- The Washington Times - Tuesday, July 2, 2002

The Ninth Circuit Court of Appeals' decision striking down the Pledge of Allegiance as unconstitutional because it contains the phrase "under God," is an outrageous example of judicial activism and overreaching. It also underscores the importance of our third branch of government the courts to our personal rights and freedoms.
The Constitution was never intended to be hostile to God and religion. The purpose of the so-called Establishment Clause the part of the First Amendment that prohibits the government from establishing an official religion is to prohibit the government from discriminating against one religion by favoring another. That clause was certainly never intended to mandate that government ban religious sentiment and culture from all aspects of public and civic life.
Saying the words "one nation under God" does not establish a state religion or discriminate among religions. The Ninth Circuit completely failed to explain how its remarkable ruling could be squared with our government's long-established reference to God in other areas. The Supreme Court begins each session with the phrase "God save the United States and this Honorable Court." "God Bless America" is sung routinely at many government functions. And the body in which I am proud to serve, the U.S. Senate, not only elects a chaplain (the current chaplain, Lloyd John Ogilvie is the 61st), but also has begun every session for 207 years with a prayer.
The Newdow decision is a wild exaggeration of the Supreme Court's 1943 case West Virginia Board of Education vs. Barnette, which held that the government cannot force people to recite the pledge. It is also flatly inconsistent with a unanimous, decade-old ruling of the Seventh Circuit, Sherman vs. Community Consolidated School District, where the court held that "schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate." This is truly a remarkable feat of judicial activism, showing why the American people should demand that President Bush's nominees should no longer be delayed by the U.S. Senate.
The Newdow decision makes clear what a lot of legal scholars have known for some time: The Ninth Circuit is out of the mainstream of both American law and culture. The Supreme Court overturns Ninth Circuit opinions more frequently than any other court. In 1999-2000, the Supreme Court reversed nine of the 10 Ninth Circuit cases it considered. In 1998-99, it reversed 14 of the 18 Ninth Circuit cases it heard. In 1997-98, it reversed 13 out of 17 Ninth Circuit cases. And in 1996-97, in an extraordinary term, the Supreme Court reversed 27 of the 28 cases it considered from the Ninth Circuit. This is a court with activist judges who threaten religious rights as well as our constitutional government.
What's the problem? The lack of balance. Of the 23 active judges on that court, 17 were appointed by Democratic presidents (14 by President Clinton alone), and only six were appointed by Republicans.
Another problem with the Ninth Circuit is that five of its 28 seats are currently vacant. And all five of those empty seats have been designated as "judicial emergencies" by the Administrative Office of United States Courts. It's no wonder that the Ninth Circuit takes several months longer than other circuits to dispose of cases. The average time from filing to disposition is approximately 14 months.
Despite this situation, the Democrat-controlled Senate is steadfastly refusing to consider Mr. Bush's pick for the Ninth Circuit, Judge Carolyn Kuhl, who was nominated well over 400 days ago. Judge Kuhl is well-qualified for the job. She graduated cum laude from Princeton University and graduated from Duke Law School as a member of the Order of the Coif and the editorial board of the Duke Law Journal. She's currently a judge on the Superior Court of the State of California, where she has worked since 1995. Before that, Judge Kuhl was a partner at one of the most respected and influential law firms in California.
Why is Judge Kuhl's nomination languishing? The Senate's Democratic leadership is undertaking a systematic effort to obstruct Mr. Bush's judicial nominees to the circuit courts. Look at the history: The last three presidents, Ronald Reagan, George Bush and Bill Clinton, all enjoyed a 100 percent confirmation rate on their first 11 circuit court nominees. In stark contrast, eight of Mr. Bush's first 11 nominations are still pending without a hearing for more than one whole year.
A similar story applies to a president's first 100 nominees. Presidents Reagan, Bush and Clinton got 97, 95 and 97, respectively, of their first 100 judicial nominations confirmed. But this Senate has confirmed only 57 of George W. Bush's first 100 nominees. Some Senate Democrats try to justify wholesale delays as payback for the past. That is bunk. During Mr. Clinton's eight years in office, the Senate confirmed 377 judges essentially the same (five fewer) as for Mr. Reagan (382). This is an unassailable record of non-partisan fairness, especially when you consider that Mr. Reagan had six years of a Senate controlled by his own party, while Mr. Clinton had only two.
If there is a silver lining to the Ninth Circuit's decision, it is this: The fact that a federal court could make such a decision highlights why the Senate must act quickly to consider and confirm the scores of Mr. Bush's judicial nominees who are languishing without action in the Democrat-controlled Senate Judiciary Committee. Also, I hope the Newdow decision will lead to an eloquent opinion from the Supreme Court, next term, reversing this decision and explaining why the Pledge of Allegiance should be protected, not pilloried, by our Constitution and laws.

Sen. Orrin G. Hatch of Utah is the ranking Republican on the Senate Judiciary Committee.

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