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Future of 9th Circuit Under Review

For many conservatives, the words "9th Circuit" mean more than just a federal appeals court in California. The words embody everything they think is wrong with liberal activism, West Coast politics and the judges who tried to take God out of the Pledge of Allegiance.

Those same conservatives think their new clout following President Bush's re-election may help put some weight behind a movement to split up the 9th Circuit Court of Appeals (search), leaving the 9th in California, creating a new 12th Circuit for neighboring Idaho, Arizona, Montana and Nevada; and a new 13th Circuit for Washington, Alaska and Oregon.

"Almost everything is going to be affected by the election," said Kay Daly, who heads the Coalition for a Fair Judiciary (search), a conservative group working to get Bush's judicial nominations through the Senate. She said conservatives will be pushing hard to split up the 9th Circuit.

"The 9th Circuit seems to wield an awful lot of power, and it is the most reversed court in the nation," she said. "There's some serious judicial activism going on there."

By a vote of 205 to 194, the House on Oct. 5 passed an amendment by Rep. Mike Simpson, R-Idaho, to the Bankruptcy Judgeship Act (search) that would divide the 9th Circuit into three parts. The entire bankruptcy bill passed the House shortly afterward.

Republicans largely voted for the measure while Democrats opposed it. But two California Republicans, Reps. Christopher Cox and David Dreier, voted against the amendment.

Retired Judge Robert Bork, a former U.S. Solicitor General (search) and federal appeals court justice, said the 9th Circuit "has always been a maverick court," but splitting it up is more complicated than it sounds.

"I don't know if it's such a hot idea to have a court confined to California," he told FOXNews.com. "You would still get a court full of activist judges, and a court that doesn't represent the whole of the state."

But the lawmakers who sponsored the legislation in both the House and Senate say the 9th Circuit is not only ideologically different from its own Western values, the court is overworked. They point to the judges' caseload and sluggish docket.

"It's the most overloaded circuit out there," said Dan Whiting, spokesman for Sen. Larry Craig, R-Idaho, who introduced the Senate companion bill with Sen. John Ensign, R-Nev. "We certainly have concerns over how the court works, but at the same time there are other concerns with the overload, with its workloads, that far outweighs any other concern."

"[Ensign] is as aware as many people are that the court is completely overloaded," said Jack Finn, spokesman for the senator.

But not everyone believes that workload is the overriding concern for GOP lawmakers, and a lot more senators will be needed to get a ringing endorsement. Senate sources say it has a glimmer of a chance of being brought up in the Senate, but not much more than that, at least for now.

Sen. Dianne Feinstein, D-Calif., who opposes the measure, has put a hold on the Craig-Ensign bill, basically bottling it up in limbo, and has warned against attempts to slip it into larger bills.

"It would be inappropriate to undertake such a momentous transformation of our nation's judicial system with little opportunity for debate and consideration," Feinstein said in a letter to the Appropriations Committee Chairman, Sen. Ted Stevens, R-Alaska, on Nov. 15.

The chief judge of the 9th Circuit, Hon. Mary M. Schroeder of Arizona, and several of the court's judges have been vocally opposed to the effort. Schroeder was out of the country and could not be reached for comment, but has stated publicly that the measure would break up common interests among neighboring states.

Conservatives have not been shy about their dismay over what they consider to be the court's ideological slant. That dismay surfaced explosively in 2002, when the 9th Circuit declared the Pledge of Allegiance unconstitutional because it makes reference to God in one verse. The U.S. Supreme Court later overruled the court on technical grounds.

To conservatives, this was the culmination of years of "liberal" decisions on everything from environmental issues, to crime, drugs and sex.

"These contemptuous judgments tear at the moral fabric of our nation, disregard the will of the people and force a corrupt ideology upon our society," said Rep. Rick Renzi, R-Ariz., after the House passed an amendment that included language he introduced in April to split the court.

He said rural Arizonans were tired of the 9th Circuit ruling against their interests, and pointed to judgments concerning cattle grazing and preventing forest fires. "Based in San Francisco, the current 9th Circuit is out of touch with western values," Renzi said.

But not all Arizonans necessarily agree. The Arizona House delegation split its vote along party lines.

Rep. Adam Schiff, D-Calif., said the ideological drive behind the proposals in both the House and Senate have made lawmakers uncomfortable. "It's obvious what is going on, the other side is very clear that this is what they are doing," Schiff told FOXNews.com.

He said he heads a caucus with Rep. Judy Biggert, R-Ill., to work, in part, on solutions to the worsening relationship between the courts and Congress. "This just makes it worse."

But Finn said Ensign is confident that the enough bipartisan support exists in the Senate to split up the court.

"We're confident that it will go somewhere, the question is not if, but when," Finn said. "It's a commonsense bill and he intends to pursue it."