Unfortunately, it now seems even the judges themselves cannot publicly acknowledge and fix what’s wrong in the 9th Circuit by taking the politics out of the law. The Robed Recall

Eight Days, eleven judges, and thirteen double-spaced pages later, the California Recall Election is back on again. Returned to its original calendar date of Tuesday, October 7, 2003, by an en banc (or literally "full bench") panel of the same U.S. Court of Appeals for the 9th Circuit from which three other judges had, just a week earlier, ruled the race had to be put off until March 2004 because the use of VotoMatic punchcard ballots could hypothetically disenfranchise voters violating both the federal Voting Rights Act and the Equal Protection Clause of the U.S. Constitution.

It took the eleven judges of the en banc panel just one day to unanimously decide that their three colleagues’ earlier decision was, quite frankly, in complete error. According to all of the en banc judges, a court – even the 9th Circuit – simply cannot stop an election that "has already begun." "The decision to enjoin an impending election is so serious that the [U.S.] Supreme Court has allowed elections to go forward even in the face of an undisputed constitutional violation," the en banc panel noted by citing three different High Court cases as examples.

So how exactly is it that the en banc panel of eleven judges – which included eight Democrat appointees along with three Republicans – found the case so elementary as to merit just four-and-a-half pages of legal "discussion," when an earlier panel of three Democrat-appointed judges reached the opposite conclusion in an opinion spanning 65 pages?

The simple, but unfortunate, answer appears to be what many vociferous critics of the so-called "liberal" 9th Circuit have been saying for years – political action is alive and well not only in the capitol buildings and governor’s mansions of the nine states located within the Circuit, but also in certain judges’ chambers and courtrooms of the 9th Circuit, as well. And while these 9th Circuit critics paint with too broad a brush by bashing the entire Circuit and all its judges as a single entity – after all, any careful inquiry would show that many, if not most, of the judges of the 9th Circuit approach the appellate caseload leaving their politics and prejudices aside – the sad fact remains that, when you have a circuit as large as the 9th, drawing three-judge panels at random is bound to provide ample opportunity for a few politically motivated judges to make their mark.

Unbridled politics is the reason voluntary student recitation of the Pledge of Allegiance was declared unconstitutional by two 9th Circuit judges. It’s the reason the 9th Circuit accounted for 30 percent of the U.S. Supreme Court’s docket last term and more reversals than any other court, including all the state courts combined. And it’s the reason why eleven judicious judges on the 9th Circuit had to unanimously "recall" the decision by three other political judges that halted a legally and constitutionally called public election.

But while the en banc panel’s "robed recall" of the three judges’ earlier politically motivated decision restored the compelling interests "of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution," the judicial correction was far from a victory for sound 9th Circuit jurisprudence in the future. Instead, the retraction only put on public display the deep infection afflicting the West Coast court.

Not once did the unanimous eleven judges of the en banc panel admonish or even take note of the extraordinary lengths the erroneous three judges went through to get around well-established law that "[i]nterference with impending elections is extraordinary, and interference with an election after voting has begun is unprecedented." In fact, the en banc panel went out of its way to acknowledge just the opposite by stating that the fact "[t]hat a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ."

Such apologies for clear legal errors and politically motivated decisions – in this case designed to "interfere with" and "enjoin a state election," the most important of fundamental rights – demonstrate just how deeply diseased the 9th Circuit has become. Unfortunately, it now seems even the judges themselves cannot publicly acknowledge and fix what’s wrong in the 9th Circuit by taking the politics out of the law.

September 26, 2003
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