House Considers Splitting 9th Circuit Court

For federal judicial purposes, the US is not divided into states but rather into districts, and above those districts are circuits. This division exists because Congress said so. The Constitution gives very little guidance on the court system; only the Supreme Court derives its existence directly from the document. Since it can tamper with the boundaries of the district and circuit courts, Congress sometimes tries to “fix” things. In hearings Wednesday, the latest move to split up the liberal 9th Circuit looked like an attempt to “fix” things, in the sense of rigging the outcome.

The 9th Circuit, which operates from San Francisco (proof of its liberal nature to those whose politics are to the right of the Riesling glass at a decent dinner party), considers federal appeals from Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, Oregon, Washington, Guam and the Marianas Islands. The 9th has done such things as strike down death penalty laws, support environmental legislation and regulations and allow school children to skip the Pledge of Allegiance (which might mean more if they understood the words in it).

The latest idea is to cleave off Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington into a 12th Circuit. Ninth Circuit Judge Richard Tallman of Seattle favors the split, “I do not urge reorganization because I take issue with my court's decisions. My court is just too big, with too many judges and too many cases to consistently render quality judgments.” But a look at a political map of the US based on voting habits shows that this would result in a 9th Circuit that would be a bit further to the left, balanced by a brand new right-of-center circuit. More importantly, the rulings of one circuit don’t bind the others unless the Supreme Court says so. This is a judicial gerrymander.

Interestingly, there is a broad array of opinion on both ends of the political spectrum against this idea. The Los Angeles Times reported, “The overwhelming majority of the circuit's judges, led by Chief Judge Mary M. Schroeder of Phoenix, signed a letter reiterating their opposition to the breakup. Schroeder, Carlos Bea of San Francisco, Consuelo Callahan of Sacramento and four other 9th Circuit judges — Alex Kozinski, a Reagan appointee from California, Sidney Thomas, a Clinton appointee from Montana, Johnnie Rawlinson, a Clinton appointee from Nevada, and Richard Clifton, a George W. Bush appointee from Hawaii — attended the hearing [on Wednesday] to express their opposition.” The paper also says more than 60 federal trial judges oppose the move from liberal Lawrence Karlton of Sacramento to conservative Sam Conti of San Francisco.

William Neukom, chairman of Preston, Gates and Ellis and Microsoft's former lead counsel observed, “That fact that one federal court of appeals announced the rules of federal law for both Seattle [Microsoft’s home] and Silicon Valley eliminated an element of uncertainty and potential conflict in our work.” Throw in the added administration cost of an extra circuit, as well as the Supreme Court’s time in reviewing decisions from that circuit, and the case for a 12th Circuit Court falls to the ground.

© Copyright 2006 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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