Posted 1:20 AM by Robert

Remembering Values, Issues And Internals

A Man Without Qualities post that appeared hard on the heels of John Kerry's preposterously incompetent Democratic Convention acceptance speech included this passage:

Kausfiles points out that Donkey Rising's Ruy Teixeira and Slate's William Saletan have been busy, busy, busy cobbling up yet more ad hoc special purpose arguments explaining why Kerry-Edwards really did get that bounce most other observors missed and why the Democrats really scored big on those now-to-be-construed-as-all-important poll "internals" and "issues." ... There is the basic problem that neither Messrs. Saletan nor Teixeira offers up any historical or other justification for considering an "issues and internals" bounce to be of electoral significance - especially where such an ad hoc bounce fails to correspond to a significant bounce in net support. It's all very nice to pick out some poll question on which one thinks one's candidate has done well, call it an "issue" and proclaim it's significance ... How about any argument that an "issues and internals" bounce has ever meant anything?One big problem with "issues and internals" is that there are so many of them, and they deploy themselves like guests at a cocktail party at which the pundit speaks only to his friends. For example, does any sensible person think Kerry-Edwards would score well on an "issues and internals" poll question that probes who would best keep the nation's courts from imposing gay marriage a la Massachusetts? Of course, that question is not driving this election - yet over 70% of voters in the "battlefield state" of Missouri just voted for a constitutional amendment to keep that from happening. Why don't Messrs. Saletan and Teixeira spend time chatting up that issue at their "issues and internals" cocktail parties posing as pundit columns?

Considering all the fuss that's been going on in some quarters about how this election was supposedly decided on "values" - with gay marriage supposedly being the flashpoint for a deciding number of "values" voters - I was just wondering if either of Messrs. Saletan or Teixeira has ever actually offered an argument that an "issues and internals" bounce after a convention has ever meant anything, or meant anything this time, or if either of them has explained why their "issues and internals" cocktail party roster didn't include anything on gay marriage - or on "values" at all?

Just asking the professionals. Mr. Saletan? Mr. Teixeira? Yoo, hoo!

There's been so much frantic typing by these two since the November 2 Kerrydammerung that it almost seems to be employed as a form of therapy: here and here and here, for Mr. Teixeira. But I don't see much in the way of explanation for their post-Convention "issues and internals" columns. Does silence mean consent to those columns having been totally wrong? Or is there a more (I struggle to write the word) nuanced explanation?

Posted 10:25 PM by Robert

An Odd Way To Economize

In the movie (and novel)"The Player," a Hollywood studio exec expounds at length on how writers might be completely eliminated from the process of creating a movie. An astute reader points out that The New Republic seems to be economizing by completely eliminating editors from the process of creating that magazine. Surely a harsh charge. But here's the latest evidence:

Page 6: It's been a week since George W. Bush defeated John Kerry, and
something strange is happening: Democrats aren't beating each other's
brains out.... Oddly enough, the Democrats seem almost as united in
defeat as they were during the campaign.

Page 17: It's that time again for Democrats. Kerry aides and party
strategists have thrown themselves into their quadrennial post-campaign
ritual of recriminations. Old scabs are being picked. Scores are being
settled. Clintonites point fingers at the Kennedy wing. Longtime Kerry
aides throw accusations of disloyalty at the Clintonites. Staffers from
the DNC lob bombs at staffers from the campaign. Policy wonks gripe
about inept political consultants. Kerry aides who traveled on the
camnpaign plane snipe at the aides who were based in Washington. Democrats, out
of power and out of jobs, are doing what they do best: turning on one
another.

I'd say that's enough for a directed verdict, maybe even for summary judgment.

Posted 8:06 PM by Robert

Subtraction

According to a recent report by the New York Times, the Iraq "resistance" before the just completed Fallujah assault numbered between 8,000 and 12,000 rebels, counting foreign fighters, the network of Jordanian militant Abu Musab al-Zarqawi, and home-grown insurgents.

In one week in Fallujah about 1,200 insurgents were killed and another 1,000 taken prisoner.

In other words, about 2,200 insurgents were subtracted from the 8,000 to 12,000 estimated total - for a subtraction of about 18% to 25% of all insurgents in one week.

Not a bad week's work. Not bad at all. That suggests that if the insurgents keep up the fight in Mosul, Baquba, Kirkuk and Suweira, their total numbers should be getting pretty darn low in a few more weeks.

Their total number should be getting pretty small well before Iraq's upcoming election day.

Unless, like Maureen Dowd and other Timesfolk, one believes in the spontaneous generation of Iraq insurgents from sweaty underwear and husks of wheat.

