Senator Jeff Flake (R-AZ) held a Judiciary Committee field hearing in Arizona last August to discuss splitting the Ninth Circuit Court of Appeals. According to political insiders, this unusual step of a field hearing, legislation currently in the Senate and the House, the House Judiciary subcommittee’s hearing in March 2017, and the president’s complaints about the court’s handling of his travel ban — all these actions are red flags that Trump, Flake, and other Republicans are seriously attempting to restructure the Ninth Circuit. There is no practical reason for this split other than political advantage to its proponents; and restructuring the court will be a waste of taxpayers’ money.

Senator Dianne Feinstein, Ranking Member on the Senate Judiciary Committee, says that this effort is by far the most action she has seen since 2005, when the House passed a reconciliation omnibus bill with language to break up the Ninth Circuit. The Senator is urging legal organizations, chambers of commerce, and general counsel of technology companies to get ahead of the current move and help stop it now.

In the past, the Republican-controlled Senate backed off from dividing the Ninth Circuit because of united opposition from the Court’s judges and the legal community. Now more than ever we need to duplicate that effort to push back on this proposal to divide and restructure the court.

What Should We Do?

Our best bet is to act quickly to make sure that Senator Flake’s bill goes no further than the field hearing in August. We need to convince Senate Judiciary Committee Chair Charles Grassley that this is not a fight he wants or needs.  Some of our talking points for opponents of this bill:

  • Splitting the court serves no practical purpose, as the American Bar Association and Ninth Circuit judges have said publicly. Any split in the Ninth Circuit would cost taxpayers millions of dollars to build new court facilities and restructure the court system. Public opinion and the legal community oppose it. Republicans say the split isn’t politically motivated, but circumstances indicate that it is.

If Senator Grassley is the non-partisan national leader he claims to be, he will have the sense not to take Senator Flake’s and President Trump’s bait, but rather will keep the Judiciary Committee focused on more productive matters.

You can take immediate action to stop this:

  • If you are a lawyer belonging to a Bar Association and/or other professional organizations, go to Legal Associations.
  • If your company does business within the Ninth Circuit’s jurisdiction, please ask your corporate counsel to voice opposition to the split on behalf of your company. Go to Impact on Corporate Law Practice.

Revised 9/5/2017
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