Splitting the Ninth Circuit Is Inevitable
By Congressman Mike Simpson
“The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” (Article III, Section 1, United States Constitution)
Every few decades, Congress must exercise its Constitutional authority and realign the United States Courts of Appeals into more efficient and manageable circuits that best represent the people within the circuit and provide them with an expeditious judicial process. This happened most recently in 1981 when the Eleventh Circuit of Alabama, Florida and Georgia was created from the old Fifth Circuit leaving Mississippi, Louisiana and Texas in the Fifth Circuit.
In October of last year, the House of Representatives passed an amendment (H.AMDT.780) to the Federal Court Judgeship bill (S.878) to split the Ninth Circuit into three circuits. These circuits would create a new Ninth Circuit consisting of California, Guam, Hawaii, and the Northern Marianas Islands; a new Twelfth Circuit consisting of Arizona, Nevada, Idaho, and Montana; and a new Thirteenth Circuit consisting of Alaska, Oregon, and Washington. With the support of House leaders, I have once again introduced HR 211 to split the Ninth Circuit into three circuits that will better represent the western United States.
Putting aside any political, historical or emotional arguments, the numbers speak for themselves on why a split of the Ninth Circuit is inevitable. In short, it has become disproportionately large in relation to the other eleven regional circuits and unwieldy to the point that a more expeditious legal process could be gained through smaller more manageable circuits.
Here are a few of the statistics:
Over 58 million Americans, or one in five citizens, reside in the Ninth Circuit. The next largest circuit has 26 million fewer residents. The Ninth Circuit has 8.9 million more people than the First, Eighth and Tenth Circuits combined.
The Ninth Circuit covers nearly 40% of the land area of the United States and stretches from the Arctic Circle to the Mexican border and across the Pacific to the International Dateline. This requires a significant amount of travel at great expense in both time for the judges and cost for the taxpayers.
The Ninth Circuit has 51 authorized and senior judges, which is nearly twice the number of total judges for the next largest circuit. It has the highest number of appeals filed and the second-highest annual percentage increase in filings. It has more than triple the average number of appeals filed of all the other circuits. It has the most number of appeals still pending and the second-longest median time until disposition. It is the only circuit to sit on "limited" eleven-judge en banc panels which can result in a "majority" of six judges who could represent the minority view of the full court.
It just makes sense that the people of the Pacific Northwest (Alaska, Oregon and Washington) and the Intermountain West (Montana, Idaho, Nevada and Arizona) should be represented by their own circuit courts and allowed to develop a body of case law reflecting their respective populations. Issues in San Diego can differ greatly from those in Pocatello, Billings, Yakima or Fairbanks. When judges are less burdened with travel and case monitoring they have a better ability to understand the dynamics of their region.
Ninth Circuit Judges O'Scannlain (Oregon) and Tallman (Washington) recently wrote in the Wall Street Journal that "...size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size."
Those who seek to maintain the Ninth Circuit's largesse can rest easier knowing that when the Ninth is split into three circuits, the "new Ninth" will continue to hold its position as the largest circuit in the United States.
It is only a matter of time before the Ninth Circuit is split into more manageable circuits that reflect their populations more closely. With the continued backing of House leaders and the House Judiciary Committee, I fully expect we will pass my bill out of the House once again this session. In the meantime, we will be working closely with our colleagues in the Senate to ensure that action will be taken in their body and this measure will get to the President's desk in the near future.
Representative Mike Simpson (R-ID) is serving his fourth term in the House of Representatives where he is a member of the House Appropriations Committee.
February 3, 2005]