Ninth Circuit of Appeals

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The Senate Judiciary Committee is currently considering a bill that would split the Ninth Circuit Court of Appeals, putting Arizona into a new Twelfth Circuit, along with six other Western states. If Congress approved the split, this would put Arizona in a circuit that would lack Latino representation Join José Cárdenas as HORIZONTE takes a look at the proposal.

Good evening. I'm Jose Cardenas. Welcome to Horizonte. Congress is debating legislation that would submitted up the nation's largest federal appellate court. The split could leave Arizona without Hispanic judges on the new circuit. We will talk about the debate surrounding this issue. And in Horizonte, sounds of cultura, acclaimed author Luis Urrea talks about his book. That's next on Horizonte.

Jose Cardenas:
For more than a century there's been an ongoing debate to split up the ninth U.S. court of appeals. Senate bill 1845 would create a 12th circuit for Arizona and nine other states which some say could leave the circuit without Hispanic judges on the bench the currently the six Latino judges on the court would end up in the reconfigured ninth circuit. Here to talk about this issue is associate clinical professor Amy Langenfeld from the ASU Sandra day O'Connor college of law and Arizona Republic columnist Richard ruelas. Thank you both for joining us on Horizonte tonight. Professor, talk to us about the ninth circuit, its composition and what it looks like right now.

Amy Langenfeld:
Right now, by any measure, the ninth circuit court of appeals is the largest in the United States in terms of population, in terms of its caseload, and in terms of its geographic territory. So we have nine states plus two territories, about 16,000 cases on appeal last year, and about 58 million people who are within that jurisdiction. And if the intermediary step between the district court and the United States Supreme Court.

Jose Cardenas:
As noted in the introductory comments, the debate has been going on for over 100 years. I assume the reasons have changed. It couldn't have been the population, for example, back 100 years ago. What is it now?

Amy Langenfeld:
Well, right now, there are many arguments being made on an efficiency basis. Many of the proponents

express dismay at how long the ninth circuit perhaps takes to resolve cases. There are others opposing the proposed split who

claim that it would clearly is going on here is political revenge against what is perceived to be too liberal of a court. Alex Kasanki

says you have to believe in the tooth fare to think this is not political.

Jose Cardenas:
It comes up every 10 years or so.

Amy Langenfeld:
Yes.

Jose Cardenas:
Richard, the most current proponents, one of the sponsor is our senator Kyl. Item us about the bill.

Richard Ruelas:
It would essentially split us into a 12th circuit and ninth circuit. The 12th circuit would have California , Alaska , and Hawaii --

Jose Cardenas:
California would be the ninth circuit and then everybody else would be --

Richard Ruelas:
We are the new, brand-new 12th circuit and its everything else left over. Everything not California on the mainland from Washington all the way down to Arizona . That's the appropriate. And I think that as time has gone on, it's mainly been kind of a legal inside legal law school argument about how big the circuit should be, how efficient they are. It was after 2002, in the ninth circuit's pledge of allegiance ruling saying you can't compel kids to speak the allegiance in class because it says "under god," and that really stoked up social conservatives. Pat Robertson on the Christian broadcast network, he wasn't so concerned about the efficiency of the ninth circuit until they came after "under god." now his Christian broadcast network did a recent profile of some of the ninth circuit judges and you see a lot of essential conservatives getting behind this move to split it up because of, if it's perception is being the loon knee left and that it's based in san Francisco, as if somehow that informs its decisions.

Richard Ruelas:
They talk a lot about how it's the most overturned court and they will cite decisions like pledge of allegiance and others they find to cement this idea that this court is out of control. That is produces liberal-based decisions and it needs to be split up so that Arizona and the other states sort of in the red state west are not under the thumb of this loon knee court.

Jose Cardenas:
Amy, how would this deal with that issue? Assuming it's a legitimate concern and I want to come back to that point, how would this deal with it? You would still have a ninth circuit based in San Francisco .

