Split Decision

Republicans want to break up "the 9th Circus," the San Francisco-based liberal federal appeals court. Whose side are you on?

Buried in the complex House of Representatives budget bill, which is under consideration as the congressional session concludes its pre-holiday business, is a provision that would split the U.S. Court of Appeals for the 9th Circuit. It's a longtime dream of conservative lawmakers, who have maintained that the so-called “9th Circus” acts as a kind of liberal legislature, packed with activist judges determined to flood the Supreme Court with left-leaning constitutional challenges. The controversial appeals court is indeed busy, handling almost 15,000 cases a year (the next busiest federal appellate court takes about 9,500) and overseeing nearly one-fifth of the country's population. But legal analysts say that the court has become a model of efficient and innovative case-processing, and there is widespread suspicion among Democrats that President Bush merely wants to create a new bench that he can pack with his own appointees. Are you an apologist for the 9th Circuit? Take our quiz and find out!

1) The court garnered national headlines on June 26, 2002, when a three-member panel ruled that the phrase “under God” in the Pledge of Allegiance — which was added by Congress in 1954 — violates the First Amendment. The case was eventually dismissed by the Supreme Court, but the issue touched off a wave of bipartisan criticism directed at the 9th U.S. Circuit Court of Appeals. Many legal analysts say the court's anti-God-in-the-Pledge stance is at the heart of the Republican effort to divide the court. What do you think?

A) I'll tell you one thing: Toby Keith would not set foot in that courtroom, unless he was in chains. Which he probably would be, come to think of it.

B) Look, man, my God is alive — sorry about yours. (Bonus point if this is actually the bumper sticker on your VW Bus.)

C) Makes sense to me. This is just the kind of petty, vengeful politics practiced all too often by mean-spirited Republicans keen on undermining democracy for their own short-term benefit. Our judges'll show them!

2) If passed, the measure would create a new 12th Circuit covering Alaska, Washington, Oregon, Idaho, Montana, Nevada, and Arizona, leaving the 9th Circuit with California, Hawaii, Guam, and the northern Mariana Islands. What do you think of this re-formed 9th Circuit?

A) We own the northern Mariana Islands? Hmm … why not the southern?

B) Might as well rename it “the party circuit.”

C) Wait a minute. Does Guam even need justice?

3) Among the 28 active judges on the 9th Circuit, only three have voiced support for splitting the court. One of them, Judge Diarmuid O'Scannlain, who had initially opposed a division, testified before the Senate that “the sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, our clarity, and even our collegiality.” What do you make of the judge's comments?

A) See? And he said it in a congressional hearing, so Dick Cheney couldn't have been holding a gun to his head.

B) OK, I'll ask: Does it affect anything that doesn't begin with the letter “c”?

C) Diarmuid O'Scannlain, huh? And they say judges are just a bunch of old white men.

4) In the same Senate hearing, 9th Circuit Judge Alex Kozinski, an appointee of President Ronald Reagan, argued that the court has kept up with its workload thanks to an ultracompetent staff and increased use of e-mail, automated case-filing systems, and videoconferencing. Do you think a bench that handles 15,000 cases a year can still be efficient?

A) Sure. Opinions don't take any time at all to write when they're liberal.

B) Fifteen thousand cases a year? Good God, the 9th Circuit are a bunch of drunks.

C) And let's be honest: If that “increased use of e-mail” didn't include so many silly chain e-mails forwarded by out-of-touch judges, the court would actually be ahead of schedule.

5) Some conservatives are concerned that the creation of a new 9th Circuit covering only California, Hawaii, and the Pacific Islands would in fact become a more liberal court, which could gain increased influence because those three geographic areas account for almost three-fourths of the current circuit's caseload. Do you think the move to split the 9th Circuit in two could actually backfire for Republicans?

A) Now that you mention it … um, forget the whole thing. Have a nice holiday season!

B) What, you mean to tell me Alaska doesn't produce its share of judicial head-scratchers? Lotta salmon issues up there. Lotta whaling.

C) Nah! C'mon, we'll trade you: California and Hawaii in exchange for a bunch of weird western states that still think gay means “happy.” Fair's fair.

6) Although the 9th Circuit has gained a reputation for sending controversial cases to the Supreme Court, which rarely agrees with its lower-tiered colleagues, legal analysts in both political parties say the rap is undeserved. If only a scant 0.3 percent of the appeals court's cases are recommended for review by the nation's highest judicial body, can the judges really be labeled “activist”?

A) Back up. Don't you mean “recommended for reversal”? (Bonus point if you're cackling maniacally and your last name is Scalia.)

B) Yeah, give the poor judges a break. You think they wanna hear about pot and atheists all day long?

C) Hey, you know what they say: You can't have the 9th Circus without exposing a few “judicial bodies,” if you know what I mean … anybody? Anybody?

7) And finally, in the event that the 9th Circuit is eventually cleaved in half, what do you think will happen next?

A) Well, we can always try to pack the Court of Public Opinion ….

B) Something tells me Judge Wapner's gonna get himself a new seat in Montana, courtesy of an appointment by one George W.

C) The death of American jurisprudence as we know it. How long until the next Jacko trial?

How to score:

Score zero points for every “A” answer, one point for every “B,” and two points for every “C.”

0-6 points: We know, we know. The only label you want on your judicial robes is “Made in the U.S.A.”

7-10 points: Can't make up your mind, huh? Well, I guess we know who the president won't be picking for his team.

11-14 points: Congratulations! You are a true apologist for the 9th U.S. Circuit Court of Appeals. Hey, have you seen the dollar bill lately? Doesn't it say something about God on it?

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