Congressman Nadler Calls Attempts to Restructure 9th Circuit Court of Appeals a Dangerous Form of “Judicial Gerrymandering”

Mar 16, 2017 Issues: Civil Liberties, Civil Rights

WASHINGTON, D.C. -- Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet, spoke out against calls to break up the 9th Circuit Court of Appeals, including recent comments made by President Donald Trump.  During the Subcommittee hearing examining ideas for restructuring the 9th Circuit, Congressman Nadler highlighted the lack of any evidence to support conservatives’ call for a restructuring of the federal court, calling it a dangerous attempt at “judicial gerrymandering”.

Below is the full text of Congressman Nadler’s opening remarks, as delivered:

“Mr. Chairman, proposals to split up the 9th Circuit Court of Appeals have been floated since, at least, 1941.  But what was a bad idea at the time of Pearl Harbor remains a bad idea today.

“Proponents of splitting up the 9th 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.  They say that it covers too much geographical distance, and too large a population, to be effective.  They argue that because it is so large, there is administrative waste, there are procedural delays, and the judges are unable to work together to produce a consistent and rational jurisprudence.

“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 and email that make it possible to minimize the disruption that any physical distance may cause.

“And with California as the anchor state in the circuit, it is unavoidable that it will cover a large population.  Unless you were to split the State in half—which would be disastrous from the point of view of judicial coherence—a large circuit is just a fact of life.

“But there is simply no evidence that the 9th 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.  Indeed, just yesterday, the Judicial Conference recommended adding an additional 5 judges to the 9th Circuit, which would help reduce the workload per judge.  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 9th Circuit is a renegade court with wild and unpredictable rulings.  Even the often-cited statistic that the 9th Circuit is allegedly the most reversed circuit at the Supreme Court is wildly misleading.  Given the very small sample size, since so few cases ever reach the Supreme Court, it is hard to conclude much from the sometimes modestly higher rate of reversal that the 9th Circuit faces by the most conservative Supreme Court in many generations.  Indeed, the worst number cited by critics is 2.5 reversals per thousand decisions.

“What this debate is really all about is that conservatives do not like the more liberal rulings that occasionally emerge from the 9th 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 9th Circuit whenever it delivers a controversial decision with which conservatives disagree.  Whether it is ruling that the Pledge of Allegiance should not include the words “under God”; overturning restrictions on abortion or gay rights, or, most recently its unanimous decision to uphold the temporary stay on President Trump’s unconstitutional Muslim and refugee ban, the 9th Circuit has long been in the sights of Republican politicians.  Just last night, President Trump said at his campaign rally, “[p]eople are screaming, break up the 9th Circuit. And I’ll tell you what, that 9th Circuit – you have to see. Take a look at how many times they have been overturned with their terrible decisions.”

“But to manipulate the federal courts in order to achieve the political ends you seek is highly inappropriate.  Just as there is a nation-wide movement to end legislative gerrymandering, we should resist this form of judicial gerrymandering as well.

“Proponents of splitting up the 9th Circuit will present a vast array of reasons why it is too large and must be broken up.  But none of their arguments withstand scrutiny.  And the proposals they have advanced to solve the alleged harms they cite would not actually achieve the results they say they want.  Any proposed 12th Circuit would still cover a significant distance, and leave in place a large 9th Circuit based in California, all while introducing uncertainty into the law, at great taxpayer expense.

“While I believe that splitting up the 9th Circuit would be both unnecessary and unwise, I appreciate having the opportunity to hear from all of our distinguished witnesses on this issue.  I would note that all three of the judges appearing today, like a majority of their colleagues on the 9th Circuit, oppose such a split, as does the American Bar Association, and numerous other practitioners and experts who have studied this issue in great depth.  I look forward to the judges’ testimony, and the testimony of our other witnesses, and I yield back the balance of my time.”