Splitting court may leave Latino judges out of mix
Oct. 13, 2006
Normally, a federal judge sitting on the 9th Circuit Court of Appeals does not
make an unsolicited phone call to a newspaper columnist.
But as Judge Carlos Bea, one of the 26 sitting judges on the circuit court said,
"These are not normal times."
Bea was concerned that Arizona would lack Latino representation if Congress
approved a split of the 9th Circuit Court of Appeals.The proposal to cut up the
9th Circuit, the last stop for cases before the U.S. Supreme Court, would put
Arizona into a new 12th Circuit, along with six other Western states, stretching
north to Alaska. The new 9th Circuit would contain California, Hawaii and the
There have been calls to split the court for more than a century, with the issue
bubbling up every few decades. There's always been some politics at play, some
industry or state wanting more favorable rulings, but the main reason has been a
pretty boring one: The court is too big.
The issue really heated up in 2002 after the 9th Circuit declared that forcing
public school kids to recite the Pledge of Allegiance was unconstitutional.
Social conservatives made the long-simmering issue their own. They said they
worried it was too big. But the real worry was that it is anti-religion.
Pat Robertson called one of the 9th Circuit judges "off the wall" while calling
for the court's fracture. "It's too big, has too many cases and that's one way
to, well, diminish the impact of some of these people," he said.
The bill, co-sponsored by Sen. Jon Kyl, was debated in September by the Senate
Judiciary Committee, the first time in modern history the bill has advanced that
far. A split seems closer than ever.
That worries Bea, who was nominated by President Bush in 2003 and has his office
in San Francisco.
A little-noticed issue, he says, is that Arizona would no longer have any Latino
judges on its new court. All six Latinos on the current court would probably end
up in the reconfigured 9th Circuit.
"The ethnicity of a judge does not color his judgment," Bea said. "But for the
same reason African-Americans like to see their lawyers succeed by being named
judges, Hispanics like to see Hispanic attorneys and judges as role models."
It does make sense that a Latino may bring a different perspective to the court,
just as a former teacher or ranch hand might. It's this non-legal reason that
may get Latinos and others to oppose the split.
The Hispanic National Bar Association opposes the split for this reason.
Same with Los Abogados, the Hispanic attorney group.
But the concern hasn't received much public notice. "That's why a judge is
calling you," Bea told me.
The lack of Latino representation may be enough for some people to oppose the
But more valid reasons are contained in a 1998 study of a split that was headed
by former Supreme Court Judge Byron White. It concluded there was no reason to
split up the court and proposed several ways to solve the "too big" concerns.
Fretting about the court not being Latino enough is just as valid as worrying
that it is not conservative enough. Both presume judges will rule based on
something other than the law.
"The 'good government' reasons are the one that ought to predominate," Bea said.
"Political considerations are just that. They interest voters, but don't
Reach Ruelas at (602) 444-8473 or email@example.com.