And make sure Alex Kozinski ends up on our side.

Point taken.

It’s highly misleading because so many people are ignorant of the history of the pledge, often believing that the “under God” has always been there — it has not; further, the wording would seem to indicate that the ninth ruled that way in a vacuum — that they simply, out of nowhere, ruled that “under God” was necessarily unconsitutional, never mind Congress’ involvement.

Alcibiades:

That’s a bit of a dated understanding, and one that not even many of the framers (e.g., Madison, Jefferson) shared. It’s a long-since decided precedent that certain government actions have the effect of establishing a preferred religion, even if they don’t establish an official state religion per se.

In any event, the greater point of the article is not whether Newdow was correctly or incorrectly decided, but rather, whether it enraged conservatives, which it clearly did.

It repeatedly has made rulings at which conservatives bristle, including the 2002 decision that reciting the Pledge of Allegiance in public schools is unconstitutional because of the phrase “under God.”

This is highly misleading. For one, mandatory recitation of the Pledge of Allegiance was rendered unconstitutional in 1943, before the “under God” stuff was even inserted. But what the court ruled was that the 1954 Act that inserted the phrase “under God” was unconsitituional; the unconstitutionality of the recitation policy merely follows from that:
In conclusion, we hold that (1) the 1954 Act adding the words “under God” to the Pledge, and (2) EGUSD’s policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause.

(from Newdow v. United States, emphasis mine).

You may disagree with #2, but #1 seems fairly straightforward to me.

where even “en banc” decisions aren’t

I can say that again!

I also don’t know how a Ninth Circuit split would affect things ideologically. As the Stewart case indicates, they’re not all left-wing ideologues now. The author of that case, Alex Kozinski, has been the darling of conservatives for years, and many in the blogosphere were calling on President Bush to nominate him rather than Samuel Alito to the Supreme Court. We also had a well-written unanimous opinion upholding Prop 209, which rid California of affirmative action in 1996, and plenty of other good decisions by good, solid judges in the Ninth Circuit who do not constitute a majority but are a big enough minority to make a significant dent. We’ve also got our share of fruitcake judges, of course, so court appeals here are often a crapshoot, where the entire case rides on which 2 of 3 randomly assigned judges end up on the case.

Most of the fruitcakes are Carter appointees, so I’m not sure we’d remain the Fruitcake Circuit too much longer if left to our own devices. I’m also not sure that splitting us up would help in the short run; presuamably, the new Twelfth Circuit would inherit all the same precedents that currently make the Ninth (in-)famous. But I am sure that as long as the circuit remains as large as it is, it will remain he clunky circuit, where even “en banc” decisions aren’t, and that alone is reason enough to split it up.

Exactly, they also are the most overturned court in the US if i remember correctly.

Perhaps, from my perspective, the more radical thing to do would be that while we split it up we also realign the circuit courts and the regional branches of all the federal agencies – so that Region 4 of EPA, ATF, FWS, FS, etc is located in the 4th Circuit and that Region 9 is located in the 9th Circuit, etc etc etc.

As its set up right now, the 9th Circuit – as can other circuits – can exert its influence over a disproportionate share of the US. It usually works out that it is the 9th though, as government agencies regulated based on the path of least resistance and therefor – if the 9th Circuit can have any input in regional policies, they regulate based on 9th circuit precendent.