By Sarah Kaltsounis

Diehard C-SPAN viewers will recall an interesting hearing that occurred in the other Washington last April. Members of the Senate Judiciary Committee heard from several judges in support of and in opposition to various proposals to split the U.S. Court of Appeals for the Ninth Circuit into two or three smaller jurisdictions. No further action was taken on the bills that were the subject of that hearing. Then the issue fell from the headlines completely to make room for coverage of the nominations for the U.S. Supreme Court.

Those of you who have practiced for many years in our federal courts might have dismissed last year’s hearing as but one in a long line of meetings and commissions that have explored a circuit split since the early 1970s. However, several events have taken place in the past two years that indicate this proposal might finally be gathering some steam.

For example, Professor Arthur Hellman, a noted scholar who has studied the administration of the Ninth Circuit for many years, told the House Judiciary Committee in October 2003 that although he had written and testified in opposition to a split in the past, the prospect of adding more judges and further increasing the court’s size required a fresh look at the issue. Rep. James Sensenbrenner (R-Wis.), the chair of the House Judiciary Committee, paid an historic visit to the Ninth Circuit’s headquarters in March 2005 to gather input from judges on the way a split might be accomplished.

In addition, a remarkable seven different split bills (S. 1296, 1301 and 1845 and H.R. 211, 212, 3125 and 4093) have been introduced during the 109th Congress, compared to the two or three introduced in previous years. The Senate Judiciary Committee scheduled a new hearing to consider those bills on October 26. The judges scheduled to testify in favor of a split included Circuit Judges Diarmuid O’Scannlain, Andrew Kleinfeld and Richard Tallman and District Judge John Roll (D. Ariz.). In opposition, Chief Circuit Judge Mary Schroeder, Circuit Judges Alex Kozinski and Sidney Thomas and District Judge Emeritus Marilyn Huff (S.D. Cal.) were invited to testify.

The most recent Senate bill, S. 1845, would divide the Ninth Circuit by sectioning off all the good surfing (California, Hawaii, Guam, Northern Mariana Islands) from the best hiking and gambling (Alaska, Washington, Oregon, Idaho, Montana, Nevada, Arizona). The bill, which was introduced by Senator Ensign (R-Nev.), would give the new, smaller Ninth Circuit five additional and sorely-needed judgeships. The new Twelfth Circuit would be authorized to hold court in Seattle, Portland, Las Vegas, Missoula and a new headquarters in Phoenix. The bill also would give the new neighboring courts the flexibility to make temporary assignments of both appellate and district judges between themselves if necessary.

The House’s companion proposal is part of a much larger omnibus judgeship bill that would create 68 new district, bankruptcy and circuit judgeships around the country. H.R. 4093 was introduced by Rep. Sensenbrenner on October 20. Rep. Sensenbrenner has made it very clear that new federal judgeships around the country and the split of the Ninth Circuit are linked. The only difference in the House bill is that it does not specify where the Twelfth Circuit’s new headquarters must be located.

It can be tempting to discount these recent events and all the past proposals that came before as mere partisan retaliation for politically unpopular decisions rendered by the Ninth Circuit. Some senators and representatives could avoid contributing to that perception by not mentioning the words “judicial activism” each time the topic comes up. But we can be proud that many of our elected representatives and all our judges--both pro- and anti-split--have consistently refused to discuss a circuit split in such terms, focusing instead on the genuine issues of judicial administration that truly matter to the people who are served by the courts of the Ninth Circuit.

Pro-split judges are concerned that the circuit’s massive size (on every possible measure--geography, population, caseload, number of judges) creates many unfortunate problems for the administration of justice, including: longer case processing times; the frustrating “limited” en banc system; the infrequency with which the court’s members sit on randomly assigned panels with one another; the substantial travel time faced by judges and their clerks; their struggle to keep up with the mountain of published and unpublished opinions issued each day; and other concerns caused by the need for triage in the nation’s largest court.

Opponents, on the other hand, cite the court’s administrative and technological advances that help its struggle to handle such a large caseload. These include the use of staff attorneys to categorize and monitor lines of similar cases, computerized case tracking, “screening” panels to dispose of the easiest cases, the Bankruptcy Appellate Panel and the appellate mediation program. Opponents also note the possible expenses that would be incurred to split the court.

No matter which side you come down on, all of us have a stake in this decision. Spend your next lunch break clicking through the written testimony that was offered at the last circuit split hearings (located at http://judiciary.senate. gov/hearing.cfm?id=1141 and http:// judiciary.house.gov/hearings.aspx?ID=58). It’s worth your time to take a closer look at the issues and let your elected representatives know what you think.