Western Appeals Court Requires Restructuring, Two Justices Say: Kennedy, O'Connor Call Panel Controversial
Murray, Frank J., The Washington Times (Washington, DC)
Two Supreme Court justices with the closest links to the 9th U.S. Circuit Court of Appeals have proposed dividing the nation's most controversial appeals court three ways, with California split in two jurisdictions.
The Clinton administration objected to any such dramatic overhaul of federal appeals court boundaries and suggested changes to head off conflicts like those that brought on demands to break up the 9th Circuit.
A high-level commission studying the 9th Circuit's fate along with other possible structural changes in the appeals system will finish drafting its still-secret recommendations to Congress by Oct. 1, The Washington Times has learned.
Justice Anthony M. Kennedy, a former 9th Circuit judge, and Justice Sandra Day O'Connor, who handles emergency appeals from its nine Western states, both said in letters that part of the answer is to divide California between two circuits.
Justice Kennedy laid out a plan to create a circuit for Alaska, Washington, Oregon, Idaho and Montana; another for Northern California, Hawaii and Nevada; and a third circuit for Southern California, Arizona, Guam and Saipan.
Controversy has swirled around the 9th Circuit in recent years. It has been rebuked repeatedly by the Supreme Court for its behavior and reversed on almost every decision the high court reviewed.
"If California were not divided, moreover, the number of judges required for California alone would constitute a circuit so large that the deficiencies already present in the 9th Circuit might persist," said Justice Kennedy, who said the benefits were worth the pain.
Circuit courts govern lower federal courts in states within its territory and much of the Supreme Court's job is resolving serious conflicts between them.
Chief Judge Procter Hug Jr. did not respond to a request for reaction to the new proposals but he opposed any splits when he testified to the commission May 29 in San Francisco.
He called the study political "because some members of Congress are unhappy with one or two decisions," a minimalist view of the circuit's controversial past and present.
"We should not create another small circuit, or leave California alone as a circuit, nor should we split California, or combine it with another small state that it will dominate, or create some other bizarre division when the circuit is well-balanced and working well as it is," said Judge Hug, a 1977 Carter appointee.
Ninth Circuit Judge James B. Browning, a 1961 Kennedy appointee who was chief circuit judge before Judge Hug, counseled patience. …