9th Circuit says it can rule fairly on a split of its own

The judges haven’t judged their potential future assignments.

The 9th U.S. Circuit Court of Appeals got back to Sen. Jeff Flake, R-Ariz., who was bothered that a spokesman for the court indicated they were opposed to his bill wanting to divide the San Franciscobased panel that reviews Arizona cases.

The court said in a letter that it hasn’t polled its judges for their views on the idea, which actually has four bills pending to split the 9th Circuit in one way or another. And they’ll be totally fair if a lawsuit over the circuit split came to them, the court says.

“There have not been any recent formal discussions by the Court on the four bills currently pending to split the Ninth Circuit,” wrote Cathy Catterson, the court’s executive.

Her letter was a response to Flake, who asked the court to clarify how it arrived at that political decision and wanted to know whether it had formed opinions on other legislative matters.

Flake also asked the court a question that made plain his concerns: “If one of the pending bills to split the U.S. Court of Appeals for the Ninth Circuit were to pass and be challenged in court, what assurances can you give the public that the U.S. Court of Appeals for the Ninth Circuit would be able to adjudicate such a case fairly given that it is on the record ‘strongly opposed to a split’?” Catterson’s answer? “I have absolutely no doubt that the judges of the Ninth Circuit would ... faithfully and impartially discharge and perform all the duties incumbent upon them as Judges of the Ninth Circuit, under the Constitution and laws of the United States, as set forth in 28 U.S.C. §453,” she said, adding those ellipses, italics and statutory citations, presumably to show she means it.

Flake’s bill is co-sponsored by Sen. John McCain, R-Ariz., and has the backing of Arizona Gov. Doug Ducey. A competing bill in the House of Representatives was introduced by Rep. Andy Biggs, R-Ariz., and has the support of the state’s other four GOP members.

Congress has considered splitting the 9th Circuit since 1941.

One reason is the 9th Circuit is by far the largest in the federal judiciary, covering the most people and accounting for about a third of the pending cases in the appeals courts as recently as 2015, according to figures from the Administrative Office of the U.S. Courts.

But the court has also frequently clashed with Arizona’s more-conservative lawmakers.

The differing legal views were on display in the run-up to the November elections, when the 9th Circuit’s judges overturned Arizona’s “ballot harvesting” ban that limited the number of ballots that could be collected and submitted to election officials. One day after that ruling — and just four days before the election — the Supreme Court unanimously overturned the lower court’s decision.

Other cases at the 9th Circuit in recent years have frustrated Arizona’s Republican-controlled Legislature, including a 2011 decision to uphold bans on key parts of Arizona’s immigration-enforcement law.