Proposed Anti-Environmental Gerrymander: Efforts to Split the U.S. Ninth Circuit Court of Appeals 

 Issue Summary & History:

In 2006, anti-environmental ideologues are continuing to advocate splitting the Ninth Circuit U.S. Court of Appeals.  The Senate Committee on the Judiciary will soon consider S. 1845, "The Circuit Court of Appeals Modernization and Restructuring Act," which would split the circuit into two circuits. In a June 21, 2006 interview, Senate Judiciary Committee Chair Arlen Specter (R-PA) said that he wants to split the Ninth Circuit "yesterday.  I'd like to get it done before the end of the year."  Read our letter of opposition.

These efforts follow the defeat in late 2005 of an attempt to split the Ninth Circuit through a rider on the budget reconciliation bill.   This attempt was defeated when Senate conferees opposed the House proposal. House conferees stripped the rider from the budget bill before passing the legislation in the early morning hours on December 19, 2005.  Earthjustice and more than 90 civil rights, women's rights, disability rights, labor, health, religious, conservation and other national, state and local groups (link to letter here), opposed H.R. 4093 and other proposals to split the Ninth Circuit (Nov. 7, 2005).

Pete Wilson, as a Republican U.S. Senator from California (he later served two-terms as Governor) condemned previous efforts to split the U.S. Ninth Circuit Court of Appeals (which includes nine Western states) as "environmental gerrymandering" (link to article here) by those who had been angered by rulings upholding and enforcing environmental laws. When congressional efforts to repeal or change environmental laws have failed, anti-environmental special interests have renewed these efforts to "judge-shop" by dividing the court in order to change the identity of the judges who interpret the law in particular states.

History of Attempts to Split the Ninth Circuit

In 2004, the House of Representatives passed a measure that would have split the Ninth Circuit into three circuits: a Ninth Circuit overseeing only California, Hawaii, the Northern Mariana Islands, and Guam; a new 12th Circuit serving Arizona, Nevada, Idaho, and Montana; and a new 13th Circuit serving Alaska, Oregon, and Washington (link to final vote results here).  Earthjustice and other national environmental groups opposed the House amendment seeking to split the Ninth Circuit (Oct. 5, 2004).  Senator Dianne Feinstein (D-CA) said that she would block the bill with a hold, and it did not pass the Senate.  

House and Senate bills to split the Ninth Circuit into two Circuits (separating California and Hawaii from the other states) were introduced in 2005. The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held an October 26, 2005 hearing entitled: "Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem."

The next day, without holding a hearing, the House Judiciary Committee approved on a party line vote a new House bill that had been introduced the previous Friday (H.R. 4093, "Federal Judgeship and Administrative Efficiency Act of 2005"). On November 3, 2005, the House Budget Committee, on another party-line vote approved a budget reduction bill that included the provisions of H.R. 4093, even though they would increase costs.  Earthjustice and more than 90 civil rights, women's rights, disability rights, labor, health, religious, conservation and other national, state and local groups opposed H.R. 4093 and other proposals to split the Ninth Circuit (Nov. 7, 2005)

In a November 9, 2005 letter, Senate Judiciary Committee Chairman Arlen Specter (R-PA) and Ranking Member Patrick Leahy (D-VT) opposed inclusion of the Ninth Circuit split in any reconciliation package. Seven Ninth Circuit judges who have served or will serve as Chief Judge in the foreseeable future have also opposed any immediate action on dividing the Ninth Circuit (Sept. 2005).

These efforts continue, with the advancement of S. 1845, despite bi-partisan opposition ranging from Gov. Arnold Schwarzenegger (R-CA) to national and state bar associations, to the overwhelming majority of Ninth Circuit judges, including three who were nominated by President Bush, the current Chief Judge, and Senior Judge Clifford Wallace, a former Chief Judge who was nominated by a Republican President. "You'd have to believe in the tooth fairy to say this has nothing to do with politics," said Judge Alex Kozinski, a conservative who was appointed by President Ronald Reagan. "You would be breaking up what is essentially a very good, well-working machine for" something smaller and less efficient, he said, testifying against the split in Senate hearings.

 House and Senate Committee Hearings on Ninth Circuit Split:

The Senate Committee on the Judiciary Hearing "Examining the Proposal to Restructure the Ninth Circuit Court of Appeals" (Sept. 20, 2006):

• Former CA Governor and Senator Pete Wilson: (link to testimony)
• Chief Circuit Judge Mary Shroeder: (link to testimony)
• Circuit Judge Sidney R. Thomas: (link to testimony) (link to written testimony)
• William H. Neukom, Esq., Preston Gates and Ellis (link to testimony)

The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts hearing "Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem," (Oct. 26, 2005):

• Chief Circuit Judge Mary Schroeder (link to testimony)
• Circuit Judge Alex Kozinski (link to testimony)
• Circuit Judge Sidney R. Thomas (link to testimony)
• Circuit Judge Emeritus Marilyn Huff (link to testimony)
• Patrick Leahy (D-VT), Ranking Member, Senate Judiciary Committee, On "Revisiting Proposals to Split the Ninth Circuit" (link to testimony)
• Dianne Feinstein (D-CA), Opposing Proposals to Split the 9th Circuit Court of Appeals (link to testimony)

Senate Judiciary Committee hearing entitled: "Improving the Administration of Justice: A Proposal To Split the Ninth Circuit," (Apr. 7, 2004) (transcript available at this link).  Hearing Testimony and Statements Opposing Efforts to Split the Ninth Circuit:

• Chief Judge Mary Schroeder, Chief U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit (link to testimony)
• Judge Clifford Wallace, Senior U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit (link to testimony)
• Chief Judge John Coughenour, U.S. District Court for the Western District of Washington, and chair of the Ninth Circuit's Conference of Chief District Judges (link to testimony)
• Senator Patrick Leahy (D-VT), Ranking Member, Senate Judiciary Committee, On "A Proposal To Split The Ninth Circuit" (link to testimony

House Subcommittee on Courts, the Internet & Intellectual Property, hearing on H.R. 2723, the "Ninth Circuit Court of Appeals Judgeships & Reorganization Act of 2003," (Oct. 21, 2003) (transcript available at this link):

Hearing Testimony and Statements Opposing Efforts to Split the Ninth Circuit:

• Judge Alex Kozinski, appointed to the Ninth Circuit in 1985 by President Ronald Reagan (full text)
• American Bar Association, Statement on H.R. 2723 (Oct. 21, 2003) (full text)

Testimony Before a 1999 Hearing of the Senate Judiciary Committee Administrative Oversight and the Courts Subcommittee:

• Judge Charles Wiggins, Ninth Circuit Court of Appeals (July 16, 1999) (full text)

Map of current U.S. Courts of Appeals territories