Breaking up the 9th Circuit Court would improve access to justice

When I am in Washington, D.C., I like to get out and try to get a morning run in and look at the beautiful monuments and memorials. I often run past the U.S. Supreme Court, and read the inscription etched in front: "Equal Justice Under Law."

This simple concept defines us as Americans. All Americans should feel assured that when they seek justice, the burdens they encounter and the time it takes to achieve justice won't be smaller or greater depending on the part of the country in which they live.

Unfortunately, that is not the case for citizens who live in one of nine states and 40 percent of the U.S. territory over which the U.S. Court of Appeals for the 9th Circuit has jurisdiction, including Alaska. Why? The circuit covers 65 million people — 1 in 5 Americans. That's almost two times as many people as there are in the next biggest circuit in the U.S. appellate system, and it is almost three times the average population of all the other U.S. courts of appeal. It's simply too big to provide equal justice under the law.

Here are some troubling statistics: Including senior judges, the 9th Circuit has 40 judges on the court today — 47 once vacancies are filled — 18 more judges than the next largest circuit. Because of its size, it's the only circuit court in the country where a citizen is denied a hearing before all of the judges in the court. On average, it takes 40 percent longer for the 9th Circuit Court to dispose of an appeal than in any other circuit in the country. At the end of a recent 12-month period, the 9th Circuit Court had almost 14,000 pending appeals; the next largest circuit court had about 4,700. In fact, almost one-third of all pending federal appeals are backlogged in the 9th Circuit. The maxim, "justice delayed is justice denied," unfortunately is fully applicable to the citizens seeking justice from the 9th Circuit Court.

Because of its size, pressures, and resulting inefficiency, the court has come up with creative and questionable procedural shortcuts. I witnessed this firsthand when I had the honor to serve as a judicial law clerk for 9th Circuit Judge Andrew Kleinfeld in Fairbanks. I believe such shortcuts shortchange justice for tens of thousands of Americans every year in this court of appeals.

For all these reasons — and others — it's time to split the 9th Circuit and create another circuit. I, along with Sen. Steve Daines from Montana, have introduced S. 3259, the Judicial Efficiency Improvement Act of 2018, which would split the 9th Circuit Court of Appeals into two circuits: the 9th and the 12th circuits. The reconfigured 9th Circuit would then be comprised of California, Guam, Hawaii, and the Northern Mariana Islands. The new 12th Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

On July 31, at my request, the Senate Judiciary Committee held a hearing on the structure of the federal courts with a focus on splitting the 9th Circuit. Witnesses included Judge Diarmuid O'Scannlain, a senior judge on the 9th Circuit Court of Appeals, who testified that splitting the 9th Circuit was inevitable, and Prof. Brian Fitzpatrick, who noted that because of its lack of uniform law, the 9th Circuit for decades has been reversed by the Supreme Court at a much higher rate than other courts. As he notes, between 1994-2015, it "has been reversed more than 2.5 times as often as the least reversed Circuits and 44 percent more often than the next closest Circuit (the Sixth)."

Many legal experts, including both conservative and liberal Supreme Court Justices, agree. In 1999, Justice John Paul Stevens said the 9th Circuit was "so large that even the most conscientious judge probably cannot keep abreast of her own court's output." In 2007, Supreme Court Justice Anthony Kennedy also told Congress that the court was "too large," and "should be split." Last year, Judge Kleinfeld also weighed in before Congress for a split. "We judges on the 9th Circuit have too much power over too many people," Judge Kleinfeld said.

As citizens in other states already know, smaller courts of appeal have more knowledge of their communities and their states.

For example, most of the 29 judges on the 9th Circuit Court live in cities and come from California. They can't imagine that our highways tend to be rivers, and so they see few problems when access to them is prohibited. As Judge Kleinfeld put it, "the first word a California judge may associate with 'gun' may be 'criminal,' while for an Alaska, Idaho, or Montana judge it may be 'hunter' or the phrase 'bear protection.'"

In 1970, U.S. Supreme Court Chief Justice Warren Burger warned that "a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people." He cautioned that inefficiency and delay in our courts of appeals could destroy that confidence. Unfortunately, under the jurisdiction of America's largest, slowest, and most unwieldy court of appeals, that confidence is already eroding. I will continue to press for equal access to justice for Alaskans by splitting this behemoth court.

Dan Sullivan, elected in 2014, is Alaska's junior U.S. senator. Before being elected to the Senate, he served as commissioner of the state Department of Natural Resources from 2010-2013 and as Alaska Attorney General from 2009-2010.

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