Gerrymandering a Court

Is the 9th Circuit Court of Appeals too big? Or is it, as some contend, simply too liberal? Many in Congress think they know the answer and apparently don’t want an impartial examination of the facts to get in the way.

The 9th Circuit, encompassing California and eight other western states, is home to many of our most distinguished federal judges. Yet their decisions in recent years, particularly those supporting environmental regulations, affirmative action and assisted suicide, have angered members of Congress from the northwestern and mountain states who consider the court to be far left of center.

For several years the goal of these lawmakers has been to break up the 9th, political shorthand for isolating California and the liberal judges who sit here. Or as Sen. Slade Gorton (R-Wash.) put it, appointing more judges with “a firsthand knowledge of the Northwest.” But the public arguments for the breakup are shrouded in the neutral language of workload and productivity. They contend that the 9th Circuit has too many cases for one court to handle and that its judges are working too slowly. Breakup, they insist, will solve the problem by adding new judges, reducing delays and allowing judges to develop the more collegial and personal relationships that only regular contact can bring.

A new break-up scheme could be taken up by a congressional conference committee late this week. There are compelling reasons to reject it. The start-up costs to taxpayers of splitting the circuit--building new courthouses, hiring staff, buying new libraries and computers--would top $50 million. Congress could save this expense and clear away the court’s backlog of cases by simply filling the record 10 judicial vacancies on the existing 28-member court.

The breakup measure passed the Senate as a rider on the Justice Department appropriations bill. Under the plan, California and Nevada would constitute the 9th Circuit and the seven other states would become a new 12th Circuit. The shrunken 9th Circuit would handle 65% of the former 9th Circuit’s caseload but would have even fewer judges than now.

Geographically, the split would make Arizona part of the new circuit but leave it separated from its Northwest counterparts, undercutting the nominal rationale of the breakup.

The legislation is opposed by the American Bar Assn., the official bar associations of California, Arizona, Hawaii, Idaho and Montana, the majority of judges on the 9th Circuit and California Gov. Pete Wilson.

A far more rational approach has been put forth by California’s Sen. Dianne Feinstein. She has called for a study of all the circuits, their caseloads and manpower needs. The 9th is certainly the largest of the 11 federal circuits but by no means the only one whose caseload and staff are unbalanced. A comprehensive, independent study might suggest other options. Feinstein’s proposal--rather than rank judicial gerrymandering--ought to be the focus of Congress’ attention this month.