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Analysis: GOP’s Assault on 9th Circuit

POSTED: March 17, 2017, 10:00 am

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Lost in all of the hype surrounding Donald Trump’s bizarre behavior is the Republican Senate’s direct assault on the 9th Judicial Circuit. Senators Steve Daines (R-MT) and Dan Sullivan (R-AK) quietly unveiled two bills, S. 295 and S. 296  aimed at breaking up the 9th Circuit Court of Appeals.

The 9th Circuit hears appeals from Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the territories of Guam and the Northern Mariana Islands, and the largest jurisdiction of them all, California. The states that make up the 9th Circuit hold nearly one quarter of the population of the United States.

Under the Republican proposal, the 9th Circuit would be split in two, with the states of California and Hawaii being grouped with territories Guam and the Northern Mariana Islands. The newly formed 12th Circuit would be comprised of Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington. A commission would then be established to determine how the courts’ caseload would be distributed between the two circuits.

Source: Federal Judicial Center

The effort to break up the 9th Circuit is not new. No less than seven different commissions and groups between 2003 and 2007 have advocated for its deconstruction. Opponents claim that the current composition of the Circuit is untenable. And it is true that the 9th Circuit caseload is huge, the amount of time for disposition of cases is too long and that the states that make up the Circuit are not fairly represented.

The overriding and unmentioned motivation, however, is political. Critics argue that the 9th Circuit has been decidedly more liberal than the others. Historically, that argument may be true. Decisions coming from that Circuit tended to be more respectful of individual liberties and protection of due process for criminal defendants, and civil rights. Philosophically, the 9th Circuit seemed to uphold the maxim of Benjamin Franklin that it is better that 100 guilty persons should escape than one innocent person should suffer.

That a judicial circuit may reflect the geographical leanings that it represents is not unusual. The 5th Circuit is unquestionably one of the most ideologically conservative Circuits in the nation. For example, in Burdine v. Johnson, five 5th Circuit judges applied the death penalty in the case even though the defendant’s lawyer dozed off during the trial. Also, former 5th Circuit Judge Edith Jones was flagged for saying that Blacks and Hispanics are more prone to commit crime. But recently the 5th Circuit delivered two decisions that set conservatives back on their heels; it struck down Texas’ discriminatory voter ID laws and affirmed a lower court’s ruling on same sex marriage. Things sometimes change.

And so, it is with the 9th Circuit. Although it has retained much of its liberal flavor, the Circuit has notably changed. It tends to side more with government agencies and regulators these days. But the healthy respect for the Constitution remains and was on full display in the Court’s most controversial decision, Washington v. Trump. The Court’s decision to block President Trump’s travel ban targeting Muslims was simply gasoline poured on simmering coals.

Much of what conservatives cite as fact supporting the 9th Circuit split is unfounded, distorted or simply untrue. For one, the 9th Circuit is not the most reversed circuit by the Supreme Court.

Statistics from the Supreme Court’s SCOTUSblog demonstrate that of the cases it accepted for review, approximately 79 percent of cases from the 9th Circuit were overturned by the Supreme Court over the period from 2010 to 2015. As analyzed by Politifact, both the 6th and 11th Circuits were overturned at a higher rate than the 9th at 87 and 85 percent respectively. And if you think that percentage is out of step, the 3rd Circuit comes in one point behind at 78 percent. According to Politifact, the median reversal rate for all federal circuits for the same time period was around 70 percent.

The reputation of being “most overturned” no doubt stems from the number of cases the 9th Circuit generates. Because it represents such a significant portion of the population, its caseload is large compared to the other ten circuits. It sends many more cases to the Supreme Court for consideration than its counterparts. The High Court deals with more cases from the 9th Circuit than the others numerically, but the proportion of those overturned is lower that at least four other circuits.

And while the median time from appeal to termination may be longer in the 9th Circuit than the other circuits, it’s not markedly longer, only about sixty days. But the 9th Circuit has also been operating with less than its allotted number of judges; there are at least five Circuit Judge vacancies waiting to be filled. The inability to confirm judges has a direct and undeniable correlation to the delay in dispositions.

I would suggest that judges of the 9th Circuit, not elected politicians, are in the best position to determine what is best for the administration of justice. They understand what works and what doesn’t. Two judges have emerged as staunch defenders of the 9th Circuit. Judge Alex Kozinski and Judge Carlos Bea made the trip to Washington D.C. to lobby against breaking up the 9th Circuit, meeting with senators to make their case. Ironically, Judge Kozinski was appointed by President Ronald Reagan and Judge Bea was named to the court by President George W. Bush, two conservative Republican presidents who can hardly be seen as sympathetic to liberal concerns.

The 9th Circuit seems most maligned, however, because it represents the perceived left leanings of its largest member state, California. This Circuit is under attack for what it stands for to conservatives—an obstacle to the spread of conservative judicial philosophy. Although it is not what it used to be, the 9th Circuit still stands as the most reliable defender of constitutional rights and individual liberties.

Making changes to the 9th Circuit may not be completely inappropriate, but real change must be the product of true judicial deliberation not as the outgrowth of political retribution.

Robert Tarver is a practicing attorney in New Jersey and the NorthStar News Legal Analyst

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