Conservative Judges, Congressmen Want to Break Up Far-Left 9th Circuit

(Quin Hillyer, Liberty Headlines) A senior judge on the huge and controversial U.S. Ninth Circuit Court of Appeals headlined a Congressional hearing August 24 to advocate that his own circuit court be split into smaller units or otherwise reorganized.

Diarmuid O’Scannlain/PHOTO: Univ. of Virginia School of Law

The venerable Judge Diarmuid F. O’Scannlain, who has served the Ninth Circuit since 1986, told a Senate committee that the circuit handles appeals from too large a territory, making it “the federal judiciary’s 800-pound gorilla.” The circuit handles appeals from Alaska, Hawaii, Washington State, Oregon, California, Nevada, Idaho, Montana, Arizona, and even the territories of Guam and the Marianas Islands. That means it hears appeals from nearly 20 percent of the entire U.S. population and more than 45 percent of the nation’s territory.

The Ninth Circuit does have 29 judges (most have about 13) – but that’s still just 16 percent of all regional circuit judgeships, all of others of whom cover a far smaller physical territory.

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The court overall also has a reputation as the most liberal in the country, far outside the judicial mainstream, and it consistently ranks among the circuit courts whose decisions are most often reversed by the U.S. Supreme Court. Critics say the Ninth Circuit reversals often comprise some of the most spectacularly wrong or even absurd rulings of any in the country, and conservatives often say the court’s leftism is another good reason to break it into smaller courts and isolate the liberals in California.

O’Scannlain, however, said the court’s ideology should not factor into a decision about its reorganization.

“Restructuring proposals should be analyzed on grounds of effective judicial administration— grounds that remain unaffected by Supreme Court ‘batting averages’ or public perception of our decisions. [Nonetheless], restructuring the circuit is the best way to cure the administrative ills affecting my court, an institution that has far exceeded reasonably manageable proportions…. The sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, and our clarity. Simply put, the size of the Ninth Circuit is out of sync with the rest of the Judicial Branch. It is time now to take the prudent, well-established course and restructure this circuit.”

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Appeals court jurisdictions have been split before. The Tenth was carved out of the Eighth in 1929, and the Eleventh from the Fifth in 1980. Two congressional commissions, one as far back as 1973, concluded that the Ninth should be restructured – but powerful senators always have stood in the way.

Sure enough, California’s Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, released an impassioned statement almost immediately after the hearing to say the idea should be shot down. She even used conservative-sounding arguments to make her case.

“Splitting the Ninth Circuit would be a huge waste of taxpayer dollars,” she said. “And the business community… benefits greatly from uniformity in federal law in Western states.”

But O’Scannlain said just the opposite, namely that “the court’s inordinate size also imposes significant burdens on our ability to maintain consistency and coherence in or law,” and he noted this: “The Ninth Circuit’s caseload exceeds those of the First, Third, Seventh, Tenth, and D.C. Circuits, combined. Our backlog is even more staggering.”

O’Scannlain was an appointee of a Republican president (Reagan), but some Democratic appointees also believe that it should be reorganized. Judge Richard Tallman, appointed by Bill Clinton, testified that the circuit is too big, which makes the court “the slowest federal appellate court in the country.”

“An untimely appellate process results in serious injustices to all parties involved,” he said. “The time it takes an appellate court to review a case is the same amount of time a potentially innocent person might spend waiting in jail or on death row. Government agencies, private businesses, and individuals with pending civil cases need prompt decisions to redress injury, resolve challenges to planned projects, obtain their disability benefits, or simply plan their futures.”

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Also in favor of breaking up the circuit is another Republican appointee, Andrew Kleinfeld.

On Sen. Feinstein’s side, in favor of maintaining the court as is, are Democratic appointees Sidney Thomas (Clinton) and Mary Schroeder (Jimmy Carter). Thomas and Schroeder both said that technological advances now make it easier for the Ninth Circuit to do its work, and that the integrated technology makes it efficient to keep things as they are.

Five current bills to reorganize the Ninth Circuit, each at least slightly different from each other, are pending in Congress right now. O’Scannlain said “any of the proposals” to do so would be at least somewhat acceptable to him (he actually would prefer splitting the circuit not just into two parts but three), but that the current bill he most favors is one by Arizona Republican Jeff Flake, who hosted last week’s hearing in Phoenix. Tallman said he prefers the one offered by Republican Sen. Steve Daines of Montana. The two bills differ on which circuit Washington State would belong to.

(Daines and Alaska Republican Dan Sullivan also introduced a separate bill, the Federal Court of Appeals Modernization Act, to establish a commission to study the caseloads of all the Courts of Appeals to see if any other changes are needed.)

Also last week, a group of about 150 interest groups, almost all of them liberal/leftist, sent a letter to the Judiciary Committee opposing any effort to split the Ninth Circuit – which, as a liberal bastion, of course they like very much as it is.