News
Government
Jul. 24, 2002
House Committee Meets on 9th Circuit Breakup
WASHINGTON - The House Judiciary Committee met Tuesday to consider legislation to break up the 9th U.S. Circuit Court of Appeals even as opponents groused that the hearing was convened only because of political fallout over the court's controversial ruling last month declaring part of the Pledge of Allegiance unconstitutional.
Regardless of the motivation for the hearing, further action is unlikely on the bill - addressing long-standing complaints against a court viewed by conservative states as too liberal - because the legislative year is nearing an end.
The committee heard testimony about a proposal by Rep. Mike Simpson, R-Idaho, HR1203, which would divide the court into two circuits.
Three members of the San Francisco-based court appeared at the hastily arranged House hearing. They were Chief Judge Mary Schroeder of Phoenix and Judges Diarmuid O'Scannlain of Portland, Ore., and Sidney Thomas of Billings, Mont.
Schroeder and Thomas testified against splitting up the circuit, while O'Scannlain said he was for the idea.
"The problem with the court and our circuit can be stated quite simply: We are too big now, and we are getting bigger every day," O'Scannlain said. "And this is so whether you measure judges or caseload or population."
The circuit court has 23 judges, 23 senior judges and five vacancies.
"The fundamental problem is, What do you do about California?" O'Scannlain said.
The state produces 60 percent of the circuit's caseload, which is itself twice that of other circuits, he said.
But Schroeder disagreed that the solution was to split up the 9th Circuit and form a new 12th Circuit or otherwise reconfigure the federal judiciary's jurisdictional map. She argued it would be an expensive proposition to mess with a circuit court which has one of the fastest dockets in the nation despite its size.
Schroeder instead tried to leverage her appearance to argue for more trial-level judgeships for the district courts, such as the one based in San Diego, which need the most help.
Sen. Dianne Feinstein, D-Calif., has spearheaded efforts to get five more judgeships for the Southern District of California.
"So you don't want to decrease? You think we're just right?" Rep. Darryl Issa, R-San Clemente, asked Schroeder.
"I think the system is working well," the chief judge replied.
Schroeder is a Democrat, appointed by President Carter in 1979 and slightly left of center on the court.
O'Scannlain is a Reagan appointee and one of the most conservative judges on the circuit. He has long advocated splitting up the 9th Circuit, and he cited statistics on the circuit's large number of reversals by the Supreme Court.
The only other witness Tuesday was Alan G. Lance, the attorney general of Idaho, a longtime proponent of a 9th Circuit breakup.
Rep. Maxine Waters, R-Los Angeles, refused to accept arguments by Issa and O'Scannlain that the 9th Circuit is too big and can't manage the number of appeals it hears annually. Waters said she was dismayed by the timing of Tuesday's hearing.
She said the Simpson bill - similar to one in the Senate by Frank Murkowski, R-Alaska - was introduced in the House in March 2001, where it landed with a thud.
"No hearings were held, or frankly even discussed, until a three-judge panel of the 9th Circuit handed down a decision regarding the Pledge of Allegiance," Waters said at the sparsely attended committee meeting.
She charged that the hearing was intended as a warning to courts that Congress was ready to jump in and interfere with the judiciary whenever it disagreed with an unpopular decision.
"I don't want to have my chair or the members of this committee believe that I really think this is a serious discussion about whether or not we're concerned about workload. I think it's political," Waters said.
It has fallen to the circuit's chief judges over the years to block these efforts, and each one has been opposed to the split. A majority of the court opposes it, as well.
Asked by Rep. Howard Coble, R-N.C., the chairman of the subcommittee on the courts, how the 9th Circuit should be divided, O'Scannlain stopped short of endorsing outright the Simpson or Murkowski proposals, but he cited several options.
They included creating a new 12th Circuit encompassing many of the current 9th Circuit states except California, dividing California between two circuits or creating a stand-alone circuit for the state.
Addressing fellow panelist Rep. Howard Berman, D-Mission Hills, Coble said that he liked the idea of making the 9th Circuit smaller but that the ticking clock probably would derail any action this year.
Congress will take an August recess and is expected to adjourn by October.
"I don't mean to be a prognosticator, but given the very limited legislative time, Howard, that we have left in this session, I would be surprised if this bill moves," Coble said.
Daily Journal Staff Writer Pam MacLean in San Francisco contributed to this story.
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James Gordon Meek
Daily Journal Staff Writer
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