U.S. Court of Appeals for the Ninth Circuit
U.S. Court of Appeals for the Ninth Circuit (S. Todd Rogers / The Recorder)

SAN FRANCISCO — Two days ahead of a congressional hearing to delve into the possibility of splitting the U.S. Court of Appeals for the Ninth Circuit, an administrative body that oversees the federal courts suggested adding five permanent positions to the court.

The Federal Judicial Conference on Tuesday included a request for five new Ninth Circuit seats among the 57 new Article III positions it is recommending that Congress create as part of a biennial review of federal caseloads. All the positions recommended by the 26-member policy-making arm of the federal judiciary would be at the district court level except the Ninth Circuit slots.

The move comes as the U.S. House of Representatives Judiciary Committee’s subcommittee on courts, intellectual property and the internet prepares for a hearing Thursday morning to explore the possibility of splitting the Ninth Circuit. The court comprises 29 active judgeships, four of them presently vacant. The current roster also includes 19 senior members.

Arthur Hellman, a Ninth Circuit scholar at the University of Pittsburgh School of Law, said the timing of Tuesday’s announcement by the Judicial Conference was “a total coincidence,” but also a “very interesting one.” Proponents of splitting the court have long cited the Ninth Circuit’s outsized caseloads and long delays between filing and opinion as reasons for dividing the left-leaning court. But Hellman and other court watchers point out that one way to remedy those problems would be to grant new posts.

UC-Hastings law professor Rory Little, the former appellate chief of the San Francisco U.S. Attorney’s Office, said that the calls for a split made more sense to him in past decades before the court revamped its technological systems to manage case flows. Little said the Ninth Circuit, which streams and archives oral arguments online for most cases, is “far ahead of every other circuit” in terms of giving the public access to proceedings via technology. Hellman concurred. “I think that’s in part because of their size. It is feasible for them to have a large support staff of specialists who deal with these little aspects of management,” he said.

Circuit Chief Judge Sidney Thomas and Judges Carlos Bea and Alex Kozinski are among those set to testify at Thursday’s House subcommittee hearing. All three joined a list of 30-plus Ninth Circuit judges opposing a split in the circuit more than a decade ago, the last time there were serious discussions on the topic.

Carl Tobias, a professor at the University of Richmond School of Law, called Thursday’s hearing the “opening salvo” in the latest call to split the Ninth Circuit and said he expects the U.S. Senate to follow suit with hearings of its own. Tobias said that though he could see a bill to split the Circuit passing out of the House easily, he thinks Senate Republicans would struggle to find the eight Democratic votes they’d need to foreclose the possibility of a filibuster. “In the past, at least, it’s been along party lines,” Tobias said. Hellman agreed that a standalone bill to split the circuit isn’t likely to pass through the current Senate, but he said he could see some sort of “package” deal combining a split with the creation of new judges drawing wider support.

Elsewhere in California, the Judicial Conference is recommending that Congress create two new permanent positions in the Northern District, five in the Eastern District, three in the Southern District and seven in the Central District, as well as making one temporary seat there permanent.

Contact the reporter at rtodd@alm.com. On Twitter: @Ross_Todd