Washington Examiner: Bill would reduce reach of liberal court

A pair of Republican senators has resurrected an old idea: splitting the Ninth Circuit, the largest and most liberal court of appeals in the country, into two courts.

Sens. Steve Daines, R-Mont., and Dan Sullivan, R-Alaska, aren’t the first to try. The Ninth Circuit dominates the western United States, serving about one-fifth of the population of the country, and the resultant caseload has created a bureaucratic logjam that court-watchers of all stripes dislike. Conservative critics derive extra motivation from the fact that the court, long perceived as being dominated by California, issues reliably liberal decisions that bind a full 20 percent of the nation’s population. But that same notion discourages liberal lawmakers from changing the court, and so the Ninth Circuit has stood, unreconstructed, since its establishment in 1866.

Daines and Sullivan have filed legislation, the Circuit Court of Appeals Restructuring and Modernization Act, that would establish a Twelfth Circuit Court comprising seven states that currently fall in the 9th’s bailiwick — Arizona, Nevada, Idaho, Montana, Washington, Oregon and Alaska. The Ninth Circuit, if that bill were to pass, would retain California, Hawaii, Guam and the Northern Mariana Islands. They hope to garner the necessary votes to pass the bill by winning a political fight focused on the narrow question of efficiency and access to the courts, rather than the ideology of the judges on the bench.

“It’s 85 percent larger by population than the next circuit [and] it has three times more pending cases than the next closest circuit, which I think ought to be a call for adding additional capacity and adding this Twelfth Circuit Court,” Daines told the Washington Examiner. “We’re staying focused on the capacity; this is not meant to be some kind of a political or ideological debate.”

Sullivan added that the heavy caseload means that it takes the judges an average of almost 15 months to resolve an appeal of a lower court ruling. “Every one of these numbers is a case where an American is in court, whether it’s a criminal case, a death penalty case, a civil judgment case, there’s somebody in each one of these numbers,” he told the Examiner.

Those delays persist in spite of a series of bureaucratic shortcuts that Sullivan opposes in part because he knows them so well, having served as a law clerk for a Ninth Circuit judge in 1997. The judges have appointed an appellate commissioner to handle a battery of issues that “were previously performed by circuit judges,” for instance. Last year, the appellate commissioner handled 4,600 motions that otherwise would have gone to the judges.

Speaking of non-judges doing judicial work, Sullivan recalled another type of “fast-food justice” that he saw during his time a law clerk, in which judges effectively plagiarize their law clerks.

“I saw, on more than one occasion, where a bench memo from a law clerk gets drafted by a 22-year-old kid just out of law school to help the judges think through the case, and when the judge came back, after they’d decided which way they were going to go, the draft opinion from the Article III judge was identical to the bench memo; the heading was just removed,” he said. “Now you’ve got 22-year-old kids writing legal opinions.”

Sullivan also pointed out that the Ninth Circuit, which has 51 judges, is the only one that doesn’t allow of all its justices to sit together en banc, as it’s termed, and hear a case if they think that a three-judge panel is getting it wrong. They’re too busy dealing with all of their other cases to have every judge review a single case, as other circuits can. “It is more of a legislature than a court,” Sullivan said. “It doesn’t have the collegiality; they don’t meet en banc on a regular basis. The judges don’t get to know each other, and therefore it is a court whose opinions are not certain and are not uniform, and it’s more like voting than judging.”

No one disputes that the court is overworked, except perhaps some of the judges who don’t want to see the circuit split. “If you’re the chief judge of the Ninth Circuit, you’ve got a lot of power, right?” Sullivan said. “So that might be one of the reasons they don’t want to see it split.”

And there are plenty of liberals who like it that those judges have so much power. Their decisions are binding law for 40 percent of the land in the United States, which makes the Ninth Circuit — long perceived as being dominated by California liberals — particularly precious to environmentalists. “This, in essence, is environmental gerrymandering,” a Penn State Law Review public commentopposing any split to the court argued. “At a time when environmental phenomena such as global warming appear to be occurring with increasing certainty, it is clear that we, as a society, must reassess our values.”

Daines hopes that his plan can overcome such objections. “Our intent here is not trying to gerrymander new districts, as seen by the fact that Washington and Oregon are still in this new circuit,” he said, noting that the seven states of the proposed Twelfth Circuit are represented by seven Republican senators and seven Democrats.

But there is no getting around the fact that California would be separated from more conservative states. “The issue is California: That is where the population is, that is where the cases are,” Daines said.

Sullivan hopes that even California lawmakers can see the appeal of splitting the Ninth Circuit, regardless of their political ideology. “Justice delayed is justice denied, and justice denied is the rule in the Ninth Circuit,” he said. “The people … who are overlooked in all this are Californians. They’re suffering as much as Alaskans.”