EDITORIAL: Time to break up the 9th Circuit

Faribanks Daily News-Miner

The 9th U.S. Circuit Court of Appeals should be broken up, split into two or three smaller and perhaps more regionally aware circuits. It’s been the unrelenting plea of Alaska officials for decades, it seems.

It should be broken up for many reasons.

The 9th Circuit is the largest of the nation’s 13 federal appellate courts. It is based in San Francisco and hears appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington and the territories of Guam and the Northern Mariana Islands.

Together, that’s about 20 percent of the U.S. population and is a disproportionately larger share than of the other circuit courts.

The court, as of March, has 29 active judges and 15 judges on senior status, a classification that in many instances has such a judge working as much as one on active status.

It’s a large court. Calls to break the 9th Circuit have come from beyond Alaska’s border as well and for a long time.

One of the significant factors supporting the division of the court — and one that relates directly to those who find themselves using the 9th Circuit — is that the court takes, by many accounts, an inordinately long time to close out cases.

The extended time in closing a case results in extended trauma for people who have truly been victimized, whether in a criminal or civil case.

The 9th Circuit’s own website indicates a lengthy process:

An oral argument on a civil appeal will occur 12 to 20 months after the filing of a notice of appeal. It’s four to five months for a criminal case.

After that, it’s three months to a year until the court issues a decision, though the judges have no time limit.

That’s a long time.

9th Circuit Judge Andrew Kleinfeld of Fairbanks strongly favors, and has for many years time, the breakup of the court on which he has served since 1991. He laid out the severe problems of the over-sized court in remarks submitted for a hearing of a subcommittee of the House Judiciary Committee in March of this year.

Judge Kleinfeld’s observations about the 9th Circuit should concern residents of all states covered by the court. He provides a grim insight into what he sees as the court’s failings — failings caused by the sheer size of the court, which is so big it cannot ever meet as one, known as “en banc,” to rehear cases. That is left for smaller panels.

Here are but a few of Judge Kleinfeld’s many points, in brief:

“Our size causes errors, and gives us too much power,” he stated in his 14 pages of written testimony. “When we make a mistake, the impact is colossal, and we do make mistakes. We have so many judges that we cannot read each other’s opinions, and we cannot correct our errors by effectively rehearing cases en banc.

“Judges on the same court should read each other’s decisions. We are so big that we cannot and do not. That has the practical effect that we do not know what judges on other panels are deciding.

“The Ninth Circuit, because of its size, is not and cannot be a reckonable court. No district judge and no lawyer can, by reading even a few hundred of our decisions, predict what our court will do in the next case. Even if the decisions could be read, there are over 3,000 combinations of judges who may wind up on panels, so the exercise would not be worth the time.

“Judges betray their trust if they do not act with shared authority. We were not put in office to be 29 individuals each imposing our idiosyncratic individual will on 60 million people. The en banc process is what an appellate court uses to speak as a single unified organ of authority. Because of our size, that is impossible.

“We judges on the Ninth Circuit have too much power over too many people. When we err, the consequences of error can be very great, and the Supreme Court cannot catch all the errors. Much governmental power in our country is confined by distributing it among 50 states. Our court’s excess power can benefit from division into two or three intermediate appellate courts.”

Deciding the number of circuit courts is within the purview of Congress; it created the 11th Circuit in 1980, for example. But, as with many issues, opposition exists.

Nevertheless, a firm case exists for breaking up the 9th U.S. Circuit of Appeals. The effort to achieve that should continue.

Read Judge Andrew Kleinfeld’s testimony to a House Judiciary Committee subcommittee here: http://bit.ly/2yEKhO1

Updated: 
10/25/2017 - 10:30am

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