Arizona's GOP governor wants out of the liberal 9th Circuit

Arizona Gov. Doug Ducey and Attorney General Mark Brnovich, both Republicans, want their state out of the liberal 9th U.S. Circuit Court of Appeals district.

Ducey announced on Thursday he’s partnering with U.S. Sen. Jeff Flake and Rep. Matt Salmon, both from Arizona, to push legislation to make the move.

According to the Arizona Republic, Ducey also wrote a letter to House Speaker Paul Ryan, R-Wis., and Senate Majority Leader Mitch McConnell, R-Ky., in October requesting legislation to reform the 9th Circuit, which he said is too overloaded with cases to be efficient or effective. He requested Arizona either join the 10th Circuit or form a new circuit, which he suggested could include “Arizona and other non-coastal states.”

The 9th Circuit is headquartered in San Francisco, one of the country’s most socially and politically liberal cities, and serves California, Oregon, Washington, Hawaii, Alaska, Nevada, Idaho, and Montana—in addition to Arizona. Ducey’s argument focuses not on politics but on the court’s caseload, which at 13,000 current pending cases is roughly three times larger than the next largest U.S. circuit. He also accused the court of inconsistency, noting its 77 percent reversal rate.

The 10th Circuit holds jurisdiction over Colorado, New Mexico, Kansas, Wyoming, Oklahoma, Utah, and sections of Yellowstone National Park. As of January, it had about 1,259 pending cases—less than one-tenth of the 9th Circuit’s load.

One of the 13,000 pending at the 9th Circuit is the case against an Arizona law passed in 2012 that compels abortion providers to follow FDA guidelines when administering abortion medication. Current FDA guidelines recommend doctors only administer the abortion pill up to a woman’s seventh week of pregnancy and administer the second dose at a doctor’s office. Abortion providers widely ignore those guidelines, prescribing the medication into the ninth week of pregnancy and allowing women to take it at home.

Planned Parenthood sued Arizona over the law, arguing it substantially burdens women’s access to abortion. (Planned Parenthood has not sued the FDA over the guidelines.) A Maricopa County judge ruled in favor of Planned Parenthood, but the state appealed. Both the 5th and 6th Circuits have upheld similar laws in Texas and Ohio.

Politically, the 9th Circuit has been tough on Arizona laws. In 2008, the Arizona legislature passed a constitutional amendment defining marriage as only between one man and one woman. Two same-sex couples sued the state in 2014, and the 9th Circuit ruled in their favor, nullifying Arizona’s constitutional amendment. The U.S. Supreme Court ultimately upheld the 9th Circuit’s ruling, legalizing same-sex marriage across the country.

This is the first request from Ducey, who was elected governor in 2014, to change Arizona’s appeals court affiliation. But the request itself isn’t new. Retired Supreme Court Justice Sandra Day O’Connor, an Arizona native, unsuccessfully requested the state move to the 10th Circuit. Former Sen. John Kyl also made the request in the mid-2000s, prompting Congress to hold hearings. Ultimately the issue died. But Kyl, along with an unlikely ally, Sen. Dianne Feinstein, D-Calif., succeeded in 2007 in getting an additional judge added to the 9th Circuit to help carry the caseload burden.

Kyl publicly praised Ducey on Thursday for his renewed push. Still, he said, it’s a politically difficult argument. It’s unlikely Ducey will be successful in the near enough future to change the fate of Arizona’s 2012 medication abortion law. Even if he is, splitting a circuit or moving to the 10th Circuit could take years to implement.