UPDATE: This tendentious Associated Press report presents almost no support for its proposition that because the recapture of Fallujah has not "broken the insurgents' will to fight," it may not "pay the big dividend U.S. planners had hoped" and, instead, "has sharpened divisions among Iraq's major ethnic and religious groups, fueled anti-American sentiment and stoked the 18-month-old Sunni insurgency."

It does not appear to be at all necessary to break the "insurgents' will to fight" and the AP cites not a single American military source as saying the US was counting on such a development in Fallujah. Indeed, the allied position seems to be well served by the insurgents fighting openly and vigorously - that way a lot of them die in combat with the far more formidable allied forces, or are captured, as happened in Fallujah. As noted above, recent most pessimistic, estimates put the total number of insurgents at 12,000 presumably now minus the 2,200 killed and captured in Fallujah activities. If that trend continues, simple arithmetic shows that the insurgency will be soon broken even if the allies have never "broken the insurgents' will to fight." One can, instead, break the insurgents.

The AP argument that the Fallujah action "has sharpened divisions among Iraq's major ethnic and religious groups, fueled anti-American sentiment and stoked the 18-month-old Sunni insurgency" appears to be nothing more than a warmed-over version of the standard "Arab street" nonsense that the mainstream media and their eternal and often nameless analysts have been serving up about Afghanistan and Iraq for years. The Afghan elections went forward just fine in the face of that country's inflamed "street." If a big portion of the 12,000 trouble makers in Iraq can be sent to their maker in the next weeks, those elections will go just fine, too.

Posted 11:24 AM by Robert

The Next Tom Daschle: Byrd On A Wire?

The website of West Virginia Senator Robert C. Byrd boasts:

In 2000, West Virginia voters elected Senator Byrd to an eighth consecutive six-year term in the Senate, making him the only person in the history of the Republic to achieve that milestone. Senator Byrd has carried all 55 West Virginia counties three times (1970, 1994, and 2000), making him the first person to do so in contested statewide general elections. In May 2001, Senator Byrd cast his 16,000th roll call vote, giving him the distinction of casting more votes than any other Senator in history.

The New York Times refers to the old onetime Ku Klux Klansman, who as recently as 2001 casually used the phrase "white nigger" twice on national TV in a single weekend, as the Democratic Party's "revered elder statesman."

So on the face of it, Senator Byrd is anything but the next Tom Daschle - likely to be turned out by an electorate from whom he grows ever more distant.

But could Senator Byrd be next Tom Daschle after all? President Bush trounced Mr. Kerry in West Virginia by 13 percentage points, doubling his margin of victory in West Virginia from 2000. That's not a good as the 22 percentage point lead Mr. Bush racked up in South Dakota, but its still a huge lead and its 100% increase since 2000 is striking.

The electoral game played by Senators Byrd and Daschle have been similar: support for a Washington Democratic Party far to the left of their home states, balanced by huge loads of pork brought back to grateful home state voters. But like Senator Daschle, Senator Byrd's pork supplies have been trimmed by the persistent Republican control of the Senate.

Senator Byrd has another characteristic in common with his South Dakota counterpart: ambition to assume high office that puts him in the spot light and may obligate him to take positions a lot more consistent with his Washington, D.C. role than the views of his West Virginia constituency. For example, Senator Byrd has been very proud of his role as a rock ribbed "defender of Senate traditions." If the near future brings more Democratic filibuster of conservative judicial nominees, and the Republicans seek to relax the rule permitting such filibusters, Senator Byrd could find himself making some very dicey statements defending his colleagues' actions.

And Senator Byrd has one burden Tom Daschle did not have to bear: advanced age. Robert C. Byrd was born in 1917 - he's now 87years old and will be 90 years old when next up for election in 2006. Even by Senate standards, that's old, especially for someone who has to adapt to a rapidly changing constituency.

Perhaps Senator Byrd will avoid his Daschle problems another way: perhaps he won't run in 2006. But I wouldn't count on it.

Posted 7:00 PM by Robert

Supreme Court Bobblehead Dolls!

Just in time for the holidays!

Choose from the Chief Justice, BobbleStevens, and Bobble-O-Connor! To see each one in action, click the image.

Annotated! Evocative! Collect the entire set on E-Bay!

Posted 1:09 PM by Robert

The New York Times Reaches Across The Aisle

In today's Times' report that Senator Harry Reid of Nevada was elected the Senate's minority leader:

Mr. Reid has demonstrated an ability to reach across the aisle. In the spring of 2001, he played a big part in persuading Senator Jeffords to leave the Republican Party.

