NORTHFIELD, N.H. — On the campaign trail here Thursday, former Pennsylvania Sen. Rick Santorum discussed abolishing the United States Court of Appeals for the Ninth Circuit and joked about shipping its judges off to Guam.
Conservatives frequently deride the Ninth Circuit, which has appellate jurisdiction over much of the West and Pacific territories like Guam, as a hotbed of liberal activism. It infamously tried to remove the phrase “under God” from the Pledge of Allegiance in a ruling later struck down by the Supreme Court, and critics note that a majority of the its 27 judges were appointed by Democratic presidents.
Santorum insists that the founding fathers intended the judiciary to be the “least consequential” branch of government, and said that he’d like to shutter the Ninth Circuit to prevent it from making controversial rulings.
“What the Congress creates, it can un-create,” he said. “So yes we can!”
The only question for Santorum is what to do with the judges on the Ninth Circuit bench, because the Constitution provides for their lifetime appointment.
Santorum joked that he had some ideas, such as creating a “court that puts them in Guam or something like that to serve out their life appointment, and appoint a whole bunch of new judges to do different service.” He also joked that he had other ideas he wouldn’t “share publicly.”
Kidding aside, Santorum said the most realistic approach to knee-capping the Ninth Circuit is dividing it.
“We could probably do something that was proposed actually a lot in the past, which is take the Ninth Circuit, which is by far the biggest circuit, and cut it in two, and take all the judges and stick them in California,” he said, apparently realizing that he would be unlikely to win the Golden State in a general election.
“And then take all the states that have had to suffer under the reign of terror of California judges and give them their own court so they can actually reflect the values of the people of the western states,” he continued. (RELATED: Full coverage of Rick Santorum)
Former House Speaker Newt Gingrich has also said he’d like to do away with the Ninth Circuit, but Santorum’s idea presents an actual working alternative.
Echoing a common complaint among conservative legal scholars, political scientist James Joyner argues that the Ninth Circuit is too big, and wrote last month that such breaking up the court would actually make a good deal of sense.
“Thirty years ago, the 5th Circuit was split into two with the creation of the 11th Circuit,” he wrote in the libertarian blog Outside The Beltway. “It would be pretty easy to create a new 12th Circuit and realign the existing 9th and 10th Circuits to create a more moderate balance.”
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