Time to restore order in the court

To split or not to split?

It's not just a question for party-goers anymore. In October, the House of Representatives voted 205-194 to split the existing 9th Circuit Court of Appeals into three new circuits.

At first glance, such a measure might seem to be primarily a political reaction to the 9th Circuit's traditionally left-leaning decisions.

We don't deny that some of the court's decisions, such as the famous one where they tried to remove "under God" from the Pledge of Allegiance, have been annoying.

And maybe Montana should expect to have a court of appeals that reflects the thinking of Montanans. Obviously, there is a world of difference between Los Angeles and Cut Bank.

But for the most part, the case for splitting the court hinges not on politics but pragmatics - the court's jurisdiction is just too big.

The fact of the matter is that the 9th Circuit Court is by far the largest and busiest of all the appeals courts. In fact, the court serves a population of more than 50 million people. That's about 20 million more than the average jurisdiction of other federal appellate courts.

Under the plan approved in October by the House, the 9th Circuit would be reduced to just California and Hawaii. The other seven states would be split into two new courts, one pairing Montana with Arizona, Idaho and Nevada and the other putting Oregon, Washington and Alaska together.

For some reason, congressional observers are convinced the Senate will never approve the proposal, which should be proof on the face of it that this is not simply a partisan ploy. Both the House and Senate are, after all Republican strongholds.

Fact is, though, politics is playing a significant role in this debate, but not by the Republicans. Sen. Dianne Feinstein, D-Calif., who opposes the measure, has put a hold on it with the extraordinary powers granted to individual senators.

So now, we really need to take all the politics out of the debate, and just study whether or not the 9th Circuit Court of Appeals is positioned to do a good job for the nine states it serves.

There are 47 judges serving on the 9th Circuit. That means they do not really function as a court in the same sense the U.S. Supreme Court does, for instance. There is no familiarity between the justices, and no collegiality, and too often the court rules on the basis of three-judge panels rather than with the full court. That gives too much leeway for mischief.

For whatever the reason, the court has the reputation of being the most reversed appeals court, and is frequently upbraided by the Supreme Court for missing the boat entirely.

We need courts that follow the Constitution, not the whims of a couple of judges who can hand out rulings that affect 57 million people.

Is that politics?

Maybe so, but when Montanans get rulings back on issues such as timber sales, healthy forests and cattle grazing, they would like some assurance that the judges on the court represent the values of the Montanans whose very lives and livelihoods are at stake.