1 00:00:00,160 --> 00:00:02,719 Speaker 1: After a panel of three judges on the Ninth Circuit 2 00:00:02,759 --> 00:00:06,880 Speaker 1: Court of Appeals ruled against his controversial travel ban, President 3 00:00:06,920 --> 00:00:11,360 Speaker 1: Trump criticized the circuit and its decision. Circuit that has 4 00:00:11,360 --> 00:00:16,919 Speaker 1: been overturned at a record number I've heard. I find 5 00:00:16,960 --> 00:00:18,919 Speaker 1: that hard to believe. That's just a number. I heard 6 00:00:19,280 --> 00:00:21,880 Speaker 1: that they're overturned eight of the time. I think that 7 00:00:21,960 --> 00:00:25,919 Speaker 1: circuit is that circuit is in chaos, and that circuit 8 00:00:26,079 --> 00:00:30,560 Speaker 1: is frankly in turmoil. The Ninth Circuit is the largest circuit, 9 00:00:30,640 --> 00:00:33,680 Speaker 1: covering nine Western states, but it is not the most 10 00:00:33,720 --> 00:00:39,080 Speaker 1: reverse circuit. Statistics from show that distinction goes to the 11 00:00:39,200 --> 00:00:43,199 Speaker 1: sixth Circuit with a seven percent average reversal rate. But 12 00:00:43,320 --> 00:00:45,880 Speaker 1: now the governor of Arizona is working with the states 13 00:00:45,920 --> 00:00:50,640 Speaker 1: congressional delegation to remove Arizona from the Ninth Circuit. Arizona 14 00:00:50,680 --> 00:00:54,040 Speaker 1: Republican Senators Jeff Flake and John McCain have introduced a 15 00:00:54,080 --> 00:00:57,560 Speaker 1: bill to put Arizona in a new twelfth Circuit. The 16 00:00:57,600 --> 00:01:02,320 Speaker 1: state's five Republican representatives have introduced a similar bill, joining us. 17 00:01:02,320 --> 00:01:04,840 Speaker 1: As Carl Tobias, he's a professor at the University of 18 00:01:04,959 --> 00:01:08,640 Speaker 1: Richmond Law School. Carl Let's start with the much touted 19 00:01:08,720 --> 00:01:12,880 Speaker 1: reversal numbers. The Supreme Court reversed about the cases it 20 00:01:12,920 --> 00:01:17,720 Speaker 1: took from the Ninth Circuit was in third place with 21 00:01:17,800 --> 00:01:22,640 Speaker 1: a seventy reversal rate. But do these numbers really tell 22 00:01:22,680 --> 00:01:26,360 Speaker 1: the story. No, they don't tell us very much at all. 23 00:01:26,480 --> 00:01:32,320 Speaker 1: It's essentially a meaningless statistic just because the Supreme Court 24 00:01:32,360 --> 00:01:36,679 Speaker 1: only here is something like one of all appeals um 25 00:01:36,720 --> 00:01:39,959 Speaker 1: out of any circuit, and so it really doesn't tell 26 00:01:40,040 --> 00:01:43,440 Speaker 1: us much. It varies over time. And one example I 27 00:01:43,520 --> 00:01:47,680 Speaker 1: give if a circuit um only has one case the 28 00:01:47,720 --> 00:01:49,920 Speaker 1: Supreme Court here is in a particular year, and the 29 00:01:49,960 --> 00:01:54,040 Speaker 1: Court reverses that circuit, well, it has a rate. There's 30 00:01:54,080 --> 00:01:56,520 Speaker 1: just such a tiny number of cases any year from 31 00:01:56,520 --> 00:02:01,600 Speaker 1: any circuit that it really just doesn't tell us much. Well, Carl, 32 00:02:01,720 --> 00:02:05,040 Speaker 1: let's let's talk about some of the other reasons that 33 00:02:05,760 --> 00:02:10,079 Speaker 1: folks in Arizona put forward for wanting to get out 34 00:02:10,080 --> 00:02:12,920 Speaker 1: of the Ninth Circuit. The Ninth Circuit is the largest circuit. 