even if Paul’s methodology were correct,
there is a simpler, less disruptive and far less
costly way of addressing what he sees as a
problem: ask Congress to create additional
—Hon. Michael Daly Hawkins
Senior Circuit Judge
U.S. Court of Appeals for the Ninth Circuit
SPLIT OF OPINION
My friend Paul Charlton, whose exemplary
service as U.S. Attorney I’ve long admired, premises his argument in favor of splitting the Ninth Circuit
(ARIZ. ATT’Y, July/
August 2017) on the
idea that Arizona is
the Court of Appeals.
Paul uses general population as the metric.
The problem is that
the allocation of judicial positions is based on caseload, not general
population. In the past 20 years (1996–2016), appeals from the
District of Arizona have accounted for between five percent and
eight percent of the overall appellate caseload. So at 10 percent of
the judgeships, Arizona is actually overrepresented. California, by
comparison, contributes about 65 percent of the caseload, yet has
only 40 percent of the judgeships. Arizona’s good fortune in this
regard is a consequence of having 36 years of bipartisan representation on the Senate Judiciary Committee. More importantly,
ARIZONA A TTORNEY is
proud to provide a
forum for members
to voice their opinions. Letters should
pertain to recent
articles, columns or
letters to the editor,
though letters of
more general interest
will be considered.
Please limit letters to
300 words. Unsigned
letters are not
published. All letters
are subject to editing.
Send letters to
Custom solutions. Crafted for attorneys.
We understand the complexity of your financial needs. That’s
why we have created the Law Financial Solutions Package —
a portfolio of custom solutions designed specifically for attorneys.
Discover how our concierge level service can accommodate all
of your business and personal financial needs.
• Custom Mortgage Solutions • Higher Loan-To-Value with No PMI
for Residential Loans
• Home Equity Loans
• Practice Buy-In Loans • Unsecured Lines of Credit
• Stock Secured Lines of Credit • Trust and Wealth Management Services
• IOLTA Accounts • Premium Deposit Rates
NMLS ID# 1182443
www.azbar.org/AZAttorney 34 ARIZONAATTORNEY JULY/AUGUST2017 www.azbar.org/AZAttorney JULY/AUGUST2017 ARIZONAATTORNEY 35
PAUL CHARLTON is a partner at Steptoe & Johnson LLP. He was a career
state and federal prosecutor, appeared often before the Ninth Circuit, and
served as the former U.S. Attorney for the District of Arizona. STEPHEN
RICHER is an associate at Steptoe & Johnson LLP. He previously worked as a
Washington, D.C., think tank analyst, a journalist, and an entrepreneur.
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.
In a federal courtroom in the early 1990s, a new
assistant U. S. attorney prosecuted an elderly Navajo male charged
with attempted homicide for having cut his wife’s throat from ear to
ear using a pair of sheep sheers. The defendant was convicted of the
charge, and on the day of sentencing, the defendant, who spoke not
a word of English, used a Navajo translator to assist him. As part of
the colloquy for the district judge handling the sentencing, the judge
asked the defendant: do you have any questions for the prosecutor?
There followed five minutes of dialog between the translator and defendant before the defendant finally looked, with recognition, at the
prosecutor, spoke with the translator, and the translator responded to
the judge: no, I have no questions.
As the translator left the courtroom, the assistant U. S. attorney
stopped her and asked why such a seemingly simple question had
taken five minutes to answer. It was, said the translator, because the
Navajo have no word for “prosecutor,” and the concept of prosecution by the government was unknown to this elderly Navajo. Instead,
the translator had to reach back to a more familiar concept for the
defendant: The Navajo Long Walk to Fort Sumner, a murderous and
deadly affair led by Kit Carson in which hundreds of Navajos died as
they were forcibly removed from Navajo lands. “I asked the defendant,” said the translator, “if he had any questions of the man from
Fort Sumner. And then he knew who you were.”
By geography and jurisdiction, we know that story, tied to a tragic
history, will never repeat itself in any other state or federal courthouse, save one in Arizona. Were there an appeal of that case, even
today, it is unlikely that the defendant would have drawn a Ninth
A desire to have a bench that knows us and our culture, a culture
Splitting the Ninth Circuit is a solution in search
of a problem. There is nothing wrong with the Ninth Circuit. Carv-
ing it up would be a staggeringly expensive and disruptive exercise
that would do absolutely nothing to improve the delivery of justice—
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
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 ne w circuits would each create a
whole ne w set of problems— which explains why the proponents of
splitting the Ninth Circuit hold widely different views about what
the ne w “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
Splitting the Ninth Circuit
BY PAUL CHARLTON & STEPHEN RICHER BY PATRICIA LEE REFO
Arizona Deserves a Fair Deal
Split the Ninth Circuit
Retain the Ninth!
—continued on p. 44—continued on p. 36