U.S. GOVERNMENT PRINTING OFFICE

66–528 CC WASHINGTON : 2000

S. HRG. 106–681

REVIEW OF THE REPORT BY THE COMMISSION

ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS REGARDING THE

NINTH CIRCUIT AND THE NINTH CIRCUIT REORGANIZATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

S. 253

A BILL TO PROVIDE FOR THE REORGANIZATION OF THE NINTH

CIRCUIT COURT OF APPEALS, AND FOR OTHER PURPOSES

JULY 16, 1999

Serial No. J–106–37

Printed for the use of the Committee on the Judiciary

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE COHEN, Minority Chief Counsel

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

CHARLES E. GRASSLEY, Iowa, Chairman

JEFF SESSIONS, Alabama

STROM THURMOND, South Carolina

SPENCER ABRAHAM, Michigan

ROBERT G. TORRICELLI, New Jersey

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

KOLAN DAVIS, Chief Counsel

MATT TANIELIAN, Minority Chief Counsel

(II)

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Grassley, Hon. Charles E., U.S. Senator from the State of Iowa ........................ 1

Feinstein, Hon. Dianne, U.S. Senator from the State of California .................... 5

Kyl, Hon. Jon, U.S. Senator from the State of Arizona ........................................ 11

Torricelli, Hon. Robert G., U.S. Senator from the State of New Jersey .............. 24

CHRONOLOGICAL LIST OF WITNESSES

Statement of Hon. Frank Murkowski, U.S. Senator from the State of Alaska .. 7

Statement of Hon. Slade Gorton, U.S. Senator from the State of Washington .. 9

Statement of Hon. Richard Bryan, U.S. Senator from the State of Nevada ...... 20

Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada ............ 22

Statement of Ronald L. Olson from Munger, Tolles & Olson LLP, Los Angeles,

CA .......................................................................................................................... 28

Statement of Hon. Procter Hug, Jr., chief judge, U.S. Court of Appeals for

the Ninth Circuit; Hon. Pamela Ann Rymer, circuit judge, U.S. Court

of Appeals for the Ninth Circuit, and member, Commission on Structural

Alternatives for the Federal Courts of Appeals; Hon. Andrew J. Kleinfeld,

circuit judge, U.S. Court of Appeals for the Ninth Circuit; Hon. Diarmuid

F. O’Scannlain, circuit judge, U.S. Court of Appeals for the Ninth Circuit;

Hon. Charles E. Wiggins, senior judge, U.S. Court of Appeals for the Ninth

Circuit; and Hon. William Browning, judge, U.S. District Court for the

District of Arizona ................................................................................................ 41

ALPHABETICAL LIST AND MATERIAL SUBMITTED

Browning, Hon. William: Testimony ...................................................................... 126

Bryan, Hon. Richard: Testimony ............................................................................ 20

Gorton, Hon. Slade: Testimony ............................................................................... 9

Grassley, Hon. Charles E.:

Prepared statements of:

Justice Byron White .................................................................................. 3

Assistant Attorney General Eleanor D. Acheson .................................... 118

Hug, Hon. Procter, Jr.:

Testimony .......................................................................................................... 41

Prepared statement .......................................................................................... 44

‘‘Analysis of the Final Commission Report,’’ by Chief Judge Procter Hug,

Jr .................................................................................................................... 49

Kleinfeld, Hon. Andrew J.:

Testimony .......................................................................................................... 79

Prepared statement .......................................................................................... 82

Kyl, Hon. Jon: Letter from Senator Kyl to Justice Byron White, dated Nov.

6, 1998 ................................................................................................................... 14

Murkowski, Hon. Frank: Testimony ...................................................................... 7

Olson, Ronald L.:

Testimony .......................................................................................................... 28

Prepared statement .......................................................................................... 35

O’Scannlain, Hon. Diarmuid F.:

Testimony .......................................................................................................... 87

Prepared statement .......................................................................................... 91

Attachments ............................................................................................... 98

Reid, Hon. Harry: Testimony .................................................................................. 22

Rymer, Pamela Ann:

Testimony .......................................................................................................... 59

Prepared statement .......................................................................................... 63

Page

IV

Rymer, Pamela Ann—Continued

Prepared statement—Continued

Exhibit A: Various letters ......................................................................... 70

Wiggins, Hon. Charles E.:

Testimony .......................................................................................................... 113

Prepared statement .......................................................................................... 114

APPENDIX

PROPOSED LEGISLATION

S. 253, a bill to provide for the reorganization of the Ninth Circuit Court

of Appeals and for other purposes ...................................................................... 135

QUESTIONS AND ANSWERS

Responses of Ronald L. Olson to questions from Senator Grassley .................... 150

Responses of Procter Hug, Jr. to questions from Senators:

Grassley ............................................................................................................. 151

Thurmond .......................................................................................................... 152

Responses of Andrew J. Kleinfeld to questions from Senator Grassley .............. 152

Responses of Diarmuid F. O’Scannlain to questions from Senator Grassley ..... 154

Responses of Charles E. Wiggins to questions from Senator Grassley ............... 156

Response of Jon P. Jennings, Acting Assistant Attorney General, to a question

from Senator Grassley ......................................................................................... 156

ADDITIONAL SUBMISSIONS FOR THE RECORD

Letters submitted by Senator Feinstein from:

Therese M. Stewart, Los Angeles County Bar Association, to Senator

Feinstein, dated Apr. 14, 1999 ..................................................................... 158

Lee Smalley Edmon, Los Angeles County Bar Association, to Senator

Feinstein, dated Apr. 16, 1999 ..................................................................... 159

Governor Pete Wilson to Senator Hatch, dated Apr. 15, 1999 ..................... 160

Raymond C. Marshall, president, the State Bar of California, to Senator

Feinstein, dated May 17, 1999 ..................................................................... 161

Gray Davis, State capital, Sacramento, CA, to Senator Feinstein, dated

July 7, 1999 ................................................................................................... 162

Letters to Senator Grassley from:

James R. Browning, U.S. Court of Appeals of the Ninth Circuit, dated

July 21, 1999 ................................................................................................. 163

Peter W. Davis from Crosby, Heafey, Roach & May, dated

July 13, 1999 ................................................................................................. 165

Tony Knowles, Governor, State of Alaska, dated July 13, 1999 ................... 166

James A. Redden, U.S. District Court of Oregon, dated July 13, 1999 ....... 167

Bob Packwood, Sunrise Research, dated July 15, 1999 ................................ 168

Joseph F. Weis, Jr., U.S. Court of Appeals for the Third Circuit, dated

July 30, 1999 ................................................................................................. 168

‘‘Nine Divided by Three a Formula for Unification?’’ by Joseph F.

Weis, Jr ................................................................................................... 169

Ronald L. Olson from Munger, Tolles & Olson LLP, dated Aug. 19, 1999 ......... 174

Prepared statements of:

Hon. Gordon H. Smith, U.S. Senator from the State of Oregon ................... 174

Prof. Arthur D. Hellman .................................................................................. 175

Daniel J. Meador, James Monroe Professor of Law Emeritus, University

of Virginia ...................................................................................................... 184

Joseph T. Sneed, III ......................................................................................... 188

Circuit Judge David R. Thompson .................................................................. 192

(1)

REVIEW OF THE REPORT BY THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR

THE FEDERAL COURTS OF APPEALS REGARDING THE NINTH CIRCUIT AND THE

NINTH CIRCUIT REORGANIZATION ACT

FRIDAY, JULY 16, 1999

U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 9:31 a.m., in room

SD–628, Dirksen Senate Office Building, Hon. Charles E. Grassley

(chairman of the subcommittee) presiding.

Also present: Senators Sessions, Torricelli, and Feinstein.

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S.

SENATOR FROM THE STATE OF IOWA

Senator GRASSLEY. I want to take this opportunity at the start

of this meeting to welcome everybody to this meeting and take care

of a few housekeeping matters to expedite everybody so that they

can use their time allotment very expeditiously. All written statements will be entered into the record, so I would urge witnesses

to summarize, especially since we have so many on this issue who

want to speak.

Normally, we would limit our witnesses to 5 minutes each, but

I have expanded it to 10 minutes for our Senators and our judges.

This is with an acknowledgment that more time would be necessary to discuss the White Commission Report and the year that

it took to put together this report.

Witnesses should also expect to receive written follow-up questions because I doubt if all the members of the committee are going

to be able to be here, especially since we have a vote scheduled at

10:30 a.m. And I would expect responses to the written questions

to be received by the committee 2 weeks after receipt by the panelists.

In addition, the judges’ panel was scheduled to be our second

panel. However, because Ronald Olson from the fourth panel must

attend a funeral of a close friend, we will hear from him after the

panel of Senators is finished.

I want to say that I am very happy to hold this hearing today

to receive the final report of the Commission on Structural Alternatives for the Federal Courts of Appeals and the Federal Ninth

2

Circuit Reorganization Act of 1999. The report, which was released

by the Commission last December, proposes organizing the Ninth

Circuit Court of Appeals into three regional divisions, while keeping the administration of the circuit intact.

At the beginning of this Congress, Senators Murkowski and Gorton introduced S. 253, the Federal Ninth Circuit Reorganization

Act of 1999, which is based upon the recommendations of the Commission’s report. In addition to the reorganization of the Ninth Circuit, S. 253 also follows the Commission’s proposals that would

allow other circuits to adopt measures to deal with the growing

caseloads.

Circuits would have the option of reorganizing themselves into

adjudicative regions in a similar manner, using two-judge panels

instead of the current three-judge panels in deciding appeals, and

establishing a district court appellate panel for hearing certain categories of appeals.

I am not going to finish my statement at this point because it

is very statistical and very factual, and so I am going to just put

most of my statement in the record.

[The prepared statement of Senator Grassley follows:]

PREPARED STATEMENT OF SENATOR CHARLES E. GRASSLEY

Good Morning and welcome to our hearing today on the final report of the Commission On Structural Alternatives for the Federal Courts of Appeals and the Federal Ninth Circuit Reorganization Act of 1999. The report, which was released by

the Commission last December, proposes organizing the Ninth Circuit Court of Appeals into three regional divisions while keeping the administration of the circuit

intact. At the beginning of this Congress, Senators Murkowski and Gorton introduced S. 253, ‘‘The Federal Ninth Circuit Reorganization Act of 1999,’’ which is

based upon the recommendations of the Commission report. In addition to reorganizing the Ninth Circuit, S. 253 also follows the Commission’s proposals that

would allow other circuits to adopt measures to deal with growing case loads.

Circuits would have the option of reorganizing themselves into adjudicative regions in a similar manner, using two judge panels instead of the current three judge

panels in deciding appeals, and establishing a district court appellate panel for

hearing certain categories of appeals.

Although the Commission looked at all of the circuits, the heart of both the Commission’s report and S. 253 deals with the Ninth Circuit. Of the thirteen circuits

in the federal judicial system, the Ninth Circuit is currently the largest in terms

of geographic size, number of judgeships and caseload. The Ninth Circuit currently

covers nine states and over 50 million people. In contrast, the east coast of the

United States is divided up into five circuits. The Ninth Circuit is allocated 28

judgeships, nine more judgeships than the Fifth Circuit, the next largest. Finally,

the Ninth Circuit has a case load of over 8,500 appeals, almost double the average

number of appeals for all other circuits.

Due to the Ninth Circuit’s large size, bills advocating splitting the circuit have

been introduced as early as the 1940s. In 1973, the Commission on Revision of the

Federal Court Appellate System, known as the Hruska Commission, recommended

that Congress split both the Fifth and Ninth Circuits. Though the Commission’s proposals were not enacted, Congress did split the Fifth Circuit in 1981. However, it

left the Ninth Circuit intact. But the issue has remained very much alive. Proposals

to split the Ninth Circuit have been frequent throughout the late 1980s and early

1990s. At the same time, two reports, the 1990 Report of the Federal Courts Study

Committee and the 1995 Long Range Plan for the Federal Courts, have recommended against splitting the Ninth Circuit.

In 1995 legislation was once again introduced to split the Ninth Circuit, and was

taken up again in the 105th Congress. As part of a compromise that many of us

here were involved with, Congress authorized a commission to study ‘‘the structure

and alignment of the Federal Court of Appeals system, with particular reference to

the Ninth Circuit.’’ In December 1998, the Commission released its final report recommending dividing the Ninth Circuit into regional divisions as an alternative to

a circuit split.

3

1 Commission members were Byron R. White, Chair; N. Lee Cooper, Vice-Chair; Gilbert S.

Merritt; Pamela Ann Rymer; William D. Browning. The Commission was authorized to appoint

an Executive Director. The Commission chose Professor Daniel J. Meador, a very competent selection. The statute also authorized the Federal Judicial Center and the Administrative Office

of the United States Courts to serve the Commission, help that was essential.

Deciding how to deal with the Ninth Circuit and the structure of the United

States appellate system in general is a very difficult and delicate issue. Many people, including apparently a majority of the judges on the Ninth Circuit, feel that the

circuit is doing an adequate job of adapting itself to the problems presented by its

size and increasing case load. Others feel that the circuit is too large and unwieldy

to function properly. They argue that the number of judges on the circuit prevents

the court from deciding appeals in a timely manner, hinders judges from working

together in a ‘‘collegial’’ manner, and prevents the court from performing its en banc

function effectively. The 1996 Subcommittee Report on the Judicial Questionnaire

I sent to the federal judges confirmed this split in opinion on whether or not the

Ninth Circuit should be restructured.

The Commission report and the legislation which we will discuss today offers a

compromise in the debate over whether or not to split the Ninth Circuit. Instead

of splitting the circuit, the suggestion is to divide it into smaller adjudicative divisions that would enable judges to function more effectively as a unit. This solution

aims to keep the law of a significant part of the western region of United States

both consistent and in one administrative unit, while solving the problems that size

and caseload have presented.

Senator GRASSLEY. I will conclude by saying that I look forward

to what our witnesses today have to say about the Commission’s

proposals. However, I am also interested in learning more about

the proposed regional divisions and whether there are other alternatives to the current plan of dividing the State of California between two different regions.

Before I turn to our witnesses today, I want to mention that although he is not here to testify, retired Supreme Court Justice

White, who chaired the Commission, submitted written comments

in support of this legislation. Those comments will be available for

the record.

[The prepared statement of Justice White follows:]

PREPARED STATEMENT OF JUSTICE BYRON WHITE

My name is Byron White, safely until September in my home state of Colorado.

I hope the Congressional representatives will welcome my written views about the

subject matter that will be heard.

Pamela Rymer, a very experienced Ninth Circuit Judge, is a member of the Commission, and will represent in person the Commission in a very competent way.

Judge William Browning, also a Commission member and a district judge of the

Ninth Circuit, will accompany Judge Rymer. Professor Daniel Meador, the Executive Director of the Commission, will present a written statement.

In late 1997, Congress created the Commission on Structural Alternatives for the

Federal Courts of Appeals. The statute specified that the Chief Justice should appoint its five members, and he promptly did so.1 The Commission began its work

in early 1998, and it presented its recommendations in a final report to the Congress and the President, pursuant to its statutory mandate, on December 18, 1998.

Although the creation of the Commission was prompted by Congressional difficulty in deciding how to resolve the long-standing debate over what, if anything,

should be done about the Ninth Circuit, the Commission was also directed to study

and make recommendations concerning the entire federal appellate system. In carrying out its charge, the Commission held public hearings in six cities, heard from

dozens of witnesses, received dozens of written statements from others, and spent

ten months of intensive study of the nationwide structure of our appellate courts,

‘‘with particular reference,’’ as the statute required, to the Ninth Circuit.

This study led the Commission to two insights concerning the structure and functioning of the federal appellate courts, and those insights form the premises for the

Commission’s key recommendations. First, there is a significant distinction between

a circuit and its court of appeals. Second, the magnitude and nature of future

4

2 Report of Commission on Revision of the Federal Court Appellate System (1973). That Commission’s recommendation that the 5th Circuit be split was enacted by Congress. Its recommendation that the 9th Circuit likewise be split has never been acted on.

growth and changes in appellate business cannot be reliably predicted and will vary

among circuits; therefore, the appellate courts should have a flexible authority to

deal with such unforeseeable changes.

The distinction between a circuit and a court of appeals is that a circuit is an administrative entity, whereas a court of appeals is an adjudicative body. Acting

through its Judicial Council, each of the twelve regional circuits discharges a variety

of administrative responsibilities concerning the federal courts and judges within its

territory. A court of appeals, on the other hand, is concerned solely with deciding

appeals from district courts within its circuit and from administrative agencies. In

other words, problems of circuit administration are separable from problems of court

of appeals’ adjudication.

Proceeding from that premise, the Commission found no administrative malfunctions in the Ninth Circuit sufficient to call for a division or realignment of the circuit. Thus, it recommended that the circuit be left intact as an administrative unit.

But, the court of appeals in the Ninth Circuit presents a different picture. The

court has 28 authorized judgeships and has requested more; it will undoubtedly

need still more judges in the years ahead. From its study, the Commission concluded that an appellate court of that size, attempting to function as a single

decisional entity, encounters special difficulties that will worsen with continued

growth. These can be avoided by organizing the court into smaller decisional units

(and without dividing the circuit). Thus the Commission recommended that the

court be organized into three regionally based adjudicative divisions and that a

court called the ‘‘circuit division’’ be established to resolve conflicting decisions

among those divisions.

The Ninth Circuit has been the subject of debate and intense controversy for

many years. For that debate to continue year after year into the future is dysfunctional and damaging to the status of the federal judiciary in the public mind. If Congress does not accept the Commission’s recommendations, it is left with two choices:

do nothing or split the circuit. Under the circumstances, doing nothing would seem

irresponsible. Splitting the circuit would have distinct disadvantages and is not necessary. The Commission’s recommendations address the problems that many perceive in the court of appeals, while preserving the administrative advantages of

leaving the circuit undivided.

The Commission’s other insight, leading to its second premise, is that the appellate system needs flexibility to deal effectively with future, unpredictable changes

in the size and composition of the dockets. To this end, the Commission made three

recommendations:

(1) That Congress authorize each court of appeals with more than 15 judgeships

to organize itself into adjudicative divisions, with a ‘‘circuit division’’ to resolve

inter-divisional conflicts;

(2) That Congress authorize each court of appeals to decide appeals through twojudge panels in selected categories of cases;

(3) That Congress authorize the Judicial Council of each circuit to establish district court appellate panels, each panel to consist of two district judges and one

circuit judge, to decide appeals in designated categories of cases, with discretionary review thereafter in the court of appeals.

If the courts exercise their discretionary authority to adopt any of these measures,

the Federal Judicial Center would be required to evaluate the experience over a period of time and report to the Judicial Conference of the United States. Those arrangements that worked well could be models for other circuits; those that did not

work could be discontinued. The ability of courts to experiment in this manner will

be increasingly important in the future as dockets grow and circumstances change.

History teaches that any recommendations for change in the courts are likely to

encounter opposition from some members of the bench and bar. Some of that can

be discounted as nothing more than instinctive reluctance to embrace change. No

proposals for dealing with the judiciary’s problems will achieve perfection, and there

are advantages and disadvantages to any proposal. In arriving at its conclusions,

the Commission weighed benefits and costs carefully, after receiving a wide assortment of ideas from judges, lawyers, law professors, and public officials. The Commission has carried out the most thorough study of the federal appellate courts

since the Hruska Commission a quarter century ago.2 Therefore, it is to be hoped

5

that Congress will give serious attention to the enactment of these recommendations

and that they will have the support of a substantial segment of the bench and bar.

Senator GRASSLEY. I would like to thank our panels for being

here and look forward to hearing their thoughts and suggestions

about the report and this legislation.

Even though you aren’t the ranking minority member, if you

would like to speak for the other side, I would be happy to receive

that at this particular time.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Mr. Chairman. Yes,

I would like to speak for the other side. I would also like to thank

you for holding this hearing.

We are here today, in my opinion, largely because the Supreme

Court reversed the ninth circuit in 26 out of 27 cases in its 1996–

1997 term. Since this inauspicious session, the ninth circuit has

faced incessant, unending charges that it lies outside the mainstream of appellate jurisprudence.

As we move forward with this discussion of the ninth circuit’s future, it is critical and crucial that we get the most up-to-date facts.

The American Lawyer recently reported on the reversal rates of

the ninth circuit in its 1998–1999 term. It reported that the Supreme Court reversed the ninth circuit in 14 out of 18 cases where

it issued definitive decisions, a reversal rate of 78 percent. The

ninth circuit’s own calculation shows an even more favorable result: 11 out of 18 cases reversed.

No matter how you keep score, the ninth circuit had a lower reversal rate last year than the fifth, 80 percent; the seventh, 80 percent; and the eleventh, 88 percent. In 1997, both the fifth and the

eleventh circuits also had higher reversal rates than the ninth circuit. A study of ninth circuit reversal rates also reveals that if a

problem exists on the circuit, Clinton judges are not causing it.

Currently, 20 percent of the judges in the ninth circuit are appointments of President Clinton, yet on only eight occasions in the past

3 years has a Clinton appointee joined or authored a panel opinion

that was later reversed. In comparison, judges appointed by President Reagan have been reversed on 30 occasions.

The fact is Clinton judges are fully in step with mainstream jurisprudence. I think these statistics show that the ninth circuit is

operating more effectively than many would have us believe. However, the ninth circuit can and should be improved. Reversal rates

should be lower, and the public needs to have confidence in the job

the ninth circuit is doing.

In testimony submitted to the White Commission, the Justice Department noted,

We begin with the observation that all available means

of nonstructural reforms should be attempted and assessed

before structural changes are imposed on the Federal

courts.

I couldn’t agree more.

The Justice Department is the largest consumer and participator

in ninth circuit decisions, and as such, I strongly recommend that

6

everyone read the comments on the U.S. Department of Justice on

the tentative draft report of the Commission on Structural Alternatives for the Federal Courts of Appeals. I have read it, and I

agree with much of what the Justice Department has to say.

I hope to introduce on Monday legislation that will enact targeted, nonstructural reforms to the ninth circuit. Entitled ‘‘The

Ninth Circuit Court of Appeals En Banc Procedures Act of 1999,’’

this legislation would institute three major changes to the ninth

circuit procedures.

First, it reduces the number of judges required to grant an en

banc hearing.

