Every decade or so, the notion of splitting the Ninth Circuit Court of Appeals into smaller circuits stirs up interest on Capitol Hill. Since the 1930’s, Congress has sporadically considered proposals to reconfigure the Ninth Circuit, the largest organizational unit in the federal court system. Congress is at it once again, with at least five Ninth circuit restructuring bills under consideration in the House and Senate.

Why should Congress split the Ninth Circuit? Proponents point to the circuit’s largeness in geographic size and increasing caseload, first among all circuits, and the impact of those forces upon prompt judicial administration. Opponents question whether circuit restructuring represents any greater net efficiency to judicial administration writ large, given the considerable added costs that the creation of another circuit would represent.

These arguments are renewed in the latest clash in Congress over recalibrating the circuit boundary of 15 judicial districts in the nine westernmost states and territories of the United States that comprise the Ninth Circuit. The five circuit restructuring bills introduced in the 115th Congress would realign the Ninth and create a new Twelfth Circuit in different ways, but largely break off at least four states—Arizona, Nevada, Idaho and Montana—from the Pacific coast states, Hawaii and the Pacific territories, to create the new circuit.

FBA’s Position on Splitting the Ninth Circuit

Where does the FBA, as the foremost representative of the practitioner constituency of the federal court system, stand on the issue? The FBA maintains an interest in how the court system is structured to best assure the prompt administration of justice. Over nearly two decades the Federal Bar Association has periodically reviewed proposals to restructure the Ninth Circuit and has engaged in discussions with Congress over their merits and demerits. In 1999 and 2004, the FBA reviewed and then opposed proposals to restructure the Ninth Circuit because of numerous problems associated with their costs and inefficiency. In response, Congress both times respected the views of the FBA and others in the legal community and set aside proposals to split the Ninth Circuit.

Earlier this year, after it became clear that Congress would revive the Ninth Circuit split question, the FBA undertook the necessary due diligence to assess the pending legislative proposals and revisit its position on the wisdom of reconfiguring the Ninth. FBA National and the Government Relations Committee, with the help of the Ninth Circuit vice presidents, solicited the views of the 15 FBA chapters in the Ninth Circuit. Those views portrayed a consistent concern among federal practice lawyers and judges that splitting the Ninth Circuit remains an unnecessary and costly proposition. That conclusion resulted in a May 16 letter to House and Senate Judiciary Committee leaders from FBA Executive Director Stacy King and Government Relations Committee chair West Allen, saying, “Although the Ninth Circuit’s geographic size and caseload are large and at some point may undermine the circuit’s capacity to effectively and efficiently render justice, the Federal Bar Association remains unpersuaded that the benefits today of restructuring the Ninth Circuit outweigh the merits of the current circuit configuration.”

Duplicative Costs, Multiple Concerns

The strengths of the current Ninth Circuit’s scale and its efficiency were notable, King and Allen said. “The duplicative overhead costs and expenditure of additional taxpayer dollars that would arise in any new split arrangement do not necessarily promise any ‘better’ justice than is available today,” they wrote. “In fact, greater legal risk and uncertainty, with added economic costs, may occur when the law in portions of the American West becomes more fractured due to disagreements between the jurisprudence of the Ninth Circuit and a newly-created Twelfth Circuit… While we recognize that a small minority of judges and lawyers may share differing views, the vast majority of our members in the Ninth Circuit share deep concern about the wisdom of splitting the circuit at this time.”

Three Ninth Circuit judges, including Chief Judge Sidney Thomas, Judge Alex Kozinski, and Judge Carlos Bea, in testimony to a House Judiciary subcommittee in February, all supported the current shape of the circuit and opposed splitting it.

Bruce Moyer is government relations counsel for the FBA. He also serves as counsel to the National Association of Assistant U.S. Attorneys. © 2017 Bruce Moyer.
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