So that's an example of what the Times views to be the kind of "bipartisan cooperation" we can expect to see from Senator Reid?

Given what we now know of how the Times interprets "reach across the aisle," we can conclude that the Times should also agree with the interpretation placed on the quote from Jesus in Matthew 25 by the likes of the store owner who over charged a new customer twenty-fold for a horse blanket: "He was a stranger, and I took him in." So very true in it's own Timesian fashion!

Perhaps Marc Rich used exactly that biblical construction to explain his $48 million tax fraud and other crimes to the magnanimous Bill Clinton - who pardoned Mr. Rich despite his being ineligible for a pardon, since he never took responsibility for his actions or served any sentence. Indeed, following it's interpretation of "reaching across the aisle," the Times surely considers Mr. Clinton's pardon of Marc Rich to have been an act of purest agape - or "unconditional love."

After all, didn't Mr. Rich himself "reach across the aisle" - if only to pick the government's pocket?

Posted 9:36 AM by Robert

A Peculiar Delicacy

This New York Times article and Associated Press report appearing in the New York Times each recount President Bush's choice of Ken Mehlman, who managed Bush's re-election campaign, to now head the Republican National Committee. They are both oddly "delicate" on a point that warrants no deliacy whatsoever: Mr. Mehlman is jewish. Neither item mentions that fact at all, not even in an aside. But the Times and the AP often find ethnic and gender identification of appointees newsworthy, as in today's AP/Times coverage of Condi Rice: If confirmed by the Senate, she would be the first black woman secretary of state. Rice [was] raised in the segregated South ... And other media have had no trouble finding the newsworthiness of Mr. Mehlman's ethnicity or its relevance to the Republican agenda:

"I think there's an opportunity, based on the president's leadership, to significantly expand our level of support" in the Jewish community, Mehlman told National Journal. "Good policies are good politics."

Little wonder that Mehlman, who is Jewish, and other top campaign officials have been using the more intimate setting of small meetings to woo Jewish donors and leaders. On several occasions, such as a November gathering in Baltimore, Mehlman and other campaign officials have skillfully used "pre-sells" -- the hosting of potential Jewish contributors in the weeks running up to a big fundraising event that features Bush.

Mr. Melhman did a terrific job running the Bush-Cheney campaign, and his new appointment is clearly intended in part to faciliate the Republican outreach to jewish voters, who this time gave a larger share of their votes and financial support to President Bush than they normally give to Republicans. That's obviously all worth a mention by the the New York Times, etc. Instead we get odd circumlocutions like:

Mehlman, 38, a protege of Rove, said he also hopes to expand the GOP base and help Bush enact his agenda, including changes in the tax code and Social Security. While winning re-election with 51 percent of the vote, Bush improved his support among Hispanics, Catholics, women and others [sic] key voting blocs.

Other Democratic "key voting blocs?" - you know, like jewish Americans.

This "delicacy" concerning Mr. Mehlman and his partial mission to advance further Republican inroads with jewish voters is nothing sort of weird. In contrast, the Times has absolutely no problem running items that insinuate - often employing standard antisemitic code language - that spooky "neoconservatives" in the Bush administration are mysteriously deforming American foreign policy, as in this Times book review, just by way of example:

At the end of the book, Hersh confesses that he still hasn't got the whole story. "There is so much about this presidency that we don't know, and may never learn," he writes. "How did they do it? How did eight or nine neoconservatives who believed that war in Iraq was the answer to international terrorism get their way? How did they redirect the government and rearrange longstanding American priorities and policies with so much ease? How did they overcome the bureaucracy, intimidate the press, mislead the Congress and dominate the military? Is our democracy that fragile?"

Yes, our democracy is that fragile. Checks and balances in the American constitutional system are functioning poorly.

One might also look here and here and so many other places in the Times.

So why be so "delicate" with respect to Mr. Mehlman?

Posted 11:25 PM by Robert

Death From Bifurcation

A new ad campaign urges amendment of the U.S. Constitution to remove limits on the presidency to natural U.S. citizens.

This particular effort is tied to California Governor Arnold Schwarzenegger, who was born in Austria but became a U.S. citizen in 1983. And that's why this effort will almost certainly fail. Amending the Constitution based on considerations peculiar to a particular person - any particular person - is a nearly certain dead loser.

On the other hand, it is equally true that if there is no immediate and clear-cut need for an amendment to the Constitution, then that document shouldn't be amended. Of course, in the case of amendments to the "natural U.S. citizens" clause, the existence of an immediate and clear-cut need requires that there be a particular person who would be a likely candidate but is barred from the presidency because of the clause, which, of course, would cause the amendment to fail on the grounds that no amendment should be made to the Constitution based on considerations peculiar to a particular person.

