Breaking up the 9th Circuit court would not end the perceived forum shopping that has prompted President Trump's rage, legal experts say.
Forum shopping refers to the practice of lawyers seeking a sympathetic judge to rule in their favor and then bringing a particular legal challenge in that judge's jurisdiction.
Trump reiterated that he's "absolutely" considering breaking up the 9th Circuit in an interview with the Washington Examiner's Sarah Westwood on Wednesday. Trump cited his concerns about how "everybody immediately runs to the 9th Circuit" to obtain unfavorable decisions against him because they believe the 11-state western federal appeals court to be "semi-automatic."
Lawyers of all philosophical persuasions forum shop, so while liberal litigators may look to California for judges sympathetic to liberal outcomes, other attorneys will go to states such as Texas with hopes of reaching results that would benefit conservatives.
But legal experts across the philosophical spectrum say breaking up the 9th Circuit would not necessarily remedy the problem Trump wants fixed.
"You can do a lot in terms of forum shopping by going to district courts, and breaking up a circuit makes no difference in that process," said Caroline Fredrickson, president of the American Constitution Society, a progressive group.
Fredrickson said disentangling the 9th Circuit would take years and it's hard to know whether any such changes would change the outcomes of any given case.
Trump's most recent remarks about breaking up the 9th Circuit came in the aftermath of a San Francisco-based federal judge's temporary blockade of the president's efforts to withhold funding from municipalities that do not comply with immigration enforcement officers, called sanctuary cities. While the case could be appealed to the 9th Circuit, the case, filed by Santa Clara County and San Francisco was not an instance of forum shopping.
Trump has long expressed his concerns about the 9th Circuit, following a panel decision from the circuit preventing his immigration ban from taking full effect.
Dan Goldberg, legal director of the progressive Alliance for Justice, said he does not think Trump understands the administrative hurdles that would need to be cleared to undo the circuit.
"I'm not sure the president realizes that he doesn't have the unilateral authority to break up the 9th Circuit," Goldberg said.
Josh Blackman, a South Texas College of Law professor and conservative, does not think breaking up the circuit is likely to happen and does not think it would make much of a difference if it did.
"This perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation," Blackman said in an email. "Even if the 9th Circuit was split up (which it won't be), the judges on these two new courts would be the same. It wouldn't make much of a difference. The only way an impact could be made is if the president was able to create new judgeships in these states, but due to the blue slip policy, it is unlikely Trump could get anyone confirmed."
The Senate Judiciary Committee's blue slip policy allows a senator to block a judicial nominee from his state whom he opposes from receiving a committee hearing or vote.
Arizona Sen. Jeff Flake has a plan, called the "Judicial Administration and Improvement Act of 2017," that would create a new 12th Circuit from states currently in the 9th Circuit's jurisdiction. Under Flake's plan, the new 12th Circuit would cover Alaska, Arizona, Idaho, Montana, Nevada and Washington state. The states staying in the 9th Circuit would include California, Oregon, Hawaii and the territories of Guam and the Northern Mariana Islands. Flake introduced the legislation before the 9th Circuit's decisions against Trump's policy agenda that have fueled the president's rage.
Flake argues that breaking up the 9th Circuit as he has proposed would eliminate the inefficiencies evident in the federal appeals court's deliberations.
The 9th Circuit's roster of active judges is so large that its full court reviews do not include all of the judges on the court — as other circuit courts do — but only a portion of them. When the 9th Circuit considered litigation on Trump's immigration ban earlier this year, every judge on the court did not participate in the full review. The 9th Circuit includes 29 active judges, but en banc reviews are conducted by the chief judge and 10 others chosen at random.
But it's not clear whether Trump supports Flake's proposal — or any other one for that matter. Flake told the Washington Examiner in March that his team had spoken with the White House counsel's office about the matter, but it's not clear if Trump has any intention of acting on his desire to quash the 9th Circuit court that has not returned decisions he deems acceptable.
Elizabeth Slattery, a legal fellow at the right-leaning Heritage Foundation, said she thought the philosophical persuasion of a particular circuit should not be a motivating factor for why the circuit should be broken up.
"The ideological bent of a circuit isn't a good reason to split it up in my opinion," Slattery said. "One thing that I've heard mentioned is that a problem with taking out all of these potentially more moderate or conservative states and the judges who are more moderate and conservative is that you lose the sort of moderating influence that they can have on more radical liberal judges who would still be in the new 9th Circuit.
"One of the good things that I think about the 9th Circuit right now is that you have a number of conservative judges who even though the conservative cause may not prevail in a case, they're able to write a dissenting opinion which then gets the attention of Supreme Court clerks and they bring the case to, it kind of helps them highlight the case if it's appealed up to the Supreme Court."
Slattery said she is "not confident" that the heavy lift of breaking up the 9th Circuit—including funding for staffing and the construction of headquarters of a new 12th Circuit—will be made by Trump, given his other priorities.
Fredrickson, from the left-leaning American Constitution Society, is doubtful that Trump will blow up the 9th Circuit, either.
"It's hard to say whether he's serious or not because he's so quixotic on so many things," Fredrickson said. "We'll have to wait and see but I think it's a bad idea, it's been bad in the past, nothing's changed to make it better. So I don't think it's going anywhere."