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House budget sleeper splits the 9th Circuit
Zachary Coile, Chronicle Washington Bureau November 30, 2005
Washington -- A little-noticed provision in the massive House budget bill would fulfill the longtime goal of conservatives to split the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, creating a new 12th circuit appellate court and allowing President Bush to name a slate of new federal judges.
Conservatives long have claimed that the Ninth Circuit is too liberal, and that reputation was reinforced by the court's 2002 ruling that reciting the words "under God" in the Pledge of Allegiance in public schools was an unconstitutional endorsement of religion.
But legal observers say the outcome of such a split is likely to be a more liberal court making decisions for California, Hawaii, Guam and the Northern Mariana Islands and a more conservative court serving seven other Western states now part of the Ninth Circuit -- Alaska, Montana, Idaho, Washington, Oregon, Nevada and Arizona.
"The notion that splitting the Ninth is somehow going to take care of judicial activism is not borne out by the facts," said Manus Cooney, a Republican lawyer and former chief counsel to the Senate Judiciary Committee who opposes the proposal.
"The reality is you are going to have a much more liberal Ninth and a more moderate court in the 12th. ... For those who have problems with the Ninth and who have wanted to deal a blow to judicial activism, you don't deal a blow to judicial activism by establishing a court that is more liberal than the existing Ninth Circuit."
The proposal to split the court was not part of the Senate budget bill and is expected to be one of the many thorny issues House and Senate lawmakers will address as they try to merge the two bills over the next few weeks.
Although the effort to split the court has long been driven by ideology, sponsors of the measure say their motivation is to ease the workload of the largest federal appellate circuit in the nation.
"The Ninth has become so big -- in geographic size, in workload, in number of active and senior judges -- that it can no longer appropriately discharge its civic functions on behalf of the American people," said House Judiciary Committee Chairman James Sensenbrenner, R-Wis., the chief sponsor of the measure.
The Ninth Circuit is larger than other circuits, covering 40 percent of the country's landmass and representing about one-fifth of the nation's population. The court has 47 active or senior judges, nearly twice the number of judges as the next largest circuit.
The court also must review more cases than other federal appeals courts. About 15,000 new cases were filed in the Ninth Circuit this year, compared with 9,600 cases for the New Orleans-based Fifth Circuit, which had the next highest number of cases. But many lawyers and most judges on the appeals court dispute the notion that it cannot handle its current workload.
In testimony before a Senate committee last month, Ninth Circuit Judge Alex Kozinski, an appointee of President Ronald Reagan, said the court has kept pace with a mounting caseload -- most notably a five-fold increase in immigration cases over the last five years -- by skillful management of cases by court staff, an automated system for tracking filings and increased use of e-mail and videoconferencing.
"Dividing a circuit should only take place when: one, there is demonstrated proof that a circuit is not operating effectively, and two, there is a consensus among the bench and bar and public that it serves that division is the appropriate remedy," Kozinski said. "Neither of those conditions exists today."
In a recent letter to lawmakers, Carlos Bea, an appointee of President Bush to the Ninth Circuit, and two of his colleagues also argued against the plan, saying the court's "administrative efficiency is second to none."
Of the 28 active judges on Ninth Circuit, only three have expressed support for splitting the court.
One of those judges, Diarmuid O'Scannlain, said he previously opposed the split, but has come to believe that a court representing 58 million people with more than 15,000 annual filings is too unwieldy.
"The sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, our clarity and even our collegiality," he testified at the Senate hearing. "Simply put, the Ninth Circuit is too big."
Critics of the legislation believe the issue is less about the efficiency of the court and more an ideological battle waged by lawmakers who dislike the court's decisions on issues ranging from medical marijuana to the Endangered Species Act.
"It's more about this myth of activist judges and reeling in the courts," said Todd True, a Seattle-based attorney for Earthjustice, an environmental group. "This is a manifestation of the poor relationship between Congress and the judiciary and the tendency of the Congress to want to bash the judiciary."
The plan is opposed by many California officials, including Republican Gov. Arnold Schwarzenegger and the state's two Democratic senators.
Sen. Dianne Feinstein has warned that if the court split provision remains in the final budget bill, she will raise a point of order and charge that the plan violates a Senate rule requiring that amendments to a budget bill must raise revenue or cut spending. A vote of 60 senators would be required to keep the provision in the bill.
Feinstein said she believes the proposed split would hurt California and Hawaii by leaving a new Ninth Circuit with 60 percent of its current judges but 72 percent of its caseload.
"This would substantially disadvantage judges and the citizens they serve," she said.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., and ranking Democrat Sen. Patrick Leahy of Vermont, also have sent Senate budget negotiators a letter opposing the provision in the budget bill, saying it first should be debated and voted on by their committee.
But the House measure got an endorsement this month from the Bush administration. The Justice Department issued a letter saying the proposal "would improve the administration of justice by providing for federal judgeships and by splitting the United States Court of Appeals for the Ninth Circuit."
Court watchers speculate that the administration backs the package because it would allow the president to name dozens of new federal judges across the country, including seven new appellate court judges for the Ninth Circuit.
Cooney said Bush has already used his previous nominations to reshape the Ninth Circuit -- and he still has four vacancies to fill on the court. Cooney said the president might have trouble getting seven additional judges confirmed.
"The last two years of a two-term president are relatively slow when it comes to judicial confirmations," Cooney said. "There is no guarantee that the next president is going to be a Republican or a conservative. What happens if the next president is a liberal and he or she sends up more liberal nominations? You would essentially be packing the court with liberal judges for the next several decades."
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