Alaska editorial: Splitting 9th Circuit is natural progression

Posted: Monday, November 07, 2005

This editorial first appeared in the Voice of the (Anchorage) Times:

Sen. Lisa Murkowski is on the right track with legislation she is co-sponsoring that would split the massive and overburdened 9th U.S. Circuit Court of Appeals and create a new court to hear cases from many Western states.

The new court, the 12th U.S. Circuit Court of Appeals, would include Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona. A trimmer 9th Circuit would encompass California, Hawaii and the Pacific Islands. Nevada Republican Sen. John Ensign has joined Murkowski in pressing for the legislation. A measure that would make the same split was approved 22-12 Thursday in the House Judiciary Committee.

Such a change in the San Francisco-based 9th Circuit is long, long overdue.

The court, established in 1891 and authorized 28 judges, is an exercise in superlatives. It is huge, by far the largest of the 13 federal appeals circuits. Its jurisdiction covers 58 million people, but California accounts for more than 60 percent of the population in the far-flung district that contains most of the West, Guam and the Marianas.

It is the largest federal circuit appeals court in the nation. The population it serves is about double that of other circuits, and it only will get worse. The court sits on cases from the fastest-growing region of the country. Needless to say, its caseload is staggering and getting worse.

Judge Andrew Kleinfeld, a 9th Circuit jurist from Fairbanks, on Wednesday argued in favor of the split before Senate Judiciary Committee.

"We're too big to hear cases en banc and too big to read each other's decisions," he said. "The draws on our court, combined with its size ... make the law a game of chance in the 9th Circuit. Law should not be a game of chance."

Other advocates for the split long have argued that the focus of the court, because it is heavily weighted with California jurists, short-changes other states and regions. Too many of the judges, they say, spend too much time on major California issues such as immigration and are unfamiliar with legal issues elsewhere.

The burdensome size of the court's jurisdiction, they say, virtually ensures a very long wait for justice, and at least partially because of that reluctance to the proposed split is waning, at least in some quarters. Murkowski notes in a news release that the Judicial Conference of the United States is now neutral on such a split, a softening of its earlier opposition.

Such a move certainly has precedent. The 10th Circuit was formed from the 8th Circuit in 1929; the 11th Circuit from the 5th circuit in 1980. Splitting the 9th circuit seems to us to be a natural progression.

It is necessary because there is no good news in the status quo. The court's problems will not magically disappear.

It is beyond time for a change.

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