Sunday, November 2, 1997 - Page updated at 12:00 AM

Fuming Senators Ready To Carve Up 9Th Circuit -- NW States Would Be In New District

Seattle Times Staff Reporter

SAN FRANCISCO - Judge Alex Kozinski understands how they feel out there about the 9th U.S. Circuit Court of Appeals.

On the glass of his framed formal portrait, waiting to be hung in an ornate conference room, he has impishly penned a set of devil's horns and some fuzzy facial hair. It is a fitting bit of graffiti, neatly symbolizing how the court is viewed by many Northwest timber, mining and fishing interests.

It's a long way from the Appeals Court headquarters here, with its Italian marble and cast-plaster cupids, to the little lumber towns of the Northwest.

But they know Kozinski and other judges of the 9th Circuit in Forks and Shelton. Circuit Court decisions protecting the northern spotted owl have shut down logging and timber sales, slowing and closing mills.

And the court's decisions in other cases - prickly, precedent-setting issues ranging from Northwest Indian fishing rights to assisted suicide - have reached into every corner of the nine-state circuit, the largest in the nation with 28 seats.

Such power has produced equally strong critics. They have proposed splitting the court and in the process have raised questions about the character of the court and the judicial philosophies of the judges themselves. The proposal for this nearly unprecedented move is now before Congress.

Critics say the judges of the 9th Circuit are too liberal, too disposed to favor environmental causes and too oblivious to the

devastation their decisions can wreak on whole Northwest industries.

They say the judges are mavericks, the judicial equivalents of Montana's renegade Freemen, ignoring the rule of law to make up their own society.

Other observers, however, see a scholarly and politically balanced bunch - not outlaws but Westerners of a traditional cut: independent, intrepid and suspicious of the power of government.

Two judges stand out

To the outside world, most 9th Circuit judges are shadowy, anonymous figures. In truth, many are bookish workaholics who spend long, solitary days worming their way through stacks of complex cases.

Two, however, have argued their cases and their philosophies in the limelight and, to some extent, have characterized the court to the public.

One is Kozinski, a sharp-witted conservative showman whose views on such legal issues as the death penalty (he's for it) have appeared in The New Yorker magazine as well as in court opinions.

At the other end of the court's political spectrum is Judge Stephen Reinhardt, Kozinski's impassioned liberal counterpart. Writing for an 11-judge panel last year, he declared that the U.S. Constitution guarantees the right to assistance with suicide - an assertion that stunned some observers and was unanimously overturned by the U.S. Supreme Court over the summer.

Kozinski and Reinhardt have battled openly in cases and in public, a startling departure from the traditionally circumspect behavior of circuit judges.

"Judge Kozinski's view of the rights of non-English-speaking persons would make the Statue of Liberty weep," Reinhardt once wrote of Kozinski's support of an English-language-only initiative in Arizona.

For his part, Kozinski calls Reinhardt a "mastodon," an "old, unreconstructed liberal" who is "practically extinct."

To critics, the behavior of these two and the distance between them is evidence not of balance but of an unruly court whose decisions are as unpredictable as a roll of the dice.

To remedy that problem, they propose dividing the court into two smaller circuits which, they argue, would have more consistent, predictable approaches to the law.

Smoldering for two decades, the proposal caught fire earlier this year, fanned by Northwest Republican senators Ted Stevens of Alaska, Conrad Burns of Montana and Slade Gorton of Washington.

The senators argue that if the Northwest had its own circuit, judges would be more attuned to the history, social realities and economics of the region. For example, they say, a Northwest court wouldn't have made decisions such as the one last year giving Native Alaskans sovereign rights.

That decision enraged Alaska's Stevens, chairman of the Senate's powerful Appropriations Committee. His proposal to split the court was picked up by Gorton, who once declared that the Northwest should be freed from "California judges and judicial philosophy."

Scholars of the court decode the phrase this way: "Gorton is doing this because he thinks it will produce rulings in environmental and land-use cases that are more favorable to his ideology," says Stewart Jay, a law professor at the University of Washington. "He could be right in that."

Gorton and the other critics also complain that the court is too big and too busy and that its rulings are too often overturned by the Supreme Court - another sign, they argue, that it is out of touch with reality.

Under Stevens' proposal, the new 9th Circuit would comprise only California and Nevada; a new 12th Circuit would encompass Washington, Oregon, Idaho, Montana, Alaska, Arizona, Hawaii, Guam and the Northern Mariana Islands.