That bifurcation may explain why the "natural U.S. citizens" clause remains in the Constitution even though it probably always has been a bad idea.

Posted 3:13 PM by Robert

Here's Something For John Edwards To Do ...

... now that he will soon have lots of time on his hands.

He can sue the manufacturers and distributors of computers and computer screens, which have now been linked to glaucoma!

The internet played a big role in denying Kerry-Edwards the benefits that the mainstream liberal media tried to confer during the campaign by discrediting so much of their hooey.

Now Senator Edwards can have his revenge, and make a few more million bucks, to boot!

Posted 2:54 PM by Robert

More Evidence That Affirmative Action Is A Terrible Idea

It seems from this Los Angeles Times article, one of my Los Feliz neighbors is in for some very rough times:

UCLA law professor Richard H. Sander, author of a controversial new study concluding that affirmative action hurts black law school students ... is a soft-spoken former VISTA volunteer who for years has studied housing discrimination and championed efforts to fight segregation in Los Angeles....

Sander's latest research, to be published this month in the Stanford Law Review, already is drawing widespread criticism from liberal backers of affirmative action and is roiling law schools around the country.

His study asserts that law school affirmative action programs often draw African Americans to tougher schools where they struggle to keep up, leading many to earn poor grades, drop out and fail their state bar exams.

"The big picture is that this system of racial preferences is no longer clearly achieving the goal of expanding the number of black lawyers," Sander said in an interview. "There's a very good chance that we're creating such high attrition rates that we're actually lowering production of black lawyers, and certainly we are weakening the preparation of the black lawyers we are producing."

Affirmative action opponents have made similar arguments about racial preferences in the past, but Sander's research provides new statistics on academic performance. He reports that, in his national sampling, nearly half of first-year black students received grades placing them in the bottom tenth of their classes. In addition, he found that among all students who entered law school in 1991, 45% of black students graduated and passed the bar exam on their first try, while 78% of whites did so. ....

Some critics who have read a draft of the paper say Sander is probably understating the rate at which blacks pass the bar exam. They also argue that his explanations for black students' lagging performance are based on sweeping, unproven assumptions, and they say that he fails to recognize affirmative action's far-reaching benefits. ....

Alison Grey Anderson, a friend who has taught at the UCLA law school since 1972, said she admires his intellectual integrity. "If he believes something is true, he's going to say it, and he's really not going to take into account the political consequences ... I wouldn't want to be in his shoes."

Sander, director of the Empirical Research Group at the UCLA law school, said ... affirmative action "needs to be subjected to the kinds of cost-benefit evaluation that we would apply to any social policy." ...

Sander ... lives in Los Feliz with his two children and wife ... One factor, he said, is the educational future of his 14-year-old son, Robert. University affirmative action could play a role in Robert's life because his racial background is mixed: Sander is white and Robert's mother, Sander's first wife, is black.

Sander's other child, a 19-month-old daughter named Erica, has a terminal disease.

Professor Sanders sounds like quite a guy. I hope that he is under no illusion that a commitment to the scientific method, an open-minded approach to the costs and benefits of programs viewed by liberals as central to maintaining their social and political fiefs, a personal connection to the issues he raises in the form of his own son, or the tragic status of his young daughter, is going to mean a thing when the liberals lunge for his carotid arteries.

As they most surely will lunge after that paper appears in the Stanford Law Review.

UPDATE: Let the intemperate, ad hominem assault on Professor Sander begin!

Link thanks to Mike Daley.

Read a summary of Professor Sander's article written by the professor himself here.

Posted 11:31 AM by Robert

The New York Times Is An Irresponsible Blog!

It's the only explanation for what's chronicled in this drop dead hilarious post from Maguire.

But do the Timesfolk now stay in their pajamas and do their "work" from their living rooms?

Posted 10:43 AM by Robert

Long Time Coming

John Fund has an interesting survey of the aftermath, effects and dynamics of Vietnam veteran opposition to John Kerry in OpinionJournal today, including this observation:

As the evening proceeded and one Vietnam veteran after another shared the story of how veterans felt compelled to attack Mr. Kerry for his 1971 testimony branding fellow veterans as war criminals, former CBS News correspondent Bernard Goldberg leaned back in his chair in amazement. "I think some of them are too intense," he told me. "But screwing with these guys by accusing them of atrocities was one of the biggest mistakes John Kerry ever made. Thirty years later he woke a sleeping giant."

