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The seemingly perpetual effort to divide the 9th U.S. Circuit Court of Appeals heated up in late 2005 and the split was even briefly in the House version of the budget reconciliation bill. Most of the battle has been fought along now-familiar lines. Those wishing to keep the 9th Circuit intact say it is not too large and functions with reasonable effectiveness. Those advocating division argue that it is far too large to be internally consistent and is more likely to hand down out-of-line rulings, which the Supreme Court has reversed in increasing numbers. Advocates of circuit-splitting have become more and more open in criticizing the 9th Circuit for producing rulings that they condemn as “liberal” and/or “activist,” but this growing openness may really be truth in advertising. Why? Because the claim that the circuit is too large is largely a veil for dislike of decisions-on environmental regulation, the Pledge of Allegiance or the death penalty-or stems from a desire to protect non-Californians from the allegedly pernicious rulings of liberal California judges. This makes clear that the effort to divide the circuit is really result-oriented: Its advocates have a definite agenda, based not on principles of effective court administration but instead on a desire for more conservative decisions. Use the appointment process Before we go through another congressional session in the same way, someone ought to rethink the issue. The advocates can achieve their end much more readily without expending scarce legislative capital on a major realignment of the federal judiciary. It’s very simple: Get the president to use the appointment process. The real reason the 9th Circuit is a problem for Republicans is that it is one of only two circuits with a majority of active judges appointed by Democratic presidents. (The other is the 2d Circuit.) There are now four 9th Circuit vacancies, with only two nominations pending, and one of those was sent to the Senate a short while ago. Confirmation of four nominees of this president would significantly reduce the Democratic majority. And because some of President Clinton’s appointees are relatively conservative and often vote with Republican appointees, the court’s majority would indeed shift. Public evidence of votes and opinions shows that this grouping regularly votes together in important cases, specifically, many of the cases taken en banc and those in which they protest denial of rehearing en banc. With a few more votes, this cohort could force en banc hearings in more cases decided by “liberal” panels and could overturn them. With every additional Republican appointee, the “luck of the draw” would also make liberal panel rulings less likely, leading to conservative outcomes without the need for en banc rehearing. The vacant seats have been without nominees for quite some time-even before the president’s poll ratings dropped, energizing the Democratic opposition-although the Republican Senate majority would confirm nominees of a conservative Republican president. The Democrats have enough votes to filibuster some nominations, as they did with William Myers, and their objections led other nominees to withdraw. Yet most of this president’s 9th Circuit nominations have, in fact, been approved. Why has the president not acted? Nominations have regularly been made in other circuits, which already have Republican-appointed majorities. Why, then, is that not happening in a circuit whose majority the Republicans want to change? Is it easier to make political hay by advocating circuit-splitting even when a more effective path to the goal is available? Perhaps Karl Rove could tell us. Another part of the picture is that for several years, the Judicial Conference of the United States has recommended creating new, desperately needed judgeships for both appellate and district courts. Yet this proposal has been bottled up because some legislators have tied the 9th Circuit division to it-no split, no judgeships-although without the tie-in, the new judgeships would likely pass with relative ease. Thus, every day spent on the circuit split delays the new judgeships, making it a further case of Republicans cutting off their noses to spite their faces. If they could pass the judgeship bill, they would have more openings to fill nationally, and there would be seven more in the 9th Circuit-more than the four vacancies not yet filled. And if this were done promptly, the Republicans would most likely be able to obtain at least three or four of the seven during this administration. It is not too late for the Republicans to reverse course. Without the circuit split, a judgeship bill could be on the president’s desk early this year, with the president beginning to seek nominees before the bill passed. And the Republicans in the West-not just those in Nevada and Arizona, but those in California as well- would get a substantially more conservative circuit without the disruption, cost and time-consuming political controversy involved in pushing for a circuit split. Stephen L. Wasby, professor of political science emeritus at the University at Albany-State University of New York, and the author of numerous studies of the 9th Circuit, lives on Cape Cod. He can be reached at [email protected].

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