On May 21, 2003, the United States Ninth Court of Appeals issued another one of the bizarre rulings for which it has become notorious. This time, the court reversed the conviction of an armed California bank robber, Deshon Rene Odom, because he “never intentionally displayed the gun.”
Odom pulled the robbery with an accomplice, both of whom were arrested outside the bank carrying loaded revolvers. The ruling, written by recently confirmed Bush appointee Judge Richard R. Clifton of Hawaii, inquired, “Can a bank robber with a concealed gun who never mentions or insinuates having one, but who displays it inadvertently, be convicted of armed bank robbery? We believe the answer is no….”
This kind of circuitous logic is emblematic of the Ninth Circuit Court.
The decisions of the Ninth Circuit Court are the most reversed in the federals appeals court system. In 1997, 27 of the circuit’s 28 rulings appealed to the U.S. Supreme Court were reversed, two-thirds of those by a unanimous vote. The court is the domicile of some of the most activist liberal jurists in America, such as Judge Stephen Reinhardt. Reinhardt, who considers an active judiciary to be the bulwark against despotism, is a paragon of liberal activism. He is the personification of the judge who would be king, and this disposition has manifest itself in the court’s rulings.
In another patently anti-Constitutional ruling about legalizing marijuana, the Ninth Circuit ruled that, for all practical purposes, California state law trumped U.S. law. The issue involved the California law about using marijuana for medicinal purposes. This is contrary to the Constitution of the United States, which declares federal law supersedes state law. This is a fundamental tenet of the Constitution, yet it somehow escaped the Ninth Circuit judges.
The Ninth Circuit Court is the same court that declared that the word “God” in the Pledge of Allegiance was unconstitutional. Judge Reinhardt joined Judge Alfred Goodwin in that ruling. A court where God is unconstitutional is a court that is not concerned with interpreting the Constitution but rewriting it.
An even more recent example is the Ninth’s verdict in Doe v. Tenet, in which the court ruled that a pair of ex-spies could sue the Central Intelligence Agency. This is, of course, contrary to legal precedent established by the Supreme Court in Totten v. United States, in which the High Court forbade suits that " would inevitably lead to the disclosure of matters which the law itself regards as confidential." In his dissenting opinion, Judge Richard Tallman noted that the Ninth Circuit should be guided by legal precedent, "There has been no change in the law of spy contracts since Totten was decided in 1875. The secret existence of the espionage relationship and a claim for greater compensation was not justiciable then; it is not justiciable now."
Conservative judges were kept out of the judiciary during the Clinton years, and the liberals used the judiciary to circumvent the will of the people, foisting their agenda upon the nation via the bench. The immediate effect of judicial activism was in the criminal courts. Lenient sentencing of repeat offenders led to crime waves and thousands of innocent victims. However, now the civil courts are revealing the effects of judicial activism, as well. The spate of ludicrous malpractice lawsuits against doctors and hospitals has deleteriously affected the healthcare system. Lawsuits against gun manufacturers and fast food chains set a dangerous precedent that men no longer bear responsibility for their own actions, and this is entirely compatible with the jurisprudence of the Ninth Circuit Court. This is the irony: For all the judges on the Ninth who profess to believe the judiciary is the bulwark against despotism, they instead form an unelected legislature. Judges like Reinhardt, Goodwin, and Clifton do a disservice to the citizens of this country with their innovative interpretations. Thomas Jefferson, among many others, felt that the judiciary was potentially the most dangerous branch of the government because of their ability to veto the other two branches.
As judicial filibusters continue in the Senate – and with the specter of two or three impending Supreme Court vacancies – some wish to bring this kind of judicial activism to the national level. Senators Leahy, Schumer and Daschle have insisted the White House consult with them before appointing Supreme Court nominees. Now, more than ever, President Bush needs our support for conservative judicial appointments. America needs more judges like Antonin Scalia on the high court, not Stephen Reinhardt or Richard Clifton.