Idaho’s Republican lawmakers are backing a bill to get the state out from under the thumb of the court conservatives love to hate.
U.S. Sen. Mike Crapo introduced a bill Wednesday to split the Ninth Circuit in two, leaving California, Guam and Hawaii in the Ninth and putting Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington in a new 12th Circuit. Five western Republicans, including Crapo’s seatmate Sen. Jim Risch, are co-sponsoring it.
U.S. Rep. Mike Simpson, who sponsored a bill to break the Ninth into two circuits in 2017, introduced a bill almost identical to Crapo’s in January. (It differs slightly on how the judges would be apportioned.) The bill has yet to get a hearing in the Democratic-controlled House. Former U.S. Sen. Jeff Flake, R-Ariz., introduced the same bill in 2017; Flake didn’t run for re-election in 2018, leaving Crapo the only remaining Republican from the Ninth Circuit on the Senate Judiciary Committee.
“We’re trying to fashion something that we think can pass both the House and Senate,” said Crapo spokesman Lindsay Nothern. Nothern said it incorporates aspects of a similar bill proposed by Sen. Dan Sullivan, R-Alaska, as well as the bill that split the current 11th Circuit off from the Fifth in 1981.
The bill would create five new judgeships, allocating 21 judges total to the Ninth and 13 to the 12th to align with population size, according to a news release from Crapo.
The circuit is the largest in the nation at nine states and two territories, covering 40 percent of America’s land mass and 20 percent of its population. Crapo said in a news release that it accounts for nearly a third of all pending federal appeals and takes an average of 13 months to decide a case, almost five months longer than the national average.
“Established in 1890, the Ninth Circuit covers a massive portion of the West, which has experienced explosive growth across several states, including Idaho,” Crapo said. “This unbridled growth has created significant caseloads for the Court to consider. The sheer size of the Court creates an astonishingly lengthy journey for those seeking justice. Splitting the Ninth Circuit would allow a more expedient route to justice for individuals in the West.”
The Ninth Circuit’s caseloads are high — in the year from July 1, 2017 to June 30, 2018 the circuit represented 22 percent of appeals and 23 percent of the total national federal court caseload, according to court statistics — although the number of cases both there and nationally have declined somewhat since President Obama’s second term. In the year ending June 30, 2018, 49,220 appeals were filed nationally, down from 60,099 in 2016 and 56,360 in 2013. Appeals in the Ninth Circuit have been steadily declining over the past five years — there were 12,669 in the year ending in mid-2013 and 10,661 in 2018.
Conservatives have long perceived the San Francisco-based court as exceptionally liberal, although it has been getting less so — President Trump has made several appointments to the court, and as of now 13 of its 29 judges were picked by Republican presidents.
Both state lawmakers and national Republicans frequently blame the court for overturning legislation and policies they support. One prominent recent example was in 2017, when the court issued a temporary injunction against Trump’s executive order to ban residents of several Muslim-majority countries from entering the United States. This prompted then-Attorney General Jeff Sessions to call it the “very, very liberal Ninth Circuit.” Trump has lambasted the court repeatedly.
“First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings,” the president tweeted in April 2017. “See you in the Supreme Court!”
First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!— Donald J. Trump (@realDonaldTrump) April 26, 2017
“It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts,” he tweeted in January 2018.
It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts.— Donald J. Trump (@realDonaldTrump) January 10, 2018
Gov. Brad Little even cited the court as part of his reason for vetoing a bill that would have raised the threshold to get an initiative on the ballot.
“The bills invite legal challenges that likely will result in the Idaho initiative process being determined by the liberal Ninth Circuit Court of Appeals — the same Circuit that recently decided Idaho should pay for gender reassignment surgery for a transgender inmate serving time for molesting a child,” Little wrote in his veto letter.
If this bill were to become law while Trump is still president — and it would have to pass the House for that to happen — it would give Trump and the Republican-majority Senate the opportunity to appoint the five new judges.
Crapo spokeswoman Melanie Baucom said caseloads, not politics, are what’s behind the bill.
“Sen. Crapo wanted to introduce the bill because there’s just a … delay in the processing of a lot of the claims,” she said. “This legislation has been introduced many times, but this is the first time Crapo’s introduced it.”
Baucom said Crapo has been “working with closely with the Judiciary Committee” on the bill and is hopeful it will get a hearing.
“I think they’re supportive,” she said.
Nothern said getting the Ninth Circuit split has “historically been a tough battle,” but that support was growing due to the court’s backlog.
“The caseload of the court is kind of getting out of control, and we just need to have more opportunities to hear more cases in a timely manner,” he said.