Second, it increases the size of en banc panels from 11 judges to

a majority of the circuit.

And, third, it imposes a system of regional calendaring in which

at least one judge from the geographic region where the case arises

would be assigned to that case.

Let me state categorically, as a Californian, as a member of this

committee, I will forcefully do everything I can to prevent the division of the State of California. Nothing I can think of could have

more strong and adverse impacts not only on the administration of

justice but on the treatment of Californians on vital legislation before the ninth circuit.

The criminal caseload of this circuit is a heavy one. The immigration caseload of this circuit is 50 percent of all of the cases in the

Nation. To have people with the likelihood of being treated differently in one part of the State than in another is, frankly, something I could not stand by and watch happen.

So I am anxious to hear the comments of my colleagues. I have

a reasonably open mind, will introduce this legislation on Monday,

hope it will have cosponsors from other Senators in this circuit, and

look forward to hearing from my colleagues.

Thank you, Mr. Chairman.

Senator GRASSLEY. Thank you.

Normally, I wouldn’t have other Senators give opening statements, but Senator Sessions, who is reasonable, asked for 60 seconds. So I will give Senator Sessions 60 seconds.

Senator SESSIONS. Well, I am pleased to have this great panel

here. I know you are concerned about this issue. I have been a critic of the ninth circuit. I have numbers that demonstrate that from

1987 through 1992, every year the ninth circuit’s reversal rate was

substantially higher than the overall reversal rate for the rest of

the country. In 1996, they were reversed 95 percent of the time;

whereas, the nationwide reversal rate, excluding the ninth circuit,

was 62 percent. There are 10, 20, and 30 percent differences almost

every year.

So I do think there is a legitimate concern that the ninth circuit

is not in the mainstream of American law.

Senator GRASSLEY. Thank you, Senator Sessions.

Now I will go to the panel. Normally, I go left to right, but if my

panelist colleagues don’t object, I think it would be more appropriate for me to start with Senator Murkowski, then Senator Gorton, then go to Senators Kyl, Bryan, and Reid, if he shows up. Is

that OK?

7

STATEMENT OF HON. FRANK MURKOWSKI, A U.S. SENATOR

FROM THE STATE OF ALASKA

Senator MURKOWSKI. I very much appreciate that, Mr. Chairman. I am conducting a hearing on Chinese espionage as chairman

of the Energy Committee.

Thanks for the opportunity to testify on this Senate bill 253 to

reorganize the Ninth Circuit Court of Appeals. As you know, Congress has attempted to reorganize the ninth circuit since World

War II. The time for action, in my opinion, is long overdue, and I

think justice bears the price for Congress’ inaction.

In 1997, Congress mandated the White Commission to once and

for all—which is seldom done around here, but it was the intent,

at least, to resolve the severe problems of the ninth circuit court.

Many of the members of the Senate strongly fought for such a

conscientious and thorough study. Senator Boxer indicated that she

was certainly very, very open to splitting the court. The problem

is how we go about it, we ought to have a study. And Senator Feinstein, who is with us today, was quoted as stating, ‘‘A study is the

only practical approach to dealing with an issue as important as

the structure of the U.S. court.’’

Now, this idea of dividing the State of California, I can understand the sensitivity. But please understand, you know, in my

State of Alaska, we are not part of California. Yet the court is in

California. So we are somewhat, you know, indifferent in that regard because we don’t have the same affinity that you do as the

court obviously makes a significant contribution to California as

well.

But putting that aside, I think what we have now is the results

of the study. For the good of the people of the ninth circuit, I would

hope we can act in a bipartisan manner to support what we all

agreed we needed was a study. I don’t think we need another study

on another study. That is the traditional way of doing nothing

around here.

Mr. Chairman, the restructuring of the ninth circuit, as in Senate bill 253, as evidenced by chart 1, is warranted, if you will look

at that chart, for three important reasons: one, its size and population; second, its caseload; and, third, its astounding reversal rate,

which has been discussed this morning.

The ninth circuit is gigantic by any means of the imagination, by

far the largest of the 13 circuits, encompasses 9 States stretching

from the Arctic Circle—think about that—the Arctic Circle to the

border of Mexico. You are looking at some 5,000 miles on the west

coast.

The population: Over 50 million people are served by the ninth

circuit, almost 60 percent more than the next largest circuit—60

percent more. By the year 2010, the ninth circuit’s population will

be more than 63 million. That is a 43 percent increase in just 11

years. That is chart 3 which you can see over there.

The caseload: The ninth circuit’s docket is daunting, last year

over 9,000 new filings, over 1,000 more than the next largest circuit. The result: Cases are decided more slowly, prompting many

to forego the entire appellate process. In brief, the ninth circuit is

a circuit where justice perhaps is not always as swift and not always served.

8

And the reversal rate: The gigantic caseload means it is nearly

impossible for judges to keep up with the legal developments, inevitably resulting in, one, inconsistent decisions and, two, a high reversal rate, which we have acknowledged.

Now, chart 4, this tracks the ninth’s reversal rate. Look at 1997

where the Supreme Court reversed an astounding 19 of 20 ninth

circuit court cases. That is a 95 percent reversal rate.

And chart 5—we are keeping the chart lady busy here. Chart 5,

between 1997 and 1999, the ninth circuit was responsible for 33

percent of all cases reversed by the Supreme Court—33 percent.

I don’t mean any disrespect to the distinguished chief judge of

the ninth circuit by citing these figures. I believe that he and the

circuit are simply overworked and in need of some relief, and this

is what the study proposed.

Now, why is the reversal rate so high? Well, the circuit is simply

too big. Ninth circuit judges are unable to keep up with the

daunting 9,000 cases. As the report reflects, only about half of the

ninth circuit judges are able to read all or most of the published

opinions. And in reading the testimony of some of the witnesses

today, that is the severest critic. They simply don’t have time to

read other judges’ opinions. They don’t really get a feel for the

court.

Of the four Supreme Court Justices who wrote to the Commission on the ninth circuit, all were of the opinion that the ninth circuit must be changed. And I submit their statements for the

record.

[The statements referred to are located in the appendix.]

Senator MURKOWSKI. Additionally, Chief Justice Rehnquist

strongly endorsed the Commission’s report:

I share many of the concerns expressed by my colleagues. The proposal to create three divisions of the ninth

circuit appears to me to address head-on most of the significant concerns raised about that court and would so

with minimal to no disruption in the circuit administration’s structure.

On July 8, the Chief Justice wrote to me stating: ‘‘One, I continue to support the recommendations of the Commission. I wish

you well in your legislative effort.’’

But what about the critics, Mr. Chairman? More judges will resolve the problem, they say. Well, more is not better. In the words

of my former colleague and our revered friend, former Alabama Supreme Court Justice Howell Heflin, ‘‘The addition of judges decreases the effectiveness of the court and potentially diminishes the

quality of justice.’’

Others say some judges will oppose the split. Well, one-third of

the ninth circuit judges strongly favor Senate bill 253, and with

due respect to the judicial bench who oppose the division, the

judges of the fifth circuit were not originally in favor of Congress

dividing that court, either. They weren’t in favor of it. But it was

the right thing to do, as we have seen. Now, we in this timeframe

have that opportunity to do the right thing.

Finally, Mr. Chairman, remember that it is Congress’ constitutional duty to restructure jurisdictions to ensure that justice is not

9

hindered. We cannot forget that we have that duty and obligation.

Indeed, there is nothing unconstitutional, antijudicial, or anti-ninth

circuit about fixing the problems of the ninth circuit.

Final points. Our bill is cost-effective by retaining one administrative office. No new courthouses are needed, and our bill is a

blueprint for circuits to handle future caseload growth. Moreover,

it goes far in strengthening consistency and predictability in law,

and that, Mr. Chairman, is what the people of the ninth circuit deserve.

Last, I want to personally thank the members of the Commission. Their sense of duty, diligence, and wisdom is reflected in their

report. Here is the report, Mr. Chairman, and I only ask that Congress has the prudence to follow its thoughtful recommendations.

That is our obligation.

Thank you for the opportunity.

Senator GRASSLEY. Thank you, Senator Murkowski.

Senator Gorton.

STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM

THE STATE OF WASHINGTON

Senator GORTON. Mr. Chairman, long before this Commission

was created, long before the action by the Senate, in which I played

a major part in creating new circuits out of the ninth circuit, I have

dealt with this very distinct problem. Senator Feinstein to the contrary, it didn’t come up in 1997 with a higher reversal rate.

I began to feel seriously about the division of the circuit when

I was Attorney General of the State of Washington in the early

1970’s. My office was convinced that if we could get the Supreme

Court to take certiorari of a ninth circuit case, we are going to win.

And most of the time, you know, we did just that.

We were convinced then that there was a lack of collegiality or

consistency in ninth circuit decisions due to its size. So this isn’t

a new problem.

In fact, in a Harvard Law Review published in 1969—now, Mr.

Chairman, that is 30 years ago—a professor at the University of

Michigan Law School commented:

As the court has enlarged to meet the burgeoning caseload, however, there is a serious threat that the enterprise

of maintaining the law of the circuit will gradually collapse

because of the inherent weakness of its operation. Indeed,

as the size of the court has increased, the likelihood of differences among judges has increased, and a wider variety

of idiosyncrasies is likely to appear in their decisions.

While there is a limit to the number of different viewpoints possible in a given case, nevertheless, the larger

number of panel variations possible, the more likely it is

that an aberrational view can command an occasional majority. The finding of the committee of the Judicial Conference that a court of more than nine judgeships is likely

to be more unstable than a healthy legal system should

tolerate seems reasonable.

Now, that is 30 years ago, Mr. Chairman. The present 28-judge

court and the lottery system of assigning three-judge panels, you

10

can be appointed a judge of that court at the age of 40 and never

serve with the same panel twice in an entire career. It is impossible to come up with the kind of collegiality that a good court of

appeals ought to attain under circumstances like that.

Four years after that Law Review article, the congressionally appointed Hruska Commission concluded that the ninth circuit was

too big and contained too many judges to be effective. It recommended a split. Congress didn’t act. Since then, the authorized

number of judges has increased to 28, and, finally, 22 years after

the Hruska Commission recommendation, the Senate voted to divide the circuit.

Those who opposed the split, however, argued successfully in the

House of Representatives that the Hruska Commission recommendations were stale and that there needed to be a more contemporary study. We agreed and we created the White Commission.

Now, they were appointed by the Chief Justice of the United

States, Mr. Chairman. They came up with the unanimous recommendation. It seems to me at this point it is simply time to accept the recommendations of that Commission.

I may say not at all incidentally that I regard the Commission

report as better than the creation of the new circuits, which the

Senate passed in 1995. That did raise the question of how many

circuits we might eventually have, but the generalized statement

of the White Commission that when any court of appeals reaches

a certain size it should have the opportunity to divide into divisions

is, I think, extremely sound. And the recommendation means that

we can stabilize the number of circuits and still create a degree of

collegiality that is lacking at the present time.

I am delighted that Senator Feinstein’s proposal will at least

guarantee that one judge in a three-judge panel comes from the

general area from which the appeal arises. The White Commission

simply requires that two do so, a majority. We may not be that far

apart, at least as far as the way in which justice is to be administered is concerned.

Nevertheless, Mr. Chairman, this kind of division, this kind of

cure, it seems to me is absolutely necessary, and if the Congress

can also come up with a way in which we don’t have to deal with

this in the future because these divisions can take place internally,

we will have rendered, I think, a terrific service.

Now, each of us is, of course, parochial. I am as well. Senator Kyl

and I worked very hard on the previous iterations of this system.

He is not completely—he is not satisfied with the particular division that is recommended by the White Commission. Senator Feinstein is not either. I don’t have a dog in that fight. The division

that is created here in the ninth circuit for the Pacific Northwest

is perfectly satisfactory to me and to Senator Murkowski.

I may say incidentally that when we passed the bill, the Senators

from Hawaii determined through their bar that Hawaii would prefer to be in the new Northern Division than staying with California. I suppose it is perfectly possible to create a three-division

structure with California as its own division in this connection if

that is the preference of the people who represent those various

11

States. But the problem exists and the problem isn’t going to go

away with more band-aids.

The thoughtful criticism of the recommendation by the Commission on Structural Alternatives from Procter Hug, the chief judge

of the ninth circuit, questions why we should opt for an untried

proposal over, ‘‘the time-tested procedures now in place.’’ Well, I

would turn the question around. Why not adopt the Commission

recommendations from a former distinguished Justice of the Supreme Court of the United States? The procedures of the ninth circuit may, as Judge Hug asserts, be time-tested but they got an F

on that test. It just simply doesn’t work.

The Commission, chaired by Justice White, has done an extraordinary job and has made a compelling case for an approach that

differs from the status quo, differs from the status quo plus that

the Senator from California talks about, and differs from the one

that we came up with here several years ago, probably because

they spent more time studying it than any of the rest of it does.

I think the answer lies more in human nature than in the nature

of the Federal court system. People are inherently conservative

about their own institutions, not always in their political philosophy but at least with respect to their willingness to change. We

generally don’t like change. The status quo may be highly imperfect or seriously flawed, but it is familiar, comfortable, and so we

cling to it.

I ask you, Mr. Chairman, and the members of this subcommittee

to keep this in mind as you listen to the testimony today and try

to separate the substantive criticisms of the Commission’s recommendations from those criticisms that are, in fact, based on a

natural inclination to resist change. But change, Mr. Chairman, in

this case is desperately needed. It has been needed for 30 years.

We are never going to have a better opportunity to do it than right

now.

Senator GRASSLEY. Thank you, Senator Gorton.

Senator Kyl. Then, Senator Reid, you came in. I was going to do

it in the order of the sponsors, Senator Kyl, Senator Bryan, Senator

Reid. Is that OK?

Senator REID. Fine with me.

Senator GRASSLEY. Senator Kyl.

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE

STATE OF ARIZONA

Senator KYL. Thank you, Mr. Chairman and members of the

committee. First of all, I would like unanimous consent to put a

written statement and a letter dated November 6, 1998, to Justice

White from me into the record as part of my testimony.

Senator GRASSLEY. They will be received and included.

Senator KYL. Thank you, Mr. Chairman.

As a member of this committee, a Senator from Arizona, the

State generates more appeals in the ninth circuit than any other

State except California, a member of the bar who practiced law in

the ninth circuit for about 20 years, wrote a lot of briefs and argued several cases before the ninth circuit, and even took some on

up to the U.S. Supreme Court from there—reversing ninth circuit

12

decisions I had lost—I have a keen interest in how the ninth circuit

is configured.

I think it is clear that the ninth circuit has problems. I don’t

think that can any longer be disputed. And I agree with Justice

White and the Commission that changes are warranted. In that regard, let me just cite two things, one of which is not in my statement.

Justice O’Connor wrote a letter to the Commission. She came

from the ninth circuit as a circuit judge in Arizona, which is part

of the ninth circuit, as you know and she said that, ‘‘The circuit is

simply too large,’’ that some division or restructuring of the ninth

circuit seems appropriate and desirable.

Justice Kennedy also, who was a ninth circuit judge before going

to the U.S. Supreme Court, in a letter to the Commission said,

A court which seeks to retain its authority to bind nearly one-fifth of the people of the United States by decisions

of three-judge panels, many of which include visiting circuit or district judges, must meet a heavy burden of persuasion.

And I believe that that is correct, and in that regard, I think the

comments just made by Senator Gorton are very apropos.

There are a lot of reasons relating to reversal rates, delays in deciding cases and so on why these comments are correct. I am going

to move on—assuming that there is some degree of consensus that

a change is warranted—to the recommendations of the Commission.

I believe the Commission came up with the right concept that allowing the ninth circuit to maintain its administration as a circuit

is appropriate while dividing the adjudicatory function of the court

into divisions is the best way to solve the problems that almost everyone agrees exist. My principal concern is with the specific recommendation the Commission made with respect to those divisions.

It all depends on what degree of priority you assign to different

factors as to how you come out in the creation of divisions. How

important do you think it is to assign roughly equal caseloads or

have roughly equal division of population, to have contiguity, to

keep California intact, to have geographic affinity, to have no more

than three divisions, let’s say? All of those are important considerations, and depending upon how much weight you give to any one

of them, you come out differently.

If, for example, you assign a very high priority to keeping California intact, then you need to come out with a division which has

California as a separate division and then perhaps a couple of

other divisions within the circuit. That leaves you, though, with

about 60 percent of the caseload in the California division, and that

is why the pressure to divide California.

If, on the other hand, you assign a higher priority to caseload

distribution, then there are ways to achieve that roughly equally

if you divide the circuit into four divisions, for example. You could

have roughly equal divisions if you did that, but that would require

dividing California.

Under the Commission’s recommendation, there are three divisions, one of which is the Southern Division. The problem from day

13

one with the recommendations of the Commission is the Southern

Division already needs to be divided again. It would have almost

50 percent of the population and caseload all by itself. Now, that

is of particular interest to me because it has the southern part of

California and Arizona, and that group has 47 percent of the circuit’s caseload, 46 percent of its population, and those are all of the

fastest growing district court divisions and cities in the country.

Los Angeles, San Diego, and Phoenix are the circuit’s three most

populous cities. They are respectively the 2d, 6th, and 7th most

populous cities in the country and among the very fastest growing.

So under the Commission’s recommendations, by the time you put

this into place, you would already need, under its own criteria, to

divide the circuits once again—or divide the divisions once again so

that you could have a more equal distribution of caseload.

As a matter of fact, I think it is instructive that the Commission

itself said: ‘‘The concentration of appeals in the southern part of

the circuit makes it impossible to divide the court’s workload equally among the three divisions.’’ So they acknowledge under their recommendation that they failed to meet one of the most important

tests, which is a roughly equal division of caseload.

The only way to achieve that roughly equal division is, instead

of having three divisions within the circuit, to have four. And one

of the recommendations that I make in a letter that I have now

made a part of the record is to consider dividing the circuit into

four rather than three divisions, which would result in caseload

distributions of 22, 23.9, 23.7, and 30.4 percent respectively, the

30.4 being the southern California division, but that would require

a division of the rest of California.

Mr. Chairman and members of the committee, the bottom line is

this: There is a problem, there needs to be some division, but we

are going to have a hard time agreeing on what that division is because of all of the different parochial interests we have. I urge the

committee to continue this conversation, to have more hearings, to

have a lot of informal meetings among all of those of us who are

most interested, and try to come to some resolution as to how we

can do this in a way that meets all of the needs that we have and

meets the problems that have been identified by the Commission.

Unless we are willing to engage in that kind of a conversation,

frankly, nothing will happen because each one of us has the ability

to stop any one particular plan from moving forward.

So I commend the committee, and, Mr. Chairman, I commend

you for holding this hearing. It is a very, very important subject

matter for us, and I urge the committee to continue these conversations to try to come to some resolution that will be satisfactory to

all of us.

[The letter follows:]

14

1 Commission on Structural Alternatives for the Federal Court of Appeals (Draft Report) (Oct.

1998) (hereinafter ‘‘Draft Report’’) at 48. 2Draft Report at 46.

3Office of the Circuit Executive, United States Court of Appeals for the Ninth Circuit (based

on filings for year ending December 31, 1997) (updated November 1998). 4The Commission’s desire to keep California as part of the Ninth Circuit in order to ensure

that maritime laws remain consistent on the Pacific Rim could be seen as puzzling. Specifically,

under the Commission’s proposal, there would be three different divisions on the Pacific Rim

(and California would be cut in half) and decisions made in one division would not bind any

other division. But by making California its own circuit, the Pacific Rim would have two circuits—a manageable amount considering that the eastern seaboard and Gulf Coast have six circuits. 5Draft Report at 45.

U.S. SENATE,

Washington, DC, November 6, 1998.

The Hon. BYRON WHITE,

Chairman Commission on Structural Alternatives for the Federal Courts of Appeals,

Thurgood Marshall Federal Judiciary Building, Washington, DC.

DEAR JUSTICE WHITE: As a Senator from Arizona (the state which generates more

appeals than any other Ninth Circuit state except California),1 a member of the

Senate Judiciary Committee and the Courts Subcommittee, and as someone who

practiced law in the Ninth Circuit for nearly 20 years, I have a keen interest in

matters affecting the Ninth Circuit. I would like to accept the invitation of the Commission on Structural Alternatives to offer comments on the draft report.

Overall, I believe the draft report is responsive to Congress’ request and will be

helpful in our deliberation. I compliment the Commission for its thoughtful, constructive recommendations.

My principal concern is that, while the Commission’s proposal of organizing the

Ninth Circuit Court of Appeals into regional adjudicative divisions is good in concept, the Commission should evaluate other options for the proposed configurations.

It would be most helpful to Congress if the Commission examined in detail a variety

of alternatives and provided a thorough analysis of the reasons for and against the

alternatives. From the Commission’s draft report, it is unclear why the Commission

configured the divisions the way it did; the report contains no explanation.

Ultimately, the question of reconfiguration depends on what factors are assigned

the highest value—caseload, population, contiguity, consistency of maritime law,

keeping California intact, geographic affinity, having no more than three divisions,

adhering to a ‘‘three-state’’ rule, etc. The Circuit could be divided or split many ways

depending on which factors are the driving considerations. In short, the report

would be much more helpful to Congress if it discussed which factors should be

given priority. I would like to illustrate the point of emphasizing different criteria

by evaluating three plausible options.

POSSIBLE OPTIONS

Keeping California intact: Separate division or circuit for California

If it is important to keep California intact, then perhaps it would be best for California to constitute a separate division or a separate circuit. The Commission states

that it would be ‘‘undesirable’’ to split California between circuits.2 But why not

make California its own circuit? With 61.3 percent of the Circuit’s caseload,3 a California circuit would still be one of the nation’s largest circuits in terms of caseload

and population—and the remainder of the circuit would be a reasonable size.4

Moreover, if it is undesirable to split California between circuits, then perhaps

California should not be split into divisions. Why not make California its own division? The caseload split would be approximately 60–40, which many people would

consider reasonable.

I know that the Commission wants to maintain the court of appeals as presently

aligned to respect the character of the West as a distinct region,5 but California is

different enough from the other states that creating a California circuit or division

would arguably not harm the West as a region.

