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Chart: Squeeze Play A crucial skirmish took place last fall in the long war over whether to carve the Ninth Circuit U.S. Court of Appeals into smaller pieces. Conservative Republicans in the House of Representatives were finally able to push through a split proposal on Oct. 5 by tying it to a Senate measure to create 58 new judgeships across the country. California Democratic Sen. Dianne Feinstein swiftly blocked the bill in the Senate Judiciary Committee, chastising Republicans for linking the breakup controversy with additional judgeships, which both sides agree are needed to relieve rising federal caseloads. Now House Republicans, emboldened by their short-lived autumn victory, are getting ready to try again to break up the nation’s largest federal circuit court. Chief Judge Mary Schroeder, who opposes any split, is worried. “I think there is more momentum now,” she said. California Democrats are preparing to fight, but it isn’t clear if they have the political strength. Democrats’ clout in Congress diminished after the November elections, and the party is still under pressure to approve more judge slots nationwide. Conservatives who favor smaller circuits in the West are eager to dilute the considerable political influence of California, which now accounts for more than two-thirds of appeals to the Ninth Circuit. Since the state has a decidedly blue tinge and contributes so many judges to the circuit’s appellate bench, right-wingers believe it sets law that is too far left for other western states. Congressional Republicans plan to again link new judgeships to a breakup this year, putting Democrats in the difficult position of having to turn thumbs down on additional judgeships in order to preserve the Ninth Circuit’s configuration. “That could be a successful play” to divide the circuit, said Arthur Hellman, a University of Pittsburgh School of Law professor who has studied the circuit extensively and testified in Congress on whether to divide it. “The Ninth Circuit is in some ways in a very difficult position at this point,” he said. “I think they’re going to be feeling pressure from other circuits. � I hate to say this, but I don’t think they’re going to get a lot of sympathy.” The idea of remaking the San Francisco-headquartered Ninth Circuit has been around since the 1940s. But only one other proposal in modern memory has come as close to succeeding as House Republicans did on Oct. 5. That was in 1997 when the Senate passed an appropriations bill that included a plan to divide the circuit. The Senate eventually dropped that bill and Congress instead created a commission to study the Ninth Circuit. Calls to fragment the circuit become loudest whenever circuit judges make a decision that conservatives don’t like. All federal courts within the circuit — which stretches from Montana to Hawaii and from Arizona to Alaska — would be affected by a split. The most recent breakup push has its roots in the 2002 Pledge of Allegiance case, when a judge wrote an opinion saying children should not have to say “under God” in the classroom. (Ironically, the judge was a Nixon appointee.) The U.S. Supreme Court overturned the decision. Idaho Republican Congressman Mike Simpson has introduced two bills this year to carve up the Ninth Circuit, which oversees Guam and the Northern Mariana Islands, as well as nine western states. More than 58 million people live within the Ninth Circuit’s boundaries. One bill would divide the court in two, with Arizona, California and Nevada in one circuit, and Alaska, Hawaii, Idaho, Montana, Oregon, Washington, Guam and the Northern Marianas in the other. The second bill would create three circuits: California, Hawaii, Guam and the Northern Marianas; Arizona, Nevada, Idaho and Montana; and Alaska, Oregon and Washington. Simpson insisted he is not motivated by politics and only wants to improve the court’s administrative functioning and make it more like other circuits. For example, Simpson thinks it’s ridiculous that the Ninth, unlike any other circuit, has en banc panels consisting of only 11 judges rather than the full bench. Simpson, who is working with House Republican leaders, said tying his proposals to a national judgeships bill is the best strategy. “Politically, that’s the way you get it done,” he said. Such a tactic had never been tried before last year, said Hellman. Democrats were surprised when the split concept was amended into the judgeship bill in October. Feinstein, who sits on the Senate Judiciary Committee, said at the time: “The House has essentially taken the new judges as hostages to a starkly partisan and controversial ploy.” The California lawmaker has said she isn’t necessarily opposed to a breakup, but has yet to see any valid reason for it. And before Simpson can get a bill before President Bush, who has not taken a position on the matter, he’ll have to overcome Feinstein’s skepticism. Simpson