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Alaska Sen. Sullivan takes new shot at breaking up the 9th Circuit court

  • Author: Erica Martinson
  • Updated: December 2, 2017
  • Published February 6, 2017

WASHINGTON — Alaska Sen. Dan Sullivan is hoping this is the year to bring to fruition a decades-long desire of Western Republicans: splitting up the U.S. Court of Appeals for the 9th Circuit.

They say it's overloaded and overly liberal. But they'll still face the difficulty of getting a plan past California Democrats, who have traditionally wanted nothing of it.

Sullivan and Republican Sen. Steve Daines of Montana have introduced two bills. One establishes a commission to study the appeals court system and find a quick and effective way to divide up the 9th Circuit's caseload. The other would split the court into two: the 9th Circuit and a newly created 12th Circuit. The 9th Circuit would include California, Guam, Hawaii and the Northern Mariana Islands. The new circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

Lawmakers have been kicking around the idea of splitting up the 9th Circuit for decades. A statement Sullivan released with his new legislation notes that there have already been two commissions — in 1973 and 1998. Both found the court to be overburdened, Sullivan said.

The court holds nearly a third of all appeals cases pending nationally and it takes longer than any other circuit to close out its cases, Sullivan said.

Legislation to divide the courts has arisen in Congress since at least 1993, with annual efforts during President George W. Bush's terms. Alaska Sen. Lisa Murkowski sponsored such a bill in 2005.

"The population of the Ninth Circuit is nearly 85 percent bigger than the next largest circuit and covers 40 percent of our country's land mass," Sullivan said. "It is simply too large, its scope is too wide, and it has long passed its ability to provide equal access to justice under the law."

The senator noted that he was once a law clerk for the 9th Circuit, where, he said, he saw the difficulties with an overburdened system firsthand.

The 9th Circuit, which serves nine states and two territories, serves the largest population base of the nation's 13 appeals courts. Eleven numbered appeals courts and the D.C. Circuit serve geographic regions, and the Federal Circuit covers certain nationwide subject matters. Most cases related to federal administrative decision-making — regulations issued by the federal government — go through the D.C. Circuit.

Easing a crowded docket isn't the only reason why Republican lawmakers have long hoped to divide up the 9th Circuit, which is headquartered in San Francisco. Many conservatives argue that the circuit is too "liberal," particularly when it comes to matters of environment and immigration.

Only seven of the active justices were appointed by Republican presidents. The 25 judges hold court in a variety of West Coast locations outside its headquarters: Portland, Oregon; Seattle; and Pasadena, California. A few judges keep their chambers elsewhere (including Anchorage-based Judge Morgan Christen; another Alaskan, Judge Andew Kleinfeld, moved to senior status on the appeals court in 2010 and remains based in Fairbanks).

Given the states that make up the 9th Circuit, home to a massive federal land mass and U.S. borders to the north and south, it is home to a major portion of federal land management and immigration cases. On Sunday, the court issued a temporary stay on President Donald Trump's controversial immigration executive order.

Damien Schiff, a property rights attorney with the Pacific Legal Foundation who has argued before the Supreme Court, argues that the 9th Circuit handles appeals for an outsized proportion of endangered species and public lands cases.

"So I think that's a concern that is, in my view, just as significant than the more traditional administrative concerns," he said.

A decision to review an appeals court decision at the Supreme Court is rare, so the appeals court is often the last stop for decisions about Alaska's lands and resources, particularly disputes between oil and gas companies and environmentalists.

Whether the new bill will get a bump from a Republican-majority Congress and Republican White House is unclear, but the hurdle will remain in the Senate.

There, Republicans hold a 52-48 majority and 60 votes are required to clear the hurdle of filibuster and pass legislation. Without drawing Democrats into the mix, it will be difficult to pass.

Sullivan noted hopes that California Democratic Sen. Dianne Feinstein, who previously supported a commission to study the backlog in the court, would be a source of bipartisan support.

Nevertheless, Trump will have another way to shift the court, which he has already criticized for rulings during his nascent presidency: It has four openings for him to fill.

Traditionally, congressional delegations of the same party as the president offer suggestions to fill open spaces. So if Trump continues the practice, an Alaskan could get the nod with support from the all-Republican Alaska delegation.

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