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Splitting the 9th Circuit

From dKosopedia



The 9th Circuit Court of Appeals is by far the largest Circuit in the U.S. Appellate Court system. Critics say that it is too liberal and often overturned. It is the most liberal of the Circuits in its decisions. Its reversal rate in the U.S. Supreme Court is actually lower than the average circuit -- 9th Circuit cases often appear in the U.S. Supreme Court simply because the 9th Circuit is larger than any other circuit. The 9th Circuit has 28 judges now, compared to 17 in the next largest circuit, has two and a half times the population of the average circuit, and handles roughly 20% of all federal appeals in the United States. The political leanings of the 9th Circuit (which infuriate conservatives and give liberals hope) has turned a basically administrative problem (deciding how many judicial circuits the federal courts need) into an intensely political football, with Democrats supporting a single district whose rulings they view as good, over a wider area, while Republicans hope to carve out new conservative judicial strongholds by breaking up the District.

The U.S. House of Representatives voted 205-194 on October 5, 2004 to split the 9th Circuit Court of Appeals, which is the largest in the United States, into three parts. Hawaii, Guam, the Northern Marianas and California would remain in the 9th Circuit (based in San Francisco and Los Angeles). One of the new Circuits would be the 12th including Arizona, Nevada, Idaho and and Montana (based in Las Vegas and Phoenix). The other would be the 13th including Washington, Oregon and Alaska (based in Portland and Seattle). The bill would also create 58 new judgeships (7 in the new 9th Circuit designed by its Republican sponsors to make that court less liberal). The bill, S. 878 (with amendments incorporating HR 4247) failed in the U.S. Senate.

History and Analysis

There have been two prior circuit splits in U.S. history. The 10th Circuit was created in 1929 with part of the 8th Circuit Court of Appeals. The 11th Circuit was created in 1980 out of the 5th Circuit Court of Appeals.

If the 9th Circuit is going to be broken up, a number of considerations go into what plan makes sense.

Historically, no state has ever been in multiple districts, for the sensible reason that otherwise the law of one circuit might apply in part of the state, while the law of another circuit might apply in another part of the state. Circuit splits on legal issues are not uncommon, so this is a strong reason not to split any state, even though, based on population, California makes up 62% of the Circuit.

Also, historically, there is no precedent for taking a state out of one circuit and putting it into another existing circuit. This also has a reasonable basis. For example, if Arizona was switched to the 10th Circuit and a case was appealed from Arizona, it would be unclear if 9th Circuit or 10th Circuit precedent would apply to the case.

Third, there is a historical precedent for having at least three states in every circuit. This is partially to insure political balance. Every Senator from a state in a circuit can greatly influence which judges are appointed to the circuit (although this is not quite as absolute as the Senatorial privilege that applies to District Court judgeships which always come from a single state). To give just two Senators a special say in who is appointed to a Circuit Court would be to give them unprecedented power. A single state circuit would also create an impression that the Circuit was micromanaging the U.S. District Courts in that state. A two state circuit would break convention, but less starkly.

This third consideration also goes to wider political considerations. If a circuit has only liberal states in it, it will tend to become a liberal circuit, because Senators from those states will oppose conservative judges. If a circuit has only conservative states in it, it will tend to become a conservative circuit, because Senators from those states will oppose liberal judges. If a circuit has both liberal and conservative states, it will tend to be moderate, because both liberal and conservative judges will be opposed. Similarly, the more uniform a circuit is politically in the Senate, the more swiftly appointments will be approved, while the more diverse a circuit is politically, the more contentious the appointment process is likely to become.

Fourth, historically, circuits have been geographically contiguous, although there is no particularly firm policy reason for this rule.

Fifth, one of the reasons for breaking up the 9th Circuit, if you do so, is to make it smaller, so whichever successor circuit gets California, shouldn't have too much of the rest of the population of the circuit. Also, Arizona and Nevada are growing very rapidly relative to the rest of the Circuit, so it may make sense to consider expected population, rather than current population, in deciding upon which split makes sense.

Also, while the 9th Circuit may be too big, one also has to be wary of making a successor circuit too small. Appellate court cases are usually heard by panels of three judges, and at the very least, a circuit needs one more judge, in case a judge has to recuse himself from a case. Currently the 1st Circuit, with 6 judges is the smallest. Yet, even if seven judges are added to the 9th Circuit and its successors combined, the states other than California would be justified on a population basis, in having only 13-14 judges, at least one of which would be needed to support another state joined to California is it is not made a single state circuit.

Particular Possible Splits

The judge per circuit breakdown of a few possibilities is as follows, option 7 is the options being considered most seriously in Congress right now:

1. Default (just add judges and don't split): 9th Circuit (status quo) 35 judges.

This is viewed as being a liberal leaning circuit. Its large size prevents cases from being heard "en banc" by the entire court (after a three judge panel hears an issue). Unless every other circuit, it hears cases "en banc" in 11 judge panels, which can lead to results from those panels contrary to a majority of the circuit's opinions. It is also hard for judges to keep up with precedents within the circuit since so many cases are decided. This is possibly the best result of liberals, but it will be increasingly hard for them to argue against the administrative issues associated with being a very large circuit, particularly in light of Republican gains in Congress. Convincing five moderate leaning Democrats not to filibuster a sufficiently moderate 9th Circuit split plan may be difficult.

2. The three circuit plan passed by the House of Representatives in 2004: 9th Circuit (California, Hawaii, and territories) 23 judges; 12th Circuit (Arizona, Nevada, Idaho and Montana) 6 judges; 13th Circuit (Alaska, Oregon and Washington) 6 judges. See map.