Finally, I am aware of the oft-expressed view that a circuit should be comprised

of at least three states to maintain a federalizing and regionalizing function. But

it could be more prudent to have a state such as California its own circuit or division than to divide it into divisions containing other states. Indeed, if California

were its own circuit or division, it would have a larger caseload than seven of the

15

6 California would have a greater caseload than the First, Third, Seventh, Eighth, Tenth,

Eleventh, and D.C. Circuits. Judicial Business of the United States Courts, Annual Report of

the Director (1997), Table B–3A (twelve-month period ended September 30, 1997). 7 Judicial Business of the United States Courts, Annual Report of the Director (1997), Table

B–3A (twelve-month period ended September 30, 1997). 8Draft Report at vii.

9 Ninth Circuit Appeals Filed by Fiscal Year of Filing and District of Origin (provided by Commission). 10 Ninth Circuit Appeals Filed by Fiscal Year of Filing and District of Origin (provided by

Commission). 11 Ninth Circuit Appeals Filed by Fiscal Year of Filing and District of Origin (provided by

Commission). 12Draft Report at 48. 13Office of the Circuit Executive, United States Court of Appeals for the Ninth Circuit (based

on filings for year ending December 31, 1997) (updated November 1998). 14Population Division, U.S. Bureau of the Census, SU–96–10. 15Population Division, U.S. Bureau of the Census, SU–96–14. 16Draft Report at 39 n.90 (emphasis added).

remaining eleven circuits.6 Perhaps concerns about bifurcation should outweigh fealty to a ‘‘three-state’’ rule. Having one state comprise a circuit or a division seems

reasonable considering that in many circuits one state dominates. For example, five

circuits (the Second, Third, Fifth, Seventh, and Eleventh) have just three states. In

each of these circuits, one state dominates: New York has 64 percent of the Second

Circuit’s caseload; Pennsylvania has 66.5 percent of the Third Circuit’s caseload;

Texas has 73.6 percent of the Fifth Circuit’s caseload; Illinois has 57.8 of the Seventh Circuit’s caseload; Florida has 57.3 percent of the Eleventh Circuit’s caseload.7

It is unclear why some take the view that having three states in a circuit or a division (even though two of the states have only a small portion of the caseload) is so

important that it precludes creating a separate circuit or division for a large state.

It would be helpful to Congress if the Commission discussed the idea of creating

a separate division or circuit for California.

Caseload: Four-way division

If dividing California is not a problem—and if caseload distribution is a priority—

then it makes sense to consider a four-way division. Under such a division, caseload

(and population) is most equitably distributed. In fact, each division would contain

a higher percentage of cases than the 21 percent comprising the Commission’s proposed Northern Division; yet the highest percentage of cases (30.4 percent) would

not come close to the 47 percent in the Commission’s proposed Southern Division.

The Commission notes that ‘‘pressure continues, and there is little likelihood that

caseloads and work burdens on the judges will lessen in the years ahead.’’ 8 This

is particularly true in Arizona and Southern California. Southern California is the

Circuit’s fastest growing region in terms of caseload. From 1987 to 1997, the appeals

from the Southern District of California increased 143.8 percent and from the Central District of California increased 74.5 percent.9 Based on these increases, the

caseloads in the Southern and Central Districts of California are apt to be, respectively, the third and first largest in the Circuit in 2007 10—comprising more than

43 percent of the Circuit’s caseload.11 Further, as I mentioned above, the Commission states that ‘‘[n]ext to California, Arizona generates more appeals than any

other state in the present Ninth Circuit’’;12 and Southern California (i.e., the Southern and Central Districts of California) produces the largest number of appeals in

the Circuit—38 percent of the Circuit’s appeals.13

Additionally, Los Angeles, San Diego, and Phoenix are the Circuit’s three most

populous cities and are, respectively, the second, sixth, and seventh most populous

cities in the nation, according to recent figures of the U.S. Bureau of the Census

provided by the Library of Congress.14 Also, Arizona and Nevada contain seven of

the nation’s 22 fastest growing cities: Chandler (2), Scottsdale (7), Glendale (14),

Mesa (17), and Phoenix (22), Arizona; Henderson (1) and Las Vegas (6), Nevada.15

In short, putting Arizona and Southern California—two of the most rapidly growing regions—in the same division may provide, at best, a temporary solution, and

prove unworkable in the near future. Very soon, these components of the proposed

Southern Division may have to be divided into two roughly equal parts. That seems

impossible without a reconfiguration of all of the divisions.

The Commission states that ‘‘[t]he concentration of appeals in the southern part

of the circuit makes it impossible to divide the court’s workload equally among the

three divisions * * *’’ 16 Given this difficulty, and the problem of having to re-divide

the Southern Division, it might be preferable to have four divisions, structured as

follows:

16

17Letter of Chief Judge Proctor Hug to Commission on Structural Alternatives for the Federal

Courts of Appeals, October 29, 1998.

4-Way Proposal Caseload 1

(percent)

Population 2

(percent)

Western Division: 22.0 17.5

Arizona, Nevada, and Southern California

Northern Division: 23.9 25.1

Northwest, Hawaii, Guam, NMI

Middle Division: 23.7 25.6

Northern and Eastern California

Southern Division: 30.4 31.8

Central California

1Office of the Circuit Executive, United States Court of Appeals for the Ninth Circuit (based

on filings for year ending December 31, 1997) (updated November 1998). 2Population Estimates Program, July 1996, U.S. Bureau of the Census.

Under this scenario, the caseload (and population) distribution would be much

less lopsided than under the Commission’s tripartite division. Under the Commission’s proposal (see chart below), the Northern Division would contain 21 percent

of the Circuit’s caseload, thereby apparently making 21 percent an acceptable

threshold for caseload. Under the four-way proposal suggested above, every division

would meet this threshold and no division would come close to the 47 percent caseload in the Commission’s proposed Southern Division. Thus, if caseload distribution

is of paramount importance, then for a more enduring partition, it might be reasonable to place Arizona, Nevada, and the Southern District of California in one division, the Northern and Eastern Districts of California in another division, the Central District of California in another division, and the Northwest and the Pacific Islands in the Northern Division.

Commission’s proposal

From the Commission’s proposal, it is unclear which criteria were given priority—

perhaps geographic affinity dominated. Although the divisions may have geographic

affinity, the caseload and populations are unevenly distributed:

Commission Proposal Caseload1

(percent)

Population2

(percent)

Northern Division: 21.0 22.4

Northwest

Middle Division: 32.0 31.5

Northern and Eastern California, Hawaii, Guam, NMI, and

Nevada

Southern Division: 47.0 46.1

Central and Southern California and Arizona

1Office of the Circuit Executive, United States Court of Appeals for the Ninith Circuit (based

on filings for year ending Dec. 31, 1997) (updated November 1998). 2Population Estimates Program, July 1996, U.S. Bureau of the Census.

Perhaps a factor other than geographic affinity was given priority; this seems likely in light of the recent recommendation that Arizona be placed in the Middle Division with Nevada and the Northern and Eastern Districts of California.17 Some

have commented that there is a high volume of commercial dealings between Arizona and California and that Arizona relies on California caselaw. It is unclear (and

would be helpful to know) to what extent such connections exist and how important

such connections should be in determining division lines.

Furthermore, many people seem to assume that the northwest states (Alaska,

Idaho, Nevada, Oregon, and Washington) must be grouped together, but if one

starts with that premise, then options are limited and dividing the circuit becomes

very difficult, especially if a four-way division is not considered. Given the current

size and the continued growth (in both caseload and population) in the Central and

Southern California Districts, as well as Arizona and Nevada, it seems as though

17

18Draft Report at 46. 19Draft Report at 48. 20Draft Report at 48. 21 Cf 28 U.S.C. 48. 22Population Division, U.S. Bureau of the Census, SU–96–10. 23Population Division, U.S. Bureau of the Census, SU–96–14. 24Draft Report at 44. 25Draft Report at 44.

there will always be a problem if there is a three-way division. Assuming that a

four-way division is acceptable, it might be reasonable (in terms of caseload, population, geography, among other factors) to modify the Commission’s recommendation

by placing Arizona and Nevada in a separate division:

4-Way Proposal Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest, Hawaii, Guam, NMI

Middle Division: 23.7 25.6

Northern and Eastern California

Southern Division: 38.0 37.0

Central and Southern California

Western Division: 14.4 12.0

Arizona and Nevada

Other proposals

I have only discussed the Commission’s proposal (as well as a modification of it)

and two other plausible options. For the Commission’s review, I am attaching several additional permutations, each with strengths and weaknesses in terms of caseload, population, geography, and other factors. (For ease of comparison, I am also

including the charts contained in this letter.) It would be helpful to Congress to

have the Commission’s views on the relative strengths and weaknesses of various

options.

MOVING ARIZONA TO THE TENTH CIRCUIT

I am also interested in exploring the idea of moving Arizona to the Tenth Circuit,

an idea that seems to have significant merit because it is one of only three proposals

recognized by the Commission as having geographic integrity, serving both the federalizing and regionalizing functions of federal courts, and being consistent with the

principle of state contiguity in the lower 48 states.18

The Commission states that disconnecting California from Arizona would be undesirable to the extent that ‘‘Arizona follows California law in several areas, and has

significant commercial ties.19 It may be more accurate to observe that, as some say,

Arizona has more in common with the Rocky Mountain states than the Pacific coast

states.20 I would appreciate an examination of these two lines of thought and would

appreciate a more thorough examination of the feasibility of moving Arizona to the

Tenth Circuit.

COURT OF APPEALS SITTING IN PHOENIX AT REGULAR INTERVAL

No matter what Division that Arizona is placed in, I think that the Court of Appeals should sit in Phoenix at regular intervals.21 This seems reasonable because,

as noted above, Phoenix is the seventh most populous city in the nation and one

of the Circuit’s most populous cities,22 as well as one of the nation’s fastest growing

cities.23

CIRCUIT DIVISION

I am also concerned about the size of the proposed circuit division which will resolve inter-divisional, intra-circuit inconsistencies.24 I think that the Commission is

right to note that it ‘‘seem[s] paradoxical to respond to concerns about the present

limited en banc by creating a conflict body that is even smaller.25 The Commission

concludes that the Circuit Division’s composition will ensure that the views of the

18

26Draft Report at 44.

majority of the court’s judges will predominate in that resolution.26 But how will

a body of seven judges (representing 28) do this? Currently, the limited en banc,

which is comprised of 11 judges, is often criticized for not being representative of

the circuit. I am concerned that a body of seven judges would similarly produce decisions that are unrepresentative of the entire court. I believe that the Circuit Division should be expanded to 13 or 15 members.

STRUCTURAL OPTIONS FOR THE COURTS OF APPEALS AND DISCUSSION OF APPELLATE

JURISDICTION

Finally, I was interested in the proposals discussed in parts 3 and 4 of the report,

such as authorizing the courts of appeals to decide selected cases with two-judge

panels and authorizing the judicial council of any circuit to establish district court

appellate panels to provide first-level review for designated categories of cases that

involve error correction, with discretionary review by the courts of appeals.

I was particularly interested in the statement of Judge Merritt and Justice White

on ways to reduce the caseload presented by diversity cases. I do not believe that

their plan suggesting changes in federal jurisdiction exceeds the Commission’s mandate. As Judge Merritt points out, his plan recommends restructuring diversity jurisdiction by Congress and is aimed at reducing circuit court caseload substantially.

This certainly seems to meet the statutory command to make ‘‘recommendations for

such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals.’’

Congress can benefit from all of the Commission’s recommendations. I hope that

Judge Merritt’s statement becomes part of the final report and that the Commission

members consider including other proposals that will help with the ‘‘expeditious and

effective disposition of the caseload of the Federal Courts of Appeals.

conclusion

In closing, I would like to reiterate my appreciation for the Commission’s diligent

work and detailed draft report. I hope that my concerns can be addressed in the

final report. The points I have raised are not meant to imply that reform should

not move forward. In fact, lawyers frequently provide me with anecdotal evidence

that it takes too long for cases to reach conclusion in the Ninth Circuit, although

statistics may show otherwise. I believe firmly that the reasons the Commission

cites for division warrant speedy action.

Please do not hesitate to contact me if I can be of assistance. Thank you.

Sincerely,

JON KYL,

United States Senator.

Commission Proposal Caseload

(percent)

Population

(percent)

Northern Division: 21.0 22.4

Northwest

Middle Division: 32.0 31.5

Northern and Eastern California, Nevada, and Hawaii

Southern Division: 47.0 46.1

Central and Southern California and Arizona

4-Way Proposal ‘‘A’’ Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division: 23.7 25.6

Northern and Eastern California

Southern Division: 38.0 37.0

Central and Southern California

Western Division: 14.4 12.0

19

4-Way Proposal ‘‘A’’ Caseload

(percent)

Population

(percent)

Arizona and Nevada

4-Way Proposal ‘‘B’’ Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division: 23.7 25.6

Northern and Eastern California

Southern Division: 30.4 31.8

Central California

Western Division: 22.0 17.5

Southern California, Arizona, and Nevada

Option #1 Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division 53.3 50.9

Northern, Central and Southern California

Southern Division: 22.8 24.0

Eastern California, Arizona, and Nevada

Option #2 Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division 54.1 57.4

Northern, Central and Eastern California

Southern Division: 22.0 17.5

Southern California, Arizona, and Nevada

Option #3 Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division 38.1 37.6

Northern, and Eastern California, Arizona, and Nevada

Southern Division: 38.0 37.3

Central and Southern California

Option #4 Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division 45.7 43.8

Northern, Eastern, and Southern California, Arizona, and

Nevada

20

Option #4 Caseload

(percent)

Population

(percent)

Southern Division: 30.4 31.8

Central California

Option #5 Caseload

(percent)

Population

(percent)

Northern Division: 23.9 25.1

Northwest and Hawaii

Middle Division 30.4 29.5

Eastern, and Southern California, Arizona, and Nevada

Southern Division: 45.7 45.4

Northern and Central California

Senator GRASSLEY. Thank you, Senator Kyl.

Now, Senator Bryan.

Senator KYL. Mr. Chairman, before Senator Bryan, might I add

one other request? Judge Bill Browning from the Tucson District

Court is here. He was a member of the Commission, and I am not

certain whether he is on your panel to testify or not.

Senator GRASSLEY. He is not.

Senator KYL. I would urge the committee to consider at least permitting him to make a brief comment or be available for questions

from the committee. He has much to offer.

Thank you.

Senator GRASSLEY. Thank you.

Senator Bryan.

STATEMENT OF HON. RICHARD BRYAN, A U.S. SENATOR FROM

THE STATE OF NEVADA

Senator BRYAN. Thank you very much, Mr. Chairman and members of the subcommittee. I appreciate the opportunity to testify before you today on the issues raised by the White Commission and

the Federal Ninth Circuit Reorganization Act sponsored by our colleague, Senators Murkowski and Gorton. My comments today will

focus on the Commission’s recommendations as they relate to the

Ninth Circuit Court of Appeals.

Let me observe at the outset that I am pleased that we are having this discussion today in the context of a hearing before the Judiciary Committee. As you know, there have been efforts in the

past to divide the ninth circuit through legislative riders on appropriations bills. In my view, an issue of this magnitude, one that

will have far-reaching implications not only for the West but for

the entire Nation, deserves to be considered in a thoughtful, deliberative manner by this committee. The old saying, ‘‘If it ain’t broke,

don’t fix it,’’ summarizes my view about the proposals to divide the

circuit, and I am pleased to see that the White Commission came

to the same conclusion.

I am concerned, however, with the Commission’s proposal for

other structural changes in the ninth circuit. The recommendations

of the White Commission represent an attempt to develop a solution to a problem that in my view does not exist. I have great respect for the members of the Commission and for their hard work

21

over the past year, especially given the relatively short timeframe

in which they were instructed to complete their study. I do not feel,

however, that they have cited any empirical evidence or other data

that justifies the proposed divisional structure for the ninth circuit

described in their report.

One of the most frequent criticisms of the court by those who

support the division is the 14 months on average it takes from the

notice of appeal to the determination of the case, which is 4 months

greater than the national average. There is a simple reason for this

delay. Congress has refused to fill the vacancies that exist on the

court. There are currently seven vacancies on the court which represent one-quarter of the authorized judgeships, and for the better

part of the last 4 years, the court has functioned with only 18 active judges. It is unfortunate that the Commission was not able to

analyze the impact of these vacancies on the court’s timetable for

disposing of its caseload.

It is also a bit ironic that some members of the Senate who have

advocated splitting the ninth circuit have also played a leading role

in blocking the effort to fill the vacancies on the court.

Another criticism which has been perceived is a lack of consistency in maintaining a uniform body of Federal law in the Western

States due to the size of the court and the large number of possible

panel contributions. Although I do not believe there is any evidence

to support this criticism, I also do not feel that the Commission’s

recommendation to create three new adjudicative divisions, including two within the State of California, will do anything to address

this perceived problem. In fact, if implemented, it could have just

the opposite effect, and I know that Judge Hug will address this

issue in more detail.

But I think it is important to note that the overwhelming majority of judges and attorneys in the ninth circuit are satisfied with

its current structure.

Underlying the many criticisms that have been leveled at the

court is the real issue that some members have proposed splitting

the ninth circuit from time to time. They simply do not like the decisions rendered by the court. Some sponsors have made clear their

displeasure with many decisions issued by the court, particularly

in the area of environmental law. Surely not all of the decisions of

the ninth circuit—or, for that matter, any circuit—come down the

way that all of us would favor. I myself have cosponsored legislation to reverse certain decisions of the ninth circuit in the past. But

I do not believe that differences over the decisions rendered by the

ninth circuit are adequate grounds either to split the court or to

restructure it.

One of the most telling aspects of the Commission’s report, in my

opinion, is contained in the additional views of Judge Merrit and

Justice White where they state,

We believe that no legislation extending Federal jurisdiction into areas that traditionally fall within the scope of

State regulation or prosecution should be enacted without

full and informed consideration of the appropriate balance

of jurisdiction between State and Federal courts, as well as

the effect that proposed legislation will have on the ability

22

of the Federal courts, including the courts of appeal, to

carry out their core functions.

This admonition to Congress is well taken, and it is not a partisan issue. Members of Congress on both sides of the aisle have

been increasingly guilty over the years of engaging in a game of

one-upsmanship to show which party is tougher on crime, for example, and the result has been the federalization of a wide array

of criminal conduct in this country.

One of the results of this endeavor has been to increase the caseload of our Federal courts. I believe it is time for Congress to address this trend before we move to do serious damage to the administration of justice in our Federal court system.

Mr. Chairman, I thank you and the members of the subcommittee for letting me share my thoughts with you today. I believe that

the Ninth Circuit Court of Appeals is functioning as well today, if

not better, than any other circuit throughout the country, and I

would be extremely cautious to implement costly and untested

structural changes.

I thank you again, Mr. Chairman.

Senator GRASSLEY. Senator Bryan, thank you.

Now, Senator Reid.

STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE

STATE OF NEVADA

Senator REID. Mr. Chairman, members of the committee, I am

very grateful that you are holding this hearing. It is extremely important, as Senator Kyl and the other people who have testified

this morning have said.

Senator Kyl, it appears—and we have spoken personally on this

on a number of occasions—favors a split of some kind. Senator

Murkowski favors the Commission’s divisional approach.

Mr. Chairman, there is some concern as to how we are going to

handle the alleged problems in the ninth circuit. As I have indicated, some of our colleagues have expressed reasons why they feel

the ninth circuit should be either split entirely or into three

intracircuit divisions recommended by the White Commission.

While the ninth circuit undoubtedly faces challenges which must

be addressed, I think that we should approach this very cautiously.

I was involved with the establishment of the Commission, as a

number of the Senators who are now testifying and have testified

were. I recognize the efforts they have put forth. I commend the

Commission for stating their recommendations are not based upon

any disagreement of court decisions. I have always been concerned

that some of the advocates of structural change within the ninth

circuit have been driven by dissatisfaction with certain decisions

handed down by the circuit, and I commend the Commission for

distancing themselves from such motivations.

Mr. Chairman, Congress last passed legislation which significantly changed the structural composition of the Federal Courts of

Appeals back in 1981 when the States of Alabama, Georgia, and

Florida were separated from the fifth circuit to create the eleventh

circuit. I am sure we could identify some similarities and differences between the pre-1981 fifth circuit and the ninth circuit

today.

23

But, Mr. Chairman, there is one distinction that deserves particular attention this morning. In 1981, the overwhelming majority

of the circuit judges of the fifth circuit and lawyers who practiced

in the fifth circuit agreed that such a major overhaul was the best

course of action to follow.

As we consider structural changes in the ninth circuit here this

morning, the exact opposite is here today as we had in 1981. In

January of this year, in a meeting of the ninth circuit’s 35 active

and senior circuit judges, 25 judges rejected an outright split or the

Commission’s recommendations for intracircuit divisions. Only 4 of

the 35 voted to approve intracircuit divisions; also, only 4 voted to

approve a circuit split; and 2 of the judges abstained completely.

Furthermore, an overwhelming majority of attorneys who practice in the ninth circuit oppose these radical structural changes.

This opposition is bipartisan, Mr. Chairman. Actually, it is nonpartisan. In fact, of the two judges from whom you will hear today

who will argue against a circuit split or adoption of the Commission’s recommendation, one is a registered Democrat, the other is

a registered Republican.

There is another area of opposition that should be of special significance to our colleagues, especially the chairman and the ranking member of this subcommittee, whose States are not within the

ninth circuit. The chief judges of eight of our country’s circuit

courts of appeals have publicly opposed the intracircuit divisional

approach as recommended by the White Commission.

Mr. Chairman, I would also like to call the committee’s attention

to the statement written and submitted by Prof. Arthur Hellman

of the University of Pittsburgh School of Law. He has actually

spent most of his life, his academic life, dealing with the Federal

courts of appeal, and he has devoted a significant amount of time

to the ninth circuit. I think you will find his statement very useful.

Mr. Chairman, I would like to say a few additional things. First,

the State of Nevada is very proud of the chief judge of the ninth

circuit. Procter Hug has rendered great service to the State of Nevada and to this country as a judge of the Ninth Circuit Court of

Appeals. Senator Bryan and I had the distinct pleasure of serving

with his father in the Nevada State Legislature. Procter Hug, Sr.,

was one of the finest men that I have ever dealt with. He was a

wonderful member of the State legislature, a great educator, and

now one of our high schools in Reno, NV, is named after Procter

Hug, the chief judge’s father. So we are very proud of Procter Hug,

Jr., as well as Procter Hug, Sr.

