Plan for a New Appeals Court Catches Opponents Off Guard

Western senators seek to split 'liberal' Ninth Circuit, possibly by next week.

For Alaska's two senators, the final straw came in December. Like many Republicans from the brawny Northwest, they had long been irked that their state was part of the huge Ninth Circuit Court of Appeals, which has 28 judges and extends from San Diego to Anchorage. It wasn't just that the circuit court's size made it inefficient, they said. It was those liberal judges in San Francisco and what Sen. Ted Stevens (R) of Alaska called the "domination of the court by California lawyers."

But when the Ninth Circuit last year granted sovereignty to native Alaskan villagers ... well, that was it. Time to get out, they said. Time to form a new federal circuit that will not be so timid about the environment and so solicitous about native American claims.

Direct attempts by Sen. Frank Murkowski (R) of Alaska and five other senators from Idaho, Montana, and Oregon to divide the Ninth failed this spring.

But now, a new federal circuit court, the 12th, could be a reality as soon as the end of next week. Moreover, because a new 12th Circuit was quietly engineered as a "rider" on a Senate appropriations bill passed in July, the dramatic change could be signed into law without any hearings - and despite a new study commission on the subject headed by Rep. Henry Hyde (R) of Illinois.

The new circuit would combine Alaska, Washington, Oregon, Montana, and Idaho, together with Arizona - which would exist as a separate "floating" member. Two equal centers would be situated in Phoenix and Seattle - at a start-up cost of $60 million. The old Ninth Circuit, meanwhile, would shrivel to California and Nevada. Hawaii would start in the 12th Circuit and possibly return later.

A split in the controversial Ninth Circuit has been discussed for three decades. As a result, the new Senate bill did not immediately capture the attention of lawmakers or even the legal community during the lull of summer.

But it has now. As details of the plan emerge, a sizable chorus of discontent and even outrage is coming not only from California's senators and governor, but also from law and judicial groups around the country, Republicans such as Representative Hyde (who heads the House Judiciary Committee), and even the governor of Oregon. The majority of Ninth Circuit judges have always opposed a split.

"It's an unprecedented step, for starters," says Arthur Hellman, an expert on the Ninth Circuit at the University of Pittsburgh and head of a task force that studied splitting the circuit. "Maybe the Ninth should be split, but it should not be done by horse-trading among senators. One rationale for the new plan is efficiency. How do you have that when you've created not one but two new centers of bureaucracy?"

A "floating" Arizona is a big sticking point for many. Seven past presidents of the Arizona State Bar suggest in a recent open letter that creating a conservative federal circuit in the Northwest, of which their state would be a part, is a type of "court packing" done for political reasons and without a systematic review of the impact on law, justice, and even commerce.

ASSUMING the House next week passes its version of the appropriations bill, House and Senate lawmakers will immediately convene a conference on splitting the Ninth Circuit. If both sides agree (Senator Stevens heads the Appropriations Committee), the new circuit will be born without ado. But lobbying prior to the conference is expected to be thick.

"We cannot subject something as important as the structure of our courts to political gamesmanship," Hyde says. His bipartisan commission, agreed to after a hard battle in the spring, would make the first major review of all federal circuits in many years. "The process must be fair."

The Ninth Circuit has long typified liberal activism, yet that image may be somewhat distorted. A new study by Dr. Hellman shows that in the past year, the majority of the judges in cases reversed by the Supreme Court were not from California, but from states considered to be more conservative.