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Legally Speaking: It’s time to split the 9th Circuit Court of Appeals

A man stands outside the main door outside the 9th U.S. Circuit Court of Appeals building Thursday, Feb. 9, 2017, in San Francisco. (AP Photo/Marcio Jose Sanchez)

Is it time to strike down the 9th Circuit Court of Appeals, something that is affectionately referred to as the most-liberal court and the most-reversed court?

If the Arizona Legislature has its way, the answer is yes. Or, to be more accurate, not struck down, but rather split.

The 9th Circuit is the largest of the 13 courts of appeals and covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. It also has jurisdiction over Guam and the Northern Mariana Islands.

It has 29 active judges and hears more cases than any other circuit court of appeals.

In the decade from 1999 to 2008, the Supreme Court reviewed approximately 0.15 percent of the 9th Circuit’s rulings and reversed 61 percent of those.

From 2010 to 2014, the Supreme Court reversed approximately 79 percent of the 9th Circuit decisions it reviewed.

Reversing a ruling can causes significant issues, such as uncertainty with the court, inconsistency and a high number of appeals to the Supreme Court. After all, with a reversal rate that high, a party doesn’t have much to lose and a lot to gain by continuing the fight.

Recently, both the Arizona Senate and the House have passed almost identical concurrent memorials — numbers 1002 and 2001 — urging Congress to “divide the 9th Circuit into two circuits.”

Yes, the majority of both houses actually agreed on something. Both point to the following as some reasons for the request:

  • The 9th Circuit oversees nearly one-fifth of the population of the U.S.
  • It adjudicates nearly 22 percent of all federal appellate cases.
  • It has nearly twice as many judges as the next largest circuit court.
  • It has the longest average filing-to-disposition period of any federal appellate court — 15.4 months as of June 30, 2016, compared to a nationwide average of 8.8 months.
  • To maintain consistency and precedent, its judges must each be familiar with all its published opinions and it is impossible for all the judges to read all its opinions.

This is not the first time Arizona politicians have made this request and they are not the only ones. There is ample support for splitting up the 9th Circuit from all over the country.

In fact, Supreme Court Justices Anthony Kennedy and Clarence Thomas both testified a decade ago the 9th Circuit was too large and should be split.

There have also been multiple proposals to divide it put forth by various groups, including congressional officials, interest groups and legislative commissions over the past three decades, but to no avail.

With all of this support and all the verifiable reasons to split the court, why hasn’t it been done yet? I suggest a couple reasons.

First, it is the federal government and nothing works quickly and efficiently. It is just now making sweeping changes to the broken immigration court system.

Second, resources are being used for the immigration courts, which takes away from other federal court needs.

Third, the 9th Circuit has not melted down.

Lastly, tradition and comfort zone: An American may like to make improvements and changes a la Tony Robbins, but our government does not. Safety and familiarity is found in the comfort zone and the tradition of how things have always been done.

Unlike some things our legislators propose, the splitting of the 9th Circuit Court of Appeals is a proposal based on facts and common sense.

What is obvious is that a change is needed. However, when and how that will happen is up in the air. After all, there is no precedent for a change this broad and substantial.

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