Should the 9th Circuit be split?

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Early Monday morning, the United States Court of Appeals for the 9th Circuit survived the most recent, and quite successful, attempt to divide the large appellate court which serves the West. At 6 a.m., the House passed budget reduction legislation which excluded a rider that would have bifurcated the 9th Circuit. The deleted proviso would have left California, Hawaii, Guam and the Northern Mariana Islands in that court and placed the remaining seven states in a new 12th Circuit.

Sen. Dianne Feinstein, California Democrat, characterized the decision to omit the circuit-splitting proviso as a "victory for judicial independence, for the legislative process, and for California and the other Western states that comprise the 9th Circuit." The appeals court's Chief Judge, Mary Schroeder of Phoenix, concomitantly observed: "I think it's very good news, and I'm very relieved because this was a matter of great concern to our judges" and elaborated that "the circuit-splitting effort was an attempt to ram through a bill on an unrelated measure." California's senior senator and the 9th Circuit's Chief Judge are correct. However, neither the senator nor the judge should break out the champagne anytime soon. This week's victory could prove ephemeral because Congress may reverse it as soon as the holiday recess concludes. Defeating the effort to legislate circuit-division by a rider means only that lawmakers will consider the issue through the full legislative process upon their return to Washington.

In early November, House members inserted in the budget reconciliation bill a provision that would divide the 9th Circuit, thereby preventing Senate Judiciary Committee and floor consideration of that important issue. Many lawmakers believed that use of a procedural technique to avoid serious evaluation and debate on a question of this significance was improper. In fact, Judge Schroeder remarked that "it's just treating the courts with utter disrespect" and that she "never heard of an attempt to bypass an entire body, a house of Congress." Over the last two decades, members of Congress have frequently called for 9th Circuit division. A principal argument involves the court's substantial magnitude. Split advocates contend that the 9th Circuit includes the biggest geographic area, has the largest number of judges and decides the most appeals, while this size promotes inefficiency and inconsistent decisionmaking. Certain proponents express dissatisfaction with the 9th Circuit's determinations, most notably the Pledge of Allegiance case, but they also criticize decisions in additional fields, such as the death penalty, as well as Indian,natural resources and water law. Opponents of 9th Circuit modification, including virtually all its judges, claim that the court resolves appeals promptly and fairly. Opponents also suggest that division champions have not proved the 114-year-old circuit encounters problems which are so grave as to necessitate a solution as drastic as bifurcation. Even were this showing made, there apparently is no practical means for restructuring the court because two-thirds of its appeals come from California.

In autumn 2004, the House passed a bill that would have split the 9th Circuit, but Congress adjourned before the Senate considered the legislation. This year, Rep. James Sensenbrenner, Wisconsin Republican, chair of the House Judiciary Committee, introduced a circuit-division bill which included new judgeships for all of the appellate and district courts. In late October, that committee adopted the legislation, and the Senate Judiciary Committee conducted a hearing on the Senate version of legislation to divide the court.

On Nov. 3, circuit-splitting proponents attached a circuit-dividing provision to the House budget reconciliation bill. This maneuver essentially permitted advocates to circumvent the normal legislative processes for deliberation. Last week, that effort came to an abrupt conclusion when the House passed the budget-deficit reduction measure without the circuit-splitting rider.

This legislative victory may prove short-lived. If circuit-division opponents are to prevent the breakup of a century-old institution, which many observers believe works effectively, they must develop and hone persuasive arguments for maintaining the court intact. When Congress returns, it should undertake serious, thorough consideration of whether the 9th Circuit experiences difficulties that are sufficiently problematic to warrant a remedy as dramatic as circuit-splitting. Only if circuit-division advocates clearly demonstrate that the complications are troubling enough to support bifurcation should Congress then evaluate whether any feasible ways exist to split the court.

Carl Tobias is the Williams Professor at the University of Richmond School of Law.