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Will the U.S. Court of Appeals for the Ninth Circuit Finally Be Split? If So, the Reason Will Be Politics, Not Caseload


Monday, Sep. 25, 2006

The great Ninth Circuit Split Debate is on again - and this time, both sides think the chances of a split are greater than ever.

In February, the House Judiciary Committee approved a bill that would leave California and Hawaii in the U.S. Court of Appeals for the Ninth Circuit and create a new Twelfth Circuit for the remaining seven states (Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington). This summer, Senate Judiciary Committee Chairman Arlen Specter, for the first time, publicly endorsed a split. And last Wednesday, his committee heard testimony on a Senate proposal that mirrors the House version. A vote could come before the end of the year.

The debate itself is nothing new. Every few years for the past three decades, some politician, judge, or scholar has proposed breaking up the nation's largest federal appeals court. Citing the Ninth Circuit's size - it covers not only nine states, but also one-fifth of the country's population - and its liberal reputation, critics have urged Congress to divide the San Francisco-based court into two or more smaller circuits.

They have nearly succeeded on several occasions, pushing legislation through one house of Congress or the other. Due to strong opposition from within the Ninth Circuit and disputes about how to divide the court, they have never managed to win approval from both houses at the same time. But this time, it may be different.

A Crushing Caseload and Long Delays: Reasons For More Judges, Not a Split

Concern about the future of the Ninth Circuit is understandable. In 2005, the circuit received 16,000 appeals, seven thousand more than the next busiest circuit and triple the national average. It was also the slowest circuit in the country, with the median case taking 16 months to make its way through -- two months longer than the next slowest circuit and four months longer than the average circuit.

To some extent, the current heavy caseload is an anomaly. Several years ago, the Bush Administration decided to eliminate a massive backlog of tens of thousands cases at the Board of Immigration Appeals (BIA). Once the BIA disposed of the cases, many were then appealed - and more than half ended up in the Ninth Circuit, accounting for a sizeable portion of its current caseload. But even beyond these cases, it's clear the Ninth Circuit is overloaded with work.

This is a serious problem. But it isn't a good reason for splitting the circuit. The source of the problem isn't that the circuit is large; it's that it has too few judges for the volume of cases it handles.

As Judge Sidney Thomas noted in his testimony before the Senate Judiciary Committee, "A circuit split would not reduce caseload; it would only divide it." More judges, however, would allow each judge to carry fewer cases and resolve those cases more quickly.

The Ninth Circuit currently has seats for 28 judges, twice as many as most other circuits. But each judge must handle far more cases than judges elsewhere. In 2005, for example, there were more than 650 appeals per active judge on the Ninth Circuit. (Unlike active judges, "senior" judges may opt to work on fewer cases, so while their services are invaluable, their caseloads are not representative.) Only the Eleventh Circuit came close to that number; many other circuits had about half the number of appeals per active judge.

Judicial vacancies have also hurt the Ninth Circuit. Its 28 judicial seats have almost never been fully staffed. At one point during the 1990s, there were ten vacant seats; until earlier this year, four seats were empty. No wonder the already-overburdened judges - with fewer colleagues to share the load - moved slowly. The only circuit with more vacancies in recent years - the Sixth Circuit - has also struggled. Indeed, in three of the past six years, the Sixth Circuit has been slower than the Ninth Circuit, despite having far fewer appeals per judge.

The obvious solution, then, is more Ninth Circuit judgeships. But Republicans in Congress have made clear that they will only authorize additional judges if the circuit is split -- which suggests that their real concern is not the court's backlog, but something else.

Additional Arguments for a Split: Why They're Unpersuasive

Proponents of a circuit split have offered several other reasons for dividing the court. But none holds water.

First, they argue that the size of the circuit impedes collegiality. Because the judges are spread over nine states and see each other infrequently, they say, the Ninth Circuit lacks the intimacy and cohesiveness of other circuits.

But if the Ninth Circuit is such a fractured, unwelcoming court, why are so many of its judges fighting to keep it together? More than two-thirds have signed a letter opposing a split, while only three judges on the court publicly support it.

And if small courts are really more unified and agreeable than large courts, how does one explain the frequent 5-4 splits on the Supreme Court and the sniping of the justices in their opinions?

Proponents also argue that the size of the circuit makes travel burdensome and costly for judges and litigants. The Ninth Circuit currently stretches from Alaska to Idaho to Arizona to Hawaii, encompassing nearly 40 percent of the country's land. For judges in far-flung states, it is surely a hassle to fly to San Francisco or Los Angeles (the two most common sites for oral argument) eight or more times a year.

But none of the proposals to split the circuit would ease that burden. The proposed Twelfth Circuit would include Alaska, Washington, Oregon, Montana, Idaho, Nevada, and Arizona; judges would still have to travel significant distances for oral argument. In fact, according to calculations by Judge Thomas, the time and cost of travel would actually increase for judges in the new Twelfth Circuit since they would likely be flying to cities with fewer direct flights than San Francisco and Los Angeles.

