An Aug. 4 NewsBusters post by Matt Hadro complained that PBS "watered down" the U.S. 9th Circuit Court of Appeals' "infamous history of liberal rulings, saying that though it may be liberal, it is not more so than any other U.S. Circuit Court." Hadro continues:
The Ninth Circuit has a long history of being stacked with liberal judges since the days of President Carter, and infamously struck down "under God" from the Pledge of Allegiance in 2002. The Court has arguably inched to the right with the addition of moderate and conservative judges, but is still widely regarded as the most liberal of the circuit courts.
James Taranto, member of the editorial board of the Wall Street Journal, described the court as "notoriously liberal," in his piece about the reversal of Proposition 8. Ashby Jones, writing for the WSJ's law blog, said that the court has a reputation for being "packed with liberal judges."
The sentiment isn't confined to conservative-friendly publications.
The Los Angeles Times reported last year that 15 of the court's 16 cases reviewed by the U.S. Supreme Court were reversed. "Judicial analysts attribute the high reversal rate at least partly to the 9th Circuit's reputation as a liberal-dominated bench, even though more recent conservative appointments have diluted that influence," the paper reported.
Indeed, the New York Times reported this past spring that "outside experts who have examined the circuit for quantitative evidence of its leanings say that over all, it is indeed the most liberal circuit – but not by all that much."
But in addition to contradicting history in suggesting that the 9th Circuit's reversal rate is abnormally high, Hadro is selectively quoting from those aforementioned newspaper articles. The Los Angeles Times article he cites puts the reversal rate in context:
Most analysts dismiss statistics on reversal as of little significance, given the small number of cases reviewed from most circuits. The 6th and 8th Circuits, which together comprise 11 states from Tennessee to the Dakotas, saw 100 percent of their cases reversed this term, respectively five and four of the Supreme Court's 83-case docket.
But Mr. Samaha, a former law clerk for Justice John Paul Stevens, said it was common knowledge that decisions made by panels that include certain liberal judges get closer scrutiny than others.
"Is it really a circuit being profiled, in a sense, or really a smaller set of judges who set off alarm bells?" Mr. Samaha pondered. "I would suspect it's the latter."
The New York Times article Hadro cites also adds context to reversal rates that Hadro didn't see fit to include:
Susan B. Haire, an associate professor of political science at the University of Georgia, has done extensive research into the rate of reversal for the various circuits and said that, in fact, the reversal rates for the Ninth are generally higher than for other circuits. However, Ms. Haire noted that the Ninth hears far more cases than any other circuit.
In the context of the total volume of cases, she said reversals are “marginally higher than the other circuits, but such a teeny-tiny difference from a substantive perspective even if it is statistically significant, people might say that’s to be expected when you have such a high volume” of cases.
Tom Goldstein, an expert on the Supreme Court, said there was “no evidence of the Ninth Circuit being out of control or of the Supreme Court thinking it is out of control.” He said that there were “old-school, Carter-era liberal appointees on that court who are out of step with the current Supreme Court and are quite strong willed.” He added that those judges “get a lot of attention from the justices” of a Supreme Court that has itself moved significantly to the right over the years.
The highest court in the land, he suggested, so clearly rankles at the views of Judge Reinhardt that litigators hoping to get his decisions overturned will go out of their way to cite him by name in their briefs.
It seems that mentioning the 9th Circuit's size and the even higher reveral rates of other circuits are relevant to any attack on the court's alleged liberal bias. Too bad Hadro didn't think so.