Yesterday, in a post about the Ninth Circuit panel’s decision regarding the Trump administration’s executive on entry into the U.S., I suggested that Republicans should consider legislation to split up that court. The reason is simple: the court is too big. It encompasses nine states and has 29 slots (of which 25 are currently filled, I believe).
The court’s size means that, unlike with other federal appeals courts, when it sits en banc less than half of the judges participate. Thus, the results of en banc review do not necessarily reflect the view of the majority of the court.
It’s difficult to imagine what a true en banc hearing would look like. Imagine arguing an appeal before 25 judges.
Justice Kennedy and Thomas have both testified to Congress that the Ninth Circuit needs to be split, saying that this is Supreme Court’s consensus view. Kennedy used to serve on that court and is the Justice assigned to it.
Senator Jeff Flake has introduced legislation to split the Ninth Circuit. The court’s reaction to this proposal suggests that size isn’t its only problem.
Here is an excerpt from a letter that Sen. Flake sent today to Cathy Catterson, the Ninth Circuit’s executive:
I am aware that individual judges within the Ninth Circuit have historically expressed opinions on the topic [of a circuit split]. Some are in favor of the split. Others oppose it. Others view it as a matter of legislative prerogative.
Last summer, for example, I asked a nominee to the Ninth Circuit, Judge Lucy Koh, if she had any thoughts on the size of the Ninth Circuit, to which she responded that she “would defer to the representative of government on this issue of the circuit and its size.”
I was therefore surprised to read [a] Wall Street Journal article and see the following: “David Madden, the Ninth Circuit’s public information officer, said the court is strongly opposed to a split.”
It was unsettling to learn that an Article III court has a position on pending legislation and that a public information officer would purport to speak on behalf of the court as a whole, notwithstanding the diversity of opinion members of the court have historically expressed on the question.
Sen. Flake then asks Catterson these questions:
1. Is the Wall Street Journal paraphrase an accurate representation of the U.S. Court of Appeals for the Ninth Circuit’s position? Is “the court” strongly opposed to a split?
2. If that is [its position], how did “the court” reach this position?
a. Was there a poll of active judges?
i If so, when?
ii. If not, why not?
b. Did any judges dissent?
c. What input, if any, was sought from active judges?
d. Has the Executive Committee of the court considered my bill or any bill to split the Ninth Circuit at any of its annual meetings in the 2016 or 2017 calendar year? If so, please state when and provide the relevant excerpt of the Executive Committee’s meeting minutes.
e. Has one of my bills or any bill to split the Ninth Circuit been considered at any of the court’s annual meeting in the 2016 or 2017 calendar years? If so, please state when and provide the relevant excerpt of the meeting minutes.
3. What other pending legislative matters has the U.S. Court of Appeals for the Ninth Circuit taken a position on?
4. Has the U.S. Court of Appeals for the Ninth retained a lobbyist for the purposes of influencing this or any other pending legislation?
5. Has the Bar Association of the U.S. Court of Appeals for the Ninth retained a lobbyist for the purposes of influencing this or any other pending legislation?
6. If one of the pending bills to split the U.S. Court of Appeals for the Ninth Circuit were to pass and be challenged in court, what assurances can you give the public that the [court] would be able to adjudicate such a case fairly given that it is on the record “strongly opposed to a split.”
We’ll try to keep you posted on how the Ninth Circuit responds, as liberals on the court attempt to keep their left-wing empire intact.