Congressional Republicans, with President Donald Trump’s encouragement, are pushing ahead with a proposal to shrink the 9th U.S. Circuit Court of Appeals, the federal appellate court that covers Hawaii.

On Thursday, U.S. Sen. Jeff Flake, a Republican from Arizona, held a field hearing in his home state of the Senate Judiciary Subcommittee on Privacy, Technology and the Law, which he chairs, to discuss how and whether to split the 9th Circuit into two parts.

He has proposed legislation, S 276, co-sponsored by Sen. John McCain, also of Arizona, and Sen. Dean Heller, a Republican from Nevada, that would restructure the appellate court and reduce its size.

The 9th Circuit, the court system’s largest appellate district, encompasses 12 states, including California and Hawaii. It stretches from Alaska through the Pacific Northwest to Nevada and Arizona, and from the Northern Mariana Islands to Montana, representing about 40 percent of the country’s land mass and 20 percent of its population.

There are varying proposals about how to chop it up. One plan involves splitting off Washington, Alaska, Idaho, Montana, Nevada and Arizona, creating a new circuit court that would become a new 12th District. The present 9th Circuit would be shrunk to include California, Hawaii and the U.S. territories of Guam and the Northern Marianas.

Another plan would carve out California as a separate district of its own, and place Hawaii instead with Alaska, Arizona, Montana, Nevada and Oregon.

Judges and lawyers from throughout Hawaii are strongly opposing the proposal, saying it would hurt judicial administration in the state.

Hawaii Bar Association President Nadine Ando wrote that splitting up the 9th Circuit would be expensive and unnecessary, “as there is no compelling empirical evidence of adjudicative or administrative dysfunction in the existing structure.”

“These proposed measures are not in the public interest,” Ando wrote on Aug. 1.

In addition to the state bar association, the justices of Hawaii’s Supreme Court, and separately, a group of district, magistrate and bankruptcy judges have written to the Senate Judiciary Committee opposing the plan.

The justices of the Hawaii Supreme Court said that the 9th Circuit is large enough to be able to operate programs that help pro bono lawyers in Hawaii represent indigent clients more effectively and has presented legal training programs at the University of Hawaii William S. Richardson School of Law.

“In sum, we are concerned about the effect of fundamentally restructuring an institution that is working well in its current form,” the justices wrote on Aug. 7.

San Francisco is the headquarters of 9th U.S. Circuit Court of Appeals, the largest of the appellate courts.

Flickr.com

Critics of the 9th Circuit say that it is necessary to subdivide the appellate court because it has grown large and unwieldy.

But what conservative Republicans most dislike about it is its long reputation as a liberal appeals court where environmental advocacy, consumer protection, workers’ rights, gun control and immigration cases are more likely to prevail than elsewhere in the country.

U.S. Rep. Andy Biggs, a Republican from Arizona who has sponsored a bill, HR 250, to reconfigure the 9th Circuit, said he was proposing the measure to “free Arizona from the burdensome and undue influence of the 9th Circuit Court.”

“The 9th Circuit cannot handle the number of states currently entrapped within its jurisdiction, causing access to justice to be delayed,” Biggs said in a press release in January.

President Donald Trump has repeatedly said he would like to see the 9th Circuit split up. In April, for example, in an interview with the Washington Examiner, he said he was “absolutely” committed to looking into breaking up the court.

It was the 9th Circuit that repeatedly rejected efforts by the Trump administration to reinstate his executive order setting restrictions on visas from seven majority-Muslim countries.

There are five separate similar measures pending now in the Senate and House, all sponsored and supported by Republicans. They include HR 196, sponsored by U.S. Rep. Michael Simpson of Idaho, HR 1598, sponsored by Rep. Louis Gohmert of Texas and two measures in the Senate, including the bill introduced by Flake.

At the field hearing, Flake’s proposed legislation drew mixed reviews.

Diarmuid F. O’Scannlan, a U.S. Circuit Court judge for the 9th Circuit, an appointee of President Ronald Reagan, said the court was overdue for what he called a “much needed restructuring.”

“It is time and it has long been time to take sensible steps to deal with this disproportionality,” he said.

Sen. Jeff Flake, Republican of Arizona, holds a field hearing on judicial restructuring

Expert witnesses, including four judges, argued in Phoenix courthouse over whether to split the 9th Circuit in two or not.

Office of U.S. Sen. Jeff Flake

Richard C. Tallman, another 9th Circuit judge, an appointee of President Bill Clinton, said the court had become “the slowest appellate court in the country.”

He said that when the 9th Circuit was created in 1900, it served as the federal appellate court for about 4 percent of the U.S. population, but that as the population has shifted west, it now accounts for 20 percent. As the workload has climbed, the pace of decisions has fallen, he said.

In 2016, the median 9th Circuit appeal took 15.2 months from the filing of the initial notice of appeal to the final order, more than twice as long as the national median of 7.4 months, he said.

Chief Judge Sidney R. Thomas, who leads the 9th U.S. Circuit Court of Appeals, said that the appeals court is large but well-administered and technologically sophisticated, and that trying to create a new and parallel appeals court structure could have a “devastating effect” on judicial administration.

The 12 judges of the U.S. District Court of Hawaii said in a letter last month that they unanimously concurred with Thomas.

At the conclusion of the field hearing, Flake said he had become even more convinced of the necessity of breaking up the 9th Circuit.

There are 94 federal district courts in the United States. They try cases involving the U.S. government, constitutional law and conflicts between states and national governments.

The federal groups are organized into about a dozen regional circuits, each of which has its own court of appeals. These courts hear challenges of district court decisions. They do not conduct trials of fact but instead deliberate over whether the law was properly applied in rendering the original ruling.

Protests of appellate court rulings sometimes make it to the U.S. Supreme Court in Washington, D.C., but that court takes only about 100 cases a year, and sometimes fewer, which means that the appellate courts are for most cases the decision-makers of last resort.

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