Gov. Ducey wants AZ out of 9th Circuit

Posted at 2:28 PM, Jan 28, 2016
and last updated 2016-01-28 22:00:08-05

Arizona's Republican governor launched a renewed effort Thursday to break up the 9th U.S. Circuit Court of Appeals, citing reasons outside longstanding GOP complaints that the court covering nine Western states is too liberal.

Gov. Doug Ducey said Arizona should move into a different region or Congress should create another circuit because of the court's extreme caseload, large geographic area and high rate of cases overturned by the U.S. Supreme Court.

Ducey has the backing of Arizona U.S. Sen. Jeff Flake and U.S. Rep. Matt Salmon, both Republicans. Ducey's staff said legislation is expected to be introduced in Congress soon, and Flake said he is drafting a bill.

Republicans have floated efforts to split the circuit for decades, many citing the court's liberal slant but also noting the high caseload. All the proposals, including the last in 2005, have failed in Congress.

Sen. Dianne Feinstein, D-California, called the 2005 push "politically motivated." Feinstein holds the same position on the new effort and believes a better solution to solving the caseload issue is to add judges, an aide said. 

The Arizona governor's staff said politics did not play into the move and it was not a way to burnish the governor's conservative credentials.

"I think it's hard to call this a stunt when you look at the broad support and the broad cries for this that have come from current Supreme Court judges, current 9th Circuit judges and past members of Congress," said Ducey's deputy chief of staff, Danny Seiden. "It's all about good government, it's about Arizonans being served better by the judiciary, which is an essentially function of government."

That's hogwash, said Dan Pochoda, the longtime senior counsel for the American Civil Liberties Union of Arizona. He said there's no great concern in the state about the 9th Circuit caseload.

"This would not be asked for except for dissatisfaction by Arizona in the results from the 9th Circuit," Pochoda said. "You talk about judge shopping, well, this is court shopping."

Pochoda said the 9th Circuit is much less liberal now than it was perceived to be a decade ago, and its cases are overturned at a higher rate than other circuits simply because the Supreme Court takes up more cases from it.

Ducey wants Arizona removed from the San Francisco-based 9th Circuit, either by merging it with the Denver-based 10th Circuit or by adding a 12th Circuit.

Flake said legislation he's drafting would put Arizona, Montana, Nevada, Idaho and Alaska in the new 12th Circuit. Those states share similar profiles in terms of the legal issues they present, including natural resources and Native American populations, he said.

"Arizonans are waiting too long for justice, and for no other reason than the 9th Circuit is oversized and overworked," Flake said. "Establishing an additional circuit would lessen that burden across the West and ensure that the people of Arizona finally get the swift access to the courts that they are entitled to."

Under his plan, the 9th Circuit would be left with three Democratic-leaning states, California, Oregon and Washington, and two U.S. territories, the Northern Mariana Islands and Guam.

The current 9th Circuit has the most judges of any of the federal appeals courts, at 29, and covers the highest number of residents, at nearly 62 million.