Keep 9th Circuit Court of Appeals as one circuit

THE ISSUE The U.S. Senate is considering splitting the 9th U.S. Circuit Court of Appeals into two circuits.

CONCERNED about the possibility of Democrats gaining control of the U.S. Senate in the November elections, Republicans are engaged in a frantic effort to split the 9th U.S. Circuit Court of Appeals into two circuits. They claim the current circuit is too cumbersome and the caseloads too large, but the real motive is to punish the court for being too liberal.

The judges who sit on the circuit bench know better, and they overwhelmingly oppose the division. Judge Richard Clifton, a George W. Bush nominee from Honolulu, was among seven 9th Circuit judges who appeared before the Senate Judiciary Committee last week in opposition to the change.

Timber, mining and irrigation interests have been angry about the court's enforcement of environmental laws. Social conservatives are upset about rulings striking down death sentences and an absurd ruling that it was unconstitutional to require that schoolchildren say "under God" when reciting the Pledge of Allegiance. The Justice Department has opposed the split in past administrations, but the Bush administration has joined the critics in calling for it.

This is not the first time that politics has been used to split an appeals court. The halving of the nation's most southeastern circuit took effect in 1980, after Congress fought for 18 years over the issue. The split was advocated by powerful Southern senators who were angered by the court's civil rights decisions.

"The force that brought about the division was the power of a stubborn member of Congress who made good on his threat to prevent the court from getting any judges until it was divided," 9th Circuit Chief Judge Mary M. Schroeder testified on Wednesday to the Senate Judiciary Committee.

The controversy over splitting the San-Francisco-based 9th Circuit has been boiling for 40 years. The current proposal, introduced by Sen. John Ensign, R-Nev., would create a new circuit with seven states, leaving Hawaii and the Pacific islands as a stepchild of California in the 9th, with more than 70 percent of the existing court's caseload and 18 percent of the cases in the whole country.

The California-Hawaii 9th Circuit would be left with 500 cases per judgeship while judges in the new circuit would average 300 cases. The 9th would need to add 13 judges to bring its caseload even with the new circuit, according to Schroeder.

If the Republicans lose control of the Senate, they might try to seek enactment of the Ensign bill after the election and before convening of the new Congress. That should not be allowed to happen.