35 00:02:12,960 --> 00:02:15,360 Speaker 1: It's something that covers something like states that have about 36 00:02:16,160 --> 00:02:18,600 Speaker 1: the US population. Is it is there something to the 37 00:02:18,680 --> 00:02:21,440 Speaker 1: argument that is just too large compared with the other circuits, 38 00:02:21,440 --> 00:02:24,880 Speaker 1: and that there might be some judicial efficiency in splitting 39 00:02:24,919 --> 00:02:27,919 Speaker 1: it up. Well, I think that's the problem. I don't 40 00:02:27,960 --> 00:02:30,600 Speaker 1: think there is much judicial efficiency in splitting it up. 41 00:02:30,639 --> 00:02:34,400 Speaker 1: And in fact, you're going to incur additional cost for 42 00:02:34,440 --> 00:02:38,800 Speaker 1: all the court personnel and uh court houses and that 43 00:02:38,919 --> 00:02:41,840 Speaker 1: type of thing, So there isn't any real gain. The 44 00:02:42,760 --> 00:02:46,040 Speaker 1: real problem here is there isn't a very feasible way 45 00:02:46,080 --> 00:02:50,160 Speaker 1: to split it up. Uh it's large, and it's a 46 00:02:50,240 --> 00:02:53,080 Speaker 1: large population based, and it has the most appeals of 47 00:02:53,120 --> 00:02:57,160 Speaker 1: any appeals court. But there just isn't a very feasible 48 00:02:57,200 --> 00:03:00,959 Speaker 1: way to do much with it, principally because of California. 49 00:03:01,120 --> 00:03:03,000 Speaker 1: So you're really not going to have much by way 50 00:03:03,040 --> 00:03:08,600 Speaker 1: of savings here if you do what the Arizona Centators 51 00:03:08,639 --> 00:03:12,000 Speaker 1: and others in the West have suggested. Carl the Ninth 52 00:03:12,040 --> 00:03:15,600 Speaker 1: Circuit is known as the most liberal circuit, and in 53 00:03:15,600 --> 00:03:19,480 Speaker 1: introducing the bill to exit the Ninth Circuit, Republican Arizona 54 00:03:19,520 --> 00:03:22,840 Speaker 1: Congressman Harry Biggs said the bill was intended quote to 55 00:03:22,919 --> 00:03:26,120 Speaker 1: protect Arizona from a federal circuit court that does not 56 00:03:26,200 --> 00:03:30,680 Speaker 1: reflect the values nor laws of our state. Our citizens 57 00:03:30,960 --> 00:03:37,920 Speaker 1: entitled to circuit courts that reflect their values. Well. To 58 00:03:38,040 --> 00:03:41,280 Speaker 1: some extent, and they are to some extent because a 59 00:03:41,400 --> 00:03:45,000 Speaker 1: number of the judges who set on the Ninth Circuit 60 00:03:45,760 --> 00:03:50,960 Speaker 1: are from Arizona UM. But there are big questions about 61 00:03:50,960 --> 00:03:54,720 Speaker 1: exactly how to allocate those seats. I think Arizona has 62 00:03:54,760 --> 00:03:58,120 Speaker 1: a fair representation in terms of its population, for example, 63 00:03:58,280 --> 00:04:01,120 Speaker 1: which seems to be one of the better measures to 64 00:04:01,320 --> 00:04:08,680 Speaker 1: use UM. But uh, there's a limitation on that. I mean, 65 00:04:09,560 --> 00:04:14,200 Speaker 1: in terms of what we mean by UM Arizona values, 66 00:04:14,320 --> 00:04:18,760 Speaker 1: whatever they are, depends on who you talk to UM, 67 00:04:18,839 --> 00:04:22,000 Speaker 1: so I don't know what you say about that. But 68 00:04:22,080 --> 00:04:24,440 Speaker 1: also behind all of that, I think is the notion 69 00:04:25,360 --> 00:04:30,400 Speaker 1: that you don't gerrymander a federal appellate court because you 70 00:04:30,440 --> 00:04:33,599 Speaker 1: don't like its decisions. And it seems like that really 71 00:04:33,680 --> 00:04:38,599 