The San Francisco-based 9th U.S. Circuit Court of Appeals, at times called the "Nutty Ninth" by those who bristle at its often out-of-touch decisions, has once again made headlines for being overturned by the U.S. Supreme Court 78 percent of the time over the past year. In addition, the 9th Circuit provided 30 percent of the cases considered by the court in its last term.
Clearly something is out of whack, and has been for years.
But what's the solution? Judges for the federal court are appointed by the president just like every other federal court. And once the judges have been confirmed by Congress, they are not subject to oversight by the legislative or executive branches of government.
That's as it should be. The separation of powers is the foundation for the checks and balances of our government.
However, the fact that year after year the 9th Circuit is called out for being out of touch with generally accepted legal standards is a concern.
Perhaps the problem is the enormous size of the court and the massive amount of cases it must handle over a vast geographic region.
The court has 29 judges who must decide thousands of cases. The court regularly handles more than 15,000 appeals a year. It covers Washington, Oregon, Idaho, Nevada, California, Arizona, Hawaii, Alaska and Montana.
In 2005 there was a serious effort in Congress to create another U.S. Circuit Court of Appeals to cover the Pacific Northwest. We thought it was a good idea then and we think it's an even better idea now.
While the number of cases overturned is not significantly out of line from the other Circuit Court of Appeals since the high court only takes cases in which it finds a reason to rule, it's the way in which the cases are handled by the 9th Circuit that's irked the justices. It's troubling nearly a third of the high court's cases came from the 9th Circuit.
In the high court reversals, the justices often expressed impatience with what they see as stubborn refusal by the lower court to follow Supreme Court precedent, wrote Carol J. Williams of the Los Angeles Times.
"It just seems (Supreme Court justices) are getting a bit frustrated with these criminal procedure cases," said Barry McDonald, a constitutional law professor at Pepperdine University.
Breaking up this court wouldn't necessarily result in new justices right away as many of the current justices would transfer to the new circuit court, but over time the perspective of the new judges would be different. Judges would be appointed from the Pacific Northwest to hear cases from the Pacific Northwest.
This would increase the chances the justices would be in touch with the issues and therefore might have a firmer understanding of how the law should applied.
What's happening now isn't working. Congress needs to take another shot at breaking up this mega-court that is too often out of touch.