The Associated Press reports1 that Governor Doug Ducey (R) of Arizona is pushing to have Arizona taken out of the appellate jurisdiction of the Ninth Circuit Court of the Appeals. In this post, I will explain how the Ninth Circuit fits in the appellate court system and the reasons why the Governor of Arizona is pushing to have his state moved from the Ninth Circuit.
Background: The Circuit Courts
The United States has thirteen circuit courts. The First through Eleventh circuits and the D.C. Circuit cover geographic regions, while the Federal Circuit Court has subject-matter jurisdiction only. For perspective, New York is part of the Second Circuit while New Jersey is part of the Third Circuit.
Among the circuits, the Ninth Circuit is notable for its size. Based in California, the Ninth Circuit has jurisdiction over appeals arising from Arizona, California, Oregon, Washington, Hawaii, Idaho, Montana, Nevada, Alaska, Guam, and the Northern Mariana Islands. Due to its scope, the Ninth Circuit has by far the largest caseload (around 12,000 appeals filed per year) and the most judges (29) among the circuits. The Ninth Circuit also sees a significant number of immigration cases given its geography and size.
Why Arizona Wants Out
Governor Ducey of Arizona cites multiple reasons for wanting to leave the Ninth Circuit. First, Ducey notes that the Ninth Circuit is overburdened, given its size and the number of appeals it sees. Second, Ducey notes that the Ninth Circuit generally has a disproportionate number of its decisions that reach the Supreme Court reversed. In fact, many Republicans have long complained that the Ninth Circuit has, in general, a liberal tilt in its judicial decision-making.
Governor Ducey offers two options for what he wants to see happen. Ducey suggests that either Congress creates a new Circuit (thereby splitting the Ninth Circuit into two) or that Arizona is absorbed into the Tenth Circuit, a smaller Circuit based in Denver. To this effect, Senator Jeff Flake (R-AZ) is proposing legislation for breaking up the Ninth Circuit into two.
Chances of Success
To put it mildly, we should not expect to see either a Twelfth Circuit or Arizona moved to the Tenth Circuit in the immediate future.
First, regardless of the merits of Arizona's arguments about the size of the Ninth Circuit, both of its proposals will be seen as politically motivated by many liberal groups and elected Democrats. For example, Democratic Senator Dianne Feinstein (D-CA) has long opposed breaking up the Ninth Circuit, and instead advocates for appointing new judges. Dan Pochoda of the American Civil Liberties Union outright accused Governor Ducey of so-called “circuit shopping.”
Second, even if compromise is possible, it will not be possible in the lead-up to the 2016 elections. Although people will rightfully focus on the Presidential election, it is important to remember that about one-third of the sitting U.S. Senators and every U.S. House member will be up for election. Suffice it to say, the closer we get to November, the less likely Congress is to consider, much less pass, large, complicated, and potentially contentious pieces of legislation.
If the Ninth Circuit consisted only of California, it would be responsible for more people than any of the other Circuits. If you turned the rest of the Ninth Circuit (besides California) into a circuit, it would cover about as many people as both the Second and the Third Circuit.2 To be sure, there are valid and completely non-ideological arguments in favor of breaking up the Ninth Circuit. Although it is debatable whether it is the most overburdened Circuit given the number of Judges it has, it indisputably stands out among the circuits for both its geographic size and the number of people it covers.
However, I do not think simply moving Arizona to the Tenth Circuit is the answer. Namely, if the main issue with the Ninth Circuit is its size, simply moving Arizona to the much smaller Tenth Circuit would not address the underlying issue in the Ninth. Advocates for restructuring the Ninth Circuit are best served seeking a solution that would bring the scope of the Ninth Circuit more in line with its sister circuits.
An additional concern with simply relocating Arizona is that it would open the door for a flood of other states to seek new Circuits, given that the move would be seen as having a partisan element. However, I do think that simply writing off the “political” considerations of Arizona is shortsighted, regardless of one's political persuasion or opinion of the Ninth Circuit's jurisprudence. People of all political persuasions fervently advocate for or against judges being confirmed to the circuits. For those who have a more complex understanding of law and legal philosophy than checking the party of the sitting President, there are numerous reasons for supporting or opposing a judicial appointment. If the elected officials and representatives of a state believe that their state is not well-served by its appellate court system, then there is no reason why it is inherently illegitimate to seek an appropriate remedy. That does not mean that reassignment in this or any other case should be granted, but rather that simply seeking the remedy itself should not be categorically dismissed as petty politics.