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Junkie
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Splitting the 9th circuit, could it happen?
http://www.abanet.org/journal/ereport/s22ninth.html
Quote:
DOJ SWITCHES SIDES ON 9TH CIRCUIT SPLIT
Wednesday’s Testimony Latest Twist in 35-Year-Old Debate
BY MOLLY McDONOUGH
After nearly 35 years of debate over dividing the nation’s largest federal appellate court, the Justice Department has reversed its previous stance and is now weighing in on the side of a split.
Testifying before the Senate Judiciary Committee on Wednesday, Rachel Brand, assistant attorney general in the DOJ’s Office of Legal Policy, stated the time is right to split the overburdened, oversized 9th U.S. Circuit Court of Appeals, which is based in San Francisco.
The circuit’s size—it encompasses nine states with a total population of 58 million people—has resulted in delays and inconsistencies in opinions. Brand testified that the appellate judges are known to quickly turn around decisions after oral argument, but that the circuit takes more than four months longer than others from the point of filing the appeal to final disposition.
Contributing to these inconsistencies is the circuit’s unusual en banc procedures, which call for 15 out of the 28 active judges on the court to resolve a dispute en banc, Brand testified. In a close case, eight judges, a minority of the full court, could decide a key issue.
Brand was one of 12 witnesses—six in favor of a split, six opposed—who testified about the legislation, which has been introduced by Sen. Lisa Murkowski, R-Alaska, and Rep. John Ensign, R-Nev. Their bill would leave California and Hawaii in the 9th Circuit and create a 12th Circuit to cover Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona. It also would add seven more judges, likely to remain in the 9th Circuit.
Legislation to split the circuit passed the House last year, but never reached a vote in the Senate.
The Justice Department’s new position and a growing interest in Congress in splitting the circuit—seven circuit restructuring bills have been introduced this Congress alone—may indicate a sea change.
The Justice Department is one of the most frequent litigants in the federal courts. In 1998, the last time the department weighed in on the issue, it opposed the split. But Brand said the DOJ has since come to the conclusion that, while the 9th Circuit has responded to its rapidly growing caseload by being "innovative and creative," it has done so in large part by delegating certain functions to nonjudges. That will only work for so long, she said.
Sen. Dianne Feinstein, D-Calif., who serves on the Judiciary Committee and has long opposed calls to split the circuit, challenged Brand on the Justice Department’s sudden interest. "I can only conclude that this is political [and] has nothing to do with the performance of the circuit," Feinstein said.
Feinstein was among those who pointed out that, despite the balanced nature of the hearing, there have not been calls for a split from large numbers of lawyers and judges—the people most affected by the issue.
This is in contrast to the circumstances that surrounded the 1981 split of the New Orleans-based 5th Circuit and creation of the Atlanta-based 11th Circuit. Then, judges had asked for the division after a long debate.
ABA President-elect William H. Neukom also testified against the split, although he spoke in his capacity as a lawyer from Seattle and not as a representative of the ABA. A former legal adviser to Microsoft, Neukom opposes a split in part because, he said, it would disrupt laws of commerce and intellectual property interests.
He urged the committee to review the entire record, which includes letters from groups of law professors, judges and bar associations, all opposed to a split. Indeed, the American Bar Association, most of the state bar associations in the 9th Circuit, a majority of the district judges in that circuit, and as many as 23 of the current 26 active judges on the 9th Circuit oppose a split.
"The overwhelming majority of our court of appeals judges oppose a division of the circuit," Chief Judge Mary Schroeder testified, noting that past and future chief judges appointed by Presidents Eisenhower, Kennedy, Nixon, Carter, Reagan and Clinton share her views. "This has never been a partisan political issue for us."
But some consider political motivations a motivating factor. In 2003, two bills were introduced in the Senate to split the circuit after it declined to rehear en banc a case in which a panel ruled that the Pledge of Allegiance is an unconstitutional endorsement of religion. (The U.S. Supreme Court eventually threw out the case because it determined 8-0 that the plaintiff lacked standing. Elk Grove Unified School District v. Newdow, 542 U.S. 1., 2004.)
The Supreme Court’s frequent rejection of 9th Circuit opinions was another argument proponents cited as evidence of a need for a split. Pointing to a study conducted by Chicago-based 7th Circuit Judge Richard Posner, law professor John C. Eastman testified that the 9th Circuit is six times more likely to be unanimously reversed by the Supreme Court than any other circuit. Eastman, who teaches at Chapman University School of Law in Orange, Calif., attributed that to a lack of collegiality because there are so many judges facing enormous workloads in the 9th Circuit.
Chief Judge Schroeder disputed that there is a lack of collegiality and focused on what she considered a more critical flaw in dividing the circuit. California brings 70 percent of the cases to the 9th Circuit. Simply splitting it off and creating a new court infrastructure elsewhere does not resolve the caseload problem, she said. Even with the additional seven judgeships, the proposed division would leave the 9th Circuit with 500 cases per judgeship and the new 12th Circuit with 300 cases per judgeship.
Without the ability to draw in visiting judges from the other states, California and Hawaii, she said, "would be overwhelmed and would need at least 13 additional judges to bring its caseload even with the load of the judges in the new 12th Circuit."
The committee had scheduled the bill for markup Thursday to make any necessary changes or amendments should it decide to recommend the bill to the full Senate, but the committee did not get to the issue. Markups are also slated for next week.
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About time this was confronted. I hope it gets done quickly.
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"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."
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