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The Honolulu Advertiser
Posted on: Thursday, September 21, 2006

9th appeals court breakup plan turns into bitter political fight

By Erica Werner
Associated Press Writer

WASHINGTON Senators, judges and a Bush administration official clashed yesterday over splitting up the San Francisco-based federal appeals court that serves Hawai'i, with Democrats charging political motives by Republicans fed up with the court's left-leaning rulings.

Not so, said Republicans. They contended the 9th U.S. Circuit Court of Appeals, by far the nation's largest federal circuit, has gotten too big to be effective and would operate better if split in two.

"At what point is it unmanageable?" Sen. John Ensign, R-Nev., asked at a Senate Judiciary Committee hearing.

The 9th Circuit covers nine states, including Hawai'i, with about 54 million people and the appeals court has 28 judgeships.

It's so big the judges don't all hear cases together as they do in other circuits. Critics, including the Bush Justice Department, argue there are inconsistencies from one ruling by the court to another.

The court also has issued a series of rulings that outraged Republicans for example, a 2002 opinion that declared the Pledge of Allegiance unconstitutional when recited in public schools. Its rulings often are reversed by the U.S. Supreme Court.

Ensign and Sen. Lisa Murkowski, R-Alaska, have sponsored legislation that would break the circuit in two. A new 9th Circuit would cover California, Hawai'i and the Pacific Islands, and a new 12th Circuit would cover Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.

Similar legislation passed the House in December. Breaking up the court has been a longtime Republican goal.

"Let's be frank: the motivation behind splitting the circuit is political," said Sen. Max Baucus, D-Mont. "It's an attempt to control the decisions of the judiciary by rearranging the bench."

Most judges on the circuit oppose the break-up. Judges testified for and against yesterday.

The hearing featured a clash between Sen. Dianne Feinstein, D-Calif., and Assistant Attorney General Rachel Brand of the Justice Department's office of legal policy.

The Justice Department now supports the circuit split but has opposed it under past administrations.

"What has changed?" Feinstein demanded to know.

Brand responded that the Justice Department, often a party to litigation before the 9th Circuit, has concluded it moves too slowly and sometimes has inconsistent decisions.

Feinstein said she's never heard such a complaint from the Justice Department, including once when she had lunch with Attorney General Alberto Gonzales.

"So I can only conclude, and I must just say this, that this is political, that it has nothing to do with the performance of the circuit," Feinstein said.

"Our opposition has nothing to do with the outcome of any particular case," Brand responded.

"There is a very strong Justice interest in consistency in the law. People have to know what the law is," she said.

Feinstein told Brand to give her written examples showing where the circuit has been inconsistent.

"The Justice Department has now joined the fray and I want them to put up," she said.