I would also like to direct your attention to the good work done

on this committee by Senator Feinstein, the senior Senator from

the State of California. She is going to introduce legislation sometime next week which I think is extremely important, and I am

going to support her in her efforts. As I understand her legislation,

she would recommend three basic changes:

One, en banc panels would be required to be a majority of the

active judges. Right now we have 28 judgeships, so that would

mean 15 would be a majority.

Two, Senator Feinstein would require that at least one judge on

any panel be from the same region from where the case has originated.

24

And, three, the decision to hear a case en banc currently requires

the approval of 51 percent of the judges. She would drop that percentage to one-third of the judges.

I think this is an important improvement of what we now have.

I would hope that she will introduce that legislation next week

with me as an original co-sponsor.

Mr. Chairman, I think that what we do here today—what you do

here today, I should say, is of extreme importance to the country.

The ninth circuit is the largest circuit in terms of population, and

when you add in Alaska, certainly in territory—you add Alaska to

any circuit, and it will be the largest region, the largest circuit. But

we feel that we don’t need to radically change what is going on in

the ninth circuit. I think the approach of Senator Feinstein is one

that we should address very closely. I think it is one we could pass.

I think we could do it very quickly. And if that does not work—

which I think it would—then we could take another look down the

road.

Senator GRASSLEY. Senator Reid, I thank you. I thank all of our

colleagues. I have no questions of this panel. I would turn to Senator Torricelli if he does or anybody else that is on the committee

that wants to ask our colleagues questions.

Senator TORRICELLI. Thank you, Mr. Chairman.

Mr. Chairman, I have a statement I would like to put in the

record at the beginning of the hearing.

Senator GRASSLEY. It will be received and included in the record.

[The prepared statement of Senator Torricelli follows:]

PREPARED STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR FROM THE

STATE OF NEW JERSEY

Thank you Senator Grassley for holding today’s hearing. I would like to welcome

Senators Feinstein, Kyl, Reid, Murkowski, Bryan, and Gorton, as well as the other

distinguished witnesses.

Article I of the Constitution grants Congress the power to structure the Federal

Courts: ‘‘The Congress shall have Power * * * To constitute tribunals inferior to the

supreme court.’’

Article III reiterates that power: ‘‘The judicial power of the United States shall

be vested in one Supreme Court, and in such inferior courts as the Congress shall

from time to time ordain and establish.’’

As with other exercises of our enumerated constitutional powers, I believe those

advocating action carry a heavy burden. There must by necessity be a strong presumption that Congress retain the current court structure.

Beginning with the Judiciary Act of 1789, in which we created the lower federal

courts, Congress has exercised its constitutional power with great care.

In 1891, we passed the Circuit Court of Appeals Act, which essentially created

the modem federal court structure. Since 1891, we have acted only four times to

structurally alter the circuit courts: creating the 10th Circuit in 1929, the D.C. Circuit in 1948, the 11th Circuit in 1981 and the Federal Circuit in 1982.

Thus, history demonstrates that we have shown ample discretion in altering the

structure of the circuit courts. We have done so only when a consensus existed that

such change was warranted.

As I reviewed the White Commission report, and the testimony to be given today,

it became clear that there is no unanimity on the questions before us—other than

that fact that the Ninth Circuit is geographically large.

But there was never a question that the Ninth Circuit is large. It encompasses

nine states, Guam, and the Commonwealth of the Northern Mariana Islands. The

Ninth Circuit Court of Appeals is the largest circuit in the country with 28 authorized judgeships—although it should not go without noting that there are 7 current

vacancies on the circuit, a full 25 percent of the seats.

But clearly size is not the question. Instead, we must ask ourselves if the actions

we take can make the administration of justice in those federal courts more efficient

25

and effective. The White Commission found: ‘‘There is no persuasive evidence that

the Ninth Circuit is not working effectively.’’ As we will hear today, the majority

of the judges and attorney’s who practice in the Ninth Circuit day in and day out

do not think that a change is necessary.

Finally, we must guard—perhaps as much as any other time in the legislative

process—against the insertion of political or ideological purposes into this process.

Senator REID. Mr. Chairman, I know you may have some questions, but there are people here who could answer them. I know

you have heard a lot of excuses, but I have got my wife waiting.

Senator TORRICELLI. That is the best one possible.

Senator GRASSLEY. Anybody who needs to go obviously can go,

but I want to make sure that my colleagues get a chance to ask

questions.

Senator Feinstein.

Senator FEINSTEIN. I have no questions.

Senator GRASSLEY. Senator Sessions.

Senator SESSIONS. I guess my question would be: Do any of you

want to go further than division and go to an actual split? I was

present the day the eleventh circuit was created from the fifth circuit split. It worked marvelously and naturally, and I am almost

stunned that people aren’t unified at least in some sort of plan to

divide this circuit.

Senator GORTON. Well, if I could take that on, of course, from the

early 1970’s, I have been a devotee of the Hruska Commission recommendation that literally we have a division into new circuits.

That was the proposal that I have introduced in the past, and I

think Senator Kyl has, and it was what was passed by the Senate

here.

The division structure had not occurred to me at any time there.

And as I said in my opening remarks, I am willing to admit from

my perspective that the White Commission report is preferable to

the bill that I was introducing previously. It seems to me that it

met, for all practical purposes, all of the previous criticisms of the

earlier bills, and because it is universal in nature, it removes the

pressure for an increasing number of circuits in the United States

as the population and caseload of the whole country grows.

So I guess my conclusion is that I like this better than I did my

earlier bills.

Senator SESSIONS. Well, that is good.

Senator KYL. Mr. Chairman, might I make a comment on that?

Senator GRASSLEY. Senator Kyl.

Senator KYL. I think there are two reasons why the White Commission concept, if not the specific proposal, is warranted. The first

is political. A circuit split is probably a bridge too far. You have

seen the division among us even to have adjudicative divisions and

leaving the circuit intact. That is going to be hard enough, let alone

splitting the circuit.

But there is a second substantive reason why I think the White

Commission was ingenious. There is a point at which if you continue to split circuits, you are probably going to need to consider

some kind of intermediate appellate court between the circuit court

of appeals and the U.S. Supreme Court to resolve the ever-increasing number of conflicts among the circuits. That is something that

I think would be very, very bad, and I know a lot of people agree.

And this is one way to obviate that, to create a situation in which

26

the number of circuits remain the same and you work out any disagreements within the circuit at the circuit level with a special division that would resolve any conflicts between the divisions or

among the divisions so that you don’t increase the number of conflicts among the circuits which the U.S. Supreme Court would have

to resolve.

So it is a way to deal with the future problem of increasing population in this country and the pressure to continue to divide circuits. I think it is pretty ingenious in that regard.

Senator SESSIONS. Well, I am glad to hear you are favorably disposed to consider that. I don’t have a strong feeling one way or the

other, other than I do not believe it is an effective way to run a

court to have one this large. We had testimony—Senator Grassley

did—in this committee last year when at least two chief judges of

other circuits said that 12 or 14 judges was as large as a circuit

should get. The ninth circuit is already twice that size, and its ratio

of population to judges is even more than that.

So I think addressing the problem is necessary, and I am open

to your suggestions on how to do it.

Senator BRYAN. Mr. Chairman, may I respond? I won’t repeat all

of my reasons, but as Senator Sessions knows, I favor neither the

split nor the administrative division. California is clearly the 800-

pound gorilla in this scenario, but the majority, overwhelming majority of practitioners and members of the bar of my State, which,

by contrast to California’s 32 million, is about 1,800,000, is very

comfortable with the present situation. I, like my colleague and

friend, Senator Kyl of Arizona, am a member of the bar. I have

practiced before the ninth circuit, and I would simply say for those

members of the bar in my State and the members of the judiciary,

we favor retaining the present system.

I just think the record needs to reflect that.

Senator TORRICELLI. Mr. Chairman.

Senator GRASSLEY. Yes, Senator Torricelli.

Senator TORRICELLI. Thank you, Mr. Chairman.

For me, and perhaps for me alone, this is an argument of first

impression. I have heard discussion of this problem, but the ninth

circuit is a long way away from home. And I haven’t been exposed

to a great deal of this before.

Let me simply just suggest the following impression: If indeed

this is a problem of size and efficiency, I think all of us would be

sympathetic. It is persuasive that the White report noted that it

did not discover difficulties in the operation of the circuit. That

bears some considerable weight.

One is left wondering whether there is a concern for the operation of the circuit or whether this is a modern equivalent of FDR’s

court-packing attempt for ideological reasons.

It is further suspect because there are seven vacancies in the circuit, and I trust the same enthusiasm with which people would

change the circuit is now leading to pressure to assure that those

vacancies are filled so that the circuit is operating properly.

I come to no judgment on any of these, but they are questions

in my mind.

I am, though, left finally with this. For whatever the States involved should decide—and I believe the rest of us in the Senate

27

should largely be guided by the States that are in the circuit and

what you think is best for the operation of justice in your own region of the country—the one thing that goes to a national concern

where I believe we have a legitimate interest is this issue of dividing a State into these divisions. To me it is somewhat of a contradiction of our concept of national union and how the courts have

worked with the States. You can imagine a State administrative

action or action of the California State Legislature or, indeed, an

agency of the Federal Government in California being in these two

divisions, what it will create in a temptation for forum-shopping,

or if at any moment there are contradictory views in the two divisions, and the time in which it takes the circuit or the Supreme

Court to resolve these conflicts, the State of California or Federal

agencies or private citizens would be left in legal limbo.

So I believe this is largely a judgment for all of you to reach, and

I think much of the Senate will be guided by your wisdom. But

there is in my mind that one national concern in that order in the

courts, avoidance of conflict, and efficiency is a legitimate national

concern. And at least because it is the first time that this plan of

division has been raised, that will attract some attention no matter

what you should all decide.

Thank you, Mr. Chairman.

Senator GRASSLEY. Senator Torricelli, I thank—yes, Senator Gorton.

Senator GORTON. Two points to Senator Torricelli. Whatever you

think of the ideological predilections of your colleagues in the Senate, Senator, I doubt that they can be applied to Justice White.

And, second, I think there is a distinct difference between dividing

a State into two circuits and what is little more than an administrative division within the same circuit, which ultimately comes up

with the same laws, but it is a consideration and it is one that not

only Senator Feinstein raised but Senator Kyl as well.

Senator TORRICELLI. If I could, Mr. Chairman, I think that is a

good clarification. But because this is the first time this is done,

it isn’t entirely clear to me how this would function. Whether it is

administrative or whether we are adding a new layer of appeal

which will cause not only expense and delay, but conflict. And it

is hard to know because it hasn’t been done before. That is why

I think it should be discussed.

Senator KYL. Mr. Chairman, Senator Torricelli, might I just

make one clarification? The White Commission recommendation is

that all of the administrative functions of the court be retained centrally. So all of the administration would remain as it is. The only

thing that would change would be the adjudicatory panels, the way

that the judges are assigned to actually hear cases and decide

cases. That would be done by division.

The points you raise I think are well made, and all of these are

important considerations, not just for the ninth circuit but because

they could theoretically form a precedent for dealing with other circuits as they become larger.

Senator TORRICELLI. There is a central question that I generally

don’t understand, unlike most questions asked in this institution

where people already have the answers in mind. If the California

State Government takes some administrative action which someone

28

believes is contrary to the U.S. Constitution, and they must decide

whether or not to go and file this with a district court in San Francisco or Los Angeles, how do we avoid the fact that they are reviewing who the judges are and trying to predetermine a result by engaging in forum-shopping?

Senator GORTON. Well, they are doing that now.

Senator KYL. Yes, Mr. Chairman, if I could, every good lawyer

seeks to determine where the best forum would be, and when you

have different district courts among which to choose from, obviously that is one of the considerations that you take into account

before you file your lawsuit.

The district courts are the court of first impression. That is

where the lawsuit is filed, so that is done today. I think it is a bit

of a stretch to say now let’s see which one of the appellate divisions

would decide this depending upon where we file it, and then you

are going to have to figure out, well, which one of the judges are

likely to sit on the panel. It becomes rather attenuated to use that

as a criterion. It is theoretically possible, but I think the way the

Commission resolved that was to say that the decisions of any division are not binding on the other divisions and that you have a

conflict resolution mechanism for that. It is still theoretically possible, but I think a fairly small matter in the overall scheme of

things.

Senator TORRICELLI. Thank you.

Senator BRYAN. Mr. Chairman, if I might, Senator, before we embrace this divisional concept, I think we want to listen very carefully to the testimony of Judge Hug. He believes, that this concept

will make it more difficult to develop a consistency in circuit law,

and, I think this ought to concern every litigant—that by so doing,

we add an additional level of potential appeal which will delay finality. He will make that argument far more persuasive than I, but

I hope you will have a chance to hear from him and, if not, to read

his testimony.

I thank you, Mr. Chairman.

Senator GRASSLEY. I thank all my colleagues.

Senator GRASSLEY. I now call Ronald Olson. Mr. Olson is a partner with the Los Angeles-based law firm of Munger, Tolles &

Olson. He is also a former member of the ABA Committee on the

Federal Judiciary and the former chairman of the ABA Litigation

Section.

Mr. Olson, we offer you our condolences and understand why you

asked to go early, and also, thank you for making it here today to

testify under these circumstances. So would you please proceed?

Oh, let me announce not only for you but anybody else, whenever

we have this vote, I have worked out with Senator Sessions that

I would go vote early and come back, and then he would go vote,

so we will not have to call adjournment or temporary recess of the

committee hearing.

Would you proceed, Mr. Olson.

STATEMENT OF RONALD L. OLSON FROM MUNGER, TOLLES &

OLSON LLP, LOS ANGELES, CA

Mr. OLSON. Thank you, Senator Grassley. Let me say it is a high

honor to appear before your committee, a high honor to appear beVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 NINTH SJUD4 PsN: SJUD4
29

fore my Senator, Senator Feinstein, and just in case it may add a

wee bit of credibility to what I have to say, the first 22 years of

my life were spent in the great city of Manilla, IA.

Senator GRASSLEY. Spelled with two L’s.

Mr. OLSON. Two L’s. We both know that.

Senator GRASSLEY. It is one of our 945 outstanding communities

in Iowa. [Laughter.]

Mr. OLSON. As a starting premise, I presume that whether one

looks from the perspective of a designer of Federal institutions, as

each of you does, or from the perspective of a user of Federal institutions, as I do, I think we would all readily and quickly agree that

our U.S. Courts of Appeals are among our most important Federal

institutions.

From my perspective as a user, a lawyer for 33 years, appearing

in Federal courts from here to California, certainly including the

courts in the eighth circuit, the fifth, the eleventh, and even in the

second, and the great State of New Jersey, I can honestly say that

I know of few Federal institutions that operates as effectively or as

efficiently as the U.S. Court of Appeals for the Ninth Circuit.

I think it is somewhat ironic that the very document that has

served as the basis for the proposed legislation to fundamentally

change and divide the ninth circuit does not disagree. The White

Commission, whose individual members I have the highest regard

for, found, ‘‘There is no persuasive evidence that the ninth circuit

is not working effectively.’’

It also wrote,

Maintaining the Court of Appeals for the Ninth Circuit

as currently aligned respects the character of the West as

a distinct region. Having a single court interpret and apply

Federal law in the western United States * * * is a

strength of the circuit that should be maintained.

These findings alone, in my opinion, and in the opinion of two

different American Bar Association committees that have recently

looked at it, the Litigation Section and the Standing Committee on

Federal Court Improvements, as well as my own hometown bar association, the Los Angeles County Bar Association, believe that

these findings alone should blunt any proposal to fundamentally

change or divide the ninth circuit.

With all due respect to Justice Kennedy, who was cited by Senator Kyl a moment ago, it seems to me he has it wrong. The heavy

burden of persuasion should not be on those who are advocating

the status quo but, rather, on those who are proposing to change

a fundamental Federal institution that has served our country

well. That is point one.

Point two is the faulty notion that greater regionalism will somehow advance federalism. Each circuit court implements congressional policy and direction from the Supreme Court. I know of no

jurisprudence or judicial philosophy or political philosophy that

suggests that the national legal function, the interpretation of

those laws that you Senators every day work to bring to the benefit

of our public, nothing that suggests that national function is better

attained through smaller and more sharply regional courts. But

that is exactly what the White Commission has proposed.

30

I would like to insert here, if I may, a comment that is responsive to what I have heard from the Senators thus far this morning,

a huge emphasis on the number of reversals coming out of the

ninth circuit, opinions coming out of the ninth circuit reversed by

the Supreme Court.

I want to say, first of all, that it seems to me the emphasis on

numbers is misplaced, for a whole lot of reasons. In the first instance, for every case that is taken by the Supreme Court and reversed, there are hundreds—if you want to look at statistics—

where the court must have gotten it right.

But even if you look at the reversals, it seems to me inappropriate to take an aberrational year like 1997 and turn it into a reason

to, again, fundamentally change a Federal institution. As Senator

Feinstein pointed out, more recent experience is more even, and in

the statistical sense, competitive and appropriate vis-a-vis the

other circuits.

Second, on that point, I know of absolutely no evidence to suggest that there is a correlation between size and getting it right.

None. I don’t think there is any that exists.

So far as I know, most of those decisions that were reversed from

the ninth circuit came out of three-judge panels, just like most of

the decisions that get reversed elsewhere. Three judges, not 28, 24,

or 18. But it is three judges who come together with their own

independent minds and their own assessment of the legal issues involved.

The Supreme Court takes—and I know this from personal experience of having briefed hundreds of cert petitions—takes only the

most important and most difficult questions. And when there is a

reversal, it is often by a split decision. And to condemn a court because they come up short on the 5-to-4 vote or the 6-to-3 vote

seems to me to be a little wrong-headed.

Third, the proposal that has been made would, in my opinion,

only exacerbate the very problem that the Senators seemed to have

focused most sharply on. One should understand that the Ninth

Circuit Court of Appeals is served by one of the most sophisticated

clerk’s offices in the country. Among other things that they do is

code every issue that comes before the court in every appeal, and

by coding these issues, they are within minutes able to relate related cases to the panels deciding any particular case.

The myth that because there are hundreds of opinions coming

out of the ninth circuit and judges can’t read all as a reason for

the number of reversals is, as I suggest, a myth. The judges read

those decisions that are most pertinent and relevant to the case before them, and they have many, many tools, including this coding

technique, for accomplishing that.

The panel decisions that exist today in the ninth circuit are binding throughout the circuit. Every judge must respect a panel decision that has been made. Under the proposal that will be made—

that has been made, each of the three divisions will have decisional

autonomy. They are to give substantial weight, whatever that

means, to the decisions of the other divisions, but they have

decisional autonomy. They can ignore it. In effect, there is an encouragement to differences of view rather than what we now have,

a mandated consistency.

31

All judges today participate in proposing and voting on whether

a case should go en banc, every single judge, and when a case is

rejected for en banc, every single judge has participated in that

judgment that it does not deserve en banc consideration.

When it does go to an en banc hearing, it is correct that it is

heard by only 11 of the judges, and I applaud Senator Feinstein

and her proposal for improving the current en banc process that we

have. And I think it would go a long way toward adding some additional consistency to what we have in the ninth circuit. But I want

to contrast that with what the proposal would do.

The proposal would have three divisions, each, as I say, having

decisional autonomy. There would be a separate en banc process in

each of those divisions. Only the so-called resident judges would

vote on whether or not something should go en banc. Those judges

sitting out of division, a California judge sitting in the Northern

Division, for instance, would not even have the right to vote. And,

of course, all of the judges sitting in the other divisions would not

have the right to vote. So there would be less not more participation by the court as a circuit in the en banc process.

I would point out that one of the things that would occur in the

en banc process as proposed is that after there has been a decision

by one of the divisions that is in square conflict, as the White Commission puts it, with a decision in another division, then and only

then would this circuit division, the overriding division, court, have

the ability to take that conflict and resolve it. It would deny

circuitwide en banc consideration of what we now have available

to us in addition to conflicts, and that is cases of exceptional importance. And we all know that there are a number of cases of exceptional importance. That is not even a justification for getting to the

circuit division consideration.

So I suggest to those who are concerned about the reversal rate

that the proposal that has been made will not be helpful, but harmful to what your objective seems to be.

Seemingly, the premise of the White Commission report is the

hunch—no analysis has been put forward, but the hunch that

greater efficiency and effectiveness will be attained through a tripartite Ninth Circuit. But in practice, for us litigants and lawyers,

as well as for the Government, the proposed imposition of regional

divisions is sure to add, not subtract, to cost and complexities.

From the Government perspective, staffing and offices of the separate divisions would surely be duplicative and expanded. This

splitting to achieve efficiency is not only counterintuitive, but it is

at odds with what we see going on every day in our private sector.

Today what we have are mergers—mergers that are being justified

to the public and to regulators by size, efficiencies, and by the

elimination of overlapping employees and functions. This proposal

goes the exact opposite direction.

From the user perspective, the absurdity seems obvious. Conducting California statewide business under the jurisdiction of two

different Federal court divisions, each with decisional autonomy

but for those square conflicts I spoke of, and the notion that a litigant in the West now would have three levels of Federal decisionmaking—the district court, the regional division, and the circuit division—is sure to add to inefficiency, time delay, and expense for

32

both business and litigation. And it would also for those same reasons place the Western United States at a disadvantage versus

other parts of the country where States operate under a single Federal court system with only two levels of Federal decisionmaking.

My clients, who regularly complain to me about too much litigation expense, time, and complexity, would not see this as a step in

the right direction.

The ninth circuit because of its size has, in fact, been one of the

most innovative of the Federal circuits. Often it has been first with

procedural innovations and automation to the benefit not only of

the ninth circuit but all Federal circuits.

Senator SESSIONS [presiding]. Mr. Olson, I believe your time has

expired considerably, so——

Mr. OLSON. I thank you very much for the consideration you

have given me, and I am delighted to submit my statement and respond to any questions that you would have.

