Editorials and Opinion
Trump wants to “break up the Ninth Circuit.” How would that help him? (Brookings, 05/16/17)
Russell Wheeler: seeking favorable venues is responsible advocacy. It’s why opponents of Obama’s policies challenged them in Texas federal courts.
The basic reason Trump wants to break up courts in the Ninth circuit is because he’s mad at their judges. A 1998 report of a statutory commission appointed by Chief Justice William Rehnquist to assess appellate structural alternatives reminds us that “It is wrong to realign circuits … or to restructure courts …because of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.” (Disclaimer: I worked on the report while at the Federal Judicial Center.)
[Editorial] Gazette opinion: Billings Welcomes Vice President Pence (Billings Gazette [MT,WY], 05/12/17)
"We don't think Montana interests will be well served by trying to split the Ninth Circuit Court of Appeals. We can't help but see this move as a blatant power grab by the Trump administration to pack a new court, and exact revenge for unfavorable rulings to the Trump administration. Montana has been well served by the Ninth. We have had great representation there, and would point out that Chief Judge Sidney Thomas is from Billings."
Opinion: Why it would be bad for Trump to break up the 9th Circuit Court (San Jose Mercury News [CA], 05/12/17)
Ian Samuel and Brian Goldman: Since John Roberts became Chief Justice in 2005, the Ninth Circuit has never been the most-reversed court of appeals. Last year, it decided 6,896 cases; the Supreme Court reviewed just 11 of them, about 0.2 percent.
Even among the tiny handful of cases the Supreme Court chose to hear, it reversed in eight (about 72 percent). That’s in line with the Supreme Court’s fairly high rate of reversing all the courts it reviews (about 70 percent). ... the court’s scope is an enormous benefit. For one thing, it allows the West’s expansive federal lands and technology industry to enjoy one stable body of law administered by one court.... And the Ninth Circuit has used its resources to become the most accessible federal court in the country ... If the complaint is that the Ninth Circuit is “too liberal,” this is especially strange: it would create a new “Twelfth Circuit” with an even larger majority of judges appointed by Democratic presidents. ... Punishing an independent court because of partisan politics makes us queasy.... the Ninth Circuit has long protected the public from the government’s ill-reasoned fits of pique. We hope the public will return the favor this time.
Can Trump ‘absolutely’ break up a federal court that’s standing in his way? (Washington Post, 04/28/17)
Amber Phillips: there are ways he can work with Congress to split up a federal court — doing it just might be more trouble than it's worth.... Ask almost any lawmaker in Washington, and they'll say an independent judiciary is good for democracy. And they'll also say that politicians who tried to exert their power over the courts are bad for democracy. ... Today, it's difficult to see how Congress — which is controlled by Republicans — convinces Americans they are breaking up this court for any reason other than to help create a more favorable judicial landscape for the president.
Trump Can't Win His Battle Against the Judges: Try as he might to change the rules, his protests only fuel the fire (Slate.com, 04/27/17)
Dahlia Lithwick: The president, as is his wont, apparently decided it’s pointless to threaten and undermine an individual jurist when he could go after an entire federal appellate court. So off he went on a boilerplate Twitter rant in which he wrongly blamed the 9th U.S. Circuit Court of Appeals for his loss at the trial court level; wrongly characterized that appellate court’s reversal record; and wrongly faulted a city and county in California for “judge shopping” (not an actual legal term) for opting to file in the jurisdiction in which they exist .... No matter what you do to the 9th Circuit, California will still be California. And Trump’s fury at the 9th Circuit ignores the fact that he has also been thwarted by federal judges on courts in various other jurisdictions, including the 2nd and 4th Circuits, where thinking jurists also roam free.... he pledged to revisit plans to break up the 9th Circuit, presumably because he thinks breaking up a federal circuit court will magically change his badly drafted executive orders into legally sound ones: ... when President Trump and his administration attack the judicial branch with authoritarian threats to break up the federal appeals court that has nothing to do with the ruling he disputes or insults individual “unelected” federal judges based on race or geographic region, sane judges, regardless of their personal politics, will recoil. They will feel, as Neil Gorsuch once put it, demoralized and disheartened by the president’s contempt.
