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With the latest proposal to split the Ninth Circuit working its way through Congress, opponents in the ever-rancorous debate have begun pulling out the big guns. On the anti-split front is Manus Cooney, a Republican Washington lobbyist and former chief counsel to the Senate Judiciary Committee. He’s working pro bono to convince congressional Republicans that splitting the Ninth Circuit makes less sense as the court becomes more conservative. On Monday, the U.S. Department of Justice weighed in on the side of split proponents, joining several Republican congressmen and three Ninth Circuit judges. The split fight now centers on an ongoing House attempt to tie new federal judgeships to a circuit-split provision, and to tack that legislation onto a massive spending bill. But that move seems increasingly likely to die in the Senate, since Judiciary Committee chairman Arlen Specter last week wrote a letter objecting to it. Yet those embroiled in the long-running split spat say the involvement of the Justice Department � which had previously opposed dividing the court � and increasingly intense efforts by judges and lawyers to keep the court together promise to intensify the conflict in coming months. “The Department of Justice supports legislation that would improve the administration of justice by providing for federal judgeships and by splitting the United States Court of Appeals for the Ninth Circuit,” wrote Assistant Attorney General William Moschella in the letter to House Judiciary Committee Chairman James Sensenbrenner. Moschella went on to argue that the 28-judge court’s large size and caseload have created administrative problems that promise to worsen. The current proposal would leave California and Hawaii as the Ninth Circuit, creating a new Twelfth Circuit of Alaska, Washington, Oregon, Nevada, Idaho, Montana and Arizona. Judge Diarmuid O’Scannlain, one of three active Ninth Circuit judges who support the split, said he was happy to see the executive branch weigh in. “I think it’s enormously significant,” he said “It’s the view of the Department of Justice, which has shifted, apparently.” Judge Alex Kozinski, a split opponent, downplayed the significance of the DOJ letter. He speculated that the department was supporting the measure primarily because it provides new judgeships. “I seriously doubt that they would go along with this if it wasn’t for the judges,” he said. Kozinski has spent time in recent months lobbying House and Senate Republicans who traditionally have supported the split. And so has Cooney, who worked on the Senate Judiciary Committee for Republican Sen. Orrin Hatch. “I worked in the Senate Judiciary Committee for several years, and had come to believe that a split of the Ninth Circuit was necessary,” he said. But things have changed since then. “From a conservative perspective and a lawyer’s perspective,” he said, the current plan amounts to “a split for split’s sake. It would, in my view, create harm to the court in the future.” Disturbing to Cooney and California Republicans is the prospect that a Ninth Circuit made up of California and Hawaii would be far more liberal than the current court, which is tilting rightward as Bush appoints new judges. They point out that Bush has four open Ninth Circuit seats to which he can appoint Republicans, further shifting the ideological balance. That advantage would be lost under the current proposal, Cooney said, which would create “an extremely liberal Ninth Circuit that would be hostile to, I think, the best interests of business and litigation,” he said. Cooney’s services were enlisted by a group of well-known Southern California lawyers that includes L.A.-based Terry Bird, Eric George and Harvey Saferstein. Bird and George are Republicans who also worry about carving out a far more liberal California court, while Saferstein is a Democrat who opposes the split for more traditional reasons. Over the last few months, Saferstein said, the trio has been working to gain support for legislative efforts that would keep the Ninth Circuit together. “A group of attorneys has raised money to help keep the Ninth Circuit together,” Saferstein said. “We are fortunate that Manus Cooney has agreed to do the current work pro bono, but we want to be prepared down the road if this continues.” Saferstein wouldn’t say how much money the group has raised, but said that contributions will be returned to donors if Cooney’s unpaid efforts are enough to defeat the split. While most split proponents now cite administrative issues as the main reason to divide the Circuit, opponents like Saferstein contend that legislators’ real motivations are ideological. The House, for instance, discussed a resolution Wednesday objecting to a recent Ninth Circuit ruling that a school may present students with a survey on sex habits. And decisions upholding stringent environmental regulations have historically rankled Northwest conservatives intent on protecting timber, irrigation and mining interests. Their concern has been that liberal California judges were insensitive to the economic needs of neighboring states. And a staffer for a House Republican pushing the split said this week that such concerns were still alive. “It comes down to we all want out of California,” he said. But Cooney, Kozinski and the other split opponents say they hope to convince conservative politicians � Kozinski alone has visited at least seven over the past couple of months � that that old wisdom should be rethought. So far, Kozinski said, they’ve had mixed results. “I don’t think I changed any minds, but persuasion happens slowly,” he said.

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