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Past congressional proposals to split the nation’s largest federal circuit court have often appeared like campaigns for District of Columbia statehood-all talk and no action. But last week’s Senate judiciary subcommittee hearing exposed the lopsided rift that exists among the court’s judges over division of the 9th Circuit. It also showed the increased nervousness among split opponents that change may be afoot. The latest bill, S. 1845, cuts the 9th Circuit in two, leaving California, Hawaii and the Pacific islands in a new 9th Circuit, and adds five judgeships. Arizona, Nevada, Oregon, Washington, Idaho, Montana and Alaska would form a new 12th Circuit. The biggest stumbling block is how to deal with California, which accounts for 10,000 of the appellate court’s 16,000 annual appeals. “California is the elephant in the room,” said Senator Jon Kyl, R-Ariz., a co-sponsor of the bill. Members of the Senate judiciary subcommittee on court oversight heard from eight of the court’s 24 judges, including the only three on the appeals court supporting the split. The three who back the split are judges Andrew Kleinfeld of Fairbanks, Alaska; Richard Tallman of Seattle; and Diarmuid O’Scannlain of Portland, Ore. “It is inevitable that Congress must restructure the . . . circuit,” O’Scannlain said. Some district court judges in the West have joined in support for the circuit split. But the overwhelming majority of appellate, trial and bankruptcy judges oppose it, according to Chief Judge Mary Schroeder of Phoenix. In the one confrontational moment, Judge Alex Kozinski waved a copy of the court’s internal vote tally in the air and disputed comments by the bill sponsor, Senator John Ensign, a Nevada Republican who suggested a circuit judge from Nevada also supports the split. “I am aware of no colleague of mine [in Nevada] that voted the split was appropriate,” Kozinski told committee chairman Senator Jeff Sessions, R-Ala. “And I am under oath,” he added. Senator Lisa Murkowski, R-Alaska, a co-sponsor of the measure, complained that the 15-month average delay from filing of an appeal to resolution is the worst in the country. Senator Dianne Feinstein, D-Calif., said, “Unless someone guarantees me 21 new judges and an equal caseload spread, this doesn’t even get to first base with me.” Feinstein suggested political motives-not court efficiency-are behind the split plan. She said a case backlog built up in the 1990s when the court had as many as 10 vacancies and Republican senators held up Democratic nominees. She said there is a continuing effort to “starve the circuit to bring it to a split.” But Sessions prodded split opponents with a smile at the close of the hearing, insisting they must have some other agenda. Tallman disputed cost estimates of $95 million just to pay for the initial division. He said new courthouses in Phoenix, Portland and Seattle would allow the old courthouses to be put into service at a fraction of the cost. One of the knotty problems for a new 9th Circuit dominated by California is the more than 600 death penalty cases that are complex and time-consuming for the court, according to Judge Sidney Thomas of Billings, Mont., the court’s death penalty coordinator. Now those cases can be spread among all the judges. But a new 12th Circuit would have few capital cases and a much smaller caseload overall. U.S. District Judge Marilyn Huff of San Diego called a split “a waste of taxpayer money.” She said border patrol’s ability to bring Arizona and California cases to either court would “go out the window” with a split. But O’Scannlain insisted the time is now. “The caseload is killing us. We can hardly keep up. Now we are the slowest circuit in disposition of appeals,” he said. Because a different split bill passed the House last year, Carl Tobias, a University of Richmond law professor, predicted that the fate of the measure will depend on how Judiciary Chairman Senator Arlen Specter and moderate Republicans come down on the measure.

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