Several days ago, I wrote a blog post about the federal Ninth Circuit Court of Appeals after its absurd over-reach to sustain the equally absurd ruling of a district court judge in Washington State, who issued a "temporary" restraining order — although curiously it had no end date — against the first iteration of President Trump's executive order suspending visas and refugee entries from certain countries.
Among those who believe in the importance of sovereignty, of immigration enforcement and control, or even of common sense, the Ninth Circuit is the court we cannot love. Time and again, it proves itself out of step with the rest of America and devoid of plain reasoning (see here, here, and here).
In the blog post mentioned above, I advocated splitting the Ninth Circuit — one of the most overturned federal circuits in the country when cases reach the Supreme Court, and one of the largest both in terms of caseload and jurisdictional reach. In regard to the split into two or even three circuit courts, I said, "I am only partly serious here; but on the other hand, I'm only partly kidding. Something needs to be done. The Ninth Circuit is out of control."
Imagine my pleasant surprise to discover that a House panel has been considering just such a measure:
Three 9th Circuit judges, including Chief Judge Sydney Thomas, Judge Alex Kozinski, and Judge Carlos Bea gave testimony before House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet. All three judges, like most of their 9th Circuit colleagues, support the current configuration and oppose splitting the court. ...
Judge Thomas told the committee that a second appeals court could not service the western states. He argued that the court has effectively built an administrative economy of scale, where non-judge mediators help adjudicate cases outside of court, court-designated officers dispense with basic motions, and a flurry of clerks manage vast reams of paperwork. ...
Judge Kozinski, a Ronald Reagan appointee, agreed with Thomas [sic] analysis of the court's administrative prowess. ... "We have a large administrative staff [and] Americans have more access to the 9th Circuit than any federal court in the country. ...The 9th Circuit is on the cutting edge of bringing justice to the people."
I have three observations:
First, notwithstanding the political pedigree of these judges on either the left or the right, that they argue against splitting the court is no surprise. Does a duke willingly divest himself of his fiefdom?
Second, as I read it, the judges have, to a very large measure, decided to cope with the caseload by farming out their work to contractors ("non-judge mediators") and subordinates who aren't in fact on the bench ("court-designated officers") although they are actually "dispensing with basic motions". What's admirable about these judges building up the size of their bureaucracy and then passing along to others their duties and responsibilities?
Third, I react viscerally to the remarks about Americans having more access to justice and the court bringing justice to the people because of its unique capacities — but only as it is currently configured, of course. This sounds to me like a bizarre confluence of noblesse oblige and leftist agitprop: "The serfs! Who will care for them if we do not? We bring them justice!"