Senator SESSIONS. We would be delighted to. Senator Grassley

and Senator Feinstein have gone to vote. I could at least get some

of my questions out of the way while they are gone. I am not sure

we would want to start the next panel until they return.

Mr. Olson, I suppose my observation just as a person who spent

15 years full-time in Federal court practicing before Federal judges

is that we ought to and the goal is to have one national law. Senator Biden made a speech on the floor one night, and I happened

to be presiding, and he said he didn’t like the idea that some of

the members who wanted to split the circuit wanted to do so because they thought they could have home law as opposed to national law and there wasn’t but one Constitution. It was one of his

best, most eloquent efforts, I thought. That is the goal, to have a

uniform national law.

My observation would be that there is a consistently high reversal rate in the ninth circuit. I do not think that is necessarily the

most critical issue as to whether it ought to be divided, but I think

it is a factor. Would you disagree with me that the larger the court

gets, the harder it is to have collegiality, to work out differences,

and to speak with one voice?

Mr. OLSON. Let me split that up. With all due respect, I think

I would disagree, Senator Sessions. With regard—at least in part,

with regard to collegiality, certainly any institution that gets larger

lacks some of the personal contact that one has in a smaller institution. But as our former Chief Judge Wallace pointed out, the

Federal courts are there to serve not the judges and not their personal relationships, but the people. And I don’t think that ought to

be a controlling consideration.

I will also point out, however, that the ninth circuit has been in

the forefront of using all of the new means of communications to

increase collegiality. They conduct conferences, for instance, by videoconference. They have for many, many years communicated

through e-mail, which seems to be overtaking the rest of the world,

although it hasn’t caught up with me yet. So collegiality I think is

a bit overrated.

With regard to the reference to getting it right and the reversal

rate, again, I want to underscore that by splitting into three divisions, it will only increase the likelihood of there being differences

33

as opposed to increase the likelihood of there being a consistency

and decrease the likelihood of reversals.

Senator SESSIONS. Well, wouldn’t that review system that they

have set up work out the differences in a more effective way with

a new system than with the present system?

Mr. OLSON. No; and let me try to hit that head-on.

First of all, with regard to the review system, let’s make sure we

understand it. Each division would have decisional autonomy. That

means it is, as the White Commission puts it, supposed to give substantial weight to the other divisions, but it is not bound by it. So

they can make their own decisions.

Once there is a decision made in a particular circuit, it gets reviewed in that division only if a vote of the resident judges in that

division say it should be reviewed en banc in that division.

The only decisions that get attention at the circuit division level,

which I think the Senator is referring to mostly, are those where

there is, as the White Commission puts it, a square conflict, whether it be by a panel decision or an en banc decisions, but a square

conflict between decisions in two different divisions. That leaves a

huge, huge room for disagreement.

I will tell you one thing. I have spent time clerking for a Federal

judge, and I have spent a lot of time advocating to Federal judges.

And for those who want to avoid a square conflict in the way in

which an opinion gets written, I suspect it would be fairly easy. I

don’t think you are going to get the kind of consistency out of this

review system that is suggested.

Senator SESSIONS. Well, I think fundamentally there are two

problems with the ninth circuit’s reversal rate. One of them is that

philosophically they are not in tune with the rest of the country.

I have read their criminal opinions for 15 years, and I have seen

many criminal cases, and it was a well-known fact all over this

country that when you don’t find any other law to support a criminal defendant’s case, you can find a case in the ninth circuit. And

judges do not respect those opinions in other circuits as highly as

they do opinions from other circuits.

Now, that is a fact. I have been there. I know that. It just happens to be where I spent 15 years of my professional career. So

they are out of sync, and dealing with that is part of our confirmation process and it is also the President’s responsibility.

I do think perhaps that is not all of it. I wonder maybe there is

some way we could develop a closer collegiality. Certainly the

judges we have heard testify from the other circuits indicate that

they don’t want their circuits to grow, that they would rather take

on a heavier caseload than to divide or add more appellate judges.

They would rather dispose of more cases per judge than add

judges.

Let me ask you one question as a practicing lawyer, the statement was made that the bar opposes the division. Has there been

any formal survey of that? And what kind of numbers were returned?

Mr. OLSON. First of all, let me say that there has been a formal

consideration of it in the Los Angeles County Bar Association, of

which I am a member, and it has taken a formal position opposed

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to it, as has a large number of other bar associations within the

circuit. I cannot cite to them with specificity.

With regard to the American——

Senator SESSIONS. To your knowledge, you are not aware of any

circuitwide survey?

Mr. OLSON. Not a circuitwide survey, no.

With regard to the American Bar Association, let me make plain

that it has received, to my knowledge, the consideration of those

two committees that I have just cited, the litigation section and the

Standing Committee on Federal Court Improvements. Both have

taken strong stands against the proposal that has been made. They

have put before the House of Delegates of the ABA, I am told, for

a decision this August, a resolution that would formally assert that

position on behalf of the entire ABA. That has not been voted on.

Let me make that clear. That at this point is in the form of a resolution.

And if I may comment on what the Senator just said a moment

ago about being out of step, I know the integrity with which that

concern is expressed by Senator Sessions, and I have followed that

point of view as expressed for many years. Whether I disagree or

agree is irrelevant. I do think, however, that the Senator answered

his own concern by saying that that is not a function of size or efficiency or effectiveness, but a function of who it is that is sitting on

the court.

More collegiality between those who, in the Senator’s view, have

it wrong isn’t going to change anything. It seems to me this is an

issue to be taken up at the time of confirmation or the time of appointment, and whether or not we are appropriately served in that

regard is a wholly separate question than this very fundamental

proposal that has been——

Senator SESSIONS. Well, there are a lot of factors there. I think

one of the arguments and concerns is that you have so many threejudge panels, the likelihood of an odd panel coming together that

has a divergent view from the majority increases, and there is less

of a sense that we are bound together and have an obligation to

speak with one voice for the circuit, perhaps that is a factor here.

Would you deny that, disagree?

Mr. OLSON. I would disagree, and I would, more importantly,

argue that the proposal that has been made would only exacerbate

the concern the Senator raises. Today, if there is an aberrational

panel decision, any single judge on the ninth circuit has the right

to propose an en banc reconsideration of that decision. And I am

told that with regularity there is hot debate among the judges of

the ninth circuit on whether to receive a case en banc. But each

single judge can raise that if they think there has been an aberrational decision made. And each single judge gets to vote on whether

or not it goes en banc.

Under the new proposal, that would not be the case. Only for the

en banc reviews in the divisions, only the resident judges would

vote, not the nonresident judges, and none of the judges in the

other divisions would vote. You would have less of a participation

than you have now, and it would be less reflective of the entirety

of the court, of the circuit.

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1 Ronald Olson is a partner in the Los Angeles-based law firm Munger, Tolles & Olson LLP.

A copy of his curriculum vitae is attached hereto.

So I think, to my sense, anyway, this would only exacerbate rather than correct the concern that is expressed.

Senator SESSIONS. Well, you make some good observations on

that. I think it is a matter that ought to be studied. I think the

circumstances requiring splitting of a circuit have occurred before,

and we know how that works. This would be a rather novel and

unusual approach for sure, and I do believe we should study it.

There does appear to be a political lack of will here. It has been

tried and debated, as I understand it, long before I came here to

divide this great circuit. So maybe it would be a good thing now

to get our next panel up and introduced. Thank you, Mr. Olson, for

sharing your insight and the effort you have made to articulate

these matters.

Mr. OLSON. Thank you, Senator.

[The prepared statement of Mr. Olson follows:]

PREPARED STATEMENT OF RONALD L. OLSON 1

INTRODUCTION

Thank you for the opportunity to add my views to the thoughtful debate regarding

the workings of the Ninth Circuit, the findings and recommendations of the White

Commission, and the Ninth Circuit Reorganization Act.

By way of introduction, I am a Los Angeles lawyer who has for thirty-three years

practiced before federal courts throughout the United States. I regularly argue cases

before the Ninth Circuit and work with the judges to improve it. I believe the Ninth

Circuit to be among the most vital, effective, and innovative courts in which I have

practiced, and fear that the changes now proposed will take the Circuit in exactly

the wrong direction. I previously submitted prepared testimony to the White Commission, and comments to the White Commission’s draft report, and am pleased

that the Commission has recognized the wisdom in retaining the Ninth Circuit as

single federal Circuit Court for the Western states. I appreciate the invitation to testify again, this time before this Senate subcommittee, and offer the following testimony in opposition to the Commission’s recommendation that the Court be reorganized into three semi-autonomous divisions.

1. The White Commission itself acknowledged that the ninth circuit is functioning

well and should not be split; therefore, there is no basis to impose the new, complex divisional structure on the well-functioning court

As a lawyer, I place the burden of persuasion on those who seek to change the

current structure and operation of the Circuit. Like the states that comprise individual circuits, the boundaries of each circuit are best explained by historical facts that

may have less relevance today. However, subsequent history and tradition and the

opportunity to share the collective experience of different circuit sizes and management tools are powerful reasons against redrawing circuit boundaries or meddling

in their internal organization, absent a compelling reason to do so.

I am not alone in placing the burden on those who ask Congress so fundamentally

to alter the internal structure and operations of the Ninth Circuit. The Committee

on Long Range Planning of the Judicial Conference of the United States, for instance, has concluded:

Circuit restructuring should occur only if compelling empirical evidence

demonstrates adjudicative or administrative dysfunction in a court so that

it cannot continue to deliver quality justice and coherent, consistent circuit

law in the face of an increasing caseload.

Proposed Long Range Plan for the Federal Courts (1995).

Here, the White Commission Report itself makes the case for keeping things as

they are:

Maintaining the court of appeals for the Ninth Circuit as currently

aligned respects the character of the West as a distinct region. Having a

36

2The Commission presumably relied on testimony such as that submitted by the Honorable

Edward Becker of the Third Circuit, whom I admire greatly, and who testified:

[W]hen a circuit gets so large that an individual judge cannot truly know the law of

his or her circuit * * * the circuit is too large and must be split. * * * I cannot imagine

a judge in a circuit as large as the Ninth, with its staggering volume of opinions, being

able to do what we in the Third Circuit do. * * * If this assumption is correct, the

Ninth Circuit, according to my rough rule of thumb, needs to be split.

Letter from Hon. Edward R. Becker to the Honorables Byron R. White, Gilbert S. Merrit, Pamela Ann Rymer, and William D. Browning, and N. Lee Cooper, Esq. of January 26, 1998.

3 Hon. J. Clifford Wallace, former Chief Judge of the Ninth Circuit, wisely acknowledged in

testimony submitted to the Commission that the life of a judge on a small court may well be

more enjoyable than it is on a large court. However, ‘‘my preference to live in a small town or

to work in a smaller court is not relevant. Federal courts do not exist to serve the preference

of federal judges. * * * The real question, then, is not what size of court judges prefer, but

which size will work best for the future.’’

single court interpret and apply federal law in the western United States,

particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit

that should be maintained.

The Commission also concluded that splitting the Circuit is unnecessary: ‘‘We

have reviewed all of the available objective data routinely used in court administration to measure the performance and efficacy of the federal appellate courts, but we

cannot say that the statistical criteria tip decisively in one direction or the other.’’

In other words, those seeking to change the current operation of the Circuit, according to the Commission itself, have failed to meet their burden to show that change

is needed.

The Commission has correctly concluded that the Circuit is neither inefficient nor

dysfunctional. My experience as a litigator confirms this. Accordingly, there is no

reason to tinker with this well-functioning Circuit.

2. The proposed divisional structure improperly concedes that Federal court should

be structured to secure regional representation and to reflect regional interests

Despite the fact that the Commission finds no compelling data justifying splitting.

the Circuit, it nevertheless proposes a ‘‘divisional structure,’’ which, for all intents

and purposes, does just that. The proposal rests in part on the rather quaint notion

that the Circuit is ‘‘just too big,’’ and that balkanizing the Circuit into divisions will

foster ‘‘collegiality’’ of the judges, thereby increasing the quality of decisionmaking.2

Suffice it to say that this idea that Circuits have a natural size limit is unprincipled,

sentimental, and fails to face the inevitable consequences of ever increasing caseloads and expanding federal jurisdiction. Like it or not, I predict that the Circuits

of the future will look more and more like the Ninth Circuit of today, regardless

of judges’ and litigants’ nostalgia for the smaller courts of years past.3

More troubling, however, is the concession implicit in the proposed ‘‘regional’’ divisions that litigants from certain regions or states are entitled to have their federal

cases heard by local judges. It is no secret that the most recent efforts to restructure

the Circuit have been launched by politicians who believe that Ninth Circuit judges

have issued opinions detrimental to local interests. One Senator, for instance, has

stated that the Ninth Circuit is ‘‘dominated by California judges and California judicial philosophy. * * * [T]he interests of the Northwest cannot be fully appreciated

or addressed from a California perspective.’’ Putting aside the threshold question of,

for example, what constitutes a ‘‘California perspective,’’ I am terribly concerned

that these regionalist notions have insinuated themselves into the public debate

about the working of the Circuit.

The authority we collectively confer on federal judges rests largely upon the

premise the judges are to be guided by the Constitution and federal law, not by the

varying winds of regional interests. Indeed, the Constitution in its wisdom provides

that Article Three judges be appointed for life, in significant part to protect against

the pressures of local, state, or regional interests. The federal circuit courts are superimposed upon the fifty states and numerous territories in the face of their vastly

differing economies, histories, and cultures. Despite these local differences, however,

we expect that the Constitution, as well as the Securities and Exchange Act, the

Endangered Species Act, ERISA, RICO, and even the Federal Rules of Civil Procedure and Federal Sentencing Guidelines, all mean the same, and will be enforced

with equal vigor, whether the judge interpreting these authorities sits in Guam,

Texas or Maine.

Any argument premised on the assumption that judges will not limit the bases

of their decisionmaking to the law and record before them, but instead will decide

37

4Twenty-four of the associates at my law firm served as law clerks to Ninth Circuit judges.

5 I have witnessed in my own practice the value of en banc review in matters of great importance. I formerly represented the Republic of the Philippines in an action against the Marcos

family. On appeal, after the three-judge panel issued its opinion, the case went en banc, not

because of any ‘‘square conflict,’’ but, I presume, simply because the case raised important issues

of law. I believe that Circuit judges throughout the Circuit, and litigants, should retain this important right to seek en banc review is such circumstances.

cases with an eye to local interests, should not be countenanced. I fear, however,

that the proposed divisional structure, sub silentio, acknowledges the validity of

these arguments. The majority of judges assigned to a division must be ‘‘residents’’

of the territory encompassed by that division, and their decisions would bind only

the districts within that division. Similarly, membership in the Circuit Division,

which resolves conflicts among the divisions, is to be determined by lot, with equal

numbers of judges from each of the Division.

In short, the proposal seems designed at every level to ensure regional representation in decisionmaking affecting litigants from that region. The result is not only

cumbersome, it sets a sorry precedent, and by its very structure encourages judges

of the Circuit to look out for their own when deciding issues of law. The judges of

the federal circuits, however, are not, and are not intended to be, representative of

their constituents in the same manner as are, for instance, members of the Senate.

There is no reason to concede (to the contrary, we are bound to resist) any suggestion that litigants are entitled to be heard by a federal judges haling from the same

region. Because the proposed divisional structure institutionalizes a norm—regionalism—that is anathema to our system of federal courts, I oppose it.

3. The proposed divisional structure moves the court in the wrong direction by adding unnecessary layers of review, precluding circuit-wide review of published decisions, and encouraging intra-circuit conflicts

Even if I were to assume for the sake of argument that the Ninth Circuit had

problems that needed fixing, I cannot think of a worse fix than the one proposed

by the White Commission. The divisional system will exacerbate the very problems

it seeks to remedy. In short, it moves the Circuit in exactly the wrong direction.

For instance, in the face of a perception that the Ninth Circuit is bad at preventing and resolving intracircuit conflicts, the divisional system explicitly permits the

courts in one division to ignore the holdings of a sister division.

Once a regional division has spoken on a matter of law, the trial courts

over which it has jurisdiction will be bound by that decision, regardless of

decisions issued in other divisions.

The Commission makes this proposal in the face of its own conclusion that ‘‘the circuit’s court of appeals should continue to provide the West a single body of

decisional law’’! The system, on its face, institutionalizes complacency for, if not outright encourages, intra-circuit conflict.

Nor does the Commission’s proposed creation of the ‘‘Circuit Division,’’ solve the

problem. The Circuit Division would not be empowered, either of its own accord or

at the request of a litigant, to review division decisions that are plain wrong, or that

raise unusually important questions. ‘‘[I]ts only authority would be to resolve square

interdivisional conflicts,’’ whatever those are, and even then, its jurisdiction to resolve such conflicts is discretionary.

Nor can a judge in one division request an en banc hearing of an opinion issued

by a panel of another division. This aspect of the structure would create a terrible

loss. Currently, all judges of the Circuit, including Senior judges, participate in what

I am told are vigorous, frank, and detailed debates as to whether a particular case

should be reheard en banc.4 The divisional structure would severely limit participation in this crucial process of policing panel decisions to maintain uniformity, and

in the equally crucial process of providing en banc consideration of matters of great

importance.5

Moreover, the Circuit Division adds a new layer of review, which is bound to delay

the ultimate resolution of appeals. Not only will this new layer inevitably increase

the average time from docketing to termination (one of the grounds on which ‘‘efficiency’’ is judged), it also will add to the cost of prosecuting an appeal in the Ninth

Circuit. The Circuit Division will not ‘‘resolve’’ conflicts in a vacuum. Rather, as is

the case with most other legal processes, litigants must pay their lawyers to act,

to do additional research, draft additional briefs, file additional copies of the record,

and request that the Circuit Division resolve the conflict. This is expensive. Prosecuting an appeal already is a remarkably expensive proposition for a great number

of litigants who find themselves before the Ninth Circuit—Social Security claimants,

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6These communication techniques take some wind out of the sails of those who presume that

geographic breadth of the circuit prevents meaningful and frequent exchange between judges.

persons prosecuting immigration appeals, criminal defendants, and even the typical

small business owner in federal court on a contract claim. The creation of any additional hurdles necessarily limits access to justice for these litigants, at least incrementally, as they face the stark reality of the increasing cost of obtaining review.

Absent a compelling reason to add additional procedures, layers of review, and the

concomitant costs, I cannot support any proposal that does so.

Finally, the divisional approach divides the state of California into separate adjudicative divisions. This is a singularly bad idea, as recognized by, among others Senator Dianne Feinstein, former Governor Pete Wilson, and current Governor Gray

Davis. As former Governor Pete Wilson has aptly observed, dividing the state will

exacerbate problems of forum shopping in any number of cases, including the numerous challenges to state initiatives that often find their way into federal court in

my home state. And Governor Gray Davis has stated that the proposed division of

California is at odds with the state’s fundamental policy favoring integration and

consistency between Northern and Southern California. Not even the Commission

can assert that splitting the state will yield any benefits, only that it was the best

division it could come up with given the demographics of the West and population

of California. Again, this element of the proposed divisional structure simply takes

the Court in the wrong direction.

4. The ninth circuit has a long history of revitalizing itself and improving the quality

of justice it delivers; Congress should permit it to continue to regulate itself without outside interference

As the Commission itself recognizes, efforts to split the Circuit date back as far

1891. Despite the long history of criticism, even the Commission acknowledges that

‘‘[t]here is no persuasive evidence that the Ninth Circuit (or any other circuit, for

that matter) is not working effectively.’’ The question, especially in light of the century-old criticism that the Circuit is too big, is: how has the Circuit done so well?

The answer, I think, is that the Ninth Circuit is at the forefront of innovation in

terms of Court management. The Ninth Circuit is a test case for the future, a sort

of pilot program, and I fear that mandating the restrictive divisional approach will

truncate creative management and innovation of which the Court has long shown

itself capable.

As I have testified previously, the Ninth Circuit can, and has, served as a testing

ground for numerous techniques in court management. Applying the maxim that innovation follows need, we should allow the Ninth Circuit, including its large, and

tremendously knowledgeable and professional clerk’s office—to continue to operate

without re-definition, and to encourage it to share its experiences and innovations

with other circuit courts.

The Ninth Circuit clerk’s office, with its staff of research attorneys, is among the

smartest and most advanced in the county. In order to handle the Circuit’s burgeoning caseload, the clerk’s office has developed a number of procedures aimed at preventing the very parade of horribles the proponents of the divisional approach fear

(mistakenly) are already upon us. This phenomenon is not particularly remarkable:

when an institution increases in size, it often develops management tools that increase efficiency and effectiveness. A few examples of these administrative innovations should suffice.

The Ninth Circuit employs a staff of research attorneys who evaluate appeals as

soon as they have been docketed. They read the briefs and assign the appeal a

‘‘weight’’ from one to ten, based on the apparent complexity of the issues and the

record. This process assists the clerk’s office in distributing roughly equal quantities

of work to the various three judge panels sitting for hearings in any given month.

The research attorneys also code the issues presented by a particular appeal, and

track the cases raising the issues through a computerized tracking system. This allows the court to group appeals raising the same or similar issues and sends those

grouped appeals to the same three judge panel. In this way, a single panel gains

expertise in the particular issue and sees it in a variety of factual contexts, which

can lead to better reasoned discussion of the implications of deciding the issue one

way or another. When the clerk’s office is unable to group cases with similar issues

together, the office notifies panels that a different panel is also deciding a case that

raises the same issue. This allows panels to communicate with one another so as

to avoid the possibility that separate panels might simultaneously, or nearly simultaneously, decide the same issue differently.

The Ninth Circuit is also a leader among courts in adopting and integrating advanced communication techniques.6 The judges’ chambers, for example, have long

39

been connected to one another through e-mail and other document sharing capabilities. The court even utilizes video conferencing. I, for one, have participated in a

video conference with circuit executives. I was told video conferencing is used regularly among judges and among judges and the clerk’s office. Finally, communication

with the bar is also innovative and effective. Judges throughout the Circuit regularly make themselves available for attorney exchanges and education. As an example of innovative communication, the court produced a video for practitioners that

is designed to guide them through the twists and turns of appellate procedure. This

video, widely distributed at low cost, reaches an audience far beyond the typical

educational program.

