In a front-page story, the 12/24/02 Los Angeles Daily Journal (not available online) reports that a number of controversial court decisions may rekindle the debate over splitting the nation’s largest, most ideologically tainted, and most frequently reversed circuit. Two cases in particular are cited: Judge Goodwin’s ruling on the constitutionality of the Pledge of Allegiance and Judge Reinhardt’s apparent belief that ordinary citizens are not “people” within the meaning of the Second Amendment. Based on the controversy surrounding these cases and certain others, author Pamela MacLean concludes that a new push may be coming to split the circuit in two. She also attempts, unsuccessfully, to rebut the popular perception that the court is ideologically skewed to the left:

The circuit continues to have a reputation as a liberal one, where the influence of liberal Democratic judges on the circuit has not waned. However, many of the 14 Clinton appointees to the bench have proved a moderating influence on the generally liberal Carter appointees of the 1970s.

Got it? We’re not all Carter Democrats here, some of us are Clinton Democrats! This faux inclusiveness is reminiscent of the redneck bar in The Blues Brothers, whose owner proudly announced that they play “both” kinds of music: country and western.

Returning to the question of whether the Ninth Circuit will be split, let’s just say that I’ll believe it when I see it. As MacLean notes in the article, efforts to divide the circuit have been brewing for 30 years, but thus far seem to have gone nowhere. Conservative critics of the circuit may share some of the blame for this. By wearing their ideological objections to the court rulings on their sleeves, they leave themselves wide open to charges that their proposals to split the circuit are nothing more than an unwarranted political attack on the independence of the judiciary as an institution. This may be one of the main reasons why past attempts to split the Ninth Circuit have failed.

As to whether such a split would be desirable, I tend to favor the concept on purely administrative reasons. I’m as quick as anyone to criticize many of the Ninth Circuit’s decisions on their merits, but I am not convinced that simply dividing the circuit will do anything to address these concerns. For all I know, we might just end up with two smaller versions of what we have now!