Metropolitan News-Enterprise


Friday, April 20, 2007


Page 1


Feinstein Procedural Move Blocks Effort to Split Ninth Circuit




An amendment that would have split the Ninth Circuit in two failed yesterday after Sen. Dianne Feinstein used a procedural maneuver to kill it.

Sen. John Ensign, R-Nev., had offered the amendment to S. 378, a bill dealing with court security. His proposal would have left California, Hawaii, Guam, and the Northern Marianna Islands in the Ninth Circuit while moving Arizona, Nevada, Idaho, Montana, Oregon, Washington, and Alaska to the new Twelfth Circuit, which would have been based in Phoenix.

Feinstein, however, objected that under Senate budget rules, the amendment was out of order because it would have increased federal spending without providing for an offsetting reduction. The senator cited an Administrative Office of the U.S. Courts estimate that creating a Twelfth Circuit would have a startup cost of $96 million, with another $16 million in annual recurring cost. 

Supporters of the amendment did not force a roll call on whether to waive budget rules, which would have required 60 votes.

In floor remarks, a copy of which was provided to the MetNews by her office, Feinstein said “it is clear that splitting the Ninth Circuit would hinder its mission of providing justice to the people of the West.”

Judicial Independence Threatened

She argued that the amendment was motivated by displeasure at the court’s decisions, and that splitting the circuit for that reason would undermine judicial independence. She also argued that new Ninth Circuit judgeships provided for in the amendment would still leave the judges in this circuit with average caseloads double those of Twelfth Circuit judges.

 The senator said:

“Attempting to coerce or punish judges or rig the system is not an appropriate response to disagreements with a court’s decisions.  Rather, it is essential that we preserve our system of checks and balances and make it clear that politicians will not meddle in the work of judges.  The configuration of the Ninth Circuit is not set in stone; however, any change to the Ninth Circuit should be guided by concerns of efficiency and administration, not ideology. 

“After a substantial review of the statistics, decisions, and reports from those who know the circuit best, it is clear that splitting the Ninth Circuit would hinder its mission of providing justice for the people of the West.

 The split proposal before us would unfairly distribute judicial resources to the West.  This is the key.  The Ninth Circuit would keep 71 percent of the caseload of the current circuit but only 58 percent of its permanent judges.  Any split we look at, because California is so big, tilts the circuit and, of course, all of the proponents of the circuit split take the judges with them.  So it leaves a disproportionate share of a heavy caseload in the Ninth Circuit — unless you split California, and to split California creates a host of technical and legal problems.”

Bad Policy

She also argued that splitting the circuit would lead to bad policy:

“The uniformity of law in the West is a key advantage of the Ninth Circuit, offering consistency to States that share many common concerns.  The size of the Ninth Circuit is an asset, offering a unified legal approach to issues from immigration to the environment.  Dividing the circuit would make solving these problems even more difficult.  For example, splitting the circuit could result in different interpretations in California and Arizona of laws that govern immigration, different applications of environmental regulations on the California and Nevada sides of Lake Tahoe, and different intellectual property law in Silicon Valley and the Seattle technology corridor.”

 She also noted that the split is opposed by at least 18 active Ninth Circuit judges, by district and bankruptcy judges, and by every state bar association that has taken a position.

After the Ensign amendment fell, senators approved the court security bill by a vote of 97-0. The bill does include one provision related to the Ninth Circuit, adding one judge to the court—bringing the total number of authorized active judges to 29—offset by the elimination of a vacant seat on the D.C. Circuit.


Copyright 2007, Metropolitan News Company