LAWMAKERS TRYING AGAIN TO DIVIDE NINTH CIRCUIT

LOS ANGELES, June 18 - Congressional Republicans are hoping yet again to
split the Court of Appeals for the Ninth Circuit, which covers nine Western
states and has issued some rulings to the dismay of conservatives, saying a
breakup is the best way to reduce the caseload of the circuit's federal
judges.

Next week, Senator John Ensign, Republican of Nevada, plans to introduce a
bill to split the circuit into three parts. Representative Mike Simpson,
Republican of Idaho, has already introduced legislation that would create
two new appellate courts for the area.

And because the chairman of the House Judiciary Committee has linked the
addition of any new judgeships across the country to dividing the circuit,
lawmakers may have reason to view the prospect with an open mind.

"The situation is continuing to get worse for the Ninth Circuit," Mr. Ensign
said in a telephone interview on Thursday. "It has by far the most cases per
jurist, and it's just too large and too unwieldy."

Senator Dianne Feinstein, Democrat of California, who has fiercely opposed
efforts to split the circuit in the past, responded to questions by saying
that the real issue is the number of judges handling cases. "If there is a
way to reduce the caseload of the Ninth Circuit's judges in a fair and
honest manner," she said in a statement, "I am open to considerations."

The idea of splitting the Ninth Circuit is hardly new; efforts date back
decades. But it packs greater significance following recent criticism from
some conservative lawmakers of decisions by federal judges. Democrats who
have opposed the concept of a split may be cautious about voicing strong
opposition after the recent skirmish over judicial filibusters. And with
Republican majorities in the Senate and the House, which passed a version of
Mr. Simpson's bill last year, supporters say they consider the split
inevitable.

It is undisputed that the court in question is the largest circuit court in
the country, with more than twice as many judgeships, 51, than any other
circuit. It encompasses about 20 percent of the nation's population and
wrestling with some of the most controversial issues - immigration,
legalization of marijuana, religion in schools.

Judges on the Ninth Circuit decided that the federal government probably did
not have authority to prohibit medical use of marijuana. They decided it was
unconstitutional for schoolchildren to recite the full Pledge of Allegiance.
In both cases, they were recently reversed by the Supreme Court. The Ninth
Circuit also seems to be heading toward an opinion on just how
schoolteachers may refer to religion in public school classrooms.

"The reason that the issue of splitting the circuit comes up repeatedly is
because of dissatisfaction in some areas with some of our decisions," said
Mary M. Schroeder, chief judge of the Ninth Circuit and a strong opponent of
any split. "This has a long historic basis beginning with some fishing
rights decisions in the 60's and going forward to the Pledge of Allegiance
case and presently some of the immigration decisions."

Supporters of a split say the decisions are not driving them to act. They
point to the number of judges in the circuit, cases filed, cases per judge
and trips by judges to hear appeals from Seattle to San Francisco to
Honolulu.

Splitting the circuit into smaller parts would not solve the problem alone.
A number of appellate judges would have to be added - something lawmakers
across the country, including the Ninth Circuit, say is needed.

"This is the most important thing," Judge Schroeder said. The circuit would
be better served if the Senate focused on filling its four current vacancies
and the Congress created new judgeships here and across the country, she
said.

Senator Arlen Specter, a Pennsylvania Republican who is chairman of the
Senate Judiciary Committee, said the panel had many pressing issues. "We've
had an unusual rush of very high-priority items, with class action and
bankruptcy and the judges and Guantanamo and asbestos," Mr. Specter said,
referring to a wave of bills before or recently passed by Congress. "It's
pretty hard to displace any of them on the priority schedule. But the Ninth
Circuit is on it."

Representative F. James Sensenbrenner Jr., a Wisconsin Republican who is
chairman of the House Judiciary Committee, said last fall that dividing the
Ninth Circuit would be a priority. and linked any new judgeships to dividing
the Ninth Circuit.

Arthur Hellman, a law professor at the University of Pittsburgh who has
followed the issue for decades, said, "Now that Chairman Sensenbrenner has
said this is a national issue - there will not be any judgeships for any
circuit or district without a split as part of it - that means that
everybody in the entire judiciary has a concern about it." With other
circuits pressing the case for more judges, he said, "It's going to put the
Ninth Circuit in a very difficult position at some point."

Opponents of the split say that the court system is not overwhelmed and that
the current proposals leave California intact in a single circuit, failing
to address the basic problem, that it generates the vast majority of the
circuit's cases.

"It is essential that California be treated fairly," said Ms. Feinstein, who
helped quash a bill last year to split the circuit. To her that means
providing more appellate judges.

The three-way split proposed last year and reintroduced this year in the
House would lump together California, Hawaii, Guam and the Mariana Islands;
Alaska, Oregon and Washington; and Nevada, Arizona, Idaho and Montana.

A split would not directly affect the jurisprudence of the Ninth Circuit, of
course. But it might speed the day that Republican appointees become the
majority in the new, smaller circuits. Also, any circuit (or circuits)
created that excluded California would probably be more conservative,
Professor Hellman observed.

"At least now, a circuit composed only of the Northwest states would be more
conservative than the circuit as a whole today or than the southern circuit
would be," he said.

Representatives of some other states are eager to distance themselves from
California, whose issues are different, they say. Senator Lisa Murkowski,
Republican of Alaska and sponsor of her own split legislation last year,
explained her concerns this way: "You've got a circuit that is spending 85
percent of its time working on immigration stuff, and here comes an issue
related to Alaska land, and it's arcane law that they have not had an
opportunity to study."

Most of the judges themselves do not support a split, said Alex Kozinski, a
Ninth Circuit judge. "We've taken votes of our judges regularly," Judge
Kozinski said, "and we always overwhelmingly vote against the split. And
these are the folks that know the work of the court."