Then there is the issue of the en banc court. As in every other circuit in the country, Ninth Circuit appeals are heard by three-judge panels, but the losing party can petition to have the case reviewed "en banc." While the initial appeal to the panel is as of right, the court may choose to hear the en banc appeal, or simply let the panel decision stand.

In most circuits, the en banc panel consists of all judges. But with 28 judgeships, it would be impracticable for the entire Ninth Circuit to sit en banc. As a result, the Ninth Circuit en banc court consists of 15 judges: the chief judge plus fourteen selected at random.

Proponents of a split argue that this is a problem because, unless the en banc court's ruling is unanimous, its decision may not truly reflect the views of the majority of the circuit. They also point out that in a closely-divided case, eight members of the court can have the final word on an important issue of law.

But this problem is not as serious as critics think. In the past ten years, more than 40 percent of en banc cases in the Ninth Circuit were decided unanimously, while only 15 percent were decided by one-vote margins. And in any event, splitting the Ninth Circuit would not fix the problem. Under any of the numerous proposals that have been floated, the new Ninth Circuit would still be too big for the en banc panel to include all members of the court.

It's About Politics: The Real Reason the Split Is Sought

If none of these reasons supports a split, then what is the real motivation behind the split proposals? In a word, politics.

For years, conservatives have railed against the Ninth Circuit, which they perceive as too liberal and out-of-touch with Supreme Court precedent. Sen. John Ensign (R - Nev.), the sponsor of the Senate bill, says he "look[s] forward to seeing Nevada's residents served by a new court in a new location with a viewpoint closer to their own." Rep. Trent Franks (R - AZ.) has said of the Ninth Circuit: "If we do not gain control of these out-of-control courts, they will lead this republic into a darkness that we cannot emerge from."

Some proponents of a split have denied any political motivation. And it would be unfair to tar all proponents with the same brush. But in the words of Ninth Circuit Judge Alex Kozinski (a Reagan appointee and a strong opponent of the split): "You'd have to believe in the tooth fairy to say this has nothing to do with politics."

Of course, this wouldn't be the first time politics influenced decisions about the federal courts. Battles over judicial appointments have become incredibly partisan in recent years, and Congress has frequently threatened to restrict the courts' jurisdiction in response to politically unpopular decisions.

But nearly all judges and constitutional law scholars agree that the politicization of the judicial branch is not a good thing. In a country governed by the rule of law, citizens must have confidence that federal judges are not the agents of political parties, but are impartial arbiters who follow the law.

(Interestingly, too, the Ninth Circuit is not as liberal as some think. Of the 26 judges who now sit on the court, 16 were appointed by Democratic presidents, but 10 were appointed by Republican presidents. If President Bush fills the remaining two vacancies on the court before he leaves office, that gap will close further.)

The Benefits of Keeping the Ninth Circuit Intact

If there are no good reasons for splitting the Ninth Circuit, are there any good reasons for keeping it together? There are two.

First: money. The Administrative Office of the Courts (AOC) estimates that it would cost as much as $95 million to split the circuits (to cover new facilities and administrative staff) and an additional $13 million to $15 million a year to operate two separate courts. If a split would help improve justice for litigants, that money might be worth it. But for a political statement, the cost is too high.

Second: the future. The Ninth Circuit is not the only federal appeals court that is growing. According to a long-range study conducted by the AOC, all the circuit courts will experience significant growth in the next several decades. In fact, officials estimate that by 2020, all but two will have more judges than the Ninth Circuit has now.

Given these projections, Congress has two options. It can split all the circuits as they grow, so that eventually the country has several dozen circuits, each covering one or two states. Or Congress can use the Ninth Circuit's experience to learn how to deal with growth.

The first option should be rejected. One goal of creating federal appeals courts is to ensure the uniformity of federal law across states and regions. Moving to a system in which the circuit courts cover only one or two states would foster an unhealthy provincialism. We might as well rely on state courts.

The second option is much sounder. The Ninth Circuit has already made substantial strides in dealing with its caseload growth. It has implemented a number of administrative reforms - a circuit mediator, screening panels, a bankruptcy appellate panel - that have been cited as models by other circuits. And despite a 50-percent increase in cases over the past five years, its backlog has increased only marginally.

Congress should draw on this experience and use it as a model for the future. Indeed, Judge Thomas is so encouraged by the Ninth Circuit's reforms that he believes Congress should consolidate circuits, not divide them. Like businesses, he argues, the federal appeals courts will benefit from the economies of scale that come from increased size.

Whether Congress will follow this advice is doubtful. But it certainly should not split the Ninth Circuit. The problems it faces now will soon face every circuit in the country. The sooner we learn to deal with these problems, the better.

Thomas Healy is an Associate Professor at Seton Hall Law School. He is a former clerk to Ninth Circuit Judge Michael Daly Hawkins. Of course, his views do not necessarily represent the views of Judge Hawkins, or of Ninth Circuit judges in general.

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