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Featured Series: Redistrict the U.S. Court of Appeals (Jumboism)

November 17th, 2015
Featured Series:  Redistrict the U.S. Court of Appeals (Jumboism)

Between 1789 (the organizational Judiciary Act) and 1866, Congress “realigned” the federal circuits thirteen (13) times.  To accommodate national growth, the early federal circuits were reconfigured every six years, on average.  Far more than today.  We realize this is a very rough comparison, but relatively speaking, the U.S. Circuits today are immobile.

The California gold rush and the Oregon Trail in the late 1840s and 1850s sparked a sharp increase in growth on the Pacific seaboard.  Thus, by 1861 (with a total U.S. population of only 31.4 million persons) President Lincoln warned in his Inaugural Address that “the country has outgrown our present judicial system.”

If “outgrowing our judicial system” was true in 1861, it is evermore so today with an official population well in excess of 310 million persons.  By way of example, the median population center clearly demonstrates a shift west by southwest has occurred over the past century.  It is continuing, and at a rapid pace.

As shown in the map figure, for 60 years (from 1890 to 1950) the median population center was more or less static; it oscillated in small circuitous steps between adjacent Darke County, Ohio and Randolph County, Indiana.  Beginning in 1970, however, an enormous surge of the median center toward the Southwest occurred.  That trend has continued, strongly so.




Not for nothing, the early 1970s also coincided with serious Congressional calls to reform of the U.S. Circuit Courts.  The existing Circuits had (have) become anachronisms.  They did (do) not reflect the existing U.S. population…anywhere.  This has been long known, and has oft been admitted.  But solutions (circuit “realignments”) have been half measures at best.

For example, officially established in October 1972, the Hruska Commission (Commission on the Revision of the Federal Appellate Court System of the United States) was charged with making:  “recommendations for changes in the geographical boundaries of the circuits as may be most appropriate for the expeditious and effective disposition of judicial business.”

After two years of hearings and public meetings which spanned the continent, as a bare minimum, the Hruska Commission recommended redistricting of the 9th and the 5th U.S. Circuits.  In the words of the commission’s report:  “Jumboism has no place in the Federal Court Appellate System.” But that Jumboism has remained.  In fact, it has swollen.

As an historical aside, the Commission Chairman, Republican Senator Roman Hruska of Nebraska, warrants our respects.  Sen. Hruska was the chief conservative voice in Congress in the 1960s and 1970s; he was a strong supporter of gun rights, a steadfast opponent of abortion, a critic of pornography and graphic violence in films and broadcasts, and he was responsible for restoring the federal death penalty for certain crimes.

Unfortunately, only part of the Hruska Commission recommendations reported in 1975 were enacted.  The old 5th Circuit would be redistricted under President Carter.  Texas, Louisiana and Mississippi remained in the new 5th U.S. Circuit.  And the 11th U.S. Circuit was created to include Alabama, Florida and Georgia…the 11th Circuit today is dismissively called “Jimmy Carter’s Circuit”.  That said, the realignment of the 5th U.S. circuit was necessary.

But the Hruska Commission recommendations for redistricting the “jumbo” 9th U.S. Circuit went nowhere…even though these Commission recommendations were truly bipartisan in Congress, and recommended by judges and the American Bar Association.  Republican Sen. Hruska noted:  “We are not all of one mind on all issues, but we share the conviction that the situation in the Fifth and Ninth Circuits should not be allowed to continue.”

So, what happened to prevent the bipartisan call to redistrict of the 9th U.S. Circuit?

Simply put—politics.  Power plays.  In June 2003, during the most recent round of Circuit redistricting calls–which were initiated by Alaska and Idaho–Gregory Fisher, writing for the Alaska Bar Association, admits:

“The California delegation will have a significant role in deciding whether to split the Ninth Circuit, and unless and until California’s senators and representatives perceive a need to split the circuit, it will probably be difficult to get any such measure enacted.”

Thus, the stranglehold by the Far Left upon the U.S. judicial system.  They will not easily relinquish it.

Our task is to convince them to do so…under sustained and mounting public pressure.  We will next take a look at some pressure points on that grip.

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