The Crucial Importance of the Ninth Circuit
April 14, 2003
The Ninth Circuit is comprised of nine states - California, Nevada, Oregon, Washington, Idaho, Arizona, Montana, Alaska, and Hawaii. Fifty-four million Americans live in the states within the Ninth Circuit's jurisdiction - more than any other circuit. This means that one in six Americans is potentially affected by the court's rulings.
The Ninth Circuit is home to more Latinos (13.6 million) than any other circuit. Overall, nearly 40 percent of the population within the Ninth Circuit is racial and ethnic minorities.
The Ninth Circuit hears and decides cases involving some of our most fundamental rights and protections: cases involving constitutional privacy claims, free speech, equal protection, due process, the right of workers to organize a union, environmental protections, civil rights, employment discrimination, job safety protections, and more.
The Ninth Circuit handles far more cases than any of the other twelve federal circuit courts. According to the Administrative Office of the U.S. Courts, as of May 31, 2002, the courts of appeals overall had 39,536 pending cases. Almost a quarter of all cases, 9,481, were pending in the Ninth Circuit. In the year ending March 31, 2002, the circuit courts of appeals terminated 57,607 cases on the merits. The Ninth Circuit handled 17 percent of these cases.
Close Ideological Division
Ideologically, the Ninth Circuit is fairly evenly divided. Of the 25 current judges on the court, at least half have conservative leanings. According to one commentator, "while it is frequently reported that 17 of the [then] 24 active judges were appointed by Democrats, this sly insinuation about the politics of the court is simply mistaken. Of the [then] 24 active judges, 12 are clearly conservatives, six are moderates, and only six could fairly be characterized as liberals."
Several of the judges appointed by President Clinton often side with the Republican appointees and not their Democratic-appointee colleagues in key cases. For example:
- In Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001), Clinton appointee Silverman joined Republican appointees Kozinski, Trott, and Kleinfeld in dissenting from the majority's rejection of the plaintiffs' claim that the trust fund program used to fund legal services programs was an unconstitutional taking of property. The Supreme Court recently agreed with the Ninth Circuit majority in Brown v. Legal Foundation of Washington, 71 USLW 4221 (March 26, 2003).
- In Lawson v. State of Washington, 319 F.3d 498 (9th Cir. 2003), several Democratic appointees dissented from the denial of rehearing in a case involving the circumstances under which Title VII plaintiffs can bring religious discrimination claims when their employers fail to accommodate their religion. Clinton appointee Tallman ruled against the plaintiff and voted to deny en banc review.
The close ideological division on the Ninth Circuit is illustrated by the recent denial of en banc consideration in a civil rights case involving a black professor who brought suit for racial, religious, and national origin discrimination after he was denied tenure. A three-judge panel consisting of Judges O'Scannlain (Reagan appointee), Tallman (Clinton appointee) and King (sitting by designation) threw out a $637,000 jury verdict on grounds that the district judge had failed to explain her reasons for allowing an expert witness to testify. The court did not find that the expert was not qualified, but rather faulted the trial judge for not explaining her reasons on the record. Rather than remanding the case for the judge to provide the requisite explanation, the court ordered a new trial.
The plaintiff then moved for reconsideration by the full court. Eleven judges dissented from the Ninth Circuit's decision to deny en banc review: Judges Reinhardt, Pregerson, Hawkins, Tashima, Thomas, McKeown, Wardlaw, Fletcher, Fisher, Paez, and Berzon. Notably absent from the dissenting judges were Clinton appointees Rawlinson, Tallman, Silverman, Gould and Graber. Had those judges voted with their dissenting colleagues, rather than joining the conservative majority, the case would have received rehearing en banc.
The Mukhtar case illustrates the close ideological division on the Ninth Circuit - a balance that has tipped to the right with the recent addition of Judges Clifton and Bybee, and that would be further skewed to the right by the addition of Judge Carolyn Kuhl.
It is not true, as some have suggested, that the Ninth Circuit is an "ultra-liberal" court with a Supreme Court reversal record far worse than other circuits. In fact, in 2001 the U.S. Supreme Court reversed the lower courts in 75 percent of the cases it decided. The Ninth Circuit's reversal percentage - 76 percent -- was virtually identical to the national average. Five circuits - the 2nd, 3rd, 6th, 8th, and 11th - had higher reversal percentages than the Ninth Circuit. During the 2001-02 term, both liberal judge Stephen Reinhardt and conservative judge Alex Kozinski were reversed the same number of times -- i.e., twice.