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The 9th Circuit may need to move en banc arguments to an auditorium, if an Idaho congressman gets his way. Rep. Mike Simpson introduced a bill last week that would force the 9th Circuit’s entire roster of active judges — 28 when the bench is full — to hear en banc appeals. The court currently has 11 judges hear a case en banc. That puts it in stark contrast to the country’s other circuits, where all active judges sit for those rehearings. But none of the other regional appellate courts approaches the 9th Circuit’s size. The second-biggest is the 5th Circuit, with 17 judicial seats. Simpson, a Republican, is also a proponent of splitting the 9th Circuit into smaller pieces. “All these different efforts we’re doing are trying to make the 9th Circuit more like other circuits,” he said. Republicans in the House of Representatives passed a plan to split the circuit in the fall, tying it to a Senate measure that would have created 58 new judgeships around the country. That measure was blocked in the Senate Judiciary Committee by California Democratic Sen. Dianne Feinstein — she wants new judges but chastised Republicans for slipping the breakup controversy into the package. Since then, Simpson has introduced two more bills that would carve the 9th Circuit into two or three pieces. Ironically, the en banc bill he proposed last week almost mimics a 1999 move by Feinstein to get bigger en banc panels in the 9th Circuit. However, the bill she introduced would have required just a majority of the active judges to take part, not all of them. Simpson said his en banc bill is, in part, an attempt to highlight what he sees as one of the most persuasive arguments for splitting up the 9th. As it stands now, “they pull … names out of the hat” and a majority of six can decide, he said. “It’s a luck-of-the-draw sort of thing.” If he still can’t persuade enough legislators to split the circuit, he added, bigger en banc panels are the next best thing. Asked if he could imagine arguing in front of 28 judges at once, he answered with a laugh, “No, I can’t.”

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