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Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill. While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee. And there’s an added bonus, said Jeff Lungren, a spokesman for House Judiciary Committee Chairman James Sensenbrenner, a Wisconsin Republican: “Protections on the Senate side; I don’t believe it’s subject to filibuster.” With the Senate seen as the key stumbling block to splitting the circuit — historically, a cause championed by conservatives worried that California tilted the nine-state court too far to the left — the latest move is seen as a headlong charge toward breaking up the court. The provision would break Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona away from the 9th. “It’s a very, very aggressive tactic,” said Arthur Hellman, a professor at the University of Pittsburgh School of Law and an expert on the 9th Circuit. “In my mind, it’s a very significant move and has a greater chance of success than any of the similar moves in recent years.” The reconciliation bill is a relatively rare tool and has not been used for budget cuts since 1997. Split opponents hope that a rule allowing senators to strike provisions not directly related to spending can get the split proposal dropped. But Lungren said it’s not yet clear whether that rule applies. Hellman said that by tying the circuit split to dozens of new federal judgeships as well as the spending cuts, the measure could get through without the Senate consideration it deserves. “It’s a very bad way of legislating a change to the judicial code,” Hellman said. Chief Judge Mary Schroeder agreed. “It’s just treating the courts with utter disrespect, and we have to enforce the laws,” she said. “I’ve never heard of an attempt to bypass an entire body, a house of Congress.” While the tactic is new, there have been plenty of moves to split the 9th Circuit in recent decades, though only three of the court’s 28 active judges want the division. Just last week, the Senate Judiciary Committee heard spirited testimony from judges on its own split proposal. One of those judges, Diarmuid O’Scannlain, supports the split because he sees the circuit as simply being too large to function properly. And while O’Scannlain wouldn’t comment on the legislative tactics used to push the measure, he praised the House split proposal on Tuesday. “As far as the merits of the bill are concerned, they’re absolutely solid,” he said. “The beauty of this bill is it takes care of California’s needs for a long time with seven new judgeships.” But, as the Senate hearings made clear last week, O’Scannlain is in the minority. On Oct. 21, Judge Carlos Bea — a George W. Bush appointee — wrote a letter to senators on behalf of three other recent appointees urging them not to split the court. “It is all too easy to look at the Ninth Circuit’s size and caseload from the outside and summarily conclude changes are needed. But take it from some recent arrivals who are on the inside,” he wrote, “its administrative efficiency is second to none.” Sensenbrenner disagrees with that, Lungren said, and would have attached the measure to the spending-cuts bill earlier had Hurricane Katrina not intervened. Scott Gerber, a spokesman for Sen. Dianne Feinstein — an outspoken opponent of splitting the circuit — said the California Democrat plans to write a letter to representatives objecting to the tactic. “It’s a very bad way of legislating something that’s important,” Gerber said.

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