The Ninth One More Time

Mark Hyman's latest "Point" simply regurgitates an editorial from last year about the supposed faults of the Ninth Federal Circuit Court of Appeals. For the sake of not reinventing the wheel, here's the response we gave him the first time around.

We’re just wondering: did Mark Hyman flunk his 8^th grade civics class?

The question arises given Hyman’s rather odd philosophy of checks and balances that emerges from his recent commentary on the Federal 9^th Circuit Court of Appeals.

The Founding Fathers envisioned the judiciary as an independent branch of government, with judges making decisions based on their own best interpretation of the law. According to Hyman, however, the judiciary exists to rubber stamp decisions made by conservative members of the executive and legislative branches, and their decisions should be evaluated by how closely they mirror the thinking of the currently conservative Supreme Court.

Hyman adds his yowling to a cacophany of far right activists who hate the 9^th Circuit because they claim it’s too liberal. They suggest as proof of this the fact that the 9^th Circuit has had more of its decisions reversed by the Supreme Court in the last decade than any other. Therefore, reasons Hyman, they must be “activist” judges who willfully misinterpret the law.

But the fact is that while the 9^th has been reversed by the Supreme Court more than any other, this is based on a few exceptional years in the mid 1990s. In recent years, several other circuits have been overturned more often.

But even more importantly, the idea that any court should be castigated because its decisions do not predict the way the current Supreme Court would decide them is ludicrous. As this excellent essay from a law professor and former prosecutor notes, the idea that a lower court should decide cases on the basis of what it thinks a higher court will do is flawed. It leads to a judiciary that doesn’t fulfill its role as the place where important legal issues are debated and decided. Judges stop considering what’s right or wrong in favor of what they think the current court above them will say. The judiciary, in such a conception, becomes stagnant.

Of course, Hyman only makes the argument he does because of the currently conservative makeup of the Supreme Court and the relatively liberal makeup of the 9^th (although, it should be noted, the deciding judge in the most recently hyped 9^th decision, the one striking “under God” from the Pledge of Allegiance, was appointed by that stalwart liberal, Richard M. Nixon).

Judicial activism suits conservatives just fine when it’s in line with their viewpoints. Justice Priscilla Owen was nominated to the 5^th Circuit of Appeals by George W. Bush and championed by far right conservatives, despite the fact that one of her fellow justices on the Texas State Supreme Court called one of her decisions "an unconscionable act of judicial activism." Of course, that was probably some liberal bomb thrower just trying to smear a decent colleague, right? Wrong. It was none other than Alberto Gonzales, current Bush nominee for Attorney General (and facilitator of torture). We’re still waiting for Hyman to chastise the nomination of Owen in one of his commentaries.

Moreover, Bush has said repeatedly (when in front of right-wing crowds) that he wants to pack the federal courts with “good, conservative judges.” No doubt Hyman would agree.

But the judiciary is too important to be used as a political tool or to be forced into conformity with a single court that makes it up (even if it is the Supreme Court). Our position (and, we’d argue, the position of anyone who seriously believes in the federal government as originally conceived) is that courts should, ideally, be ideologically neutral. No matter where you happen to stand on the political spectrum, it serves all of us to have judges from a broad range of intellectual backgrounds on the court. If a court is highly liberal or conservative, appointments should be made to assure greater balance, not to assure judicial cover for the executive branch. Certainly reasonable people will differ in their interpretations of “liberal” and “conservative,” but that doesn’t mean an honest effort can’t be made to increase balance on important courts. Such an effort is not only not being made by the Bush administration, but it runs absolutely counter to what the president (and Hyman for that matter) think the courts are there for: to serve as political tools for enacting rightwing policy. This is a much more insidious and destructive form of judicial activism than anything Hyman has accused the 9^th Circuit of.

And that’s The Counterpoint.