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Fixing the Ninth

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One-fifth of America's population lives in the Ninth Circuit, and for most federal cases the decision of the Court of Appeals is the last word.  The Supreme Court can only take a small fraction of the cases.  The Ninth Circuit is out in left field and has been since a major expansion of the court allowed President Carter -- and Senator Alan Cranston -- to pack its left wing in the late 1970s.

One would think that fixing this court would be a major priority for a Republican administration, but as I noted here a few months ago, that has not been the case.

The court is authorized 29 active judgeships.  There are seven vacancies, with an eighth coming in August.  Simply counting the Ds and Rs, the court is presently 16-6, so 7 more Rs would bring it to 16-13, decently close to balance.  But it is more complicated than that.  There is considerable variation among the Ds.  Some are reasonable and will rule according to precedent when it is clear, and others are simply searching for an excuse to reach the Politically Correct result.

One very large problem at present is the persistent failure of the Ninth Circuit to grant rehearing en banc to rein in a rogue panel when it issues a clearly wrong decision with a Politically Correct result, such as the one summarily reversed by the Supreme Court this morning.  Although only five currently active judges joined the opinion dissenting from rehearing en banc, I will bet there were others who voted that way without joining the opinion.  (The actual votes are not disclosed, and some judges do not approve of the practice of issuing opinions on these votes.)  If all seven vacancies were filled with persons of sense, we would have a real shot at correcting the Ninth's more egregious panel errors with rehearings en banc.

At present, we have only two nominees for seven, going on eight, vacancies.  Both the White House and the Senate need to put the pedal to the metal to get them filled.  That said, they must be careful to insure that they are filled with people possessed of common sense, integrity, and devotion to upholding the Constitution that the people enacted, not one made up by judges.

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