Indeed he did.

That intensity of veteran reaction to John Kerry makes his decades-long insensitivity to their feelings and potency simply amazing. John Kerry has had thirty years to make peace with the veterans he offended in his post-Vietnam excitement. At any point in those 30 years it would not have been all that hard for him to make peace and still retain his war hero mantle. But John Kerry made no effort. Indeed, his efforts to reconcile the United States with Vietnam were vastly more energetic than his efforts to reconcile himself with the Vietnam War veterans he offended. His camp has suggested he may run again for President in 2008 - but there's still no hint of an outreach to veterans.

What's particularly strange about John Kerry's behavior over those three decades is that his failure to make peace with veterans carried obvious political risks - risks that could have been costlessly reduced. By the time he announced his bid for the presidency, it was much too late - and that, too, was obvious. For example, the Man Without Qualities predicted the Kerry-veterans train wreck way back on February 22:

So far, the media have been very weak in discussing Kerry's post-Vietnam-return antiwar activities - or the rest of his past, for that matter. After all, many of the people now involved in the mainstream media of Kerry's age participated in many of the same activities. The nation has learned to forgive them. Even Jane Fonda has apologized for some of what she did in the depths of her Vietnam era insanity - and on this point Ms. Fonda is more responsible than Senator Kerry, who does not apologize but instead just misrepresents his past. But if Kerry keeps pushing Vietnam, the Bush campaign won't be so gentle -and, ultimately, the media won't remain gentle, either. At some point Senator Kerry is going to have to stop misrepresenting his antiwar statements and outright apologize for some of them - especially his assertions to Congress that American soldiers were routinely war criminals. Veterans on the campaign trail are going to demand that of him - to his face.

Posted 9:30 AM by Robert

Divide The Ninth Circuit To Make It Less Immodest II

The modest person generally best accomplishes his or her will through persuasion, the arrogant person finds it sufficient to impose that will through fiat. As noted in the prior post, the Ninth Circuit is often reversed, often unanimously, by the Supreme Court. In other words, Ninth Circuit opinions often fail to persuade the Supreme Court - indeed, Ninth Circuit opinions often fail to persuade even a single member of the Supreme Court. Further, Ninth Circuit opinions are, relative to opinions of other circuits, not considered persuasive or well constructed by judges sitting in other circuits - who much more rarely cite to the Ninth Circuit than to other circuits. But Ninth Circuit opinions do impose themselves by fiat on 56 million Americans. The discrepancy between the persuasiveness of Ninth Circuit opinions and their fiat power is a measure of the arrogance of that court.

Ninth Circuit Judges Kozinski and Thomas unwittingly admit the unpersuasiveness of Ninth Circuit opinions with this argument:

People and businesses make decisions with an eye toward legal consequences, so they need a clearly established body of law. Today, a Ninth Circuit decision is binding in nine Western states. After the split, a decision of the new Ninth Circuit would leave the law unclear in the seven states of the 12th and 13th Circuits. To get the law settled for all these states, the same issue would have to be decided by the two new circuits, which could take years. More circuits also means more conflicts in the law, increasing the burden on the Supreme Court to set matters straight.

If Ninth Circuit opinions were well crafted and persuasive almost nothing would be left of this Kozinski-Thomas argument. Although federal circuit courts cannot bind each other by fiat, they are generally loathe to "split" with another circuit's opinion unless that opinion is exceptionally unpersuasive. That is known as "honoring persuasive precedent." Following a division of the Ninth Circuit the new, smaller circuits would be able to reach each other by persuasion. Indeed, their historical unity should make it easier for those circuits to persuade each other than it would be to persuade circuits outside the old Ninth.

That Judges Kozinski and Thomas are convinced that the newly divided Ninth would experience a great uptick in uncertainty and a corresponding great downtick in uniformity is all but an admission of their belief that the Ninth Circuit often does not persuade, but instead imposes its will by fiat.

Dividing the Ninth Circuit would require that Ninth Circuit judges craft persuasive opinions if they wish their written will to carry as far as it does now, since they would no longer be able to rely on such a broad fiat. An uptick in opinion quality would be an unalloyed good for everyone. The Ninth Circuit would gain respect and modesty and lose some arrogance. The burden now placed on the Supreme Court to police and correct Ninth Circuit errors would be reduced. Litigants would benefit from receiving better justice. And the 56 million (soon to be 75 million) people in the current Ninth Circuit, and their businesses, who make decisions with an eye toward legal consequences would benefit from better, clearer and more persuasive constructions of federal law.