Speaker 1: might be what we're speaking about here. Well, there have 72 00:04:38,760 --> 00:04:42,720 Speaker 1: been situations where circuits have been split up before, and 73 00:04:43,160 --> 00:04:46,360 Speaker 1: you know, because of population changes or you know, other 74 00:04:46,400 --> 00:04:51,440 Speaker 1: reasons UM that aren't based on politics. And so you know, 75 00:04:51,480 --> 00:04:53,479 Speaker 1: you have a you have a circuit was creative when 76 00:04:53,640 --> 00:04:56,159 Speaker 1: that part of the country is pretty sparsely populated. That's 77 00:04:56,200 --> 00:05:00,680 Speaker 1: now the biggest one in the in the country. It 78 00:05:00,800 --> 00:05:04,640 Speaker 1: shouldn't be looking at whether it still makes sense to 79 00:05:04,680 --> 00:05:07,360 Speaker 1: have a circuit this large. Sure, I think it's an 80 00:05:07,400 --> 00:05:10,000 Speaker 1: open question, and it's certainly subject to debate and has 81 00:05:10,040 --> 00:05:13,440 Speaker 1: been for the last three or four decades UM. And 82 00:05:13,560 --> 00:05:17,120 Speaker 1: that's fine. But as I said, unless you're gonna have 83 00:05:17,120 --> 00:05:20,799 Speaker 1: a one uh state circuit, which I don't think anybody 84 00:05:20,960 --> 00:05:24,680 Speaker 1: is arguing for, there isn't much you can do with California. 85 00:05:24,720 --> 00:05:29,560 Speaker 1: You can't divide California into two um, because then you 86 00:05:29,560 --> 00:05:33,040 Speaker 1: wouldn't have the same substance of law within that state. UH. 87 00:05:33,120 --> 00:05:36,120 Speaker 1: And that's the real problem. I think sixty or sevent 88 00:05:36,720 --> 00:05:41,039 Speaker 1: the cases come out of California, so it's really difficult 89 00:05:41,200 --> 00:05:44,919 Speaker 1: to find a solution that's very satisfactory. We've been talking 90 00:05:44,960 --> 00:05:48,680 Speaker 1: about the effort by the lawmakers in Arizona, the governor, 91 00:05:48,880 --> 00:05:53,480 Speaker 1: and the Republican senators and congressmen to remove Arizona from 92 00:05:53,560 --> 00:05:56,640 Speaker 1: the ninth Circuit, which is known as a liberal circuit, 93 00:05:56,960 --> 00:06:00,160 Speaker 1: and Arizona Republican Senators Jeff Lake and John mc ain 94 00:06:00,279 --> 00:06:03,240 Speaker 1: have already introduced a bill to put Arizona in a 95 00:06:03,279 --> 00:06:07,320 Speaker 1: brand new twelfth Circuit, and the state's Republican congressmen have 96 00:06:07,440 --> 00:06:10,760 Speaker 1: introduced a similar bill. We've been talking to Carl to Bias. 97 00:06:10,800 --> 00:06:14,560 Speaker 1: He's a professor at the University of Richmond Law School. Carl. 98 00:06:14,839 --> 00:06:18,400 Speaker 1: Another critique of the Ninth Circuit is that the large 99 00:06:18,520 --> 00:06:21,640 Speaker 1: size of the court means that it almost never sits 100 00:06:21,839 --> 00:06:25,839 Speaker 1: as a single body. So for on bank cases, where 101 00:06:25,880 --> 00:06:30,039 Speaker 1: all active judges usually sit in other courts, the Ninth 102 00:06:30,080 --> 00:06:33,360 Speaker 1: Circuit has eleven of its twenty nine judges to decide 103 00:06:33,480 --> 00:06:37,640 Speaker 1: circuit wide precedent. So people complain that this isn't a 104 00:06:37,680 --> 00:06:43,600 Speaker 1: good indication of circuit wide precedent. Well, that is an 105 00:06:43,600 --> 00:06:46,280 Speaker 1: interesting criticism. I'm not sure it makes a whole lot 106 