An interesting article on the Volokh Conspiracy addresses the question:
Advocates of splitting the U.S. Court of Appeals for the Ninth Circuit often point to the court’s high reversal rate by the Supreme Court. An editorial in Monday’s W$J, for instance, noted that the Ninth is 0-8 so far this Supreme Court term. Tallying the Justices’ votes in cases reviewing Ninth Circuit decisions, the justices have gone against the Ninth 67-5.
Accepting that the Ninth Circuit appears to be out of step with the Supreme Court, the interesting question for researchers is why? Some think it is a partial consequence of the court being too big. With so many judges, and without full court en bancs, the argument goes, the Ninth is less able to maintain a coherent jurisprudence. Others argue it’s just a question of ideology, and that the Ninth Circuit has more than its share of independent-minded judicial ideologues. Which, if either, of these is true? And would splitting the Ninth do anything about it?
For those of you unaware of this, the Ninth Circuit (covering such states as California, Hawaii, Washington, Oregon, etc.) is probably the most liberal federal circuit court in the country. If you look up “activist judges” in the dictionary, “Ninth Circuit” will be what you find. The interesting question is, what is to be done about this pointless redoubt of dead-end neo-Bolshevism? It serves no valid purpose whatsoever to waste everyone’s time by letting them continue to churn out legal opinions that will be shot down by the Supreme Court. Splitting them now would give Bush a chance to appoint newer, more conservative judges to their positions, a trend the Brownback Administration could easily continue.
Here’s a good solution from the comments over there:
Let’s split the circuit, making the current 9th fall within the geographic borders of San Francisco.
That way, the 9th will be able to continue playing to its ideological brethren and the new circuit can be for the rest of us
I don’t think I’d have a problem with that.