GOP Resurrects Plan to Split 9th Circuit Court in Two

Republican senators used a Senate Judiciary subcommittee hearing Wednesday to renew their long-standing drive to break up the U.S. 9th Circuit Court of Appeals into two courts.

Over the last decade, Republicans have repeatedly tried to encourage such legislation, with a measure making it out of the House last year as part of an appropriations bill. It stalled in the Senate.

A bill introduced this month by Sens. John Ensign (R-Nev.) and Lisa Murkowski (R-Alaska) would keep California, Hawaii and the Pacific Islands in the 9th Circuit and create a 12th Circuit Court of Appeals covering Washington, Oregon, Idaho, Montana, Nevada, Arizona and Alaska.

Supporters of the bill think the 9th Circuit is too large and unwieldy and that a split would balance the caseload more effectively. From July 1, 2004, to June 30, 2005, more than 15,600 cases were appealed to the 9th Circuit, triple the nationwide circuit court average of 4,783.

“We have done a sensible reorganization,” Murkowski said at a hearing of the Senate Judiciary subcommittee on administrative oversight and the courts. “This will create circuits with more manageable population, manageable travel distance and manageable caseloads.”

Sen. Dianne Feinstein (D-Calif.) called the proposed division politically motivated and argued that it would not fix the caseload problems and would be too expensive.

“Splitting the 9th Circuit into two or even three courts of appeals would require the creation of new and costly bureaucracies to administer these new courts, thereby losing the economy of scale achieved by having a single administration tending to the federal courts of the 9th Circuit,” she said.

Feinstein attributed many of the weaknesses of the 9th Circuit to deliberate neglect. “I believe there has been an effort to starve the circuit to get it to the point of a split,” she said.

A number of decisions from the 9th Circuit, generally considered the most liberal of the appellate courts, have angered conservatives, including those that eliminated the words “under God” from the Pledge of Allegiance in public schools and supported the use of marijuana prescribed by a physician despite federal laws banning the drug.

Of the eight judges -- six from the 9th Circuit and two from U.S. district courts -- who testified Wednesday, three supported the split, citing the circuit court’s relatively few full-court decisions and an increasing number of caseloads as obvious indicators of inefficiency.

“The sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, our clarity and even our collegiality,” said 9th Circuit Judge Diarmuid F. O’Scannlain of Portland, Ore. “It is time now to take the prudent, well-established course and restructure this circuit.”

Ninth Circuit Judge Richard C. Tallman of Seattle said the setup of the court forced judges to constantly travel from state to state, with little exposure to their home states’ cases.

“Because California is producing 70% of the current 9th Circuit’s caseload, a substantial amount of time and money is spent sending judges from outside the Golden State to hear cases in California,” he said. “It is wasteful to pay judges to play this game of judicial musical chairs.”

Feinstein argued that the greater number of cases from California made a potential split more damaging.

The new 9th Circuit of California, Hawaii and the Pacific Islands would retain 72% of the current caseload but with fewer judges, she said.

The House is considering similar legislation cosponsored by Rep. F. James Sensenbrenner Jr. (R-Wis.) and Rep. Mike Simpson (R-Idaho) that would provide more judges and split the circuit court along the same lines as the Senate bill.