9th Circuit Puts Out Call for Reinforcements

One theme on the first day of the 9th Circuit's annual conference Monday was more judges, less Congress. In her annual state of the circuit speech, 9th U.S. Circuit Court of Appeals Chief Judge Mary Schroeder called on Congress to approve more judgeships in California, while earlier in the day the head of the judiciary's administrative body slammed Congress for not approving more nominees.

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One theme on the first day of the 9th Circuit’s annual conference Monday was more judges, less Congress. In her annual state of the circuit speech, 9th U.S. Circuit Court of Appeals Chief Judge Mary Schroeder called on Congress to approve more judgeships in California, while earlier in the day the head of the judiciary’s administrative body slammed Congress for not approving more nominees. Leonidas Ralph Mecham, head of the Administrative Office of the U.S. Courts, also suggested that congressional hearings into how cases are assigned to appellate panels are on the horizon. “The circuit’s population continues to grow,” Schroeder said. “When we lose fine judges, we need to replace them, and we must add additional judges in those jurisdictions where populations are growing. “New judgeships in Nevada and Arizona have been filled,” she added, “but the Southern District of California, the Central District and the Eastern District remain in distress. Those districts all need additional judgeships.” The battle over President Bush’s judicial nominations has become epic. The most recent holdup comes from Sen. John McCain, R-Ariz., who is continuing to block the confirmation of any judge unless President Bush makes an appointment to the Federal Election Commission. The 9th Circuit has five vacancies with Judge Ferdinand Fernandez’s recent decision to take senior status. One nominee, Richard Clifton of Hawaii, has been approved by the judiciary committee and awaits a final floor vote. Two more await a hearing. Speaking earlier in the day, Mecham said Congress is ignoring its responsibility to approve judges. “They simply are not doing their job,” Mecham said. He didn’t blame the delays on Republicans or Democrats, saying the problem has been ongoing since Bill Clinton was president and Republicans controlled the Senate. “I’m a bipartisan condemner,” Mecham said. “Please understand that.” He added that McCain should end his one-man blockade. “Let him take his fight out with the executive branch, not us,” Mecham said. “But he doesn’t consult with me.” Mecham also predicted that Congress will soon hold hearings looking into the way that courts, particularly appellate courts, assign cases. A recent en banc decision from the 6th Circuit has apparently caught Congress’ attention. In a controversial case involving minority admissions at the University of Michigan Law School, a dissenting judge suggested the makeup of the en banc panel had been tampered with. The court, on a 5-4 vote, held that the school’s policy of considering race as a factor in admissions was legal. The dissent prompted a multipage inquiry from House Judiciary Chairman James Sensenbrenner, R-Wisc., which was sent to 6th Circuit Chief Judge Boyce Martin Jr.; Mecham also received a copy. “I don’t see anything good coming out of this,” Mecham said. In her speech, Schroeder said judicial robes should serve as a cloak to protect civil liberties. Schroeder, who was at the U.S. Judicial Conference meeting in Washington, D.C., in September when the third plane smashed into the Pentagon, compared those who resisted the Japanese internment camps in World War II to the heroes of Sept. 11. “The attacks brought about renewed concerns about another racial backlash like that which followed Pearl Harbor,” Schroeder said, pointing out that courts have overturned the convictions of Fred Korematsu and Gordon Hirabayashi for resisting internment. “Hirabayashi and Korematsu are also heroes,” said Schroeder, who overturned Hirabayashi’s conviction herself. “Their lasting legacy will be, I hope, to underscore the role of the judiciary in protecting our freedom and civil liberties.”

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