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From Arctic to Mexico, Ninth Circuit Too Big to Do Justice

"An unmanageable administrative monstrosity," is how former Chief Justice Warren E. Burger described the state of the Ninth Circuit US Court of Appeals. His characterization is understated.

Justice isn't swift and not always served in the Ninth Circuit.

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By far the largest of the 13 circuits, it encompasses nine states and stretches from the Arctic Circle to the Mexican border and across the International Dateline. The only factor more disturbing than proportions of the circuit is the magnitude of its ever-expanding docket. It serves a population of more than 49 million, almost 60 percent more than the next largest circuit.

Former Chief Judge Wallace of the Ninth Circuit stated it took four months longer to complete an appeal in the Ninth compared with the national median time.

The massive size of the circuit means judges have a hard time keeping abreast of legal developments within their jurisdiction. The large number of judges scattered over a large area inevitably results in difficulty in reaching consistent circuit decisions. US Supreme Court Justice Anthony M. Kennedy stated during a recent congressional hearing that the Ninth Circuit is "too large to have the discipline and control that's necessary for an effective court."

This judicial inconsistency has led to an astounding reversal rate of Ninth Circuit decisions by the US Supreme Court - 19 of the 20 cases it heard from the Ninth Circuit last session were reversed.

The circuit is simply too big. Ninth Circuit Judge, Diramuid O' Scannlain said: "An appellate court must function as a unified body, and it must speak with a unified voice. It must maintain and shape a coherent body of law... In short, bigger is not better."

Another Ninth Circuit judge, Andrew Kleinfeld, agreed: "With so many judges on the Ninth Circuit and so many cases, there is no way a judge can read all other judges' opinions ... it's an impossibility."

The concept of dividing the Ninth Circuit has been studied, debated, and analyzed since before World War II. It's time for action.

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Those who oppose legislation to bifurcate the Ninth Circuit, contend what's needed is more federal dollars for more federal judges. But as early as 1954, Supreme Court Justice Felix Frankfurter warned that the courts' growing business could not "be met by a steady increase in the number of federal judges" because this increase was "bound to depreciate the quality of the federal judiciary and thereby adversely affect the whole system."

The uniqueness of the Northwest, and in particular, Alaska, can't be overstated. An effective appellate process demands mastery of state law and state issues relative to the geographic land mass, population and native cultures unique to a region.

ADIVISION of the Ninth Circuit will enable judges and lawyers to master a more manageable and predictable universe of relevant case law. And it would honor Congress' original intent in establishing appellate court boundaries that respect and reflect a regional identity. For example, the East Coast, alone, has five federal circuits.

In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the purpose of its creation: the uniform, coherent and efficient development and application of federal law in the region.

No one court can effectively exercise its power in such a large area.

Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of justice to all.

* Frank H. Murkowski is the Republican senator from Alaska.

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