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Balancing the Ninth


"Yet this Administration has refused to take any steps to address our concerns about the need to maintain balance on the D.C. Circuit." So said Senator Patrick Leahy (D-Vt.) in this press release in 2003. Okay, Senator Leahy believes federal courts of appeals should be balanced. Got it.

Further, Senator Leahy believes that the Judicial Conference is correct that more appellate judges are needed, especially in the Ninth Circuit. According to this story in the L.A. Daily Journal, available through How Appealing, Senator Leahy will introduce legislation to add 67 district judgeships and 15 appellate ones, 7 of the latter on the Ninth.

To reach the logical conclusion, we need one more premise, but one that is not genuinely debatable among objective court watchers. The Ninth is presently out of balance, listing badly to the left. It is undebatable, that is, if one defines balance relative to the objective standard of the American median. Some people define balance subjectively, relative to themselves, so hard-core conservatives think the median voter is liberal, and hard-core liberals think the median voter is conservative. Objectively, the median is by definition the median.

So, the way to fix the judge shortage and simultaneously restore the balance that Senator Leahy says is needed, and is painfully obviously lacking, is to allow President Bush to name the 7 new judges.

According the story, the bill postpones the appointments until the next administration. One other proposition is perfectly clear. If President Obama, H. Clinton, or Edwards fills the seven new slots, the Ninth will be irretrievably lost for another generation, not just to the left but to the fringe. It was a similar expansion in the Carter Administration that created the problem in the first place.

You were saying something about "balance," Senator Leahy?


I thought you understood statistics. Why is the "median" of an overwhelmingly republican-appointed federal bench the touchstone for "balance" for "objective court watchers." As of 2005, Republican appointees had a 2-to-1 advantage over Democratic appointees in six circuits. (1st, 4th, 5th, 7th, 8th and federal circuits). As a caveat, I haven't run all the numbers lately, and I know there have been many new vacancies. And, concededly, adding 7 more democratic appointees to the Ninth will create a 2-1 democratic "list" in the Ninth. Yet this will simply balance out the the republican "list" in the rest of the circuits, beneficialy allowing the Supreme Court differing perspectives when it resolves disputes. True, the currently conservative-leaning court often resolves issues against the liberal Ninth, sometimes (but not always) by wide wide margins. But one could hardly claim that the Ninth's reversal rate wouldn't change dramatically were the composition of the Supreme Court altered from 7-2 Republican appointed judges to 5-4 democratic appointed judges. Allowing 7 Republican appointments to the Ninth Circuit, while ensuring more uniformly conservative opinions, will not achieve "balance" in the Federal Circuits. But perhaps you favor adding democracic appointees to rectify the leanings of the other circuits? I hear the reactionary 4th Circuit has several new vacancies . . .

"Why is the 'median' of an overwhelmingly republican-appointed federal bench the touchstone for 'balance' for objective court watchers.'"

It isn't. I said the median of the country, not the judges, is the objective point of reference.

"I said the median of the country, not the judges, is the objective point of reference."

Pardon my confusion. What then, do you mean by the "median of the country" or the "objective standard of the American median?"

If "American median" refers to the opinions of self-identified "objective court watchers," I am already suspicious. Moreover, it would appear that there are strong ascertainment biases created by the current conservative leanings of the federal courts, particularly the Supreme Court (i.e. the Ninth Circuit appears liberal largely by contrast, not by "objective" measure)

If the "American median" is meant to refer to the opinion of the majority of the American people on the quality of a judicial outcomes, I think it is a worrisome standard indeed. More importantly, that is certainly not how our constitutional system was designed to function.

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