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Groups, including AAJ and AFL-CIO, argue splitting Ninth Circuit would be a mistake

By Jessica Karmasek | Aug 28, 2017


WASHINGTON (Legal Newsline) - Last week, more than 150 groups and organizations sent a letter to members of the U.S. Senate Judiciary Committee, urging them to oppose any “ill-considered efforts” that would split the U.S. Court of Appeals for the Ninth Circuit.

Federal lawmakers are once again considering legislation aimed at dividing up the court, the largest of the nation’s 13 courts of appeals.

Restructuring the appeals court, some argue, would help its burdensome caseload.

But the Alliance for Justice, American Association for Justice, AFL-CIO, American Civil Liberties Union, NAACP, National Bar Association, National Association of Consumer Advocates and Public Citizen, among others, argue the call for a restructured Ninth Circuit is merely the work of special interests, “dissatisfied with certain rulings.”

The groups sent their single-page letter, dated Aug. 22, to Senate Judiciary Chairman Chuck Grassley, R-Iowa, and the committee’s ranking member, Sen. Dianne Feinstein, D-Calif.

In it, they ask Grassley, Feinstein and other members of the panel to oppose any legislation that would split the Ninth Circuit, which is currently composed of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and the territories of Guam and the Northern Mariana Islands.  

The groups call out President Donald Trump, who has “led the recent charge” to split the Ninth Circuit because “he perceives it to be hostile to his unconstitutional agenda.”

It was the Ninth Circuit, in February, that refused to reinstate Trump’s executive order restricting refugees and visa holders from entering the U.S.

“Such results-driven considerations should not dictate the structure of the judiciary,” the groups’ letter states. “Allowing this ideological campaign to overhaul the judicial branch threatens the integrity and independence of the judicial system.

“Further, if legislation to divide the Ninth Circuit is enacted, it will enable ideologically driven forum shopping aimed at eroding critical constitutional rights and legal protections that affect workers, civil rights, consumers, and the environment.”

As the letter points out, more than 30 judges -- appointed by both GOP and Democratic Presidents -- have testified that dividing the appeals court would be “costly, inefficient, and would hurt the administration of justice in the West.”

“There is no compelling reason to split the jurisdiction and to incur the substantial costs that such a split would generate,” the groups wrote.

In February, U.S. Sens. Steve Daines, of Montana, and Dan Sullivan, of Alaska, both Republicans, introduced two bills that would restructure the Ninth Circuit.

One of the bills, the Circuit Court of Appeals Restructuring and Modernization Act, would split the Ninth Circuit into two circuits: the Ninth and the Twelfth circuits.

Under the proposed bill, the reconfigured Ninth Circuit would then be comprised of California, Guam, Hawaii and the Northern Mariana Islands. The new Twelfth Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

The Federal Courts of Appeals Modernization Act, meanwhile, would establish a commission to study the federal appeals courts system to identify changes needed to be made in order to promote an “expeditious and effective disposition” of the Ninth Circuit’s caseload.

“When our courts are overburdened and overworked, Americans are left under-served and waiting too long for justice. It’s time to take a serious look at how our court system can better serve the American people,” Daines said at the time.

“The Ninth Circuit’s jurisdiction includes 20 percent of our country’s population, nearly twice the size of the next largest circuit, and holds more than 30 percent of all pending cases. The Ninth Circuit has failed to adequately serve Americans’ needs -- it’s time a court system that functions and provides the American people with the service they deserve.”

According to information provided by Daines’ office, the Ninth Circuit has had on average more than 32 percent of all cases pending nationally.

As of February, it had 14,200 cases pending -- three times more than the next closest circuit, the U.S. Court of Appeals for the Fifth Circuit, at 4,638 cases pending.

The Ninth Circuit, according to Daines’ office, also has averaged the longest median time from appeal to termination over the last five years, at 14.7 months. The next closest was the U.S. Court of Appeals for the Sixth Circuit, at 12.7 months.

According to, which tracks the status of federal legislation, neither bill has moved.

A third bill aimed at breaking up the Ninth Circuit also has been introduced.

The Judicial Administration and Improvement Act of 2017, sponsored by U.S. Sens. John McCain and Jeff Flake, both Arizona Republicans, calls for moving Alaska, Arizona, Idaho, Montana, Nevada and Washington into a newly-established 12th Circuit.

Flake, who serves as chairman of the Senate Judiciary Committee’s Subcommittee on Privacy, Technology and the Law, held a field hearing last week to examine the solutions to reform what he describes as an “oversized, overworked and oft-overturned” Ninth Circuit.

Flake, who has led the years-long effort to break up the Ninth Circuit, focused the hearing on why alternative proposals that would rely on technology to solve the court’s problems are “flawed” and “inadequate.”

“A fair and functioning judiciary is one of the pillars of our democracy, but the oversized and overburdened Ninth Circuit has Arizonans waiting too long for justice,” Flake said at Thursday’s hearing. “After hearing testimony from distinguished experts on both sides of this issue, I believe the most responsible solution is to break up the Ninth Circuit and move Arizona, along with other Western mountain states, into a new court with stronger local, regional, and cultural ties.

“This will ease the burden across the West and ensure that the people of Arizona finally get the swift access to the courts they deserve.”

The Arizona senators’ legislation, introduced in February, also has failed to advance, according to

From Legal Newsline: Reach Jessica Karmasek by email at

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Organizations in this Story

U.S. SenateAFL-CIOAmerican Association for JusticeU.S. Senate Committee on the JudiciaryPublic Citizen Litigation Group