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 Washington, DC – U.S. Senator Dianne Feinstein (D-Calif.) today fought back an effort to split the Ninth Circuit Court of Appeals.

Senator John Ensign (R-Nev.) had offered an amendment to the Court Security Bill that would have split the Ninth Circuit.  Senator Feinstein raised a budget point of order to the Ensign amendment because it would have increased federal outlays without providing any offset.  The point of order was sustained, and the amendment fell. 

“After a substantial review of statistics, decisions, and reports from those who know the Circuit best, it is clear that splitting the Ninth Circuit would hinder its mission of providing justice to the people of the West,” Senator Feinstein said.  “The uniformity of law in the West is a key advantage of the Ninth Circuit, offering consistency to States that share many common concerns, from immigration to the environment.”

The Ensign amendment would have created:

  •  A new Ninth Circuit, consisting of California, Hawaii, Guam, and the Northern Mariana Islands; and
  • A new Twelfth Circuit, consisting of Arizona, Nevada, Idaho, Montana, Oregon, Washington, and Alaska.

Senator Feinstein voiced her concern that recent attempts to split the Ninth Circuit have been made by those who disagree with some of the Courts’ rulings.  If the split were made, the caseload for the already overworked Ninth Circuit would dramatically increase – to 600 cases per judge, compared to the 2006 national average of 381 cases per judge.

The following is Senator Feinstein’s statement as delivered on the floor of the United States Senate:

“Madam President, I rise in strong opposition to the amendment before us that will split the Ninth Circuit.  We will be voting on a point of order at 2 o’clock. 

I think it is very unfortunate that the pending bill, to make much-needed improvements in the security of our judges, is being threatened by a rehashing of an old and bad idea to split the Circuit. 

There is a raft of reasons why the Senate should defeat this effort to divide the Ninth Circuit.  First, it would be a serious blow to judicial independence if the circuit were to be split because of disagreement with its decisions.  It would also result in an unfair distribution of the Ninth Circuit caseload.  Judges in the new Ninth Circuit would be much more busy than their counterparts on the Twelfth Circuit. 

The proposal that is being made by Senator Ensign essentially takes California, Hawaii, Guam, and the Mariana Islands and puts them into their own Ninth Circuit, and takes all the big continental States that are now part of the Ninth Circuit and creates a Twelfth Circuit.  That is the proposal that is before the body now.

This proposal would also destroy the current uniformity of the law in the West.  It would have significant costs that the judiciary cannot afford to bear, given its already tight budgets, and it is opposed by the vast majority of the people who know the circuit best: its judges.  Virtually overwhelmingly: I think all but three or four of the judges in the Ninth Circuit oppose its splitting.

I agree with many of the Ninth Circuit’s decisions.  I disagree with some of them.  However, the Framers of the Constitution intended the judiciary to be independent and free from congressional or Presidential pressure or reprisal.  I am concerned that recent attempts to split the Ninth Circuit are part of an assault on the independence of the judiciary by those who disagree with some of the court’s rulings.

As former Gov. Pete Wilson has stated: “These attempts are judicial ‘gerrymandering,’ designed to isolate and punish judges whose decisions some disagree with.  They are antithetical to the Constitution.”

That is not me saying that; that is the former Republican Governor of California. 

Attempting to coerce or punish judges or rig the system is not an appropriate response to disagreements with a court's decisions.  Rather, it is essential that we preserve our system of checks and balances and make it clear that politicians will not meddle in the work of judges.  The configuration of the Ninth Circuit is not set in stone; however, any change to the Ninth Circuit should be guided by concerns of efficiency and administration, not ideology. 

After a substantial review of the statistics, decisions, and reports from those who know the circuit best, it is clear that splitting the Ninth Circuit would hinder its mission of providing justice for the people of the West.

The split proposal before us would unfairly distribute judicial resources to the West.  This is the key.  The Ninth Circuit would keep 71 percent of the caseload of the current circuit but only 58 percent of its permanent judges.  Any split we look at, because California is so big, tilts the circuit and, of course, all of the proponents of the circuit split take the judges with them.  So it leaves a disproportionate share of a heavy caseload in the Ninth Circuit -- unless you split California, and to split California creates a host of technical and legal problems. 

Last year, the Ninth Circuit had a caseload of 570 cases per judge, as opposed to a national average of 381 cases per judge.  So under the proposed split, the Ensign plan, the average caseload in the new Ninth Circuit would actually increase to 600 cases per judge, while the new Twelfth Circuit would have half that, 326 cases per judge.  There is no effort to give the Ninth the new judges they would need to keep the caseload even.  This inequitable division of resources would leave residents of California and Hawaii facing greater delays and with court services inferior to their Twelfth Circuit neighbors. 

The uniformity of law in the West is a key advantage of the Ninth Circuit, offering consistency to States that share many common concerns.  The size of the Ninth Circuit is an asset, offering a unified legal approach to issues from immigration to the environment.  Dividing the circuit would make solving these problems even more difficult.  For example, splitting the circuit could result in different interpretations in California and Arizona of laws that govern immigration, different applications of environmental regulations on the California and Nevada sides of Lake Tahoe, and different intellectual property law in Silicon Valley and the Seattle technology corridor. 

These differences would have real economic costs.  These are border States, and trade and commerce in the Pacific is a huge part of what they do.  Therefore, the legal consistency between them is an asset, not a disadvantage. 

In a time of tight judicial budgets, splitting the circuit would add significant and unnecessary expense.  The split actually would require additional Federal funds to duplicate the current staff of the Ninth Circuit and a new or expanded courthouse and an administrative building since existing judicial facilities for a Twelfth Circuit are inadequate.  The Administrative Office of the U.S. Courts estimated that creating a Twelfth Circuit would have a startup cost of $96 million, with another $16 million in annual recurring cost. 

If we are going to do anything, what we need are more judges on the Ninth Circuit.  That is the key.  With budget pressures already forcing our Federal courts to cut staff and curtail services, this is no time to impose new, unnecessary costs on the judiciary. 

My colleague, Senator Barbara Boxer, joins me in these remarks.  She is filing a separate statement. 

Those who know the Ninth Circuit best overwhelming oppose the split.  Of the active Ninth Circuit Court of Appeals judges, 18 oppose the split, to be exact, and only 3 support it.  The district court and bankruptcy judges of the Ninth Circuit also oppose the split.  Every State bar association that has weighed in on the split -- Alaska, Arizona, Hawaii, Montana, Nevada, Oregon, and Washington -- opposes breaking up the Ninth Circuit, and more than 100 different national, regional, and local organizations have written to urge that the Ninth Circuit be kept intact. 

I believe splitting the Ninth Circuit would create more problems right now than it would solve.  It will not solve the caseload problem of the circuit, and that is the critical issue.  Those who propose the split do so to unfairly benefit themselves because they also take the judges from the Ninth Circuit and they add them to the Twelfth Circuit.  They would end up having a caseload per judge of one-half of what the caseload would be in a new Ninth Circuit.  So it is not a fair plan because it does not fairly distribute the resources based on caseload.  I believe there is only one criterion for resources, and that is caseload.  The judges must be where the cases are, and that should be an inescapable truth that we follow. 

I urge the Senate to vote to sustain the point of order on the Ensign amendment to split the Ninth Circuit, and instead let's focus our attention on securing the courts and then, secondly, providing the judges who are necessary to equalize caseloads throughout the Nation.”