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In what was hailed as a “historic” event, House Judiciary Committee Chairman James Sensenbrenner toured the Ninth Circuit’s main courthouse recently to talk about splitting the court. Sensenbrenner met Chief Judge Mary Schroeder and 15 other circuit and district judges and listened patiently as they laid out both sides of the debate over whether to divide the circuit. But during his 3 1/2-hour official visit to the James R. Browning U.S. Courthouse on March 4, it came out that the congressman had breakfasted that same day with a smaller contingent of judges who favor a split. While those judges said the Wisconsin Republican did not tell them anything he didn’t repeat later on, others are upset that they weren’t included. “They purposefully didn’t reveal it to us. What do you think I think about that?” said Ninth Circuit U.S. Court of Appeals Senior Judge Betty Fletcher, who opposes the split and was not included at breakfast. “We had an open meeting, and it was formally announced. It seemed to me that the other meeting was inappropriate.” Another Ninth Circuit judge, who asked to remain anonymous, called the breakfast “a surprisingly sneaky and uncollegial move on the part of the splitters, especially given the otherwise friendly relations among the judges. It reflects very poorly on them, in my opinion.” Circuit Judge Diarmuid O’Scannlain, who favors a split and attended the breakfast, said his colleagues are blowing things out of proportion. “There was nothing secretive about it,” he said. “I think [Sensenbrenner's] thought was that he wanted to do this in two steps,” one meeting with the pro-splitters and then the larger gathering. A Sensenbrenner spokesman said Wednesday he wasn’t privy to the breakfast but said the chairman came to San Francisco to hear from both sides of the issue. Circuit Judge Richard Tallman, who also attended the breakfast, said nobody told him that they’re upset. “I’m sorry they feel that way, but there was certainly nothing secret about it,” he said. Six judges went to the breakfast, held at a hotel near San Francisco International Airport. Tallman said Chief Judge Mary Schroeder knew about the meeting the day before. She could not be reached for comment Wednesday. In an earlier interview, Schroeder, who opposes the split, said she was pleased with Sensenbrenner’s visit to the courthouse. “We certainly hope that we can perhaps work with him in the future,” Schroeder said a couple days after the meeting. Tallman implied that it would have been foolish for him and the others invited to breakfast to give up any opportunity to talk to Sensenbrenner just because their colleagues weren’t invited. “We certainly weren’t going to say no,” Tallman said. Not every Ninth Circuit judge has publicly revealed a position on the issue, but in a vote last spring of 47 sitting Ninth Circuit judges, 30 opposed a split and nine favored it. Eight judges abstained. Sensenbrenner has advocated dividing the circuit in the past and just Tuesday reiterated his thoughts in a speech to the U.S. Judicial Conference. “The Ninth is too big in so many ways, Sensenbrenner said. “It is not a question of if the Ninth will be split, but when.” According to judges, Sensenbrenner made similar comments throughout his March 4 visit. Tallman said that even though the idea of a split evokes strong emotions on both sides, the spat over the breakfast meeting won’t disrupt collegiality. “People on the court have an amazing ability to compartmentalize,” he said, “and still be cordial with each other.”

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