Ben Brown, in defending Sen. Murkowski's legislation to split the 9th Circuit of the U.S. Court of Appeals, makes three arguments: (1) the 9th Circuit is too large to work effectively and the geographic scope and population of the circuit dictate an ever increasing workload; (2) it takes the 9th Circuit five months longer than the national average for the Courts of Appeal to issue a decision; and (3) a split circuit will allow more Alaska federal district court judges the opportunity to be elevated to the Court of Appeals.
The most comprehensive analysis of this subject is the final report of the Commission on Structural Alternatives for the Federal Courts of Appeal, known as the White Commission. Retired Supreme Court Justice Byron White chaired the commission, which reviewed prior studies, conducted surveys and public hearings. The strong recommendation of the commission is that the 9th Circuit should not be split. It stated there is no evidence that the 9th Circuit is not working effectively, or that creating new circuits will improve the administration of justice. Furthermore, splitting the circuit would impose substantial costs of creating a new circuit, including the replication of core functions. The Administrative Office of the U.S. Courts estimates the initial cost at approximately $132 million with additional annual costs of $22 million.
There is no correlation between increased population and increased appellate filings. Increases in appellate cases are related to specific circumstances (often transitory), such as immigration appeals to the 9th Circuit. In the decade prior to 2002 the population of Alaska, Washington, Oregon, Idaho and Montana increased by seventeen percent while the total appellate caseload from these states decreased by three percent.
Mr. Brown assumes splitting the 9th Circuit will reduce delays in case processing. The White Commission concluded that circuit size was not a critical factor in appellate delay nor is there a statistical relationship between total caseload and disposition time. For the 2003-04 period the 9th Circuit was only 3.3 months slower than the average of all 13 appellate courts for issuing a decision. The 9th Circuit was not the slowest circuit. Although the time from filing a note of appeal to final disposition exceeds the national average by a few months, the 9th Circuit is the second fastest in the nation in rendering decisions after oral argument.
Mr. Brown notes that a split court would somehow allow greater opportunity for federal district court judges in Alaska (there are two and splitting the court will have no impact on this number) to be elevated to the Court of Appeals. This is an odd argument given that a significant number of appointees to the Court of Appeals have no prior federal judiciary experience; for example, both John Roberts and Samuel Alito were not even jurists before they were appointed to the Court of Appeals. Whatever happens with the 9th Circuit will not affect the prospects of Judges Sedwick or Beistline.
Given that there is no logical reason to split the 9th Circuit - it is neither an issue of size, cost nor inefficiency - why is there a recurring demand to correct a problem that does not exist? It is clear that many politicians are not pleased with some of the "liberal" decisions of the 9th Circuit. However, as the White Commission stated, it is wrong to realign circuits and to restructure courts because of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.
Congress has never divided a circuit unless there was a clear mandate from the judges that division was required. According to Circuit Judge Thomas of Montana, only 3 of the 25 active judges of the circuit favor circuit division. The American Bar Association and the Federal Bar Association oppose the split.
Only twice since 1891 has a federal judicial circuit been split. Perhaps such an important decision should be based on careful analysis and deliberation. What the appellate courts need is adequate funding; perhaps Mr. Brown could talk to Sen. Stevens about "bridges to nowhere" versus reasonable funding for the judiciary.
Alan Schorr is a Juneau resident and publisher of The Denali Press.