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Statement of Ranking Member Nadler for the Markup of H.R. 6754, the CIRCUIT Act

Washington, DC, September 13, 2018

Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, delivered the following opening remarks during a Judiciary Committee markup of H.R. 6754, the CIRCUIT Act:

“Mr. Chairman, proposals to split up the Ninth Circuit Court of Appeals have been floated since, at least, 1941.  But what was a bad idea more than 75 years ago still remains a bad idea today.

“Proponents of splitting up the Ninth Circuit generally mask their arguments in concerns over its size, and the supposed detrimental effect this has on judicial efficiency, and the consistency of its rulings.  However, the facts say otherwise.

“It is true that the 9th Circuit is the largest of the 11 regional circuit courts of appeal, in terms of physical area, of population covered, and of caseload.  With a district that includes Alaska, Hawaii, and the territories of Guam and the Northern Mariana Islands, it is no surprise that judges must occasionally travel great distances to serve the entire circuit.  But we have things called jet planes, video conferencing capabilities, and email that make it possible to minimize the disruption that any physical distance may cause.

“There is simply no evidence that the Ninth Circuit’s size has impeded its ability to administer justice to the people within its jurisdiction.  To the extent that there is a somewhat higher backlog of pending cases in the 9th Circuit, compared to other circuits, more resources can be devoted to resolving those issues.  And technology is being deployed in a variety of ways that help improve administrative efficiency.

“There is also no evidence to support the frequently-made claim that the Ninth Circuit is a renegade court with wild and unpredictable rulings.  Even the often-cited statistic that the Ninth Circuit is the most reversed circuit at the Supreme Court is wildly misleading.  Given the very small sample size -- because so few cases ever reach the Supreme Court -- it is hard to conclude much from the modestly higher rate of reversal that the Ninth Circuit faces by the most conservative Supreme Court in many generations.

“But these arguments are really just smokescreens.  What this debate is actually about is that conservatives simply do not like the more liberal rulings that occasionally emerge from the Ninth Circuit, and they believe they can manufacture a new circuit that will produce more conservative results.  That is a very different—and a more dangerous—matter.

“Like clockwork, we see proposals to split up the Ninth Circuit whenever it delivers a controversial decision with which conservatives disagree.  But to manipulate the federal courts in order to achieve the political results you seek is highly inappropriate.  Just as there is a nationwide movement to end legislative gerrymandering, we should resist this form of judicial gerrymandering as well.

“The bill before us today does not create a new circuit court.  Instead, it divides the Ninth Circuit into three divisions, plus an appellate division within the circuit to resolve the inevitable conflicts that may arise between divisions.  This complex and unwieldy arrangement was proposed in 1998 by a Commission Chaired by former Justice Byron White.  The proposal landed with a thud at the time, and has generated no significant support in the intervening 20 years.  I don’t see why we should suddenly resurrect this plan today, in the absence of any consensus behind it.

“Moreover, although the Courts Subcommittee held a hearing last year on proposals to split up the Ninth Circuit, there was little serious consideration given to this proposal and certainly no legislative hearing was held to flesh out in any detail how this plan would work.    

“It is also worth noting that at the Subcommittee’s hearing last year, three Ninth Circuit judges testified in opposition to splitting the Ninth Circuit, representing a majority of their colleagues on the court.  In addition, the American Bar Association and numerous other practitioners and experts who have studied this issue in great depth also oppose such a split.

“Just like the other courts proposals on the agenda today, this bill has not been properly vetted, and it has, instead, been rushed through the legislative process when there is no urgency to act.  We should take our time to consider all the alternatives and to deliberate the bill’s many ramifications in greater depth.”


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