Indeed, even today, the Court is engaged in an agressive self-evaluation, the purpose of which is to study and make recommendations relating to many of the same

issues examined by the White Commission, including the en banc process, monitoring of panel opinions, regional considerations, and disposition times, among other

issues. Senior Judge David Thompson of San Diego is heading up this ten-member

Evaluation Committee, composed of district and circuit judges, and members of the

bar and the academy. The Committee is expected to submit its final report within

the next few months.

The purpose of my mentioning this Evaluation Committee is not to suggest that

Congress should delay action until it hears from that committee. Rather, it is to emphasize that the Ninth Circuit has shown itself time and time again to be adept

at self-evaluation and self-criticism, even while laboring under the shadow of Congressional intervention. And, moreover, its efforts have borne fruit, yielding a

modem, efficient, innovative, and responsive court that is well prepared to face the

future.

CONCLUSION

The Ninth Circuit works well and provides high quality justice to all the citizens

of the West. The White Commission has acknowledged as much. To the extent that

challenges remain, the Court has shown itself more than capable of meeting them

head on, as it always has. The proposal to impose an unwieldy, untested, and unpopular divisional structure takes the Court in exactly the wrong direction, and exacerbates the very problems it purports to fix. I urge you to reject the proposals set

forth in the White Commission as they relate to the Ninth Circuit, and to oppose

The Federal Ninth Circuit Restructuring Act of 1999.

Mr. Olson received his B.S. degree from Drake University in 1963, his J.D. degree

from the University of Michigan in 1966, and a Diploma in Law from Oxford University, England, in 1967, at which time he was the recipient of a Ford Foundation

fellowship.

In 1967, Mr. Olson was an attorney for the Civil Rights Division of the Department of Justice and in 1968 clerked for Chief Judge David L. Bazelon, United States

Court of Appeals for the D.C. Circuit. From 1968 to the present, he has practiced

law with the Los Angeles law firm now known as Munger, Tolles & Olson. Mr.

Olson is a litigator who was formerly Chairman of the Standing Committee on Federal Judiciary (1991–92), Chairman of the Litigation Section (1981–82), and Chairman of the Alternative Dispute Resolution Committee (1976–86) of the American

Bar Association, and was Vice President of the Board of Governors of the State Bar

of California (1986–87). He was Chairman of the Board of Trustees of Claremont

University Center and Graduate School from 1984–94. Mr. Olson currently chairs

the RAND Corporation Executive Committee of its Board of Trustees and RAND’s

Institute for Civil Justice, as well as the Board of Councilors for the USC Annenberg

School for Communication. He is a director of Berkshire Hathaway, Edison International, California Institute of Technology, Pacific American Income Shares, Western Asset Trust, Brennan Center for Justice, Jules Stein Eye Institute, Skid Row

Housing Trust and the World Resources Institute. He is also a member of the Los

Angeles Business Advisors and the California Citizens Commission on Higher Education. Mr. Olson is a member of the American Bar Association, the American College of Trial Lawyers, and the American Law Institute.

Mr. Olson’s field of specialization is commercial litigation, including antitrust, securities, commercial contracts, and business torts. Mr. Olson is a frequent speaker

and panel member at law schools and professional associations in the United States

and abroad. He has written for law publications and journals. He is both a leading

business trial lawyer and spokesman for alternative dispute resolution.

Among his representations are the following: lead counsel for Merrill Lynch in Orange County bankruptcy; co-lead counsel for Universal Studios in trial against

40

Viacom/Paramount for the ownership of USA Network; lead counsel for Shell Oil

Company in CARB gas antitrust case; for Salomon Inc. in connection with the

Nasdaq antitrust litigation (DOJ and class actions) and the 1991–92 criminal investigation and governmental claims arising from its conduct of treasury security auctions; for the Republic of the Philippines against the Marcos family; for Alyeska and

its oil company owners in the criminal investigation and civil litigation arising from

the Exxon Valdez oil spill; and co-counsel for Southern California Edison Company

in connection with the restructuring of the California utility industry and lead counsel for Edison in defense of a ‘‘Texaco/Pennzoil’’ claim arising from its attempted

takeover of San Diego Gas and Electric. Mr. Olson also counsels individual executives and boards of directors in a range of matters, including corporate governance.

Mr. Olson provides pro bono representation to various community organizations including the Skid Row service providers.

Senator SESSIONS. Let’s see. Our next panel would include Chief

Judge Procter Hug of the ninth circuit, and also members of the

circuit, Judge Pamela Ann Rymer, Judge Andrew Kleinfeld, Judge

Diarmuid O’Scannlain, and Judge Charles Wiggins. So if you would

step forward?

Judge Hug has been a judge on the ninth circuit since 1977—

that is a good tenure—and he became chief judge in 1996.

Judge Rymer has been a judge on the Ninth Circuit Court of Appeals since 1989, and in addition to her duties as judge on the

ninth circuit, she has served as a member of the Commission

whose report we are discussing today.

Judge Kleinfeld served as a district judge for the District of Alaska from 1986 until 1991, when he was appointed to the Circuit

Court of Appeals.

Judge O’Scannlain sits on the ninth circuit in Portland, OR, and

has served on the ninth circuit since 1986.

Judge Wiggins was appointed to the ninth circuit in 1984. He

also served as a member of the Hruska Commission which recommended splitting both the fifth and ninth circuits in 1973.

I would like to welcome all of you at this time, and, Judge Hug—

there you are—thank you very much for your attendance and your

leadership. I know you are carrying a heavy load in the circuit.

And thank you for your service to your country.

I am a little bit reluctant to start today. Maybe you would rather

wait until we get more Senators here, Senator Feinstein and Senator Grassley, who chairs this committee. And they better get back

quickly, or I am going to miss my vote.

Judge O’SCANNLAIN. Senator, may I just inquire?

Senator SESSIONS. Yes.

Judge O’SCANNLAIN. We also have Judge William Browning from

Arizona, who I understand was actually invited to testify, and I

would hope that he could be part of this panel.

Senator SESSIONS. There is Senator Grassley. I would be pleased

to have him appear. Senator Grassley, the question is Judge

Browning, who also was originally asked, I believe, to appear, has

been able to attend. Would you have an objection——

Judge O’SCANNLAIN. Judge William Browning of Arizona.

Senator GRASSLEY [presiding]. No, it won’t be a problem. The

only thing is 12:05 we are going to adjourn the meeting to another

time because I have to get back to Iowa. And if some other members want to come and keep the committee going, that is a possibility. But I will have to leave at 12:05.

Let’s see. We will start out with you, Judge Hug.

41

Judge HUG. Yes.

Senator GRASSLEY. So the individual can come.

STATEMENTS OF HON. PROCTER HUG, JR., CHIEF JUDGE, U.S.

COURT OF APPEALS FOR THE NINTH CIRCUIT; HON. PAMELA ANN RYMER, CIRCUIT JUDGE, U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT, AND MEMBER, COMMISSION ON

STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS

OF APPEALS; HON. ANDREW J. KLEINFELD, CIRCUIT JUDGE,

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT; HON.

DIARMUID O’SCANNLAIN, CIRCUIT JUDGE, U.S. COURT OF

APPEALS FOR THE NINTH CIRCUIT; HON. CHARLES E.

WIGGINS, SENIOR JUDGE, U.S. COURT OF APPEALS FOR THE

NINTH CIRCUIT; AND HON. WILLIAM BROWNING, JUDGE, U.S.

DISTRICT COURT FOR THE DISTRICT OF ARIZONA

STATEMENT OF HON. PROCTER HUG, JR.

Judge HUG. Thank you, Mr. Chairman and members of the committee. I appreciate the opportunity to be here to discuss the Final

Report of the Commission on Structural Alternatives for the Federal Courts and Senate bill 253, which implements those suggestions.

My name is Procter Hug, and I am the chief judge of the U.S.

Courts for the Ninth Circuit. I have been a member of the Ninth

Circuit Court of Appeals for 21 years.

I think the Final Report the Commission rendered has made a

valuable contribution to the understanding of the Federal appellate

court system. The research placed the current appellate court

structure in historical perspective and gathered important statistical information affecting the courts. It also compiled a thorough

profile of the method of operations of each circuit court so that each

of us in our own circuit courts can benefit from those creative

ideas.

The Commission developed several important conclusions that

have been reflected in its Final Report, some of which have been

commented on by other speakers. I think it is very important that

the first conclusion is that, ‘‘There is no persuasive evidence that

the ninth circuit (or any other circuit, for that matter) is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall.’’

‘‘Accordingly,’’ the Commission stated, ‘‘we do not recommend to

Congress and the President that they consider legislation to split

the circuit.’’

We consider that to be the most important conclusion of the

Commission.

Second, the Commission stated,

There is one principle that we regard as undebatable: It

is wrong to realign circuits * * * and to restructure courts

* * * because of particular judicial decisions or particular

judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension

and requires no less.

Third, the statement by the Commission and the conclusion that

I think is also important is,

42

Maintaining the Court of Appeals for the Ninth Circuit

as currently aligned, respects the character of the West as

a distinct region. Having a single court interpret and apply

federal law in the western United States, particularly the

federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a

strength of the circuit that should be maintained.

The fourth conclusion:

Any realignment of circuits would deprive the west coast

of a mechanism for obtaining a consistent body of federal

appellate law, and of the practical advantages of the ninth

circuit administrative structure.

The Commission concluded that the ninth circuit should not be

split. That conclusion corresponds with the overwhelming opinion

of the judges and lawyers in the ninth circuit, as well as the statements of others concerned with this issue who submitted written

statements or gave oral testimony before the Commission. Twenty

out of the 25 witnesses that testified in Seattle at that hearing

agreed that the ninth circuit was operating effectively and were

against splitting. Thirty-seven out of the 38 persons who testified

in San Francisco reached the same conclusion. The past director of

the Federal Judicial Center, William Schwartzer, agreed. The

chairman of the Long-Range Planning Commission for the Federal

Courts, Judge Otto Skopil, agreed, and a great majority of the

judges that spoke did as well.

Having strongly opposed the splitting of the ninth circuit, the

Commission proceeded further to recommend legislation for a revised method of operation for the Ninth Circuit Court of Appeals

through intracircuit adjudicative divisions that amounts to a de

facto split of the court of appeals. The essential question then becomes whether the suggested revision of the operation of the court

of appeals accomplishes the acknowledged goal of having a single

court interpret and apply Federal law in the nine Western States

and the Island Territories in an efficient and effective manner, better than the present method of operation. In my opinion, it clearly

does not.

The position of the ninth circuit expressed to the Commission is

that it is working well and that a great majority of the judges and

lawyers in the ninth circuit are satisfied with its current structure.

This was confirmed by the survey of the Commission, in which over

two-thirds of the judges in the ninth circuit expressed that opinion.

In January 1999, I prepared an ‘‘Analysis of the Final Commission Report,’’ in which I expressed wholehearted agreement with

the Commission’s major conclusion that the ninth circuit should

not be split, but serious disagreement with the divisions recommended for the Ninth Circuit Court of Appeals. I submitted this

analysis to a meeting of our active and senior judges on January

11, 1999, and of the 35 active and senior judges voting, 25 voted

to approve in principle that analysis, 4 judges voted to approve the

Commission’s recommendation of the creation of divisions for the

court of appeals, 4 judges voted for a circuit split, and 2 judges did

not vote on that particular matter.

43

I am drawing my remarks today from that analysis, and I am

thus confident that I speak for the great majority of the judges of

our circuit court. I have attached a copy of that analysis to my

written statement, and it provides more detail than I am able to

discuss in this oral presentation. I also provided a copy of that

analysis to all of the Members of Congress in a letter that I submitted some time ago.

In the draft report, the Commission recommended legislation to

implement this divisional approach not only for the ninth circuit,

but for the other circuits when the number of judges on their courts

of appeals exceeded 17 judges. I think it is most significant that

the chief judges of the first, second, third, fourth, seventh, eighth,

and the District of Columbia circuits responded with a joint letter

expressing strong opposition of their circuit courts to any such divisional restructuring for their circuits. They said, ‘‘The whole concept of intracircuit divisions, replete with two levels of en banc review, has far more drawbacks than benefits.’’ The chief judge of the

fifth circuit sent in a separate letter, expressing the concern and

reservations that that circuit had about the divisional approach.

This, no doubt, resulted in the Commission’s modifying its draft report and proposed legislation to eliminate the mandatory requirement for the creation of divisions in the other circuits. The requirement became strictly optional for the other circuits, leaving the

ninth circuit conscripted as, in effect, the guinea pig to implement

this untested drastic change in what we believe is a seriously

flawed method. Senate bill 253 is essentially the same as the revised proposed legislation.

There were many others who responded opposing the divisional

structure, and I have detailed those in the analysis.

The Commission acknowledged that there is no persuasive evidence that the ninth circuit is not working effectively. It emphasized the importance of maintaining consistent circuit law throughout the nine Western United States and the Island Territories. Yet

it proposed structural changes that will impede that important objective, which neither the ninth circuit nor any other circuit believes is wise or necessary. It is thus very important to examine the

reasons why this radical change in structure was necessary or desirable.

The Commission acknowledges that the conclusion of a need for

a major structural change in the Ninth Circuit Court of Appeals is

not based upon any objective findings. The subjecting findings only

identified rather minor differences expressed by the ninth circuit

judges and lawyers, compared to the judges and lawyers of other

circuits.

Under the present structure of the court of appeals, we have a

viable mechanism that maintains the consistency of law throughout the entire circuit. Panel decisions of all of the judges are binding throughout the entire circuit. The limited en banc procedure

provides a mechanism whereby all judges participate in the en

banc process by the ‘‘stop clock’’ procedure, requests for en banc,

memos circulated to other judges, to the entire court, arguing for

and against en banc review, and by a vote of all of the active judges

on whether to take a case en banc. There is a full participation of

all our judges in resolving the circuit law.

44

Our circuit court has the advantage of the diversity and background, experience, and geographical identity of a large number of

judges. The disadvantages of the Commission report can be summarized as follows:

There is no participation of all judges circuitwide in resolving the

circuit law as at present. The only participation is within the division.

Resident judges within a division that are assigned to another division would not participate in panels within the resident division

for a 3-year period. For example, a judge from Alaska would not

be assigned, for example, to the Southern Division, would not participate in any part of the en banc decisions or panel decisions for

the Northern unit that is resident.

The proposed circuit division would be an additional level of appeal before finality, involving additional expense and delay.

The resolution of conflicts by the circuit division would be by 13

judges, not representative of the full court or proportionately representative of the divisions. For example, the Northwest Division,

which only has 22 percent of the caseload and would have presumably 22 percent of the judges, would have four judges on that court

of appeals—or on that circuit division; whereas, the Southern Division, which has 47 percent of the appellate caseload would also

have four judges on there, and they would all be serving for the

13 years—in effect, a super-court of judges for 3-year terms with

greater power to determine the law of the circuit than any of the

other judges in the rest of the circuit.

There would be no participation of judges throughout the circuit

in the decisions of the court, as to whether it should take a case

en banc. That is only done by a party requesting it.

The ninth circuit has always been willing to re-evaluate itself, its

performance, and to experiment with innovations that would lead

to greater efficiency and effectiveness. The annual evaluation of the

ninth circuit’s long-range plan is specifically designed to do just

that.

Senator Feinstein is introducing a bill which we are perfectly

willing to work with. I think that the ideas that are contained in

that of having a situation in which the majority of the court is always on the en banc panel, I think that would work well, and I

think the perception would be good; the same way with having regional representation on every panel.

In conclusion, with the Commission having acknowledged after

extensive study that there is no persuasive evidence that the ninth

circuit is not working effectively, there is no justification for mandating this drastic change in structure that will impede, and not

enhance, the continued development of consistent circuit law

throughout the nine Western States and the Island Territories.

I thank you for the opportunity to appear before you.

[The prepared statement of Judge Hug follows:]

PREPARED STATEMENT OF PROCTER HUG, JR.

SUMMARY

The Commission on Structural Alternatives for the Federal Courts of Appeals concluded that the Ninth Circuit should not be split. The great majority of the judges

and lawyers in the Ninth Circuit agree.

45

The Commission stated: ‘‘There is no persuasive evidence that the Ninth Circuit

(or any other circuit, for that matter) is not working effectively.’’ It also stressed

that maintaining a consistent body of federal appellate law in the Western States

and Pacific Rim is a strength of the circuit that should be maintained.

Yet, having indicated that the Ninth Circuit is working effectively and stressing

the importance of continuing to maintain consistent law throughout the entire circuit, the Commission proposed legislation that would make a radical change in the

structure of the Ninth Circuit Court of Appeals. Senate Bill 253 essentially embodies that proposed legislation. This structural change would undermine, rather

than enhance, the important goal stressed by the Commission of maintaining consistent federal law throughout the Western States and Island Territories composing

the Ninth Circuit.

The proposed legislation would require a revised method of operation for the

Ninth Circuit Court of Appeals through three semi-autonomous adjudicative divisions, with the State of California being split between two divisions. There would

be an additional court of 13 judges selected from the divisions to resolve only direct

conflicts between divisions. This structure has serious disadvantages.

• Neither the panel decisions nor the en banc decisions of any division would bind

the other divisions. A circuit-wide en banc hearing for any purpose other than

resolving direct conflicts would be abolished. The maintenance and development

of consistent circuit law would be seriously hampered.

• The proposed Circuit Division would add an additional level of appeal before finality, resulting in additional expense and delay for litigants.

• The proposal would eliminate the present participation of all judges circuit-wide

in resolving circuit law, and would impose serious practical problems in randomly assigning judges among the divisions for three-year terms.

• The likelihood of inconsistent interpretations of federal law would, exist

throughout the circuit and would not be adequately addressed by the proposed

conflict resolution mechanism of the Circuit Division. Because California would

be split between two divisions, there would be different interpretations and enforcement of the law in California.

My view that the disadvantages far outweigh any advantages of the proposed restructuring is shared by a great majority of the judges on the Ninth Circuit Court

of Appeals, the Ninth Circuit Judicial Council, the Association of District Judges of

the Ninth Circuit, and the United States Department of Justice. The Chief Judges

of eight other circuits state that their courts oppose a divisional structure for their

circuits.

MR. CHAIRMAN, MEMBERS OF THE SUBCOMMITTEE: Thank you for the opportunity

to discuss with you the Final Report by the Commission on Structural Alternatives

for the Federal Courts of Appeals and Senate Bill 253, The Ninth Circuit Reorganization Act. My name is Procter Hug, and I am the Chief Judge of the United

States Courts for the Ninth Circuit. I have been a member of the Ninth Circuit

Court of Appeals for 21 years.

The Commission was created in the wake of a bill to split the Ninth Circuit into

two circuits. Its mission was to study not only the Ninth Circuit but the entire intermediate appellate court structure between the trial courts and the Supreme Court.

In undertaking its task, the Commission was concerned with how the circuit courts

of appeals were operating, whether the Ninth Circuit or any circuit, should be split,

and formulating recommendations for other possible structural changes.

I think that the Final Report the Commission rendered has made a valuable contribution to the understanding of the federal appellate court system. The research

placed the current appellate court structure in historical perspective, and gathered

important statistical information affecting the courts. It also compiled a thorough

profile of the method of operation of each of the circuit courts of appeals, so that

each of our circuit courts can benefit from the creative ideas from other circuits.

The Commission developed several important conclusions that have been reflected

in its Final Report.

There is no persuasive evidence that the Ninth Circuit (or any other circuit, for that matter) is not working effectively, or that creating new circuits

will improve the administration of justice in any circuit or overall. Furthermore, splitting the circuit would impose substantial costs of administrative

disruption, not to mention the monetary costs of creating a new circuit. AcVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
46

cordingly, we do not recommend to Congress and the President that they

consider legislation to split the circuit.

* * * * *

There is one principle that we regard as undebatable: It is wrong to realign circuits (or not realign them) and to restructure courts (or leave them

alone) because of particular judicial decisions or particular judges. This rule

must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.

* * * * *

Maintaining the Court of Appeals for the Ninth Circuit as currently

aligned, respects the character of the West as a distinct region. Having a

single court interpret and apply federal law in the western United States,

particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit

that should be maintained.

* * * * *

Any realignment of circuits would deprive the west coast of a mechanism

for obtaining a consistent body of federal appellate law, and of the practical

advantages of the Ninth Circuit administrative structure.

The Commission concluded that the Ninth Circuit not be split. That conclusion

corresponds with the overwhelming opinion of the judges and lawyers in the Ninth

Circuit, as well as statements of others concerned with this issue who submitted

written statements or gave oral testimony before the Commission. Among those opposing the division of the Ninth Circuit were the following:

• 20 out of the 25 persons testifying at the Seattle Hearing of the Commission.

• 37 out of 38 of the persons testifying at the San Francisco Hearing of the Commission.

• The Governors of the States of Washington, Oregon, California, and Nevada.

• The American Bar Association.

• The Federal Bar Association.

• The United States Department of Justice and the United States Attorneys within the Ninth Circuit.

• All of the Public Defenders within the Ninth Circuit.

• Respected scholars: Charles Alan Wright, Arthur Hellman, Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie Choper, and Margaret Johns.

• The past Director of the Federal Judicial Center, Judge William Schwartzer.

• The chairman of Long-Range Planning for the U.S. Federal Courts, Judge Otto

Skopil.

• A great majority of the judges and lawyers in the Ninth Circuit.

Having strongly opposed splitting the Ninth Circuit, the Commission proceeded

further to recommend legislation for a revised method of operation for the Ninth

Circuit Court of Appeals through intra-circuit adjudicative divisions that amounts

to a defacto split of the court of appeals. The essential question then becomes

whether the suggested revision of the operation of the court of appeals accomplishes

the acknowledged goal of having a single court interpret and apply federal law in

the nine Western United States and the Island Territories in an efficient and effective manner, better than its present method of operation. It clearly does not.

When a whole new concept of operation of the courts of appeals is proposed, the

burden should be upon those proposing the change to show that a particular proposal will operate more efficiently, effectively, and better advance the cause of justice than the time-tested procedures that have been in operation for many years.

‘‘Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload.’’ Long Range Plan of the Federal Courts (1995). That burden has

not been carried.

The position of the Ninth Circuit expressed to the Commission is that it is working well and that a great majority of the judges and lawyers in the Ninth Circuit

are satisfied with its current structure. This was confirmed by the survey of the

Commission, in which over two-thirds of the judges in the Ninth Circuit expressed

that opinion.