said he has the votes in the House and on the Senate floor, and that only Feinstein’s parliamentary tactics in committee can stop his effort. But the Idaho legislator added that he’s willing to negotiate with Feinstein. “I do think that Dianne is open to reason,” he said. “It would be nice to have her on board.” Even though she has been one of the Ninth Circuit’s staunchest defenders over the years, there are indications she may be willing to shift her position. “I � look at [dividing the circuit] with a much more open mind than I have in the past,” Feinstein said in her Oct. 5 speech. “I am sensitive to the fact that the Ninth Circuit had a 13 percent increase in caseload in a single year.” Although Feinstein declined repeated requests by The Recorder to be interviewed on the breakup issue, her office provided a statement. In it, she reiterated her openness to “considerations” to reduce the Ninth Circuit’s caseload, but she did not describe what those might be or take a position on Simpson’s proposals. “For me to consider any solution to the high caseload of the Ninth Circuit, it is essential that California be treated fairly,” her statement said. Ninth Circuit Chief Judge Schroeder characterized Simpson’s use of judgeships for political leverage as “blackmail.” “They should not be linked,” she said. “It’s bad policy.” Schroeder plans to talk to Feinstein later this month about what to do. She’s also meeting with several judges and House Judiciary Committee Chairman James Sensenbrenner, a Wisconsin Republican. And Simpson is scheduled to tour the court in May. In the meantime, Simpson is putting together a Ninth Circuit working group in Congress, which he said could include breakup opponents, to discuss the matter. Although Simpson claims he isn’t motivated by the court’s perceived political slant, the Ninth Circuit’s reputation as a hotbed of liberal judicial activists will undoubtedly help him pick up votes in both houses of Congress. Conservative anger often focuses on the Ninth Circuit’s appellate bench, which has 28 active judges plus 23 senior judges. The next largest circuit is the Fifth Circuit, which has 17 active judges and oversees Texas, Mississippi and Louisiana. The Fifth Circuit used to cover six southern states, but in 1981, Georgia, Alabama and Florida were sliced out to become the Eleventh Circuit. Although proponents of carving up the Ninth Circuit hold up the Fifth Circuit as an example, there is one essential difference: Fifth Circuit judges unanimously approved the ’81 change. In a vote taken last spring of 47 sitting Ninth Circuit judges, 30 opposed a split and nine favored it. Eight judges abstained from voting. Opponents of cutting up the circuit say that tally undercuts the workload argument: How bad can the headaches be if the judges themselves are happy with the status quo? But Ninth Circuit Judge Diarmuid O’Scannlain, who favors a breakup, disagreed. He said the court cannot just keep growing and believes its vastness affects its ability to properly administer justice. He argues that judges are overworked and their case backlog is expanding. “I do not belong to the group that feels that a circuit can grow exponentially,” O’Scannlain said. “I think there are limits to growth.” One measure of Ninth Circuit efficiency is how long it takes to resolve appeals. According to 2003 court statistics, the latest available, the circuit took an average of 14 months per case. Only one circuit, the Sixth, was slower, taking 16.8 months to resolve cases. Under either of Simpson’s proposals, a reconfigured Ninth Circuit would still be huge because of California. The state currently has 12 active judges and would get more under Simpson’s plans. But O’Scannlain argues that even managing judges within California is too hard, and he favors bisecting the state. He admits that’s not going to happen, though. In her statement to The Recorder , Feinstein said dividing the state “would be unworkable and confusing for businesses and residents alike and I would be strongly opposed.” But proponents insist that some kind of breakup is inevitable. “I told the chief of the Ninth Circuit when I had lunch with her last summer [that it's] going to be split. The only question is when,” Simpson said. Simpson’s plan to tie his measure to new judgeships is a clever way to bring other states into a fight that so far has been purely regional. While many members of Congress could care less about the Ninth Circuit, new judgeships for their home states are something to get excited about. But Republicans aren’t the only ones with a strategy for nationalizing the debate. Those who want to preserve the circuit say Simpson’s efforts amount to an attack on judicial independence. “First came court stripping,” said Democratic Congressman Adam Schiff of Pasadena, referring to recent efforts to remove certain issues from federal court jurisdiction. “Then came circuit splitting. What’s next? I think this is all unfortunately