Splitting the Ninth Circuit, Revisited
The question of splitting the Ninth Circuit Court of Appeals, which covers California, Alaska, Hawaii, six other states, Guam and the Marianas, has re-arisen in Congress.
Being in New York, I neither know nor particularly care whether splitting the Ninth Circuit is either wise or urgent.
But I do know that this gobbledygook from California senator Dianne Feinstein is not a legitimate reason to oppose it:
The split would also initially cost an estimated $100 million, because two new and expensive bureaucracies would be needed to administer the courts. And it would cost $16 million more in annual operating expenses.
The only legitimate response to Feinstein is: so what?
I rebutted this non-argument that “courts are too expensive” back in November 2004 when Ninth Circuit Judge Alex Kozinski put forth the same nonsense (WSJ – $). As I blogged then:
We can’t afford courts? A demographically logical courts structure is a luxury? The federal government spends $2.3 trillion dollars per year and we can’t afford courts?
Is this how far the current thinking has deteriorated in terms of what government should and should not do and where budgetary priorities should lie? We can afford every pork-barrel program imaginable for every two-bit senator and representative, we can have marginal income tax rates that would have made the Founders vomit, but we can’t afford courts?
And remember, this was before the disgraceful pork-laden transportation bill and the “Bridge to Nowhere.” A year has passed, and the debate about the Ninth Circuit (not to mention the debate about pork-barrel spending) is stuck on stupid.
I repeat: Maybe there are reasons not to split the Ninth Circuit. But “we can’t afford courts” is not one of them.
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Filed under: Law, Public Goods v. Private Goods
The only truly "good" argument against the split is that it is political gerrymandering. They are attempting to "write off" the liberal portions and have some power in the conservative Districts. Talk about bringing politics into the courts.
Really? The _only_ legitimate answer to Feinstein is "so what?" Interesting.
The only good argument _for_ the split is that there are three justices on the court who support it. Two of the good arguments against it are that a) all the of the rest of the judges are okay with it, and b) it would provide worse justice if it were split, because suddenly federal courts in California would be a disaster, rather than merely a contributor to a problem.
The real answer to your closing line, Kip, is why spend money to do worse when we can not spend the money and do better?
The Ninth Circuit frequently comes to wrong conclusions. This is a bizarre and unusual feature not common to any other Circuit (sarcasm tag may be needed here) and I think the comments to Congress in the last round of hearings pretty much sum up why there's no need to split.
On the other hand, if we really want to prevent Newdow from getting another case affirmed, we can simply… do nothing… as his last claim up on appeal was rebuffed by the Ninth Circuit…
What a waste of time this particular red herring is. I agree, Kip, we don't need to care. Except that certain folks are preparing to spend, yes, more of our money on it – apparently in what will be a failed attempt to get politically better results. See the headline lately, "splitting the circuit might result in more liberal results"? That's not what anyone wants.