The Ninth Circuit Court of Appeals is the largest of the circuit
courts of appeals. It governs cases in eleven (11) locations: nine (9) states and two (2) territories. On February 2, 2017, the two senators from Arizona, John McCain and Jeff Flake, again introduced legislation to remake the ninth circuit, this time leaving it with five locations from where cases flow: California, Oregon, Hawaii and the two territories. The legislation would create a new twelfth circuit that would have an interesting non-contiguous makeup: Alaska, Idaho, Montana, Nevada, Washington, and of course, Arizona. Though the possibility of this legislation passing has increased, especially in the current political milieu, in the end, this judicial gerrymandering will be another failed political power play by Arizona’s representatives to obtain a divorce from what some consider to be a liberal circuit court.
Previously, politicians have attempted to split the circuits based on political ideology or perceived slight. In 1964 with heightened racial tensions, southern-state politicians attempted to split the Fifth to neuter what was perceived as a non-conservative bench. Similarly, in 1997, an Alaskan senator tried to carve the Ninth Circuit after an unfavorable ruling affected that state. However, when practical considerations override other considerations, the circuit map will get redrawn. In 1981, the Fifth Circuit was finally split into the then-new Eleventh Circuit based on practicality (and not racism). In 1990, after full hearings and appraisal, Congress decided against splitting the Ninth Circuit because it was not practical.
Many white papers and journal articles have been written about how to solve the Ninth Circuit’s conundrum: one large state, California, has a disproportionate presence compared with its smaller surrounding states. Two sitting Republican-appointed Supreme Court justices have testified that splitting a circuit for anything other than practical considerations is wrong. When retired former Supreme Court justice, Byron White, chaired a commission to address the California conundrum, its conclusions were clear: the Ninth Circuit cannot be split without causing, inter alia, legal chaos. The commission surmised that the only true remedy would be to split California as a state since splitting it legally would simply not be practical.1
With this background, the proposed legislation’s purpose for relieving dockets or the high reversal rates appear as thinly disguised politics. Otherwise, among other reasons, Alaska would have stayed with the Ninth Circuit under the proposed plan. Also, does the legislation address the very real costs that would need to be encumbered? For example, there will be high start-up costs for, inter alia, new clerks and support staff. A related cost will come in the form of selecting and paying for new judges. Of course, the judicial confirmation process would occur in a highly charged political environment.
Instead of a band aid approach, perhaps a more fundamental approach should be taken: dissolve and redraw the entire map. Instead of redrawing the map, the circuits could be consolidated into a unified national court of appeals. Another idea is to create a new appellate level. Regardless of what approach is considered, reading the seminal article, The Impoverished Idea of Circuit Splitting,2 which discusses the previous possibilities, should be a mandatory read for any person trying to understand many of the complexities. The author is so persuasive in his exhaustive review in citing to all of the multiple commissions and studies (up to that time), that it is almost impossible to rationally reach any other conclusion: the Ninth Circuit should not be split but rather, a fundamental paradigm shift should be instituted. The contours of such a (seismic) shift should be bipartisan and neutral.
1. In that proposed legislation, California, Nevada, and Arizona would have been the only jurisdictions in the Ninth Circuit.
2. Tobias, Carl W. 48 Emory L.J. 1357 (1995).