Sullivan’s bid to split the 9th Circuit Court of Appeals gets Senate attention

WASHINGTON — Alaska Sen. Dan Sullivan's bid to split the U.S. Court of Appeals for the 9th Circuit is gathering momentum in the U.S. Senate.

Sullivan hopes a new approach to long-standing effort to split up the court will gain support from Democrats by including the recommendations of a nonpartisan panel to add new judges in California and over-stressed courts across the country.

But splitting the 9th Circuit is also a long-standing goal of conservative activists who view it as the most liberal appeals court in the nation, noted for its decisions on immigration, environmental regulations and other hot-button issues, like a ruling that children do not have to say the Pledge of Allegiance. The drive to split up the court has deeply partisan roots that will make Sullivan's quest all the more difficult in a deeply divided Congress.

On Tuesday, a Senate Judiciary subcommittee held a hearing to discuss the findings of a standing panel of federal judges that recommended adding district court judges across the country and five new judges to the 9th Circuit appeals court. Sullivan does not sit on the committee.

That recommendation is the basis for a new bill introduced by Sullivan and Sen. Steve Daines, R-Mont., S.3259. Prior legislation introduced by the pair would have split the 9th Circuit, but did not offer new judges in other courts.

Appeals courts make up the second-highest spot in the nation's judicial system, the last stop before the Supreme Court, which hears only about 1 percent of cases appealed to it each year.

The 9th Circuit, headquartered in San Francisco, has satellite courts across the west. It covers nine states — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington — and two territories, Guam and the Northern Mariana Islands. It oversees cases about numerous Alaska-specific issues, including issues regarding land and water rights and Alaska Native legal issues.


The new bill would create a 12th Circuit Court of Appeals with 14 judges headquartered in Seattle. It would cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington. It would also implement the recommendations of the judicial conference, adding five appellate judges to the 9th Circuit, 52 district judges throughout the country and making eight temporary district judge seats permanent.

"This is a different strategy that we think has a lot more promise," Sullivan said. The bill adds 17 new district court judges in California, along with others elsewhere. "So I'm hoping that even the California senators will see this as something that will benefit their constituents," Sullivan said.

So far they're not biting. "It's a work in progress," Sullivan said.

The 9th Circuit has a reputation in the legal field as a more liberal court. President Donald Trump has even taken aim at the court in tweets and interviews, accusing it of having a high rate of cases overturned by the Supreme Court and expressing a desire to break it up. (It does not have the highest rate of overturned rulings among appeals courts, according to a Washington Post fact check. The Supreme Court does overturn most rulings; that's why the justices select those cases for review.)

But Sullivan argues that it is not the court's liberal leanings that are at the root of his bill — it's the massive size and backlog of cases the court faces. "My argument is not ideological at all," he said in an interview.

The court covers 20 percent of the U.S. population, more than 60 million people, compared to the next largest circuit, the 11th, which serves more than 35 million Americans. Judges in the 9th Circuit have the nation's highest caseload, there is a long backlog, and there are so many judges — 29 — that they cannot all sit on the bench together to perform "en banc" reviews of prior judgments, according to testimony at the hearing Tuesday.

It takes too long to work through cases, "which means Alaskans get less access to justice, timely justice, than anyone else in the country," Sullivan said.

Sullivan said two of the witnesses chosen to speak at the hearing were selected at his request: Brian Fitzpatrick, a professor at Vanderbilt Law School, and Diarmuid O'Scannlain, a Portland, Oregon-based judge on the 9th Circuit. O'Scannlain was a Reagan appointee who took "senior status," a form of semi-retirement, in 2016.

O'Scannlain called the 9th Circuit the "federal judiciary's 800-pound gorilla."

"Nine states, eleven thousand annual case filings, forty-six judges, and sixty-five million people are too many for any non-discretionary appeals court to handle satisfactorily," he said in his testimony. "The sheer magnitude of our court and its responsibilities negatively affects all aspects of our business, including our celerity, our consistency, and our clarity."

O'Scannlain's belief is not shared by all of his colleagues on the 9th Circuit bench. Others, including Alex Kozinski, another Reagan appointee to the court, testified in the House last year that breaking up the court would waste taxpayer dollars without alleviating administrative concerns.

Liberal group People for the American Way argued then that Republicans are simply trying to "game the system."

"The radical idea is not to do it, and we're going to continue to push it," Sullivan said. "When people say, 'Hey, you guys will never get this done,' I say, 'That's what they said about ANWR.' "

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Erica Martinson

Erica Martinson is a former reporter for the Anchorage Daily News based in Washington, D.C.