CONYERS Statement for the Hearing on “Bringing Justice Closer to the People: Examining Ideas for Restructuring the 9th Circuit” Before the Subcommittee on Courts, Intellectual Property, and the Internet

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Today’s hearing provides an important opportunity to examine whether the Ninth Circuit Court of Appeals is able to adequately perform its duties as it is currently structured.

The hearing takes on added importance in the wake of a series of decisions in the 9th Circuit and elsewhere overturning President Trump’s Muslim/Refugee ban.  Instead of coming to terms with the legal flaws with his own executive order, President Trump has chosen to attack the 9th Circuit, which has said is “in chaos” and “frankly in turmoil.”   Last night, after learning of the Hawaii court’s decision again rejecting his ban he said “people are screaming to break up the Ninth Circuit … You have to see how many times they have been overturned with their terrible decisions.”

Of course, none of what the President has charged about the 9th Circuit is true.  The Ninth circuit is as well organized as any in the country.  Of the very few Ninth Circuit cases the Supreme Court takes up, a significant portion are overturned, but that’s true for every circuit, several of which are overturned at a higher rate than the Ninth Circuit.  And overall less than 1/10 of 1% of Ninth Circuit decisions are overturned by the Supreme Court.

The reality is, this is not a new debate President Trump has brought us to.  It is one that we have had for decades.  Although I will not speculate about why there continues to be such interest by some of my Republican colleagues to divide the Ninth Circuit, there are several points we should keep in mind.

To begin with, splitting the Ninth Circuit would not “bring justice closer to the people.”  Instead, it would likely result in further delay, reduced access to justice, and wasted taxpayer dollars.

If the Ninth Circuit were divided there would not be sufficient judicial resources, particularly with respect to addressing the significant caseload demands of the district and bankruptcy courts.

Although legislative proposals introduced this Congress take differing approaches to dividing the Ninth Circuit and creating a new Twelfth Circuit, inevitably all of these have one common problem.  Such restructuring would result in a significant financial cost to American taxpayers because millions of dollars would be needed to construct a new Circuit headquarters and for other costs.

Another concern I have is that splitting the Ninth Circuit would do little to improve judicial efficiency.

And, none of the legislative proposals would actually resolve the heavy caseload problem because a clear majority of the Ninth Circuit cases come from California. 

Any circuit that includes all of California will still have the largest number of judges and appeals and it would still serve the largest population. 

Finally, I am particularly skeptical of any legislative proposal ostensibly intended to assist certain entities when, in fact, those very same entities oppose or question the need for such legislative “fix.” 

Dividing the Ninth Circuit is opposed by a majority of the judges in that Circuit as well as by the bar, including the American Bar Association. 

In fact, the White Commission, which Congress established to study this issue, concluded in 1998 that splitting the Circuit was impractical and unnecessary.

So for these reasons, I am opposed to dividing the Ninth Circuit. 

Nevertheless, I thank the Chairman for holding this hearing and look forward to the testimony from today’s esteemed witnesses.

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