00:06:46,320 --> 00:06:50,120 Speaker 1: of difference. Um. I think they came to the conclusion 107 00:06:50,200 --> 00:06:55,600 Speaker 1: that judges was just unwieldy to have all of them 108 00:06:55,640 --> 00:07:00,600 Speaker 1: sit on bonk um, and I think buying large the 109 00:07:00,680 --> 00:07:06,400 Speaker 1: eleven judge limited on bonka the court uses uh comes 110 00:07:06,440 --> 00:07:09,479 Speaker 1: to the same result that all twenty eight would in 111 00:07:09,520 --> 00:07:13,280 Speaker 1: the vast majority of cases. So I think it isn't 112 00:07:13,040 --> 00:07:16,480 Speaker 1: a real problem. It's the chief judge and Nana, eleven 113 00:07:16,680 --> 00:07:20,600 Speaker 1: Nan ten other judges randomly drawn, so I think the 114 00:07:20,680 --> 00:07:24,680 Speaker 1: judges feel has worked relatively well. Carl. There's also the 115 00:07:24,720 --> 00:07:29,080 Speaker 1: criticism that some in Arizona make that they don't have 116 00:07:29,160 --> 00:07:31,680 Speaker 1: access to justice in the same way other states do 117 00:07:31,840 --> 00:07:34,200 Speaker 1: because it takes too long for the Ninth Circuit to 118 00:07:34,280 --> 00:07:36,880 Speaker 1: hear cases given its large size. Is there anything to 119 00:07:37,000 --> 00:07:41,840 Speaker 1: that criticism, Well, I think it probably is the slowest, 120 00:07:42,840 --> 00:07:47,200 Speaker 1: depending on what measure you use UM, and I think 121 00:07:47,280 --> 00:07:51,440 Speaker 1: some of the figures have been UM inflated. A lot 122 00:07:51,520 --> 00:07:54,960 Speaker 1: depends on what you talk about in terms of time 123 00:07:55,000 --> 00:07:59,480 Speaker 1: to disposition, but it has traditionally been fairly slow. In fact, 124 00:07:59,480 --> 00:08:03,280 Speaker 1: it's it's faster than it used to be UM and 125 00:08:03,360 --> 00:08:07,400 Speaker 1: part of that reflects the huge docket it has. So 126 00:08:08,360 --> 00:08:11,320 Speaker 1: I think the best solution is not to talk about 127 00:08:11,600 --> 00:08:15,000 Speaker 1: reconfiguring the court, but rather giving the court the resources 128 00:08:15,000 --> 00:08:18,320 Speaker 1: it needs to do judicial conference. The policy making arm 129 00:08:18,360 --> 00:08:21,720 Speaker 1: in the federal courts has recommended more judge ships for 130 00:08:21,760 --> 00:08:25,800 Speaker 1: the court based on caseload and workload, and that would 131 00:08:25,840 --> 00:08:31,880 Speaker 1: go substantially toward UH speeding up resolution of cases. So 132 00:08:32,000 --> 00:08:35,720 Speaker 1: I think that's probably a preferable solution to dividing the 133 00:08:35,760 --> 00:08:40,839 Speaker 1: court on UH that particular issue. Carl as I mentioned 134 00:08:41,559 --> 00:08:45,679 Speaker 1: this effort to break off from the Ninth Circuit has 135 00:08:45,760 --> 00:08:48,800 Speaker 1: gone back a long time. In fact, retired Justice Sandra 136 00:08:48,840 --> 00:08:52,880 Speaker 1: Day O'Connor, who was from is from Arizona, has suggests 137 00:08:52,960 --> 00:08:55,959 Speaker 1: suggested in the past moving the state into the tenth circuit. 