www.peakforensics.com Jefford Englander
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Response to 1: New judges should be added.
Maybe the two new circuits could both
have 17 judges (equal to the Fifth Circuit)
such that there would be five more judges
than are currently in the Ninth Circuit. But
even so, if no new judges are added, the situation is still improved by a split. Judges in
the newly created, smaller circuits would
have an easier time reading all of the circuit
court’s rulings; the new circuits would allow for greater collegiality because judges
would more frequently sit on panels together (there are fewer combinations of three
judge panels from a circuit of, say, 17 judges, then there are from a circuit of 29 judges); the new circuits could hold en banc
reviews with all circuit judges present; states
such as Arizona would host a higher percentage of judges in a smaller circuit; more
states would host appellate arguments; and
travel distances would likely be reduced if
the geographic span of the two circuits is
reduced from the Ninth Circuit’s current
Status Quo Argument 2: Creating a new circuit would require a whole circuit-full of
new, duplicative infrastructure. That would
Response to 2: We certainly don’t support
the unnecessary use of taxpayer funds, and we
acknowledge that there would be costs involved in creating a new circuit. But cost cannot be the be-all-end-all. If it were, we would
scrap the entire Arizona government in favor of being governed from Sacramento.
After all, if we did that, we wouldn’t need the
duplicative infrastructure of our own state
capitol building, and we might not need the
buildings of Arizona State University because UCLA has ample facilities. Moreover,
this line of reasoning suggests we should
perhaps collapse all circuits into one circuit,
such that the federal circuit would just be
one building in Washington, D.C. right
next to the United States Supreme Court.
Though cost-efficient, such a system would
deprive states of input and autonomy.
Status Quo Argument 3: Even if much of
the infrastructure is already in place for a
new circuit, there would be other costs such
as additional security guards.
Response to 3: We think these costs are overblown. But even if they aren’t, cost should
be balanced with an increase in the quality
of justice. Costs such as these are worth the
expenditure. When the FBI for decades
refused to record custodial interrogations,
they pointed to the high costs of recording
equipment as an excuse for maintaining the
status quo of taking hand written notes
when a defendant confessed. Similarly, for
years, police agencies resisted employing
body cameras on police officers. Now, however, most agencies acknowledge that the
cost of these cameras is worthwhile as they
can significantly reduce incidents of police
misconduct. We see the cost argument
against splitting the Ninth Circuit as one
that will similarly fall by the wayside once
the benefits of a split are fully realized.