Senate Democrats who oppose a split for the 9th Circuit Court of Appeals are hindering their own cause by blocking Idaho’s two nominees to the court. The longer they wait to confirm nominees William Myers and Randy Smith, the longer the backlog stretches for federal cases in the 9th.

And as judges in that arena have already noted, the 9th Circuit can’t afford further delays.

With the arrival of the August recess in Congress, all pending judicial nominations that have not been approved by the Senate must go back to the president. That means Myers and Smith, two appointments to fill circuit judge vacancies, will go back to square one. Idaho’s congressional delegates, however, expect the two judges to be re-nominated.

Myers was first nominated in 2003, he received a hearing one year later, and was shunned by a cloture vote in the 2005 compromise between U.S. senators who saved the filibuster strategy. Democrats refused to vote Myers through because of his previous defense of mining interests as a private attorney, and his environmental writings as a solicitor general for the Interior Department. But Idaho leaders refused to pull Myers’ nomination, and hoped that ensuing Supreme Court justice hearings would change the dynamic for circuit court judge hearings. It didn’t happen, and a good nominee continues to wait.

The delay in Smith’s case is even more baffling. Smith was nominated to fill the circuit court vacancy for 9th Circuit Judge Stephen Trott, who became a senior circuit judge (with a lighter caseload) in late 2005. But Democratic California Sen. Dianne Feinstein blocked Smith’s nomination by arguing that Trott was a California judge — an argument that Trott (who lived in Virginia and moved to Boise) has shredded to pieces. Feinstein demands that California, which has 26 of the court’s 49 total judges, retain Trott’s seat.

Feinstein’s delay of two judges, however, is only eroding her other cause. Feinstein has been a key obstacle in the growing effort to split the 9th Circuit Court into two. Rep. Mike Simpson, R-Idaho, and Sen. John Ensign, R-Nev., have both pushed legislation creating a new 9th Circuit consisting of California, Guam, Hawaii, and the Northern Mariana Islands.  A new 12th Circuit would be created consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington. 

Support for that split has grown stronger, as proven by the letter sent to Senate Judiciary Chairman Arlen Specter, advocating the split. The letter was signed by 24 judges from the 9th, including Trott and Tom Nelson, the other senior circuit judge with Idaho chambers.

Those judges deal consistently with the overwhelming caseload in the 9th, which is the slowest circuit in the country according to the Administrative Office of the U.S. Courts. The 9th had 17,262 pending cases in March n 29.4 percent of all pending federal appeals.

And yet Feinstein and her colleagues insist on blocking two more judges who could help lighten the caseload.

“The 9th does an amazing job processing 15,000 cases over nine states,” Trott said earlier this year. “It’s quite astonishing. (But) it’s not nearly as good as it could be if we could break it down. We’ve gone way beyond economies of scale, there’s simply too many cases.”

Those politicians who prefer obstacles over legal solutions can only play their game so long. By denying not one, but two Idaho judges a seat on the circuit court, defenders of the status quo are impeding the judicial process, while at the same time hastening the demise of the gargantuan 9th Circuit Court.