Amy Langenfeld:
Right. There are some conservatives or folks who are characterized as conservatives who oppose the proposed split for that reason, that it couldn't help, taking that criticism at face value. How would isolating essentially California and Hawaii into one circuit that would be super liberal, possibly fix this perceived problem of a too liberal court? And there's some southern California attorneys who actually recently got together, they have been characterized as conservative and hired Washington lobbyists to block this from proceeding any farther.

Jose Cardenas:
To the extent the rocky mountain states that are currently members of the ninth circuit are view as more conservative it would make the ninth circuit the new ninth circuit more liberal.

Amy Langenfeld:
Exactly. The super liberal problem. Right.

Jose Cardenas:
You wrote a column about this that that is that the 12th circuit would have no Hispanic judges. Tell us about that and some of the Hispanic judges you have talked to about that issue.

Richard Ruelas:
The only one I have talked to is judge beya who call immediate up one day and I was very surprised to pick up my phone and hear the voice of a ninth circuit judge telling me about this problem. I thought, well, maybe it is worth looking into if it's enough for a judge who -- think don't normally seek the spotlight for a judge too pick up the phone and call meant that at least it meant something to him so he did mention that under the way the split would be, under this law, Arizona and the rest of the new 12th circuit would have no Hispanic judges. Just because of the geography of the split where they are based now as he put it to me I ain't going anywhere. He's not moving out of California . So he, we would be left here with no Latino judges in the new 12th circuit. And oddly enough, even though we have a very low African American population, the African American judges that would be three in the new 12th circuit and none in the ninth circuit, in the new ninth circuit. He calls that sort of an issue of, well, is this fair under this split that we would have not, we wouldn't have a racial representation that would reflect the makeup of the guest.

Jose Cardenas:
Were you surprised it was judge Beya? He is a bush appointee, as I understand.

Richard Ruelas:
The name didn't ring a bell with me. After I talked to him and then I looked up his resume, a little bit. And we discussed sort of that idea of the loon knee left. He was supposed to be one of the good ones. Right? Because George w. Bush appoints him. He is supposed to be one of the good judges the president said he wanted to get on there so he's raising this issue. So again, it shows as a predictor, the fact that George W. Bush appoints judges is being held up by some religious conservatives and social conservatives saying, look, we want our guy to stack the court. We want George w. To stack the court, people who are going to vote our way. That's not a really good predictor so here's his guy raising this issue. Dozen want it split. He is raising the Latino issue. And it also would tell me that race might not be the best predictor either. It helps in the diversity standpoint, helps to inform decisions. But it's not a predictor that someone is going to go left or right based on who appointed them, or what their race is.

Jose Cardenas:
Why should we care? Why should we care if justice is supposed to be color blind why does it make a difference if the new circuit would have no Latino judges?

Richard Ruelas:
That's just cities is supposed to be color blind. It shouldn't matter. What does definitely matter is perception of people living here, Latinos living here thinking, we don't have Latino judges on court. We can't get justice. That's probably not the case. But it definitely plays into the political angle so it might make our elected representatives worry about that issue. But also you are right, justice is supposed to be blind so justice can't look ideologically and say the ninth circuit is left so we want to split it up and sort of jerry manned area judicial district that's going to give us the kind of judicial decisions we think we want.

Jose Cardenas:
Amy, is this issue which has been raised by neighbor of groups including the local Hispanic bar association, a legitimate issue?

Amy Langenfeld:
A legitimate issue there would be no Hispanic representation? Certainly. It's, there are any number of reasons to oppose this submitted and a remarkably bipartisan group of people has opposed this split on many different grounds. But speaking as a professor, I think I would want my students not to have to look very far to see that the ninth circuit sitting on the ninth circuit is perhaps attainable for them, clerking for a Hispanic judge or becoming a Hispanic Latino judge is not something they have to travel elsewhere to do.

