Alaska editorial: Consider cutting size of 9th Circuit Court

Posted: Friday, December 02, 2005

This editorial first appeared in the Fairbanks Daily News-Miner:

The effort to break up the supersized 9th U.S. Circuit Court of Appeals gained the backing recently of the U.S. Department of Justice, which supported the claims of those who have long argued that the 9th Circuit - and therefore the people it is supposed to serve - is suffering under its own weight.

The on-again, off-again effort to slim down the 9th Circuit has some momentum behind it this time, with both the House and the Senate considering proposals to reduce its size. And the well-timed support of the Justice Department is surely welcomed by those who have been at the fore of the campaign for all these years.

Alaska's leaders have been among those rightly championing a dismembering of the 9th Circuit, which now has jurisdiction over an area encompassing 54 million people in nine Western states, including Alaska, as well as the territory of Guam.

The 9th Circuit is by far the nation's largest circuit, and complaints have abounded about the efficiency of the court.

The Justice Department, in a letter from Assistant Attorney General William E. Moschella, believes that reducing the size of the 9th Circuit would improve the delivery of justice. "The sheer size of the 9th Circuit has led to serious administrative difficulties that have adversely affected its ability to render justice efficiently."

Unfortunately, Mr. Moschella's statement is nothing new. But it is another high-level recognition that the 9th Circuit is a problem in need of a well-reasoned solution.

The court itself recently responded to one of the many criticisms by increasing the number of judges on its "en banc" panels, the panels that on occasion review the opinions of the circuit court's three-judge panels, which are the mainstay mechanism used by the nation's circuit courts to decide cases.

Prior to the change, the 9th Circuit's "en banc" panels constituted, at 11 judges, only a minority of the court's 28 judges. Chief Judge Mary M. Schroeder raised the number of judges for an "en banc" panel to 15, a majority that would therefore be presumed to carry the weight of the full court.

The three-judge panels themselves have also become a problem for the 9th Circuit in that, because the full court has so many judges, there are too many combinations of three-judge panels. That results in a greater potential for rulings that conflict with one another.

Splitting the court makes sense, and some of the 9th Circuit's judges agree.

Separate pieces of legislation in the House and Senate aim to accomplish a breakup of the 9th Circuit. Each would have the 9th Circuit cover California, Hawaii and the Pacific Islands and create a 12th Circuit covering Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona. The Senate version is sponsored by Republican Sens. Lisa Murkowski of Alaska and John Ensign of Nevada.

There is some disagreement between the House and Senate about which legislative process to use to achieve the split, but supporters of a reduced - and revitalized - 9th Circuit shouldn't let that disagreement derail the progress made to date.

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