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The State Bar of Arizona inserted itself into the latest debate over whether to split the Ninth Circuit U.S. Court of Appeals with a resolution last month opposing any such effort. The move is important since, under separate proposals making their way through the Senate and House of Representatives, Arizona is a key piece in the puzzle of how to divide up the Ninth Circuit. Under both proposals, Arizona and California would no longer reside in the same circuit — a move proponents say will help balance caseloads. For now, the Arizona bar has little to worry about. At the Northern District’s annual conference earlier this month, Chief Judge Mary Schroeder dismissed the latest proposals as little more than partisan bluster. Idaho Republican Congressman Mike Simpson’s House bill, which is getting the most attention, was referred to a House Judiciary subcommittee last week. It would move Arizona into the Tenth Circuit, which stretches from Utah to Kansas. California and Nevada would remain in the Ninth Circuit, with Hawaii and the rest of the Ninth Circuit’s northwest states forming a new Twelfth Circuit. The other proposal, a Senate bill introduced in March, would leave California and Nevada alone in the Ninth Circuit while the rest of the states, including Arizona, would form the Twelfth Circuit. The bill was introduced by Lisa Murkowski, R-Alaska, daughter of new Alaska Gov. Frank Murkowski, who appointed her to the very seat he vacated following his election win. Her father regularly introduced legislation to split the circuit. Whether the proposals go anywhere this time has a lot to do with Washington, D.C.’s perception of the court. Simpson’s bill went largely unnoticed until the court issued its Pledge of Allegiance decision in June. Chief Judge Schroeder found herself summoned to Washington for a hastily called hearing. That decision continues to resonate, even after the court refused to rehear the case. “One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision,” Sen. Murkowski said when introducing her bill. “The recent history of the court suggests a judicial activism that is close to the fringe of legal reasoning.” For now, the bill is idling. “We’re awaiting the possibility of a hearing,” said Kristen Pugh, a spokeswoman for Sen. Murkowski. And for now, Simpson’s bill is just a conversation starter. “The way I would put it is that we’re having a lot more dialogue now,” said Lindsay Slater, chief of staff for Simpson. Like previous chief judges, Schroeder has repeatedly spoken out against splitting the circuit. For her the fight is also somewhat personal — she sits in Arizona, is deeply tied to the bar there (she was the first woman to become a partner in a law firm there), and, under both proposals, her home state would no longer be part of her circuit. She says Arizona lawyers would rather drive to Pasadena than Denver, home of the Tenth Circuit, to argue their cases. She also points out that the addition of Arizona would mean a huge increase, percentage-wise, in the Tenth Circuit’s caseload. Simpson’s bill gives current Ninth Circuit judges in affected states the chance to choose which circuit to call home. If the bill passes, it could be that the Ninth Circuit’s chief judge no longer resides in it. If Schroeder chose the Tenth Circuit, the Ninth Circuit chief judge job would go to Alex Kozinski. The Ninth Circuit is by far the largest appellate court in the country, and the question of whether and how to divide it is not new. Judges who favor the move cite an inability to read all the court’s decisions, while outsiders often cite controversial decisions as a sign that the court can’t police itself. But California creates a problem. The state is so big that if it were its own circuit, it would be the third largest federal appellate court in the country. Previous proposals pared back the Ninth Circuit to include only Arizona, Nevada and California. Because those three states provide an overwhelming majority of the current Ninth Circuit’s caseload, moving Arizona helps — but not a lot. Judge Diarmuid O’Scannlain, a longtime proponent of a split said one solution is to split California. The idea was recently endorsed by Supreme Court Justice Antonin Scalia during a recent visit to Alaska, but isn’t likely to get very far with California’s two senators. “I always keep coming back to that because it’s the only one that would create equal circuits,” O’Scannlain said.

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