www.azbar.org/AZAttorney 42 ARIZONA ATTORNEY JULY/AUGUST 2017
Status Quo Argument 4: Dividing the Ninth
Circuit into two circuits would create divisions in western law that would hamper
economic interaction between the states.
Response to 4: Arizona currently has successful economic relationships with Utah and
New Mexico (Tenth Circuit). There’s no
reason why it should be any different with a
Status Quo Argument 5: Beware the law of
unintended consequences when splitting
the Ninth Circuit.
Response to 5: We take this argument very
seriously as well, but when Arizona is under
the thumb of other states, and when justice
is jeopardized, we must risk the consequences
of disrupting the status quo. Moreover, no
great harm—indeed, the opposite—came
from splitting the previously oversized Fifth
Circuit in 1981.
Trish Refo, one of Arizona’s finest attorneys, will likely offer additional, thoughtful
reasons for preserving the Ninth Circuit as
it is, and we look forwarding to reading her
arguments. At the end of the day, however,
there is no denying that the Ninth Circuit is
at least double the size of every other circuit
and that this unprecedented size both minimizes Arizona’s voice and jeopardizes the
pursuit of justice in our legal system.
1. Jeff Flake & Doug Ducey, Our Turn: Why Arizona Needs To Move Out
of the 9th Circuit, ARIZ. REP., Feb. 21, 2017, www.azcentral.com/
3. Suevon Lee, Sens. McCain, Flake Introduce Bill To Split 9th Circuit,
LAW360, Feb. 2, 2017, www.law360.com/articles/888068/sens-
4. Hon. John M. Roll, Split the Ninth Circuit: It’s Time, ARIZ. ATT’Y,
Sept. 2005 at 38, www.myazbar.org/AZAttorney/PDF_Articles/
5. Jeremy P. Jacobs, Westerners Try Again at Opting Out of 9th Circuit,
E&E NEWS, Feb. 4, 2016, www.eenews.net/stories/1060031790
6. Active Ninth Circuit judges (effective Jan. 2017), www.ca9.uscourts.
7. Matt Ford, Arizona v. Ninth Circuit Court of Appeals, THE ATLANTIC,
Feb. 4, 2016, www.theatlantic.com/politics/archive/2016/02/
8. U.S. HOUSE JUDICIARY COMMITTEE, Examining Ideas for Restructuring
the Ninth Circuit, Testimony of Brian Fitzpatrick, March 16, 2017,
9. See our own data set for all of this: https://docs.google.com/spread-
10. Conrad Burns, Splitting the Ninth Circuit Court of Appeals: An Idea
Long Overdue, 57 MONT. L. REV. (1996), http://scholarship.law.umt.
11. Charlie Savage, A Judge’s View of Judging Is on the Record, N. Y. TIMES,
May 14, 2009, www.nytimes.com/2009/05/15/us/15judge.html
12. Ariane de Vogue, Trump Considering Proposals To Break Up the 9th
Circuit, CNN, April 26, 2017, www.cnn.com/2017/04/26/
13. Ben Feuer, The Republican Case for Breaking Up the Notoriously
Liberal 9th Circuit Makes No Sense, L.A. TIMES, March 19, 2017,
14. United States – American Indian and Alaska Native Population
Percentage, 2013 by State, INDEX MUNDI, www.indexmundi.com/
15. Inter Tribal Council of Arizona, Member Tribes, http://itcaonline.
16. Michael Kiefer, First Native American Woman Confirmed as Federal
Judge, USA TODAY, May 16, 2014, www.usatoday.com/story/news/
17. Tribal Law and Policy Institute, Public Law 280, www.tribal-institute.
18. Julia Shumway, Fact Check: Gosar Correct on Private Land in Arizona,
ARIZ. REP., April 13, 2015, www.azcentral.com/story/news/politics/
19. Paul Davenport, At Arizona Centennial, Some Things Haven’t
Changed, ARIZ. CAP. TIMES, Feb. 13, 2012, http://azcapitoltimes.
20. Hon. Alex Kozinski, Criminal Law 2.0, 44 GEO. L.J. ANN. REV. CRIM.
PROC. (2015), https://georgetownlawjournal.org/assets/kozinski-
21. U.S. Court of Appeals, Cases Commenced, Terminated and Pending
June 30, 2015-June 30, 2016, www.uscourts.gov/sites/default/files/
23. Hon. J. Clifford Wallace, The Ninth Circuit Should Not Be Split, 56
OHIO ST. L.J. 941, (1995), https://kb.osu.edu/dspace/bitstream/
24. Carol J. Williams, Judges’ Deaths Add to 9th Circuit Backlog, L.A.
TIMES, Oct. 15, 2011, http://articles.latimes.com/2011/oct/15/
25. Governor Doug Ducey, Arizona Congressional Leaders Call for
Removal of Arizona From the Ninth Circuit, https://azgovernor.
26. Ninth Circuit, Frequently Asked Questions, Dec. 1, 2016,
27. Deborah J. Saunders, Short Circuit: Bill Aims to Deep-Six 9th,
CREATORS, Feb. 9, 2017, www.creators.com/read/debra-saunders/
28. Letter from Justice John Paul Stevens to Justice Byron R. White, Aug.
24, 1998, www.library.unt.edu/gpo/csafca/hearings/submitted/
29. Sanford (Sandy) Svetcov & Janelle Kellman, The “No Split” Split of the
Ninth Circuit-the End of the World As We Know It? 15 J. L. & POL.
495, 501 (1999).
30. Roll, supra note 4.
31. Diarmuid F. O’Scannlain, A Ninth Circuit Split Study Commission:
Now What? 57 MONT. L. REV. 313, 316 (1996).
32. U.S. HOUSE JUDICIARY COMMITTEE, Examining Ideas for Restructuring
the Ninth Circuit, Testimony of Dr. John C. Eastman, March 16,
03.16.17-Eastman-Testimony.pdf (page 6).
33. O’Scannlain, supra note 31, at 315.
PRO Splitting the Ninth Circuit