This would create a liberal 9th Circuit, conservative 12th Circuit and moderate 13th Circuit. It would break the "three states per circuit" rule, and would leave the 12th and 13th Circuits tied for being the smallest in the U.S. The 12th Circuit would probably grow out of this with increased population relative to the nation as a whole resulting in more judicial appointments. The 13th Circuit would likely remain small.

3. Rep. Michael K. Simpson's (R-Idado) plan: 9th Circuit (California, Nevada, Arizona) 26 judges; 12th Circuit (Alaska, Hawaii, Idaho, Oregon, Montana, Washington) 9 judges.

This would create two moderate circuits, but would do less to reduce the size of the 9th Circuit, particularly as Nevada and Arizona are seeing record growth. Some feel that California and Hawaii's similar jurisprudence justifies keeping them together in one circuit. But, this plan breaks no established precedents.

4. Howard Bashman's (author of How Appealling) plan: 9th Circuit (Arizona, California, Hawaii, Nevada, and the two island territories) 27 judges; 12th Circuit (Alaska, Idaho, Montana, Oregon, and Washington) 8 judges.

This does the least to shrink the 9th Circuit, but keeps Hawaii with California and breaks no established precedents. This would create two moderate districts, although the 12th would lean more conservative in this plan than in Simpson's plan.

5. Sen. Lisa Murkowski's (R-Alaska) "hopscotch plan" modified to add 7 judges: 9th Circuit (California, Nevada) 23 judges; 12th Circuit (Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, territories) 12 judges

This violates the contiguous territory rule and the "three state" rule. It would leave the 9th Circuit more liberal, and would create a moderate district with the balance of the judges.

6. A modified "hopscotch plan" with 7 new judges: 9th Circuit (California, Nevada, Hawaii, territories) 24 judges; 12th Circuit (Alaska, Arizona, Idaho, Montana, Oregon, Washington) 11 judges

This would also violate the contiguous territory rule, but would keep California and Hawaii together. This tends to make the 9th circuit more liberal and the 12th Circuit more conservative, but provides compliance with the "three state rule".

7. S. 525 and H.R. 221 (2007): 9th Circuit (California, Hawaii, territories) 23 judges; 12th Circuit (Arizona, Alaska, Idaho, Montana, Nevada, Oregon, Washington) 12 judges.

This would violate the "three state rule". It would create a very liberal 9th Circuit, and a more moderate 12th Circuit.

Both bills have been assigned to committees in their respective Houses of Congress but have not progressed for more than a year. All Representatives and Senators from Alaska and Idaho support one of these bills. The Senate bill is also supported by Senators John Ensign (R-NV), Jon Kyl (R-AZ), and James Inhofe (R-OK). The bills have no Democratic sponsors and hence are unlikely to advance in Congress in the current session.

8. Create a California Circuit: 9th Circuit (California) 22 judges; 12th Circuit (Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, territories) 13 judges.

This would violate the "three state rule" most severely. It would create a very liberal 9th Circuit and a moderate 12th Circuit. It would do the most to average out the number of judges per circuit.

9. 'Another plan: 9th Circuit (Alaska, California, Hawaii, territories) 23 judges; 12th Circuit (Arizona, Idaho, Montana, Nevada, Oregon, Washington) 12 judges.

This does not break any established precedent. California and all 9th Circuit locations outside the continental U.S. are in one circuit, the remaining states are in the other. The 9th Circuit is as small as possible within all established precedents. All states experiencing rapid growth are placed in the smaller circuit. The 9th Circuit would remain quite liberal. The 12th Circuit would likely be moderately conservative.


Progressives would be well served by implementing any break up of the 9th Circuit under a Democratic President, rather than sticking with Default Plan 1 above, to prevent it happening in a less desirable way in a Republican administration who could get support from moderates to do so as the 9th Circuit growths to make up a larger and larger part of the total number of appellate judgeships. For example, a Democratic President could allocate new judgeships to the newly created circuit (leaving it with 7 new judges and 5 old ones) rather than the circuit containing California, in order to start it as a moderately liberal leaning circuit (with overall liberal 9th Circuit precedents as a starting point), while avoiding any incentive for existing San Francisco based liberal judges to resign to avoid a transfer to the new circuit. The circuit containing California could likely be protected by its Senators from becoming too conservative in the future.

Plans 9 above, is particularly attactive, because it does the most to satisfy the non-partisan goal (breaking up the largest circuit), without breaking any established precedents, while leaving the circuit not containing California more moderate than a three circuit plan would, for example. This would keep the 9th Circuit safely liberal going forward, while pre-empting any Republican attempt to carve a truly conservative circuit out of the 9th Circuit with gerrymandering and new appointments. This plan would be hard rhetorically for Republicans to oppose because they have already said a split is necessary and this would follow all established precedents for such a split, while most of their plans do not.

Plan 2 above, would create another conservative circuit while breaking up the circuit more than judicial economy requires (and would also face opposition for the superstitious by creating a 13th Circuit).

Plan 9 is superior to Plans 3 and 4 above, because a growing Arizona and Nevada paired with California could create an incentive to engage in another split or reorganization in the near future as the population of the 9th Circuit grows.

The hopscotch plans (Plans 5 and 6 above) would break with precedent primarily for the purpose of making the application of federal law in Arizona more conservative in the future.

Plans 7 and 8 break precedent while producing results not that different in judicial economy from Plan 9 which does not. Alaska might prefer plans 7 or 8, because it would prefer to be in a more conservative jurisdiction, but again breaking precedent so a state can be in a more conservative jurisdiction isn't a good idea.

External Links

Retrieved from "http://localhost../../../s/p/l/Splitting_the_9th_Circuit_979e.html"

This page was last modified 20:16, 22 February 2008 by Andrew Oh-Willeke. Based on work by Chad Lupkes and dKosopedia user(s) Lestatdelc. Content is available under the terms of the GNU Free Documentation License.

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