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Every few years, the Ninth Circuit U.S. Court of Appeals issues some colossally stupid decision. While all courts issue some stupid decisions, whenever the Ninth does it, as sure as night follows day, a new proposal to divide the court is born. Arguments for such divisions pay lip service to the notion that the Ninth is unwieldy — too big in terms of size (1.3 million square miles), the number of sitting judges (28), and population represented (56 million people, or almost one of every five Americans). None of the other 11 federal circuit courts comes close to this size and influence. But the real complaint is that the court is too liberal, too activist, and too rife with psychedelic California thinking to be left intact. Plans to split the Ninth have been floated intermittently since the 1930s. But thus far, the judges on the court and Democrats in Congress have managed to stave off the attempts. The most recent proposal for dividing the circuit is the brainchild of Rep. Mike Simpson, R-Idaho; it was born in the rage that followed the Pledge of Allegiance decision. His legislation would split the Ninth into two — with California, Nevada and Arizona remaining in the Ninth; Alaska, Guam, Hawaii, Idaho, Montana, Oregon, Washington and the Northern Mariana Islands hacked off to create a new Twelfth Circuit. Of course this division defies logic: It purports to split the court into two manageable jurisdictions with a more regional character for each. But what, really, does Guam have in common with Alaska? And what can judges from Hawaii possibly have to say about the good people of Idaho? No, if we are really going to start sawing the bloated lady in half, let’s look for a more coherent, principled dividing line. Taking inspiration from Wallace Stevens’ “13 Ways of Looking at a Blackbird,” we humbly present a half-dozen more useful suggestions for carving up the court of appeals: 1. Geography. The principal complaint about the Ninth is that its judges cannot possibly speak for such a varied and diverse region, meandering as it does along nine western and Pacific states, plus two territories. Residents of the Pacific Northwest resent the liberal environmental rulings that contravene their fishing, mining and timber interests. Fair enough. Maybe California judges shouldn’t be deciding land use issues in Idaho. But the current proposal, as noted, hardly creates two culturally coherent regions. If we really want to split the court into two distinct geographic entities, let’s split the Ninth into, say, “Rain Hats” and “Cowboy Hats.” That means, loosely translated, drawing a vertical line down the center of the circuit, and lopping Montana, Idaho, Nevada and Arizona into the Cowboy Hat (or Twelfth) Circuit. All those hunting and grazing cases would then be decided by hunters and grazers. Meanwhile, the coastal states (and I know it never rains in Southern California, but never mind) would remain dominated by California nuttiness in what’s left of the Ninth Circuit. And they could develop a regional expertise in Starbucks claims and SPF cases. Problem solved. 2. Politics. After Bush v. Gore, no one dares claim that judges aren’t ideological. Which is a good thing, since they are. One obvious way to resolve the fact that federalists and survivalists in Montana don’t want hippie San Francisco activists invalidating their Pledge of Allegiance would be to make explicit that which we know implicitly: Judges overwhelmingly decide cases based on which president appointed them. So let’s call a spade a spade and divide the Ninth into “red states” and “blue states,” as determined in the 2000 presidential election. Perhaps not coincidentally, this division closely parallels the Cowboy Hat/Rain Hat split, with red (Bush) states including Montana, Idaho, Nevada, Alaska and Arizona. Sure, there may be problems as blue states go red and vice versa in future elections. But in general, the two ideological poles needn’t waste each other’s time with needless bickering over jurisprudential philosophy. Washington will get its state-assisted suicide. And Nevada can execute anyone who fails to show up in traffic court. 3. Chronology. Here’s another complaint about the Ninth: When it was first founded, in 1866, most of the states now represented did not even exist. It made sense back then to have a Ninth Circuit since it contained only California, Oregon and Nevada. But as other territories glommed on, the circuit got out of control. And by the time the Northern Mariana Islands were attached in 1977, it was too gargantuan to be managed. One option, then, is to peel off states in reverse order of joining, pulling the Marianas, Guam, Hawaii, Alaska and Arizona out into the new Twelfth Circuit, and maybe tacking on Washington state for heft. This would leave the Ninth as of 1891 intact — consisting of California, Oregon, Nevada, Montana and Idaho. Crazy? Yes. Still, better than Simpson’s plan? Yes. 4. Caseload. One of the biggest arguments for splitting the Ninth is that the caseload is too vast, and the justice meted out too slowly. On average, it takes the Ninth 15.8 months to hear a case once filed, as opposed to an average of 10.9 months for the courts of appeal in general. Opponents of a split contend that creating new judgeships (which hasn’t been done since 1984) and filling judicial vacancies would go a long way toward curing that lag time. More pointedly, they note that Rep. Simpson’s solution does nothing to relieve this since Arizona, California and Nevada would take with them 82 percent of the court’s caseload. The new Twelfth would end up hearing maybe two cases a year. The only solution to this problem involves splitting California, meaning federal law would be different in Sacramento than in Santa Barbara. This plan was proposed in 1999 and defeated, mainly because it’s so dumb. 5. By Judges. Another complaint about the Ninth is its majority of Democratic appointees (17 of the current 28). Another way to split up this sucker would send all of the “liberal activists” to one circuit and all the “strict constructionists” to another. There could be just two courthouses, a Liberal Mushhead Court in Marin County (with Chief Judge Stephen Reinhardt) and a Heartless Capitalist Court in Butte, Montana (with Chief Judge Alex Kozinski). The U.S. Supreme Court could sustain or even improve its impressive 75 percent reversal rate for the Mushhead Circuit. And the Capitalists would be free at last. 6. By Issue. One of the other ongoing disputes about the Ninth involves disagreement over its treatment of specific areas of the law. For instance, it encompasses both death penalty states and non-death penalty states. Courts in Oregon thus end up deciding habeas cases in Arizona, which caused Arizona’s attorney general, Grant Woods, some dismay in the late 1990s because they couldn’t seem to execute people as quickly as they wanted there. An intriguing possibility: Lump all the death penalty states together to create a big Death Circuit. 7. By Pathology. It’s probably becoming clear to you that the real problem with the Ninth is California (23 judges from there). In which case, there is one solution: Split the Ninth into California on the one hand, and Everyone Else on the other. Of course California as a whole isn’t the problem, either — it just elected a Republican governor and, to be candid, the problem can probably be isolated to the area within a 20-mile radius of Berkeley. All of which could simply be airlifted into Guam, in the interest of contiguousness. The Ninth Circuit could thus be completely contained — its liberal activists tanned and rested on Guam — and the Twelfth could get back to the business of hunting, trapping and God. Dahlia Lithwick is a senior editor and U.S. Supreme Court correspondent for Slate. She is co-author of “Me v. Everybody” (Workman Publishing). E-mail: [email protected] This article first appeared in American Lawyer magazine.

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