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It’s been going on for so long, it’s become something of a ritual. The 9th U.S. Circuit Court of Appeals issues a controversial decision, causing much gnashing of teeth and pulling of hair among members of Congress, who rush to declare that they’ve finally had it and are going to split up the circuit. And then nothing happens. The 108th Congress will probably be no exception. Although three circuit-splitting bills have been introduced, their sponsors concede that there is little likelihood of passage before year’s end and the start of a new Congress. But there are signs that Congress’ interest in a division of the circuit is moving beyond mere rhetoric. Past proposals that would have allocated judges and caseloads purely along state lines were often criticized for leaving whatever new entity gets California with a much greater reduction in its roster of judges than in its workload. Two of the new proposals address that problem by creating new judgeships for a rump 9th Circuit and by allowing judges in the new circuit (or circuits) to help out with the 9th Circuit’s workload on an ad hoc basis. One of those proposals, H.R. 2723, introduced last year by Rep. Michael K. Simpson, R-Idaho, would create seven new judgeships in a reduced 9th Circuit consisting of California, Nevada and Arizona. It would create a new 12th Circuit comprising Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands. Another reason to suspect that Congress is moving closer to action is that the geographical base of support for a split appears to have broadened. “[S]ince the 98th Congress, every legislative proposal to split the Ninth Circuit (a total of 16) has been introduced and cosponsored by Congressional members from the Pacific Northwest — i.e., those jurisdictions that would be severed from the Ninth Circuit to create a new Twelfth Circuit,” according to a letter Patricia Lee Refo, a partner in the Phoenix office of Snell & Wilmer, submitted to a House subcommittee last year, writing in her capacity as chair of the American Bar Association’s Section of Litigation. As if to put the lie to that statement, this year Sen. John Ensign, R-Nev., introduced a bill that would divide the circuit in three ways. Under S. 2278, the 9th Circuit would consist of California, Hawaii, Guam and the Northern Mariana Islands. Idaho, Montana, Nevada and Arizona would make up a new 12th Circuit. Alaska, Oregon and Washington would form a new 13th Circuit. Like H.R. 2723, Ensign’s bill would create seven new judgeships, but it differs in that only six would be assigned to a reduced 9th Circuit. Only S. 562, introduced last year by Sen. Lisa Murkowski, R-Alaska, provides no new judgeships or workload-sharing mechanisms. Murkowski’s bill would leave the 9th Circuit with California and Nevada and would form a new 12th Circuit out of Alaska, Arizona, Guam, Hawaii, Idaho, Montana, the Northern Mariana Islands, Oregon and Washington. The bill is sometimes called the “hopscotch” proposal because the new 12th Circuit would reach over the 9th Circuit to include the noncontiguous Arizona. PARTISAN MOTIVE? In testimony before a Senate subcommittee in April, 9th Circuit Chief Judge Mary M. Schroeder argued that no division should take place until “there is demonstrated proof that a circuit is not operating effectively.” In addition, she hinted that the “[j]udicial independence [that] is a constitutional protection for all our citizens” is jeopardized by restructuring proposals prompted by “particular decisions by particular judges.” Schroeder has good reason to think that at least some members of Congress are reacting to particular decisions. For instance, in floor remarks on Nov. 12, 2003, Sen. Kit Bond, R-Mo., described the 9th Circuit as “the most liberal, most overruled, most out of touch circuit court in the nation.” He added a list of horribles: “[A] panel of Ninth Circuit judges tried to stay the recall election in California. The Ninth Circuit judges declared that the words ‘under God’ in the Pledge of Allegiance are unconstitutional … .Two Democrats appointed to the Ninth Circuit ruled that convicted felons serving a life sentence have a fundamental right to procreate by artificial insemination. Are they in the mainstream?” But partisan distemper isn’t the only explanation for movement on the issue, as evidenced by some of the other people who have come to support a split. Ninth Circuit Judge Diarmuid F. O’Scannlain, appointed from Oregon by President Ronald Reagan, testified in favor of dividing the circuit at both House and Senate hearings during the 108th Congress. “Simply put, the Ninth Circuit is too big,” he told the Senate Judiciary Subcommittee on Administrative Oversight and the Courts in April. “Nine states, thirteen thousand annual case filings, forty-seven judges, and fifty-seven million people are too much for any non-discretionary appeals court to handle satisfactorily,” he said. University of Pittsburgh law professor Arthur D. Hellman, who has long made a study of the 9th Circuit, sometimes at the behest of the court itself, has in prior congresses been opposed to dividing the circuit. But last October, he told the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property that “recent developments lead me to believe that the idea of