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As Democrats and appellate lawyers who practice in the Ninth Circuit, we support splitting the circuit, because we believe that it is simply too large to function effectively. Unfortunately, as with past efforts to split the circuit, support for and opposition to these proposals have developed along partisan lines, with Congressional Democrats and several of the Ninth Circuit’s judges largely hostile to the bills and dismissing them as politically motivated. While splitting the Ninth Circuit makes sense for administrative and efficiency reasons having nothing to do with politics, a number of Republicans in Congress favor splitting the circuit in large part because they disagree with some of its more controversial decisions. Disagreement with individual decisions is a bad reason for splitting the circuit, but the mere fact that some support good policy for the wrong reasons need not poison the well against that good policy. Politics aside, the people of the Ninth Circuit would be better served if it were divided it into two or three new, smaller circuits. Our purpose here, however, is not to reiterate the sound, nonpolitical arguments that others (most notably, Ninth Circuit Judges Diarmuid O’Scannlain and Richard Tallman) have already ably made in support of a split; rather, it is to offer compromise suggestions that might make a circuit split less political and more palatable and acceptable to its opponents, both among the Ninth Circuit’s judges and Congressional Democrats. In addition to splitting the circuit, the current split bills create several new judgeships. These new judgeships are sorely needed to handle the court’s rising caseload, but creating these extra vacancies on the Ninth Circuit could have substantial consequences for the ideological composition of the court. Moreover, while most of the new judges would sit in the “New Ninth” circuit encompassing California, a split would also probably open up one or more new judgeships in the Northwest’s new circuit. If President Bush fills all of these new judgeships, those new judges would affect the new circuits’ politics far more than the split itself would. Democrats should be less concerned by a circuit split than by the long-term impact of President Bush’s ability to fill so many new life-tenured judgeships. A fair compromise that would mitigate the political impacts of the circuit split would be to provide that all of the nominees for the new judgeships created by the circuit split be selected by bipartisan commissions (which is how federal district judges are selected in Washington state). Because many judges on the Ninth Circuit and local attorneys oppose a split, it also makes sense to maintain some of the connections between the new circuits, even after a split. Several of the circuit split bills allow the new circuits to share some administrative functions. The new circuits should take full advantage of these provisions. Among other things, the new, smaller circuits could alternate between holding joint and separate judicial conferences, and maintain joint committees addressing issues ranging from court rules to pro bono legal work. This would give judges and lawyers an opportunity to maintain the connections that those opposed to a split value � and fear would be lost in a split. The new circuits should also take advantage of the bills’ “judge sharing” provisions by allowing judges who wish to spend a few months each year hearing cases in neighboring circuits to do so. Encouraging “judge sharing” would give the new circuits flexibility in managing their caseloads and would help maintain ties between the new circuits. Moreover, “judge sharing” need not impact the consistency of case law in each new circuit because each circuit would have its own binding case law and en banc sittings. Fundamentally, the test for any court is the quality of justice it dispenses, and chronic administrative inefficiencies can only erode a court’s ability to do justice for all litigants. Restoring essential efficiencies to the federal appellate system throughout the western United States is a goal that should unite Democrats and Republicans. We hope that these and similar suggestions will help Congress and the Ninth Circuit’s judges craft a structure for a circuit split that will minimize its political effects and controversies, while achieving the administrative goals of a split. Michael B. King and John B. Schochet are both attorneys at Lane Powell PC in Seattle, where Mr. King is co-chair of the appellate practice group and Mr. Schochet is a member of the appellate practice group. This commentary first appeared in the Seattle Post-Intelligencer.

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