When it comes to the Judiciary, the Ninth Circuit Court of Appeals, based in San Francisco, is perhaps the biggest whipping boy among conservatives. Many high profile cases decided against policies favored by conservatives or high profile cases involving liberal policies being upheld do emanate from the Ninth Circuit. Some, including President Trump, have referred to the Ninth Circuit as the most liberal court of appeals in the United States. Others have argued for breaking apart the Ninth Circuit.
By far, the Ninth Circuit is the largest circuit geographically and by population. Encompassing nine states, it hears cases involving 19.3% of the total US population. No other circuit comes close and as a point of comparison, the First Circuit based in Boston covers a mere 4.5% of the US population. Some liberal detractors in the press make two claims when defending the Ninth Circuit: (1) other circuits have decisions overturned at a greater rate than the Ninth, and (2) even if the Ninth Circuit has a high reversal rate, it is attributable to a heavy workload.
First, when it comes to the Supreme Court, from the 2013 term to the 2017 term, they heard 259 cases. Of those, 62 came from the Ninth Circuit on appeal. The next nearest circuit was the Sixth with 31, or half that of the Ninth. However, in a 4-year period, excluding the DC and other federal circuits, the eleven geographical circuits heard over 210,000 appeals. Of these, 22.5% were heard in the Ninth Circuit. Of the 259 Supreme Court cases heard and decided in a 4-year period, 23.9% came from the Ninth Circuit. The fact the US Supreme Court accepts, briefs, hears arguments and decides cases from the Ninth Circuit is a function of the fact the Ninth Circuit hears a comparable amount of appeals.
Where there is a disconnect between appeals heard at the circuit level and the Supreme Court is to be found in the Fifth Circuit (8.8% of all appeals/ 11.4% Supreme Court cases) and the Tenth Circuit (3.9% of all appeals/ 6.9% of Supreme Court cases).
As for reversal rates before the Supreme Court, the Ninth Circuit ranks fourth in the period from 2013 to 2017 with a 79% reversal rate. Ahead of them is the Third Circuit with 92.3%, the Sixth Circuit at 83.9%, and the Eleventh Circuit at 81.8%. In fact, these are the only four circuits that exceed the overall average reversal rate before the Supreme Court which is 71.8%.
The workload excuse is kind of silly when one looks at the workloads and the rates of adjudication of cases over the four year period I looked at. The Ninth Circuit hears, by far, the most appeals, averaging over 12,000 per year. However, they have an adjudication rate of 99.9%. This means that almost all the appeals entertained by the Ninth Circuit are decided in some manner. Conversely, we can look at the Second Circuit based in New York. They account for 9.5% of all appeals in the country- less than half that of the Ninth Circuit- yet they have an adjudication rate of 93.3%- well below that of the Ninth Circuit and the national average (98%). What makes this defense of the Ninth Circuit- they are overworked- even more silly is the fact there are currently six vacancies on that court of appeals. Despite these vacancies, they are churning out cases well above the national average.
Looking at the individual judges on these appeals courts, it is noteworthy that the most overturned circuit at the Supreme Court by percentage- the Third Circuit at 92.3%- they are evenly divided with 6 appointed by Democratic presidents and 6 appointed by Republican presidents. The circuit with the greatest percentage of judges appointed by a Republican president is the Eighth Circuit. However, the Sixth Circuit comprised of 68.8% of Republican appointed judges has a higher reversal rate before the Supreme Court than the Ninth Circuit. The two circuits with the highest affirmation rate before the Supreme Court (at 50%) are the First and the Fourth. Both of those circuits have a Democratic-appointed advantage.
Where the problem occurs, this writer believes, is in the nomination and research process. Simply, given the liberal bent of higher education in general, and legal education in particular, the Democrats have a larger pool of potential liberal judges. Further, not too many Democratic-appointed judges at the district, circuit or Supreme Court level have been disappointments when it comes to advancing a liberal agenda in the courts. Conversely, conservatives have been burned many times at all levels. The most obvious are David Souter, Earl Warren, Anthony Kennedy, William Brennan, Harry Blackmun and, some would say, John Roberts.
Since federal cases begin at the District Court level and since this is basically a feeder system into the circuit appeals court system, it is important that Republican presidents first start here and that they do their research. Many openings occur yearly and one of the impediments to getting conservatives on the bench is the arcane and ridiculous rules of the Senate since they have the job of confirming judges. For example, holding up a nomination through the use of blue slips, or appointing someone from the state in which the district court is located is an outdated courtesy that both parties take advantage of. Since these are federal courts, they apply and interpret federal law. The state from which they come does not make a difference. Hence, if there is an opening on a District Court in Oregon, it makes no sense to nominate an Oregonian simply because the court is located in Oregon. Likewise, existing district court judges with conservative records should be appointed to circuit level openings outside the circuit in which the district court is located. For example, if there is a judge with a conservative record in the eastern district of Pennsylvania, why not appoint them to an opening on the Ninth Circuit on the other side of the country? What rule- other than their reluctance to move- keeps them beholden to the Third Circuit?
As for the Ninth Circuit, there have been two suggested solutions: create a new circuit out of the old Ninth, or increase the number of judges. This can easily be avoided by moving existing states within the Ninth Circuit to neighboring circuits. For example, New Mexico can easily be moved into the Fifth and Arizona to the Tenth along with Nevada. Montana can move into the Eighth, and so on.