By Patrick L. Gregory, Bloomberg BNA
President Donald Trump’s recent criticism of the Ninth Circuit featured at a congressional hearing on whether it should be divided today.
His comments cast a new light on an issue Congress has considered for decades: whether the circuit is too large to function properly.
The Ninth Circuit functions better than it would if divided due to economies of scale, Ninth Circuit Chief Judge Sidney R. Thomas and fellow Ninth Circuit Judges Alex Kozinski and Carlos T. Bea testified.
But the large number of judges in the circuit are mathematically certain to produce a greater number of “outlier” decisions, Brian T. Fitzpatrick, a professor at Vanderbilt Law School, Nashville, Tenn., testified.
“People are screaming, break up the Ninth Circuit,” Trump said at a rally March 15.
The Judicial Administration and Improvement Act of 2016 (H.R. 250) would create a twelfth circuit, consisting of Alaska, Arizona, Idaho, Montana and Nevada, which are now in the Ninth Circuit.
“Take a look at how many times they have been overturned with their terrible decisions,” Trump said in response to a decision halting his revised travel ban, issued by the U.S. District Court for the District of Hawaii March 15.
Breaking up the Ninth Circuit could appear to be retaliation against Judge Derrick Watson, who issued the decision, Rep. Zoe Lofgren (D-Calif.) warned.
But the U.S. District Court for the District of Maryland also halted Trump’s travel ban, and no one is suggesting that the Fourth Circuit, where that court sits, should be divided, Rep. Ted Lieu (D-Calif.) said.
Rep. Ron DeSantis (R-Fla.) told the judge-witnesses that courts in their circuit were “playing a dangerous game” by invalidating Trump’s executive orders, which he said were directly authorized by Congress.
A video of the House Judiciary Committee hearing is available here .