47

The Commission has proposed that the Ninth Circuit Court of Appeals be divided

into three semi-autonomous adjudicative divisions, with the State of California

being split into two separate divisions. Panel decisions decided in one division would

not be binding precedent in either of the other divisions, and each division would

have an independent en banc procedure that would have no precedential effect in

the other two divisions. There would be an additional court of 13 judges selected

from the divisions to resolve only direct conflicts between the divisions. The likelihood of inconsistent interpretations of federal law would exist throughout the circuit

and would not be adequately addressed by the proposed conflicts resolution mechanism. Because California would be split into two divisions, there would also be a

substantial risk of different interpretations and enforcement of the same state law

in California.

In January of 1999, I prepared an Analysis of the Final Commission Report, in

which I expressed wholehearted agreement with the Commission’s major conclusion

that the Ninth Circuit should not be split, but serious disagreement with the divisions recommended for the Ninth Circuit Court of Appeals. I submitted this Analysis to a meeting of our active and, senior judges on January 11, 1999. Of the 35

active and senior judges voting, 25 judges voted to approve the Analysis, 4 judges

voted to approve the Commission’s recommendation of the creation of divisions for

the court of appeals, 4 judges voted for a circuit split, and 2 judges abstained.

I am drawing my remarks today from the Analysis, and I am thus confident that

I speak for the great majority of the judges of our circuit court. I have attached a

copy of that Analysis to my written statement and it provides more detail than I

am able to discuss in this oral presentation. On March 31, 1999, I sent a letter to

each member of Congress, in which I enclosed a copy of the Analysis. With your extremely busy schedules, you may or may not have had an opportunity to review it.

What I point out in the Analysis is that this is a major change in the operation of

the circuit court of appeals, it is not justified by the findings of the Commission,

and is a de facto split of the Ninth Circuit Court of Appeals. It frustrates the very

important goal acknowledged by the Commission, to maintain a consistent body of

law throughout the nine Western United States and the Island Territories.

In its draft report, the Commission recommended legislation to implement this divisional approach not only for the Ninth Circuit, but for the other circuits when the

number of judges on their courts of appeals exceeded 17 active judges. I think it

was most significant that the Chief Judges of the First, Second, Third, Fourth, Seventh, Eighth, and DC Circuits responded with a joint letter expressing strong opposition of their circuit courts to any such divisional restructuring. They said, ‘‘The

whole concept of intra-circuit divisions, replete with two levels of en banc review,

has far more drawbacks than benefits.’’ The Chief Judge of the Fifth Circuit sent

in a separate letter, expressing the concern and reservations that circuit has about

the divisional approach. The Chief Judge of the Second Circuit sent in an additional

separate letter, emphasizing the strong opposition of that court. Thus, all of the

other circuits that responded to the Commission expressed their opposition to the

divisional approach. This, no doubt, resulted in the Commission’s modifying its draft

report and proposed legislation to eliminate the mandatory requirement for the creation of divisions in the other circuits. The requirement became strictly optional for

the other circuits, leaving the Ninth Circuit conscripted as the guinea pig to implement this untested drastic change that we believe is seriously flawed. Senate bill

253 is essentially the same as the revised proposed legislation.

There were many others who responded opposing the divisional structure, as I

have detailed in the Analysis. Some of these were by:

The United States Department of Justice; Senator Dianne Feinstein; Former California Governor Pete Wilson (present California Governor, Gray Davis, recently announced a similar view) The Ninth Circuit Court of Appeals; The Ninth Circuit Judicial Council; The Association of District Judges of the Ninth Circuit; The Federal

Bar Association; The Sierra Club Legal Defense Fund; The Los Angeles County Bar

Association; The Chief Judges of the First, Second, Third, Fourth, Fifth, Seventh,

Eighth, and DC Circuits; The New York City Bar Association; The Federal Bar

Council’s Committee on the Second Circuit Courts; and The Chicago Council of Lawyers.

The response of the United States Department of Justice, which participates in

40 percent of the litigation in the federal courts, bears particular note. It responded

to the Commission, vigorously opposing the divisional restructuring of the Ninth

Circuit or any circuit. It stated, ‘‘That proposal would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and, ultimately,

across all federal courts of appeals.’’

48

The Commission acknowledged that there is no persuasive evidence that the

Ninth Circuit is not working effectively. It emphasized the importance of maintaining consistent circuit law throughout the nine Western United States and the Island

Territories. Yet, it proposed structural changes that will impede that important objective, which neither the Ninth Circuit nor any other circuit wants to adopt. It is

thus very important to examine the reasons why this radical change in structure

was necessary or desirable for the Ninth Circuit.

The Commission stated that it had reviewed all of the available objective data

routinely used in court administration and found that while there are differences

among the courts of appeals, it is impossible to attribute them to any single factor,

such as size. In considering the subjective data, the Commission noted that the district judges of the Ninth Circuit do not find the law any more unclear than the

judges in other circuits. The Commission then noted that the lawyers of the Ninth

Circuit found ‘‘somewhat’’ more difficulty in discerning circuit law and predicting

outcomes of appeals than lawyers elsewhere. Thus, the Commission acknowledges

that the conclusion of a need for a major structural change in the Ninth Circuit

Court of Appeals is not based upon any objective findings. The subjective findings

only identified rather minor differences expressed by the Ninth Circuit judges and

lawyers, compared to the judges and lawyers of other circuits. This hardly justifies

such a radical change.

It is not realistic to believe that consistent law can be maintained in the Ninth

Circuit under the divisional structure when panel decisions are not binding throughout the circuit, and when there are three separate en banc courts with no participation of judges throughout the circuit in those decisions. The 13-judge Circuit Division that resolves only direct conflicts between divisions cannot maintain consistent

circuit law. Under the present structure, panels are bound to follow the precedent

of other panels, and they try their best to do so. Under the proposed system, there

is no obligation to follow the precedent of the panels of the other two-thirds of the

court. This is certain to develop greater inconsistency in panel decisions. The law

of the divisions will inevitably drift apart with little hope of keeping the consistent

circuit law that we now enjoy in the Ninth Circuit or restoring it if the legislation

is enacted and found to be a serious mistake.

Under the present structure of the court of appeals, we have a viable mechanism

that maintains the consistency of law throughout the entire circuit. Panel decisions

of all of the judges are binding throughout the entire circuit . The limited en banc

procedure provides a mechanism whereby all judges participate in the en banc process by the ‘‘stop clock’’ procedure, requests for en banc, memos circulated to the entire court arguing for and against en banc review, and by a vote of all of the active

judges on whether to take a case en banc. There is full participation of all our

judges in resolving circuit law.

When a case is taken en banc, the en banc court reviews the full case for purposes

of clarifying the circuit law, resolving conflicts, or considering questions of exceptional importance to establish the law of the circuit. There is no additional level of

appeal, as there would be with the divisional approach, and there is no litigation

upon whether an opinion reflects a direct conflict between divisions or merely distinguishes cases involved, as there would be with the divisional approach.

Our circuit court has the advantage of the diversity and background, experience,

and geographical identity of a large number of judges that provide important insights into the applications and development of the federal law throughout the nine

Western United States and Island Territories. The stated advantages asserted for

the divisional approach are heavily outweighed by the disadvantages.

The disadvantages may be summarized as follows:

• There is no participation of all judges circuit-wide in resolving the circuit law

as at present. The only participation is within the division.

• Resident judges within a division that are assigned to another division would

not participate in panels within the resident division for a three-year period and

would, for that period, have no say in the en banc consideration of panel decisions within the division of their residence.

• The proposed Circuit Division court would be an additional level of appeal before finality, involving additional expense and delay.

• The resolution of conflicts by the Circuit Division court would be by 13 judges,

not representative of the full court or proportionately representative of the divisions. The Circuit Division would create a category of what, in effect, would be

Super Court Judges, for three-year terms with greater power in determining the

law of the circuit.

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• There would be no participation of judges throughout the circuit in the decisions

of the Circuit Division, as to whether it should take a case or not take a case

or let a panel decision stand.

• There are statutory problems lurking in the new procedure, two of which I identify in the Analysis but others in an untested procedure could well surface in

the future.

• The practical operation of the divisional approach becomes administratively

complex in the manner in which the judges are designated to be assigned

among divisions, and the manner in which the Circuit Division is to operate,

as I have shown in the Analysis.

It is gratifying that the Commission recommended that the Ninth Circuit not be

split and recognized the importance of having a single court interpret and apply federal law in the Western United States. However, the evidence does not justify the

recommended change to a divisional structure of the Ninth Circuit Court of Appeals.

The disadvantages of such a structure far outweigh the claimed advantages and do

not justify disrupting a court that the great majority of judges and lawyers within

the circuit are convinced is operating efficiently and effectively. The Ninth Circuit

has always been willing to re-evaluate itself, its performance, and to experiment

with innovations that would lead to greater efficiency and effectiveness. The annual

evaluation of the Ninth Circuit’s long range plan is specifically designed to do so.

Concerns that have surfaced in the Final Report of the Commission can be addressed with far less disruption than a whole new divisional structure. At the

present, they are being addressed by a special Evaluation Committee that I appointed specifically for that purpose.

The Committee, chaired by Senior Circuit Judge David Thompson, is composed of

Ninth Circuit judges from different regions of the circuit, as well as a representative

from the district, court bench, a prominent scholar of the federal appellate courts,

and an experienced appellate practitioner. The Committee has met over the past

several months on numerous occasions and has made a special effort to meet with

representatives of the bench and bar throughout the Ninth Circuit in order to get

a wide spectrum of participation in the evaluation process.

In conclusion, with the Commission acknowledged, after extensive study, that

there is no persuasive evidence that the Ninth Circuit is not working effectively.

There is no justification for mandating this drastic change in structure that will impede, not enhance, the continued development of consistent circuit law throughout

the nine Western United States and the Island Territories. The other, circuits have

all opposed the divisional structure and it has been made optional for them. The

Ninth Circuit should be treated the same as the other circuits and should be given

the same option.

ANALYSIS OF THE FINAL COMMISSION REPORT BY CHIEF JUDGE PROCTER HUG, JR.

The Commission on Structural Alternatives for the Federal Courts of Appeals submitted its Final Report on December 18, 1998. I have had an opportunity to carefully analyze the report and to discuss it with judges and lawyers. I thought it

would be helpful to give my evaluation of the Final Report, as I did with the Draft

Report.

SUMMARY

The basic question resolved by the Commission is whether the Ninth Circuit

should be split. The strong recommendation of the Commission is that it should not

be split. It stated:

Maintaining the court of appeals for the Ninth Circuit as currently

aligned respects the character of the West as a distinct region. Having a

single court interpret and apply federal law in the western United States,

particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit

that should be maintained.

The Commission recommended a structural change in the Court of Appeals. It

proposed that the Ninth Circuit Court of Appeals be divided into three semi-autonomous adjudicative divisions, with the State of California being split into two separate divisions. Panel decisions decided in one division would not be binding precedent in either of the other divisions and each division would have an independent

en banc procedure that would have no precedential effect in the other two divisions.

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The question then becomes whether the structural changes, as proposed by the

Commission, better serve the prime objective of having consistent law throughout

the Ninth Circuit.

When a whole new concept of the operation of the Court of Appeals is proposed,

the burden should be upon those proposing the change to show that a particular

proposal will operate more efficiently, effectively, and better advance the cause of

justice than the time-tested procedures that have been in operation for many years.

The Commission stated that it had reviewed all of the available objective data

routinely used in court administration to measure performance and efficiency of the

federal courts of appeals but could not say that the statistical data tipped decisively

in one direction or the other. It noted that while there are differences among the

Courts of Appeals, it is impossible to attribute them to any single factor such as

size.

In considering the subjective data, the Commission noted that the district judges

of the Ninth Circuit do not find the law insufficiently clear to give them guidance

in their decisions any more often than their counterparts in other circuits, but they

more frequently report inconsistencies between published and unpublished opinions.

The Commission then noted that the lawyers of the Ninth Circuit found ‘‘somewhat’’

more difficulty in discerning circuit law and predicting outcomes of appeals than

lawyers elsewhere, but they did report more often a large or grave problem in doing

so.

However, the Commission then stated ‘‘[b]ut when all is said and done, neither

we nor, we believe, anyone else, can reduce consistency and predictability to statistical analysis. These concepts are too subtle, the decline in quality too incremental,

and the effects of size too difficult, to allow evaluation in a freeze-framed moment.’’

The Commission acknowledges that the conclusion of a need for a major structural change in the Ninth Circuit Court of Appeals is not based upon any objective

findings. The subjective findings are based upon rather minor differences expressed

by the Ninth Circuit judges and lawyers, and the belief of the Commission that a

smaller decisional unit just works best. There were many responses to the Commission’s Draft Report in opposition to the divisional structure. Some of these were by:

The United States Department of Justice; Senator Dianne Feinstein; Governor

Pete Wilson; The Ninth Circuit Court of Appeals; The Ninth Circuit Judicial Council; The Association of District Judges of the Ninth Circuit; The Federal Bar Association; The Sierra Club Legal Defense Fund; The Los Angeles County Bar Association;

The Chief Judges of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and

DC Circuits; The New York City Bar Association; The Federal Bar Council’s Committee on the Second Circuit Courts; and The Chicago Council of Lawyers.

Under the present structure of the Court of Appeals, we have a viable mechanism

that maintains the consistency of law throughout the entire circuit. Panel decisions

of all of the judges are binding throughout the entire circuit. The limited en banc

procedure provides a mechanism whereby all judges participate in the en banc process by the ‘‘stop clock’’ procedure, requests for en banc, memos circulated to the entire court arguing for and against en banc review, and by a vote of all of the active

judges on whether to take a case en banc.

When a case is taken en banc, the en banc court reviews the full case for purposes

of clarifying the circuit law, resolving conflicts, or considering questions of exceptional importance to establish the law of the circuit. There is no additional level of

appeal, as there would be with the divisional approach, and there is no litigation

upon whether an opinion reflects a direct conflict between divisions or merely distinguishes cases involved, as there would be with the divisional approach.

Our circuit court has the advantage of the diversity and background, experience

and geographical identity of a large number of judges that provide important insights into the applications and development of the federal law throughout the nine

western United States and Island Territories. It is especially important to note that

the judges of the nine other circuit courts of appeals who responded to the Commission’s draft opposed the divisional approach. The stated advantages asserted for the

divisional approach are heavily outweighed by the disadvantages.

The disadvantages may be summarized as follows:

1. There is no participation of all judges circuit-wide in resolving the circuit law

as at present. The only participation is within the division.

2. Resident judges within a division that are assigned to another division would

not participate in panels within the resident division for a three-year period and

would, for that period, have no say in the en banc consideration of panel decisions

within the division of their residence.

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3. The proposed Circuit Division court would be an additional level of appeal before finality.

4. The resolution of conflicts by the Circuit Division court would be by 13 judges,

not representative of the full court or proportionately representative of the divisions. The Circuit Division would create a category of what, in effect, would be

Super Court Judges, for three-year terms with greater power in determining the

law of the circuit.

5. There would be no participation of judges throughout the circuit in the decisions of the Circuit Division, as to whether it should take a case or not take a

case or let a panel decision stand.

6. There are statutory problems lurking in the new procedure, two of which I

identify but others in an untested procedure could well surface in the future.

7. The practical operation of the divisional approach becomes administratively

complex in the manner in which the judges are designated to be assigned among

divisions, and the manner in which the Circuit Division is to operate.

The Ninth Circuit has always been willing to re-evaluate itself, its performance,

and to experiment with innovations that would lead to greater efficiency and effectiveness. The annual evaluation of the Ninth Circuit’s long range plan is specifically

designed to do so. Concerns that have surfaced in the Final Report of the Commission could be addressed with far less disruption than a whole new divisional structure. A great majority of the judges and lawyers within the Ninth Circuit concluded

that it is operating efficiently and effectively as a large court and should continue

doing so. The case has not been made nor the burden of proof carried for a drastic

change in the structure of the Ninth Circuit Court of Appeals.

DETAILED ANALYSIS OF THE FINAL REPORT

Changes from the draft report

The Final Report retains basically the same recommendations as in the Draft Report.

1. Submitting the strong recommendation that the Ninth Circuit should not be

split.

2. Proposing legislation that the Ninth Circuit Court of Appeals be divided into

adjudicative divisions, whose panel opinions and en banc; opinions would not be

binding throughout the circuit, with a separate Circuit Division to resolve only

conflicts between decisions in the three adjudicative divisions.

3. Proposing legislation that would authorize (though no longer require) other circuits to utilize the adjudicative divisional approach once the number of judges in

the Court of Appeals increases beyond 15.

4. Proposing legislation to permit experiments with two-judge panels.

5. Proposing legislation that would permit experimentation with district court appellate panels.

6. Urging Congress to refrain from changing the Bankruptcy Appellate System

until the Judicial Conference has had an adequate opportunity to study it and

propose any necessary improvements. However, the specific recommended legislation concerning direct appeals with utilization of the Bankruptcy Appellate Panels

was eliminated from the appendices.

There are some changes from the Draft Report to the Final Report.

1. The major change is that for circuits other than the Ninth Circuit, the proposed

legislation no longer mandates that the Court of Appeals be divided into adjudicative divisions when the complement of judges exceeds 17. Thus for other circuits,

the adjudicative divisional approach becomes entirely optional.

2. The composition of the Circuit Division and method of selection is changed from

the 7-judge court originally proposed, to a 13-judge court, composed of the chief

judge and 12 other judges in active status chosen by lot in equal numbers from

each regional division. The 12 judges would serve non-renewable three-year

terms.

3. The Final Report provides that each division would also include some judges

not residing within the division, assigned randomly for specified terms of at least

three years, instead of one year as provided in the Draft Report.

4. The proposed statutory provision specifying the particular composition of the

Judicial Council of the Ninth Circuit was eliminated, leaving that matter up to

the discretion of the Ninth Circuit, as it does with the other circuits.

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5. The seven-year Sunset Provision was eliminated. Thus, the concept of the divisional approach being an ‘‘experiment’’ with a termination period is no longer the

case.

COMMISSION REPORT AS IT PERTAINS TO THE NINTH CIRCUIT

Major conclusion—no circuit split

The major conclusion of the Commission is that the Ninth Circuit should not be

split. The Commission made the following statements supporting that conclusion.

There is no persuasive evidence that the Ninth Circuit (or any other circuit, for

that matter) is not working effectively, or that creating new circuits will improve

the administration of justice in any circuit or overall. Furthermore, splitting the circuit would impose substantial costs of administrative disruption, not to mention the

monetary costs of creating a new circuit. Accordingly, we do not recommend to Congress and the President that they consider legislation to split the circuit.

There is one principle that we regard as undebatable: It is wrong to realign circuits (or not realign them) and to restructure courts (or leave them alone) because

of particular judicial decisions or particular judges. This rule must be faithfully honored, for the independence of the judiciary is of constitutional dimension and requires no less.

* * * * *

Maintaining the court of appeals for the Ninth Circuit as currently

aligned respects the character of the West as a distinct region. Having a

single court interpret and apply federal law in the western United States,

particularly the federal commercial and maritime laws that govern relations with the other nations on the Pacific Rim, is a strength of the circuit

that should be maintained.

* * * * *

Any realignment of circuits would deprive the west coast of a mechanism

for obtaining a consistent body of federal appellate law, and of the practical

advantages of the Ninth Circuit administrative structure.

The conclusion that the Ninth Circuit should not be split corresponds with the

overwhelming opinion of the judges and lawyers in the Ninth Circuit, as well as

statements of others concerned with this issue who submitted written statements

or gave oral testimony before the Commission. Among those opposing the division

of the Ninth Circuit were the following:

• 20 out of the 25 persons testifying at the Seattle Hearing of the Commission.

• 37 out of 38 of the persons testifying at the San Francisco Hearing of the Commission.

• The Governors of the States of Washington, Oregon, California, and Nevada.

• The American Bar Association.

• The Federal Bar Association.

• The United States Department of Justice and the U.S. Attorneys within the

Ninth Circuit.

• All of the Public Defenders within the Ninth Circuit.

• Respected scholars: Charles Alan Wright, Arthur Hellman, Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie Choper, and Margaret Johns.

• The past Director of the Federal Judicial Center, Judge William Schwartzer.

• The chairman of Long-Range Planning for the U.S. Federal Courts, Judge Otto

Skopil.

• A great majority of the judges and lawyers in the Ninth Circuit.

Adjudicative Divisions for the Ninth Circuit Court of Appeals

Having strongly opposed the division of the Ninth Circuit, the Commission proceeds further to recommend a revised method of operation for the Ninth Circuit

Court of Appeals through intra-circuit adjudicative divisions. The essential question

then becomes whether the suggested revision of the operation of the Court of Appeals accomplishes the acknowledged goal of having a single court interpret and

apply the federal law in the nine western United States and the Island Territories

in an efficient and effective manner better than its present method of operation.

When a whole new concept of the operation of courts of appeals is proposed, the

burden should be upon those proposing the change to show that a particular proposal will operate more efficiently, effectively, and better advance the cause of justice than the time-tested procedures that have been in operation for many years.

53

The position of the Ninth Circuit expressed to the Commission is that it is working well and that a great majority of the judges and lawyers in the Ninth Circuit

are opposed to a split. This was confirmed by the survey of the Commission in which

over two-thirds of the judges in the Ninth Circuit expressed that opinion.

The Commission has proposed that the Ninth Circuit Court of Appeals be divided

into three semi-autonomous adjudicative divisions, with the State of California

being split into two separate divisions. Panel decisions decided in one division would

not be binding precedent in either of the other divisions, and each division would

have an independent en banc procedure that would have no precedential effect in

the other two divisions. The Commission, in its Final Report, stated that this is essential to its conception of the operation of the divisions. Comments recommending

changes to this aspect of the proposal were rejected as antithetical to the proposed

divisional structure.

Findings supporting the divisional structure

It is important to assess the arguments the Commission believed required a

change in the operation of the Ninth Circuit Court of Appeals. The Commission

noted that the arguments had both objective and subjective components. With regard to the objective component, the Final Report states:

We have reviewed all of the available objective data routinely used in

court administration to measure the performance and efficiency of the federal appellate courts, but we cannot say that the statistical criteria tip decisively in one direction or the other. While there are differences among the

courts of appeals, differences in judicial vacancy rates, caseload mix, and

operating procedures make it impossible to attribute them to any single factor such as size.

