Arizona Sen. Jeff Flake is at the center of two of the most consequential legal issues being debated in Congress.
First, he has a plan, which is dubbed the Judicial Administration and Improvement Act of 2017, to split the 9th Circuit Court of Appeals in two and form a new 12th Circuit Court.
The 9th Circuit is the nation's western federal appeals court that reviews cases from nine states and U.S. territories in the Pacific Ocean. The court's large area of jurisdiction — in terms of both land mass and population — has made it a top target for Flake. More active judges sit on the 9th Circuit than any other federal appeals court, which makes a full en banc review process by the court different from other appellate courts. Rather than have all 29 of the 9th Circuit's judges provide a full review, 11 judges are chosen at random to tackle cases en banc, or before the entire bench.
Conservatives' perception of the 9th Circuit as liberal has made it a favorite whipping boy of right-leaning pundits and elected Republicans who likely hope that creating a new 12th Circuit Court will give a Republican president the opportunity to install conservative-minded judges. Under Flake's proposal, judges who reside in the states comprising the new 12th Circuit can choose to be assigned to either the 9th Circuit or the newly created 12th Circuit.
Since the GOP grabbed control of the legislative and executive branches, the Republican senator's proposal has legs. But it's not without controversy, and two Republican-appointed federal judges visited Washington to privately urge senators to oppose the bill. President Trump, however, looks open to splitting the court. He said last week that people are screaming "break up the 9th Circuit" and urged a Tennessee crowd to look at how often the 9th Circuit's "terrible decisions" are overturned.
Second, as a Senate Judiciary Committee member, Flake is also preparing for hearings on Judge Neil Gorsuch's Supreme Court nomination. The Washington Examiner sat down with Flake to learn more about his plan to blow up the western federal appeals court and what he wants to hear Gorsuch answer during the hearings.
Washington Examiner: Why break up the 9th Circuit?
Flake: Because it's too big. It's been too big for a long, long time. The first bill to break up the 9th Circuit was introduced in 1941, so it's been going for a while. It was created in the 1890s. It was only 4 percent of the U.S. population in the 9th. Now it's 20 percent. It's 40 percent of the land mass. It's too unwieldy. Just to get a decision, it sees almost twice as many cases as the next busiest circuit. Time for the decision is longer than any circuit by far. They can't even hear cases with all 29 judges. It's almost like a legislature. So break it up and have 11 judges, I guess hear these cases en banc and they make decisions for the entire circuit. So you have uneven case law coming out. So it's long, long overdue.
Washington Examiner: In terms of what you're saying about uneven case law, how would breaking it up necessarily change the outcome of individual cases? You've mentioned the 9th Circuit getting overturned so much by the Supreme Court. Would breaking it up necessarily change that?
Flake: You don't know. You have to appoint judges for the new 12th Circuit, and the 9th Circuit may remain the same. But you can't determine actually how they'll judge, but the 9th Circuit is the most overturned circuit by far. Of the cases the Supreme Court decides to review, an overwhelming majority, 77 percent I think, are reversed.
Washington Examiner: How were the states grouped the way they were for the 9th and the 12th circuits?
Flake: Well, I mean you look at kind of communities of interest, and the way Arizona, Nevada, Montana, Washington, Alaska that makes sense [for the new 12th Circuit]. Kind of the mountain states. States that have a lot of common public ownership. Arizona is 85 percent publicly owned, Nevada is even more I believe. So there are issues that are similar on these kinds of states and they are roughly contiguous as well. The 9th would be left with California, Oregon and Hawaii.
Washington Examiner: And then Guam and —
Flake: — the territories.
Washington Examiner: Right, OK, and then when you break it up this way, can you point to any individual cases that have gone on or are in the process of litigation right now that would've been expedited or perhaps the outcome would have been different had this already happened?
Flake: You don't know. You don't know which judges will go over to the 12th or what would happen with new or different judges or a combination of judges like we said with the 9th. You never had all 29 judges hearing one case, so I don't think you can determine that. And frankly I don't think that is our goal. This is just too large and unwieldy, and the bedrock principle that we've had in this country is swift access to justice, and if you live in the 9th Circuit particularly in Arizona, with a big docket, you don't have swift access to justice. It's 15 months from filing to a decision on average. That's just far too long.
Washington Examiner: I know you reached out to the 9th Circuit when they were quoted as saying that they were opposed to this legislation. Have you heard any word back?
Flake: Well, yeah, they did get back and basically said we're not taking that position now. We're not taking a position. But it was a bit unclear because they clearly did before. That's not their position, not their role. They shouldn't be the ones deciding whether or not it should be split up. That's a case for the legislature. And the bill needs to be passed by Congress, but they shouldn't weigh in either way. They should judge and look and see if the Congress passes constitutional muster, and beyond that they shouldn't be taking political positions.
Washington Examiner: Did you solicit input from judges in the crafting of the legislation?
