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Point of View: Time to split the 9th Circuit Court of Appeals


When I am in Washington D.C., I like to get out and try to get a morning run in and look at the beautiful monuments and memorials. I often run past the U.S. Supreme Court, and read the inscription etched in front: “Equal Justice Under Law.”

 This simple concept defines us as Americans. All Americans should feel assured that when they seek justice, the burdens they encounter, and the time it takes to achieve justice won't be smaller or greater depending on the part of the country in which they live.

Unfortunately, that is not the case for citizens who live in one of nine states and 40 percent of the U.S. territory over which the U.S. Court of Appeals for the Ninth Circuit has jurisdiction, including Alaska. Why? The circuit covers 65 million people—one in five Americans. That’s almost two times as many people as there are in the next biggest circuit in the U.S. appellate system, and it is almost three times the average population of all the other U.S. courts of appeal. It’s simply too big to provide equal justice under the law.

Here are some troubling statistics: Including senior judges, the Ninth Circuit has 40 judges on the court today — 47 once vacancies are filled — 18 more judges than the next largest circuit. Because of its size, it’s the only circuit court in the country where a citizen is denied a hearing before all of the judges in the court. On average, it takes 40 percent longer for the Ninth Circuit Court to dispose of an appeal than in any other circuit in the country. At the end of a recent 12-month period, the Ninth Circuit Court had almost 14,000 pending appeals; the next largest circuit court had about 4,700. In fact, almost one third of all pending federal appeals are backlogged in the Ninth Circuit. The maxim, “Justice Delayed is Justice Denied,” unfortunately is fully applicable to the citizens seeking justice from the Ninth Circuit Court.

Because of its size, pressures, and resulting inefficiency, the court has come up with creative and questionable procedural shortcuts. I witnessed this first-hand when I had the honor to serve as a judicial law clerk for Ninth Circuit Judge Andrew Kleinfeld in Fairbanks. I believe such shortcuts shortchange justice for tens of thousands of Americans every year in this court of appeals.

For all these reasons—and others—it’s time to split the Ninth Circuit and create another circuit. I, along with Senator Daines from Montana, have introduced S. 3259 the Judicial Efficiency Improvement Act of 2018, which would split the Ninth Circuit Court of Appeals into two circuits: the Ninth and the Twelfth Circuits. The reconfigured Ninth Circuit would then be comprised of California, Guam, Hawaii, and the Northern Mariana Islands. The new Twelfth Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

On July 31, at my request, the Senate Judiciary Committee held a hearing on the structure of the federal courts with a focus on splitting the Ninth Circuit. Witnesses included Judge Diarmuid O’Scannlain, a Senior Judge on the Ninth Circuit Court of Appeals, who testified that splitting the Ninth Circuit was inevitable, and Professor Brian Fitzpatrick who noted that because of its lack of uniform law, the Ninth Circuit for decades has been revered by the Supreme Court at a much higher rate than other courts. As he notes, between 1994-2015, it “has been reversed more than 2.5 times as often as the least reversed Circuits and 44 percent more often than the next closest Circuit (the Sixth).”

 Many legal experts, including both conservative and liberal Supreme Court Justices, agree. In 1999, Justice John Paul Stevens said the Ninth Circuit was “so large that even the most conscientious judge probably cannot keep abreast of her own court’s output.” In 2007, Supreme Court Justice Anthony Kennedy also told Congress that the court was “too large,” and “should be split.” Last year, Judge Kleinfeld also weighed in before Congress for a split. “We judges on the Ninth Circuit have too much power over too many people,” Judge Kleinfeld said.

As citizens in other states already know, smaller courts of appeals have more knowledge of their communities and their states.

For example, most of the 29 judges on the Ninth Circuit Court live in cities and come from California. They can’t imagine that our highways tend to be rivers, and so they see few problems when access to them is prohibited. As Judge Kleinfeld put it, “the first word a California judge may associate with ‘gun’ may be ‘criminal,’ while for an Alaska, Idaho, or Montana judge it may be ‘hunter’ or the phrase ‘bear protection.”

 In 1970, U.S. Supreme Court Chief Justice Warren Burger warned that “a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.” He cautioned that inefficiency and delay in our courts of appeals could destroy that confidence. Unfortunately, under the jurisdiction of America’s largest, slowest, and most unwieldy court of appeals, that confidence is already eroding. I will continue to press for equal access to justice for Alaskans by splitting this behemoth court.

Sen. Dan Sullivan, R-Alaska, has served in the U.S. Senate since 2015.