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Sasse says splitting 9th Circuit appeals court is worth a look; some say idea has partisan roots

August 2, 2018

WASHINGTON — The idea of breaking up the U.S. Court of Appeals for the 9th Circuit is hardly a new one.

A commission led by then-Sen. Roman Hruska, R-Neb., recommended that approach for the 15 westernmost judicial districts all the way back in 1973.

More recently, President Donald Trump has talked about breaking up the circuit in the wake of rulings against him by its judges.

But the whole idea got a fresh airing Tuesday during a hearing Sen. Ben Sasse, R-Neb., convened as chairman of the subcommittee that oversees federal courts.

Sen. Mazie Hirono, D-Hawaii, questioned the session’s purpose, saying it was similar to a previous hearing.

“Nothing has changed since then except maybe that judges in the 9th Circuit have continued to make decisions this president doesn’t like,” Hirono said, citing rulings on the administration’s travel ban and family separation policies.

Sasse stressed that the hearing was a straightforward oversight session on the courts, one focused on the biennial report issued by the administrative body that oversees the courts.

The most recent report called for Congress to authorize 57 new federal judgeships — five of them circuit judges. And all five of those would be for the San Francisco-based 9th Circuit, which faces a massive backlog of cases compared to other circuits.

Sasse said he wasn’t attempting to push the idea of a 9th Circuit split, although he said it’s telling how much of the report focused on issues facing that one circuit.

“If you were going to have new judges and you’re putting them all in the same place, then it probably shines a spotlight on the fact that some of the administration of justice isn’t very efficient,” Sasse told The World-Herald.

Sen. Chuck Grassley, R-Iowa, the chairman of the Judiciary Committee, said he agrees with those seeking changes to the 9th Circuit, but any major push for a reorganization won’t come until next year, after the midterm elections.

The 9th Circuit, which does not include Nebraska or Iowa, has twice as many authorized judgeships as the average of other circuits and 30 million more people than the next-largest. It has a backlog of nearly 12,000 cases compared to an average of 2,500 among other circuits.

In response to the unwieldy number of judges, the circuit operates differently from others, which critics say creates inconsistencies in the administration of justice and leads to more decisions being overturned by the Supreme Court.

Defenders say those pushing to split the court have partisan or ideological motivations.

The top Democrat on the subcommittee, Sen. Richard Blumenthal of Connecticut, said the two senators representing California, where four of the circuit’s districts are situated, feel it would have little to no value, and he agrees.

“It would prompt inefficiencies and obstacles that are unnecessary, disruptive and massively expensive,” Blumenthal said.

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