Editorial: The real 9th Circuit Court of Appeals debate

Posted: Sunday, October 16, 2005

What's important about the debate over splitting up the sprawling 9th Circuit Court of Appeals is what fans of the proposal don't tell you.

Supporters, such as Alaska's U.S. Sen. Lisa Murkowski, will tell you the court is big, too big. It covers nine states and 58 million residents. They'll tell you it's unwieldy and ineffective. They'll tell you it makes decisions that lead to a high rate of reversals - up to 75 percent - by the U.S. Supreme Court.

But that's far from the whole story. Republicans have been trying for years to break up the San Francisco-based court claimed to be too liberal for many of the Western states it serves. Conservatives have had it with the court that had the gall to ban the Pledge of Allegiance.

Closer to home, 9th Circuit decisions have rankled timber-industry supporters with its rejection of timber demand projections in the Tongass Land Management Plan and ruling against logging in northern spotted owl habitat.

Murkowski, with Sen. John Ensign, R-Nev., introduced a bill last week that would split California, Hawaii and the Pacific Islands into one circuit and move the remaining 9th Circuit states into a court of their own. Murkowski is avoiding arguments about the court's so-called political leanings.

But the claims that the 9th Circuit Court needs to be divided to make it more efficient don't hold up. What proponents of splitting the court won't tell you is that the 9th Circuit's rate of reversals by the Supreme Court is about the same as other circuit courts. Nor will they tell you that the speed with which the 9th Circuit moves cases through its system is actually quite fast. In 2002, it was the second fastest among circuits across the nation, according to the American Bar Association.

These are among the reasons the American Bar Association came out in 2003 against yet another proposal to divide the 9th Circuit. The association noted that the circuit did have a troubling backlog of pending appeals, but stated that this was tied not to the size of the circuit, but the number of unfilled judgeships on which Congress needed to act.

Splitting up the court could actually increase the backlog of appeals because duplicating the court's administrative offices would cost far more than running a single system. The greater costs would stretch financial resources and make it harder to have the same number of people needed to move cases through the court swiftly.

The bottom line is that breaking up the 9th Circuit Court has nothing to do with efficiency and everything to do with politics. Conservatives want to split the circuit because they think it could lead to rulings more in line with their own beliefs. They're trying to force their agenda onto a system that's built on the law, not on a party platform. And they're hiding behind claims of court inefficiencies that don't exist.

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