Frontier justice: Western Republicans seek a new court of, by, and for the cowboys - anti-environmentalists hope to create a Twelfth Circuit Court to replace the Ninth Circuit, which they believe is too green

Sierra, Jan-Feb, 1998 by Paul Rauber

The purpose of the U.S. Circuit Court system is to provide uniform interpretation of federal law for every region of the country. since the nine western state in the Ninth Circuit contain a large amount of public land, that court gets more than its share of environmental cases -- and the welfare ranchers and timber barons of Marlboro Country are very unhappy with the way these cases are being decided. In recent years the Ninth Circuit has, for example, blocked new timber sales in old-growth forests through much of the Northwest to protect the northern spotted owl, upheld the right of citizens to sue under the Clean Water Act, and voided hundreds of damaging grazing leases on national forests in the Southwest.

Such decisions have led the "wise-use" group People for the West to accuse the court of "activist judicial malpractice." Senator Slade Gorton (R-Wash.) complains that the court is contaminated by a "California judicial philosophy" -- presumably a pro-environmental one. Senator Conrad Burns (R-Mont.) fears "an increase in legal actions against economic activities...such as timbering, mining, and water development." Their solution is to create a new Twelfth Circuit, comprising Alaska, Arizona, Idaho, Montana, Oregon, Washington, and maybe Hawaii and Nevada. The one-mighty Ninth would be reduced to exercising its judicial philosophy over California, Guam, and the Northern Mariana Islands.

Mark Mendenhall, a spokesman for the Ninth Circuit, says that the would-be court splitters are "trying to get different outcomes in environmental and other cases." Proponents piously disavow any such intention. "In my view," wrote Burns in an op-ed column in the San Francisco legal newspaper The Recorder, "the fact that the Ninth Circuit is undeniably out of step with the rest of the nation is perhaps the least of the multitude of reasons to consider splitting this giant court." Oft-cited grounds include the district's enormous size ("No one court can effectively exercise its power in an area that extends from the Arctic Circle to the Tropics," claims Senator Frank Murkowski [R-Alaska]), the fact that the Supreme Court reversed 28 of the 29 cases from the Ninth Circuit it chose to review in the last term, and the court's formidable backlog of cases. Court defenders counter that modern transportation and communication make the district's size irrelevant; that five other circuits had a 100 percent reversal rate and that in two of the past ten years the Ninth's rate has been lower than the national average; and that cases are piling up because 10 of the court's 28 seat are vacant and the Senate is dragging its feet on confirming Bill Clinton's appointments. "It has become clear to me that the Republicans are not going to appoint another Ninth Circuit judge until the circuit is split," says Senator Dianne Feinstein (D-Calif.).

Feinstein is a member of the Senate Judiciary Committee, where anti-Ninth Circuit efforts over the past 10 years have tradionally been born -- and died. The latest campaign, however, was launched from the Senate Appropriations Committee, whose chair, Ted Stevens (R-Alaska), is angry over a Ninth Circuit ruling favorable to Native land claims in his state. Despite the objections of House Judiciary Committee Chairman Henry Hyde (R-Ill.), California's Republican Governor Pete Wilson (who called a previous plan to split the court "environmental gerrymandering"), and the American Bar Association, a court-splitting measure attached as a rider to a Justice Department funding bill managed to pass the Senate. The legislation stalled in conference committee, however, and the court splitters were forced to settle for a commission that will study all federal circuit courts and issue a recommendation later this year.

The cowboys will be back then. Not since Franklin Roosevelt tried to pack the Supreme Court has there been such a blatant attempt to manipulate the judiciary for political purposes. Interpreting the Constitution, after all, is not supposed to be a regional matter. "There is not a western Constitution," says Senator Joseph Biden (D-Del.). "There is one Constitution."