Editorial: Playing politics with the judiciary

Tuesday, June 2, 1998 | 11:12 a.m.

A federal commission, investigating whether the 9th U.S. Circuit Court of Appeals should be broken up, held its final public hearing last week, and still no compelling testimony has been offered that could possibly justify a split.

The commission, chaired by retired Supreme Court Justice Byron White, was created as a compromise after the Senate passed -- but the House derailed -- a plan by Pacific Northwest legislators' plan to divide the 9th Circuit Court. Under the Senate plan to get more favorable rulings, Western Republicans wanted California, Nevada, Guam and the Northern Mariana Islands in a slimmed-down 9th Circuit. Seven other states in the 9th Circuit -- Alaska, Hawaii, Washington, Oregon, Idaho, Montana and Arizona -- would then spin off into a new court.

And while it was lawmakers from the Pacific Northwest and Alaska pushing the proposal, they were simply acting as front men for the politically connected mining and timber industries. Not surprisingly, these groups are unhappy with decisions made by the 9th Circuit, which they view as too liberal.

But the fact remains that injecting politics into an independent judiciary is anathema to our government's checks and balances. The judiciary is supposed to make decisions based on facts, not on political concerns.

Some have even suggested that a break-up is warranted by the inefficiency of the 9th Circuit, the nation's largest appellate court, which covers nine Western states and 50 million people. The court does take an average of 14 months to decide appeals after they have been filed, four months more than the national average.

It seems the real culprit, however, isn't the size of the court but the politics played by congressional Republicans, who have dragged their heels in confirming President Clinton's nominees. Ninth Circuit Court Chief Judge Procter Hug, in his testimony Friday before the commission, did note that vacancies are completely responsible for the court's current timetable; Republicans have not been in any rush to fill seven vacancies on the 28-judge court.

One of the most apt comments at last week's hearing came from a Phoenix lawyer, John P. Frank, who cut to the chase. "The desire to cut more trees, catch more fish, and limit more Indians is not a good enough reason to blow up the courthouse," Frank said.

The commission's recommendations are expected by the end of the year. Based on what has been seen so far, the commission should find it easy to reject a division of the 9th Circuit, a harmful mix of politics with the nation's federal judiciary.