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The U.S. Court of Appeals for the D.C. Circuit is one signature away from becoming an 11-judge court. Buried in the Court Security Improvement Act, which the House and Senate approved last week, is language that removes one seat from the D.C. Circuit’s 12-judge active bench and gives it to the U.S. Court of Appeals for the 9th Circuit. The D.C. Circuit’s 11th and 12th seats have been vacant since 2005, when Chief Justice John Roberts Jr. was elevated to the Supreme Court and Judge Harry Edwards took senior status. President George W. Bush tapped then-Assistant Attorney General Peter Keisler to fill Roberts’ spot in June 2006 and, again, in January of this year, but Senate Democrats have held up his nomination. Keisler, who was named acting attorney general after Alberto Gonzales resigned in August, left the Justice Department in November. The court security bill had been stalled in recent weeks by negotiations between Sens. Arlen Specter (Pa.) and Jeff Sessions (Ala.), both Republicans on the Senate Judiciary Committee. Specter had been pushing language that would have given all senior district judges the administrative powers that regular judges enjoy, including a vote on the selection of magistrates. Instead, the bill gives those powers to only those senior district judges who work 50 percent of a full caseload. Neither Sessions’ nor Specter’s office responded to calls for comment. Senate Judiciary leaders had been working with House members to address their concerns before sending the bill to the Senate floor. One of those concerns from the House involved the 9th Circuit seat. Under pressure from Rep. Howard Berman (D-Calif.), the seat won’t materialize until Jan. 21, 2009 — the day after Bush leaves office. Ninth Circuit Chief Judge Alex Kozinski says he hopes the new seat will break the logjam surrounding the one current vacancy on the court, which was created when Judge Stephen Trott took senior status in 2004. Trott moved to Idaho from California during his tenure, and both states’ political leaders are vying for the court’s 28th seat. “Once this goes into law, I hope the president will nominate the 28th slot,” Kozinski says. But Sen. Dianne Feinstein (D-Calif.) reiterated her position that the newly created seat — a California slot — does not mean the Trott vacancy should go to Idaho. Asked whether an Idaho nominee from Bush is dead on arrival in the Senate, Feinstein spokesman Scott Gerber says: “We think that seat has been a California seat, and we hope and expect it would be a California seat in the future.”
Dan Levine is a reporter with The Recorder , an ALM publication. Joe Palazzolo can be contacted at [email protected].

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