Last week, Senator Jeff Flake hosted public hearings to debate breaking up the largest country’s federal judicial region. But the often-discussed division of the Ninth Circuit is opposed by some legal groups and would be a rarity.
The United States Courts for the Ninth Circuit as a group contains 15 federal judicial districts overseeing cases originating in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington state that pertain to federal laws and issues related to federal constitutional claims.
That sounds like a lot of responsibility and it is. At last Thursday’s special Senate Judicial subcommittee hearing in Phoenix, Senator Flake argued that the Court’s jurisdiction over about 20 percent of the country’s population made it impractical.
“A fair and functioning judiciary is one of the pillars of our democracy, but the oversized and overburdened 9th Circuit has Arizonans waiting too long for justice,” Flake argued. He also cited comments made by Supreme Court Justice Sandra Day O’Connor about breaking up the Ninth Circuit back in 1998. “Justice O’Connor was right: then as now, the Ninth Circuit was too big to succeed,” Flake added.
Among the interested parties speaking at Flake’s hearing was Sidney Thomas, the Chief Judge of the Ninth Circuit. Thomas didn’t agree with Flake, arguing that organization and technology made his circuit very efficient.
"I think everyone recognizes that the Ninth Circuit is a leader in technological and case management innovation," Thomas said, disputing claims made in Flake’s opening statement.
The American Bar Association also opposes the circuit’s proposed dissolution and Flake’s efforts. “Contrary to the conclusory title of your hearing, the ABA believes that technological and procedural innovations have enabled the Ninth Circuit to handle caseloads efficiently and maintain a coherent and consistent body of law,” said ABA member Patricia Lee Refo, writing Flake on behalf of the group.
Refo acknowledged that some judges in the circuit supported a break up. “There are, of course, some judges in the Ninth Circuit who support division. While we do not know the exact number, we are confident that they are vastly outnumbered by the judges who do not want to reconfigure the Ninth Circuit,” Refo claimed. The ABA also said the best way to address problems at the Ninth Circuit was to fill 20 judge vacancies there, including four open seats on its Court of Appeals.
The idea of dividing the Ninth Circuit goes back to the 1970s. A congressional commission in 1975 recommended diving up the Fifth and Ninth circuits to make case-load handling more efficient. But Congress responded at first by adding more judges.
By 1980, the Fifth Circuit had 26 judges and it faced scheduling and logistical problems, and its judges supported dividing the circuit. Congress passed an act that created the 11th Circuit Court of Appeals, with Alabama, Florida and Georgia moving from the Fifth Circuit into the 11th Circuit.
Despite efforts since then, the Ninth Circuit has remained intact. Shortly after the November 2016 general election, congressional Republicans started working on a new bill that would remove six states from the Ninth Circuit to create a new federal judicial district. (A similar bill was stalled in Congress in 2015.)
The newly created 12th Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, and Washington state. Representative Mike Simpson of Idaho and Senators Flake and John McCain of Arizona are leadinh the current effort to get the legislation drive. Critics of the move point to the Ninth Circuit’s reputation as one of the more liberal federal circuits in the country and that the move is an effort to create a federal district more friendly to Arizona and some other states.
The Ninth Circuit currently has 18 judges appointed by Democrats and seven appointed by Republicans, with four vacancies that can be filled by President Trump. Currently, seven of the nine judges in the prospective 12th Circuit states were appointed by Democratic Presidents.
However, to form a new circuit, Congress would need to pass a new act that includes enough votes from Democrats in the Senate to overcome a legislative filibuster. Another option could for Republicans to include the division of the Ninth Circuit in a congressional reconciliation bill. In 2005, House Republicans were able to do just that, but the language was deleted during conference negotiations with the Senate.
Scott Bomboy is the editor in chief of the National Constitution Center.