Balancing the Ninth

John C. Eastman

June 1, 2001

Earlier this month the Supreme Court issued its ruling in United States v. Oakland Cannabis Buyers Cooperative, the closely-watched “medical marijuana” case. By a vote of eight to zero (Justice Breyer rescued himself because his brother was the district court judge in the case below), the Court reversed the United States Court of Appeals for the Ninth Circuit and reached the unsurprising conclusion that properly authorized federal law prevails over state law. It was a holding as old as the Constitution itself, which provides in Article VI that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” One might challenge the application of federal drug laws to wholly intrastate manufacture and distribution as outside the scope of Congress’s powers under the Commerce Clause, but that claim was not part of the case. Instead, the Ninth Circuit had held that there was an implied “medical necessity” exemption to the federal drug laws. The Supreme Court unanimously held otherwise.

It was the fifth time the Ninth Circuit had been reversed in a month. Seven of eight cases already decided by the high Court this year from the Ninth Circuit have been reversed, and six of those seven were by unanimous or nearly unanimous rulings. A few years ago, the Supreme Court even took the extraordinary step of issuing a special order barring the Ninth Circuit from issuing any further last-minute rulings in a death penalty case. The year I was fortunate enough to serve as a law clerk at the Supreme Court, 28 of 29 cases from the Ninth Circuit resulted in reversals. It is almost as if one could write a word processing macro—call it the [Alt-9] macro—which would automatically insert at the end of any opinion involving a case from the Ninth Circuit the following conclusion: “The opinion of the Ninth Circuit is reversed; the decision of the Court is unanimous.”

The Ninth Circuit is by far the largest Circuit Court in the country. It is the largest geographically, covering the western states of California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii—more than one-third of the entire nation. Thus it is no surprise that the lion’s share of cases taken by the Supreme Court each term recently come from the Ninth Circuit, but it does not explain the high reversal rate.

The Ninth Circuit also has the largest number of judges, with 28 positions currently authorized for the court—so many that the court is not even able to sit as a full en banc court. Perhaps this fact contributes somewhat to the court’s high reversal rate, but recent efforts at splitting the court into two, more manageable circuits have thus far proved unsuccessful.

The court currently has three vacancies, and President Bush is reportedly considering nominating Congressman Christopher Cox and Los Angeles County Superior Court Judge Carolyn Kuhl to fill two of those vacancies. Both are exceptionally well-qualified to serve in such an important appointment. Congressman Cox, for example, has both an M.B.A. and a J.D. from Harvard, served as editor of the Harvard Law Review, was a law clerk on the United States Court of Appeals, and served as Senior Associate Counsel to President Reagan from 1986 to 1988 before he returned to California to run for Congress in the seat that he has held ever since. And Judge Kuhl previously served as United States deputy assistant attorney general and deputy solicitor general.

Yet opposition to these appointments, and especially to Chris Cox, has begun even before the President has actually made the nominations. Democrats in the Senate are threatening to block President Bush’s nominees unless the nominations reflect more “balance,” despite the fact that 3 Democrats and 2 former nominees first proposed by President Clinton were in the first batch of judicial nominations President Bush sent to the Senate. Some Senators have even claimed as a special prerogative the right to essentially blackball any nominee from their home state by returning a negative “blue slip,” and thus far it appears that at least one of California’s Senators is willing to use that prerogative for the basest of purely partisan ends.

With the departure from the Republican ranks of Vermont Senator Jim Jeffords last week, the obstructionist version of the “blue slip” policy favored by Democrats such as California Senator Barbara Boxer and new Judiciary Committee Chairman Patrick Leahy is very likely to prevail, even though such tactics skirt the edges of constitutional legitimacy. The Constitution gives an important role in the appointment of judges to the Senate, but the “advice and consent” power is given to the body as a whole, not to any individual member. Moreover, the founders viewed the confirmation power more as a check on possible favoritism by the President than a means to thwart the President’s policy preferences. As Nan Aron wrote in the July 16, 1999 edition of the San Francisco Chronicle, the President “has a duty to fill judicial vacancies and appoint jurists who share his views.” Indeed, that ability is the only way that the unelected, independent judiciary is ultimately answerable to the people.

To be sure, a certain degree of deference has been given to home-state Senators over the years, a bow to Senatorial courtesy that was especially important in the days before news and information were so widely (and immediately) available. The new, expanded threatened use of the “blue slip” procedure goes much beyond mere Senatorial courtesy, however; it significantly alters the balance of power between the Senate and the President and is as a result contrary to the much more limited role envisioned by the Constitution’s framers.

The “blue slip” tactic is also indefensible on the facts. There is a lack of balance on the Ninth Circuit, but it is not the one Senator Barbara Boxer would have us all believe. Of the 25 active judges currently serving on the court, 18 were appointed by Democrats (4 by President Carter and 14 by President Clinton). Only 7 were appointed by Republican Presidents (3 by President Reagan, 4 by the President George H. W. Bush). Even with the appointment of Cox and Kuhl, Democrat appointments will retain a 2 to 1 margin on the court, and given the high number of appointments made by President Clinton—50% of the total seats authorized on the court—it will be a long time before that imbalance even begins to be corrected.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University. “First Principles” is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.