A 'liberal' court gets some breathing room


Western conservatives in the U.S. Senate tried to add language to a spending bill last fall to neutralize an old nemesis - the 9th U.S. Circuit Court of Appeals. But the senators, facing heavy opposition in the House of Representatives, had to compromise: a commission will review the appeals court system and the San Francisco-based 9th Circuit Court, in particular.

The 9th Circuit is the largest, and critics say the most pro-environment, liberal and unwieldy, of the nation's 11 federal appeals courts. It settles appeals from U.S. District Courts in nine Western states.

The court's decisions have especially irritated three Western Republican senators - Montana's Conrad Burns, Alaska's Ted Stevens and Washington's Slade Gorton.

Gorton's dissatisfaction with the court dates back to the 1970s, when he was Washington's attorney general. In a series of fruitless appeals to the 9th Circuit, he challenged a U.S. District Court decision upholding the claim of local tribes to 50 percent of the state's salmon catch. Since Gorton became a U.S. senator in 1981, he has campaigned to split the 9th Circuit, though he and his colleagues on this issue are careful to make the case on technicalities rather than politics.

The three senators say the 9th Circuit Court's size makes it slow to settle cases. In their amendment, they proposed a new 12th Circuit Court to hear cases in seven Western states, isolating California in the 9th Circuit, along with Nevada, Guam and the Northern Mariana Islands.

Sen. Dianne Feinstein, D-Calif., has called the proposal "political gerrymandering," designed to reduce the regional influence of California and dilute the court's perceived liberal influence.

The slowness argument may be difficult for the senators to prove. The 9th Circuit Court's chief judge, Proctor Hug Jr., of Reno, Nev., blames the heavy caseload on the Senate, which, in a tiff with the Clinton administration, has left 10 of the court's 28 judgeships unfilled by refusing to approve President Clinton's nominations.

Critics also question the practicality and cost of splitting the court. Kevin Kirchner, vice president of the San Francisco-based Earthjustice Legal Defense Fund, notes the plan calls for a 12th Circuit Court that would sit in Phoenix and Seattle and cost $60 million to set up. He calls it "a tremendous expense to the taxpayer."

The commission, appointed last month by Chief Justice William Rehnquist, includes retired Justice Byron R. White, three sitting federal judges and a former president of the American Bar Association. The group will make its recommendations to the president and Congress by the end of the year.

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