Breaking up is hard to do

Today's DJ reports 9th Circuit Split Debate Raises its Head ... Again, about how Republicans in Washington are again "ramping up legislative efforts" to split the 9th Circuit "in the latest chapter of a decades-long saga that has generated much rhetoric but little substantial change."

Couched as a hearing on the Judicial Conference of the United States’ most recent recommendation for new federal judgeships, the U.S. Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts heard testimony Tuesday from a 9th Circuit judge and a Vanderbilt University Law School professor ostensibly on the subject.

Recently, the Judicial Conference released its biannual report on the state of the judiciary, suggesting the federal courts need 57 new judgeships to cope with an increasing caseload. Five of those slots were recommended for appellate seats, all on the 9th Circuit.

But testimony before the subcommittee Tuesday focused on the debate over splitting the 9th Circuit into two courts rather than the implications of authorizing new judgeships.

“There could hardly be a more obvious case for the next step in this ... natural evolution in our courts than the division of the 9th Circuit,” said Judge Diarmuid F. O’Scannlain, who noted the federal appellate courts have been significantly restructured on several occasions in the last 200 years.

Professor Brian T. Fitzpatrick, who also supports efforts to break up the court, told the committee members the 9th Circuit’s staggering caseload, disproportionate size in comparison to other circuits, high number of judgeships and unique en banc process make the court unwieldy.

“It is the only circuit in American history that has become too big to go en banc with a full court,” Fitzpatrick said.

Last summer, 34 of the 9th Circuit judges — including both Democratic and Republican appointees — sent an open letter to the leadership of the Judiciary Committee, urging it to keep the court whole.

“In our view, division of the Ninth Circuit would be costly, inefficient, and would harm the administration of justice in the West,” the judges wrote.