Judges Kozinski and Thomas all but admit as much.

UPDATE: An astute reader comments:

as a former clerk on the ninth, i have some comments on your analysis (with which i completely agree):

1. as you obliquely point out, some of the judges on the ninth circuit in many ways have more power than supreme court justices, because the ninth is effectively the last stop for many more litigants (the supreme court can only hear so many cases). that's not right.

2. the ninth has far too much power not merely because it is the court of appeals for so many, but also because of the enormous geographic area it covers. e.g., maritime law on the east coast is divided up between many circuits, but on the west coast, it's only the ninth. this is a clean example, but the same principle obtains for other types of law. so you don't get the same sort of experimentation/dialogue with respect to such law as you might if the ninth were split up. it again seems wrong to have a single court so dominate critically important areas of substantive law.

I completely agree.

Posted 1:50 PM by Robert

Divide The Ninth Circuit To Make It Less Immodest

Judges Alex Kozinski and Sidney Thomas were appointed to the United States Court of Appeals for the Ninth Circuit by Presidents Reagan and Clinton, respectively. They have now scribed for the Wall Street Journal their joint explanation as to why they oppose a provision offered by Rep. Mike Simpson of Idaho, and already approved by the House, that would split the Ninth Circuit. That circuit now includes nine Western states and 56 million Americans. The proposal would replace the Ninth Circuit with three smaller circuits: (i) the new Ninth Circuit with California, Hawaii, Guam and the Northern Mariana Islands, (ii) a new 12th Circuit with Nevada, Idaho and Montana, and (iii) a new 13th Circuit with Washington, Oregon and Alaska.

The shocking weakness of the Kozinski and Thomas argument indicates strongly that Congress should immediately enact the proposal these two judges oppose and divide the Ninth Circuit - indeed, the Kozinski-Thomas article suggests the need is urgent.

Although Kozinski-Thomas insist that the issue requires more study, the need to divide the Ninth Circuit has been discussed and studied for more than thirty years. In 1973, the Commission on the Revision of the Federal Court Appellate System (sometimes called the "Hruska Commission"), was created to study and make recommendations for the federal appellate courts. It recommended that both the Fifth and Ninth Circuits be split. The Hruska Commission report noted the Ninth Circuit's "striking" size, its "serious difficulties with backlog and delay," and its "apparently inconsistent decisions by different panels of the large court." Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 Mont. L.R. 245 (1996), citing 62 F.R.D. 223, 224 (1973). The Hruska Commission "concluded that the creation of two new circuits is essential to afford immediate relief."

The proposed divisions of both the Fifth and Ninth Circuits were initially met with resistance, and Congress in 1978 authorized a half-way measure: large circuit courts were allowed to create "administrative units" to address size-related problems. The Fifth Circuit attempted this approach, and failed. Congress finally split the Fifth Circuit in 1980 - hiving from it what is now the Eleventh Circuit Court of Appeals. Kozinski-Thomas mostly derive their arguments from a parade of theoretical adverse effects these judges suggest might follow from a division of the Ninth Circuit: increased costs, less certainty, less uniformity. But more revealing and downright alarming, is their utter failure to examine - or even mention - that none of those adverse consequences followed the division of the Fifth Circuit only a few years ago.

The Fifth and Eleventh Circuits today, combined, are almost exactly the same size as the current Ninth Circuit. Neither the Fifth nor the Eleventh Circuits is today considered by any serious observer to be plagued by the failings that continue to burden the Ninth Circuit. The Fifth/Eleventh Circuit experience obviously provides an excellent testing ground for every single one of the theoretical adverse effects postulated by Kozinski-Thomas. Their failure to even mention that experience is testimony to the fact that the division of the old Fifth Circuit is considered to have been an unqualified success - with the cost of any of the adverse effects they hoist much more than outweighed by the benefits of the division. These two judges are well aware of that success and consensus, and their failure to mention it is shocking and nakedly disingenuous.

While the Fifth Circuit was being rationalized and its problems mitigated, the Ninth Circuit continued to bloat. Congress created the Commission on Structural Alternatives for the Federal Courts of Appeals (the "White Commission") in 1997. Although Kozinski-Thomas ignores the Hruska report entirely, they do cite misleadingly to the White Commission:

[The White Commission] thoroughly considered and rejected the idea that the Ninth should be split, finding it unnecessary and impractical, to once again study these issues. The White Commission recognized the Ninth Circuit's size-related problems, but it recommended that Congress create three regionally based administrative units within the structure of the Ninth Circuit.

