Donald Trump has already left his mark on the federal judiciary through numerous selections for the bench. But he also has the opportunity to agitate for another lasting judicial reform: the breakup of the 9th U.S. Circuit Court of Appeals.
The 9th Circuit, which includes Nevada, is by far the largest of the 13 federal appellate courts, covering nine Western states and two Pacific island territories. It has 29 active judges and 20 senior jurists, dwarfing any other appeals court.
Writing in the Wall Street Journal last week, Arizona Attorney General Mark Brnovich and Ilya Shapiro of the Cato Institute note, “The 9th Circuit has an astonishing backlog, accounting for nearly a third of all pending federal appeals. It takes an average of 13 months to decide a case, the longest of any circuit and almost five months more than the national average.”
Common sense would dictate that court be split into two or more manageable districts. But politics dominates the issue. The 9th Circuit is the nation’s most liberal appellate court, and Democrats are wary of deconsolidation. But it makes little sense to defend the status quo on political grounds if the result is a delay in the administration of justice for those involved in litigation.
Early last year, Arizona’s U.S. senators, John McCain and Jeff Flake, both Republicans, offered a proposal to spin off a new court to include Arizona, Nevada, Idaho, Montana, Washington and Alaska. The legislation was similar to a 2004 measure that passed the House but died in the upper chamber.
Congress should again review the McCain-Flake proposal. The only issue at hand should be whether the current configuration of the 9th Circuit promotes efficiency and timely justice for the residents of the Western states. The answer seems abundantly clear.