After nearly 35 years of debate over dividing the nation’s largest federal appellate court, the Justice Department has reversed its previous stance and is now weighing in on the side of a split.
Testifying before the Senate Judiciary Committee on Wednesday, Rachel Brand, assistant attorney general in the DOJ’s Office of Legal Policy, stated the time is right to split the overburdened, oversized 9th U.S. Circuit Court of Appeals, which is based in San Francisco.
The circuit’s size—it encompasses nine states with a total population of 58 million people—has resulted in delays and inconsistencies in opinions. Brand testified that the appellate judges are known to quickly turn around decisions after oral argument, but that the circuit takes more than four months longer than others from the point of filing the appeal to final disposition.
Contributing to these inconsistencies is the circuit’s unusual en banc procedures, which call for 15 out of the 28 active judges on the court to resolve a dispute en banc, Brand testified. In a close case, eight judges, a minority of the full court, could decide a key issue.
Brand was one of 12 witnesses—six in favor of a split, six opposed—who testified about the legislation, which has been introduced by Sen. Lisa Murkowski, R-Alaska, and Rep. John Ensign, R-Nev. Their bill would leave California and Hawaii in the 9th Circuit and create a 12th Circuit to cover Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona. It also would add seven more judges, likely to remain in the 9th Circuit.
Legislation to split the circuit passed the House last year, but never reached a vote in the Senate. (Continued at link above)
