April 26, 2017

Has Trump been thinking about breaking up 9th Circuit?

"Absolutely, I have. There are many people that want to break up the 9th Circuit. It's outrageous."
"Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that's like, semi-automatic," Trump said.

His comments came one day after U.S. District Judge William Orrick temporarily blocked Trump's efforts to withhold funds from any municipality that refuses to cooperate with immigration enforcement officers....

"You see judge shopping, or what's gone on with these people, they immediately run to the 9th Circuit," Trump said. "It's got close to an 80 percent reversal period, and what's going on in the 9th Circuit is a shame."

22 comments:

Oso Negro said...

At the rate Trump's first term is going, I am fully expecting a precipitous action to be taken against the Democrat judges.

3rdGradePB_GoodPerson said...

Nice to see a goal for the second hundred days now that taxes, health care and international trade imbalances were solved during the first hundred.

The Bergall said...

He took the red meat. Learn to keep your trap shut and let others do ranting.

Chuck said...

As Althouse knows, this wasn't "judge shopping." If you are the County of Santa Clara, and you have a federal question dispute, the place for you to file is in the District Court for the Northern District of California. And the judicial case assignment is done by what is called "the Wheel."

And nobody is going to "break up the Ninth Circuit" as a means to punish them. We have been thinking about breaking up the Ninth Circuit for many years, having everything to do with case loads and jurisdictional things, and nothing about any left-wing bias.

Paddy O said...

I don't see the controversy. The 9th circuit was created in 1891 for Western states. It covers, by far, the most geographic area and has more than double the amount of judges of all but three other circuit courts, and it's close to double of those three.

Given the substantial demographic shifts since 1891, it seems quite clear it's quite past due for adjustment.

Is the only reason why it shouldn't because it would be Trump doing it? Or...

What's the argument for keeping it as is?

mockturtle said...

A court with that high a reversal rate should have been disbanded years ago.

Otto said...

So this noble profession of law is a cesspool of biased ideologues. Who knew?. Did you being a law professor know or were you surprised like the general public when Trump brought it to light when he talked about the biased Mexican judge and BTW was chastised by the swamp. Somehow knowing how wise and insightful you are why haven't you had posts about this rot before Trump made it a big deal. Let us know if I am mistaken about your silence.

mockturtle said...

In fact, a court with over 50% reversed rulings should be disbanded.

rcocean said...

Sigh. Nice that Trump says that, but it will have to go the Senate, which means, blah, blah, delay, blah, blah, delay. Then, committee vote. Then blah, blah, delay. Then *Filibuster*.

Oh gosh, says Mr. McConnell we tried really, really hard but we couldn't get 7 Democrat votes. Maybe, if we get 7 more Republicans in 2019, and we have the energy, we can do it in 2020.

Michael K said...

It would be enough to create another appeal court to cover half of the 9th circuit territory. It might be amusing to let states decided if they want to go to the next court,.

The Obama-donor judge who "ruled" on sanctuary cities actually accomplished nothing but grandstanding.

The ruling has no effect on anyone.

But let’s put aside the unseemliness of Orrick’s barely concealed contempt for a moment, because he is also wrong. The proper purpose of an executive order is to direct the operations of the executive branch within the proper bounds of the law. There is, therefore, nothing untoward about an E.O. that directs the president’s subordinates to take enforcement action within the confines of congressional statutes. In fact, it is welcome. It is the president’s burden to set federal law-enforcement priorities. After years of Obama’s lax enforcement of immigration law and apathy regarding sanctuary jurisdictions, an E.O. openly manifesting an intent to execute the laws vigorously can have a salutary effect.

Orrick's 49 page squeal means nothing.

Chuck said...

mockturtle said...
A court with that high a reversal rate should have been disbanded years ago.

"Disbanded"? We're not talking about the California Golden Seals. What, uh, happens to appeals from the federal district courts in Alaska, Arizona, California, Hawai'i, Idaho, Montana, Nevada, Oregon and Washington, if the Circuit is "disbanded"?

When you say "disbanded," do you mean to violate the Constitution and the Judiciary Act and just sort of fire the judges whom you don't like?

And that oh-so-Trumpian stat about the Ninth Circuit having extraordinary reversal rates; you realize it's mostly a bullshit statistic, right? More prejudicial, than probative, right? I'm no apologist for the Ninth. The Ninth is liberal in part because of the way that Democratic Senators from California, Oregon, Washington and Hawai'i can put holds on nominees. I get that. I'm no fan, of the Ninth.

But I do like my arguments at a higher level. And you can be mostly assured, that if Donald Trump is saying something about a federal court, it's wrong.

