Ensign to re-introduce bill to split appeals court

Benjamin Grove

Tuesday, June 21, 2005 | 9:38 a.m.

WASHINGTON -- Sen. John Ensign, R-Nev., this week plans to re-introduce a bill that would break the 9th U.S. Circuit Court of Appeals into three pieces, including a separate circuit for Nevada, Montana, Idaho and Arizona.

Ensign's move would come at a time when Senate Democrats and Republicans are still smarting from a long, politically charged fight over federal judicial nominees, although Ensign said that backdrop would not hurt his bill's chances this year.

The long-simmering proposal has been hotly debated by conservative and liberal lawmakers and court watchers. Conservatives say the San Francisco-based Ninth Circuit Court has a liberal bias and is too big, too over-worked, with too many judges and a backlog of cases.

The main reason to pursue the bill is that the court is too unwieldy, Ensign said today.

"This is critically important because with the court being too busy, for many people, justice delayed truly is justice denied," Ensign said.

He added that the court's rulings are more left-of-center than "the average Nevadan."

Rep. Mike Simpson, R-Idaho, introduced a similar bill that would reorganize the court with Nevada, Idaho, Montana and Arizona grouped together.

Liberal groups say conservatives are arguing that the court is too big to mask their real main objection: that they believe the court being too liberal. They say the proposal to break up the court is rooted in opposition from timber companies and other industries to the court's environmental rulings. They point to judges and bar association leaders who oppose a split.

The nation has 13 judicial circuits, each with a court of appeals. The 9th Circuit is the largest with 28 judges. The court hears federal appeals cases from nine states that contain roughly 20 percent of the population: California, Oregon, Washington, Arizona, Montana, Idaho, Nevada and Alaska.

The 9th Circuit has two judges from Nevada, Johnnie Rawlinson and Jay Bybee. Rawlinson, nominated by President Clinton in 2000, has been outspoken against breaking up the court, arguing that the court's judges are diverse ethnically and by experience, which makes the court stronger.

Bybee, nominated by President Bush, has not been as outspoken on the issue.

Among the court's controversial decisions was a 2002 ruling that schools violated the First Amendment ban on the establishment of religion when it compelled students to say the Pledge of Allegiance, which contains the phrase "under God."

The Supreme Court reversed the ruling, although it did not rule specifically on the constitutionality issue.

The Supreme Court earlier this month overturned the 9th Circuit in a high-profile medical marijuana case. The 9th Circuit had ruled that the federal courts did not have standing to prohibit marijuana use for medical purposes -- an issue that states have legislated on their own. Ten states including Nevada allow medical marijuana use.

Congress for years has wrestled with splitting the 9th Circuit. The bill may have more momentum this year, following passage in the House last year, Ensign said. Most Western senators support the idea, Ensign said, with the notable opposition from California Democrats Barbara Boxer and Dianne Feinstein.

The House in October approved a bill on a 205-194 vote that would split the 9th Circuit, but the Senate did not approve it. Reps. Jim Gibbons, R-Nev., and Jon Porter, R-Nev., voted for the legislation. Rep. Shelley Berkley, D-Nev., voted against it.