PATRICIA LEE REFO is a partner at Snell & Wilmer LLP in Phoenix.
She is a former Chair of the House of Delegates of the American Bar
Association, and a former Chair of the ABA Section of Litigation.
Splitting the Ninth Circuit is a solution in search
of a problem. There is nothing wrong with the Ninth Circuit. Carving it up would be a staggeringly expensive and disruptive exercise
that would do absolutely nothing to improve the delivery of justice—to anyone.
At the most recent congressional hearings on the issue, every
Ninth Circuit judge who testified in person opposed splitting the
circuit. Each laid out in detail why splitting the circuit was both
unwarranted and, frankly, just a really bad idea. Every Chief Judge
of the Ninth Circuit for decades has opposed a split—and who would
know better? The American Bar Association opposes a split. The
Federal Bar Association opposes a split. Not a single state bar within
the circuit is advocating for a split. Aside from politicians with a
partisan agenda, there is no constituency supporting a split.
The Ninth Circuit is a large but efficient, effective circuit that
leads the nation in using technology and case management tools to
increase productivity and save taxpayer dollars. It leverages its size to
serve our citizens and advance justice. It is neither a black hole of
litigation delay nor a renegade court that relentlessly colors outside
the lines. Moreover, the proposed new circuits would each create a
whole new set of problems—which explains why the proponents of
splitting the Ninth Circuit hold widely different views about what
the new “split” circuits should look like. Finally, splitting the Ninth
Circuit would be bad for the citizens of Arizona and for the administration of justice in our state.
We Have Seen This Movie Before
The notion of splitting the Ninth Circuit has been floating around
for decades. “Like the emergence of cicadas from the soil,” proposals
BY PATRICIA LEE REFO
Retain the Ninth!
—continued on p. 44