Study Will Delay Bid to Split Up 9th Circuit Court

The beleaguered U.S. 9th Circuit Court of Appeals has won at least a temporary reprieve from efforts to break it up.

The House and Senate have agreed to a one-year study to examine whether the boundaries of the regional appellate courts should be changed.

The compromise, agreed to earlier this week, halts a move by Republican senators from the Northwest to split their states from the San Francisco-based appeals court that they allege is dominated by liberal California judges.

“This is a reasonable compromise,” said Chief Judge Proctor Hug Jr. of Reno, who fought against the proposed breakup of the nine-state Western regional court.

Normally, a debate over the size of an appeals court would turn on matters of caseloads and travel times for the judges. Since the 9th Circuit is by far the nation’s largest, its critics insist that it is too big and needs to be divided in two.

But the fight over its fate also has taken on a distinctly partisan cast. In June, the Senate, voting along party lines, agreed to a Republican-sponsored measure that would have created a new 12th Circuit Court of Appeals with offices in Seattle and Phoenix. It would have included the states of Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington.

Only California and Nevada would have remained in the century-old 9th Circuit. Republicans complained that the San Francisco-based court is “out of step” with the U.S. Supreme Court and is too liberal on issues such as the environment, Native American rights, crime and the death penalty.

But California lawmakers strongly opposed the split-up. They argued that it is better to preserve a single regional court and a uniform body of law for the Western region.

Democratic Sens. Dianne Feinstein and Barbara Boxer spoke on the Senate floor in favor of a study of the entire federal court structure. In October, California’s entire House delegation endorsed the study option, saying that a “neutral and unbiased panel” should examine the dispute and recommend whether to redraw the boundaries of the appeals courts.

The Senate approved the study as part of a huge spending bill Monday. The House is expected to do so today.

Still, the study may not be as neutral and unbiased as some Californians wish.

Chief Justice William H. Rehnquist, who has battled with the liberal-leaning 9th Circuit for 25 years, will choose the five members of the study panel.

“I’m sure the chief justice will appoint members who are anxious to do a good job and to make a reasonable, balanced report,” said Hug, the 9th Circuit’s chief judge.

The compromise plan also directs the panel to look at the structure of the federal courts “with particular reference to the 9th Circuit.” This suggests that the panel can avoid rethinking the entire appellate court system and focus on the unusually large Western circuit.

The Senate has yet to make progress in remedying the 9th Circuit’s most pressing problem: a lack of judges. Though it is supposed to have 28 judges, only 18 positions are filled now.

One of President Clinton’s nominees, U.S. District Judge James Ware of San Jose, looked to be headed for a quick confirmation to fill one vacancy. But he withdrew last week after admitting that he had lied about his connection to the 1963 shooting death of a young boy by white racists in Alabama. Ware had said that the shooting victim was his brother and that he had witnessed the killing; neither was true.