Hopefully this split will finally get Congressional approval.
WASHINGTON The Justice Department is backing efforts by congressional Republicans to split up the Ninth U-S Circuit Court of Appeals, the nation's largest federal appeals court and the frequent source of anti-Bush administration rulings.
The court covers nine Western states, including Idaho, and the Pacific Islands.
Proponents say the court is too big to be efficient.
Opponents allege political motives by Republicans annoyed by the court's rulings.
The House GOP is seeking to fast-track the circuit-split legislation by making it part of a pending deficit-cutting bill. That move is meeting opposition in the Senate.
The court has 28 judges and takes in about 54 million people.
Pending legislation would create a 9th Circuit covering California, Hawaii and the Pacific Islands, and a new 12th Circuit covering Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.
It's also important to point out that any split would not stop the extreme rulings that give the Ninth Circuit it's reputation. While several states would be freed from its authority, the current judges would remain in office.
The administrative problems resulting from having one in five Americans living in one of eleven circuits are the real problem here. The Ninth Circuit has so many judges that full en banc hearings are impractical - potentially requiring the Supreme Court to review decisions that never received majority support in from the Court of Appeals.
As Senator Grassley (R-IA) testified in 1999, splitting the Ninth Circuit has been under consideration for decades:
Due to the Ninth Circuit's large size, bills advocating splitting the circuit have been introduced as early as the 1940s. In 1973, the Commission on Revision of the Federal Court Appellate System, known as the Hruska Commission, recommended that Congress split both the Fifth and Ninth Circuits. Though the Commission's proposals were not enacted, Congress did split the Fifth Circuit in 1981.Opinions from Ninth Circuit judges are divided, and many lawyers are opposed to the split - but I would attribute much of this to anti-Bush administration attitudes as well as old-fashioned resistance to change. The use of circuit precedent may be complicated for a few years as the new Twelfth Circuit relies on pre-split Ninth Circuit cases, but it might actually be easier in the long run since lawyers won't have to monitor the massive case load of the Ninth Circuit for relevant rulings. In addition, the Eleventh Circuit has dealt with this same problem since 1981 - when the Ninth Circuit really should have been split.
The Ninth Circuit is simply too large in every way. When circuits get too large, we split them. The political problems will probably require the eventual replacement of judges and possibly the creation of new judgeships (which may also be necessary for administrative reasons).
For more information, check out:
Ninth Circuit Judge Calls Court Split 'Inevitable'
United States Courts of Appeals (with a pdf federal circuit map)