During the 104th Congress, senators representing Pacific Northwest states mounted the fourth serious effort to split the United States Court of Appeals for the Ninth Circuit since 1983. The Senate Judiciary Committee approved a bill that would have divided the court; however, the Senate eventually passed a measure which would have created a national study commission to analyze the federal appellate system. This compromise was only one of several study proposals that Congress considered in 1995 and 1996. For example, California Governor Pete Wilson and Ninth Circuit Judge Diarmuid O'Scannlain recommended the establishment of commissions which would have assessed the Ninth Circuit. Nevertheless, Congress ultimately decided neither to authorize a commission that would evaluate the appeals courts nor to bifurcate the Ninth Circuit partly because each action proved to be rather controversial.
Congressional failure to pass legislation which would have created a study commission or which would have split the court during the last two years does not mean that Congress will ignore these possibilities in the future. Indeed, many public officials who participated most actively in considering the study proposals and the circuit's possible division have clearly stated that they intend to have the 105th Congress seriously examine both prospects. The events described above and the difficulties which growing caseloads increasingly pose for the appeals courts suggest that it is an appropriate time to assess recent proposals for studying the appellate system. This essay undertakes that effort. The first section of the paper emphasizes congressional consideration of the Ninth Circuit's potential bifurcation while briefly describing legislative branch examination of appeals courts studies. The second part scrutinizes four study commission proposals which public officials proffered. Finding that these proposals either would have afforded insufficient time for a commission to complete the work envisioned or would have been overly narrow in scope, the third section offers suggestions for a national commission which would analyze the appellate courts.
Carl Tobias, An Analysis of Federal Appellate Court Study Commissions, 74 Denv. U. L. Rev. 65 (1996)