The Daily Caller is not the Harvard Law Review. But this article nicely links you to some genuine studies of Circuit Court "reversal rates":

http://dailycaller.com/2017/02/12/the-9th-circuits-reversal-rate-has-nothing-to-do-with-liberal-judges/

Chuck said...

Paddy O said...
I don't see the controversy. The 9th circuit was created in 1891 for Western states. It covers, by far, the most geographic area and has more than double the amount of judges of all but three other circuit courts, and it's close to double of those three.

Given the substantial demographic shifts since 1891, it seems quite clear it's quite past due for adjustment.

Is the only reason why it shouldn't because it would be Trump doing it? Or...

What's the argument for keeping it as is?


As I said, we have been talking about reformation of the Ninth Circuit for years. For all of the reasons you suggest. Except for that bogus reason, "that it won't get done, because Trump wants it done..."

Steven said...

What's the argument for keeping it as is?

First, that the Democrats don't want to see the influence of California senators issuing blue slips, and the subsequent effects on circuit precedents and en banc decisions, weakened by creating a new circuit that excludes California.

Second, that whatever party does not have the Presidency doesn't want the other party to appoint the extra appellate judges that would logically accompany a split in the circuit to help manage caseload.

Between those two, that most proposals for a split happen when Republicans control both the White House and Senate, and are threatened by the Democrats with a filibuster, is not a coincidence.

readering said...

Personally, I favor breaking up the Ninth Circuit for administrative reasons. But it's irrelevant to the issue of judge shopping. If anything, breaking off California and Hawaii (the logical way to do it) would encourage judge shopping, because the appeals from those districts would go to panels more reliably liberal than at present.

Steven said...

A bit more detail:

Right now the 9th has 15 active status judges whose seat is in California, 10 non-California, and 4 vacant due to senior status (with the previous holders seated in CA, AZ, HI, and OR). So Senatorial blue slip privilege currently allows California senators to strongly influence a majority of appointments to the 9th, thus making the 9th as a whole congenial to them.

If geographically split the usually-proposed way, and for sake of illustration assuming no increases in judge numbers, you get a CA-and-HI 9th Circuit of 17 judges (16 CA, 1 HI) to start, which will likely be Democrat-friendly through blue slips. But the new 12th Circuit of 12 judges (1 AK, 3 AZ, 1 ID, 1 MT, 2 NV, 2 OR, 2 WA) is far more spread and diverse in its Senators. Thus moved rightward, the new circuit would be more likely, in its en banc judgments, to reverse inherited 9th Circuit precedents in it circuit than the current 9th.

traditionalguy said...

I hope Congress Impeaches them all. Off with their Robes.

Zach said...

The 9th circuit motto: "No law West of the Pecos!"

Guildofcannonballs said...

Hey if anyone here is, or eventually becomes, the County of Santa Clara get in touch with me, for you have transcended all but God and I wanna know what's up.

After all, only the most deranged ignoramous douche is able to think in inconceivable terms that any one person could become eo ipso the entire county, and that goes for any county I am aware of, not just Santa Clara.

Loose language is acceptable, when wooing voters for example so as to allow for misperceptions to retreat toward oblivion, but most certainly not when play-acting some damn educated expert online at the Althouse blog.

Note: just because I don't accept bigoted hateful notions doesn't mean I will stop time or end the universe, in case you had doubts.

cubanbob said...

I don't understand McConnell. He already got rid of the filibuster for the Supreme Court why not finish off the joint project with Harry Reid and get rid of the blue slip for judges?

khesanh0802 said...

@rcocean Your cynicism is warranted. I think that McConnell is going to be forced to end the filibuster or at least make it a a real filibuster - jimmy Stewart style. The Founders intended the country be run by a majority vote; that is 51%. There was never an intent for bills to require 60 or more votes - unless specifically stated in the Constitution. It's time that ended. When the Dems get in they can run by majority as well. That's the way the system should work.

Bruce Hayden said...

I don't think that the Senate Blue Slip practice is going to survive the Trump Presidency. It is frankly absurd to give two wacko leftist Senators from CA a veto over 2/3 of the 9th Circuit, esp given how uniformly the right wants to see it straightened out. They are the ones who invented "we won" - except that this time they lost the election. Why should they be rewarded for losing? It would be something else if the Circuit Court decisions didn't affect everyone else in the Circuit, including MT, AZ, ID, and AK. But those 2/3 get to vote on cases involving people in a lot of other states. The Blue Slip practice allows these two Senators to almost completely control this circuit, regardless of who wins the Presidency, or who controls the Senate.

readering said...

I don't think the California Senators get blue slips for the entire ninth circuit, just for the "California" appointments. It became an issue when a judge from California moved his chambers out of state, later retired and there was a fight over where his replacement should be appointed from.