CIRCUIT COURT OF APPEALS

House Approves Plan to Divide the Ninth Circuit

The House of Representatives in October 2004 agreed to a bill that would divide the Ninth Circuit Court of Appeals into three separate circuits. Although supporters for the move said that the court's heavy workload was the reason to split the circuit, those in opposition to the proposal said that political ideology, rather than judicial economy, was the primary factor behind the move in the House.

The Ninth Circuit has developed a reputation as one of the more liberal courts in the United States, if not the most liberal, according to some critics. According to the American Bar Association (ABA), legislators introduced 17 bills between the 98th Congress (1983-1984) and the 108th Congress (2003-2004) that would divide the Ninth Circuit. Each of these proposals, said the ABA, was sponsored by a member of Congress from the Pacific Northwest, outside of California.

Bills were introduced in both the House and the Senate in 2003, each containing the title "Ninth Circuit Court of Appeals Reorganization Act of 2003." S. 562, 108th Cong., 1st Sess. (2003); H.R. 1033, 108th Cong., 2d Sess. (2003). Neither was considered in either chamber of Congress. Two additional bills, each with the same basic titles, were introduced in 2004. S. 2278, 108th Cong., 2d Sess. (2004), H.R. 4247, 108th Cong., 2d Sess. (2004). These bills likewise never left the respective committees to which they were assigned.

Also introduced in 2003 was a bill that would add a total of 58 federal judgeships in several districts and circuits. S. 878, 108th Cong., 1st Sess. (2003). The bill, entitled "An Act to authorize an additional permanent judgeship in the district of Idaho, and for other purposes," passed unanimously in the Senate on May 22, 2003. It was referred to the House Committee on the Judiciary on June 2, 2003, but the House took no further action on the bill until September 2004.

Representative Mike Simpson (R.-Id.) introduced an amendment to S. 878 that added a section providing for the split of the Ninth Circuit. Under this amendment, which was nearly identical to proposals contained in other bills, the current Ninth Circuit would be divided into three circuits. The new Ninth Circuit would consist of California, Hawaii, Guam, and the Northern Marinara Islands. A new Twelfth Circuit would contain Arizona, Nevada, Idaho, and Montana. Alaska, Oregon, and Washington would make up a new Thirteenth Circuit.

The House passed the amendment by a vote of 205 to 194, mostly along party lines, on October 5, 2004. Shortly thereafter, the House passed S. 878. Opponents of the measure in the Senate immediately voiced their opposition. Senator Dianne Feinstein (D.-Cal.), a member of the Senate Subcommittee on Administrative Oversight and the Courts, said that she would prevent the Senate from voting on the bill with the House amendment. "Essentially, what the House did was to poison a worthy bill, a bill that was meant to alleviate the crisis of an overwhelming workload under which the Federal judiciary is struggling," she said on the floor of the Senate. "The House did so by adding language to split the Ninth Circuit into three circuits. In doing so, the House has essentially taken the new judges as hostages to a starkly partisan and controversial ploy."

S. 878 died at the conclusion of the 108th Congress in 2004. Two similar bills were introduced in the first session of the 109th Congress, including the Ninth Circuit Judgeship and Reorganization Act of 2005, H.R. 211, 109th Cong., 1st Sess. (2005) and the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2005, H.R. 212, 109th Cong., 1st Sess. (2005). Both bills were pending in House committees as of May 2005.

Several commentators noted that the proposals to divide the Ninth Circuit took place after a panel of the circuit ruled that the phrase "One Nation, under God" in the Pledge of Allegiance was an unconstitutional endorsement of religion. Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002). Although the U.S. Supreme Court later reversed the Ninth Circuit on technical grounds, the Newdow decision fueled resentment by those who maintain that the Ninth Circuit judges are activists. Both the House and the Senate responded to the Newdow decision by passing resolutions with overwhelming majorities that expressed support for the Pledge and condemned the Newdow opinion. H. Res. 132, 108th Cong., 1st Sess. (2003); S. Res. 71, 108th Cong., 1st Sess. (2003).

The ABA has been an outspoken opponent of proposals to split the circuits. In a letter sent to Weinstein by the ABA's Government Affairs Office, the ABA noted, "Circuit restructuring is a remedy of last resort and should only be used if there is compelling evidence that justice is being denied to individual litigants and the integrity of the law of the circuit is threatened. After reviewing the most current statistical data and research available, we remain convinced that there is no justification for, nor overall benefit to be derived from, dividing the Ninth Circuit.

Even some conservatives voiced opposition to the proposed split. Robert Bork, who was an outspoken conservative during his time on the bench in the Circuit Court of Appeals for the District of Columbia, noted that while the Ninth Circuit "has always been a maverick court," dividing the court could cause more problems than it solves. "I don't know if it's such a hot idea to have a court confined to California," he said. "You would still get a court full of activist judges, and a court that doesn't represent the whole of the state."

Spokespersons for the sponsors of the bills introduced in 2004 noted that the primary reason behind the proposed division is the court's workload. "It's the most overloaded circuit out there," said a spokesperson for Larry Craig (R.Id.), who introduced the House proposal in 2004. "We certainly have concerns over how the court works, but at the same time there are other concerns with the overload, with its workload, that far outweighs any other concern."