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Fri, 6 Oct 2006 12:58:13 EDT
9th Circuit Judge Protests Proposal for New Breakaway Circuit
The National Law Journal
10-06-2006
The long-simmering debate over splitting the nation's largest federal appellate court heated up last month when one 9th Circuit judge complained that a new breakaway circuit would have no Hispanic judges.
The Senate Judiciary Committee is currently considering S. 1845, a bill that would split the 9th U.S. Circuit Court of Appeals, with California, Hawaii and Guam in a new, shrunken 9th Circuit. A new 12th Circuit would be composed of Arizona, Nevada, Oregon, Washington state, Idaho, Montana and Alaska.
"I'm a Republican and an appointee of President Bush, and it dawned on me that the resulting 12th Circuit would be without a single Hispanic judge. Nobody is focused on this," said Judge Carlos T. Bea of San Francisco.
Bea joined the court in 2003. He was raised in Spain and is one of six Hispanic judges among the 9th Circuit's 49 active and senior judges.
In general, Republican lawmakers have pushed the split efforts while Democratic legislators generally oppose the move. A majority of the circuit's judges oppose a split, according to Chief Judge Mary Schroeder.
Arizona, with a population that is 25 percent Hispanic, and Nevada, with a 20 percent Hispanic population, would join the Pacific Northwest states, but without Hispanic judges, Bea said.
The circuit's Hispanic judges, Arthur Alarcon, Ferdinand Fernandez, Kim Wardlaw (whose mother is from Mexico), Richard Paez, Consuelo Callahan and Bea, all California-based judges, would remain on the split 9th Circuit.
Diarmuid O'Scannlain, a Portland, Ore.-based 9th Circuit judge who has backed a circuit split since the mid-1990s, declined to comment on Bea's concern.
O'Scannlain, who testified on Sept. 20 before the Senate Judiciary Committee in support of the split, said his concern is with effective judicial administration. He believes the circuit has become too large to manage. The restructuring of the court should not be based on Supreme Court "batting averages and public perception of any of our decisions.
"I am quite confident the circuit will be split someday ... but I have no idea when that may be," he said.
Bea said his concern "is important to the Hispanic bar and the Hispanic community." He said Hispanics "like to be represented the same as blacks. It is a sign you are accepted in the community. People I talk to are upset ... they want to see Hispanics achieve and be recognized."
TIED TO IMMIGRATION?
"We see this as tied to the immigration debate," said James Reyna, president of the Hispanic National Bar Association and an international trade partner at Williams & Mullen in Washington, D.C.
"The bill as it is now written would take the most integrated and diverse circuit, with good representation of Hispanics, and split it with a new 12th Circuit with no Hispanics," he said. "The concentration of Hispanics has a direct adverse impact on the Hispanic community.
Reyna said the split would also impose a larger caseload on the remaining judges in a new California-centered 9th Circuit because it would retain 80 percent of the caseload, more than 500 cases per judge, as opposed to 350 for the 12th Circuit.
Among the circuit's district courts, which would be divided along the same state lines, half the 5,700 immigration-related criminal offenses in 2005, such as illegal re-entry, come from Arizona and Nevada, while most of the rest came from Southern California. Among the 6,200 asylum and other immigration appeals to the 9th Circuit so far in fiscal year 2006, more than 5,000 arise in California alone, according to circuit statistics.