Q&A Has the 9th Circuit gone 'bananas'? And can Trump break it up? (Los Angeles Times, 04/27/17)
Maura Dolan: Judge Alex Kozinski, a Republican with libertarian views appointed by President Reagan, has been quoted as saying, “You’d have to believe in the tooth fairy to say this has nothing to do with politics.”
Ninth Circuit critics believe that creating a separate circuit of the most conservative Western states would result in more conservative rulings.... A commission created by Congress to study a breakup recommended against it.
A majority of 9th Circuit judges, including conservative Republicans, believe a breakup would be a bad idea, according to the court’s internal polling of judges. Democrats, though the minority party, also could potentially block any such move.
Don't believe Trump's tweet about 9th Circuit Court's 'terrible record (San Francisco Chronicle [CA], 04/26/17)
Mike Moffitt: Can that be right, 80 percent of Ninth Circuit rulings are overturned by the Supreme Court? No. Absolutely false ... about a 10th of 1 percent of the 60,467 cases terminated on average each year by federal court of appeals are reviewed by the Supreme Court .... But doing the big-picture math would disrupt the perception cultivated by the administration (and some Republicans) that the Ninth Circuit is an out-of-control "rogue" court. ... the Ninth Circuit Court is not the most overturned circuit court in the nation, or even the second most.
A Frustrated and Confused Trump Wants to Bust Up the 9th Circuit (New York Magazine, 04/26/17)
Ed Kilgore: William Orrick, would still be a federal judge no matter which court of appeals had jurisdiction over appeals from his rulings. And so long as Trump keeps issuing orders that affect California, California judges will have the ability to grant Californians relief when appropriate .... In any event, splitting up the Ninth Circuit ain’t happening so long as Democrats have the 41 senators needed to filibuster such a plan in the Senate.
Judge Kozinski’s Advice To President Trump, Courtesy Of ’60 Minutes’ (Above the Law, 04/24/17)
David Lat: Here are some highlights from the segment on [Ninth Circuit] Judge Kozinski, who was interviewed by correspondent Lesley Stahl.... On proposals to split the Ninth Circuit
Alex Kozinski: The 9th Circuit can’t be split, and won’t be split. It’s a terrible idea.
Lesley Stahl: Why is it a terrible idea? The president himself has come after the Circuit saying that 80 percent of your decisions are overturned by the Supreme Court.
Alex Kozinski: Generally when the Supreme Court takes cases they take ‘em to overturn. They overturn something like 70 or 80 percent of all cases that they take. So, we are, right there, sort of in the middle.
Judge Kozinski’s point is well taken. The Ninth Circuit might be above average in terms of its reversal rate at SCOTUS, but it’s not the most reversed court in the country (although note that statistics will vary depending on the period selected).
And also, in fairness to Judge Kozinski, he’s often one of the conservative voices criticizing the overreaching liberal decisions that fare poorly at the Supreme Court.
Viewpoints: Why splitting the 9th Circuit is a bad idea: Professor: Proponents say the court is too big, slow and wrong to properly serve Arizona. That's not true. (Arizona Republic, 03/19/17)
Prof. Gary L. Stuart: The debate over whether to divide the 9th Circuit is a political masquerade in search of a principle. The principle should be just and fair decisions rendered as timely as possible. It’s time to remove the masks and reveal the facts.... Gov. Ducey and Sen. Flake use two primary arguments to show the 9th Circuit should be split. The first is that the U.S. Supreme Court overturns 77 percent of the 9th Circuit decisions. Respectfully, that’s not the case. In 2015 the Ninth Circuit issued 6,551 decisions. Eleven of those cases were reviewed by the U.S. Supreme Court. Eight were reversed. That means more than 99.9 percent of its rulings were left in place. In fact, between 2010 and 2015 the 9th Circuit’s reversal rates comes in third behind the 6th Circuit and the 11th Circuit.
The second argument is that the Ninth Circuit is simply too big and too slow. Judge Alex Kozinski disagrees. The 1985 appointee of President Ronald Reagan, who served as the Ninth Circuit’s Chief Judge from 2007 to 2014, said; “There are economies of scale by having a large circuit, and the court could decide cases faster if it had more judges.”
The current Ninth Circuit Chief Judge, S.R. Thomas said; “delay would increase substantially if the court were split—both the old ninth and the new 12th.”... Justice Anthony Kennedy, warned against ideological court tweaks in 2007.
