9th Circuit, Federal Judges, Politics

Will We See A Return Of The Ninth Circuit Curse?

Will this latest effort to break up the Ninth Circuit get better traction than past attempts?

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The Ninth Circuit courthouse in Pasadena.

The Ninth Circuit courthouse in Pasadena.

Back in 2007, we introduced our readers to the Ninth Circuit Curse: “anyone who tries to mess with the Mighty Ninth eventually finds himself (or herself) in deep doo-doo.” As we explained again in 2009, “[s]everal politicians who have advocated splitting the Ninth Circuit — a sprawling court that can be challenging to administer, to be sure — have found themselves in some form of trouble or another. E.g., Senators Larry Craig, Ted Stevens, and Lisa Murkowski.”

Efforts to split the Ninth Circuit, notorious for being an overly large (and largely liberal) court, haven’t fared well over the years — perhaps due to the Curse, which has ended the political careers of several split proponents. But a new effort is underway, as reported by Cristian Farias and Jennifer Bendery of the Huffington Post:

Arizona wants to secede.

Not from the United States, but from the U.S. Court of Appeals for the 9th Circuit, the federal appellate court with jurisdiction over the state and a host of civil, criminal and immigration cases within its borders.

Gov. Doug Ducey (R) and lawmakers for the state announced a partnership on Thursday to introduce legislation in Congress to sever ties with the appellate court once and for all — with their sights set on joining up with another circuit or creating a brand new one just for them.

“Arizonans deserve better than this from the people in power, and that includes a judicial process that is judicious in nature,” Ducey said in the announcement, which was backed by fellow Arizona Republicans Sen. Jeff Flake and Rep. Matt Salmon.

So let’s keep an eye out on the careers of Governor Ducey, Senator Flake, and Representative Salmon over the next year or two. If anything bad befalls them, like a scandal or a failed reelection bid, chalk it up to the Ninth Circuit Curse.

Superstition aside, one can see some valid points in favor of a split. The court is, as Donald Trump might say, “yuge.” Per Zoe Tillman of the National Law Journal:

The Ninth Circuit carries the largest caseload of any federal appeals court. From June 2014 to June 2015, there were nearly 12,000 new cases opened in the circuit. The next busiest circuit, the Eleventh, which covers part of the Southeast U.S., saw half the number of new cases opened during that same time period.

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And that heavy caseload leads to backlogs. As noted by Governor Ducey, “due to its voluminous caseload and disproportionate size, the Ninth Circuit has an abysmal turnaround time of over 15 months for an average ruling – a figure that’s only going to grow as the docket does.”

Of course, it would be disingenuous to deny the role of politics here. The Ninth Circuit is (in)famously liberal, frequently reversed by the more conservative Supreme Court. (Whether it’s the most-reversed circuit, as Governor Ducey claims, depends on the Term and the time period you select; the Sixth Circuit, Eighth Circuit, and Federal Circuit are also in the running.)

The politicians spearheading the latest split effort — Governor Ducey, Senator Flake, and Representative Salmon — are all Republicans. Attempts to split the Ninth would probably fare better if they could win bipartisan support politicaly, as well as more support from Ninth Circuit judges. In 2006, during an earlier effort to split the court, thirty-three Ninth Circuit judges, both Republican and Democratic appointees, signed on to an article opposing a break-up. Finally, one must wonder if President Obama (or President Clinton?) would veto legislation to break up the Ninth.

What do I think, as a former Ninth Circuit clerk and author of a book set in the Ninth, of splitting the court? To be honest, I’m torn.

As a policy matter, I see sound reasons in favor of a split (reasons that have been advanced many times over the years by my former boss, Judge Diarmuid F. O’Scannlain). But as a personal matter, I harbor a certain affection for the hot mess that is the Ninth. It’s unpredictable and wacky and often dead-wrong, a drunken uncle at Thanksgiving — but it’s my drunken uncle, so I love it anyway.

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P.S. And a less dysfunctional court wouldn’t have been as great a setting for Supreme Ambitions (affiliate link). Speaking of my novel and of the Ninth Circuit, I’ll be in California next month — specifically, San Francisco — for a book event and cocktail party. It’s free and open to all; just register here.

Arizona Wants To Secede From The U.S. Court That Has Long Been Its Home [Huffington Post]
Arizona Revives Long-Failed Push to Split the Ninth Circuit [National Law Journal]
Governor Doug Ducey, Arizona Congressional Leaders Call For Removal Of Arizona From The Ninth Circuit [AZ Governor]

Earlier: The Ninth Circuit Curse
The Ninth Circuit Curse Strikes Again
The Ninth Circuit Curse Never Sleeps

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