Splitting court may leave Latino judges out of mix
Republic columnist
Oct. 13, 2006
Richard Ruelas

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 Pacific territories.

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 split.

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 interest judges."



Reach Ruelas at (602) 444-8473 or richard.ruelas@arizonarepublic.com.