Parties split over proposed split of 9th Circuit Court of Appeals

A long-simmering debate over how justice is meted out in the Western U.S. rose to a boil Wednesday when the Senate Judiciary Committee debated proposals to split the 9th Circuit U.S. Court of Appeals.

Changes to the 9th Circuit would have major implications for Washington state, which generated more appeals in 2005 than any state in the circuit but California.

The issue is a political hot-button, with congressional Democrats arguing that Republicans want to split the circuit to punish what they perceive as liberal decision making by 9th Circuit judges.

Republicans say they are simply concerned that the circuit, which covers 58 million people and generated more than 16,000 appeals last year, has become unmanageable.

Washington state legal experts played prominent roles in Wednesday's hearing in Washington, D.C. Circuit Judge Richard Tallman of Seattle testified in favor of a split, while William Neukom, chairman of Preston, Gates and Ellis and Microsoft's former lead counsel, said the 9th Circuit should be kept intact to maintain legal uniformity on the West Coast.

The 9th Circuit is the largest of the federal circuits and includes all federal courts in Washington, California, Oregon, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands.

Senate Bill 1845, introduced by Sen. John Ensign, R-Nev., would move Washington and six other states into a new 12th Circuit. Only California, Hawaii, Guam and the Northern Mariana Islands would remain in the 9th Circuit.

Tallman, who favors dividing the 9th Circuit, said Wednesday's hearing shows the legislation has strong support on Capitol Hill. "We are further along on this issue than we've been in 50 years," Tallman said after the hearing.

Tallman testified that a split is needed to reduce the crushing caseload he and other 9th Circuit judges face.

"I do not urge reorganization because I take issue with my court's decisions," Tallman testified. "My court is just too big, with too many judges and too many cases to consistently render quality judgments."

Neukom said splitting the 9th Circuit would hurt domestic and international businesses that rely on the uniformity of legal doctrine in the West. The benefits of a unified 9th Circuit were apparent when Microsoft was fighting legal battles with California-based technology firms such as Sun Microsystems, Neukom said.

"That fact that one federal court of appeals announced the rules of federal law for both Seattle and Silicon Valley eliminated an element of uncertainty and potential conflict in our work," Neukom testified.

The Senate Judiciary Committee may not have time to review Ensign's bill before the Nov. 7 election, but that does not mean it would be a dead issue.

Judges and legal scholars said the panel could take up the measure after this year's elections, especially if Republicans lose control of the Senate.

"This could be one of the best opportunities they've ever had [to split the 9th Circuit]," said Carl Tobias, a law professor at the Richmond Law School who is an expert on the 9th Circuit.

David Bowermaster: 206-464-2724