Richard Ruelas:
We think there are issues that will probably, given what's going to happen in the election here soon, issues they might have to face. Issues of voter i.d., issues of English as an official language, issues that might be well served by a Latino who might have grown up in a neighborhood where English might not have been the first language or an impoverished judge who might have grown up in a neighborhood where i.d.'s aren't easy to come by. Some of these issues, immigration issues, just better informed by having a diverse court that might reflect the racial, ethnic backgrounds. And the life choices inside this area. It was great Sandra day O'Connor was on the court not only because she was a woman but she was also an Arizonan and a rancher. All her life experiences helped inform that, those decisions she made on the court. And to that extent, I think it would hurt to not have Latino judges on the court of appeals that is the last stop before the Supreme Court for us hire in Arizona .

Jose Cardenas:
Richard, you indicated the elections may have an impact. What about a more basic level. It's the democrats regain control of the senate is this dead? At least until that changes?

Richard Ruelas:
Yeah. I think if the democrats regain control of the senate this is dead because there really isn't a lot of judicial matters at stake here. This issue was started in 1998 by Byron white. Who determined, ok, it is kind of a big circuit but there's really no problems and any issues of delays or expediency we can deal with in other ways. We don't need to split up this circuit. So if you take the politics out of it and the ideologies out of it, there's no judicial problem here. So if the social conservatives, their voice is less in the elections this problem magically goes away. Amy, how legitimate that are the criticisms starting with the oft-cited fact it's the most reversed circuit in the country. What is it true? And what's the relevance of that?

Amy Langenfeld:
Well, talking about what the supreme court does to ninth circuit decisions, there is a scholar who says that the ninth circuit is less patient with the ninth circuit. That when it reverses the ninth circuit it tends to do so unanimously.

Jose Cardenas:
The Supreme Court.

Amy Langenfeld:
When the Supreme Court reverses the ninth circuit. I think Justice Scalia told the white commission that as part of their study. But their reversal rate has declined since 2001 according to other scholars and furthermore only about .3% of their ninth circuit's decisions even make it to the Supreme Court. The ninth circuit has no control over what lit gants choose to pursue to that level and then also what the court chooses to accept. See reversal is not, reversal rates even if they were remarkably higher for the ninth circuit that's not a good reason to make such an extreme change in the structure. It's a transient matter to disagree about as the white commission said in its report.

Richard Ruelas:
I would think with, again, sort of to illustrate the politics at the root of this if the pledge of allegiance decision out of a parent in Nantucket or Rhode island trying to, and that circuit had made, I don't know a know -- if the first circuit had made the pledge of allegiance decision, pat Roberts would say that is too small. We need consolidate these two things together. This truly is not about judicial efficiency but politics. Again, I don't think pat Robertson worse about how long it takes an appellate case to move forward in the system.

Jose Cardenas:
Amy, while you do have judges like judge bay and I think the majority of judges in the ninth circuit saying that they are opposed to a split do you have some who say the circumstance is indeed too big. How legitimate a consideration is that?

Amy Langenfeld:
Well, big by what measure? I Halloween, what they often bring up am frustration at perhaps a collegiality. They don't see the judges often enough, 28 judges doing a full court on banque review is not possible. It's hard to measure. The statistics how long it takes a case to make its way through the court really don't bear up under scrutiny. Once it goes into judge's chambers ninth circuit is as fast as the national average and the quality of their opinions is certainly comparable to everything else going on in the rest of the country. So the three judge who is have gone on record the three ninth circumstances judges who have gone on record supporting in split have felt that way for a long time but I don't think going through with the split boo fix those problems even if they were 42. There will still be long travel distances. The new ninth circuit would still have a high are ratio of cases per judge than the 12th and there would be that disparity and the real problem is often immigration-related appeals.

Jose Cardenas:
Well, and the new 12th circuit would include Alaska .

Amy Langenfeld:
Correct.

Jose Cardenas:
So you would still have those geographic problems. But on the collegiality issues don't the proponents of the split also argue that it makes it more difficult for the ninth circuit to speak with one voice? Because it's so big, you have these disparate rulings coming out. That is a legitimate consideration?

Amy Langenfeld:
The well, the ninth circuit has always been an innovator in fixing these problems so unlike other circuits they are trying to get 15-judge panels rather than 11 o-judge panels to review decisions. When there appears to be a disparities between two decisions within the same circuit. And there is a measure to have the full court sit and look over decisions but that's never been invoked since 1980.

