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Ninth Circuit Poses Sticking Point for Lower Court Expansion (1)

March 15, 2021, 8:45 AM; Updated: March 15, 2021, 4:55 PM

The federal judiciary will release its latest proposal as soon as this week for creating new judgeships, and the biggest sticking point in Congress is expected to be expanding the appeals court that encompasses California.

The judiciary’s last proposal in 2019 included five seats on the U.S. Court of Appeals for the Ninth Circuit along with 65 district court judges in California and other states. Any expansion of the Ninth Circuit is unpopular among Republicans who think the 29-judge court covering nine western states and two territories is already too big and liberal-leaning.

Republicans have long advocated for dividing up the Ninth Circuit, an idea Democrats continue to resist, even though President Donald Trump’s 10 additions have shifted the court’s ideological balance.

But finally splitting the Ninth Circuit—or creating other appeals court seats that a future Republican president might fill—maybe the price Democrats have to pay to enact lower court expansion more broadly that progressives want and the judiciary says it needs.

“If they’re willing to split the Ninth Circuit now, I can see senators on both sides being willing to create the judgeships for the circuit now,” said Brian Fitzpatrick, a professor at Vanderbilt and former special counsel for Supreme Court nominations to Sen. John Cornyn (R-Texas).

District Court

The Judicial Conference, the policymaking arm of the federal judiciary, is scheduled to meet Tuesday. The Conference updates its recommendations for new judgeships every two years.

Adding more federal trial court judges is an idea that lawmakers in both parties have supported. The catch is that lawmakers whose party doesn’t occupy the White House at a particular time insist on spreading the appointments over multiple presidential administrations rather than giving them all to the sitting president.

In the House, for example, Rep. Darrell Issa of California introduced legislation in 2018 when Trump, a fellow Republican, was president to add 52 district court seats. He attracted bipartisan support after he agreed to a Democratic amendment that said the seats couldn’t be filled until after the 2020 election. But the bill didn’t advance on the floor.

At a House Judiciary subcommittee last month, Issa said it was time for a “serious conversation” about adding both district and circuit court seats but also signaled he would like to see the Ninth Circuit split up. He cited a huge backlog of appeals.

Expanding the Ninth Circuit will make it harder to operate as a collegial court where two judges may go years as it is before sitting on the same three-judge panel to hear cases. The risk of further delays and more mistakes also increases, said Fitzpatrick, who testified at the Feb. 24 House Judiciary hearing.

“All of the reasons why those things are a problem in the Ninth Circuit right now are going to be exacerbated,” he said.

The Ninth Circuit has long been a source of frustration for Republicans since a judicial expansion in the 1970s allowed President Jimmy Carter to fill a batch of new seats. As a result, the Ninth Circuit had a solid majority of Democratic-appointees for years but that majority recently started to slip. Trump’s appointments decreased the hold of those appointed by Democrats.

Democrats have traditionally been opposed to splitting the Ninth Circuit, a position that hasn’t softened as the court’s ideological balance has shifted.

“I don’t think there’s room for deal making if it involves splitting up the Ninth Circuit,” said Neil Quinter, a former chief counsel to Sen. Dianne Feinstein (D-Calif.), a former top Democrat on the Judiciary Committee. “I just think that’s a nonstarter because it doesn’t make any sense.”

‘Poison Pill’

Another former Democratic Senate aide said adding a Ninth Circuit split to a judicial expansion bill would be a “a poison pill.”

But at least one Democratic lawmaker is open to the idea if it gets the legislation through the Senate, which is controlled by Democrats by the thinnest of margins. Rep. Ted Lieu (D-Calif.), who clerked on the Ninth Circuit and sits on the House Judiciary Committee, said increasing appellate and district court judgeships is “the first priority.”

“If the way to do that requires that the Ninth Circuit be modified because that’s what some U.S. senators may be pushing for, then I would consider it,” Lieu said.

Last Congress, Sen. Todd Young (R-Ind.) introduced a bill that would have added all 65 district court seats recommended by the Judicial Conference over two administrations and converted several temporary judgeships to permanent ones.

A spokesperson for Young said the senator “was focused on judicial emergencies at the district court level,” and Young is waiting for the new Judicial Conference recommendations before determining what he’ll do this Congress.

Rep. Hank Johnson (D-Ga.), chair of the House Judiciary’s subcommittee that oversees the courts, said he believes there could be bipartisan support for the circuit seats without a Ninth Circuit split.

The Judicial Conference is fairly conservative in its requests for new judgeships, Johnson said. “A case can be made to many Republicans that, that court needs additional judges in order to do its work more efficiently,” he said.

Johnson, who plans to introduce a judgeships bill after the Judicial Conference reveals its recommendations, said he would be open to listening to ideas for restructuring the circuit. But he hasn’t seen any that he believes are viable.

There are also other types of possible deals should a Ninth Circuit split prove non-negotiable.

One could involve pairing Ninth Circuit seats with ones in a circuit that includes more Republican-leaning states, Quinter said. Those seats might become available during a future presidential administration, he said.

The circuit also includes Montana, Alaska, Arizona, Washington state, Nevada, Oregon, Hawaii, and Idaho.

No Perfect Option

The biggest obstacles to splitting the Ninth Circuit are the sheer size and caseload in California and two proposed approaches to a split address them differently.

One approach would put California in its own circuit, which would still be large. A second approach involves splitting Northern California into a circuit with the Pacific Northwest and Southern California into a second circuit with southwestern states. That would make the circuits more evenly divided but result in California being governed by two different sets of appellate decisions.

Marin Levy, a professor of law and a court administration researcher at Duke who also testified at the House Judiciary hearing, said part of the problem is that none of the proposals for splitting the circuit are perfect.

While the prospect of adding seats might strengthen the argument for splitting the circuit, Levy said there’s also an argument to be made that adding five judges to an already 29-judge court wouldn’t make that much of a difference in the court’s administration.

For example, the court already uses a limited en banc, which means most rehearings for cases are before a larger panel of the court rather than every judge on the appeals court like other circuits, and adding more judges wouldn’t change that.

“It’s not that this isn’t a reasonable conversation, but I do think that the burden is on those that want to split it to articulate why and how,” Levy said.

(Updates with Judicial Conference meeting details in sixth paragraph.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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