Two days after Donald Trump barnstormed into town and repeatedly condemned him as “weak,” Sen. Jeff Flake, R-Arizona, held a less raucous event in Phoenix centered on breaking up the Ninth Circuit Court of Appeals.
The unusual mechanism was a formal Senate hearing, held by Flake in his capacity as one of the Senate Judiciary Committee’s subcommittee chairs. Flake himself was the only Senator in attendance.
The topic was a perennial one: The Ninth Circuit is by far the largest of the nation’s eleven geographically-defined appellate courts. Nearly one in five Americans resides in its borders.
For critics like Sen. Dianne Feinstein, D-California, this is just a partisan move designed to weaken the reach of a court long perceived as a liberal outlier. For Flake and other advocates of creating a new 12th Circuit, it’s just a matter of good government.
The Ninth Circuit is America’s mega court
The federal judiciary currently features 13 federal appellate courts, the penultimate level of appeal below the Supreme Court. Eleven of them are numbered and covered geographic groupings of states and territories, plus an additional D.C. Circuit, and a Federal Circuit with nationwide jurisdiction in certain specialized subject matters.
Since the Supreme Court justices in Washington only decide to hear less than 2 percent of the thousands of cases filed, the appellate circuits have sweeping authority and influence within their regions.
For most decision, the appeals court delegates its authority to a three-judge panel, with the possibility for an en banc appeal to the full court. The number of judges on the full court ranges from six to seventeen, with one notable exception.
That exception is the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. This mega-court features twenty-nine judges. That’s so many that a proper en banc hearing is unwieldy and impossible. Instead, a randomly-selected 11-judge panel is used to hear en banc appeals.
When originally established in 1891, the Ninth covered a sparsely populated region with less than 4 percent of the nation’s populations. Now, nearly 20 percent of Americans live under its jurisdiction.
The next most populous circuits are the 11th (Florida, Alabama and Georgia), Fifth (Texas, Louisiana and Alabama), and Sixth (Ohio, Michigan, Kentucky and Tennessee). They each contain about 10 percent of the population. The remainder of the geographic circuits contain between 4.5 and 9.5 percent of the nation’s population. But this western-most mega-circuit court, headquartered in San Francisco, has judges scattered across four time zones and thousands of miles.
Flake’s solution would solve administrative and jurisprudential headaches
The impossibility of a full en banc hearing creates another legal quirk: The full court can often be at odds with itself.
That leads to different eleven-judge panels producing precedents at odds with each other. It’s also an administrative and jurisprudential headache, with substantial time and travel costs. Additionally, smaller states in the circuit often complain of the dominance of California, and Californians, on the Ninth.
If Flake’s bill becomes law, the Ninth will be trimmed down to include only California, Hawaii, Oregon, and the two Pacific islands territories. The rest, including most of the Mountain West, would become the new Twelfth Circuit, based out of Seattle.
While Democrats are quick to pan the idea as ideologically-motivated, many legal commentators feel the Ninth is unmanageable, and that it is out of step with the heart of the nation’s jurisprudence.
Decades ago, the court was dominated by appointees of Jimmy Carter due to a larger number of news seats created by Congress during his term, and these Carter appointees generally were seen as very liberal.
Since then, however, more moderate Clinton and Obama appointees, plus conservative appointees by Reagan and both Bushes, have pulled the Ninth somewhat back to the center. Four current vacancies are expected to be filled by Donald Trump, with more likely to come.
Breaking up the Ninth would produce relatively little partisan or ideological benefit for conservatives and Republicans. It would, however, reflect the overall principles and proportionality behind the design of the appellate circuit system.
(Photo of Senate Judiciary Committee member Sen. Jeff Flake taking testimony at a hearing in January 2013, by Chip Somodevilla/Getty Images.)