By MICHAEL DOYLE
November 08, 2005
Carving up the 9th U.S. Circuit Court of Appeals excites lawmakers who consider the San Francisco-based court too liberal and too big. Though the odds are still against them, the conservatives may now have their best shot in years, by including the court-cleaving measure in a budget bill set for House approval as early as Thursday.
"If other states don't want to be affiliated with radical judges in California, I don't blame them," California Republican Rep. Devin Nunes said Monday. "California has put itself way to the left."
At the same time, Nunes acknowledged that "we're a long way" from finishing the bill, and he suggested the courts provision could end up being traded away for now. The budget bill itself could be delayed for several weeks.
The courts legislation in question would peel federal appellate judges in California and Hawaii away from their colleagues in seven other Western states. The judicial region in which 15,685 appeals were filed over the past year would thereby become two separate circuits.
Appeals arising from federal courthouses in California would still be heard in California, under the proposal. Appeals arising from the likes of Montana and Idaho, however, would be heard in the newly created 12th U.S. Circuit Court of Appeals.
Ideologically, too, conservatives have long contended the circuit's judges veer from mainstream views. Reversals in some high-profile cases have spurred this impression. Last year, for instance, the Supreme Court overturned on procedural grounds a 9th Circuit decision banning the Pledge of Allegiance in schools. This year, the Supreme Court overturned the appellate court's decision in support of California's medical marijuana law.
In the 2003-2004 term, the Supreme Court reversed the 9th Circuit on 19 cases.
"It's far too cumbersome, and from my standpoint it's an administrative nightmare," said California Republican Rep. Dan Lungren, a former California attorney general who became intimately familiar with the circuit's judges. "You know this split has just got to come about."
Still, Montana-based Appellate Judge Sidney Thomas testified recently that the Supreme Court reversed the circuit on only a "minuscule number of cases," and that the circuit's overall reversal rate of roughly 75 percent is comparable to other circuits.
"The present configuration promotes judicial coherence by developing consistent federal law in areas affecting business in the West - admiralty, timber, Native American rights, and intellectual property, just to name a few," Thomas told the House Judiciary Committee.
The circuit's 47 active judges - half of them on senior status - appear divided on the issue.
The court legislation last year ultimately couldn't survive Senate scrutiny, and a similar fate could well await this year. Democratic Sen. Dianne Feinstein already has declared she will challenge the measure, where Senate rules give her a distinct advantage.
"It is bad news for California," Feinstein said of the proposal.
The Administrative Office of the U.S. Courts anticipates spending millions of dollars to accommodate creation of a new judicial circuit. Feinstein further contended the appellate judges remaining in California would end up shouldering more cases, although the legislation calls for creating additional judicial positions to help take up the slack.
Proponents of splitting the circuit folded it into what's called a budget reconciliation bill, whose primary purpose is to cut roughly $54 billion in federal spending. It's a powerful vehicle; in part, because senators can't filibuster it.
There's also pressure from the House. Lungren noted the chairman of the House Judiciary Committee, on which he serves, has warned that no judicial reinforcements will be provided to California or other Western states until the 9th Circuit is divided.
But because it's loaded with other sharp-edged provisions, including cuts in food stamps and cotton subsidies, the budget bill itself faces a rough road. The Senate version of the bill passed last week does not include the court measure, and House Republican leaders are struggling to rally support.
If push comes to shove, Feinstein said she would invoke a special procedural challenge that would require 60 senators to allow the court language to become part of the budget bill. That may be a prohibitively high hurdle. A Senate bill to split the 9th Circuit introduced in June so far has only attracted seven supporters, all of them Western Republicans.
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