Sen. Jeff Flake is pushing back on the California-based federal appeals court that seemed to oppose his bill last week to split the court that has jurisdiction over Arizona and other Western states.
In a letter Friday to the 9th U.S. Circuit Court of Appeals, Flake noted he was surprised — and hardly pleased — to see a spokesman for the court telling the Wall Street Journal that the court was “strongly opposed to a split.”
There are four bills pending in Washington, D.C., now to split the massive San Francisco-based circuit, a goal of Republicans for decades.
Flake asked the court to clarify whether the Journal‘s characterization is correct and, if so, detail how the court’s judges arrived at that decision. Flake then marched through other pointed questions, such as whether the court had retained a lobbyist on the issue and whether it had taken positions on other legislative matters.
Flake ended with a question that reads more like a rebuke:
“If one of the pending bills to split the U.S. Court of Appeals for the Ninth Circuit were to pass and be challenged in court, what assurances can you give the public that the U.S. Court of Appeals for the Ninth Circuit would be able to adjudicate such a case fairly given that it is on the record ‘strongly opposed to a split’?”
Flake’s bill is co-sponsored by Sen. John McCain and has the backing of Arizona Gov. Doug Ducey. A competing bill in the House of Representatives was introduced by Rep. Andy Biggs, R-Ariz., and has the support of the state’s other four GOP members.
The Biggs bill would move Arizona, Alaska, Idaho, Montana and Nevada into a 12th Circuit. It would leave the 9th Circuit with California, Hawaii, Oregon, Washington, Guam and the Northern Mariana Islands. Arizona has been part of the 9th Circuit since 1912.
Flake and McCain’s bill would put Washington in the 12th Circuit.
The 9th Circuit is by far the largest in the federal judiciary, covering the most people and accounting for about a third of the pending cases in the appeals courts as recently as 2015, according to figures from the Administrative Office of the U.S. Courts.
The court has frequently clashed with Arizona’s more-conservative lawmakers.
The differing legal views were on display in the run-up to the November elections, when the 9th Circuit’s judges overturned Arizona’s “ballot harvesting” ban that limited the number of ballots that could be collected and submitted to election officials. One day after that ruling — and just four days before the election — the Supreme Court unanimously overturned the lower court’s decision.
Other cases at the 9th Circuit in recent years have frustrated Arizona’s Republican-controlled Legislature, including a 2011 decision to uphold bans on key parts of Senate Bill 1070, Arizona’s immigration-enforcement law, and the 2013 decision to strike downArizona’s ban on abortions after 20 weeks of pregnancy.
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