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Why the 9th Circuit Court is such an attractive target for Republican lawmakers




Washington Attorney General Bob Ferguson speaks at a news conference about a federal appeals court's refusal to reinstate President Donald Trump's ban on travelers from seven predominantly Muslim nations, Thursday, Feb. 9, 2017, in Seattle. The ruling dealt another legal setback to the new administration's immigration policy. In a unanimous decision, the panel of three judges from the San Francisco-based 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S. An appeal to the U.S. Supreme Court is possible. (AP Photo/Elaine Thompson)
Washington Attorney General Bob Ferguson speaks at a news conference about a federal appeals court's refusal to reinstate President Donald Trump's ban on travelers from seven predominantly Muslim nations, Thursday, Feb. 9, 2017, in Seattle. The ruling dealt another legal setback to the new administration's immigration policy. In a unanimous decision, the panel of three judges from the San Francisco-based 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S. An appeal to the U.S. Supreme Court is possible. (AP Photo/Elaine Thompson)
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President Donald Trump wasn't pleased with the 9th Circuit Court of Appeals decision on Thursday.

https://twitter.com/realDonaldTrump/status/829836231802515457

The panel decided unanimously that a stay on his controversial immigration ban will remain in place for now. 

But even before the decision was even made, Republican lawmakers took aim at the San Francisco-based court, introducing a bill to break up the 9th Circuit. The court hears cases that involve California and eight other Western states that, taken together, make up about 20 percent of the nation's population.

But critics say the 9th Circuit is too big, too slow — and too liberal. So, why do they think that, and do they have a point?

Take Two put those questions to Andrew Bradt. He's an assistant professor of law at the UC Berkeley School of Law. 

Highlights

The 9th Circuit is the largest federal appeals court by far. It's also been a headache for conservative lawmakers for some time. I want to figure out how it got that way. So let's talk about the criticisms one by one. First: how did it get so big? 

Well, basically because of population growth. The 9th Circuit was created in 1891, and it includes all the states west of Wyoming, Utah and New Mexico. At the time, those states were simply not terribly populated. Because of that, there weren't too many cases. If the area became more populated, that means more cases, which requires more judges.

The sense of splitting the 9th Circuit has a bit of a 'here we go again' quality to it. There have been efforts to split the court up, going all the way back to 1941. 

How much of a difference is there in size?

It's much larger in terms of size, and it's much larger in terms of the number of cases. About a third of the appellate cases come out of the 9th Circuit. Just to give you a sense, there are 94 Federal Court of Appeals judges, and 25 of those currently sit in the 9th Circuit. 

How did it get the reputation for being so left-leaning? 

It's natural over time. If you look at those 25 sitting judges, 18 of those were appointed by Democratic presidents. Only seven of those were appointed by Republican presidents. 

You also have the tradition of senatorial courtesy, which held that judges were not appointed over the objection of one of the state's senators. So when you're talking about relatively liberal states, with relatively liberal senators, what you have is a significantly Democratic-leaning judge court. 

Arizona Senator John McCain is one of the sponsors of the bill to break up the 9th Circuit. The court had tangled with Arizona in the past when it tried to pass a law that made it a state crime to be in the country illegally. Where else have we seen the 9th Circuit get in the way of Republican initiatives? 

It's really been all over the map since the 1960s. One of the major early areas where the 9th Circuit was thought to be more liberal than the rest of the country was in the environmental law category. 

We've also seen it in cases involving relaxation of the laws on medical marijuana and marijuana generally. The famous Pledge of Allegiance case. And also, this series of other cases involving immigration, election law, rights to criminal defendants. 

Is there some merit to the thought that it's too big, too bloated, too slow? 

There is merit to that argument. It is the largest by far. Cases do take a fair bit of time to wind their way through, this week's rapid activity notwithstanding. 

One of the unique characteristics of the court is that, unlike all of the other courts, there are so many judges, the court isn't able to sit as a full court.

It's not unprecedented for Congress, who is in charge of the creation and size of the courts, to break them up. The 8th and 10th Circuit in the west was broken up in 1929. And the 5th Circuit was broken up in 1981, so it wouldn't be an unprecedented move. 

Would breaking it up weaken the court's ability to challenge Republican policies or executive orders from the Trump White House?

The devil will be in the details. It's hard to say whether or not things will move more quickly. It's probably fair to say that they will move a little bit more quickly if the circuit is broken up into two, as the House and Senate bills suggest. 

If you break up the court into two, that may mean new judgeships. Those new judgeships would be filled by the Republican Senate with nominees proposed by a Republican president. There certainly is a political piece to this. 

In the near-term, the California part of the 9th Circuit at least, and maybe Washington and Oregon, would still be places where there would be courts in which to challenge President Trump's orders. 

In the long term, breaking up the 9th Circuit and reducing its power would certainly reduce the liberal counterweight effect that the court is sometimes able to play.

Press the blue play button above to hear the full interview. 

Answers have been edited for clarity and brevity.



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