By Jon Kamman
The Arizona Republic
Dec. 1, 2002

For years, it has been the court that conservatives loved to hate.

Now, by declaring that God doesn't belong in the Pledge of Allegiance, the 9th U.S. Circuit Court of Appeals has invited equal-opportunity loathing from believers right and left.

Yet the "left coast," "out of control," "wacko," "what are they smoking out there?" court also makes thousands of decisions every year that by any stretch can't be considered "far out."

The 9th is a study in superlatives and contrasts.

After weeding out about half of the appeals it receives as not worthy of deliberations, it adjudicates the most cases of any of the 12 regional circuits in the nation: about 5,000 a year, or more than four other circuits combined.

The 9th Circuit covers the largest territory: nine states and the U.S. possessions in the Pacific, with a total population of 55 million.

It has the largest bench, authorized at 28 active judges, with 24 of the seats filled. It also has 22 senior, or semiretired, judges who could retire at full pay but largely continue to hear cases.

Most of all, the 9th is widely labeled the most liberal appellate court in the nation and the one with the most cases overturned by the U.S. Supreme Court.

With that record, the court has long been on trial itself in the political arena and the court of public opinion.

Todd Gaziano, director of legal and judicial studies for the conservative Heritage Foundation in Washington, D.C., sums up the right's verdict: "The 9th is the worst . . . a sort of lawless land."

Only a tiny proportion of Circuit Court cases is accepted for review by the U.S. Supreme Court, but the 9th Circuit's record of being slapped down in 80 percent of those appeals is proof that its left-leaning judges have abandoned both the U.S. Constitution and common sense, critics contend.

That assertion disregards thousands of cases in which decisions have little or no discernible ideology, defenders respond. Nearly all Circuit Court cases are heard and decided by panels of three judges, they say, and to label the entire court "lawless" exaggerates complaints that stem from a few rulings or individual judges.

Most-reversed circuit

Statistics don't mark the 9th as particularly defective.

Tracey George, a law professor at Northwestern University who has tracked Circuit Court data over three years, said that although an 80 percent reversal rate seems high, two other circuits, one dominated by Republican appointees and the other with a one-Democrat majority, had rates of 75 percent. The rate for all circuits combined was 64 percent.

All courts have reversals, but the volume of cases they handle is important for context.

George said that of the nearly 83,000 cases decided by the Circuit Courts on the basis of hearings or briefs, the Supreme Court accepted only 186, or scarcely 0.2 percent, for review.

The high court's reversal or return of 119 cases constituted fewer than 1.5 reversals per 1,000 circuit decisions.

For the 9th Circuit, the ratio was 2.5 per 1,000. But the Chicago-based 7th Circuit, with eight judges appointed by Republicans and three by Democrats, had virtually the same ratio.

"People looking at reversal rates need to remember that the base line is not 50 percent," said Stephen E. Wasby, professor emeritus of political science at the Albany campus of State University of New York.

The Supreme Court is most likely to review cases it thinks may have been decided wrongly, so the court normally overturns about two of every three cases, Wasby said.

Sources of controversy

One reason the 9th is so controversial, many observers agree, is that it is more likely than other circuits to handle complex issues that require legal pioneering in a rapidly changing society.

Topics spanning adult entertainment, Internet free speech, copyright infringement in cyberspace, water disputes, immigration law and Indian sovereignty do not arise so often in other regions.

But criminal law, common to all courts, is one focus of criticism of the San Francisco-based court.

An example of the 9th's criminal-coddling tendencies, critics charge, was its 2-1 ruling that a convict should be allowed to send sperm to his wife from prison. Preventing him from procreating is cruel and unusual punishment and therefore unconstitutional, judges said.

Defenders point out, however, that the Circuit Court reversed the decision itself in one of its rare 11-judge en banc rehearings.

Other circuits err, too

The 9th Circuit has no exclusive claim to decisions denounced as wacky.

In the Republican-dominated 5th Circuit, which includes Texas, a tough-on-crime panel upheld a death sentence for a man whose attorney had fallen asleep repeatedly at the defense table. That decision, too, was reversed within the same circuit.

The Supreme Court sometimes disagrees as harshly with a conservative circuit as it does with the 9th.

The 5th Circuit ruled that a mentally retarded man could be executed for murder, but the higher court disagreed, 6-3.

Similarly, when the conservative 4th Circuit found reason to undo the three-decade practice of advising a suspect of his rights, the Supreme Court reversed, 7-2.

For many, especially parents, the 9th was too protective of free speech when it ruled that a law against "virtual pornography" was unconstitutionally vague in making it a crime to circulate material that "appears to be" sexual images of minors or gives that "impression."

But the Supreme Court backed the decision.

What's 'liberal'?

Even as an ideological battle about "conservative" vs. "liberal" judges escalates on Main Street and in Congress, the distinctions are becoming less and less meaningful, in some experts' views.

George said that two other circuits in recent years have not been branded particularly liberal despite having a slightly higher percentage of Democratic appointees than the 9th.

"Classifications are breaking down," said Arthur D. Hellman, law professor at the University of Pittsburgh and a former director of the 9th Circuit's legal staff.

"Judicial issues are more complex than the simple labels we attach to them," he said. "You have to talk about each case specifically."

Hellman cited as an example the 9th Circuit's ruling that a virulent anti-abortion Web site was illegally posing a threat to abortion doctors.

One side of the court took the nominally liberal position that the site constituted free speech, while the other succeeded in giving protection to doctors whose practices are anathema to conservatives.

"Which is the liberal position?" Hellman asked.

The alignment of judges on the issue is no help. Two who are considered at opposite ends of the ideological spectrum agreed this time on the side of free speech, which lost.

Question of balance

When it comes to U.S. Senate confirmation of judicial appointments, neither the presumed ideological leanings of nominees nor the party of the appointing president is a reliable predictor of how a judge will rule in coming years, said Sen. Jon Kyl, R-Ariz.

No fan of the 9th Circuit bench, Kyl nonetheless said he and other Republicans believe that trying to impose some sort of ideological "balance" on the 9th or any other court would be futile. Sen. Charles Schumer, D-N.Y., has argued otherwise.

Kyl said, "Presidents ought to be able to nominate judges they truly want, as long as a nominee's competence and honesty are not in question. . . . Judges are not easily pigeonholed by their presumed political affiliations." He pointed to four controversial decisions in which judges ruled the opposite of what their backgrounds suggested.

Among the four, the Pledge case, now under reconsideration, offers the greatest ironies. Alfred T. Goodwin, who wrote the opinion, is the son of a Baptist minister, is active in the Presbyterian Church and was appointed by Richard Nixon.

"He is not the village atheist," Wasby said.

Judicial activism

To see judges as political operatives trying to impose their own social agenda discredits their integrity and expertise, said Mary Schroeder, chief judge of the 9th Circuit.

Schroeder, who presides over the far-flung circuit from Phoenix, said judges are not pursuing personal or political agendas.

"Judges usually come to the bench from backgrounds of strong advocacy and, often, partisan activism," she said. "When they put on that robe, they leave those at the courthouse door."

Judges recognize, and must allow for, how their own experiences shape their concepts of fairness and logic, Schroeder said.

"Someone who has been a schoolteacher . . . is going to have a different perspective on some issues," she said. "And, certainly, a member of a minority group will have experiences and an outlook very different from that of the average White male."

Reach the reporter at jon.kamman@arizonarepublic.com or (602) 444-4816.

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