Fair Courts

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Breaking Up is Hard to Do: The Ninth Circuit Court May Not Stay Together

The California recall election made the Ninth Circuit Court of Appeals quite famous, and not only for its decision to postpone the celebrated vote. Most newspapers portrayed the court as the most liberal circuit court in the country.

Since the Ninth is also the largest circuit court, this professed liberalism spreads far and wide. The Ninth hears appeals originating from Alaska to Guam.

The court’s political orientation is disputable. Yet, a Republican proposal to split the court in two may be motivated by the perception of the Ninth as leftist.

HR2723, or The Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, creates a new Twelfth Circuit Court by breaking up the Ninth. Oregon, Washington, Idaho, Montana, Alaska, Hawaii, the Northern Mariana Islands, and Guam would become part of the new circuit, leaving California, Arizona, and Nevada to the new (and improved?) Ninth.

King Kong Court

Although politics is probably a part of the equation, those in favor of dividing the Ninth refer to empirical evidence, not political strategy.

The Ninth Circuit has 48 judges, more than twice the circuit average. It also represents 56 million people, which is 25 million more than the next largest circuit. Further, the Ninth covers 40% of the geographic area of the U.S.

The Ninth is indisputably huge, but the question is, does its size affect its efficiency? Is its expansiveness a reason to carve it up?

The efficiency debate

The bill’s proponents claim that the court’s size interferes with justice. In a House subcommittee hearing, bill supporters provided evidence that demonstrated the Ninth to be the slowest of all eleven circuit courts. They blame the ineffectiveness on the court’s size. The Ninth’s inefficiency may be a solid argument for decreasing its size if it is, in fact, inefficient.

The efficiency of the court is up for debate, because the bill’s opponents maintain that the court is competent and effective. HR 2723’s challengers pointed to the recall election lawsuit as a case in point. Most would agree that the Ninth managed the suit with speed and skill, and Judge Alex Kozinski claims that his court handled this case like any other, efficiently.

Academic analysis

Also testifying at the hearing was Arthur D. Hellman, a leading scholar on the Ninth circuit from the University of Pittsburgh School of Law. He suggested that a causal connection between the size of the court and the alleged inefficiency of the court must be proven. He called for further investigation, because in his opinion, this connection has not yet been established.

Nevertheless, Hellman could see benefits to splitting up the court. He explained that the judges would have to endure less travel, that there would be some reduction in case loads, and that the judges would have more opportunity for meeting with each other and lawyers in the region.

However, Hellman also testified that it was wrong for Congress to divide a circuit court without substantial support from the judges in the region. Right now, that support does not exist.

Judges don’t want to be split

A large majority of the Ninth circuit judges are against the split.

Chief Justice Mary M. Schroeder testified against HR 2723. In her opinion, the court is competent and becoming more so. She blamed any shortcomings on a lack of judges. Since it often takes years to fill vacant judgeships, many chairs on the Ninth Circuit Court have remained unoccupied for long stretches, creating larger caseloads for the active judges. Her testimony elucidates the consequences of the politicization of judicial nominations.

Schroeder also pointed out that circuit courts have only been divided twice before. Once in 1929, when the Eighth circuit split to form theTenth, and again in 1980, when the Fifth begat the Eleventh. In both cases, Schroeder clarified, the action had the full support of judges and lawyers.

It is possible that the judges don’t want to cut up the Ninth because it would decrease their power. However, there is no hard evidence of this. In fact, Justice O’Scannlain of the Ninth is a visible proponent of the bill. He testified against his colleagues and said that HR 2723 is necessary, desirable, and "inevitable."

The potential of awareness

When the judges of the Ninth Circuit Court can’t agree to break up or stay together, it is difficult to form an informed opinion.

Perhaps, in this case, it is enough to be aware. The possible split of the Ninth circuit is underreported and yet, extremely important. The division would cause a major shift in the judicial branch and invalidate the work of the Ninth Circuit until the point of the split. HR 2723 would cause the Ninth Circuit decisions to be re-evaluated on a case by case basis in both the Ninth and the new Twelfth Circuit.

To further increase your awareness on this issue, discuss with other WomenMatter readers in one of our online forums. You can also read more about Fair Courts to help you make up your mind. Once you have, contact your representatives, and let them know what you think about HR 2723.

Posted on: 11/14/2003

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