But this particular White Commission recommendation was just what had failed in the Fifth Circuit, a gap which the Commission proposed bridging with additional procedures that were thankfully never adopted. The White Commission's suggestion that the Ninth Circuit not be divided was conditioned on the adoption of those procedures - which Kozinski-Thomas do not endorse or even mention. Among other things, the White Commission proposed another step of appellate review for litigants in the Ninth Circuit and the abolition of true en banc hearings. Instead, a "circuit panel" would have been empowered to correct conflicting opinions from the administrative units, possibly without briefing from the parties or a hearing. The radical, experimental approach proposed by the White Commission as the cost of retaining the current Ninth Circuit was immediately perceived by Congress as causing further delay, bloating expenses, and creating even more confusion for litigants. Congress thoroughly rejected the White Commission recommendation. None of that history is mentioned by Kozinski-Thomas, but that history renders their reliance on the White Commission all but fraudulent.

Kozinski-Thomas wave away all criticism of the Ninth Circuit based on its sheer size, with the argument that "big doesn't mean inefficient ... [S]ize brings into play economies of scale, so the Ninth offers innovative and valuable services to the public that smaller circuits cannot afford." Of course, exactly what those innovative and valuable services actually are just goes unmentioned (space constraints, no doubt). Nor is any consideration given to fact that intelligent observers - such as Justice Brandeis - have generally exactly inverted this argument, and considered smaller government units to be better innovators. "It is one of the happy incidents of the federal system," Justice Louis D. Brandeis wrote in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." But why should Kozinski-Thomas bother to meet an argument heaved up by a lightweight like Justice Brandeis and supported by much common sense?

Contrary to the Kozinski-Thomas insinuations, criticisms of the Ninth Circuit based on its sheer size don't mindlessly equate large size with inefficiency Those critical arguments are based on copious observations that the Ninth Circuit's sheer size has, in fact, been one of the important factors makig the Circuit a mess. But comparing the mere size of the Ninth Circuit to other circuits is nonetheless revealing in many specific ways, including the following:

1. The Ninth Circuit's 56 million and rapidly growing population is more than two and one-half times greater than the other circuits, which average 20 million people.

2. The Ninth Circuit contains almost 40% of the United States, covering more than 1.3 million square miles. The other circuits average about 200,000 square miles.

3. The Ninth Circuit represents nine states and two territories, but other circuits average about three and one-half.

4. There are twenty-eight judgeships authorized in the Ninth Circuit, but other circuits average about twelve and one-half - none has more than seventeen authorized.

Do different rules apply to the Ninth Circuit than to other circuits? Do Kozinski-Thomas propose that the division of the old Fifth Circuit be undone? Why not? Couldn't all the efficiencies and "innovative and valuable services" they celebrate without much identifying be realized by consolidating all of the other circuits into circuits roughly the size of the current Ninth? The Census Bureau projects that all nine of the states located within the Ninth Circuit will fall into the top twenty growth states over the next 20 years or so. By 2025, the Ninth Circuit's population will be greater than 75 million. Is there no point at which bigger is worse? Why not just have one Circuit?

In fact, also contrary to Kozinski-Thomas, the number of judges in a circuit is widely regarded by knowledgable observers to have a huge negative effect on a circuit's ability to manage its caseload. The White Commission report advised Congress on this point in another section of that report ignored by Kozinski-Thomas as follows:

The maximum number of judges for an effective appellate court functioning as a single decisional unit is somewhere between eleven and seventeen. (White Commission Report at 29.)

It gets worse. The annual report of the federal courts, entitled Judicial Business of the United States Courts shows the Ninth Circuit to be in last place in the critical and objective measures of justice. Between 1997 and 2001, pending appeals nationwide increased by only 1% - but in the Ninth Circuit pending appeals increased by 20%. The Ninth Circuit's opinions are often uncoordinated, inconsistent and incoherent - giving rise to greater uncertainty in law than in other circuits (exactly the opposite of what Kozinski-Thomas assert), with one consequence of that uncertainty being that appeals are being filed in the Ninth Circuit at a rate more than double the national average (after all, one doesn't know what the Ninth will do - just look at their zany behavior in the California recall burlesque). The number of appeals increased by 5% nationally in 2000, but in the Ninth Circuit appeals increased by 13%. The Ninth Circuit takes much longer to issue final decisions than do other circuits: an average of almost sixteen months in the Ninth where other circuits average slightly more than ten months. The Ninth Circuit comes in dead last in time taken deciding appeals - 53% slower than the other circuits. The Ninth Circuit accounts for 60% of all appeals pending in the nation's circuit courts for more than twelve months. All of these symptoms of systemic failure of the Ninth Circuit are ignored by Kozinski-Thomas with their airy "big isn't necessarily worse" dismissal.

