Court Suffers as Political Games Roll On

It’s possible, we suppose, there’s something more than partisan politics behind either the Senate’s efforts to break up the 9th Circuit Court of Appeals or its delay in confirming nominees to the court. But try as we might, we fail to see what it could be.

The facts are these: The 9th Circuit is the largest of the 11 federal circuits. It has the largest caseload, covers the most territory (nine western states including California) and has the most judgeships (28). Yet despite four judgeship vacancies, the circuit has kept pace with its enormous caseload through hard work and innovation.

The 9th Circuit has some of the nation’s most distinguished--and controversial--judges. Many of the judges, Californians among them, have angered conservatives with rulings protecting civil liberties and the environment. The current proposal to split the 9th Circuit is as much a retaliatory attempt to isolate California’s judges as an earnest effort to evenly distribute the caseload. That plan was approved earlier this month by the Senate Judiciary Committee. Sponsored by Sens. Slade Gorton (R-Wash.) and Conrad Burns (R-Mont.), it would leave California and Hawaii as the 9th Circuit and form a new 12th Circuit with the remaining seven states. A full Senate vote has not yet been scheduled.

This configuration would still leave the 9th Circuit as one of the nation’s largest, and the 12th would be one of the smallest. Moreover, the new circuit would cost taxpayers an estimated $26 million up front for a headquarters, library and staff, plus additional annual costs.

Burns is nevertheless so determined to break up this court that he has refused to permit confirmation of any nominee until a new circuit is created. In the meantime, the four vacancies have worked a hardship on parties with business before this court as well as on the judges themselves.

One vacancy predates President Clinton’s election; they all may outlast his presidency. The Judiciary Committee has approved two of Clinton’s three nominees to these slots, but Burns has delayed indefinitely a vote on their confirmation by the full Senate.

Last week, the committee held hearings on the nomination of William A. Fletcher, a Boalt Hall law professor widely respected for his scholarship and his judicious temperament. But committee Chairman Orrin G. Hatch (R-Utah) questioned whether Fletcher’s nomination violated an 1887 antinepotism statute regarding court appointments. Fletcher’s mother, Betty Fletcher, already sits on the 9th Circuit. Hatch, however, had no such qualms about the 1992 confirmation of George Bush-nominee Morris Arnold to the 8th Circuit, on which his brother already sat. Hatch now says he needs more time to study the law.

These partisan games must end. Worthy nominees deserve a vote, and the 9th Circuit needs more judges.