghold will take a bigger Senate majority than the GOP can currently muster, and the court itself, unsurprisingly, insists it can function just fine as is.


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