- The Washington Times - Wednesday, July 24, 2002

The chief judge of the 9th U.S. Circuit Court of Appeals said the court needs more judges, not a split, to rectify its problems.
The San Francisco-based court has been the target of nearly universal derision since a three-judge panel's decision last month that public schools cannot require students to recite the Pledge of Allegiance because it constitutes an endorsement of religion.
Yesterday, a subcommittee of the House Judiciary Committee held a hearing on whether splitting the court would help efficiency and "consistency" of the court's decisions and cut its high rate of reversals by the Supreme Court.
But Chief Judge Mary M. Schroeder, who was nominated to the court by President Jimmy Carter and became chief judge in 2000, said the way to help the court is to fill its four current vacancies and add more judgeships to the existing 28.
"We have had no new judgeships since 1984, and our caseload has doubled," she said.
But Idaho Attorney General Alan G. Lance, who presented a letter signed by 48 attorneys general asking that the court re-examine its Pledge ruling, said the problem of inconsistent decisions is the result of a cumbersome court and the methods it uses.
"The problem is not the Pledge of Allegiance the problem is the 9th Circuit Court of Appeals," he said.
In some circuits, every opinion is circulated among all the appeals judges before being released so those judges know what the court's position is. That position becomes law for all of the territory under the court's jurisdiction. The 9th Circuit is too big for that, said Judge Diarmuid F. O'Scannlain, a nominee of President Ronald Reagan.
Also, in the other 11 appeals courts, when a three-judge panel's ruling is appealed to the full circuit as has been requested in the Pledge case the full circuit actually hears the case. But the 9th Circuit is so large that hearings happen before an 11-member panel of the court, not all 24 sitting judges.
"Not all the judges at the same time sit down and tell us what the law is," Mr. Lance said.
That will come into play with the Pledge ruling, which was issued by a three-judge panel and is expected to be reviewed by an 11-judge panel.
Mr. Lance said splitting the circuit would create a more manageable caseload for both the new and old circuits.
Proposals to split the circuit have been circulated for years, and the underlying bill yesterday's hearing was based on was introduced March 22, 2001. Judge O'Scannlain said the recent attention to the court has "sparked renewed interest in how the 9th Circuit conducts its business."
Still, Rep. Howard Coble, North Carolina Republican and the subcommittee's chairman, said it was unlikely any bill will be approved this year.
Neither Mr. Coble nor the other three members who showed up to participate out of 22 on the panel directly broached the subject of the court's maverick record.
Mr. Coble and Rep. Darrell Issa, California Republican, said their interest was not in punishing the court.
"Judicial temperament as it is reflected in a given case or by a trend in case law is not an adequate reason, by itself, to split a circuit," Mr. Coble said.
The two Democrats present said they saw political motives behind the hearing and warned against punishing the court for its rulings.
"The 9th Circuit isn't broken, so why try to fix it?" asked Rep. Howard L. Berman of California, the top Democrat on the panel.


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