Republican lawmakers have tried for decades to split the San Francisco-based 9th U.S. Circuit Court of Appeals, sometimes called the "Nutty...
SAN JOSE, Calif. — Republican lawmakers have tried for decades to split the San Francisco-based 9th U.S. Circuit Court of Appeals, sometimes called the “Nutty Ninth” by its detractors.
Each time, the nation’s largest and most controversial court had done something to tweak a conservative nerve, with rulings on fishing rights in Alaska, timber harvesting in the Northwest or death sentences in California.
And, of course, there was the decision three years ago to find the Pledge of Allegiance in public schools unconstitutional because it contains the phrase “under God.”
But after failing over and over to break up the court, congressional Republicans now appear closer than ever to achieving their goal. In the past two weeks, House committees have approved legislation to split the court in two, and a similar proposal in the Senate was heard by a key subcommittee.
“I think the 9th Circuit is in the fight of its life,” said Arthur Hellman, a University of Pittsburgh law professor and a leading expert on the court.
As Republicans in recent weeks have managed to use their political clout to generate momentum for a 9th Circuit split, opponents and backers of the new legislation have traded shots over splintering a court that interprets law for Washington and eight other Western states.
Supporters of a split argue the 9th Circuit has simply grown too large and unwieldy to administer justice, while opponents say the legislation is a thinly veiled attempt by Republicans to stock the federal bench with more conservative judges and diminish the influence of what has long been regarded as the country’s most liberal court.
The 9th Circuit last year decided more than 15,000 appeals, an imprint on public life that reaches the average citizen with far more regularity than the U.S. Supreme Court.
With 28 members, it dwarfs the nation’s 11 other federal appeals courts and covers a much more vast territory.
If the plan succeeds, legal experts and the judges themselves say the long-term impact is uncertain.
The same pool of judges would be sprinkled throughout both courts, and much would depend on the character of new appointments, the president who chooses them and the types and number of cases that flood each circuit.
The legislation to split the court, backed by House Judiciary Committee Chairman James Sensenbrenner Jr., a Wisconsin Republican, would create two appeals courts and essentially isolate California in a 9th Circuit joined only by Hawaii, Guam and the Northern Mariana Islands.
The rest of the states in the current 9th Circuit would shift to a new 12th Circuit.
Republican Sens. Lisa Murkowski of Alaska and John Ensign of Nevada have co-sponsored nearly identical legislation in the Senate.
“It would be irresponsible for us not to act,” Murkowski said after recent hearings on the subject.
The latest movement is considered an unprecedented threat by those who favor keeping the 9th Circuit intact, which includes the vast majority of its judges, Democrats and much of the legal establishment.
Foes of a split argue the court is efficient and any division would eliminate consistent application of federal law for 58 million people in its orbit.
“We’re taking this very seriously,” said Arizona-based 9th Circuit Chief Judge Mary Schroeder, a leader of opposition to the split.
There are a number of reasons for their concern. Republicans have made reshaping the judiciary a priority, and the 9th Circuit is considered a plum target because it is the only appeals court left dominated by Democratic appointees.
Unlike past attempts to divide the court, the House and Senate versions not only call for splitting the 9th Circuit but also for adding new federal judges to courts nationwide.
The House version would add more than 60 federal judges nationwide, including seven to a newly formed 9th Circuit.
Finally, the House legislation was attached last week to a budget spending-reduction bill, making it tougher for Democrats to torpedo in the Senate, where the split effort has run aground in the past.
Sen. Dianne Feinstein, D-Calif., vowed to resist the maneuver, but everyone involved in the debate views the House approach as proof Republicans are pulling out all the stops.
“You’d have to believe in the tooth fairy to say this has nothing to do with politics,” said Judge Alex Kozinski, a conservative Reagan appointee who testified against the split in Senate hearings. “You would be breaking up what is essentially a very good, well-working machine for smaller, less-efficient pieces.”
The 9th Circuit has long been viewed as a liberal renegade, primarily because of the continuing impact of some of its more maverick judges, such as California’s Stephen Reinhardt and Harry Pregerson. A Google search of “9th Circuit” and “liberal” turns up 730,000 hits.
Some of the rulings have inspired a backlash, notably the decision three years ago to ban the Pledge of Allegiance in public schools. The Supreme Court later overturned the ruling on procedural grounds, but not before the 9th Circuit was vilified from Sacramento to the White House.
And the court has had a shaky track record in the Supreme Court, which overall reverses the 9th Circuit a higher percentage of the time than other federal appeals courts, a factor often cited by supporters of a split.
Yet despite its liberal reputation, the 9th Circuit for the past few years has widely been considered a court in transition toward the center.
As one 9th Circuit conservative put it, “This court is much less of a lefty, liberal court than is in the popular imagination.”
President Bush has already named four new judges to the court, three of whom have consistently aligned with the court’s conservative bloc on issues ranging from immigration to the death penalty.
There are four vacancies on the court that could further tilt the balance.
Foes of a split note the court has the ability to rein in renegade rulings, such as when an 11-member panel of the court unanimously overturned three of the court’s liberal members who’d temporarily postponed the California gubernatorial-recall election in 2003.
Many of the court’s judges say it would damage the court — and particularly California — if the varied backgrounds and philosophies of judges from other states such as Washington, Idaho, Nevada and Oregon no longer examined issues that cut across state boundaries.
“If we have the split they are talking about, we lose the regional attitude,” said San Francisco-based Judge Carlos Bea, a Bush appointee.