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Idaho Republican Launches Bid to Split 9th Circuit

The GOP-led effort to split the Ninth Circuit into two circuits appears to be gaining steam, with an Idaho congressman introducing a bill that mirrors efforts that stalled in the Senate in 2016.

(CN) – The GOP-led effort to split the Ninth Circuit into two circuits appears to be gaining steam, with an Idaho congressman introducing a bill that mirrors efforts that stalled in the Senate in 2016.

Rep. Mike Simpson’s bill would keep California, Hawaii, Guam and the Northern Mariana Islands in the Ninth Circuit, and create the new 12th Circuit to include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington state.out of Idaho, introduced a bill to the House to split the 9th Circuit Court of Appeals into two district, the latest attempt to break up a court that critics accuse of being too liberal.

Simpson's bill hews closely to similar ones introduced by Arizona Sen. Jeff Flake last year, seeking to move Arizona into a smaller, more efficient court. Both Flake and Simpson maintain the reason they want to divide the Ninth Circuit is because the court's caseload is so large, judges and their staff are overworked and people and businesses lack ready access to decisions as a result.

"One of the main tenets of our justice system is swift access to the courts, but the Ninth Circuit is so overburdened and overworked that Arizonans simply don’t have that access,” Flake said when he introduced his bill in 2016. “Establishing another circuit would solve that problem, and it would give Arizonans and others in the West what they deserve – swift access to justice."

But experts say the effort is to break up a circuit Republicans have long felt is too liberal.

"The impetus is political in nature," said Margaret Russell, a constitutional law professor at Santa Clara University. "The Ninth is considered to be one of the most liberal courts and there are a lot of conservatives that would like to see the more liberal parts of the court, whether it be Hawaii, California, Oregon or Washington, sliced off."

Carl Tobias, a law professor at Richmond University and an expert of federal judicial selection, said assertions "that the court is too slow, too big, are valid,” adding, "It represents 20 percent of the appellate docket for the entire nation.”

However, Tobias said expressed skepticism that dividing the circuit in two would actually confront the persistent caseload problems.

"It doesn't do anything for the real problem," he said. "If you want to reduce the caseload you could provide more resources, mostly in the way of judges."

The Ninth Circuit bench currently has four vacancies, and while former President Barack Obama’s nominee to the appeals court U.S. District Judge Lucy Koh – the first Korean-American to ever serve on the federal bench – cleared the Senate Judiciary committee, the confirmation process has since stalled and it remains unclear whether she will make it to the full Senate for a vote.

"Congress didn't confirm any appellate judges in 2016," Tobias said, as lawmakers waited to see what would happen with the presidential election.

Russell said the division of appellate circuits is not without precedent: the Fifth Circuit was split in two, leading to the creation of the 11th Circuit 1981. The reasons for that split were also political, as the GOP wanted to address what they saw as the judicial activism of the "Fifth Circuit Four."

Known more simply as "The Four", Chief Circuit Judge Elbert Tuttle and his colleagues John Minor Wisdom, John Brown and Richard Rives were critical in advancing civil rights as the movement burgeoned in the late 1950s.

However, Russell said there is a critical difference between the division of circuits then versus now – namely, the support of the judges themselves.

"All of the judges at the time were supportive, but according to the votes of the judges on Ninth Circuit now, and this even includes a conservative Judge Alex Kozinski, they believe it will cost more time and more money and that it should be handled differently," Russell said.

The law professor further noted that during the creation of the 11th Circuit, there was a compromise involved in that Joseph Hatchett became the first black judge appointed to the court in 1981.

"To me this doesn't sound like a compromise," Russell said of the current bid to split up the Ninth Circuit. "It sounds to me like it more a matter of numbers and the opportunity to split up a liberal court."

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