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Home / Opinion / Commentary / Flake’s cynical attempt to break up the 9th Circuit Court of Appeals

Flake’s cynical attempt to break up the 9th Circuit Court of Appeals


U.S. Sen. Jeff Flake chaired a Senate hearing in Phoenix on August 24 to discuss breaking up the 9th Circuit Court of Appeals into several smaller circuit courts.

This hearing may sound like a snooze-fest — after all, who cares about the ministerial structure of the federal courts? — but in fact it represents one of the more cynical and undemocratic attacks Flake has waged.

Brett Hartl

Brett Hartl

As background: The circuit courts are the intermediate courts of appeals below the U.S. Supreme Court. Since the Supreme Court only hears about 70 cases a year, the circuit courts are often the last word on topics that affect the daily lives of all Americans. Flake, an extreme libertarian, takes issue with the 9th Circuit because it’s sometimes more progressive than other circuits in its rulings. So Flake wants to create a new circuit made up of just deep red states in the West — full of judges reflecting those philosophies — in the hopes of advancing his agenda.

Republicans have learned that when they don’t have the numbers and aren’t winning the contest of ideas, they can still win by rigging the game. Think of this as judicial gerrymandering. Carve up the map to minimize the geographic reach and influence of those you disagree with, and then expand the map to maximize the influence of those you do agree with.

Most of the circuit courts were created in the late 1800s and early 1900s. They weren’t designed to advance a radical, liberal agenda. In fact, the 9th Circuit has both liberal and conservative judges, and all of them must faithfully uphold the laws of the United States and the Constitution. But if the scales can be tipped even slightly to give Republicans a tactical edge, then it’s worth it, in the eyes of someone like Flake. Who knows — if you just create enough conservative circuit courts, and get a few more conservative judges, and then maybe you can keep your failed ideas alive a little longer even if they are on the wrong side of history.

At the end of the day, what Flake really takes issue with is progress. Our courts are not perfect, but over our country’s history they have, in general, moved us forward because our Constitution seeks to create a more perfect union over time. Whether it’s gay marriage, civil rights, rights of immigrants and workers, or protection of the environment, our courts have slowly helped the law reflect our society’s changing values. Flake simply resents those kinds of steps forward.

Earlier this year the 9th Circuit struck down Trump’s “travel ban,” and a lower court in California threw out the president’s order withholding federal funds from cities that refused to enforce Trump’s divisive immigration crackdown. Not surprisingly, Trump is now also a champion of splitting the 9th Circuit.

But at the end of the day, the only real winners of splitting the 9th would be special interest polluters, corporate raiders and big business, those who typically benefit from far-right policies that favor corporations over workers’ rights, pollution over public health, and extractive industries over the environment.

The split fits perfectly within Flake’s agenda. He has introduced legislation to weaken the Clean Air Act and gut the Endangered Species Act, and has voted for every regulatory rollback the Republicans have pushed in the first six months of the Trump administration. He knows that even if he can’t pass legislation that implements his agenda, he can make the courts friendlier to that agenda.

Don’t be fooled by Flake’s innocuous reasons he professes for splitting up the 9th Circuit. Targeting our courts based on ideological disagreement is profoundly dangerous to this country and a threat to each and every one of us.

— Brett Hartl is the government affairs director for the Tucson-based Center for Biological Diversity.


The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.


  1. It’s clear from Mr. Hartl’s ignorant comment about Flake’s political alignment that he knows nothing about what libertarians stand for. Mr. Flake is a pathetic excuse for a libertarian.

    While Mr. Hartl may believe that the ninth circuit is bound to uphold the Constitution, he should also be aware that the ninth’s opinions are overturned by the Supreme Court more often than any other district–they are NOT in touch with the will of the people or the Constitution.

    It is not (and never has been) the role of the judiciary to make law, a power reserved exclusive to the legislature. As with all inferior federal courts, the ninth is subject to oversight by Congress and Congress is Constitutionally empowered to create, populate, and destroy them as it sees fit.

  2. Congress IS the Constitutional authority to regulate the courts. I think the author forgot this most important point in the article here.

  3. The president names the federal judges — the “redness” of the states has little bearing, so this isn’t something that can be “gerrymandered”. Both of Ninth Circuit judges sitting in Arizona (Murguia and Hurwitz) are liberal, Democratic appointees. This isn’t just a “let’s make a circuit that is conservative like Arizona’s currently Ninth Circuit judges.”

  4. This is the wrong argument to make. You should have emphasized how politically impractical the 9th is to ever split. Any actual split would only serve to empower California further in the second highest court level.

    All forms of split are detrimental to Republicans, hence despite all the petulant whining since 1970s, nothing has happened. The reason is simple, California is the most dominant state in the West.

    First off any split that isolates California only serves to make its judges more powerful. Instead of the 50% or so chance you get a California judge, now it is 95%, any of whom can make the same nationwide judgements such as nixing Trump’s travel ban.

    Furthermore there is a concept known as senatorial courtesy. Essentially speaking senators may refuse to have a judge nominated for voting. Considering California is not voting any Senator remotely conservative in the foreseeable future, this only serves to add more liberal rulings at the higher levels in the eyes of conservatives.

    Basically what is happening now is that the 9th serves to contain California by dint of size. California has roughly 10% of US population and the 9th has 20%. Though it is regrettable so many states need to revolve around California, removing the chains of the beast is worse.

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