By Faith Bremner
Gannett News Service
July 24, 2002

WASHINGTON - A congressional hearing held Tuesday on a bill to shrink the 9th U.S. Court of Appeals, which includes Arizona, was organized by Republicans who want to punish the court for its recent ruling declaring the Pledge of Allegiance unconstitutional, House Democrats charged.

"This (hearing) is a blatant disregard for separation of powers," Rep. Maxine Waters, D-Calif., told fellow members of the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. "There's a reason judges are appointed for life. Unfortunately, this hearing demonstrates politicians will find other ways to interfere with work done by judges."

The bill's sponsor, Rep. Mike Simpson, R-Idaho, and other backers of the measure say the 9th Circuit is too large to operate effectively and has an unwieldy caseload that is growing as the number of people in the circuit increases.

They note that the circuit has 50 judges, compared with an average 19 judges on each of the country's other circuits. More than 51 million people live in the states covered by the 9th Circuit. Each of the other circuits averages a population of 20 million, the bill's supporters say. By 2025, the 9th Circuit's population is projected to exceed 75 million people.

"In essence, the 9th Circuit already is two circuits in one," said Judge Diarmuid F. O'Scannlain, who sits on the court and supports splitting its territory.

Simpson's bill, which is backed by Idaho Attorney General Alan Lance, would remove six states (Idaho, Montana, Oregon, Washington, Hawaii and Alaska) and two territories (Guam and the Northern Mariana Islands) from the court's jurisdiction. They would be included in a new 12th Circuit, leaving California, Nevada and Arizona in the 9th Circuit.

Democrats accused Republicans of pushing the bill as a way to get back at the court for its controversial Pledge of Allegiance ruling last month. A three-judge panel on the court ruled that Congress violated the Constitution when it added "under God" to the pledge in 1954.

Until the ruling, House Republicans had ignored Simpson's bill, which was introduced in March 2001, Democrats said. A hearing on the bill was scheduled on short notice last week, they said. An identical bill introduced last year by Sen. Frank Murkowski, R-Alaska, had not been scheduled for a hearing in the Democrat-controlled Senate.

Lance denied that Tuesday's hearing was called in response to the court's ruling on the Pledge of Allegiance.

"The problem is not the Pledge of Allegiance, it's the 9th Circuit Court of Appeals," Lance said.

He said the court takes too long to resolve cases and frequently is overturned by the U.S. Supreme Court. The 9th Circuit, which has its headquarters in San Francisco, takes an average of 16 months to issue rulings while other circuits take an average of 10 months, he said. "Idahoans have lost confidence in the 9th Circuit," he said. "We want out of this unmanageable bureaucracy."

But 9th Circuit Judge Sidney R. Thomas said the court's backlog developed from 1994 to 1998 when the court had 10 vacancies. Since then, five vacancies have been filled, and the court is resolving appeals faster than they are being filed, Thomas said.

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