While the Trump Administration deals with an adverse ruling from the Ninth Circuit Court of Appeals, Republicans in Congress are returning to an idea that they’ve tossed around in the past but never really followed through on, breaking up the Ninth Circuit:
As judges on the 9th Circuit Court of Appeals weigh the legality of President Trump’s immigration executive order, a Republican push to split up the controversial court — and shrink its clout — is gaining steam on Capitol Hill.
Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.
They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom.
Right now, Flake said, the circuit is far too sprawling.
“It represents 20 percent of the population — and 40 percent of the land mass is in that jurisdiction. It’s just too big,” Flake told Fox News on Wednesday. “We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the 9th Circuit, you just don’t have it.”
Flake says it typically takes the court 15 months to hand down a decision.
“It’s far too long,” he added.
Conservatives have mocked the 9th Circuit for years, often calling it the “Nutty 9th” or the “9th Circus,” in part because so many of its rulings have been overturned by the U.S. Supreme Court
The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats. Former President George W. Bush appointed six justices, while former President Barack Obama appointed seven.
Under Flake’s bill, the new circuit would cover Nevada, Washington, Idaho, Montana, Arizona and Alaska, leaving the 9th with three Pacific states as well as the Northern Mariana Islands and Guam.
A separate House version introduced by Rep. Andy Biggs and four other Arizona Republicans would leave Washington state in the 9th Circuit.
Congressional efforts to split the circuit go back to 1941.
“The problem is the judges in the 9th Circuit, particularly the liberal judges, don’t want to give up any of their jurisdiction,” Flake said.
Congress created the court in 1891. At the time, the area was sparsely inhabited – only four percent of the U.S. population lived in the area compared to today’s 20 percent.
In 1998, Congress appointed a commission to reexamine the federal appeals courts’ structure. The commission ultimately recommended against splitting the 9th Circuit.
But carving up the large circuit isn’t out of the realm of possibility. In 1929, Congress split the 8th Circuit to accommodate a population boom and increased caseloads.
The Ninth Circuit has been a target of conservatives for some time now, of course, due to decisions that are seen as being overly biased toward the liberal side of the legal spectrum. In addition to high-profile cases involving issues like same-sex marriage and other cases involving LGBT rights, the Circuit is also seen as having a liberal bias on issues involving criminal defense, the rights of immigrants in deportation proceedings, and other issues. This is often despite the fact that the Supreme Court has often sustained the Ninth Circuit’s rulings in these areas, to the chagrin of many conservatives. Additionally, it’s worth noting that while the Ninth Circuit does often seem to lean further to the left than, say, the Fifth Circuit Court of Appeals, this is largely due to the fact that it continues to retain a large number of members appointed by Democratic Presidents. Additionally, since many of the states that make up the Ninth Circuit are dominated by Democrats, the Judges that are recommended for Circuit Court and District Court Judgeships end up being leftward leaning. It’s also worth noting that notwithstanding the supposed liberal bias of the Ninth Circuit, the Court also includes a number of conservative jurists. The most prominent of these is probably Judge Alex Kozinski, although Kozinski has a libertarian bent on many legal issues that doesn’t exactly please many hardcore conservatives. In any case, it’s true that conservatives have been “at war” with the Ninth Circuit for quite some time now.
Conservatives also cite the alleged claim that the Ninth Circuit has an unusually high rate of being overturned by the Supreme Court as justification for breaking it up. When you look at the details and the actual numbers, though, as both Politifact and conservative blogger Ed Morrissey of Hot Air have done recently, it’s clear that there’s little merit to that claim. It is true that the Ninth Circuit does account for a large segment of the appeals the Court accepts, and that the majority of those cases accepted for review are overturned, this doesn’t necessarily mean anything. For one thing, the number of cases accepted for review is infinitesimally small compared to the number of cases that the Ninth Circuit decides in a given year so it’s hard to draw any conclusions at all regarding the quality of the Circuit’s work from that number. Additionally, when the Supreme Court accepts a case for review it typically means that there are at least four Justices who believe that there is a reason for the nation’s highest court needs to review the case. This means that the number of cases originating from the Ninth Circuit, or indeed any Circuit is not an unbiased sampling of the cases the Court decides in a given year but instead consists of cases that appear to be vulnerable already, meaning that it is more likely than not that the sample selected by the Supreme Court will be overly weighted down by cases where the decision below is more likely than not to be overturned. Finally, the fact that a case is overturned by the Supreme Court doesn’t necessarily mean that the decision below was incorrect. It could simply mean that the Circuit Court made its decision based on precedent or statutory law that the Supreme Court subsequently finds to be incorrect or unconstitutional. In that type of case, the court below isn’t really “wrong,” and in fact arguably acted correctly in presuming that it was limited by existing law and precedent in making its ruling rather than establishing new precedent, which is typically the job of the Supreme Court.
