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Issue

Ninth Circuit Split

Proposed Anti-Environmental Gerrymander: Efforts to Split the U.S. Ninth Circuit Court of Appeals 

 Issue Summary & History:

 Ninth Circuit U.S. Court of Appeals judges appointed by Republican and Democratic presidents strongly oppose proposals to geographically split the Court. The Washington Examiner reported on March 16, 2017 hearings:

Three judges on the U.S. Court of Appeals for the 9th Circuit warned a House Judiciary subcommittee Thursday that their jurisdiction should not be split in two.

"Circuit division would have a devastating effect on the administration of justice in the western United States," Chief Circuit Judge Sidney Thomas said in prepared remarks to the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet. He said a split would "increase delay, reduce access to justice and waste taxpayer dollars." …

Circuit Judges Carlos Bea and [Reagan appointed] Alex Kozinski agreed with Thomas' testimony that the 9th Circuit should be left alone. Bea, who was appointed by former President George W. Bush, said it is important that their jurisdiction oversees as much as it does, because it minimizes the risk that law differs across Western-area cities.

"A decision by our Court binds courts and litigants in the whole Western area," Bea said, using the law of intellectual property as reason to keep the jurisdiction together. "This minimizes the risk that the law of intellectual property — copyrights and trademarks, for instance — maritime trade, labor relations, employment discrimination, for instance — will be different in Phoenix, San Francisco or Seattle."

As one of the Ninth Circuit judges testified, it is “especially important in environmental law cases” that the judges on a panel bring “different backgrounds and experiences” to their judging.  Judges from resource-extraction states and from non-extraction states benefit from each other’s perspectives.

Other arguments for the Ninth Circuit split were strongly refuted in the extended hearing testimony, replete with statistics tables, of the Chief Judge of the Circuit. As he noted: “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.”

There are three House bills, H.R. 196 (Simpson, R-ID), H.R. 1598 (Gohmert, R-TX), and H.R. 250 (Biggs, R-AZ), and two Senate bills, S. 276 (Flake and McCain R-AZ) and S. 295 (Daines, R-MT).

As Supreme Court Justice Anthony Kennedy, said in 2007: “You don’t design a circuit around the perceived political leanings of the judges.” Yet leading congressional proponents of the latest effort to split the Ninth Circuit U.S Court of Appeals admit that is precisely what they want: judicial gerrymandering, judge-shopping.

Sen. Sullivan (R-AK) explained that his current proposal to split the Ninth Circuit could “improve” [change] outcomes for Alaska cases pertaining to resource development issues if they were no longer heard by often-liberal judges from California. Reportedly, a cohort of Arizona Republicans called for the state to be pulled from the 9th Circuit earlier this year for largely the same reasons.

Rep. Chaffetz, another leading supporter of a split, essentially admitted a similar motivation targeting the court’s refusal to immediately reinstate Trump’s executive order banning travelers from seven mostly Muslim countries: The Washington Examiner reported: "‘Like clockwork, we see proposals to split up the Ninth Circuit whenever it delivers a controversial decision with which conservatives disagree,’ Rep. Jerrold Nadler, D-N.Y., told the subcommittee. ‘Just as there is a nationwide movement to end legislative gerrymandering, we should resist this form of judicial gerrymandering as well.’ Rep. Jason Chaffetz, R-Utah, strongly countered Nadler, calling 9th Circuit rulings as of late "infuriating." "To look to the 9th Circuit, to see people say, 'Well there's 70 people here we have to protect and 80 people here,' what about protecting the United States of America?’ he said. ‘It's the 9th Circuit that is causing these problems and taking away the duties that the Judiciary Committee, the Congress has given to the President of the United States to protect our borders.’”

In 2006, anti-environmental ideologues continued to advocate splitting the Ninth Circuit U.S. Court of Appeals.  The Senate Committee on the Judiciary considered S. 1845, "The Circuit Court of Appeals Modernization and Restructuring Act," which would have split the circuit into two circuits. In a June 21, 2006 interview, Senate Judiciary Committee Chair Arlen Specter (R-PA) said that he wanted to split the Ninth Circuit "yesterday.  I'd like to get it done before the end of the year."  Read our successful letter of opposition.

 These efforts followed the defeat in late 2005 of an attempt to split the Ninth Circuit through a rider on the budget reconciliation bill. This attempt was defeated when Senate conferees opposed the House proposal. House conferees stripped the rider from the budget bill before passing the legislation in the early morning hours on December 19, 2005.  Earthjustice and more than 90 civil rights, women's rights, disability rights, labor, health, religious, conservation and other national, state and local groups (link to letter here), opposed H.R. 4093 and other proposals to split the Ninth Circuit (Nov. 7, 2005).

