There has been a lot of hand-wringing in our nation’s capitol lately over the U.S. Court of Appeals for the 9th Circuit. Fueled by the ongoing backlash to the court’s controversial decision against the Pledge of Allegiance, and the overwhelming reversal rate of 9th Circuit cases by the U.S. Supreme Court, some in Congress are arguing the appeals court is too unwieldy and should be split up.

The San Francisco-based 9th Circuit is the country’s largest court of appeals, serving approximately 54 million people in nine western states and two territories (equaling more than 1.3 million square miles, or nearly 40 percent of the United States). There are 28 judgeships on the appeals court, with four positions currently vacant. President Bush has nominated three candidates to the court, only one of which has been confirmed. The remaining two have yet to receive confirmation hearings.

On July 23, a House Judiciary subcommittee held a hearing on a bill (H.R. 1203) introduced by Rep. Mike Simpson (R-ID) that calls for Arizona, Nevada and California to remain in the 9th Circuit, while Montana, Idaho, Washington, Oregon, Alaska, Hawaii, Guam and the Northern Mariana Islands would be grouped together to form a new 12th Circuit.

"The enormous size of the court and magnitude of the growing caseload have resulted in unreasonable delays in court decisions, and a disturbing lack of judicial continuity in many of those decisions," argues Rep. Simpson.

Legal experts point out that the nation’s 11 other appeals courts are able to hold full circuit (en banc) hearings to review the decisions of one of its three-judge panels. The 9th Circuit is too large to hold hearings with all 24 sitting judges and uses a randomly selected 10-judge panel (plus the Chief Judge) to review its three-judge panel decisions.

Statistics released by Rep. Simpson reveal the 9th Circuit alone accounts for 60 percent of all appeals that have been pending in the nation’s circuit courts for more than 12 months. In addition, the 9th Circuit is 53 percent slower than the other circuits in deciding appeals.

Senator Frank Murkowski (R-AK) has introduced legislation (S.346) similar to Rep. Simpson’s which, according to Law.com, he has threatened to attach as an amendment to every piece of pending legislation before Congress in order to force a vote on the issue.

Those opposed to splitting the court, notably Rep. Howard Berman (D-CA) and 9th Circuit Chief Judge Mary Schroeder, argue the proposal is politically motivated and has been reviewed and rejected in years past. They believe the issue has received renewed attention only because of the court’s ruling on the Pledge. According to Schroeder, what is needed to help boost efficiency are additional judgeships and to fill the court’s current vacancies. "We have had no new judgeships since 1984, and our caseload has doubled," Schroeder complained to the Washington Times.

Splitting the court may help from an efficiency standpoint, but when one considers that in the last Supreme Court Term the high court unanimously reversed the 9th Circuit on seven separate occasions, there is clearly more involved than an "overburdened" court. There is judicial activism at work.

Take for example the much-publicized medical marijuana case last year, where the Supreme Court voted 8-0 to reverse a 9th Circuit ruling allowing an Oakland cannabis buyers co-op to violate federal drug laws for "medical necessity."

According to constitutional law expert Akhil Reed Amar, writing in FindLaw: "In each of the past six years, the Ninth Circuit averaged between 1.5 and 2.5 [Supreme Court] Justice-votes per case [it reviewed]," writes Amar. "Indeed, when the Ninth Circuit is reversed, it is more often than not reversed unanimously!"

Amar points out that the opinions written by 9th Circuit Judge Stephen Reinhardt, who joined Judge Alfred Goodwin in the 2-1 majority Pledge decision, have "alone been reversed by the Supreme Court unanimously an unbelievable five times in a single Term."

Others who follow the 9th Circuit closely argue that the court’s reversal rate this Supreme Court Term was actually an improvement on prior years. In 1997, the High Court took up 28 cases from the 9th Circuit and reversed 27 of them -- nearly two-thirds of which were unanimous opinions. Part of the "improvement" may be attributed to Supreme Court Justice Sandra Day O’Connor, who several years ago urged the 9th Circuit to better its track record by reviewing more of its own cases with its 11-judge en banc panel.

According to Rep. Simpson, U.S. Census projections indicate that over the next 25 years the 9th Circuit’s jurisdiction will grow by 50 percent to encompass a population of over 75 million people. With an insurmountable docket and a regular list of rogue three-judge panel decisions, the problems facing the 9th Circuit have been apparent in legal circles but have been below the public’s radar screen for years. On June 26, the day the nation was told the Pledge of Allegiance is unconstitutional, America woke up and is ready for action.

It’s time for Congress to address the important issues involving the 9th Circuit, and expedite the judicial confirmation process in order to put on the bench competent judges who respect the rule of law and resist judicial activism that is all too often apparent in our federal courts.