Metropolitan News-Enterprise


Monday, October 30, 2006


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Ninth Circuit Split Inevitable, Tashima Tells Gathering




A division of the Ninth Circuit is inevitable, although it might not happen anytime soon, Ninth U.S. Circuit Court of Appeals Senior Judge A. Wallace Tashima told a gathering of lawyers and judges Friday.

“The Ninth Circuit is going to have to be split,” the jurist said, because the western states are growing too fast. The caseload, he said, may someday require 100 judges, and once that happens, he asked rhetorically, “can we still be a collegial court?”

Tashima—who is not among the minority of Ninth Circuit judges favoring current legislation that would accomplish such a split—was part of a panel for a Southwestern University School of Law symposium recognizing the 40th anniversary of the Central District of California.

The Central District was created in 1966, carved by Congress out of the Southern District. Friday’s symposium gave judges, lawyers, and court professionals an opportunity to discuss the history and future of the court.

Tashima noted that more than 50 percent of the Ninth Circuit caseload comes from the Central District. Part of the problem with legislative proposals to split the court, he said, is that they would not give the surviving Ninth Circuit anywhere near the proportion of judges its caseload would demand.

In response to a question from moderator and broadcast journalist Kitty Felde, Tashima rejected the notion of a split that would place the Central District in a different circuit from the rest of the state. Not only would the new circuit likely have too few judges, he said, it would create conflicts of law within the state.

Another panelist, Judge Stephen Reinhardt, predicted that the issue of a circuit split would be “dead” for at least two years if the Democrats win control of either house of Congress. What began as an effort by oil and timber interests to gain a forum more receptive to their views, he said, has devolved into a strictly partisan fight conducted by Republicans who are unwilling to simply declare victory in their fight to create “a conservative circuit.”

He elaborated:

“Anyone who can count can tell you the Ninth Circuit is not a liberal circuit. There are many more conservative than liberal judges on the court...All of the circuits are conservative circuits, just like the Supreme Court is a conservative court. [Republicans] forgot what the fight is about, they won.”

The biggest change on the Central District court, panelist and Ninth Circuit Senior Judge Arthur Alarcon said, has been in the diversification of its bench.

When the Central District began, Alarcon noted, its 13-judge bench consisted entirely of non-Hispanic white males. Since then, he pointed out, there have been 15 women, four Asian Americans, five African Americans, and seven Hispanics on the court.

Asked whether than makes a difference, Judge Florence-Marie Cooper enthusiastically answered in the affirmative. A minority judge, for example, may have an easier time understanding why a woman from a male-dominated culture could not simply leave an abusive relationship, the judge commented.

Besides that, she said, the perception of fairness that diversity creates is important in and of itself. 

Reinhardt agreed that the court “looks more fair,” but other than that, he said, “I don’t think [race or gender] is what counts.” The rulings of his court’s female judges, he commented, break down pretty much the same way as their male colleagues.

All of the panelists agreed that a major change in the court has been the amount of work. Trials take longer, Central District Chief Judge Alicemarie Stotler said, because they are more complicated, a fact she said is not likely to change soon.

It is not just the trial work, Cooper said. “There is so much paper” she explained, that she works 7 a.m. to 4 p.m., plus one day on the weekend, just to keep up. Trials are conducted from 8 a.m. to 1 p.m., a typical Central District schedule, and she recently purchased a chess clock in order to enforce strict time limits on attorneys’ presentations, she disclosed.

The only real hope for shortening dockets, Ninth Circuit Judge Richard A. Paez said, is alternative dispute resolution.

A bleak picture of appellate caseloads was presented by Reinhardt, who noted that the court today only publishes 15 percent of its opinions and usually does not grant oral argument.

“We work more [than we used to] but there just isn’t the time to give cases the attention they deserve,” he said. Noting the hundreds of death penalty cases that are pending or will eventually come before the court, he said the judges will “all be dead long before we make any progress on those cases.”

Alarcon said he had recently served on a screening panel that disposed of 500 cases in three days, most of which involved disabled persons, immigrants, or criminal defendants. “We drew cheers from the administrative staff [but] I would find this very troubling if I was looking at it from an academic point of view or a legal professional point of view,” he told the gathering.


Copyright 2006, Metropolitan News Company