The Senate Judiciary Committee this week considered the issue of splitting the 9th U.S. Circuit Court of Appeals.
Some court observers say the 9th Circuit, known for judicial activism so left-leaning most are surprised it remains standing, should be split. But others say the real reason for a break-up shouldn't be to give needed ideological balance—electing conservative presidents who nominate conservative judges would likely restore that. The bigger issue, they say, is the enormity of the number of cases put before the judges.
Currently the 9th Circuit hears appeals from Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, Oregon, Washington, Guam and the Marianas Islands.
The proposed split would create a 12th Circuit, leaving California, Hawaii, and the Pacific islands in the jurisdiction of the 9th Circuit. The remaining would fall under the new circuit.
Bruce Hausknecht, judicial analyst for Focus on the Family Action, said he's talked with some of the judges currently sitting on the 9th Circuit, who told him dividing the court will not cure the ideological differences.
"They think, in fact, it might get worse," he said, "because you would get California as its own circuit, with maybe one or two other states, and that will end up being more liberal than the entire 9th Circuit is now."
Instead, he said, the long-term solution to liberal bias is to elect conservative presidents who appoint judges who are strict constructionists—not judicial activists—to the 9th Circuit.
"Since Bush has taken office, he has made appointments—almost a fourth of the current judges—and he's got two more years to make even more appointments," Hausknecht said. "With retirements and presidential appointments, we're only a couple judges away from having more Republican-appointed judges on the 9th Circuit than Democratic-appointed judges."
A better argument for splitting the court, he said, is the reality that its administrative workload is a "nightmare."
"They hear so many cases—as many as a quarter of all the federal cases in the United States—that a lot of the judges have complained that their workload has increased exponentially over the last few years," he said. "So they support a split for that reason."
Right now it can take years to get a case through the 9th Circuit, Hausknecht said. Once an appeal is filed it must take its place in line behind thousands of other cases.
"Any time you delay a decision that long, you are delaying justice," he said, "and that's contrary to what our judicial system should look like."
Whether Congress acts to divide the 9th Circuit, two current openings on the court need to be filled—with steps underway to fill the vacancies.
Thursday, Judiciary Committee Chairman Arlen Specter, R-Pa., pushed through one nominated replacement, Randy Smith, on a 10-8 vote. Smith now faces an up-or-down vote in the full Senate if the Democrats don't filibuster.
"William Meyers is still waiting for his up-or-down vote in the committee," Hausknecht said. "He's stuck—and has been stuck since 2003."
At least two judges appointed by President Carter are approaching retirement, he added. But the key to restoring balance, Hausknecht reiterated, lies in electing conservative presidents who then appoint judges who are strict constructionists.