Why the Ninth Circuit Shouldn't Be Split (Recorder, 02/09/17)
The Recorder reached out to practitioners to let them make their best arguments for keeping the circuit as it is. Here’s what they had to say ...
Op-Ed California's notoriously liberal ‘9th Circus' court of appeals is growing more centrist (Los Angeles Times, 09/11/16)
Ben Feuer: "The court’s reputation for leftist judicial activism is so legendary that conservative groups mount perennial efforts to split up the 44-judge court .... Obama’s appointees have been less predictably left-leaning in their judgments, particularly on criminal matters. Nearly 60% of Obama’s 9th Circuit appointees are former criminal prosecutors (a percentage that will increase if Lucy Koh, nominated in February, is confirmed).... Obama’s appointees are arriving at some conservative outcomes. Former prosecutor Jacqueline Nguyen, for example, wrote an opinion approving Royal Dutch Shell’s oil-drilling plan off the coast of Alaska against a challenge by environmental groups under the Endangered Species Act, and over a dissent from Carter appointee Dorothy Nelson. Nguyen also dissented in another case to say that a police officer might reasonably have used his Taser on the neighbor who was 40 feet away from an arrest taking place.
Likewise, Mary Murguia, another former prosecutor, joined two Republican-appointed judges in holding that cancer-causing diesel exhaust doesn’t qualify as the kind of health-endangering “hazardous waste” that would allow citizens to sue a polluting rail yard. Yet another former prosecutor, Paul Watford, who is frequently mentioned for a Supreme Court seat, dissented from a decision favoring a capital punishment prisoner. Even though he didn’t like the result, he said, Watford concluded binding precedent meant the inmate filed his death penalty challenge too late.... Yes, it still has more of its rulings overturned by the Supreme Court than other circuit courts, but that isn’t because of an extreme political bent; rather, it’s because of the large number of cases the court hears and the willingness of states within its jurisdiction to experiment with novel laws. ... Ultimately, because the 9th Circuit has grown more centrist, it’s the next president’s picks that could have an outsized effect."
EDITORIAL: Gazette opinion: Daines' politicking epitomizes what's wrong with Congress (Billings Gazette [MT,WY], 02/22/16)
"Montana Sen. Steve Daines is so worried about the federal court system's backlog and Americans' access to justice that he really must insist that no new Supreme Court justice be confirmed until after the election of the next president.
Sometime next year.
So are we.... Days earlier, Daines fretted on the floor of the U.S. Senate about the terrible backlog in the Ninth Circuit Court of Appeals, the federal circuit of appeals which includes the Montana District. In fact, he's so concerned that's he's supporting a bill to make a brand new federal circuit court of appeals. ... His obligation — his oath — to uphold the Constitution says that he will advise and consent on judicial nominations. Nowhere does it say delay and deny.... It seems almost unbelievable to us that Daines could sponsor legislation to speed up the courts while simultaneously wanting to stall and delay.
It's typical, though. The Republican-led Senate has more than 140 confirmation hearings to conduct, many of them for openings on the federal bench. Maybe instead of sponsoring new legislation, Daines should be urging Senate leadership and his own party to uphold their Constitutional duty to give these nominees an up-or-down vote."
[Sen.] Moran doing it right this time on judicial nomination (Wichita Eagle [KS] , 08/04/13)
Editorial Department blog by Rhonda Holman: "Good for Sen. Jerry Moran, R-Kan., for stepping out front Thursday to endorse President Obama’s nomination of Kansas Supreme Court Justice Nancy Moritz (in photo) for the 10th U.S. Circuit Court of Appeals in Denver. And good for Obama for finally addressing the long-vacant Kansas seat on the court, ... If Roberts concurs, Kansas can set a new example for how to get federal judicial openings filled in a divided government."
Hating on the Ninth Circuit: Funny But a Little Depressing (Wall Street Journal, 01/26/12)
Law Blog By Joe Palazzolo: "The idea of breaking the Ninth Circuit into pieces had been proposed in the past,... The idea fizzled.... about 70% of the Ninth Circuit’s cases come from California, so no matter how you slice it, the state is going to have a huge docket and outsized influence.
