Document Type

Response or Comment

Publication Date


Publication Title

Hearing Before the House Committee on the Judiciary -- Subcommittee on Courts, Intellectual Property, and the Internet


Congress is once again considering legislation to divide the largest of the federal judicial circuits, the Ninth. On March 16, 2017, a subcommittee of the House Judiciary Committee held a hearing on “Bringing Justice Closer to the People: Examining Ideas for Restructuring the Ninth Circuit.” This statement was submitted for the record of the hearing.

The statement addresses three questions. First, what considerations should Congress take into account in determining whether to restructure the Ninth Circuit? Second, if restructuring is desirable, how should the legislation be drafted? Third, how do pending House bills measure up?

The burden is on those who would alter an existing structure to show that the structure is seriously deficient and that their particular proposal would be an improvement on the status quo. On the evidence now available, the proponents of dividing the Ninth Circuit have not met their burden. But the arguments made by opponents of the split are not very compelling either.

In considering whether to divide the present Ninth Circuit into two new circuits, Congress may want to look separately at the likely consequences for the circuit that includes California and for the circuit that does not. If circuit division would benefit the legal communities and the citizenry in the states of the proposed new non-California circuit, and the division can be accomplished without disadvantaging the circuit that includes California, that might be enough to justify the reorganization.

If Congress follows that approach, the legislation should be carefully drafted to avoid the flaws that made prior proposals so injurious, particularly to the circuit that would include California. In particular, each of the new circuits should be composed of at least three states. And the legislation should allocate to the new Ninth Circuit a sufficient number of judgeships to assure that the per-judge caseload in that circuit would be no greater than it is today, and preferably smaller.