Judiciary

How Big Can the Ninth Circuit Get?

The Judicial Conference is recommending additional judges for what is already the largest

|The Volokh Conspiracy |

With 29 judges in active service, the U.S. Court of Appeals for the Ninth Circuit is already the nations largest federal appellate court. The court is so large that it does not sit as a full court when sitting en banc. Instead, en banc panels consist of the Chief Judge and ten other judges selected at random.

The Judicial Conference of the United States is recommending the addition of five additional seats to the Ninth Circuit, in addition to 73 district court judgeships around the country (eight of which are temporary judgeships that would be made permanent). These recommendations are based upon the Judicial Conference's assessment of court caseloads and administrative needs, and were the subject of a Senate Judiciary Committee hearing earlier this year.

The Conference is likely correct that the Ninth Circuit needs more judges to handle the volume of cases within the circuit. The same goes for their district court recommendations. The last time Congress significantly expanded the federal courts was in 1990, and court caseloads have increased substantially since then, particularly in federal district courts. Expanding lower courts to handle the nation's legal needs is overdue.

While I accept the Judicial Conference's claim that the nation needs more federal judges, I confess some reluctance to make the Ninth Circuit any larger. It is already an unwieldy court, far larger than any other circuit. While the Judicial Conference is recommending that the Ninth Circuit have over thirty judges, no other circuit court even has twenty—and no other circuit has adopted the Ninth Circuit's non-banc en banc process.

When Congress gets around to responding to the Judicial Conference's request, I hope it also gives consideration to splitting the Ninth Circuit into two, more normal-sized courts. In the past, such proposals have foundered on political concerns, such as that California's influence would overwhelm that of any other states in a newly constituted court. The alternatives of spitting California between two circuits or having a California-only circuit are also less-then desirable. Perhaps so, but it seems to me that a 30-plus judge circuit court is worse. Creating two circuit courts—a California-only court and another consisting of the remainder of the current Ninth—with 18 judges each, would satisfy the need for more judges and cut the current Ninth down to size.

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  1. difficult to do at this time, but it really needs to be divided.

    1. What were the arguments for breaking up the 5th?
      Wouldn’t they apply here as well?

  2. Democrats packing the lower courts?

    1. Packing, how? What does adding judges have to do with splitting a circuit?

  3. If I counted right (and please correct me if I didn’t!), the Ninth Circuit currently has 16 active judges based in California, 2 in Nevada, and 1 in Hawaii. Reduce the Ninth Circuit to those six districts (or include Guam and the Northern Mariana Islands if appropriate), move Arizona to the Tenth, and make Alaska/Idaho/Montana/Oregon/Washington the Twelfth, and distribute these new judgeships as needed.

    1. Isn’t Andrew Kleinfeld still on it — he’s in Fairbanks, Alaska.

      1. Not sure what it has to do with my proposal, but Judge Kleinfeld took senior status in 2010.

    2. Grouping Idaho and Montana with Oregon and Washington is asking for trouble, long-term.

      1. Oregon & Washington are heading for trouble on their own — look at the 2016 Red/Blue by county map:
        https://politicsandprosperity.files.wordpress.com/2017/05/red-vs-blue-by-county.jpg?w=630

        It’s Seattle & Portland versus everything else, and the middle isn’t going to hold indefinitely…

        1. This matches the map of basically every state, including ones that end up voting Republican in aggregate. Cities have populations that younger and more racially diverse, but even controlling for other factors, population density and distance from cities are strong predictors of party affiliation.

          Read more: https://dailyyonder.com/distance-and-density-not-just-demographics-affect-urban-rural-vote/2020/02/24/

        2. As usual, Dr. Ed would like to offer something on a subject he has little knowledge of to someone who knows far more about the subject in question.

          In particular, Oregon has more than one county that is majority Democratic. Multnomah county, which has most of Portland in it, is quite “blue” politically, being around 80% Democratic. The extremely sparsely=populated counties of eastern and southern Oregon tend quite the opposite, although some of those counties have more square miles in them than registered voters.
          However the Willamette Valley which contains the vast majority of the population of Oregon extends beyond just Portland and includes Much of Washington county (which is the wealthiest of the counties, containing most of Oregon’s tech industry) having a slight edge for the Democrats, and several counties further south down the valley being quite blue as well. Lane county is reliably blue (it houses Eugene, and the UofO.) Benton county (home of OSU) is also majority Democratic. Marion County (Salem the state capital) is reliably Democratic. Lincoln county, on the coast, has a good supply of retiree communities but is also majority Democratic.

          In short, the D’s lose in most of the counties. But they win in the ones that have voters in them, which gives them a statewide edge.

  4. “The court is so large…”

    How large is it?

    “…it’s so large, that it does not sit as a full court when sitting en banc.”

    [laughter]

  5. Make California and Hawaii once Circuit. They deserve each other.

    1. And access to HI is via CA, isn’t it?

      1. I flew to Hawaii once, but not from California. When I left Hawaii, I flew to California. That’s because access to California is via Hawaii.

        1. ” access to California is via Hawaii.”

          Unless you’ve ever heard of I-5, or Hwy-101, or even old Route 66.

        2. Isn’t California closest?

          Yes, the more efficient engines have extended range, but I was thinking that HI-bound planes would refuel there.

