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Though many considered it to be a dead issue, the House of Representatives will hold hearings Tuesday on whether to split the nation’s largest federal appellate court in two. The move comes as a surprise to many on the 9th U.S. Circuit Court of Appeals, who were told last week that a variety of bills to split the circuit were likely to fail. “It was very short notice,” Chief Judge Mary Schroeder, who will testify against the bill, said Friday. The bill that spawned the hearing is sponsored by Mike Simpson, R-Idaho. It would keep Arizona, California and Nevada in the 9th Circuit, with Alaska, Hawaii, Oregon, Washington, Idaho and Montana forming a new 12th Circuit. That type of split is similar to others proposed in the last several years. However, the efforts seemed dormant — until the court’s controversial decision last month barring the use of the phrase “under God” in the Pledge of Allegiance. Simpson called the decision “out of touch with reality,” and Sen. Frank Murkowski, R-Alaska, vowed to affix an amendment that would divide the 9th Circuit to every piece of legislation until he got a vote. Last Monday, however, Leonidas Ralph Mecham, head of the Administrative Office of the U.S. Courts, told the 9th Circuit at its annual conference not to take the efforts seriously. “You will not have an identity crisis — as far as I can tell — this year, anyway,” Mecham said. A complete witness list could not be obtained by press time, but Schroeder and Judge Sidney Thomas, of Montana, are planning to speak against the bill. Judge Diarmuid O’Scannlain, of Oregon, will testify in support, as will Idaho Attorney General Alan Lance. They will testify before a House Judiciary subcommittee. “Al recognizes that the Ninth Circuit is a big and cumbersome dinosaur that is in dire need of reorganization in order to provide better judicial service throughout for all the people of the West,” Simpson said in a statement. O’Scannlain has testified in support of similar bills, arguing that the sheer size of the court makes it difficult for judges to read all the law the court makes. Proponents of a split point out that there are 54 million people within the 9th Circuit. “From my point of view, at least, it should be looked at on the merits,” regardless of the extra attention the Pledge case has brought, O’Scannlain said Friday. Politicians in the more conservative Northwest area have long complained that the court is too liberal and dominated by California, which contributes roughly half of the court’s workload. To head off further congressional battles, proponents and detractors agreed to study the issue in 1997. A committee headed by former U.S. Supreme Court Justice Byron White recommended against splitting the circuit. “It’s been studied before and it’s been rejected before,” Schroeder said. Carl Tobias, a University of Nevada-Las Vegas law professor, said any split should address workload issues: a purely geographic split without redistributing judgeships — as Simpson’s bill proposes — could result in an even higher workload for judges in the new 9th Circuit. “In terms of expediting cases, it wouldn’t happen in the [proposed] 9th,” Tobias said.

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