Alaska Editorial: Alaska needs Congress to break up the 9th Circuit

Posted: Thursday, April 15, 2004

This editorial appeared in Saturday's Fairbanks Daily News-Miner:

Is it possible for a single circuit among the 13 circuits of the U.S. Court of Appeals to effectively serve one-fifth of the nation's population?

Is it right that a single circuit has nearly twice as many judges as the next largest appellate circuit?

But that's the situation with the 9th Circuit, which is based in San Francisco and hears cases from Alaska and eight other Western states.

The 9th Circuit has become unwieldy, yet efforts to split it into two or more circuits have continually faltered in Congress. This week, though, the effort arose again as the Senate Judiciary Committee held a hearing on whether the court should be divvied up.

Under one proposal, by Republican Sen. John Ensign of Nevada, the 9th Circuit and its roughly 50 judges would be broken into three circuits. Alaska, Oregon and Washington would constitute one circuit.

Whether the 9th Circuit is broken into two or three courts is the lesser point. The real goal, for Alaska, is simply to benefit by being out of a troubled court.

Alaska has peculiar and complex issues that, like other cases, are often decided by a panel of three judges. But, as 9th Circuit Judge Diarmuid O'Scannlain told the Senate Judiciary Committee, a "consistent, authoritative" voice escapes the 9th Circuit's rulings since the court's sheer volume of judges reduces the number of times those judges serve together on the three-person panels. Judges can go years without serving together.

Consistency and authority. Cases involving the Alaska Native Claims Settlement Act and the Alaska National Interest Lands Conservation Act, for example, require both. So do the intricate disputes between the state and federal governments, as well as those between governments and Alaska Native organizations and tribes.

Breaking up a circuit court is not a new idea. In 1980 Congress created the 11th Circuit, which serves Alabama, Florida and Georgia, from the 5th Circuit, which today serves Louisiana, Mississippi and Texas. The reason was that the court was just too big.

It's time for another circuit-breaking.

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