Sen. Jeff Flake, R-Arizona, took his efforts to split the U.S. Court of Appeals for the Ninth Circuit on the road Thursday as he chaired a hearing of the Senate Judiciary’s Subcommittee on Privacy, Technology and the Law in Phoenix.
Flake, who faces a Republican primary challenge in his bid for re-election to the U.S. Senate, was the only member of the subcommittee in attendance, although the hearing did feature four Ninth Circuit judges. Judges Diarmuid O’Scannlain and Richard Tallman favored the split, and Chief Judge Sidney Thomas and Judge Mary Schroeder opposed it.
The threat of a split is as real as it has been in years, or perhaps ever, with Republicans controlling both chambers of Congress and President Donald Trump, a vocal critic of the Ninth Circuit, in the White House.
But the initial Facebook Live broadcast of the hearing streamed on Flake’s official page took on an air of the surreal. Flake supporters and detractors took to the comments section alongside the broadcast to send the senator messages unrelated to the topic of the day.
“Are you going to work in your busy schedule today strategizing on our state’s POS healthcare?” wrote one.
“Enjoy your final year in office,” added another.
“Sadly, you have lost my support. KELLY WILL BE LOYAL,” wrote another, an apparent reference to Flake’s primary opponent Kelli Ward, who recently received the president’s backing via Twitter. Trump also alluded to Flake in a speech earlier in the week as a Republican stalling his reforms.
Facebook viewers tuning in live saw other users’ reactions flash across the screen as thumbs up, hearts, and, more often than not, red frowning faces. The archived version of the hearing on Flake’s official Facebook page no longer has the flow of reactions, although the comments have been preserved.
Participants in Thursday’s subcommittee hearing were mercifully unaware of the fiery stream of commentary and reactions happening online, and stuck to the usual scripts of supporters and detractors of splitting the nation’s largest circuit court. The hearing, dubbed “Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems,” found Tallman and O’Scannlain citing the Ninth Circuit’s outsized number of cases and high average time between initial filing and decision as pretense for a split.
“There is nothing inherently special about the West to justify the notion that we should continue to be treated so differently than any other part of the country,” said O’Scannlain, noting that Congress split the Fifth Circuit to force the Eleventh Circuit more than three decades ago. “Our circuit is out of sync with the rest of the country and it’s getting worse,” O’Scannlain said before endorsing Flake’s proposed bill to trim the Ninth Circuit to California, Hawaii, Oregon, Guam and the Northern Mariana Islands, and establish a Twelfth Circuit composed of Alaska, Arizona, Idaho, Montana, Nevada and Washington.
But Thomas said splitting the Ninth Circuit would greatly increase costs by creating the need for more staff, more space and more judges. He added that the circuit’s size has allowed for economies of scale that make the circuit a leader in terms of case management, cybersecurity and information technology. Any split would have a “devastating effect on the administration of justice in the West” and result in the loss of a third of the court’s current staff, he said. “I don’t see how we could dig out of that hole in my lifetime.”
But Flake downplayed the additional costs of a new circuit and pushed back against the idea that the court’s technological prowess could help deal with its caseload.
“It’s a neat theory, but I believe it’s false,” the senator said. “None of these technologies are new. They go back at least a decade. And still the Ninth Circuit’s problems persist.”