The proposal has been in a Senate-House conference committee for weeks, after passing in the Senate and incurring President Clinton's threat to veto it. Gorton's office says a compromise is likely to emerge this week: a resolution to commission a study of splitting the 9th, with findings to be presented to Congress.

Undoubtedly, the study will compare case loads, reversals and other statistics. But many observers believe that the real question driving this proposal revolves around the judges themselves: Who are they and why do they do things the way they do?

`Little bit of a maverick'

Judge Alfred Goodwin settles his tall, lanky frame into one of two armchairs on the visitor side of his desk. A leathery-skinned former cowboy from Eastern Oregon, he likes to put others at ease.

Goodwin, like half his colleagues, was appointed by a Republican, President Nixon.

Over the years, experiences have shaped and changed Goodwin's views: A stint in the Army spawned a "hatred of bureaucracy," years in Oregon created a suspicion of over-zealous regulation, and becoming a father to two daughters produced a promoter of civil rights.

Now a senior judge with a reduced caseload, Goodwin moved to California when he began a term as chief judge in the '80s, but keeps a home and a ponderosa-pine farm near Sisters, Ore. There, he has learned the wisdom of protecting wildlife.

In a number of cases, he has written opinions shutting down logging operations or limiting timber sales to protect spotted owls or marbled murrelets.

In Native American fishing-rights cases in the late '70s, he came down for the Indians and against Gorton, who was then Washington's attorney general. "I just thought that the treaties gave the Indians the rights they were claiming," he says simply.

"I'm not a predictably doctrinaire conservative - or a predictably doctrinaire liberal," he shrugs, a phrase echoed by several colleagues. "I'm a little bit of a maverick."

In most cases, he says, precedent and law - not politics or who appointed the judge - determine the outcome. "You can't have a Democratic or a Republican view of a steamship collision or a lien foreclosure or a search and seizure."

But then comes that one case out of 100 - the "case with a face," the judges call it. It's assisted suicide. The spotted owl. Term limits.

If the court makes a decision someone likes, it's applauded as "judicial statesmanship," says Goodwin. If not, it's called "judicial activism," a very bad word these days. Which label is attached, says Goodwin, "all depends on whose ox is gored."

What circuit courts do

Next to the U.S. Supreme Court, the country's 13 circuit courts - 11 regions, a District of Columbia court and a special "federal circuit" - are the most important interpreter of federal laws in the country.

Cases involving treaties, maritime or admiralty issues, immigration, civil rights, disputes between states, constitutional claims, environmental law and criminal law come to the court. Unlike the Supreme Court, Circuit Court judges do not choose which cases to hear, but must take any proper case.

Most cases will be heard by three judges randomly assigned by computer; if a party or judge requests, and a majority of the judges agree, the case will be heard by an 11-judge panel called an en banc. Sometimes, the judges will decide to use the en banc to hear a very important case, or to straighten out conflicting opinions issued by panels.

Judges live where they wish in the circuit; currently, 19 of the 37 on active or senior status live in California. They regularly gather in three-judge panels to hold court in Seattle, Portland, Pasadena and San Francisco, though the cases they hear may come from anywhere in the nine-state circuit.

In court, lawyers get 10 or 20 minutes to argue their cases and often are hyper-prepared and wary in the face of intense questioning.

"I think we scare the lawyers sometimes," said Judge Stephen Trott, a former Los Angeles prosecutor who now lives in Boise. "They show up and we know more about the case than they do. This is a very, very hard-working circuit."

For each half-hour a judge spends in the courtroom hearing a case, he spends hours of solitary time with a pile of file folders. Death-penalty cases, much dreaded, arrive in multiple boxes.

"I sit here and read all day," said Judge Charles Wiggins, happily alone in a cavernous room with a desk, a space heater aimed at his stockinged toes, and a stack of cases. "These are very interesting questions."

Eighteen active judges now sit on the 9th Circuit. Ten seats are vacant, waiting to be filled by presidential nomination and Senate confirmation, and 15 judges have elected to take senior status. Some senior judges work nearly full time, while others work very little. Appointments are for the judges' lifetimes.

Some older judges, like energetic former Chief Judge James Browning, 79, stay on active status.

At this moment, exactly half the judges were appointed by Democratic presidents and half by Republican presidents.

And they span a wide range. There's Browning, a John F. Kennedy appointee who proclaims proudly, "I'm a New Dealer." There's also Judge John Noonan, a San Francisco-based senior judge appointed by President Reagan. Noonan, who has written extensively in support of right-to-life positions, wrote the court's first decision declaring that patients have no right to physician assistance with suicide. (It later was reversed by the en banc panel.)

