Saturday, November 13, 2004

Splitting the 9th Circus?

Judges Kozinski and Thomas are against the idea. They cite cost and inefficiency as the the main reasons not to split. Certainly the main argument supporting a 9th circuit split is the circuit's left wing ideology. The people of Nevada, Montana, Idaho, Arizona and Alaska are ruled by the mostly liberal 9th Circuit (Kozinski is an exception), while their politics lean conservative (all are red states). If the 9th Circuit were not issuing out of the "mainstream" decisions at an alarming rate (for example ruling that the phrase "under God" in the Pledge of Allegience is unconsitutional), this idea probably woundn't gain so much traction in the Congress. But with the politicization of the judiciary, a result of the left's attempts an success at using the courts to push through an agenda that cannot otherwise pass through democratic means, a split of the 9th circuit, whatever the costs, will spare conservative leaning states the inability to govern themselves without the "help" of San Francisco liberals preaching from the bench.

Orin Kerr at Volokh Conspiracy thinks the reason the court is out of whack is its practice on bench memos. Kerr also pointed out this debate at Legal Affairs.