House Panel Mulls Dividing 9th Circuit Court

Even before the 9th Circuit Court of Appeals ruled that the reference to God in the Pledge of Allegiance is unconstitutional, a lot of people have been vowing to do something about the nation's largest and most overturned appeals court.

Renewed talk has emerged in recent weeks calling for the 9th Circuit Court to be reduced in size and a new 12th District to be added in the region.

In testimony before a House Judiciary subcommittee, one 9th Circuit Court judge argued it should be reconfigured because it has simply become too big.

"We are too big now and we are getting bigger every day," said Justice Diarmuid O'Scannlain. "And this is whether you measure size in terms of number of judges, caseload or population."

But proponents of the court, including its chief justice, oppose breaking up the 9th Circuit for ideological reasons.

"It is wrong to re-align circuits and to restructure courts because of particular judicial decisions or particular judges," said Chief Justice Mary M. Schroeder.

For residents in nine western states the 9th Circuit Court of Appeals is the last stop before the Supreme Court. Its jurisdiction stretches from California to Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.

The proposal to divide the court foresees keeping California, Nevada and Arizona in the 9th Circuit and moving the rest to the 12th.

The size of the court is the main issue for some. But others say the pledge decision is an example of the wacky activism taking place on the court.

The court ruled in June that the words "under God" must be removed from the pledge because they unconstitutionally imposed state-sponsored religion on students.

Opponents of the ruling charged that the decision was unjust since the words "under God" aren't in reference to a particular religion. Talk has already been made of appealing the case — brought by atheist Michael Newdow — to the U.S. Supreme Court.

The pledge issue demonstrates the fundamental problem of the court, said Al Lance, attorney general for the state of Idaho.

"Attorneys general must be able to advise their governors, their legislators, their citizens, as to the status of the law. In the 9th Circuit Court of Appeals at the present time, that can be best facilitated with a Ouija board and not a law library," he said.

The House could probably pass a bill to bust up the 9th, and would likely have White House support.

But one California congresswoman expressed resentment at the decision by committee Chairman Rep. James Sensenbrenner, R-Wis., to even consider changing the court's jurisdiction.

"It is impossible not to infer that this hearing is meant as a warning to all courts that Congress will interfere in your functioning and structure if you do not give us decisions that we like," said Rep. Maxine Waters, D-Calif.

Even if the House did pass a bill, Democrats controlling the Senate are opposed to the idea and could easily kill the bill without discussion.

Still, with public outrage over the pledge decision, those concerned about what they see as the judicial activism of the 9th Circuit Court of Appeals say they have their best chance in a long time to effect change.