Richard Ruelas:
Again, when the problem was efficiency, judicial efficiency, there's been a long simmering issue senator Kyl began a plan that would have split the circuit and made Arizona and California part of a new reconfigured district. Again, thinking the circuit is too big we need these efficient see issues addressed. That's gone because it's no longer judicial efficient see. It's not the size of the circuit. It's the decisions and it's the desire to split everything that's not California off. And to let California go off and let their judges be loon knee for Californians but we want to have our conservative judges here in Arizona .

Jose Cardenas:
And on that note we are going to have to wrap up this interview, Richard ruelas, Arizona republic, thank you for joining us. Amy Langenfeld.

Richard Ruelas:
Def viewers can pick up the ply.

Jose Cardenas:
Recently acclaimed author Luis Urrea also was in the valley to talk about his book, the try story," that items the attempt to cross the border into Arizona through a stretch of desert known as the devil's highway. The it looks like immigration issues and the deaths of the Yuma 14. Larry Lemmons talked to Luis Urrea about his experience writing the Pulitzer Prize finalist book.

Larry Lemmons :
Let's start with your personal background. You straddle the border your entire life, really. You were born in Tijuana to an American mother and a Mexican father.

Luis Urrea:
Right.

Larry Lemmons :
How is that influenced you in your work?

Luis Urrea:
Well, you know, it's put me in a strange position, you know. I used to say when my first books came out I felt I was bisected personally by the border, you know. My dad was really Mexican even though he was blond and blue eyed but he was very, very chauvinistic about Mexico and my mom was a political conservative from new York, red cross woman, had been in world war ii, had seen the death camp, helped liberate Buchenwald so there was this weird camp between mexican-ness and american-ness in my household and I used to always say when I was originally touring that I had a barbed wire fence going down the middle of my heart which was a good metaphor. You know, but I found out real quickly that, and one of the themes I put in all my books now is that people in Mexico are as uneducated and unaware of what goes on in the border as people in the United States . We assume there's sort of a national conspiracy in Mexico , you know, to get to the better but people don't know. They know as little out of it in deep Mexico as they do in Chicago . I went to Mexico City getting interviewed and I told the reporter my line. I said, you know, I have a barbed wire fence bisecting my heart. She said, that's good. When the newspaper came out she said, she misquoted me and said if you cut Luis urrea's heart open you would find a border patrol truck idling in his ribs. I thought, what the heck does that mean? [laughter] I realized that the metaphor which I thought would be exactly right for a Mexican, she had no idea what I was talking about.

Larry Lemmons :
Well, let's talk about the devil's highway. It was nominated in 2001 for Pulitzer. It tells the story of 26 people who were trying to cross the border, only 12 survived.

Luis Urrea:
Yeah.

Larry Lemmons :
How did you choose that story?

Luis Urrea:
It chose me, you know. I had worked as a missionary in Mexico for a while so my first books were about real poverty. So hoping people would understand what drives people north. And unfortunately, that hasn't changed. In fact, it's gotten worse since my first books. And then I did a memoir about my family story. And as you know, I teach in Chicago so I was in my office one day and little brown contacted me. And I thought, this is kind of weird because this doesn't happen to writers. You know, the publisher contacts them. But this story had been pre-9/11, this was just on the cusp, May 2001, when this event happened, and it was the largest single death event. It was certainly the largest rescue effort in history. The border patrol gave it all up to try to save these people. And nobody knew how many guys. They were known as the Yuma 14. The 14 who died. I call them the Yuma 26 because they know 26 people were there because 12 survived. But it could be upwards of 30. Nobody really knows because some of the men vanished. One of the initial reports was that there were 70 guys lost which is physically possible but at least 26. So they asked me can you write knit and knowing what you know about the border can you use this story to insert realities about the Arizona desert and the crossing and the politics so that Americans can learn and understand what's happening in the million yew?

Larry lemmons:
The devil's highway, what is it about that particular area of the border that makes it such a hostile environment?