"I think for every Reinhardt on this court, there's a Kozinski," says Carl Tobias, a law professor at the University of Montana.

Other observers disagree. The 9th is "pretty clearly the most liberal of all the circuit courts," argues Stephen Barnett, a law professor at the University of California at Berkeley.

Two or three of the circuit's judges "are not just liberal but rambunctiously so," he adds.

Many of the judges, however, protest the "liberal" label. Wiggins, a Reagan appointee who was once a Republican member of the House Judiciary Committee, insists: "We're all more or less in the middle."

Activists or individualists?

To which critics ask: If this is a middle-of-the-road court, why is it so often overruled by the Supreme Court?

In its most recent term, the Supreme Court decided to review 29 of the 9th Circuit's cases and reversed all but one. Montana's Sen. Burns says that record proves the court is out of touch, a "farm team."

The circuit judges bristle at that.

The huge majority of the 8,451 cases disposed of by the 9th Circuit in that term were left untouched by the Supreme Court, which typically does not review cases that its justices expect to affirm. And, court watchers note, other circuits had higher reversal rates last year.

"Nobody thinks the 2nd (New York and Vermont) and 7th (upper Midwest) should be broken up or are doing a terrible job because they had a bad year at the Supreme Court," says Arthur Hellman, law professor at University of Pittsburgh.

At the same time, Hellman says, viewed over the past decade, the 9th has been reversed more often than average. A substantial number of the 9th's reversals were unanimous, Barnett says, and included sharp language about the 9th's reasoning.

Many of the 9th's reversed decisions were "liberal in the sense of upholding constitutional claims," Hellman says, and many of those were authored by Reinhardt.

Reinhardt, who is based in Los Angeles, is one of the 9th's most prolific opinion-writers and a lightning rod for complaints. Appointed by President Carter, he provokes the epithet "activist" for discovering new rights in the Constitution.

Reinhardt believes judges play an important part in our evolving understanding of the human rights guaranteed by the Constitution.

For example, he says, it wasn't a judicial quirk that discredited the "separate-but-equal" concept once applied to race.

"It all started with people who wrote dissents," he says. "It took 70 years to get that view into a majority."

Such an "activist" stance often pits Reinhardt against judges such as Portland's Diarmuid O'Scannlain or Trott, both Reagan appointees.

"Most judges think they're like an umpire: All we do is call the strikes and balls," Trott says. "Reinhardt thinks he can set the strike zone."

Trott resists labels, but colleagues describe him as "independent" and a "pragmatist with a libertarian streak." But he and O'Scannlain come down solidly on the conservative side when they argue that judges should interpret existing laws and the Constitution, not indulge in wishful thinking or acting like legislators.

Nevertheless, Trott says, Reinhardt "is not a wild man out on some kind of binge. He is part of a very well-established wing of judicial thought."

Reinhardt himself suggests he's also part of a deep-seated Western tradition.

Judges in general are "stuffy and tend to drift to uniformity," he says, but in the West "people are individualists, they have lots of different kinds of ideas. This is a much more lively, active circuit, much more diverse."

Kozinski agrees. "I think our judges are less cowed by reversals from the Supreme Court," he says "They're three time zones away, and that makes us a little less susceptible to intimidation by the Supreme Court or by Congress."

Some observers believe differences with the Supreme Court may have to do both with 9th Circuit judges' proclivity to question authority and with the current makeup of the high court.

"The (Supreme) Court today may be less suspicious of large power and large entities than any court since the 1950s," Hellman says.

At the 9th, by contrast, Goodwin says a number of colleagues share his view that the government should spend "less time minding an individual's business. To that extent, there is a libertarian thread running through the court."

Kozinski, who works out of Pasadena, believes government tends to become too powerful and intrusive in people's lives, too likely to "hoard resources," restricting people's ability to make a living.

Reinhardt believes there's something about the West that fosters that view. "There's more of an attitude of individualism and freedom . . . and that leads to more suspicion of governmental authority," he says.

Despite such suspicion, the judges have earned a reputation for unleashing the heavy hand of government when it comes to environmental regulations. Though environmental cases make up a relatively small percentage of the total, they often have big stakes and high visibility.

Several judges say their wild-eyed environmentalist reputation baffles them.

"I'm no big friend of the environment - I'm pretty conservative," says Kozinski. "And I haven't seen a lot of outrageous things happen. I've seen a bunch of laws written in a mushy way getting applied by judges who have a view, but who aren't doing anything terribly outrageous. . . . If you want to change what courts do, you're going to have to write better laws."