138 00:08:56,760 --> 00:09:02,000 Speaker 1: This new bill suggests making a whole new circuit. But 139 00:09:02,160 --> 00:09:06,240 Speaker 1: you do have a Republican Congress UM that's feeling it out, 140 00:09:06,360 --> 00:09:09,360 Speaker 1: so to speak. How what is the likelihood that it 141 00:09:09,480 --> 00:09:14,360 Speaker 1: may actually happen this time around? Well, I think it's unlikely, 142 00:09:14,400 --> 00:09:18,200 Speaker 1: but it's certainly possible. Uh. They would still need to 143 00:09:18,240 --> 00:09:22,600 Speaker 1: pick up in the Senate many Democratic votes in order 144 00:09:22,720 --> 00:09:28,440 Speaker 1: to come to sixty if bill were to get through 145 00:09:29,360 --> 00:09:33,200 Speaker 1: the committee, uh and the House. And so I think 146 00:09:33,240 --> 00:09:37,679 Speaker 1: that's unlikely. Um, they're not that many Democrats who really 147 00:09:37,679 --> 00:09:42,120 Speaker 1: would vote in favor, I don't believe uh. And so 148 00:09:42,240 --> 00:09:46,400 Speaker 1: it really uh And Democrats who might be vulnerable or 149 00:09:46,480 --> 00:09:51,320 Speaker 1: might feel some pressure, by and large not in the West. Uh. 150 00:09:51,520 --> 00:09:54,600 Speaker 1: So it's just hard to see where those eight votes 151 00:09:54,679 --> 00:09:58,960 Speaker 1: come from on the merits. So we'll see. But I 152 00:09:59,000 --> 00:10:03,199 Speaker 1: think it you're correct, it probably could have a better 153 00:10:03,320 --> 00:10:07,720 Speaker 1: chance of passing than certainly when President Obama was there, 154 00:10:07,760 --> 00:10:10,640 Speaker 1: because I think he would have vetoed it. Um. But 155 00:10:10,720 --> 00:10:14,880 Speaker 1: even the Bush ears, I don't think that it was 156 00:10:15,000 --> 00:10:20,960 Speaker 1: very seriously considered by especially the Senate. Well, they certainly 157 00:10:21,000 --> 00:10:23,880 Speaker 1: get a lot more attention than the other circuits do, 158 00:10:24,000 --> 00:10:27,280 Speaker 1: it seems, thanks so much for being on Bloomberg Law. 159 00:10:27,440 --> 00:10:30,439 Speaker 1: That's Carl Tobias. He is a professor at the University 160 00:10:30,440 --> 00:10:33,200 Speaker 1: of Richmond Law School. But Michael, it's true that you 161 00:10:33,640 --> 00:10:36,400 Speaker 1: hardly ever hear about any of the other circuits in 162 00:10:36,400 --> 00:10:38,920 Speaker 1: this way that you hear about the Ninth Circuit. No. 163 00:10:39,080 --> 00:10:41,200 Speaker 1: I mean, you know it has a reputation for being liberal. 164 00:10:41,240 --> 00:10:43,000 Speaker 1: It is California. There are a lot of people there, 165 00:10:43,040 --> 00:10:45,360 Speaker 1: They have a lot of cases, and you know, California 166 00:10:45,400 --> 00:10:48,600 Speaker 1: gets to the newspapers too. And also, I mean there 167 00:10:48,600 --> 00:10:50,800 Speaker 1: are decisions. A lot of them are liberal, but you 168 00:10:50,960 --> 00:10:53,360 Speaker 1: find a lot that are middle of the road too. 169 00:10:53,440 --> 00:10:56,560 Speaker 1: So there is a spectrum. There are regular pointees on 170 00:10:56,600 --> 00:10:59,319 Speaker 1: that court. There, Bush appointees, there's a there's a spectrum 171 00:10:59,320 --> 00:11:02,920 Speaker 1: of judges there. And coming up on Bloomberg Law, we're 172 00:11:02,920 --> 00:11:07,160 Speaker 1: going to be changing topics and talking about an interesting 173 00:11:07,240 --> 00:11:10,040 Speaker 1: case in an unusual case that which puts the c 174 00:11:10,240 --> 00:11:15,160 Speaker 1: i A on a deadline to argue for the secrecy 175 00:11:15,240 --> 00:11:20,600 Speaker 1: of interrogat interrogation documents that are being requested in a 176 00:11:20,760 --> 00:11:23,160 Speaker 1: lawsuit and we'll take a look at what will happen there.