 Pete Wilson, as a Republican U.S. Senator from California (he later served two-terms as Governor) condemned previous efforts to split the U.S. Ninth Circuit Court of Appeals (which includes nine Western states) as "environmental gerrymandering" (link to article here) by those who had been angered by rulings upholding and enforcing environmental laws. When congressional efforts to repeal or change environmental laws have failed, anti-environmental special interests have renewed these efforts to "judge-shop" by dividing the court in order to change the identity of the judges who interpret the law in particular states.

 History of Attempts to Split the Ninth Circuit

 In 2004, the House of Representatives passed a measure that would have split the Ninth Circuit into three circuits: a Ninth Circuit overseeing only California, Hawaii, the Northern Mariana Islands, and Guam; a new 12th Circuit serving Arizona, Nevada, Idaho, and Montana; and a new 13th Circuit serving Alaska, Oregon, and Washington (link to final vote results here).  Earthjustice and other national environmental groups opposed the House amendment seeking to split the Ninth Circuit (Oct. 5, 2004).  Senator Dianne Feinstein (D-CA) saidthat she would block the bill with a hold, and it did not pass the Senate.  

 House and Senate bills to split the Ninth Circuit into two Circuits (separating California and Hawaii from the other states) were introduced in 2005. The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held an October 26, 2005 hearing entitled: "Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem."

 The next day, without holding a hearing, the House Judiciary Committee approved on a party line vote a new House bill that had been introduced the previous Friday (H.R. 4093, "Federal Judgeship and Administrative Efficiency Act of 2005"). On November 3, 2005, the House Budget Committee, on another party-line vote approved a budget reduction bill that included the provisions of H.R. 4093, even though they would increase costs.  Earthjustice and more than 90 civil rights, women's rights, disability rights, labor, health, religious, conservation and other national, state and local groups opposed H.R. 4093 and other proposals to split the Ninth Circuit (Nov. 7, 2005)

 In a November 9, 2005 letter, Senate Judiciary Committee Chairman Arlen Specter (R-PA) and Ranking Member Patrick Leahy (D-VT) opposed inclusion of the Ninth Circuit split in any reconciliation package. Seven Ninth Circuit judges who have served or will serve as Chief Judge in the foreseeable future have also opposed any immediate action on dividing the Ninth Circuit (Sept. 2005).

 These efforts continued into 2006, with the advancement of S. 1845, despite bi-partisan opposition ranging from Gov. Arnold Schwarzenegger (R-CA) to national and state bar associations, to the overwhelming majority of Ninth Circuit judges, including three who were nominated by President Bush, the current Chief Judge, and Senior Judge Clifford Wallace, a former Chief Judge who was nominated by a Republican President. "You'd have to believe in the tooth fairy to say this has nothing to do with politics," said Judge Alex Kozinski, a conservative who was appointed by President Ronald Reagan. "You would be breaking up what is essentially a very good, well-working machine for" something smaller and less efficient, he said, testifying against the split in Senate hearings.

  House and Senate Committee Hearings on Ninth Circuit Split:

 The Senate Committee on the Judiciary Hearing "Examining the Proposal to Restructure the Ninth Circuit Court of Appeals" (Sept. 20, 2006):

 The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts hearing "Revisiting Proposals to Split the Ninth Circuit: An Inevitable Solution to a Growing Problem," (Oct. 26, 2005):

 Senate Judiciary Committee hearing entitled: "Improving the Administration of Justice: A Proposal To Split the Ninth Circuit," (Apr. 7, 2004) (transcript available at this link).  Hearing Testimony and Statements Opposing Efforts to Split the Ninth Circuit:

  • Chief Judge Mary Schroeder, Chief U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit (link to testimony)
  • Judge Clifford Wallace, Senior U.S. Circuit Judge, U.S. Court of Appeals for the Ninth Circuit (link to testimony)
  • Chief Judge John Coughenour, U.S. District Court for the Western District of Washington, and chair of the Ninth Circuit's Conference of Chief District Judges (link to testimony)
  • Senator Patrick Leahy (D-VT), Ranking Member, Senate Judiciary Committee, On "A Proposal To Split The Ninth Circuit" (link to testimony

 House Subcommittee on Courts, the Internet & Intellectual Property, hearing on H.R. 2723, the "Ninth Circuit Court of Appeals Judgeships & Reorganization Act of 2003," (Oct. 21, 2003) (transcript available at this link):

 Hearing Testimony and Statements Opposing Efforts to Split the Ninth Circuit: 

  • Judge Alex Kozinski, appointed to the Ninth Circuit in 1985 by President Ronald Reagan (full text)
  • American Bar Association, Statement on H.R. 2723 (Oct. 21, 2003) (full text)

 Testimony Before a 1999 Hearing of the Senate Judiciary Committee Administrative Oversight and the Courts Subcommittee:

  • Judge Charles Wiggins, Ninth Circuit Court of Appeals (July 16, 1999) (full text)

 Map of current U.S. Courts of Appeals territories

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