Hellman says a study a few years ago showed the court's decisions were evenly divided between pro- and anti-environmental poles.

Some critics say what's really going on is that the judges - especially the California judges - don't know enough about the local cultures and economies their decisions affect.

Stevens has complained that the California judges haven't even been to Alaska.

But is that really important?

No, says Kozinski, and the idea is as insulting as saying a judge from the Pacific Northwest can't understand affirmative action.

Trott differs on this, arguing a judge needs to know what farmers are talking about when they say: "If this snail darter is an endangered species, you will end agriculture in these 10 counties and end life as we know it."

Jay, the UW law professor, agrees. "To say you can decide cases without knowledge of the society in which the law functions is nonsense."

Law, he says, isn't some "pure abstract process of deduction and abstract logic. It reflects the value judgments of the judges deciding the cases, their political dispositions, their personalities" and the judges' own experiences.

Bill called "vengeance"

With a few exceptions, judges of the 9th decry the proposal for splitting the court as a snake-oil cure for real or imagined ills.

Pairing Arizona and the Northwestern states, with dual headquarters in Seattle and Phoenix, they say, is "idiotic," "utterly ridiculous," and a "logistical mess."

Many judges and observers contend politics, not a desire for better administration, is driving the move.

"This bill has got vengeance written all over its face," says Senior Judge Joseph Sneed, a conservative Nixon appointee who believes the court must ultimately be split.

Goodwin contends Gorton has been waiting years for a chance to break up the court, since losing a series of Indian fishing cases. "Slade lost about four cases in a row," says Goodwin. "I think that's when he decided the 9th Circuit had to go."

Gorton's office says the senator, engaged in sensitive negotiations on the proposal, won't comment.

Whatever happens to the proposal, some observers believe that size alone will ultimately mandate that the court be split. Figures suggest that the court is bogging down on its huge load of cases, more than a thousand per year greater than the next-busiest circuit.

Those opposed to dividing the court counter that it has been crippled by the Republican-controlled Senate's slowness to confirm presidential nominees. More than a third of the court's seats are vacant, the greatest proportion among the circuits.

Some judges argue that the court's size and diverse philosophies, far from handicapping it, help forge true understanding of complex issues and are ultimately its greatest strength.

"Within the 9th Circuit you have all the points of view and conflicts that exist in the country," says Browning.

In the end, Browning says, the battles waged on the 9th Circuit and the compromises that result work toward a goal that transcends politics of the moment: Helping our separate, cantankerous states stay together as a nation.

And speaking of cantankerous, Browning has a few words for those who think Northwest cases should have Northwest judges. Says Browning, based in San Francisco but a native of Belt, Mont. (pop. 700, then and now):

"I understand Montana and the Pacific Northwest better than Gorton does."

Carol M. Ostrom's phone message number is 206-464-2249. Her e-mail address is: cost-new@seatimes.com

--------------------------------- 9th Circuit cases that made waves ---------------------------------

-- English-only initiative: In 1994, the 9th Circuit outlawed a 1988 Arizona voter-approved initiative requiring all government employees to conduct virtually all business in English. The Supreme Court reversed with harsh language, saying the 9th Circuit should have realized that the employee who brought the original case no longer had standing.

-- Assisted suicide: Reversing its own three-judge panel, an 11-judge panel of the 9th Circuit ruled last year that a Washington state law banning suicide assistance is unconstitutional. The Supreme Court reversed unanimously.

-- Alaska natives: The court ruled last year that two Alaskan native villages have reservation-like sovereign authority to levy taxes, regulate land use and enforce misdemeanor criminal laws on their land. The case has been appealed to the Supreme Court.

-- Brady gun-control law: The court ruled that the federal law, which required local law-enforcement officials to conduct background checks on potential gun purchasers, was constitutional. The Supreme Court reversed, in a 5-4 decision.

-- Affirmative action: The court earlier this year upheld Prop. 209, a 1996, voter-approved anti-affirmative action initiative from California. The city of San Francisco has appealed the decision to the Supreme Court.

-- Minority hiring: Also this year, the court ruled unconstitutional a California law requiring contractors who do business with the state to make a "good faith" effort to hire minority and women subcontractors.

----------------------- Appeals in, appeals out -----------------------

12-month period ending June 30, 197.

New Current

appeals Judgeships judge

Circuit filed authorized vacancies

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D.C. 1,488 12 1

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1st 1,444 6 1

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2nd 4,812 13 4

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