The workload argument for splitting the Ninth Circuit

From Mark Brnovich and Ilya Shapiro in the Wall Street Journal (may require subscription).  Key grafs:

The Ninth 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 median. Judge Richard Tallman, a Clinton appointee on the Ninth Circuit who favors a split, told the Senate last summer that a legal brief in a pending appeal “is frequently years old and contains stale case law, by the time we can get to it.”

A second problem is the court’s unpredictability. Federal appeals courts hear cases in three-judge panels. But the Ninth Circuit has 29 judgeships, meaning there are more than 3,600 combinations of three. Judges can go years before hearing cases with some of their colleagues.

The composition of the Ninth Circuit is, of course, as much a political question as a legal and organizational one. But it’s worth considering–as Brnovich and Shapiro remind us–that the question is not purely political. The circuit’s sheer size has a dramatic impact on its efficiency, predictability, and workload. Splitting it may well be the right thing to do.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s