the same destructive trend of trying to break down the wall of separation of powers. � All of this is designed to intimidate and strip judges of independence.” Schiff, a former assistant U.S. attorney who sits on the House Judiciary Committee, said the relationship between politicians and judges could use some work these days. Increased communication and cooperation, he added, would go a long way toward staving off political drives to divvy up court districts. To that end, Schiff said, he and Illinois Republican Congresswoman Judy Biggert formed a caucus with other House members several months ago to figure out how to improve relations. (Biggert voted in favor of the split Oct. 5.) The group has already met with U.S. Chief Justice William Rehnquist, who has also expressed concern about the deteriorating relationship between the judicial branch and Congress. At least four Supreme Court justices — Antonin Scalia, John Paul Stevens, Anthony Kennedy and Sandra Day O’Connor, the high court’s liaison to the Ninth Circuit — have said they’re in favor of dividing the Ninth. Their positions were reported in the late 1990s, when the Ninth seemed out of step with the rest of the circuits because it was more likely to be reviewed and reversed by the Supreme Court. That trend has since turned, and now the Ninth is no more likely to be reversed than any other circuit, according to a Recorder analysis of 2003-04 Supreme Court opinions. The Supreme Court reversed or vacated 76 percent of Ninth Circuit cases it heard last session. Collectively, the circuits were reversed 77 percent of the time. (The analysis also found that the Ninth accounted for nearly a third of the high court’s docket, 25 of 78 cases.) But even as California Democrats try to drum up national opposition to the movement to split the Ninth, they’re losing important support on their home turf. During the Oct. 5 vote, 13 House members changed their initial “no” votes to “aye” — including 10 California Republicans. The mass flip-flop was essential to pushing the measure over the top, with a final tally of 205-194. The switch attracted particular attention among lawyers who practice in California, since so many of them — liberal and conservative alike — oppose splitting the Ninth Circuit. Joseph Russoniello, dean of San Francisco Law School and a self-described conservative Republican, said he is trying to find out why the California Republicans changed their minds. A spokeswoman for one of them, Randy “Duke” Cunningham of San Diego County, said her boss’s vote was intended to “send a message” to Ninth Circuit judges that he doesn’t like the way they’ve decided some cases. “It’s inconsistent with what he feels would be proper interpretation of the Constitution,” said spokeswoman Harmony Allen. Russoniello said a breakup isn’t the answer. “It just seems like a bad idea to me,” said the attorney, who also is senior counsel at Cooley Godward and serves on a committee of the Federal Bar Association opposing any partition of the Ninth. “The western states have more in common than [they have] differences.” He said neither the ideological nor administrative arguments add up. Although he admitted to having problems with some Ninth Circuit rulings, he noted that “if a circuit became really radicalized, or more leftist, there would be more cases taken by the Supreme Court.” Russoniello also pointed out that the decisions that really rankle people usually come out of the three-judge panels, and “that can happen anywhere.” Hellman, the law professor, said Congress should defer to the majority of Ninth Circuit judges — and the many lawyers within the circuit — who oppose a split. But there’s a caveat. Hellman also believes judges need to take a harder look at their position and ask themselves, at what point does big become too big? The nonpartisan Judicial Conference has recommended seven new judgeships for the circuit, which would give it 35 active jurists. “New judges shouldn’t necessarily change [current judges'] minds, but should cause them to rethink their beliefs,” Hellman said. “The issue now is, do you have a 35-judge circuit or do you split it?” Hellman suggested that Congress should worry less about subdividing circuit benches and concentrate on finding a solution to the massive influx of immigration cases prompted by former Attorney General John Ashcroft’s “streamlining” of immigration appeals. Ashcroft allowed single members of the Board of Immigration Appeals — rather than panels — to affirm immigration judge decisions without issuing opinions. Thousands of immigration appeals flooded the Ninth Circuit as a result. “That actually is something I would like to see Congress turn its attention to,” said Hellman. “Does it make sense for an administrative agency to clean out its desk by putting everything in the courts? If Congress really wanted to help out, that would be much more constructive.”

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