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Sen. Cruz: Restructuring the Ninth Circuit and Improving our Judicial Administration Should Not Be a Partisan Issue

Participates in hearing examining challenges facing the Ninth Circuit

WASHINGTON, D.C. - U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, participated in a Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts hearing entitled, "Oversight of the Structure of the Federal Courts." There, he questioned Professor Brian T. Fitzpatrick and Hon. Diarmuid O'Scannlain on the structural challenges facing the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit accounts for nearly a third of all pending appeals, and currently takes an average of 13 months to decide a case, causing a concerning level of backlog for its pending cases.

Watch Sen. Cruz's full line of questioning here. A full transcript is below.

Sen. Cruz: Thank you Mr. Chairman. Let me start by echoing the remarks of my colleague, the Senior Senator from Texas, about universal injunctions and to note in particular, Professor Fitzpatrick as you referenced, that Justice Thomas in the so-called travel ban case wrote a concurrence there that I think was a very important opinion. And, I think as a result of Justice Thomas' opinion, I would fully expect competent lawyers for litigants dealing with injunctive relief and dealing with plaintiffs seeking universal injunctions to raise those issues. I fully expect that the lower courts, the courts of appeals, and ultimately the Supreme Court will have to confront that question. But I think that Justice Thomas' opinion rightly focuses on the impropriety of a District Judge engaging in nationwide policy making, rather than simply adjudicating a case or controversy between actual litigants before that judge. Let's shift, as we have been for most of this hearing, to the Ninth Circuit. Professor Fitzpatrick, it's been discussed at some length that the Ninth Circuit accounts for nearly a third of all pending appeals. And, it takes an average of 13 months in the Ninth Circuit to decide a case, which is the longest of any circuit, and almost five months more than the national median. To what extent do you attribute this backlog and the delay in decisions in the Ninth Circuit to the very large size of the Ninth Circuit?

Prof. Brian T. Fitzpatrick: I think there's a direct correlation, and I think if you even look more broadly around the country, you'll see the biggest circuits tend to have the biggest backlogs. It's just a matter of administrative difficulty to handle that many cases. And, you know, part of the difficulty comes from the fact you've got so many three judge panels on the Ninth Circuit, with so many cases, that half of the job is keeping up with what the other panels are doing. It's very difficult to do that. And the Ninth Circuit ends up with a lot of what we call ‘intracircuit splits,' where different panels of the Ninth Circuit had decided the same question differently, and so that leads to a whole bunch of additional litigation to figure out which panel is the one that should be followed and which one shouldn't be followed. I just think that it's pretty obvious that when you have that many people running around, it's just hard to keep track of everyone.

Sen Cruz: Well, of course that goes right to the heart of the purpose of the circuit court system: to ensure uniformity of rules of law that people can know and plan and behave accordingly. Judge O'Scannlain, you've served on the Ninth Circuit a long time. As a practical matter, what challenges are raised by its size, and in your judgment, how would it operate better if it were a size more commensurate with the other circuits?

Hon. Diarmuid O'Scannlain: Well, the biggest problem on that issue is the state of California being such a single center. The state of California accounts for 70 percent of all the cases. One state accounts for 70 percent of all the cases of nine states. I suppose, to directly answer your question, the problem is best highlighted by what Prof. Fitzpatrick said. Intracircuit conflicts are the biggest problem. In any given month, we would have nine separate panels sitting together. If you can imagine that, nine three-judge panels sitting. One panel in Honolulu, four panels, let's say, in Pasadena, two or three in San Francisco, one in Portland, one in Seattle, and one in Anchorage. We really try to make it work. But when you have that many panels sitting at the same time, sometimes there are issues that are on different panels, which are really the same issue, and the results can be inconsistent. These are what we call ‘intracircuit conflicts.' The national system is built to resolve intracircuit conflicts, because it's quite possible that the Second Circuit would come up with a different response than, let's say, the Tenth Circuit on a particular issue. But that is not something that should be allowed to happen within the circuit. But because of our size, that happens, regretfully, it happens too often. We do our best to try to deal with it by calling cases ‘en banc.' Sometimes, they don't get enough judges who agree to take it en banc. The intracircuit conflict continues. But that would be a very important aspect.

Sen. Cruz: And one final question, Professor Fitzpatrick. There has been some discussion that this issue of dividing the Ninth Circuit is driven by some of the recent decisions either by district courts or the Ninth Circuit that have ruled against the Trump administration. Now, the Ninth Circuit has for a long time had I think a well-deserved reputation of being far to the left and the most reversed circuit. Indeed, I remember back in the mid-90s when I was clerking at the Supreme Court, there was a running joke that there was a macro in Word Perfect for drafting an opinion that would automatically populate the opinion with the words, ‘The decision below was issued by the Ninth Circuit. Accordingly, we reverse.' And the reason for that joke is the frequency with which that was in fact the case, and in fact, the frequency with which the Ninth Circuit was reversed unanimously. And I would note one of the greatest predictors of a reversal was a Judge O'Scannlain dissent, which often was a canary in a coal mine. But my question, Professor Fitzpatrick, is there any reason why breaking up the Ninth Circuit should be a partisan issue? For those on the Democratic side of the aisle who may be fans of the decisions of the more liberal judges on the Ninth Circuit, nobody is talking about removing them from the bench or their losing the ability to adjudicate cases or anything else. We're talking about simply is there any reason this has to be a partisan divide?

Prof. Brian T. Fitzpatrick: Well Senator, I remember that macro very well. It was "control-N" on my computer. But Senator, I think the only reason not to split the Ninth Circuit is partisan. We've been talking about it for 40 years, well before there were any cases against the Trump administration. Every time another circuit has gotten this big, it's been split. I think the only reason we haven't split this one is because some members of this body want to keep the Democratic majority of the Ninth Circuit exercising its power over the biggest portion of the country as possible. So, I think all of the intellectual fair-minded reasons are on the side of splitting it. The only reason not to is partisan.

Sen. Cruz: Thank you.