August 24, 2017

Feinstein on Ninth Circuit Split: Unnecessary, Needless Waste of Taxpayer Dollars

Washington—In response to today’s Senate Judiciary Subcommittee on Privacy, Technology and the Law field hearing in Phoenix, Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today rebutted arguments in support of splitting the Ninth Circuit Court of Appeals and called on Senate Republicans and President Trump to abandon their efforts to do so.

Arguments for splitting the Ninth Circuit are based on false premises. The time it takes for the Ninth Circuit to process a case from start to finish is not significantly different from other circuit courts and splitting the circuit would waste, not save, taxpayer dollars.

“Proponents of splitting the Ninth Circuit rely on misleading arguments and it’s important to set the record straight. These efforts have nothing to do with caseload,” said Senator Feinstein. “In fact, splitting the Ninth Circuit would be a huge waste of taxpayer dollars. The simple fact is that calls by President Trump and Senate Republicans to split the Ninth Circuit are simply a political response to decisions they don’t like.”

“Proposals to split the Ninth Circuit are opposed by judges appointed by presidents of both parties as well as the broader legal community and the business community, which benefits greatly from uniformity in federal law in Western states.”

Processing Time

From June 2016 to June 2017, the median appellate case processing time in the Ninth Circuit was 13.3 months, compared to 12 months for the First Circuit and 11.4 months for the D.C. Circuit. The First and D.C. Circuit have the smallest aggregate caseloads, while the Ninth Circuit has the largest. Ninth Circuit Chief Judge Sidney Thomas noted in his testimony that “processing time is not related to circuit size.”

Cost

Splitting the Ninth Circuit would also impose considerable and needless costs on taxpayers. Ninth Circuit Chief Judge Sidney Thomas stated in testimony submitted to the committee that resources allocated to the current court “would be diverted to unnecessarily replicating fixed assets, such as buildings, libraries and technical infrastructure.”

A Phoenix headquarters for the proposed Twelfth Circuit is estimated to cost more than $136 million. The construction of places to hold court in other cities is estimated to cost up to $2.5 million dollars per location. These locations would need to be fully staffed even though they would only be used a few weeks per year.

Some proposals to split the Ninth Circuit create additional judgeships, and the total cost for each new judgeship could reach $34 million over the course of that judge’s tenure, based on the average yearly cost of each judgeship and the median length of service of current Ninth Circuit senior judges.

Reversal Rates

The Supreme Court reverses the vast majority of cases it hears, regardless of the circuit court from which the case is appealed. During the past five terms, the Supreme Court reversed 72.4 percent of all cases it decided.

Chief Judge Thomas noted that the Supreme Court “is not conducting a random sample of cases in selecting cases to hear.” Statistics suggest that the court is most likely to select a case if there are grounds to reverse the decision, or if there is a split between circuits. The Ninth Circuit has not been the most reversed court in the past 13 terms.

Backlog

Between 2001 and 2005, in an effort to eliminate its own backlog of cases, the Board of Immigration Appeals issued thousands of quick decisions in immigration cases. This move essentially offloaded more than 5,000 cases onto the Ninth Circuit, which contributed significantly to the current backlog and delay.

The Ninth Circuit is making good progress in reducing the backlog and processing time. Since 2005, the court has reduced its processing time by 30 percent—12.5 percent in the last six months alone. Chief Judge Thomas also noted in his testimony that the Ninth Circuit often grants extensions for briefing. While doing so creates delay, extensions are requested by litigants and attorneys—not the court.