Familiar battle lines and talking points resurfaced Thursday as a congressional hearing delved into the possibility of splitting the U.S. Court of Appeals for the Ninth Circuit, the nation’s largest court in terms of case­load, territory, and population governed.

The U.S. House of Representatives Judiciary Committee’s subcommittee on courts, intellectual property and the internet hosted three Ninth Circuit judges—Chief Judge Sidney Thomas and Judges Carlos Bea and Alex Kozinski—all of whom favor keeping the 29-judge circuit as is, and two academics, John Eastman of Chapman University and Brian Fitzpatrick of Vanderbilt University Law School, who advocate creating a new circuit.

While the judges touted the economies of scale and increased technological resources that the Ninth Circuit has been able to develop because of its size, the professors pointed to statistics showing an increased number of summary and unanimous reversals of Ninth Circuit opinions at the U.S. Supreme Court. Vanderbilt’s Fitzpatrick testified that the court’s size creates a higher probability that outlier panels of judges will be drawn to hear and decide a case.

The hearing put the subcommittee’s chairman, California Republican Darrell Issa, in a sometimes uncomfortable position. While the rest of the Republican committee members clearly supported legislation backing some form of a split, Issa said he was “deeply concerned” about the possibility that any split would involve dividing California into two separate circuits. Such a division would raise the possibility of different outcomes in different parts of the state on issues of federal law.


Toward the end of the hearing, Issa also expressed concerns about a stand-alone California circuit, another possibility that has been floated. Issa noted that currently home state senators can effectively veto nominations of judges they find unsuitable. With two Democratic senators in the state, a stand-alone circuit could “make California an island unto itself,” Issa said.

“If that is a reality, isn’t that something this committee should guard against?” Issa asked Chief Judge Thomas.

“I don’t want to opine on what Congress should do internally,” said Thomas initially. But when pressed by Issa, Thomas said that he thinks “one-state circuits are a bad idea” for a whole variety of reasons, without elaborating further.

During the hearing, Issa reminded his fellow subcommittee members that the judges could not speak about legal issues that might come before the court. That admonishment, however, didn’t prevent colleagues on both sides of the aisle from weighing in on the Ninth Circuit ruling that left in place a ruling barring implementation of President Donald Trump’s initial travel ban and a pair of decisions out of Hawaii and Maryland Wednesday night finding his revised order unconstitutional.

Rep. Jason Chaffetz, a Utah Republican, said “there are a lot of us that are outraged” that judges are “taking away the duties” that Congress entrusted to the president on national security and immigration. “What about protecting the United States of America?” he said. Congressman Ted Lieu, a California Democrat, followed Chaffetz’s remarks by praising Wednesday night’s decisions and noting that no one was calling to split the Fourth Circuit, the court which would hear any appeal of the Maryland decision. “Multiple judges have imposed a block on Donald Trump’s bigoted travel ban,” Lieu said.

Arthur Hellman, a Ninth Circuit scholar at the University of Pittsburgh School of Law who watched the webcast of Thursday’s hearing, said it’s clear that there’s consensus within the Republican majority at least on the subcommittee to restructure the Ninth Circuit. But he didn’t see “any sort of consensus on how to do it,” especially given Issa’s concerns.

“The one group that was not represented at this hearing is in some way the most important of them all: The trial judges and lawyers of the Ninth Circuit,” Hellman said. “There was not a single person at the witness table who represented their interest.”

Contact the reporter at rtodd@alm.com. On Twitter: @Ross_Todd.

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