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U.S. Supreme Court Justice Sandra Day O’Connor recently warned that relations between the federal courts and some members of Congress were worse than at any period in her lifetime. She lamented the deteriorated state of relationships involving the coordinate federal government branches at last summer’s judicial conference of the 9th U.S. Circuit Court of Appeals. The 9th Circuit is the appeals court that serves the western United States, and O’Connor is the Supreme Court justice who is responsible for that court. On Nov. 3, House members invoked a rarely used device that promises to aggravate the fraying relations between the federal courts and Congress. The representatives agreed to insert in the House budget reconciliation bill a provision that would divide the 9th Circuit, thereby preventing Senate Judiciary Committee and floor consideration of a question critically important to the federal judiciary. Using a procedural technique to avoid serious analysis and debate on a substantive issue of this magnitude is peculiarly inappropriate. Indeed, 9th Circuit Chief Judge Mary Schroeder said that “it’s just treating the courts with utter disrespect,” and that she “never heard of an attempt to bypass an entire body, a house of Congress.” Since President Ronald Reagan appointed O’Connor a quarter-century ago, members of Congress have perennially urged division of the 9th Circuit. One major argument involves the court’s large size. Split advocates contend that the 9th Circuit encompasses the largest geographic area, has the greatest number of judges and resolves the most appeals, and that this magnitude fosters inefficiency and inconsistent decision-making. Some proponents register dissatisfaction with the court’s substantive determinations, most notably the Pledge of Allegiance opinion, but also controversial decisions in other areas, such as criminal procedure, the death penalty, as well as environmental and Indian law. In autumn 2004, the House passed a bill that would have split the 9th Circuit, but Congress adjourned before the Senate could consider the legislation. This year, Representative James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, introduced a circuit-division bill that included new judgeships for all of the appellate and district courts. On Oct. 27, the House Judiciary Committee adopted that legislation. The day before, the Senate Judiciary Committee conducted a hearing on the Senate version of legislation to divide the court. An end-run around the Senate On Nov. 3, circuit-splitting champions attached a circuit-division provision to the House budget reconciliation bill that would divide the court. That maneuver will enable proponents to circumvent normal legislative evaluation. Not content to allow these deliberative processes to run their course, and out of apparent concern that the Senate might thwart the legislation’s passage, circuit-splitting advocates have orchestrated an end-run, which could preclude the upper chamber from according any serious consideration to the circuit-division issue. If this use of the budget reconciliation bill succeeds, it would be an abuse of the legislative process and a grievous mistake. Lawmakers must “turn the squarest corners” when legislating modifications that could profoundly alter a coequal branch. The reconfiguration of a 114-year-old institution, which many observers, namely the vast majority of 9th Circuit judges, believe works effectively, is too critical to be accomplished by legislative subterfuge. Congress must undertake serious, thorough consideration of whether the 9th Circuit experiences difficulties sufficiently problematic to warrant division and, if so, how the court should be split. Without this full scrutiny, it would be reckless for Congress to restructure a court that has served the nation well for more than a century. Lawmakers must heed O’Connor’s trenchant admonition, lest Congress jeopardize even more judicial-legislative relations. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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