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Breaking Up the Ninth Circuit Is Hard to Do

By William Vogeler, Esq. | Last updated on

After another legal setback, President Trump said Tuesday he was 'absolutely' considering proposals to split the U.S. Ninth Circuit Court of Appeals because of its 'ridiculous rulings' against him.

Trump has repeatedly criticized judges since his first and second travel bans were overruled, and spewed more of the same after the latest decision knocking down his order against sanctuary cities. He said his opponents were "judge shopping" because of the circuit's reputation as a liberal jurisdiction.

"There are many people that want to break up the Ninth Circuit," he said. "Everybody immediately runs to the Ninth Circuit because they know, that's like, semi-automatic."

While Trump's tirade is new, the call to reorganize the Ninth Circuit is not. Republicans have been complaining about the "Ninth Circus" since Jimmy Carter was president.

"The Ninth Circus"

The Ninth Circuit started to earn a reputation as a liberal circuit after Carter appointed 15 judges to the court in the 1970s. "Carter appointed some of the most liberal judges ever, to any court," said Judge Alex Kozinski, a conservative Ninth Circuit judge appointed by President Ronald Reagan.

Conservatives have wanted to split the circuit for decades, repeatedly floating legislation to create a new Twelfth Circuit. Sens. Jeff Flake and John McMain of Arizona introduced such a bill again in February.

Sen. Ted Cruz hopped on the bandwagon this week, calling for a restructured Ninth Circuit on "The Jack Riccardi Show." He said many Western states have been weighed down by California.

"California has a ton of very liberal, left-wing judges that they put on the Ninth Circuit," he said. "I think a lot of the other Western states would love to be freed from that corrosive left-wing influence."

The Largest Circuit

The Ninth is the largest circuit in the country, with jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington as well as Guam and the Northern Marina Islands. As the Washington Post notes, the appellate judges hear cases from 112 district court judges -- taking on thousands more cases than any other circuit.

Critics say the circuit is too big to manage. They say cases would be resolved more quickly if the circuit were split up. California, they complain, has more cases than any other state in the jurisdiction.

What It Would Take to Break Up the Circuit

Splitting up the circuit would theoretically create more judgeships and opportunities for Trump to make appointments. Democratic appointees outnumber Republican appointees on the appellate bench by about two to one. So, there certainly is an incentive for a Republican administration.

But breaking up the circuit would literally require an act of Congress. Legal commentator and former Judge Andrew Napolitano said Republicans would need 60 votes in the Senate; there are 52. If it were an easy thing to break up the Ninth Circuit, it likely would have happened long ago.

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