Republican lawmakers are eyeing a new push to break up the California-based federal court of appeals, which is widely considered one of the most liberal courts in the country.
Sen. Jeff Flake (R-Ariz.) said he’s planning to introduce legislation in the coming weeks to split up the 9th Circuit Court of Appeals, which covers his state and eight others, including California, Alaska, Nevada, Idaho, Oregon, Montana, Washington and Hawaii, as well as Guam and the Northern Mariana Islands.
“With regard to the court, it’s just access to justice,” Flake said. “Its docket is more than twice as big as the next biggest circuit. This has been a long time coming, and hopefully we can make some progress finally.”
Flake’s office said the bill will be similar to the legislation he introduced a year ago to establish an additional U.S. circuit court — composed of Arizona, Nevada, Montana, Idaho and Alaska — to relieve what he said at the time is an “oversized and overworked” 9th U.S. Circuit.
Conservatives have long bandied about the idea of breaking up the court.
{mosads}They say the Ninth Circuit’s decisions are often radical, pointing to a 2002 ruling where the court ruled that having the words “under God” in the pledge of allegiance was unconstitutional. The Supreme Court later overturned that ruling.
But lawmakers who support splitting up the court say it’s the 9th Circuit’s caseload, and not its liberal bent, that needs to be addressed.
Carl Tobias, a professor of law at the University of Richmond School of Law, said the court handles about 20 percent of the entire appellate caseload.
But Tobias added that the court also has a reputation of siding with regulators over industry.
“Some of the senators from the west have been concerned about the ideological composition of the court and the opinions it issues,” he said. “It’s long been considered the most liberal court, but I think that’s less true today.”
Democratic presidents appointed 18 of the 25 active judges on the 9th Circuit. The court now has four vacancies, which President Trump will have the opportunity to fill.
Efforts to break up the court date back to the 1980s, but have never been successful. In 2005, Republicans were able to slip a measure splitting the court into a budget bill that passed the House, but the provision was dropped after Democrats in the Senate threatened to block it, according to a Metropolitan News-Enterprise report at the time.
With Trump in the White House and Republicans in control of Congress, the legislation appears to have a better chance this time around.
Senate Majority Whip John Cornyn (R-Texas) said he’d support the measure.
“I think there’s been a long recognition that the 9th Circuit is behemoth and is one of the most problematic circuits in the country,” he said.
“Frankly, when [former Sen. Harry Reid (D-Nev.)] and Democrats packed the D.C. Circuit, they didn’t really need the help because they didn’t have much to do, so redistributing the judges in places where they actually have the caseload to justify, that is something I’d be willing to look at.”
House Majority Leader Kevin McCarthy (R-Calif.) said last week that he’d support legislation to break up the 9th Circuit and expand the D.C. Circuit, another court that has a reputation of leaning to the left.
“We’re looking at, and it’s coming out of the Judiciary [Committee], getting litigation reform,” McCarthy said in an interview with Hugh Hewitt.
A House Judiciary Committee aide said litigation reform remains a priority for Chairman Bob Goodlatte (R-Va.), who hopes to build upon the litigation reform bills passed by the House last Congress, including the Lawsuit Abuse Reduction Act.
Democrats, meanwhile, seemed surprised to hear of Flake’s plan, but didn’t immediately shoot it down.
Sen. Richard Blumenthal (D-Conn.), a former state attorney general, said he’d want to closely scrutinize Flake’s proposal.
“The problem has always been that is has a very large and somewhat unwieldy geographic area and caseload, so the question is whether there’s an effective way to deal with those appeals,” he said. “I’d have to see those details.”
Not all Republicans sound optimistic about the chances for success.
“I’m all for that if he can get it done,” Sen. Orrin Hatch (R-Utah) said when asked about splitting the 9th Circuit.
“The California people will all be against it, and there will be a lot of others against it, but I think it’d be a wise thing because [the court’s] too big,” he said.
Most of the 9th Circuit’s own judges have spoken out against the idea in the past. In 2005, Judge Mary Schroeder testified before Congress about how costly and difficult it would be.
“We’ve taken votes of our judges regularly and we always overwhelmingly vote against the split. And these are the folks that know the work of the court,” Judge Alex Kozinski, a Reagan appointee, told The New York Times in 2005.