During the first session of the 104th Congress, the United States Senate Judiciary Committee approved Senate Bill 956, a proposal to split the United States Court of Appeals for the Ninth Circuit. The measure would have established a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington and would have left California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. This vote may appear insignificant; however, it could actually have had enormous consequences.
Congress has divided appeals courts only twice since creating the modem appellate system in 1891. Neither House of Congress had ever held floor debate on a bill that would split the Ninth Circuit. The court division which Congress considered would have had substantial systemic impacts by, for example, eliminating the finest circuit in which to experiment with effective procedures for improving the quality of appellate justice.
The recommended bifurcation would have adversely affected the proposed Ninth Circuit. Most significant, the court would have had comparatively few judges to resolve a large, complicated docket and would have essentially become a one-state circuit. This is unprecedented. The division would also have had important implications for the new Twelfth Circuit. For instance, the court's creation could have entailed significant start-up costs and continuing expenses. Some of these difficulties apparently persuaded the Senate not to split the court, but to authorize a commission which would have assessed the appeals courts. The 104th Congress ultimately failed to approve that study; however; it did appropriate funds for this effort. Advocates of the Ninth Circuit's division and of a national study commission have suggested that they will introduce proposals which would implement their views in the 105th Congress.
The above ideas show that the circuit-splitting measure which the 104th Congress considered deserves evaluation. This Essay undertakes that effort. It first examines the history of Senate Bill 956. The Essay then analyzes the recent proposal, finding that the measure's disadvantages outnumber its benefits. In conclusion, the Essay recommends that Congress reject the proposal and establish a national commission to assess the appeals courts and their expanding caseloads. If Congress is not convinced that splitting the Ninth Circuit is unwise and finds that the division is imperative, the Essay affords suggestions for improving the bill.
Carl Tobias, Why Congress Should Not Split the Ninth Circuit, 50 SMU L. Rev. 583 (1997)