Bottom of the ninth
The Ninth Circuit Court of Appeals, those right-wing extremists who happen to agree with Alito on machine guns, may be split in two:
Buried deep in the massive House spending-cut proposal is a provision to do what many conservatives have been wanting to do for years: split up the liberal 9th U.S. Circuit Court of Appeals and allow President Bush to appoint some new judges to it.
The underlying spending-cut proposal trims $53.9 billion from mandatory spending programs under eight House committees. It was approved yesterday by the budget panel, 21-17, with the court-splitting provision included — one of many issues about which Democrats complained.
Republicans said the change would be good for the San Francisco-based 9th Circuit, the largest and most backlogged of the circuits, spanning nine Western states, Guam and the Northern Marianas Islands. It repeatedly has made rulings at which conservatives bristle, including the 2002 decision that reciting the Pledge of Allegiance in public schools is unconstitutional because of the phrase “under God.”
November 4th, 2005 at 11:12 am
Would be a good thing anyway just based on the caseload they have alone. On the other hand, it will be a heck of a fight when it comes time to appoint new judges. And those judges may not be as friendly to the commerce clause.
November 4th, 2005 at 12:19 pm
You could legitimatly split the ciruit up into California and the other states.
Perhaps, from my perspective, the more radical thing to do would be that while we split it up we also realign the circuit courts and the regional branches of all the federal agencies – so that Region 4 of EPA, ATF, FWS, FS, etc is located in the 4th Circuit and that Region 9 is located in the 9th Circuit, etc etc etc.
As its set up right now, the 9th Circuit – as can other circuits – can exert its influence over a disproportionate share of the US. It usually works out that it is the 9th though, as government agencies regulated based on the path of least resistance and therefor – if the 9th Circuit can have any input in regional policies, they regulate based on 9th circuit precendent.
November 4th, 2005 at 1:07 pm
“Would be a good thing anyway just based on the caseload they have alone.”
Exactly, they also are the most overturned court in the US if i remember correctly.
November 4th, 2005 at 1:14 pm
The Ninth Circuit needs to be split for purely administrative reasons; it’s so friggin’ large that even its “en banc” rulings aren’t. Blake, I don’t know that a split would require more judges, as opposed to the same number of judges, with roughly half remaining in the existing circuit and the other half migrating over to the new one. Were there a bunch of new hires when the Fifth Circuit was split in 1981?
I also don’t know how a Ninth Circuit split would affect things ideologically. As the Stewart case indicates, they’re not all left-wing ideologues now. The author of that case, Alex Kozinski, has been the darling of conservatives for years, and many in the blogosphere were calling on President Bush to nominate him rather than Samuel Alito to the Supreme Court. We also had a well-written unanimous opinion upholding Prop 209, which rid California of affirmative action in 1996, and plenty of other good decisions by good, solid judges in the Ninth Circuit who do not constitute a majority but are a big enough minority to make a significant dent. We’ve also got our share of fruitcake judges, of course, so court appeals here are often a crapshoot, where the entire case rides on which 2 of 3 randomly assigned judges end up on the case.
Most of the fruitcakes are Carter appointees, so I’m not sure we’d remain the Fruitcake Circuit too much longer if left to our own devices. I’m also not sure that splitting us up would help in the short run; presuamably, the new Twelfth Circuit would inherit all the same precedents that currently make the Ninth (in-)famous. But I am sure that as long as the circuit remains as large as it is, it will remain he clunky circuit, where even “en banc” decisions aren’t, and that alone is reason enough to split it up.
November 4th, 2005 at 1:20 pm
I can say that again!
November 4th, 2005 at 5:20 pm
This is highly misleading. For one, mandatory recitation of the Pledge of Allegiance was rendered unconstitutional in 1943, before the “under God” stuff was even inserted. But what the court ruled was that the 1954 Act that inserted the phrase “under God” was unconsitituional; the unconstitutionality of the recitation policy merely follows from that:
In conclusion, we hold that (1) the 1954 Act adding the words “under God” to the Pledge, and (2) EGUSD’s policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause.
(from Newdow v. United States, emphasis mine).
You may disagree with #2, but #1 seems fairly straightforward to me.
November 4th, 2005 at 6:24 pm
I’m not sure why you think it’s “highly misleading” to write that the Ninth Circuit ruled #2 when in fact it ruled both #1 and #2, particularly given how closely related the issues are. It would be odd indeed to rule that Congress violated the Establishment Clause when inserting the words “under God” into the Pledge, but government schools do not violate it when using the Pledge as directed.
In any event, the greater point of the article is not whether Newdow was correctly or incorrectly decided, but rather, whether it enraged conservatives, which it clearly did.
November 4th, 2005 at 8:04 pm
From what I remember, “under God” was inserted into the Pledge to differentiate the US from the Soviet Union who were “Godless”. How one can claim that the Pledge is constitutional is beyond me.
November 5th, 2005 at 3:05 am
It is my understanding that the First Amendment only bars the establishment of a church (as in, Church of England), not any form of religious expression.
November 6th, 2005 at 1:28 pm
Xrlq:
It’s highly misleading because so many people are ignorant of the history of the pledge, often believing that the “under God” has always been there — it has not; further, the wording would seem to indicate that the ninth ruled that way in a vacuum — that they simply, out of nowhere, ruled that “under God” was necessarily unconsitutional, never mind Congress’ involvement.
Alcibiades:
That’s a bit of a dated understanding, and one that not even many of the framers (e.g., Madison, Jefferson) shared. It’s a long-since decided precedent that certain government actions have the effect of establishing a preferred religion, even if they don’t establish an official state religion per se.
November 6th, 2005 at 3:15 pm
If it’s “misleading” to leave out the act of Congress, it’s only misleadingly in a “fake but accurate” sort of way. As long as the school district had people recite the Pledge in its current form, the Newdow case would have been decided exactly the way it was, regardless of whether the federally codified Pledge had always read the way it does, or even if Congress hadn’t codified it at all (as was the case for all but 12 of its pre-God years). To the extent that an act of Congress and an act of a government school district can be distinguished under the Establishment Clause, courts are more likely to uphold the act of Congress as harmless “ceremonial deism” for adults, but a state endorsement of religion when done in the K-12 setting.
November 7th, 2005 at 3:04 pm
Xrlq:
Point taken.
November 7th, 2005 at 11:03 pm
Please, Jeebus, get Arizona out of the 9th Circus.
And make sure Alex Kozinski ends up on our side.