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Leave the 9th Circuit alone


Howard L. Berman

In Congress, bad ideas often keep getting recycled. No matter how many times Congress kills a bad idea, it is inevitably summoned from the dead in reaction to some external event, crisis or shift in political winds. Such is the case with the idea of splitting the 9th Circuit.

Throughout my nearly 20 years of service in Congress, the idea of splitting the 9th Circuit has been out there - sometimes gathering momentum, sometimes lying dormant, and sometimes barely breathing. Every Congress, several of my colleagues introduce legislation to split the 9th Circuit; every so often we have hearings on the issue; and twice commissions have been established to study the issue - the Hruska Commission in 1973 and the White Commission in 1998.

For most of the current 107th Congress, it appeared that the idea of splitting the 9th Circuit would remain dormant, if not dead.

That is, until July, when it was summoned forth in reaction to a 9th Circuit panel's June decision that the Pledge of Allegiance violates the Establishment Clause of the U.S. Constitution. A few weeks after that decision, the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property, of which I am ranking member, hastily convened a legislative hearing on H.R. 1203, a bill proposing to split the 9th Circuit that had languished without activity since its introduction in March 2001.

While I remain unequivocally opposed to splitting the 9th Circuit, I do not mean to imply that proponents of a split are without credible, substantive arguments. As the subcommittee's July hearing demonstrated, well-meaning minds can differ regarding which judicial structures will best promote judicial efficiency and consistency in circuit decisions.

Judge Diarmuid O'Scannlain of the 9th Circuit and Idaho Attorney General Alan Lance, both witnesses at the hearing, competently marshaled many facts and statistics in favor of their argument that the 9th Circuit is overburdened, inefficient, plagued by inconsistent decisions and thus in need of a split.

Likewise, Chief Judge Mary Schroeder and Judge Sidney Thomas of the 9th Circuit made compelling arguments that the 9th Circuit is well-managed, operationally efficient and compares favorably with other circuits.

In fact, for each reason offered as a justification to split the 9th Circuit, there is an equally reasonable response . . . and both are often based on the same facts and statistics.

For example, it has been noted that, due to the 9th Circuit's size, panels rarely involve the same three judges. It is argued by proponents of a split that the shifting nature of panels leads to inconsistent opinions.

However, it can also be said that the shifting nature of panels contributes to the objectivity of decision-making, and makes it difficult for any one bias or philosophy to predominate. Less charitably, it could be said that it is the very consistency of 9th Circuit opinions - not their inconsistency - that split advocates find objectionable.

Similarly, split proponents note that the 9th Circuit has almost twice as many judges as the next largest federal circuit, serves the largest population by almost the same factor, and deals with the largest number of appeals. Split proponents cite these numbers to support the contention that the 9th Circuit is overburdened, and is simply too huge to operate efficiently.

However, the same statistics can support the opposite conclusion. These statistics show that the 9th Circuit handled about 207 appeals per circuit judge from October 2000 through September 2001. Sounds like a lot, but that is less than the 4th, 5th, 7th and 11th circuits, with the 5th Circuit handling almost twice as many appeals per judge. The 9th Circuit numbers are also basically comparable to the 2nd, 3rd and 6th circuits, while significantly more than the 1st, 8th and 10th circuits.

So, based on the same statistics, it can be argued that the 9th Circuit is more overburdened, less burdened, more efficient or less efficient than other circuits. In short, the July hearing demonstrated, as have many before it, that the arguments on both sides of this issue have some merit.

If a court were faced with making a decision based on these facts and arguments, it might reasonably rule either way. Congress, however, operates under a different set of rules than a court. Foremost among these rules is the old adage: "If it ain't broke, don't fix it." An equally important corollary is, "Is the cure worse than the supposed disease?"

Operating under these principles, I believe Congress should not split the 9th Circuit. While the size of the 9th Circuit clearly presents it with special administrative problems, it has taken creative actions to address those problems and in many cases appears to have turned its size into an advantage. Further, the disruptions, costs and uncertainty that would attend a split might turn it into a costly failure. The conclusion I draw once again is that the 9th Circuit isn't broken, so Congress shouldn't try to fix it by splitting it.

That is not to say that the 9th Circuit is incapable of improvement. Even Chief Judge Schroeder and Judge Thomas advocated further improvements to the efficiency and operations of their circuit. Frankly, the best way for Congress to participate constructively in the effort to improve the 9th Circuit would be to create additional judgeships at both the district and circuit court level.

There is an absolute crisis in the Southern District of California due to the insufficient number of judges, and the Central District is only marginally better off. The district court caseload crisis clearly may have an effect on the speed and quality of district court decisions. The woes of the district courts in turn affect the number of appeals to the 9th Circuit, and the timeliness of appellate decisions that form the law of the 9th Circuit.

The 9th Circuit itself has four vacancies, and according to the Judicial Conference, needs Congress to create several new judgeships.

While my colleagues in the Senate may not appreciate the added aggravation, I believe Congress should move to create and approve new judges in the 9th Circuit and its district courts. Once we have given the 9th Circuit and its district courts their full complement of judges, and a fair amount of time to deal with case backlogs, I will gladly participate once again in a congressional discussion about splitting the 9th Circuit. Of course, I really don't have any choice, because the issue is sure to be back.

Congressman Howard Berman, D-Valley Village, is the ranking member of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property.

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