Splitting up the Ninth Circuit court will be a heavy lift

We’ve heard all manner of complaints about the Ninth Circuit Court of Appeals, many of them fully justified. They’ve most recently drawn the wrath of the President for putting the temporary kibosh on his travel ban, but the list of perceived sins by the largely liberal judges spread across that massive holding dates back much further. Leaving ideological leanings aside for the moment, one of the biggest complaints about the Ninth is that it’s so… well… big. It’s territory covers locations with a total population of more than 60 million people. That’s twice the next largest circuit and four times the size of some others.

Why is that an issue? In an editorial written for National Review, Republican Congressman Andy Biggs of Arizona’s 5th District joins Bill Montgomery in explaining.

A court of this unwieldy size delays access to justice for victims who are seeking closure for crimes committed against themselves, their families, or their friends. The Ninth Circuit accounts for more than 16 percent of pending criminal cases in the nation; a criminal appeals case in the Ninth Circuit takes an average of 14 months to resolve…

Judge Andrew Kleinfeld, who also sits on the Ninth Circuit, disagrees with his colleagues and provides practical reasons why such cohesion and efficiency cannot be attained. “Judges on the same court should read each other’s decisions. We are so big that we cannot and do not. That has the practical effect that we do not know what judges on other panels are deciding.” Beyond that, Judge Kleinfeld explained that “even if the decisions could be read, there are over 3,000 combinations of judges who may wind up on panels, so the exercise would not be worth the time.” Unfortunately, this dilemma will only get worse. As the population and case load in the Circuit continues to increase, a greater number of judges will be necessary to keep pace, which will further erode whatever judicial cohesion and administrative efficiency exist today.

So what to do about it? Biggs has a legislative solution ready to go.

We are pleased to have introduced the Judicial Administration and Improvement Act (H.R. 250). Under this bill, Alaska, Arizona, Idaho, Montana, and Nevada would be removed from the Ninth Circuit and placed in the jurisdiction of a new Twelfth Circuit. We look forward to continuing this discussion and to the passage of H.R. 250.

That’s legal, and as Biggs points out in the article there’s precedent for it. (As recently as 1980 Congress split states off from one circuit and created a new one, that being the 12th.) But there are two nagging questions which I hope can be addressed as this process moves forward. One is the basic math underlying this proposal. I just did some back of the cocktail napkin ciphering and the total population of the proposed new circuit is roughly 12.8 million. That’s still measurably smaller than the smallest currently existing circuit and would leave the Ninth at a slightly trimmed, but still heavily swollen 47 million… at least 50% larger than the next biggest circuit. Couldn’t the newly divided area take in one or two more states and bring them closer to the 20 million mark in total population? Or even better, perhaps split off two new circuits, each with roughly 15 million, bringing the Ninth down in size to roughly equal the next largest current circuit. Seems like that would be a more definitive solution.

The second question is the optics. Despite the compelling arguments about the difficulties caused by the size of the Ninth, we can’t ignore the reality that a lot of conservatives and Republicans have been complaining about how liberal it is in ideological bent. That immediately puts Democrats back up on their hind legs and gives them a leading argument to oppose the reform effort. They will claim that this is just an attempt to weaken a court where they traditionally fare better, and they’ll have plenty of media hits to draw on as evidence. I don’t know if it’s even possible, but it would be helpful to see if a significant number of Democrats could be brought onboard with this plan before it’s taken up in committee. That might require a bit of horse trading on the scope of the other circuits, but it could be worth it.