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Opponents of a congressional move to split the Ninth Circuit U.S. Court of Appeals were feeling good Monday after Republicans dropped a rider from a budget cuts bill that would have broken the circuit into two. “I think it’s very good news, and I’m very relieved because this was a matter of great concern to our judges,” Ninth Circuit Chief Judge Mary Schroeder said Monday. The decision to drop the rider came over a busy weekend when congressional staffers worked overnight to get a bill authorizing $41.6 billion in budget cuts approved. A spokesman for House Judiciary Committee Chairman F. James Sensenbrenner Jr., the Republican who has been pushing the split, said Monday he did not know why the rider was dropped. But in the past two months, several key senators have come out in opposition to the split provision and have threatened to invoke a procedural rule that would have required 60 Senate votes to keep the provision in the bill. That prospect � and the reservations of Arlen Specter, the Senate Judiciary Committee chairman � made it increasingly clear that the split would be temporarily shelved. “I’m not surprised,” said Ninth Circuit Judge Diarmuid O’Scannlain, one of a small number of federal appeals judges in favor of breaking up the nine-state court. “I’m sure some people are very happy it’s not going to happen now, but the split’s inevitable.” Harvey Saferstein, a partner at Mintz Levin Cohn Ferris Glovsky & Popeo in Los Angeles, is one of the happy people � although he disagrees with O’Scannlain’s assertion that administrative issues make the Ninth Circuit too big to survive. “It’s exciting,” said Saferstein, a Democrat who has helped organize a bipartisan group of attorneys against the split. In recent months they have been working with D.C. lobbyist Manus Cooney, a former Senate Judiciary Committee counsel under Republican Sen. Orrin Hatch, to oppose the latest split attempt. Saferstein and Cooney � who’s been working pro bono � said Monday that they fully expect further split efforts to move forward next year, probably as stand-alone legislation. “The bottom line is, this issue’s around,” Cooney said Monday. “I don’t see it going away.” Ninth Circuit Judge Alex Kozinski, who also has lobbied senators against the split in recent months, agreed, but said he thinks it’s unlikely to succeed. “Splitting makes no sense for the court,” said Kozinski, who says the court functions well on an administrative level and shouldn’t be broken up. He and other split opponents argue that legislators want to break up the court to get rid of what they perceive as a liberal slant, and that even they know that keeping the court together is best for budgetary and administrative reasons. In the budget bill, Kozinski said, “They were trying to slip [the split] in through the back door because the proponents realize it’s a bad idea.” Schroeder said that if politics really are a concern, there are more efficient ways to tilt the Ninth Circuit rightward � appoint conservative judges. “If they don’t like the court’s decisions,” she said, “they should fill the vacancies.” In fact, a step was taken Friday toward filling one of the four vacant Ninth Circuit seats when Idaho state Judge N. Randy Smith was formally nominated to the court. Smith, a former Republican state politician, has been named to replace Judge Stephen Trott, who took senior status a year ago.

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