Should the Ninth Circuit Be Split?

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That question was the driving force behind the establishment of a nonpartisan commission appointed by the Chief Justice to examine the possible restructuring of the entire federal appellate court system. The Commission on Structural Alternatives for the Federal Court of Appeals, headed by retired Supreme Court Justice Byron White, released its final report on December 19, 1998. (Justice White is the subject of a new biography by one of his former clerks, which is available in the Appellate Counsellor Bookstore.) For more information, visit the Commission's web site.

The draft report recommends keeping the Ninth Circuit intact, but splitting it into three divisions: (1) Southern California and Arizona, (2) Northern California, Nevada and Hawaii, and (3) Washington, Oregon, Alaska, Monatana and Idaho. Each division would have an established roster of circuit judges, but the entire circuit would have authority to resolve disputed points of law when the divisions disagree. The full text of the draft report is available in .PDF format here. You can read and print PDF documents from any computer equipped with Acrobat Reader ® software. (You may download Acrobat Reader ® for free from Adobe Systems.) Chief Judge Proctor Hug has posted a response to the report at the Ninth Circuit Homepage.

The chief sponsor of an earlier bill to split the circuit, Senator Slade Gorton (R-Wash), has argued that the current Ninth Circuit is simply too large, extending, as Judge O'Scannlain testified during the Committee's hearings on the subject in September, "from the Rocky Mountains to the Sea of Japan and from the Mexican border to the Arctic Circle."

Proponents of a split have also claimed that the size of the court makes for inconsistent law. Supreme Court Justice Ruth Bader Ginsburg may have lent some credence to that argument during a question-and-answer session on the Ninth Circuit's annual judicial conference in August 1997. She said that it was "important" for a circuit to be "internally consistent," and that the Ninth Circuit may be "too large to be always consistent." Three of her colleagues -- Justices Scalia, Stevens and Kennedy -- have also suggested that the Circuit should be split.

Former Ninth Circuit Chief Judge J. Clifford Wallace has been an outspoken opponent of a split. His successor, Procter Hug, Jr. of Nevada, also opposes any split. In a speech to the Los Angeles chapter of the Federal Bar Association, Chief Judge Hug said that the circuit should be kept together for four reasons: the court works efficiently and expeditiously, it ensures consistency in the federal law in the nine western states that it serves, the existing group of judges are collegial, and economies of scale.

Use one of the following sites to register your opinions on the subject with your elected representatives:

• Commission on Structural Alternatives for the Federal Courts of Appeals
• The Electronic Activist
• CapWeb - A Guide to the U.S. Congress

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