          1. It’s only a bit over 2,000 nm to San Fran. Yeah, most regional jets and early 737s won’t make it. Even Denver, at 2,850 nm, should be doable for a 737-Max with the required fuel reserve and at about 2,300 each Seattle or Vegas should be cake. Of course larger planes do fly non-stop from places like Denver and Dallas. The bigger factors are probably the airline’s hub layout and connecting flights from smaller airports.

            1. Aren’t the 737-Max aircraft all still grounded?
              also, you should define your units. I did finally work out that “nm” are nautical miles, but I spent a good bit of time trying to work out how nanometers were applicable.

              I know for a fact that there are non-stop flights from PDX airport in Oregon to Honolulu, because my daughter used to take them on her way to visit her mother in Hawai’i. Fortunately for me, I thought to ask the judge to modify the visitation order so that my ex-wife was responsible for paying for transportation when she decided to relocate out-of-state.

      2. “And access to HI is via CA, isn’t it?”

        You can access HI from any state that has a seacoast, and some that don’t.

  6. The First Circuit has four district courts (ME, NH, MA, CT — and PR) — both MA & ME have two divisions, but only one US District Court.

    California has four US District Courts — and over twice the Congressmen of these four states *combined*. So why shouldn’t it be it’s own circuit?

    And then I’d split the remainder once more. If it meets in both WA & OR, and there’s a basis for that, I’d go with AK, WA, & HI in the 12th, and the rest in the 13th — with the territories going wherever makes the most sense.

    1. The First Circuit has four district courts (ME, NH, MA, CT — and PR) — both MA & ME have two divisions, but only one US District Court.

      Rhode Island would like to know where Dr. Ed the Expert has decided to move it.

      1. And for that matter why Connecticut has been moved from the 2nd Circuit.

        1. It’s called harmless error — my point remains the same.

          1. Nobody cares about RI anyway.

  7. The 9th had 3% of us population when formed — now 20% — a fifth of the country.

    1. When we’re done enacting all the court expansions that you envision, we’ll have to enlarge the Supreme Court so that they can handle the volume of cases that will be referred. The Biden administration promises to be a busy one.

  8. Sounds like the federal judiciary needs to be retooled to ensure that it is able to address its increasing workload. While Democrats in Congress are doing this, they should also examine the workload of the Supreme Court. If the justices are so busy that they need an increasing number of law clerks, then perhaps its time to add some additional seats to the Court. The reasoning, of course, would be to help with the workload and increase judicial efficiency.

    1. Looks like you beat me to it by about 8 hours.

  9. Agreed. It really should be divided.

  10. The obvious solution is to split California and it’s 50 million residents into it’s own circuit. Leaving the other half of the Ninth to continue on.

    The true solution is to invent a time machine and split California into at least 3 smaller states before admitting it to the Union, so there is no need to have a monster federal circuit that has only one state in it.

    1. Or just make California its own country at this point, which the other 49 states will be fine with.

      1. Who gets the nukes?

        1. And, who gets all the taxes that the “Californicators” currently pay to the feds?

          1. Cali pays only 12% of the taxes but takes 14% of the funds. We’d be at least 4% better off without them.

            1. With mad math skillz like this, you must be a Republican.

      2. “Or just make California its own country at this point, which the other 49 states will be fine with.”

        One of the only products still made in the U.S. that has a thriving market overseas is movies. Take Hollywood out of the US and all we’ve got left is soybeans.

    2. FYI, California only has ~40 million…

      1. And losing population fast! Better make it an independent country then apply strict border controls so they can’t contaminate the rest of the US.

        1. I’m sure you can get some contributors together to build… that… wall.

  11. The only serious problem is he size of California. It is the literal elephant and leaving it as a single circuit would eventually cayse problems. as well.

    1. Why?

      1. I don’t know for sure but I’d be willing to bet the majority of the important cases originate in California, excpt for costal Oregon and Washington. The continuation of the “nutty nineth” would be even more unbalanced. That could create appelat probblems due to the unbalanced nature of the court.

        In might be be better to divide Californian with creation of an Alta California Circuit seperating LA and SF for legal purposes but balancing them with the inclusion of sane jurisdictions to the east.

        1. The current California IS Alta California. You must mean Alta Alta California.

    2. Making California into smaller states would require a functioning time machine, and go do it before there are any states in the territory currently known as California. do it right, and you can add the Southern Oregon counties.

      For your next project, go back to the Oregon Statehood meetings and have them redraw the lines, and have the first state in the Oregon territory divided east and west instead of north and south. Draw the boundary down the summits of the Cascades from the Canadian border to the Californian border. You get different representation if Portland, Eugene, Olympia, and Seattle are in the same state but Spokane, Klamath Falls, and Medford are in different ones, away from the bigger cities.

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  13. I don’t think that the number of judges is the right approach to this argument.

    I think this should be looked at in terms of population. Out of 12 geographically defined circuits, the 9th covers 1/5th of the US population.

    I also don’t get why a single state circuit should be undesirable. If that’s the case, shouldn’t the DC circuit be eliminated? After all, the DC circuit only covers one city.

    1. The DC circuit is its own special beast, more-or-less on purpose.

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