Luis Urrea:
Well, it's extremely harsh. I mean, you know, we know, we know the Arizona desert, you know. Here we are. But it's the old path running east to west that kind of parallels the Mexican border and it goes from southeast of Tucson all the way to around Yuma, and it's some of the most god forbidden territory in Arizona. Very little water. Very high temperatures. Very rugged terrain with a very dark history, not only of violence but kind of weird sort of occult stuff, too. Just a very, very scary region. In the middle of it is the Eisenhower bombing range, the Barry Goldwater bombing range out in the desert. You don't want to go there unprepared. No question. And these folks, the guys in my book, they came from Vera Cruz. She had never seen a desert. Most of them had never ridden an variety. None of them had ever taken a plane. And they walked into this thing and their smuggler got them lost and the night they got lost a heat wave began and they were completely unprepared. Some of the guys had taken Pepsi thinking that would get them through the walk. So they didn't have any water. And as the heat literally cooks you from within, you know, there's a section of the book that's particularly ghastly, that talks about the stages of this heat death but it's an awful, painful, slow agonizing, lonely death. And so they paid the you would price. And even, you know, it's so harsh that a lot of guys who survived were here in phoenix, they are meat cutters. They live west side. You know, a lot of them have kidney damage from what they went through. Experiencing it. So you know, it's a very harsh passage.

Larry Lemmons :
After did you the research, what did you take away from this entire issue?

Luis Urrea:
Well, you know, I have got to confess to you at the end of all of this, I was overwhelmed with hopelessness and despair. And I thought, there's just no way this thing's ever going to be settled and there's no way to bring any peace to it. But I realize I think the ultimate message to me about this whole process was it's not about symbols. You know, it's not about invasions. It's not about good guys and bad guys even, it's about this group of human beings, all of which, whether they are the illegal crossers, the coyotes and the smuggler who is profit off them, or the border patrol agents who have to hunt them, they're all these groups of complex human beings out in an alien territory. And you know, I started analyzing, began a process at end of the book which I wish I knew then what I know now because since the book came out and got really visible I hear from people constantly. Lots of border patrol guys, which is really cool. Every once in a while I think one of the smuggler gang sisters shows up at a reading and & that's really uncomfortable. I will get a really angry Mexican dude in the back glaring at me and politicians, mayors, you know, senators, and so I have accumulated a lot of information. And one thing I have learned in the process of this is that there is, in fact, I think hope, hope for change. There's a pattern big are than most Americans I think realize and what's going on. But I also understood some of the complicity in the Mexican government and some of the pressure. We could put on the Mexican government to have something to do with it. For me personally, I think the most amazing thing was getting to know the border patrol agents. Not knowing them, having seen them my whole life, you know, and having some certain opinions about that. And finding out what kind of human beings those guys were.

Larry Lemmons :
You were been lauded, in fact, of being very even handed about the border patrol. Calling them men of compassion. They were obviously worried about these people who were in the desert.

Luis Urrea:
My dad was a retired federal judicial police officer from Mexico . So in some ways I was raised by a cop. I didn't realize it. Because he's no longer a police officer. When I came around. But he was a police officer. And the more you know police officers, whether they are feds or local cops or statees, there's a certain code of behavior, a certain comportment and you know, you don't always know there's a level of compassion and caring but, of course, we are human beings. And when you are out there in the middle of nowhere, in the wasteland with an agent and he is telling you heart to heart, as a human being, how he feels about what he does, you can't help but feel compelled by that. And closer to that human being. And you know, you were asking earlier what was one of the, what were some of the benefits and gifts of this thing to me. One of them was to find out that we, you know, we bleeding heart liberals are just as prejudiced as the people we put down for being prejudiced red neck. Right? I walked in with all of my prejudice intact. Border patrol, bad guys, that's it. Write them off. And, you know, it was kinds of god's shock to me, a little joke of the universe to say, no, wait a minute, look again. This is going to be a really bad book if you don't understand.

Jose Cardenas:
That's Horizonte for tonight. I'm Jose Cárdenas. For everyone here at Horizonte, have a good evening.

Amy Langenfeld: ASU Sandra Day O'Connor College of Law ;

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