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HONOLULU � While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit. Among judges at the conference here, one expressed concern that members of the U.S. Supreme Court may join the split camp, and others criticized a recent newspaper opinion column that linked circuit size to the likelihood of “extreme” decisions. The Los Angeles Times op-ed that has some judges grousing was written by Vanderbilt University Law School Professor Brian Fitzpatrick, who was also a law clerk to 9th U.S. Circuit Court of Appeals Judge Diarmuid O’Scannlain of Portland, Ore., an outspoken supporter of a circuit split. Fitzpatrick suggested that “it can be shown mathematically that as a court grows larger, it is increasingly likely to issue extreme decisions.” Fitzpatrick said that on a court of 27 active judges � the current number serving on the 9th Circuit appeals court � it is fairly likely that with just six judges holding “extreme” views, two would be randomly selected for a three-judge panel. But in a split circuit of just 14 judges � and just three “extremists” � it less likely that two extremists would be selected for a three-judge panel. Of the potential for “extremist” decisions in a large circuit, Chief Judge Mary Schroeder said, “You have got to be kidding. We don’t appoint the judges, the president does. You don’t split up a court because you don’t like the decisions it makes.” Years of complaints For years, opponents of the various circuit-split proposals have complained that the issue intensifies when the circuit issues unpopular rulings, such as its now-overturned decision barring the use of the phrase “under God” in the Pledge of Allegiance. Schroeder noted in the circuit’s annual report issued this week that, at the peak of congressional efforts last year to split the 9th Circuit, 33 of the 47 total active and senior judges signed a statement of opposition to a split. Added to that was the support of 80 judges from district and bankruptcy courts in the circuit and 385 law professors nationally. She reassured the 700 judges and lawyers from around the West who gathered in Honolulu for the conference: “We have been through many struggles over the past decade to maintain the geographical integrity of our circuit.” Those struggles have slackened now that Democrats control the Congress. A signal from justices? Yet Terry Hatter, former chief judge of the U.S. District Court for the Central District of California, based in Los Angeles, expressed concern that the U.S. Supreme Court’s intense attention to 9th Circuit cases and the 90% reversal rate in the last session may be an “attempt to signal to members of Congress who want to split the court that they may support it.” In its past term, the Supreme Court granted review to 21 appeals from the 9th Circuit and reversed 19. Judge Connie Callahan, a 9th Circuit judge based in Sacramento, Calif., appointed by President George W. Bush, opposes any split. She said the biggest problem of a division is the percentage of cases generated by California. The state would always dominate any division of the current nine states in the circuit. “I have always been of the view that we gain with people from different states on the court,” she said. Judge Michael Daly Hawkins, a 9th Circuit judge from Phoenix and an appointee of Bill Clinton, said, “The vast majority of judges, whether Democrat or Republican appointees, are strongly against the split. Some of the most vocal are Republican appointees,” he said, singling out Judge Carlos Bea of San Francisco, who was appointed by Bush. The situation might be different if the judges were equally divided over the split, or a majority supported it, he said. While Hawkins acknowledged the court has to deal with caseload increases, he added that “[t]here is no sensible way to split the circuit that will deal with the caseload and appease the politicians in Congress.” Judge Richard Tallman of Seattle, a Republican appointed to the 9th Circuit by Clinton, testified in support of the circuit split last year. “The root concerns that caused me to testify for the split still exist and those problems will continue to plague the circuit over time.” He rejected the notion that opposition to liberal decisions has driven the split support. “It is not a factor. I am interested in the most effective way to handle cases,” he said. “At some point, the court will get too big,” Tallman said. “I accept the political reality [that the split is dead for now], but I am confident the problems will continue to plague us and eventually Congress will step in,” he said.

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