9th Circuit split-up reprised

LOS ANGELES — Congressional Republicans are hoping again to split the 9th U.S. Circuit Court of Appeals, which covers nine Western states, including Washington, saying a breakup is the best way to reduce the caseload of the circuit's federal judges.

This week, Sen. John Ensign, R-Nev., plans to introduce a bill to split the circuit into three parts. Rep. Mike Simpson, R-Idaho, has introduced legislation this year that would create at least one, if not two, new appellate courts for the area.

And because the chairman of the House Judiciary Committee has linked the addition of any new judgeships across the country to dividing the circuit, lawmakers may have reason to view the prospect with an open mind.

"The situation is continuing to get worse for the 9th Circuit," Ensign said in a telephone interview Thursday. "It has by far the most cases per jurist, and it's just too large and too unwieldy."

Sen. Dianne Feinstein, D-Calif., who has fiercely opposed efforts to split the circuit, responded to questions by saying the real issue is the number of judges handling cases. "If there is a way to reduce the caseload of the 9th Circuit's judges in a fair and honest manner," she said in a statement, "I am open to considerations."

The idea of splitting the 9th Circuit, based in San Francisco, isn't new; efforts date back decades. But it packs greater significance after recent criticism from some conservative lawmakers of decisions by federal judges.

Democrats who have opposed the concept of a split may be cautious about voicing strong opposition after the recent skirmish over judicial filibusters. And with Republican majorities in the Senate and the House, which passed a version of the bill last year, supporters said they consider the split inevitable.

It is undisputed that the 9th U.S. Circuit Court of Appeals is the largest circuit court in the country, encompassing about 20 percent of the nation's population and wrestling with some of the most controversial subjects: immigration, legalization of marijuana, religion in schools.

Judges on the 9th Circuit decided that the federal government probably did not have authority to prohibit medical use of marijuana. They decided it was unconstitutional for schoolchildren to recite the full Pledge of Allegiance.

In both cases, they were recently reversed by the Supreme Court. The 9th Circuit also seems to be heading toward an opinion on how schoolteachers may refer to religion in public-school classrooms.

"The reason that the issue of splitting the circuit comes up repeatedly is because of dissatisfaction in some areas with some of our decisions," said Mary Schroeder, chief judge of the 9th Circuit and a strong opponent of a split. "This has a long historic basis, beginning with some fishing-rights decisions in the '60s and going forward to the Pledge of Allegiance case and ... some of the immigration decisions."

Supporters of a split said the decisions are not driving them to act. They point to the number of judges in the circuit, cases filed, cases per judge and trips by judges to hear appeals from Seattle to San Francisco to Honolulu.

Splitting the circuit into smaller parts would not solve the problem completely. Appellate judges would have to be added, something lawmakers across the country said is needed.

"This is the most important thing," Schroeder said. The circuit would be better served if the Senate focused on filling its four vacancies and Congress created new judgeships in the 9th Circuit and across the country, she said.

Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, said the panel had many pressing issues. "We've had an unusual rush of very high-priority items, with class action and bankruptcy and the judges and Guantánamo and asbestos," Specter said. "It's pretty hard to displace any of them on the priority schedule. But the 9th Circuit is on it."

Rep. F. James Sensenbrenner Jr., R-Wis., chairman of the House Judiciary Committee, said last fall that dividing the 9th Circuit would be a priority.

Opponents of the split said the court system is not overwhelmed and the current proposals leave California intact in a single circuit, failing to address the basic problem: that it generates the vast majority of the circuit's cases. "It is essential that California be treated fairly," said Feinstein, who helped quash a bill last year to split the circuit. To her that means more appellate judges.

The three-way split proposed last year and reintroduced this year in the House would lump together California, Hawaii, Guam and the Mariana Islands; Alaska, Oregon and Washington; and Nevada, Arizona, Idaho and Montana.

A split would not directly affect the jurisprudence of the 9th Circuit. But it might speed the day that Republican appointees become the majority in the new, smaller circuits. Also, any circuit (or circuits) created that excluded California could be more conservative.

Representatives of some other states are eager to distance themselves from California, whose issues are different, they said.

Sen. Lisa Murkowski, R-Alaska, sponsor of her own split legislation last year, explained her concerns this way: "You've got a circuit that is spending 85 percent of its time working on immigration stuff, and here comes an issue related to Alaska land, and it's arcane law that they have not had an opportunity to study."

Most of the circuit's judges do not support a split, said Alex Kozinski, a 9th Circuit judge.

"We've taken votes of our judges regularly," Kozinski said, "and we always overwhelmingly vote against the split. And these are the folks that know the work of the court."