Split Up the Ninth Circuit—but Not Because It’s Liberal

Space_Time · Jan 14, 2018

Is the Ninth Circuit a 'boogeyman'? Is it too large? Would splitting it up help or hurt the pursuit of justice?

https://www.wsj.com/articles/split-up-the-ninth-circuitbut-not-because-its-liberal-1515715542

OPINION COMMENTARY
Split Up the Ninth Circuit—but Not Because It’s Liberal
The court has too many judges, leading to backlogs and inconsistency in applying the law.

The United States Court of Appeals for the Ninth Circuit building in San Francisco, Feb. 6, 2017. PHOTO: JOSH EDELSON/AGENCE FRANCE-PRESSE/GETTY IMAGES
By Mark Brnovich and Ilya Shapiro
Jan. 11, 2018 7:05 p.m. ET
104 COMMENTS
President Trump’s frustration with federal judges, particularly on immigration issues, has led him to join calls to “break up” the sprawling Ninth U.S. Circuit Court of Appeals, based in San Francisco. “It just shows how broken and unfair our Court System is,” the president tweeted this week after an unfavorable ruling from a district judge, “when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.”

Splitting up the court would be the right decision, but not for the political reasons Republicans often invoke.

The Ninth Circuit has been a boogeyman for conservatives for decades. The only federal appellate court that already had a majority of Democrat-appointed judges when Barack Obama took office, it epitomizes the progressive legal vanguard on environmental regulation, same-sex marriage, gun control, immigration and almost everything else.

But splitting the court wouldn’t necessarily push jurisprudence in a conservative direction. The Ninth Circuit’s ideological tilt is a function not of geography but history. To reflect the growing population of Western states, and thus the caseload, Congress added 10 judgeships to the Ninth Circuit in 1978, nearly doubling its size. Jimmy Carter filled those seats.

Later, most semiretired judges on the Ninth Circuit timed their taking of senior status to coincide with Democratic presidencies. The result is a political skew that would take a long run of Republican presidents to flip.

There are other reasons, however, for breaking up the Ninth Circuit. One is its sheer size. The court covers territory running from Arizona to Alaska and Montana to Hawaii. That’s 40% of the nation’s land mass and 20% of its population. As a result, it decides an extraordinary number of appeals—more than 11,000 a year, half again as many as the second-busiest circuit and nearly triple the average.

The Ninth Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national median. Judge Richard Tallman, a Clinton appointee on the Ninth Circuit who favors a split, told the Senate last summer that a legal brief in a pending appeal “is frequently years old and contains stale case law, by the time we can get to it.”
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Split Up the Ninth Circuit—but Not Because It’s Liberal

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Split Up the Ninth Circuit—but Not Because It’s Liberal

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