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Sen. Arlen Specter (R-Pa.), the chairman of the Senate Judiciary Committee, recently expressed his support for pending legislation to split the U.S. Court of Appeals for the 9th Circuit into two smaller circuits. Specter’s support makes it more likely than ever that the proposal will be favorably reported from the Judiciary Committee to the full Senate, where the legislation is certain to gain the support of a majority of senators, as well. The Republican-dominated House of Representatives has previously voted to approve legislation to split the 9th Circuit, making it quite likely that someday soon President George W. Bush will be able, with the stroke of his pen, to split the 9th Circuit in two and thereby create the U.S. Court of Appeals for the 12th Circuit. In the forthcoming debate over this legislation, opponents of a 9th Circuit split are sure to repeatedly invoke the argument that the nation’s largest federal appellate court should not be split in two over the objection of a majority of that court’s own members. Opponents of a split will insist that two earlier circuit splits, which created the 10th Circuit from the original 8th Circuit in 1929 and the 11th Circuit from the original 5th Circuit in 1981, both had the overwhelming support of a majority of the judges on those federal appellate courts. Split opponents will also contend that the judges who serve on the federal appellate court being challenged as too large to function properly have the best vantage point for determining whether that challenge is well founded. And lastly, opponents of a circuit split will argue that reducing the 9th Circuit, with its current gargantuan geographical and caseload size, to a federal appellate court consisting only of the states of California and Hawaii and the territories of Guam and the Northern Mariana Islands will result in a 9th Circuit that nevertheless remains too large to function properly according to the logic of circuit-split proponents. Are these three reasons, either individually or in combination, sufficient to derail the majority-supported legislation to divide the 9th Circuit? I do not believe so, as I now turn to explain. CONGRESS’ POWER First, the argument that it would be disrespectful and a break with the past for Congress to legislate a circuit split that lacked the support of a majority of the judges on that court relies on only two data points from the past. No one doubts that Congress possesses the legislative power to divide existing federal appellate courts or create new ones. But it’s simply not persuasive to say that, merely because Congress had the support of a majority of affected judges in splitting two earlier circuits, such support is now a requirement without which no existing federal appellate court may be divided. Slightly more persuasive is the argument that the 9th Circuit’s judges possess a superior vantage point for deciding whether that court is operating properly and efficiently. I don’t dispute that 9th Circuit judges have knowledge of that court’s internal functioning that is unavailable to most of the rest of the general public. Nevertheless, I do disagree that the views of the 9th Circuit’s own judges concerning whether that circuit is too large are entitled to vastly more weight than any other knowledgeable observer’s views on that subject. You don’t need to be a judge on the 9th Circuit to know how many cases that court is deciding each year, how long it takes on average from the filing of a notice of appeal to a ruling on the merits, whether the 9th Circuit is too large to succeed in maintaining a body of precedent that is internally cohesive, or whether the 9th Circuit is succeeding in deciding cases in a manner that sufficiently respects existing Supreme Court precedent. In addition, one does not need to be a 9th Circuit judge to conclude that the court’s judges are coping with too large of a caseload; it is taking too long for the court to decide cases; it is proving impossible for the court’s judges to remain familiar with the court’s own precedential rulings; the court’s mini- en banc panels are not an appropriate substitute for en banc proceedings in which all of the court’s active judges participate; and the court’s reversal rate over the past 10 to 15 years at the hands of the Supreme Court is far too high. For all of these reasons, I do not believe that Congress must, or even should, accord veto power to a federal appellate court’s judges on the question of whether that court should be split in two. The views of the 9th Circuit’s judges on that question are certainly entitled to respect and consideration, but they should not be controlling. STILL IMMENSE Some valid arguments do exist for opposing a split of the 9th Circuit. To begin with, even the new 9th Circuit would have 20 active judges, which makes the court, from the outset, larger than the optimal size for a federal appellate circuit. The new 9th Circuit would continue to handle an immense caseload. Not only would the new 9th Circuit be too large, but in one respect it would actually be too small, in that it would be the first regional appellate court to consist of only two states. And finally, creating a new 12th Circuit would be very costly in financial terms. Stated plainly, the question facing Congress is whether, even though the new 9th Circuit would remain too large in terms of caseload and number of judges, the seven states that would make up the new 12th Circuit — Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington — deserve to be freed from the 9th Circuit’s current intractable problems and placed into a more normal-size judicial circuit. I continue to be of the view that a split of the 9th Circuit should occur, and thus the only remaining consideration is figuring out the best and fairest way to accomplish it. Even with Specter’s support, a split of the 9th Circuit is not guaranteed to happen anytime soon. Sen. Dianne Feinstein (D-Calif.) serves on the Judiciary Committee and is a fervent opponent of splitting the 9th Circuit. Her opposition will make it more difficult for the committee to report legislation authorizing a split to the full Senate. And even if such legislation does make it to the floor of the Senate, it could then be subject to a filibuster or other legislative tactics that could doom its fate. A split of the 9th Circuit is overdue, but whether it will in fact happen in the near future remains to be seen. Congress should listen to the views of the 9th Circuit’s judges — pro and con — on this issue and then independently decide what is best for the affected states and the judicial system as a whole.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. His appellate Web log is located at howappealing.law.com. This article first appeared on law.com, an ALM Web site.

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