Kozinski is against splitting the Ninth and, in fact, supports combining some of the smaller circuits, particularly in the Northeast....once people take a deeper look, rather than relying on “uniformed commentary,” they’ll realize the Ninth isn’t going anywhere, he said....Other Ninth Circuit judges told Law Blog they were amused by all the attention the court was getting, but they said the animosity toward judges reflected a deep misunderstanding of how the federal courts operate, which they attributed to a lack of civics education. (Like, um, where would California appeals go?)
“Frankly, when I first heard the idea [of abolishing the court], I started laughing,” said one judge, who declined to be named. “But once you get over the funny the part, it’s a little depressing.”"
Which Newt is the good Newt? (Politico, 11/28/11)
Jeff Greenfield: "To be blunt, he often sounds like a blend of demagogue and bully. . . . The Gingrich as demagogue-bully has been on frequent display this cycle. . . . You don’t like the liberal opinions of the 9th Circuit Court of Appeals? “Congress can say, ‘All right, in the future, the 9th Circuit can meet, but it will have no clerks.’ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library either.’”
This time, how about a debate of substance? (Washington Post, 11/04/11)
George F. Will,Opinion Column: "Regarding domestic affairs, most of the candidates — Jon Huntsman and Mitt Romney have admirably refrained — have been barking about courts and especially about the Supreme Court, a.k.a. “nine oligarchs in robes” (Rick Perry). Rick Santorum wants to “eliminate” the often liberal 9th Circuit Court of Appeals, although it is not clear why that is necessary ... a fulminating Gingrich speaks of cutting funding for the 9th Circuit’s electricity, law clerks and library. Michele Bachmann and Paul think that Congress should restrict the jurisdiction of federal courts. The common theme of the candidates complaining about the courts is that, in Perry’s words, “activist” judges “deny us the right to live as we see fit.”
Indeed, courts sometimes do that. And conservatives sometimes applaud, vigorously and rightly. Perry did when the Supreme Court, properly enforcing the Second Amendment, said that the elected representatives of the residents of Washington, D.C., and Chicago could not do as they saw fit, and as a majority of their constituents probably favored, regarding gun control. Perry, Gingrich, Bachmann, Santorum and Paul ardently hope that five Supreme Court justices will be active enough to declare unconstitutional the individual health insurance mandate enacted by majorities in both houses of Congress."
Splitting court may leave Latino judges out of mix (Arizona Republic, 10/13/06)
Richard Ruelas column: Splitting the Ninth Circuit may result in the absence of Latino judges in the new Twelfth Circuit, which would encompass Arizona. "That worries [9th Circuit Judge] Bea, who was nominated by President Bush in 2003 and has his office in San Francisco. A little-noticed issue, he says, is that Arizona would no longer have any Latino judges on its new court. All six Latinos on the current court would probably end up in the reconfigured 9th Circuit. ...The Hispanic National Bar Association opposes the split for this reason. Same with Los Abogados, the Hispanic attorney group."
Northwest doesn't need its own federal court circuit (Seattle Times [WA] , 10/13/06)
Op-Ed by Columnists Robert Lasnik & Robert H. Whaley, Contrary to the view that the Pacific Northwest deserves its own federal court circuit, we, the chief district judges in the two trial courts that serve the state of Washington, strongly support keeping the 9th Circuit Court of Appeals as is.
Keep 9th Circuit intact (Register Guard [OR], 09/28/06)
The march to split the Ninth Circuit is led by conservative lawmakers who want to take a chainsaw to the court because they believe it's dominated by "activist judges" who uphold environmental laws that rankle timber, mining and energy interests in the West.
Keep 9th Circuit Court of Appeals as one circuit (Honolulu Star-Bulletin, 09/24/06)
Concerned about the possibility of Democrats gaining control of the U.S. Senate in the November elections, Republicans are engaged in a frantic effort to split the 9th U.S. Circuit Court of Appeals into two circuits.
A Bad Court-Splitting Plan (New York Times, 09/23/06)
Proponents of the Ninth Circuit Split claim that it will reduce work load, but in reality, its aim is not efficiency, but a conservative, anti-environmental agenda.
Keep It Together (Legal Times, 08/28/06)
Without a strong case of their own, supporters of a 9th Circuit split should defer to judges who oppose division.