Also ignored by Kozinski-Thomas is the fact, indisputable in good faith, that the Ninth Circuit has earned a national reputation as a frequently reversed court, and issues a lot of really bad law. From 1990 to 1996, the Supreme Court struck down 73% of the Ninth Circuit decisions it reviewed. The other circuits averaged 46%. Jeff Bleich, The Reversed Circuit: The Supreme Court versus the Ninth Circuit, 57 Oregon State Bar Bulletin 17 (May 1997) - in 1997, the Supreme Court reversed 27 out of 28 Ninth Circuit decisions. Between 1998 and 2001, the Supreme Court reviewed 103 Ninth Circuit cases but affirmed only 13 - unanimously reversing or vacating 26 of those Ninth Circuit decisions. The New York Times noted: "Over the last 20 years, the Court of Appeals for the Ninth Circuit has developed a reputation for being wrong more often than any other federal appeals court." Adam Liptak, Court that Ruled on Pledge often runs Afoul of Justices, N.Y. Times, July 1, 2002. The Liptak article notes that in referring to the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, Yale University law professor Akhil Amar bluntly said: "When you're not picking up the votes of anyone on the Court, something is screwy."

Professor Amar is right - and something is even screwier when two sitting judges from the Ninth Circuit write at length in the Wall Street Journal about the proposed division of their court without even mentioning its reputation for reversal and bad decisions. Kozinski-Thomas go on at length about minor costs (courthouses, files, etc) a division would impose, but those many crummy Ninth Circuit decisions impose costs on those 56 million people that utterly dwarf any of the costs Kozinski-Thomas fuss with. Breaking up the Ninth Circuit would limit the damage and costs any one of those decisions could inflict.

Perhaps Kozinski-Thomas implicitly mean to deny that their court makes much bad law. They would not be the first judges from their court to take that losing tact. Indeed, three former Chief Judges of the Ninth Circuit once denied that the Ninth Circuit has a poor track record in the Supreme Court, to which the Liptak article notes Justice Scalia replied: "There is no doubt that the Ninth Circuit has a singularly (and, I had thought, notoriously) poor record on appeal. That this is unknown to its chief judges may be yet another sign of an unmanageably oversized circuit."

Justice Scalia's comment leads to consideration to what may be the Ninth Circuit's worst size-related problem of all: judicial arrogance and willfullness. There is a widely observed pervasive arrogance about the Ninth Circuit judges - sensed even by many judges sitting on other circuits, who are generally far too diplomatic to speak of it publicly. The arrogance arises from the Ninth Circuit's sense that that circuit is so large and so distant geographically from the Supreme Court that it's members are entitled to operate with an independence of Supreme Court direction far exceeding what is claimed by the other circuits. The Supreme Court, however, does not agree.

But the Supreme Court can only profitably review a relatively few cases - and in those few cases it strives to give general direction to the lower courts. While most other circuits attempt to follow that direction, the Ninth Circuit tends often to dismiss most of the Supreme Court's direction-giving as non-controlling "dicta" and sail off in its own direction. Indeed, there are specific cases in which the Ninth Circuit has been reversed and given "direction" by the Supreme Court more than once in a single case - but in which the Ninth continued to set its own priorities (at one point, the Supreme Court actually had to forbid the Ninth Circuit from issuing further orders restricting a California execution without pre-approval by the Supreme Court). Such "multiple reversal" cases are even more troubling than the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, since the "multiple reversal" cases indicate a higher degree of arrogant willfullness. Dividing the Ninth Circuit into circuits of more modest dimension would go a long way towards making Ninth Circuit judges themselves more modest personally - and perhaps inducing them to actions more in line with what the Constitution, the Congress and the Supreme Court all expect of a lower court.

In the face of all the evidence that their court is indeed bloated, unwieldy and ill managed, Judges Kozinski and Thomas nevertheless have the weird arrogance to compare that trouble tribunal to some of the most successful, brilliantly organized social entities the world has ever seen: "[B]ig doesn't mean inefficient, as we know from the performance of giant corporations such as Microsoft and Wal-Mart." This, surely, is arrogant insensitivity to one's own failing of a biblical scale. By that insensitivity, and by ignoring clearly applicable counterarguments and the successful Fifth Circuit experience, and misrepresenting the history, criticisms and difficulties of their own court, Judges Kozinski and Thomas make a strong case that there is an urgent need for a big dose of modesty in the Ninth Circuit.

Right now, right here.