A new proposal to reshape the U.S. Court of Appeals for the Ninth Circuit, the nation’s largest and busiest federal appellate court, is set for a markup hearing before the House Judiciary Committee on Thursday morning.
The bill, introduced Monday by Rep. Darrell Issa, proposes dividing the Ninth Circuit into three regionally based divisions—a Northern Division composed of the district courts in Alaska, Idaho, Montana, Oregon and Washington’s Eastern and Western districts of Washington; a Middle Division made up of the courts in Guam, Hawaii, Nevada and the Northern Mariana Islands, as well as California’s Eastern and Northern districts; and a Southern Division including Arizona and the Southern and Central districts of California.
The bill, dubbed the ‘‘Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018″ or CIRCUIT Act, also proposes an additional circuit-wide division made up of the chief judge and four judges from each of the regional divisions chosen at random that would hear tax cases, appeals of final agency actions, and cases where two of the regional divisions had split on an issue. Issa’s bill would also add five additional active judgeships to the circuit, raising the total to 34.
University of Pittsburgh School of Law Professor Emeritus Arthur Hellman, a longtime Ninth Circuit watcher, said that Issa’s bill pulls many of its elements from recommendations put forward nearly 20 years ago by a committee chaired by then-retired Supreme Court Justice Byron White, who has since died. Hellman, who has been critical of the idea of a circuit division in the past, said that the latest proposal was “an attempt to find what I’m sure Issa will call ‘a middle ground’ between splitting the circuit and leaving it intact.”
“In the end [the White Commission recommendations] didn’t really satisfy anyone,” Hellman said.
Hellman noted that about 3,000 of the Ninth Circuit’s cases for the most recent year for which data is available were appeals from the Board of Immigration Appeals—about a quarter of the court’s caseload.
“if those 3,000 cases have to be decided by the Circuit Division, they’re not going to have much time for anything else,” he said.
Although Issa’s bill is on the schedule for Thursday’s markup hearing, the committee is also set up to take up a wide variety of proposals covering everything from making live audio from Supreme Court arguments available in the next two years to barring district courts from issuing nationwide injunctions.
Brian Fitzpatrick of Vanderbilt University Law School, who advocated splitting the Ninth Circuit at a subcommittee hearing chaired by Issa last year, said by email Wednesday that he wasn’t sure that the representative’s proposal would address his central concern—that the size of the circuit leads to three-judge panels that are more likely to be made up of ideological outliers.
“I think we would expect fewer outliers within each of the three regional divisions relative to the makeup of the divisions because each division will have only 11 judges,” he said. “I am not sure if that conclusion carries over to the ‘circuit’ division, however,” said Fitzpatrick, noting that the ratio of judges on the circuit division compared to the court’s total—13 of 24—closely mirrors the makeup of current Ninth Circuit en banc panels—11 of the court’s 29 current active judges.