Misguided Court Reform Plan

The committee that Congress appointed to study the nation’s appellate courts staked out a position on the future shape of the 9th Circuit Court of Appeal that at first looks Solomonically wise. The political compromise was designed to anger neither the bitter foes of that large circuit, who want it split up, nor its friends, who wish to retain the court’s current boundaries. But on closer look, the draft recommendation to divide the court into three largely autonomous parts promises to solve few of the alleged problems with the circuit, which includes California.

Congress, which sought the guidance of this committee, is being pressured by several conservative Western senators who are critical of what they consider to be the 9th Circuit’s liberal decisions. They have long wanted to divide this largest of the federal circuits, which now includes nine Western states, to isolate California, which the conservatives see as the heart of their problem.

Instead, after a year of study, the panel proposed keeping the existing boundaries but dividing the circuit internally into three sections. Under this novel proposal, Southern California and Arizona would be a division, Northern California, Nevada and Hawaii would form a second and the Northwestern states would be the third.

This plan would do little to foster the collegiality that critics feel is lacking among the circuit’s far-flung judges. Worse, it would formalize intra-circuit differences: Conceivably, San Franciscans would be bound by different decisions, rendered by judges in a different division of the 9th Circuit, than the people of Los Angeles. How could statewide businesses cope? It’s crazy, and that’s why the Los Angeles County Bar Assn. opposes the plan.

Congress would do better to improve the quality of justice by attending to the problems that prevail in all the federal circuits, rather than by tinkering with geographical lines. Partisan wrangling in Congress has left vacant dozens of judgeships nationwide, many for years. Across the country, circuits have coped by borrowing district court judges or judges from other circuits. In 1997, for instance, the 179 active appellate judges had to call on 190 active district court judges to help handle their cases.

Prompter action on judicial nominations would do more to foster collegiality and consistency than dividing the 9th. Congress should leave the circuit as it is.