Specter, Leahy Criticize House GOP Move to Split Ninth Circuit
By KENNETH OFGANG, Staff Writer/Appellate Courts
The chairman and ranking minority member of the Senate Judiciary Committee teamed up yesterday to oppose a proposal, backed by House Republicans, to split the territorial jurisdiction of the Ninth U.S. Circuit Court of Appeals in two.
“The reorganization of appellate circuits is a major policy initiative and would impact the system of justice for millions of Americans,” Sens. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., said in a letter to their Budget Committee counterparts.
“The issue is squarely under the jurisdiction of the Judiciary Committee and any budgetary issues are merely incidental,” the two senators wrote. “Accordingly, we oppose including any such measures in any reconciliation package.”
The House Budget Committee voted last week to include the split in a bill that would be considered under expedited procedures that preclude a Senate filibuster.
Past Filibuster Threat
The threat of such a filibuster by Democratic opponents of a split, such as California’s Sen. Dianne Feinstein, a Judiciary Committee member, has helped keep past circuit-splitting bills from reaching the Senate floor.
A Judiciary Committee subcommittee last month held a hearing on the issue. The three active Ninth Circuit judges who favor a split—Diarmuid F. O’Scannlain, Andrew Kleinfeld, and Richard Tallman—testified, telling senators the court has become too large to function well.
Chief Judge Mary M. Schroeder and Judge Alex Kozinski also testified. They told senators there is no need to split the circuit because it continues to operate efficiently and there is no consensus among the judges, or among the lawyers who practice before it or the public it serves, that a split is necessary or desirable.
The House measure approved last week—on a Budget Committee vote with all Democrats opposed—would leave California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit, while Arizona, Nevada, Oregon, Washington, Montana, Alaska, and Idaho would form the new Twelfth Circuit.
Supporters say the Ninth Circuit, which covers nine states with about 54 million people, is too large to operate effectively. But opponents allege politics by Republicans angry at some of the court’s rulings, like the 2002 opinion that declared the Pledge of Allegiance unconstitutional when recited in public schools.
Opponents also complain that the split would leave the new Ninth Circuit with 72 percent of the current caseload but only 60 percent of the current number of judges, and would be expensive to the taxpayers.
The Administrative Office of the United States Courts has estimated that such a split could cost as much as $96 million in start up costs for the Twelfth circuit and $16 million in annual operating expenses.
The Senate last week passed its own version of the deficit reduction bill without the Ninth Circuit split. If the breakup makes it through the House, congressional negotiators would have to work out whether to include it in the final bill the House and Senate would vote on.
“I strongly oppose this effort to split the Ninth Circuit,” Feinstein said in a statement. “It is a lose/lose proposition, one with clear financial costs to the administration of justice and with human costs to those with cases before the court.”
Feinstein last week wrote influential House Rules Committee Chairman David Dreier, a Republican who represents much of the San Gabriel Valley, urging him to oppose the plan.
Feinstein also said she intends to raise a point of order on the floor of the Senate if the Ninth Circuit split language is included in the final Budget Reconciliation conference report. Under the so-called “Byrd Rule,” the inclusion of matters in reconciliation measures not connected to its central, budgetary purpose is generally prohibited and subject to a 60-vote point of order.
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