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Drowned out by the din of Florida’s contested presidential election is another recount, in Washington state, that could arguably have as much significance for the 9th U.S. Circuit Court of Appeals as the 43rd president. The nation’s last undecided Senate race, where two candidates are separated by less than 2,000 votes, could determine whether recurring efforts to split the court remain dormant. The Senate’s staunchest advocate for such a move, Republican Slade Gorton, appears to have lost his re-election bid. A mandatory recount was under way Monday, but millionaire software executive Maria Cantwell appears to have pulled an upset, and court observers say her win signifies a loss for those who think justice in the West would be better served by smaller divisions of the sprawling 9th Circuit. For the federal bench, it is not the only significant development of the extraordinary 2000 elections. Sen. Charles Grassley, R-Iowa, will apparently no longer head the committee that oversees the federal courts. Often a thorn in the sides of federal judges, the leader of the Senate Judiciary Committee’s subcommittee for administrative oversight of the courts is moving on to bigger and better things. Gorton has been one of a handful of steady Senate advocates for splitting the circuit, most of whom hail from the Northwest. A former lawyer and experienced legislator, Gorton has emerged over the years as perhaps the Senate’s most eloquent advocate for a split. Some Republican-appointed judges expected the simmering fight to erupt again in the near future, although those who led the drive to fend off the most recent efforts to split the court say they haven’t heard that it will. But the question is likely moot if Gorton’s apparent loss stands up. “If Gorton loses, I think that would be a major loss to the pro-split forces,” said University of Pittsburgh Law School Professor Arthur Hellman, who has written two books about the court. “I think that kills splitting the circuit anytime soon,” said Hastings College of the Law professor Rory Little, who has called a circuit split inevitable. A Gorton loss doesn’t mean the debate has ended. He wasn’t without allies on the issue, and Sen. Conrad Burns, R-Mont. (who nearly lost his re-election bid to a farmer from Whitefish) or Sen. Frank Murkowski, R-Alaska, could assume a leadership role. “It probably means that there’s one less voice in the Senate,” said 9th Circuit Judge Diarmuid O’Scannlain, himself an advocate for a circuit split. Those against splitting the court will also lose an ally in Rep. Henry Hyde, whose six-year term as head of the House Judiciary Committee has expired. As someone who was against dividing the circuit, Hyde had both the seniority and the credibility to stand up to those in his own party as the debate descended into partisanship. Senior Judge James Browning, who has worked closely with Congress in trying to preserve the circuit, said he has no indication that the debate will arise again, although he was cautious with his words. “I don’t think it’s dead forever, because as you know it’s been an issue since the 1930s,” Browning said. “It depends on the evaluation of the political people in the area. It’s always been an issue in the Northwest.” Murkowski introduced several bills to split the circuit that died in committee. But a representative would not say if the senator planned to introduce another in the upcoming term. “He has not said what he’s going to do in the upcoming session,” a spokesman said. Four years ago, Grassley conducted a controversial survey of federal judges’ spending habits. He also has spoken out against what he considers lavish spending on judicial conferences, and in response, the 9th U.S. Circuit Court of Appeals moved the conferences to less exotic locales before returning to Sun Valley, Idaho, this year. Grassley has also vociferously opposed some 9th Circuit nominations, including Judges William Fletcher and Richard Paez. Grassley is expected to become head of the powerful Senate Finance Committee. He’ll be moving on because Finance Committee chair William Roth, R-Del., lost his re-election bid. Grassley is the committee’s second-most senior Republican. Under Senate rules, his elevation to an A-level committee chair means he can no longer head a subcommittee. There is little chance that Democrats will control the Senate, meaning that no Democrat will take Grassley’s seat, even if Gorton’s loss leaves a 50-50 partisan split in the Senate. If Texas Gov. George W. Bush wins, Dick Cheney, his vice presidential candidate, will cast the tie-breaking vote. If Al Gore wins, Joseph Lieberman, his vice presidential candidate, will vacate his Senate seat. A successor would be appointed by Connecticut’s Republican governor.

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