Don’t like losing in court? Don’t like it when the independent judiciary set up by our nation’s founders shuts down your plans as illegal and even unconstitutional? Hate it when judges who are supposed to be insulated from politics issue rulings that are insulated from politics and recognize legal rights of people you dislike?
The solution’s easy: just game the system. The GOP’s current scheme to break up the Ninth Circuit is just the latest proposal to game the courts to get more rulings in their favor.
Today’s Republican Party has developed expertise in this field. In the past year alone, they refused to even consider President Obama’s nomination of Merrick Garland to the Supreme Court, they blocked confirmation votes on fully-vetted, uncontroversial, non-ideological Obama nominees to circuit and district courts, and voted in lockstep to confirm a far right Sixth Circuit Trump nominee who would not have passed the laugh test under a normal administration.
The Ninth Circuit is comprised of Alaska, Arizona, California, Hawaii, Idaho, Nevada, Montana, Oregon and Washington (as well as the territories of Guam and the Northern Mariana Islands). Because of California’s enormous population, about half the judges on the court tend to be from that state, and they require the support of that state’s two senators.
This court got President Trump’s attention when it put a hold on his Muslim ban. But conservatives have long attacked the court because it tends to issue more rulings that the right wing disagrees with. As with every other geographical circuit, its rulings apply to states regardless of their politics: Circuit courts are color-blind to red states, blue states, and purple states. But a number of congressional Republicans don’t like that separation of politics from the courts, and they’ve introduced several bills to break up the Ninth Circuit. The specifics vary, but they all make sure to separate California from the more conservative states.
In the Senate, Judiciary Committee member Jeff Flake of Arizona has introduced the Judicial Administration and Improvement Act of 2017 (S.276). Montana’s Sen. Steve Daines, who is not on the committee, is sponsoring the Circuit Court of Appeals Restructuring and Modernization Act (S.295). Similar bills have been introduced in the House (H.R.196, H.R.250 and H.R.1598).
While conservative politicians try to break up the circuit, high-profile conservative judges have rejected the idea. Reagan nominee Judge Alex Kozinski testified at a March 16 House subcommittee hearing:
As I have stated many times before, dividing a circuit is not something to be done to make judges’ lives easier, or because one might disagree with some of the court’s decisions. Proposals that virtually isolate California in a circuit of its own are directly contrary to the idea of regional consistency and the need to have judges from diverse backgrounds at the appellate level. … And no conceivable split will reduce the travel time from Billings or Anchorage to Phoenix, or from Honolulu to San Francisco. If anything, our numbers show that we have been able to leverage our size and scope to efficiently administer justice despite our chronic shortage of judges, a problem that no circuit split can address.
Judge Carlos Bea, a George W. Bush nominee, also told the subcommittee he opposes the proposals. He presented the experiential diversity among judges from different states as a strength:
A second reason why I favor retaining our present structure is that we sit on panels with judges of other states, who come to the Circuit with many different backgrounds and experiences. This is especially important in environmental law cases, where the judgment of someone who has lived and practiced and judged where the trees involved actually grow, or the streams affected actually flow—and the jobs of harvesting the trees and controlling the streams are affected–helps determine the analysis and outcome.
This predictability and uniformity of law based on diversity of thought and backgrounds of the judges would suffer under any balkanization of the circuit.
The Ninth’s Circuit Chief Judge, Sidney Thomas, agreed with his colleagues:
I oppose division of the Ninth Circuit. Circuit division would have a devastating effect on the administration of justice in the western United States. A circuit split would increase delay, reduce access to justice, and waste taxpayer dollars. Critical programs and innovations would be lost, replaced by unnecessary bureaucratic duplication of administration. Division would not bring justice closer to the people; it would increase the barriers between the public and the courts.
On July 27, more than 30 current and former Ninth Circuit judges expressed their opposition to splitting the circuit in a letter to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein. Liberals and conservatives alike agreed that it would “be costly, inefficient, and would harm the administration of justice in the West.”
This week, PFAW joined more than 150 local, state, and national organizations in a letter to Grassley and Feinstein opposing efforts to divide the Ninth Circuit. The large number of organizations and breadth of issues they work on with speak to the enormous damage passage of such legislation would do. The letter explains:
Special interests, dissatisfied with certain rulings, have long sought to divide the Ninth Circuit in an effort to obtain different rulings. And, after the Ninth Circuit struck down the Administration’s “travel ban,” and a California district court enjoined the President’s order withholding Federal funds from cities that failed to enforce immigration laws, President Trump attacked the Ninth Circuit. In fact, President Trump has led the recent charge to split the Ninth Circuit because he perceives it to be hostile to his unconstitutional agenda.
Such results-driven considerations should not dictate the structure of the judiciary. Allowing this ideological campaign to overhaul the judicial branch threatens the integrity and independence of the judicial system. Further, if legislation to divide the Ninth Circuit is enacted, it will enable ideologically driven forum shopping aimed at eroding critical constitutional rights and legal protections that affect workers, civil rights, consumers, and the environment. [internal citations removed]
Unfortunately, for conservative politicians, “eroding critical constitutional rights and legal protections that affect workers, civil rights, consumers, and the environment” is a feature, not a bug. The Ninth Circuit should remain intact.