In any case, there is a good argument other than ideology or alleged errors by the Circuit in favor of breaking up the Ninth Circuit and creating a new Circuit that would become the 12th Circuit Court of Appeals. By far, the Ninth Circuit is the largest in geographic area, extending as far east as Montana’s border with the Dakotas, as far north as Alaska, and as far west as Hawaii and the territories of Guam, the Northern Mariana Islands, and Wake Island on the other side of the International Date Line. It also covers the largest segment of the U.S. population and has the largest amount of Judges. Despite this, or perhaps because of it, the Court is among the slowest in issuing decisions and scheduling hearings in cases that have been appealed to it, including both cases raising important issues of Constitutional law and those dealing with criminal cases and the fate of people sitting in jail pending appeal. With 23 Judges on the Court, the Ninth Circuit is the only Circuit Court in the nation that does not include all the Justices when it hears cases en banc. Instead, those cases granted an en banc appeal are heard by a panel of 11 Judges chosen randomly from among the 23 active Judges, something which some legal scholars is far from ideal. Given all of that, there is a very good argument in favor of breaking up the Ninth Circuit for the sake of litigants, Judges, lawyers, and the justice system itself.
Looking at the reform plan that’s presently being suggested, though, it seems to me that it could be done in a far more efficient manner that actually makes geographic sense rather than one that is imbued with politics. Under the plan that Senator Flake has presented, the Ninth Circuit would consist of Oregon, California, Hawaii, and the Pacific territories. The new 12th Circuit, on the other hand, would include Arizona, Nevada, Idaho, Montana, Washington, and Alaska. While I don’t have access to the number of cases that come out of each of those states, it’s obvious that California likely accounts for the largest number of cases in the current Circuit, and that the territories likely account for the smallest amount. Just looking at the map, it strikes me that a far more efficient map would keep California, Arizona, Nevada, Hawaii, and the Pacific territories in the Ninth Circuit while creating a new Circuit out of Oregon, Washington, Idaho, Montana, and Alaska. This would reduce travel time for Judges and provide both Circuits with a more politically balanced makeup than exists under Flake’s plan. For the plan to work best, I suppose one would need to know the number cases that typically come from each state, which is data I don’t presently have access to and haven’t been able to find on the Internet. Presuming however that the case load for the two Circuits can become basically evenly balanced, then it split would make sense. Otherwise, the Ninth Circuit would remain overly swamped and the Twelfth Circuit could end up being among the least active in the nation in terms of caseload, which would be a waste of judicial resources.
There are plenty of issues, both political and otherwise, that would need to be resolved before any break-up plan could be considered. The first among those would be the Judicial make up of the two circuits. Presumably, the majority of the Judges for the new Circuit would come out of the existing Ninth Circuit panel but that would result in many practical concerns, including but not limited to the requirement that many Judges relocate from their current locations and the question of where any new Judges would come from. This would apply not only to the Judges of the Circuit Courts themselves, but also the District Court Judges underneath them. It’s also unclear what role existing Ninth Circuit precedent would play in the new Twelfth Circuit, although one presumes that it would continue to be applicable unless and until overruled by the new Twelfth Circuit. As long as these practical questions can be answered, though, it strikes me that breaking up the Ninth Circuit is an idea whose time is long overdue.
