Ninth Circuit Split Should Have Its Day In Court

Justice delayed is justice denied. The 58 million people who live within the jurisdiction of the Ninth Circuit Court of Appeals have had justice delayed for far too long.

Splitting the Ninth Circuit Court of Appeals is not a new idea. Discussions about when and how to split the Circuit have been ongoing since before World War II. However, the need to divide the Circuit has grown and the time to do it is now.

No one can deny that the Ninth Circuit is too large. The Ninth Circuit extends from the Arctic Circle to the Mexican border. It encompasses over 1.4 million square miles. It is larger than seven of the other circuits combined.

The enormous area of the Circuit leads to administrative and travel costs that are far higher than other circuits. The Ninth’s ever-expanding docket creates an inherent difficulty in keeping abreast of legal developments within its own jurisdiction, rendering inconsistency in Constitutional interpretation, and a caseload that is skewed away from the majority of issues facing states like Alaska. Since 2001, immigration cases alone have increased by 463 percent in the Circuit.

The Ninth Circuit, by any means of measurement, is the largest of all U.S. Circuit Courts of Appeal. By population, the size of the Circuit becomes more troubling. With over a third more population than the next largest circuit, the Ninth serves a population of 58 million people. It contains the states with the fastest population growth rates. By 2010 it is estimated to contain more than 63 million people. More than 14,000 cases were filed in the Ninth last year – nearly 60 percent higher than the next largest circuit. Enormous size and an ever expanding population result in overwhelming caseloads, difficulty in both administering justice and reaching uniform judicial opinions, the inability for all judges to sit en banc and speak as a unified body, and a disposition time that is five months longer than the national average.

For all of these reasons, I, along with Sen. John Ensign (R-NV), have introduced legislation to divide the Ninth Circuit and create a new Twelfth Circuit. The new Ninth Circuit would be comprised of California, Hawaii and the Pacific Islands and the new Twelfth Circuit comprised of Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.

A division of the Ninth Circuit would honor Congress’ original intent in establishing appellate court boundaries that respect and reflect regional identities. Distance and population would be more proportionate. Case loads would be more manageable. This is the only way that the uniform, coherent and efficient development and application of federal law in the region can be achieved.

In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the original purpose of its creation, and more money and more judges is no longer an acceptable solution.

A split is not unprecedented. It has been done before. The original Eighth was divided in 1929, the former Fifth in 1980. Despite what opponents say, splitting the Ninth has been and is supported by legislators, lawyers, the Department of Justice, Appellate and Supreme Court Justices.

Justice can no longer be delayed. It is time that this idea had its day in court.