In a move that could result in faster decisions on Arizona cases, Congress has agreed to put another judge on the 9th Circuit Court of Appeals.
Unable to secure funding for more judges overall, Sens. Jon Kyl, R-Ariz., and Dianne Feinstein, D-Calif., persuaded colleagues to take a vacant position from another appellate court and move it to the circuit that covers Arizona and eight other Western states and two territories.
That will bring the number of active judges to 29.
Kyl said the move, while small, is critical. He said the circuit has both the largest caseload and the largest backlog of any circuit in the country.
The result, the senator said, is a delay in getting cases resolved. And for most federal cases, both civil and criminal, the 9th Circuit is the last word, as only a tiny percentage of what this court decides ever are reviewed by the U.S. Supreme Court, much less overturned.
According to the Administrative Office of the U.S. Courts, there were 523 cases filed for each of the judges in the 9th Circuit. By contrast, the national average in 2006 as 399.
And in the circuit that covers the District of Columbia — the one from which the vacancy is being taken — there are only 107 appeals per judge. The result has been 1,853 pending appeals for each of the three-judge panels in the 9th Circuit.
Kyl said that, ideally, Congress would approve funding for more judges nationwide.
“We have not been able to get a broad judges’ bill through that adds judges to all the circuits, most especially the 9th,” he said. Kyl said the next best solution was to take one from the District of Columbia Circuit.
“So it’s a 'small step for mankind’ kind of thing,” he said.
But by alleviating the crush, even just a bit, Kyl acknowledged he is undermining one of his other goals: splitting the 9th Circuit in two.
Part of the arguments behind that have been the massive caseload. But part of the argument could best be described as political and philosophical: the belief that judges from California, where currently half of those on the bench are from, are more liberal than those appointed from other states.
That becomes an issue because cases are not assigned to panels based on where the case originates. That means the 9th Circuit is ruling on — and setting precedents — on legal issues out of Arizona and elsewhere.