Debate Rises Over Proposal to Break Up Appeals Court

The judges of the U.S. 9th Circuit Court of Appeals have called it “idiotic,” “silly” and “very odd.”

No, they were not referring to their usual nemesis, the U.S. Supreme Court. Rather, the target of their complaints was a plan by Senate Republicans to break up the West Coast’s large and liberal-leaning judicial district.

In July, shortly after the 9th Circuit suffered a rapid-fire round of reversals in the high court, the Republicans pushed through the Senate a measure that would remove several Western states from the California-dominated appeals court.

Under this plan, which is pending in the House, the U.S. 12th Circuit Court of Appeals would be created to hear federal cases from a seven-state region stretching from Arizona to Alaska and Hawaii. Its judges would sit in Seattle or Phoenix.

Only California and Nevada would remain in the century-old 9th Circuit, which is based in San Francisco.

The House, whose leaders have favored buying time by studying the way the circuit courts are working, is scheduled to act on the bill this week.

Those pushing for the breakup usually cite good-government reasons, such as greater efficiency and collegiality among the judges.

The 9th Circuit is “huge and unwieldy,” says Sen. Slade Gorton (R-Wash.). By far the largest of the nation’s regional appellate courts, the 9th Circuit covers an area with 50 million people, or nearly one in five Americans.

Typically, the 11 regional courts, which hear appeals of rulings in U.S. district courts, have 11 to 16 judges and meet regularly at their main courthouse. The 9th Circuit, however, has 28 judges who regularly hear arguments not only in San Francisco, but in Seattle, Portland, Pasadena and San Diego.

Despite the 9th Circuit’s size, however, scholars who study the federal courts say it decides cases with roughly the same dispatch as the smaller circuit courts.

“The size of the circuit is not correlated with the speed of the dispositions,” says University of Montana professor Carl Tobias. “There is a national problem of heavy caseloads [in the appellate courts], but it is certainly not unique to the 9th Circuit.”

If the Senate Republicans truly seek to speed up the decisions coming from the 9th Circuit, says its chief judge, Procter Hug Jr. of Reno, they could best do so by accelerating their response to vacancies on the court. Though the 9th Circuit has 28 authorized judgeships, only 18 seats are filled with active judges.

Many of the senators who are accusing the 9th Circuit of being slow to make decisions have urged the Senate to go slow on approving President Clinton’s judicial nominees throughout the federal judiciary.

“Shortly after I came on the court in 1978, our authorized judges were 23 to handle 3,100 cases” a year, Hug said. “Today, we have 18 active judges to handle 8,600 cases.”

To most observers, it is apparent that the drive to split the 9th Circuit is fueled by a dislike for its decisions.

Sen. Conrad R. Burns (R-Mont.) has admitted as much. “In my view, the 9th Circuit is undeniably out of touch with the rest of the nation,” he said.

Citing the circuit court’s win-loss record in its decisions appealed to the Supreme Court, he concluded that if the appellate judges were baseball players, they “would be laboring on a farm team.”

A series of pro-environmental decisions from the 9th Circuit over the years, including the famous spotted owl cases, long ago angered timber and mining interests in the Northwest. Then last December, the court reportedly angered Senate Appropriations Committee Chairman Ted Stevens (R-Alaska) by expanding the power of Indian villages in his state to claim sovereign rights.

Stevens responded by allowing the Senate to attach a provision breaking up the 9th Circuit to the annual spending bill for the judiciary, a bill that comes under the jurisdiction of Stevens’ committee.

The Senate defeated an effort by Sen. Dianne Feinstein (D-Calif.) to kill the provision on a largely party line vote of 55-44.

Feinstein said the provision would result in the “impetuous, political gerrymandered split” of the 9th Circuit. Creating a 12th Circuit would cost $60 million for new courthouses and expanded staffs, she said. She also argued that the West Coast benefits from having a uniform body of law as interpreted by the 9th Circuit.

In August, when the 9th Circuit met in Portland for its annual conference, discussion focused on the possible breakup.

Hug called the Senate’s proposed split “very odd” because Arizonans would have to “hopscotch” over Nevada to connect with the rest of the newly formed 12th Circuit. Judge David R. Thompson of San Diego dismissed the Senate proposal as “idiotic,” and Judge Mary Schroeder derided it as a “silly” response to the alleged problems of slow decision-making.

“This is not improving the efficiency of justice,” Schroeder said. “This is dismantling justice.”

Judge Stephen Trott of Boise, Idaho, facetiously said that the proposed breakup “is nothing more than evidence that Ritalin [the drug used to control hyperactivity] is in short supply in Washington.”

However, two of the more conservative voices on the court, Andrew Kleinfeld of Fairbanks, Alaska, and Diarmuid O’Scannlain of Portland, spoke in favor of splitting the circuit. The current court, they said, is too big to be collegial.

The debate concerning the size and sprawl of the 9th Circuit is not new.

In 1937, a 9th Circuit judge told a congressional committee that the court’s breakup was “inevitable,” but he recommended careful study first.

So far, no one has found a simple solution to what the University of Montana’s Tobias calls the “California conundrum.” With 32 million people, California is larger than several of the regional circuits. As a result, Tobias says, the West Coast region cannot be neatly divided except by splitting California in half.

In 1980, Congress quickly and painlessly split up the old 5th Circuit Court of Appeals, which had extended across the Deep South. A new 11th Circuit was established in Atlanta with jurisdiction over Georgia, Florida and Alabama. The old 5th Circuit, based in New Orleans, retained Texas, Mississippi and Louisiana.

But California’s lawyers have strongly and successfully rejected the idea of dividing the state. It would horribly complicate matters, they say, to have two courts interpreting federal law for one state.

“No one really thinks it’s a good idea to divide up California,” Tobias says, “but then no one has a good answer how to do it otherwise.”