Flake Floats Breaking Up The 9th Circuit, A Trump Nemesis


GOP Sen. Jeff Flake of Arizona held a hearing in Phoenix Thursday on splitting the unwieldy 9th U.S. Circuit Court of Appeals, the nation’s largest appeals court and a primary antagonist to President Trump’s agenda.

At 12,000 cases, the 9th Circuit hears twice as many appeals as the next largest circuit court per year. The court also has the largest geographic jurisdiction in the country, running as far north as the Arctic Circle and as far south as Arizona’s Grand Canyon. Fully one-fifth of the country’s population sits in the 9th Circuit.

The court also has a high rate of reversal at the Supreme Court, though this may be attributable to factors unrelated to its judges, who are frequently cast by conservative critics as progressive activists.

“A fair and functioning judiciary is one of the pillars of our democracy, but the oversized and overburdened 9th Circuit has Arizonans waiting too long for justice,” Flake said. “I believe the most responsible solution is to break up the 9th Circuit and move Arizona, along with other Western mountain states, into a new court with stronger local, regional, and cultural ties. This will ease the burden across the West and ensure that the people of Arizona finally get the swift access to the courts they deserve.”

9th Circuit Chief Judge Sidney Thomas spoke against splitting the court at Thursday’s hearing. Thomas was joined by Judges Diarmuid O’Scannlain, Richard Tallman, and Mary Schroeder, as well as Beau Roysden of the Arizona attorney general’s office.

Thomas argued, as he has in other venues, that the court has effectively built an administrative economy of scale, where non-judge mediators help adjudicate cases outside of court, court-designated officers dispense with basic motions, and a flurry of clerks manages vast reams of paperwork. As such, he says, the court is operating efficiently and effectively.

The court has stymied key provisions of the president’s domestic agenda. The 9th Circuit upheld a stay on enforcement of Trump’s executive order on refugee and migrant entry in February and again June, while other judges in the court’s jurisdiction have halted Trump’s sanctuary cities order as it applies to San Francisco and Santa Clara. As such, some Democrats claim that continued Republican interest in splitting the court is animated by partisan motivations.

“These efforts have nothing to do with caseload,” Democratic Sen. Dianne Feinstein said in a statement. “In fact, splitting the 9th Circuit would be a huge waste of taxpayer dollars. The simple fact is that calls by President Trump and Senate Republicans to split the 9th Circuit are simply a political response to decisions they don’t like.”

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