Flake: There have been judges, if you want to talk to that [motions to aide], there have been some that have—
Flake counsel Michael Fragoso: [9th Circuit] Judge [Diarmuid] O'Scannlain has been sort of a leader in blowing the whistle on the 9th Circuit not being effective. And so we've talked to him in terms of what good legislation would look like and he was very active 10 years ago when this happened, he and [9th Circuit] Judge [Richard] Tallman and the late [9th Circuit] Judge [John] Roll from Arizona on the pro-split side—
Flake: Judge Roll testified about access to justice, swift access to justice, and how it's just taking too long. He was the one that was killed in the Gabbi Giffords shooting. But, yeah, it's I think it's accepted, everyone knows, we've dealt with this for a long time, it's just too big and unwieldy. So this is, there are several plans to do it, to split it up. I think this one makes the most sense in terms of the grouping of states that would make up the new 12th. California on its own, if it were alone, it would still be the largest circuit out there. So there are no circuits with just one state, and I think the way that we've done it is probably the best way.
Washington Examiner: Taking for example the litigation that's going on about President Trump's immigration ban and the 9th Circuit hearing the issue of the temporary restraining order, I know you've said the constitution of the courts would be different and you don't know which judges would be where necessarily, but how might that have been adjudicated differently if the judges that heard it as a panel weren't necessarily from California [and Hawaii], perhaps they were from Arizona, Nevada, and any number of other states that would be on the 12th Circuit now?
Flake: I don't know. And I don't think that that's our job to really try to figure out. It may or may not have been different, but we're looking at broader principles here. The access to justice. So I don't think we can, anybody would try or should try to game this is how they would have come out on this particular issue.
Washington Examiner: In terms of this bill now, what do you think its chances of success are and at this point in time the biggest hurdles to its passage?
Flake: The biggest hurdle: well, need to get 60 votes in the Senate. I think we can get it out of the House. The White House we've had discussions with White House counsel on it, and we'll look to get the president's support, the vice president. Obviously having [Arizona Gov. Doug] Ducey very involved, I wrote an op-ed with him, he talked about it in his state of the state address. The state legislature in Arizona is very much enthused about it, and they'll be talking to their counterparts in other states that would be part of the new 12th. And so will the governor. So I think that that's helpful. That's a dynamic we haven't had before, so I think it's the best chance we've had yet. But the biggest hurdle is 60 votes.
Washington Examiner: When you spoke with the White House, the counsel's office, did they give you any indication of whether they were supportive?
Flake: They mentioned that they would certainly talk to the president about it and the vice president. And so we're hopeful that they'll get behind it.
Washington Examiner: On Judge Neil Gorsuch's upcoming confirmation hearings here, when they begin what questions do you want to hear him answer that you haven't heard yet?
Flake: Well, some of what we discussed here in this office when he came through, what I like most about him is the recognition that as he put it, when he puts on the robe, he knows he's not a legislator, and that is what we need first and foremost. We need judges who will look at the law. He's an originalist, not trying to infer what somebody meant, but to look at the actual text and so I think that if he talks about that and also he's written in the past favorably about dealing with Chevron deference [a Supreme Court doctrine dictating that courts should defer to executive agency interpretations of certain statutes unless they are deemed unreasonable]. I think he recognizes that there has been far too much shift in terms of Article I power to the executive branch, so I hope that he gets some questions. I'll certainly be asking a few on those issues. So I think he understands and has written well on the separation of powers. And also when you look at his opinions, both in dissent and in concurrence on a number of issues, it's just he's got a great mind and I think that comes out when you speak to him, when he answers questions. Some tough issues: End-of-life decisions and things like that he's written very, I think, thoughtfully and persuasively on those issues.
Washington Examiner: As a fellow westerner, how might that perspective affect his approach to the job and the law?
Flake: Well one, yeah, he's from Colorado. Colorado has a lot of the same issues that Arizona does, particularly public lands. Colorado is about I think 50 percent publicly owned between state and federal land. Arizona is 85 percent publicly owned. There are issues that come up before the court with land use that I think he understands better than most. And you can only get that by being a westerner really.
Washington Examiner: To your colleagues in the Senate, Democrats who are unsure about [Gorsuch's] nomination or haven't yet met with him who are looking to learn more about him, from your interaction with him thus far and what you know of his record and studying things, what would your pitch to them be?
Flake: Read some of his opinions, and he's written a book as well. So there's a lot to look at there. As somebody mentioned, you look through his decisions, the body of work that he has, it's tough to find a clunker in there. He's just very thoughtful, and I think that's exactly what we need. Judges judge if you will.
Washington Examiner: On the death penalty, abortion, and those kinds of life issues and the Second Amendment, from your personal interaction with him, did you get any sense of how he might approach those cases?
Flake: No, no, and when there are individual cases that might be working their way through, obviously he's not going to comment on those so he didn't comment on any individual cases.
Washington Examiner: If Gorsuch is confirmed and joins the court, he's got that unique position of having been a former clerk to Justice Anthony Kennedy. Do you have a sense of how that relationship might manifest itself? Do you think he might end up being more like a Justice Kennedy than a Justice Antonin Scalia?
Flake: I don't know. I think he's been compared mostly to Justice Scalia. But I think we won't know, but my guess: He's more in the Scalia mode. But we'll see when he's on the court. And I'm confident he'll be on the court.
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