Op-Ed: The Republican case for breaking up the notoriously liberal 9th Circuit makes no sense

The 9th Circuit — the largest and most important of the 13 federal court circuits in the country, encompassing 11 Western states and territories and covering nearly 20% of the U.S. population — is under siege. Four Republican congressmen have introduced bills to break up the circuit in various ways. All four bills have a chance of passing. None of them makes any sense.

The arguments for splitting the U.S. Courts for the 9th Circuit are perennial: It’s too big, too slow and, most of all, too liberal. But none of these complaints is sound. Moreover, breaking up the court would add considerable costs while potentially lowering the quality of judging.

Most of the justifications offered for splitting the 9th Circuit have to do with its size, and it does indeed hear a lot of cases — more than 55,000 civil and criminal cases in its district courts in 2015 alone, along with 12,000 appeals in its appellate court.

Big doesn’t always mean bad, however. The 9th Circuit may do a lot, but it’s pretty efficient. The circuit has pioneered mediation units and screening panels to help solve cases early, and it disposes of nearly half its appeals that way. It methodically allocates resources, assigning extra judges to areas faced with a shortage. The appellate court broadcasts arguments on the Web, allowing citizens to watch proceedings without traveling to a courthouse. The 9th Circuit doesn’t handle cases any more slowly than other circuits if you account for the number of cases assigned to each judge.

Another common rationale for carving up the circuit is its supposedly high reversal rate in the Supreme Court, which last year hit 79%. That sounds high until you realize the Supreme Court on average reverses lower-court decisions 70% of the time. (The 6th Circuit, comprising just four Midwestern states, had a reversal rate of 81%.) The 9th Circuit also encompasses some of the most experimental states in the country, including Arizona, which frequently passes innovative immigration laws; Oregon, with its expansive individual-rights laws on assisted suicide and marijuana; and, of course, California. If anything, it’s surprising the Supreme Court doesn’t reverse decisions from the 9th Circuit more often.

The real cause behind the efforts to split the circuit is that its appellate court is perceived as too liberal. The 9th Circuit Court of Appeals, based in San Francisco, has been a conservative bugaboo since the 1970s, when President Carter and a Democratic supermajority in Congress doubled the number of judges on the court and appointed some of the most liberal jurists in American history. Right-wing radio hosts and politicians love beating up on the “nutty 9th.”

But in reality, the court’s liberalism has declined dramatically. Judges appointed to the court by Presidents Clinton and Obama have been steadily more centrist, while Republican appointees have remained conservative.

Meanwhile, the real-world costs of splitting the 9th Circuit are extremely high. So high that every prior effort to split the circuit — there have been seven or eight attempts since the early 1990s — has failed. Division would double the bureaucracy and infrastructure to the tune of some $200 million up front and $35 million a year for taxpayers. Businesses could face twice the litigation and compliance costs depending on where they operate, and they might have to wrangle with different interpretations of federal law throughout the West. This is one reason why Congress has modified circuit borders only twice, in the 1920s and the 1980s, in response to requests from judges. By contrast, the 9th Circuit’s judges have historically voted to remain cohesive.

If lightening the caseload is the reason to break up the circuit, there is simply no good way to achieve that goal. California cases make up nearly two-thirds of the circuit’s work, and drawing a line in the middle of a state with different federal law on either side would wreak havoc. Each of the pending congressional proposals to split the circuit would siphon only 20% to 30% of its current cases, a figure so small that one of the new circuits would be back up to the 9^th Circuit’s current numbers within a decade or so. Not to mention that putting California in its own circuit, or with just a few other states, would probably create one that is even more liberal.

Additionally, the quality of appellate judging might suffer from a smaller circuit. When the same judges sit together over and over, they become very familiar, which can foster discord or, worse, an over-willingness to defer to one another. Indeed, Congress would do well to consider merging some of the smaller circuits, rather than breaking up a bigger one.

On the 9th Circuit, the Court of Appeals assigns its three-judge appellate panels randomly from its scores of active, senior and visiting judges. The circuit’s geographic spread means a case arising out of California might be heard by judges from Idaho, Hawaii or Washington, allowing for a great variety of perspectives to inform the court’s judgment. The judges sit in different frequencies and in different months. Their relationships are professional rather than personal, in part because of their number and distance.

Shifting the circuit’s borders around won’t change the overall number of cases per judge or the way its judges decide legal questions, either. There are liberal judges from Montana and Arizona, and there are conservative judges from California and Oregon. If Congress really wants to speed up the 9th Circuit and influence the way it decides precedent-setting cases, it should create more judgeships. Compared with the other circuits, the 9th is understaffed; it should have at least five more appellate judgeships and 21 more district judgeships.

Adding judges might be particularly alluring to Republicans because it would allow them to make use of the gift former Senate Democratic leader Harry Reid now regrets giving them — the ability to appoint federal judges without the risk of a filibuster.

The last time a party controlled the White House and had filibuster-proof power to appoint federal judges was in the 1970s, when Carter gave the 9th Circuit its hyper-liberal reputation. If congressional Republicans took this route, they could shift the court’s political leanings without creating problems for litigants and businesses along the West Coast.

There is one final advantage to keeping the 9th Circuit intact: Republicans would retain their favorite culprit. After all, what would they do without the nutty 9th to blame?

Ben Feuer is the chairman of the California Appellate Law Group.

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