United States Senators Orrin Hatch (R-Utah) and Frank Murkowski (R-Alaska) recently introduced Senate Bill 2184, which would split the United States Court of Appeals for the Ninth Circuit into two circuits. This measure differs from Senate Bill 253 that embodies the recommendations submitted to Congress by the Commission on Structural Alternatives for the Federal Courts of Appeals after its one-year study. The Commission found "no persuasive evidence that the Ninth Circuit ... is not working effectively" and clearly rejected bifurcation. However, the Commission recommended that Congress impose a divisional restructuring on the Ninth Circuit Court of Appeals and authorize the other appellate courts to adopt divisional arrangements when their caseloads increase. Because Congress is still considering both legislative proposals, they require careful assessment. This analysis reveals that the two bills do not adequately treat the concerns that animated the study; the bills actually contradict the Commission's goals and suggest drastic solutions for problems that do not exist. Moreover, the Ninth Circuit has instituted an approach that is preferable to either alternative. A Ninth Circuit Evaluation Committee is assessing the court in light of the Commission's investigation and is crafting responses to certain concerns. Since the endeavor will be more effective than the radical, irrevocable strategies of bifurcation or divisional restructuring, the Committee's work also merits analysis. This essay undertakes that effort.

We first summarize and critically evaluate the Commission's report and recommendations. Our essay then describes and scrutinizes the reasons proffered for splitting the circuit generally and for Senate Bill 2184 in particular. Finally, we consider a less dramatic and disruptive, and more promising, means to address certain perceived concerns identified by the Commission and the sponsors of Senate Bill 2184. We conclude that the Evaluation Committee approach will better attain the objectives of the Commission and of Senate Bill 2184 proponents; therefore, Congress should reject both the divisional concept and circuit splitting.

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Co-written with Hon. Procter Hug, Jr.

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