Senate Blocks Changes to a Court Gone Amok

The U.S. 9th Circuit Court of Appeals has long been an embarrassment. Now it is becoming dangerous. And the only remedy--new judges--is being blocked by the Senate Judiciary Committee.

The 9th Circuit, which covers nine Western states, has a history of strange decisions. More of its decisions are overturned by the U.S. Supreme Court than any other court, 86% in the past four years. Recent cases involving violent criminals are more than just legal error; they are a public menace.

In one case, an FBI agent approached a suspected murderer, but before he could read the man his rights, the suspect blurted out, “I have nothing to say; I’m going to get the death penalty anyway.” The 9th Circuit ruled that that statement should not have been admitted at trial because it violated the 5th Amendment, which says no one may be compelled to be a witness against himself.

This is absurd; decisions such as this stretch the 5th Amendment far beyond its language and purpose. Although the court affirmed this conviction based on other, overwhelming evidence of guilt, the precedent established could put a killer back on the street in a future case.

It gets worse. In the Andrade decision last November, the 9th Circuit held that California’s three-strikes law was unconstitutional as applied to a thief with nonviolent prior convictions. That decision was controversial but within the bounds of reasonable debate. Then, in February, the same court issued an extension of that holding. The cases of Earnest Bray Jr. and Richard Napoleon Brown involved thieves with violent convictions, including armed robbery and assault with a deadly weapon. The California appellate courts already had decided that their sentences were not disproportionate in light of the criminals’ violent records. Yet the 9th Circuit declared that only the most recent offense, not the priors, could be considered in the proportionality analysis. This holding is clearly contrary to Supreme Court precedent, which requires consideration of the whole record in habitual-criminal cases.

The Supreme Court corrects only a fraction of the court’s errors. So what can we do about it?

With California’s state appellate courts, we have retention elections, a check on a runaway judiciary that we have needed to invoke only once in seven decades. Regrettably, the framers of the federal Constitution did not include this check on the federal courts; removal by impeachment is only for crimes, not for bad decisions.

That leaves the appointment process. President Bush could, in time, bring rationality to the 9th Circuit with a series of carefully chosen appointments. There is no chance of this court becoming conservative or even middle of the road in the foreseeable future, but it could be changed to display common sense.

This necessary correction, however, has met a roadblock in the Senate Judiciary Committee. Bush’s nominations drop into a black hole. Two nominations to the 9th Circuit have been pending for nearly a year with no action and no explanation. L.A. County Superior Court Judge Carolyn B. Kuhl and Honolulu attorney Richard B. Clifton appear to be well qualified. The committee has had enough time to study these nominations. It should proceed with hearings and a vote.

The people of the West deserve a better quality of justice.