Western Republicans seek new federal appeals court

Arizona Republicans are tired of being covered by one of the most liberal courts of appeals in the nation, and now they want a court they hope will more accurately reflect the conservative attitudes of the Mountain West.

Rep. Andy Biggs (R-Ariz.) has introduced legislation to create a new federal court of appeals to cover district courts in Arizona, Alaska, Idaho, Montana and Nevada. The new 12th Circuit would carve up the 9th Circuit, the busiest of the 11 circuit courts in the nation.

Another proposal, from Rep. Mike Simpson (R-Idaho), would add Washington and Oregon to the 12th Circuit, along with the Mountain West states.

{mosads}Republicans in Western states have long chafed under the San Francisco-based 9th Circuit, viewed as the most liberal in the nation. In a string of rulings over the last three decades, the circuit has ruled that schools could not require students to say the Pledge of Allegiance because it included the phrase “under God,” struck down a California ban on same-sex marriage and repeatedly blocked death sentences from being carried out.

The court has also blocked several Arizona state laws, including measures to require English-only education, an immigration enforcement ban and restrictions on abortions. In 2016, the 9th Circuit blocked an Arizona ban on “ballot harvesting,” which limited outside groups from collecting absentee ballots and submitting them to state elections boards.

“The 9th Circuit covers about 40 percent of the U.S. population. It’s mammoth,” Biggs said in an interview. “California basically is the big dog in that circuit, and they certainly have more judges, which are reflective of California’s values and not necessarily the values of noncoastal states.”

Sen. Jeff Flake (R-Ariz.) and then-Rep. Matt Salmon (R-Ariz.), Biggs’s predecessor, proposed a measure in the last Congress to split up the 9th Circuit as well. Flake is considering a similar measure this year. Arizona’s governor, Doug Ducey (R), has asked congressional leaders to carve his state out of the existing circuit scheme.

“The 9th Circuit is by far the most overburdened court in the country, with a turnaround time that averages 14 months. Its pending cases are more than double the caseload of the next busiest court,” Ducey said in his State of the State address last week. “Arizona, and other states in the 9th Circuit, deserve better.”

Biggs and his staff are working with House Judiciary Committee staff to schedule a hearing on the bill. Committee Chairman Bob Goodlatte (R-Va.) has not said whether he would back a measure to add a new circuit court.

Thirteen of the 44 judges in the 9th Circuit are based in states that would move under the jurisdiction of the new 12th Circuit under Biggs’s proposal, including Chief Judge Sidney Thomas, based in Billings, Mont., who was first appointed to the bench by President Carter.

Biggs’s legislation would allow judges in states that would be covered by the 12th Circuit to decide which circuit they wanted to serve going forward. Only three of those 13 judges were appointed by Republican presidents. 

Biggs said there are no firm plans for where the 12th Circuit would be based, though Phoenix would be the largest city by far in states his legislation covers.