dividing the circuit deserves a fresh look.” He noted that if Congress adopted the U.S. Judicial Conference’s recommendation that seven new judges be appointed to the 9th Circuit (a recommendation incorporated into H.R. 2723 and S. 2278), the court would pass the 50-judge mark (35 active judges and 15 to 20 senior judges), raising “a real question whether the judges on a court of that size will be able to know one another as members of a court should do.” Hellman saw potentially worrisome signs in the 9th Circuit’s tardiness in resolving cases (relative to the other circuits), and in the fact it typically takes close to four years before a new appointee will have served on panels with all the other active members of the court. Even so, Hellman still thought it a close question, and urged Congress to hold off “unless the proposed reorganization had substantial support from the judges and lawyers in the affected region.” Hellman testified before the idea of a three-way split was on the table. In an interview, he expressed reservations about Ensign’s proposal. He said that a widely accepted rule of thumb was that each circuit should contain at least three states, to ensure that appointments to the court are not under the control of a narrow bloc in the Senate. He suggested that efforts to devise courts of geographical homogeneity (which has sometimes been the stated goal of restructuring proponents) were misguided, since diversity of viewpoint improves a court’s deliberations and sufficient unity is ensured by the fact that the court’s subject matter is “a body of federal law that binds everybody.” THE RECALL ELECTION In his testimony, Judge O’Scannlain focused on one item that made it onto Bond’s list of horribles: the California recall case. He pointed out that a three-member panel ruled unanimously in September 2003 that the recall election (which ultimately gave the governorship to Arnold Schwarzenegger) could not go forward because of irregularities in the state’s vote-counting technology. S.W. Voter Registration Educ. Project v. Shelley, 344 F.3d 882. But, he added, when the case was submitted to one of the 9th Circuit’s en banc panels (which, unlike those in other circuits, do not include all active members of the court), the election was allowed to go forward, in another unanimous decision. 344 F.3d 914. “Because each en banc panel contains fewer than half of the circuit’s judges and consists of a different set of judges, en banc decisions do not incorporate the views of all judges and thus may not be as effective in settling conflicts or promoting consistency,” he concluded. Oddly enough, his 9th Circuit colleague Judge Alex Kozinski (also appointed by Reagan, but from California) pointed to the same case to show the efficiency of the court. He noted that the entire case, from filing in the district court to final resolution, took place in the short space between Aug. 7 and Sept. 23 and resulted in no delay in the election. Kozinski argued that there was no need for restructuring since the court had developed a technologically advanced case-monitoring system to deal with its large workload. Because cases are grouped by common issues, he noted that in 1999, “one three-judge panel was able to resolve approximately ninety cases involving the same issues in a single sitting.” NO CONSENSUS YET Is there a consensus among practitioners and judges that the 9th Circuit needs restructuring? Not yet. The American Bar Association remains opposed to it, according to spokeswoman Debbie Weixl. A bipartisan group of prominent California attorneys has come out foursquare against restructuring. On April 12, Republican Eric M. George (of Beverly Hills, Calif.-based Browne & Woods); Democrat Ronald I. Olson (of Los Angeles’ Munger Tolles & Olson); and 13 other attorneys sent a letter to the California congressional delegation urging them to “present a unified and vocal opposition to this misguided effort.” One of the co-signers, Elizabeth J. Cabraser of San Francisco’s Lieff Cabraser Heimann & Bernstein, said in an interview that she sensed no clamor for restructuring among circuit lawyers either inside or outside of California. She added, “This is not the time economically for something that would cost a lot of money and be very disruptive.” Hellman said it was his impression that lawyers outside California have not been pushing restructuring. There is some support among 9th Circuit judges, however. O’Scannlain testified that eight other circuit judges shared his views. Seven of them were nominated by Republican presidents, with Richard C. Tallman (a Clinton pick from Washington) being the exception. That three of the eight are from California is surprising, since any split would likely result in a bigger workload for California-based judges. But all three are on senior status. The three active judges who joined O’Scannlain are Stephen Trott (Idaho), Andrew Kleinfeld (Alaska) and Tallman. Asked to speculate on why judges from the Pacific Northwest seem to be the strongest backers, Hellman said, “They could have a circuit of five or six states and eight or nine judges. They would be able to carry on the appellate function in a way that was the norm 30 years ago. Many people still think that’s a better way to do things.”

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