Nearly four years ago, I published a Wall Street Journal oped alongside Arizona attorney general Mark Brnovich arguing for splitting up the Ninth Circuit — but not because it’s liberal. Instead, it’s simply too big, covering 40% of the nation’s land mass and 20% of its population. As a result, it decides an extraordinary number of appeals — more than 11,000 a year, half again as many as the second-busiest circuit and nearly triple the average. It’s not good for access to justice or consistency in the law; Ninth Circuit judges don’t even have time to read their colleagues’ opinions!

As I went on to explain in a 2019 law review article — which exhaustively details the arguments for and against a split, and how that division could work — there’s a myth that the San Francisco-based federal appellate court leans left because it contains some of the bluest states in the country: California, Hawaii, Oregon, and Washington.

But presidents from both parties appoint judges in all states, so the court’s ideological tilt is a function not of geography but history. To reflect the growing population (and thus caseload) of Western states, Congress in 1978 added 10 judgeships, nearly doubling the Ninth Circuit’s size. Jimmy Carter filled those seats, which effectively “stayed in the family” as judges timed their retirements to coincide with Democratic presidencies. Forty years later, for example, the Ninth Circuit was the only circuit to have a majority of Democratic-appointed judges when Barack Obama became president.

But regardless, all that political history is behind us. After Donald Trump had 10 judges confirmed to the Ninth Circuit (of the 29 total judges in active service), the ratio of Democratic- to Republican-appointed judges now sits at 16:13. That’s hardly a wild skew — and indeed five circuits now have a higher D:R ratio!

So perhaps, as Rep. Darrell Issa (R‑CA) recognized at a hearing about adding federal judgeships — an issue my colleague Tommy Berry has been covering — “Today the Ninth Circuit is relatively balanced, and perhaps this is the most nonpartisan time to reorganize the Ninth Circuit.”

To that end, earlier this year, Rep. Michael Simpson (R‑ID) introduced the Ninth Circuit Court of Appeals Judgeship and Reorganization Act. That bill has a lot of similarities to the Judicial Efficiency Improvement Act, which Sen. Dan Sullivan (R‑AK) introduced in the previous Congress. Sullivan’s bill, which is likely to be reintroduced, would also add judgeships in places that have been designated “judicial emergencies,” meaning those with severe backlogs and case delays.

I’m agnostic on the details, both with respect to precisely which states would go into a new Twelfth Circuit and where/​how many new judgeships are needed, but the case for judicial restructuring is irrebuttable. And unlike with packing the Supreme Court, there should be no ideological or partisan concern on any side. Breaking up the Ninth Circuit is a basic matter of legal administration and preserving the rule of law.