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The House of Representatives, with complete disregard for the Congressional Committee process, is planning to place a split of the Ninth Circuit U.S. Court of Appeals on a budget reduction bill. If successful, this is a “lose-lose” proposition for California and for the consistency of the federal courts on the Pacific Coast. Clearly, the independence of the judiciary is under attack by those who disagree with some of the court’s rulings. The split would also initially cost an estimated $100 million, not to mention tens of millions of dollars more in the years to come. It would also create a huge imbalance in caseload between the two new circuits, with California’s judges heavily impacted. The Founding Fathers designed our federal courts to be independent decision-making bodies, free of political pressure. The House’s backdoor effort to split the Ninth Circuit is an assault on this independence. It is judicial “gerrymandering” designed to isolate and punish judges whose decisions they dislike. It is not how the American system of justice is supposed to work. Where do things stand now? On Nov. 3, while considering a $53.9 billion package of mandatory spending cuts over five years, the House Budget Committee approved a proposal to break up the Ninth Circuit � an act that will add to, not subtract from, our nation’s deficit. The full House is expected to consider this measure next week. It would then go to a House-Senate Conference Committee to work out differences with the budget bill already approved by the Senate, which does not include the split. The proposal by the House Budget Committee would split the Ninth Circuit in two and create a new Ninth Circuit � consisting of California, Hawaii, Guam and the North Marianas Islands � and a new Twelfth Circuit, consisting of Arizona, Nevada, Idaho, Montana, Oregon, Washington and Alaska. This split would create a dramatic imbalance in caseloads between the two circuits. About 72 percent of the caseload would remain in the current Ninth Circuit, but only 60 percent of the judges. The new Ninth Circuit would have an average of 536 cases per judge, as compared to only 317 cases per judge in the new Twelfth Circuit. This unfair division of resources would leave residents of California and Hawaii facing greater delays, as well as court services inferior to their Twelfth Circuit neighbors. In addition, the Administrative Office of the Courts estimated that such a split would have startup costs for the Twelfth Circuit of as much as $96 million, along with $16 million in annual operating expenses. It would require the creation of a new bureaucracy to administer the Twelfth Circuit and would sacrifice the economy of scale achieved by the current Ninth Circuit. Those who know the Ninth Circuit best oppose a split. Only three of the 24 active judges on the Ninth Circuit favor splitting it. Additionally, the state bar associations that have weighed in on the split � Arizona, Washington, Montana and Hawaii � all oppose breaking up the Ninth Circuit. I believe splitting the Ninth Circuit on a budget bill is a huge mistake, denying this significant decision the consideration it deserves. It is a lose-lose proposition, one with clear financial costs and clear costs to the administration of justice. I very much regret that the House Budget Committee saw fit to take this unprecedented action. It comes during the period that the Senate Judiciary Committee is exploring a number of proposals regarding the circuit � this review should be allowed to run its course. If a split remains on the Conference Committee report when it comes back to the Senate, it will leave Sen. Barbara Boxer and me with no other alternative but to raise a point of order, which would require supporters of the split to get 60 votes to keep the measure in the bill. This could bring down the entire bill, so it is my hope that cooler heads will prevail and the split would be removed from a bill where it does not belong. In determining the fate of the Ninth Circuit, it is paramount that we protect the independence of the judiciary and move forward in a way that will be fair to all the states of the current circuit and keep a balanced caseload. Dianne Feinstein is a U.S. senator representing California.

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