Echoing Trump, House Republicans push for Ninth Circuit break-up while judges push back

16 March 2017. By Leah Nylen.

A day after a federal court on the West Coast overturned President Donald Trump's travel ban for a second time, House Republicans began pushing legislation that would split the US Court of Appeals for the Ninth Circuit into two appeals courts.

The Ninth Circuit is by far the largest US appellate court, hearing appeals from federal courts cases in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Marianas Islands. Splitting it would have significant impact on all types of federal litigation, particularly intellectual property and technology law.

The Ninth Circuit has 29 judgeships — nearly double the 17 of the next-largest circuit, the Eleventh — and is known to be one of the most liberal of the US appeals courts. The Administrative Office of the US Courts, which makes recommendations to Congress on behalf of the judicial branch, has suggested increasing that to 34 judges because of the court's significant workload.

On Wednesday, a federal judge in Hawaii blocked Trump's executive order barring entry to the US by nationals from six majority-Muslim countries. The order was the administration's second try after a panel of Ninth Circuit judges barred the first attempt earlier this month.

The Trump administration didn't seek further judicial review of the first executive order, opting instead to recraft it to address some of the perceived legal deficiencies. The Ninth Circuit, of its own volition, voted against an en banc rehearing of the first travel ban decision Wednesday. Five judges, all Republican appointees, dissented from the decision not hear the case en banc, saying they believed the executive order was lawful.

At a speech in Tennessee on Wednesday night, Trump blasted the decision to block his travel ban as "unprecedented judicial overreach" and took aim at the Ninth Circuit itself, saying they were "in chaos."

"People are screaming, break up the Ninth Circuit," he said. "You have to see how many times they've been overturned with their terrible decisions."

The most popular proposal under consideration in Congress would split the circuit in half, with California, Hawaii, Guam and the Northern Marianas remaining in the Ninth Circuit, with the other states becoming a separate Twelfth Circuit. The proposal was opposed by three Ninth Circuit judges who testified before the House Judiciary Committee on Thursday.

Two other judges, however — US Circuit Judges Andrew Kleinfeld and Diarmuid F. O'Scannlain from the Ninth Circuit, both Reagan appointees — submitted written testimony in favor of the split. House Judiciary Republicans also offered the 2006 testimony of US District Judge John Roll, the former chief judge of Arizona's federal court who died in 2011, in favor of the break-up.

Ninth Circuit Chief Judge Sidney Thomas, a Clinton appointee from Montana, said breaking up the circuit would eliminate many efficiencies the court has introduced, such as a centralized clerk's office and a mediation program that resolves thousands of appeals each year. He also said the move would likely cost hundreds of millions of dollars, as new facilities would need to be built for the new circuit.

The split would also be difficult to do evenly without cutting California in half, since the majority of appeals come out of that state's federal district or bankruptcy courts, he said.

US Circuit Judge Carlos Bea, a George W. Bush appointee, highlighted the importance and convenience for business of uniformity within the Ninth Circuit.

"This is not an abstract advantage," he said. "Who has standing to sue on a copyright infringement claim is now uniform in Washington State, home of Microsoft Corporation and California, home of Google. … That the law of intellectual property is the same for the Silicon Valley of California or the Silicon Forest of Washington state makes it easier for our trading partners across the Pacific to plan and manage their negotiations with businesses in the West."

Thomas and US Circuit Judge Alex Kozinski, a Reagan appointee who served as chief judge from 2007 to 2014, both rejected the contention that the Ninth Circuit is the appeals court most reversed by the US Supreme Court.

Brian Fitzpatrick, a law professor at Vanderbilt University, offered analysis that found the Ninth Circuit is reversed at a much higher rate than any other circuit: an average 2.5 times per 1,000 appeals from 1994 to 2015.

The years when the Ninth Circuit was the most reversed are largely past, Thomas said, noting that the court hasn't been the most reversed in any given year since before 2001.

US Representative Darrell Issa, the California Republican chairing the hearing, was critical of Thomas's cost-based arguments.

"This is, in fact, not your business," he said, noting that Congress sets the budgets for the judicial branch. "I appreciate the dollar figures. They don't add up to one bad case that goes up to the Supreme Court. … The cases that you get wrong have legal fees greater than the cost you describe of a few more courtrooms."

Throughout the hearing, Issa noted several times that the purpose of the hearing and proposals to split the circuit were intended to promote fairness and judicial efficiency and that ideological concerns shouldn't play a factor.

US Representative Jason Chaffetz, a Utah Republican, reiterated Trump's comments from the night before, saying people are "fed up" with the Ninth Circuit overturning the president's lawful orders.

"There is a great deal of frustration with the Ninth Circuit," Chaffetz said. "What about protecting the United States of America? It's the Ninth Circuit that is causing these problem. … There are a lot of us that are outraged. The president was duly given, by Congress, the authority to protect our borders. And for these injunctions to come in place and prevent the president from doing his job is absolutely, totally wrong."

None of the judges — including Kozinski and Bea who signed on to Wednesday's dissent related to Trump's initial executive order — responded to Chaffetz.

	Eliot Gao