The Final Report then considered the subjective opinions of the district judges and

lawyers in the Ninth Circuit. With regard to the district judges, the Final Report

notes that the district judges in the Ninth Circuit do not find the law insufficiently

clear to give them guidance in their decisions anymore often than their counterparts

in other circuits, but they more frequently report that difficulties stem from inconsistencies between published and unpublished opinions.

With regard to the lawyers in the Ninth Circuit, the Final Report indicates that

Ninth Circuit lawyers found somewhat more difficulty discerning circuit law and

predicting outcomes of appeals than lawyers elsewhere and more often than others

reported a large or grave problem in doing so. However, the Commission stated,

‘‘[b]ut when all is said and done, neither we nor, we believe, anyone else, can reduce

consistency and predictability to statistical analysis. These concepts are too subtle,

the decline in quality too incremental, and the effects of size too difficult to isolate,

to allow evaluation in a freeze-framed moment.’’

The reaction of the lawyers would be a concern that the Ninth Circuit would wish

to address to determine the source of any problem or whether there really is a problem and to consider reasonable steps that can be taken to remedy the problem if

it is serious. However, the fact that there is just somewhat more difficulty than in

other circuits does not seem to justify a major change in the structure of the Ninth

Circuit Court of Appeals.

Thus, it would appear that the conclusion of a need for the major structural

change in the Ninth Circuit Court of Appeals is not based upon any objective findings. The subjective findings are based on rather minor differences expressed by the

Ninth Circuit judges and lawyers, and the belief of the Commission that a smaller

decisional unit just works best.

Responses in opposition to divisional structure

There were many responses to the Commission in opposition to this divisional

structure, both as the idea pertained to the Ninth Circuit and as it pertained to

other circuits in the future. Some of these responses were as follows:

• The United States Department of Justice submitted its response, noting that it

approached its perspective from that of a litigant that participated in over 40

percent of the cases heard in the federal courts of appeals. In opposing the recommendation for the creation of intra-circuit divisions, the Justice Department

stated, ‘‘we agree with the draft report’s recommendation that the Ninth Circuit

should not be split at this time, and we concur generally in its view that ‘[t]here

is no persuasive evidence that the Ninth Circuit (or any other circuit, for that

matter) is not working effectively, or that creating new circuits will improve the

administration of justice in any circuit or overall.’ In our view, the lack of evidence supporting circuit splits also counsels against what we view as the principal recommendation contained in the draft report—the creation of divisions for

54

the Ninth and other large circuits. That proposal would have potentially adverse repercussions for the administration of justice in the Ninth Circuit and

ultimately across all federal courts of appeals.’’

• Senator Dianne Feinstein wrote: ‘‘Since your report was released on October 7,

I have talked with federal judges, members of the Bar, and legal scholars in

California to discuss the recommendations of the Commission. The overriding

consensus among judicial and legal leaders is that it would be disastrous if California were split into Northern and Southern Divisions. Concerns expressed to

me about the proposal to divide California focus on the following issues:

The Middle Division (Northern California) and the Southern Division

(Southern California) would not be bound precedentially by each other’s decisions. Lawyers would engage in ‘‘forum shopping’’ within the same State

for favorable rulings. California corporations subject to federal jurisdiction

could be subject to varying interpretations of the same federal and state

laws. This could compel businesses to build headquarters in other States

where there is no conflict within the federal court system. The lack of uniformity and certainty in the law could create chaos in our state. Imagine

if two California divisions disagreed on the constitutionality of any statewide initiative or law. This could do extraordinary damage to Californians’

faith in the integrity and fairness of the judicial system. Another layer of

judicial review within the Ninth Circuit would have enormous costs and enlarge the federal bureaucracy.’’

• Governor Pete Wilson, then Governor of the State of California, responded that

‘‘the proposal to divide the Ninth Circuit Court of Appeals into three divisionswhich would split California—would be counterproductive and not in the best

interests of the people of California.’’ He noted that the divisional arrangement

proposed by the Commission would not only undermine the objective of having

a single court interpret and apply the law in the western United States but

would also raise new problems. He then listed five specific problems.

• The Ninth Circuit Court of Appeals, the Ninth Circuit Judicial Council, and the

Association of District Judges of the Ninth Circuit all voiced opposition to the

divisional approach.

• The Federal Bar Association pointed out that although there are regional issues

‘‘the much larger portion of appellate issues and caseload are not so regionally

unique.’’ They expressed concern that the regional advantage might come at too

high a price—‘‘lack of inter-division stare decisis and of meaningful en banc review.’’

• The Sierra Club Legal Defense Fund calls the proposed divisional structure ‘‘a

solution in search of a problem with little evidence to support the need for such

changes.’’ They cite the survey in the Commission Report, which showed that

over two-thirds of the circuit judges and the district judges do not favor circuit

reconfiguration.

• The Los Angeles County Bar Association stated, ‘‘As a representative of many

private and public consumers of judicial services in the Ninth Circuit, we * * *

register our fundamental disagreement with the proposed restructuring of the

Ninth Circuit into divisions. We believe this so-called ‘divisional arrangement’

will present many, if not all, of the difficulties that the Commission acknowledges would accompany a split of the Circuit. Indeed, as we explain below, we

see the proposed divisional structure as a de facto split of the Circuit that

would, in effect, split California. Yet, the notion of splitting California is the

very option that the Draft Report calls ‘undesirable.’ Draft Report at 46. We believe this same concern applies with equal force to the proposed division of any

state.’’ They noted new problems that the divisional arrangement would create:

inconvenience and cost; inconsistent interpretation of California state law;

forum shopping and delay tactics; and increased confusion for litigants.

• The Chief Judges of the First, Second, Third, Fourth, Seventh, Eighth, and DC

Circuits wrote a joint response to the divisional approach, stating that ‘‘The

whole concept of intra-circuit divisions, replete with its two levels of en banc

review, has far more drawbacks than benefits.’’

• Judge Winter, Chief Judge of the Second Circuit, wrote a separate letter on behalf of his court ‘‘to indicate a strong and unanimous opposition to the Commission’s recommendation of mandatory divisions in courts of appeals with authorized judgeships over a certain number.’’ He listed several reasons. ‘‘First because such divisions have never been tried, we have no experience with them.

The present organization of the regional courts of appeals is hardly working so

badly that mandatory resort to a very different and untested form of organizaVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
55

tion is called for.’’ He then stated it would increase forum shopping and require

more judges and concluded ‘‘Finally, and most importantly, the major premise

of the recommendation for mandatory divisions appears to be that appellate

courts with 18 judges or more will inevitably lead to an unacceptably incoherent

case law. We do not agree with that major premise. Moreover, we believe that

the proposal for mandatory divisions will lead either to more incoherence in

case law rather than less or to intolerable collateral consequences.’’

• Judge Politz, the Chief Judge of the Fifth Circuit, wrote saying that the judges

on his court are very concerned and voiced considerable reservations about the

proposal for mandatory divisions for circuits with 18 or more active judges.

Judge Edith Jones of that court expressed her opposition more colorfully, in

that she believes this to be ‘‘a dagger pointed at the heart of the Fifth Circuit,

with our currently authorized 17 judgeships.’’

• The New York City Bar Association opposes the recommendation that the federal courts of appeals are required to split themselves into divisions. They recognize that such division is ‘‘very nearly the functional equivalent of splitting

it into separate circuits.’’ They conclude that this should only be done in extreme circumstances.

• The Federal Bar Council’s Committee on the Second Circuit Courts opposes divisions and argues that this will cause greater disharmony in circuit law and

an additional burden caused by another layer of review.

• The Chicago Council of Lawyers opposes divisional organization of the Court of

Appeals. ‘‘[T]his is another bad solution to a ‘not proven’ problem.’’ They state

that the basis for the Commission’s recommendation is that according to an unpublished survey, lawyers and district court judges in the Ninth Circuit are

‘‘somewhat’’ more likely ‘‘to have trouble discerning circuit law, and that the

court is too large for ‘collegiality’ to work effectively.’’ The Council does not concede that either of these are genuine concerns. It does point out, however, that

the divisional approach will ‘‘if anything increase uncertainty and hinder

collegiality.’’

Comparison of circuit divisions as opposed to the current operation of the circuit

court

The essential question is whether the proposed divisional approach is so superior

to the current method of operation as to justify changing the basic structure of the

Ninth Circuit Court of Appeals.

Present operation of the court

• Panel decisions are binding throughout the circuit and other panels are obligated to follow that precedent unless it is overruled en banc. The circuit has

developed a sophisticated issue coding procedure and all panels are notified

when the same issue is before two or more panels. The first panel to have the

issue submitted to it has priority to resolve the issue. However, there is frequently contact between panels having the same issue for consideration of another panel’s view.

• There is no empirical evidence that the conflict between panels of the Ninth

Circuit is any greater than any other circuit.

• A limited en banc process operates effectively and involves the entire court.

Any circuit judge, including senior judges, can call for a ‘‘stop clock,’’

which is usually done when a judge wants the panel to consider an objection to a part of the decision.

Any judge, including senior judges, can call for en banc and write memos

supporting the en banc call or comment on the en banc call of other judges.

Generally, there are many insightful memos.

All active judges vote on whether to take a case en banc. The limited en

banc process is representative of the court as a whole because all of the circuit judges can submit memoranda for or against the en banc call, and all

active circuit judges vote on whether to take the case en banc. If the case

is not taken en banc, this is a decision of the full court that the panel opinion should stand.

The limited en banc decisions are fully accepted by the court as being the

final decision of the court as a whole. A majority of the active judges can

have a limited en banc decision reviewed by the full court. Since 1980,

there have been only five such requests, and the majority of the active

judges have never voted to consider a limited en banc decision before a full

court en banc. From 1980 to 1997, there have been 173 cases heard by the

limited en banc court. 33 percent of the decisions were unanimous and 75

56

percent of the decisions were rendered by a majority vote of 8-to-3 or greater. This is strong indication that a full court en banc would not have

reached a different decision.

In the calendar year 1996, there were 25 calls for en banc that were

voted on by the full court and 12 of the cases were taken en banc. In calendar year 1997, there were 39 calls for en banc that were voted on by the

full court and 19 of the cases were taken en banc. In calendar year 1998,

there were 45 calls for en banc that were voted on by the full court and

16 of the cases were taken en banc. The full-court participation should be

judged not only upon those cases that were taken en banc, but by those

cases that were called for en banc, upon which the full court voted.

There could well be changes in the limited en banc process that would

further improve its operation, as suggested by the Justice Department and

others. But, these are minor adjustments that could be made and still retain the function of resolving circuit-wide precedent both as to conflicts and

as to questions of exceptional importance.

Divisional operation

• Panel decisions in a division would have a binding precedential effect only in

that division and no binding precedential effect in either of the other two divisions.

• The Circuit Division only resolves conflicts between panels in different divisions. Unless there is a conflict with a decision from another division, the law

of each division is not reviewed within the circuit, which leaves questions of exceptional importance unreviewed in the Ninth Circuit.

• A very significant difference is the lack of participation in the development of

circuit-wide law by all judges. A judge in one division cannot call for en banc

in another division, but more important, does not participate in the development of circuit law through the stop clock or en banc procedure, or by circulating memos in support of or opposed to en banc consideration.

• The makeup of the Circuit Division is not proportionately representative of the

court as a whole. The Circuit Division is composed of the chief judge and 4

judges from each division. The Northern Division has only 22 percent of the

caseload and would be expected to have 22 percent of the judges, whereas the

Southern Division has 47 percent of the caseload and would be expected to have

47 percent of the judges, yet the two divisions would be equally represented on

the Circuit Division court.

• There is no input from any of the judges in any of the divisions to seek to have

a case heard by the Circuit Division. The statute specifies that the application

is to be made by a party to the case. Furthermore, the Circuit Division has discretion whether to take a case or not, regardless of what a majority of the

judges of the circuit would consider to be a conflict.

• The Circuit Division presents an additional level of appeal for litigants before

they achieve finality.

RELATIVE ADVANTAGES OF THE TWO STRUCTURES

The present structure

• There is a circuit-wide mechanism that maintains the consistency of law

throughout the circuit and is not dependent upon there merely being a conflict

between divisions of the court.

• There is circuit-wide participation by the judges in the development of the circuit law. The panel decisions of all the judges are binding throughout the entire

circuit. All of the judges participate in the en banc process for the entire circuit

by the stop clock procedure, requests for en banc, memos circulated to the entire

court arguing for and against an en banc review, and by a vote of all of the

active judges on whether to take a case en banc.

• When a case is taken en banc, the en banc court reviews the full case for the

purposes of clarifying the circuit law, resolving any conflicts, or considering

questions of exceptional importance to establish the law of the circuit.

• There is no additional level of appeal as there would be with the divisional approach.

• There is no litigation on whether an opinion reflects a direct conflict between

divisions or merely distinguishes the cases involved, as would be the case with

the proposed Circuit Division.

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• The circuit court has the advantage of diversity in the background, experience,

and geographical identity of a large number of judges, which provide important

insights into the application and development of federal law throughout the

nine western United States and Island Territories.

The divisional structure

The asserted advantages for the divisional approach, as detailed in the Final Report, are as follows:

• Smaller decisional units will promote consistency and predictability because the

judges in the smaller units will have a better opportunity to monitor the decisions of all the panels within that division.

• The judges within a division would sit together more frequently, contributing

to greater collegiality among those judges, and more predictability as to the results of appeals. Judges in a division would become much more of a ‘‘known

bench,’’ fostering judicial accountability and public confidence.

• Divisional en banc procedure would arguably operate more effectively.

• Each judge would arguably be relieved of having to keep current with the

decisional output of the entire Ninth Circuit Court of Appeals. However, when

decisions of other divisions are to be ‘‘accorded substantial weight,’’ there would

still remain some responsibility on the part of the judges to keep current with

the decisions of the other divisions.

The question is whether these asserted advantages really exist and, if so, are outweighed by the disadvantages of the divisional operation.

Disadvantages of divisional operation

• There is no participation of all judges circuit-wide in resolving circuit law, as

at present. The only participation is within the division.

• Resident judges within a division that are assigned to another division, as contemplated in the Final Report, would, for that three-year period, have no say

in the en banc consideration of panel decisions within the division of their residence. For example, if a circuit judge who resides in Alaska is randomly assigned for three years to the Southern Division, he would have no say in the

en banc process of the Northern Division.

• The resolution of conflict by the Circuit Division would be by judges, not representative of the full court or even proportionately representative of the divisions.

• The Circuit Division would create a category of what, in effect, would be Super

Circuit Court Judges with three-year terms, to determine conflicts in circuit law

without the participation of any other judges in the circuit.

• There would be no participation of judges throughout the circuit in the decisions

of the Circuit Division. In fact, the Circuit Division procedure is only initiated

by a party, not a judge, and the Circuit Division can, by a vote of those Super

Judges, elect not to consider a case.

• There are statutory problems lurking in the new procedure, which we may not

realize. I can identify two.

• There is a problem under the statute for the Circuit Division to resolve conflicts

unless there are two contemporaneous conflicting decisions. If a case in the

Northern Division conflicts with a case decided in the Middle Division two years

prior, the Circuit Division can only affirm, reverse, or modify the Northern Division case. It cannot modify the Middle Division case. The statute does not provide for the Circuit Division decision to become the law of the circuit. It only

affects the decision of the Northern Division.

The Final Report states that existing circuit law will be in effect until

overruled by a division. However, the statute does not say so. If this is not

the case, it would create real problems of determining circuit law. Assuming, however, that existing law is intended to remain in effect, as the Final

Report states, and the statute is so amended, this still creates a significant

problem. If a division overrules an existing precedent, this would not be

binding circuit-wide unless there is a case in another division that is in conflict and can be modified. The existing precedent would remain in effect in

the other divisions.

The practicality of how the divisional structure would work

The Commission stated:

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By constituting divisions with both resident and nonresident judges, the

divisional structure respects and heightens the regional character deemed

a desirable feature of the federal intermediate appellate system, without

losing the benefits of diversity inherent in a court drawn from a larger

area. The divisional structure draws on the circuit’s full complement of

judges while restoring a sense of connection between the court and the regions within the circuit by assuring that a majority of the judges in each

division come from the geographic area each division serves.

The Commission also indicated that the divisions should be composed so as to

equalize the perjudge caseload, with each division having a maximum of 11 judges

and a minimum of 7. As I will demonstrate, an equal division of the caseload will

dictate there being 6 judges in the Northern Division, 9 in the Middle Division, and

13 in the Southern Division.

The caseload for the Ninth Circuit Court of Appeals for the fiscal year that ended

September 30, 1998, was 9,070. The appeals originating from each of the divisions

is as follows:

Percent

Northern Division 1,988 22

Middle Division 2,831 31

Southern Division 4,251 47

Total: 9,070 100

The average caseload for the 28 judges authorized for the Ninth Circuit Court of

Appeals would be: 9,070 divided by 28=324 appeals perjudge. The number of judges

to be fairly allocated to each Division would be:

Northern Division 1,988 divided by 324=6

Middle Division 2,831 divided by 324=9

Southern Division 4,251 divided by 324=13

Total: 281

1 If the Northern Division were allocated an additional judge to come from either the Middle

Division or the Southern Division, it would mean a substantial increase in caseload for the

judges of that division. If the additional judge were to come from the Middle Division, the caseload per judge in the Middle Division would be 353 cases per judge or 1,061 per panel, as opposed to 284 cases per judge or 852 per panel in the Northern Division. Since the judges sit

in panels of 3, this would mean that a judge in the Northern Division would have 209 fewer

cases per year than a judge in the Middle Division. A nearly identical result would be obtained

if the additional judge were to be allocated from the Southern Division. Thus, a fair allocation

of the caseload would be as shown with the Northern Division having 6 judges.

Following the formulation provided by the Commission Report, that the majority

of the judges be residents of the division, with other division judges being assigned

to that division, the result would be as shown on the following chart:

Division

Present Authorized

Judgeships

in Division

Judges Allocated by

Caseloads

Majority of

Allocated

Judges

To be Assigned

From Other

Divisions

To Be Assigned To

Other in

Divisions

Northern ......................... 9 6 4 2 5

Middle ............................. 7 9 5 4 2

Southern ......................... 12 13 7 6 5

Thus, for example, in the Northern Division, there would be better than a 50 percent chance that a resident judge would be assigned to another division for three

years. During that time, the assigned judge would take no part in the panel decisions of the division in which the judge resides, and the judge could take no part

in the en banc court in the judge’s division. Furthermore, the judge is not expected

to keep up on the decisions in the judge’s resident division. The same is essentially

true for the other divisions, with a somewhat lesser chance of being assigned to another division.

The designation of the presiding judge of each division presents an interesting

scenario. Under the statute, the age and time limitations are the same for a presiding judge as for a chief judge, then it goes by seniority, provided that only judges

59

resident in and assigned to the division are eligible. The process would operate as

follows:

The presiding judge of the Northern Division would be Judge O’Scannlain, unless,

of course, he was one of the five judges randomly assigned to another division. In

that case, it would fall to the next judge in seniority that was not assigned to another division. If an assigned judge returns, and is senior and otherwise eligible, I

presume that the returning judge would replace the presiding judge.

In the Middle Division, Judge Willie Fletcher would be the presiding judge, unless, of course, he is assigned to another division. In that event, one of the new

judges, yet to be appointed and confirmed, would take the position. (Judges Browning, Hug, and Brunetti would be ineligible).

In the Southern Division, Judge Schroeder would be the presiding judge, unless,

of course, she is assigned to another division, in which case the position would go

to the next eligible judge in seniority that was not assigned to another division.

All this is further complicated in the first three years by the fact that the initial

terms of assignment out of division are staggered one-year, two-year, and three-year

terms.

The composition of the Circuit Division that resolves circuit conflicts also presents

some interesting questions. The 13-judge court is composed of the chief judge and

4 active judges chosen by lot from each division. The Northern Division, which has

less than 22 percent of the caseload, with 6 judges allocated, would have representation on the Circuit Division court equal to the Southern Division, with 47 percent

the caseload and 13 judges allocated. The judges drawn from a division need not

be residents of the division, but under the statute, can be one of the assigned

judges.

The point is that the Circuit Division court is much less representative of the full

court then our present limited en banc court. The Circuit Division is skewed by nonproportional divisional representation. Also, with three-year terms it may be many

years before a judge would serve on that court. Our present limited en banc court

is drawn at random from the full court. If a judge has not been drawn to be on the

en banc court for three successive times, he is automatically placed on the en banc

court. Thus, a judge is guaranteed to be on the limited en banc court at least every

fourth time the court is constituted.

CONCLUSION

The work of the Commission has been valuable in placing in historical prospective

the development of the Federal Appellate System, and conducting hearings and surveys, and in obtaining written comments from a wide spectrum of those concerned

with the future of the Federal Appellate System. Many of the recommendations will

be valuable in informing future developments.

It is gratifying that the Commission recommended that the Ninth Circuit not be

split and recognized the importance of having a single court interpret and apply federal law in the western United States. However, the evidence does not justify the

recommended change to a divisional structure of the Ninth Circuit Court of Appeals.

The disadvantages of such a structure far outweigh the claimed advantages and do

not justify disrupting a court that the great majority of judges and lawyers within

the circuit are convinced is operating efficiently and effectively. The Ninth Circuit

has always been willing to re-evaluate itself, its performance, and to experiment

with innovations that would lead to greater efficiency and effectiveness. The annual

evaluation of the Ninth Circuit’s long range plan is specifically designed to do so.

Concerns that have surfaced in the Final Report of the Commission can be addressed with far less disruption than a whole new divisional structure.

Senator GRASSLEY. Thank you, Mr. Chief Judge.

Now, Judge Rymer.

STATEMENT OF HON. PAMELA ANN RYMER

Judge RYMER. Thank you very much, Chairman Grassley, members of the subcommittee, Senator Feinstein. I am Pam Rymer, and

I very much appreciate the opportunity of testifying. But in view

of Senator Sessions’ introduction of me as a member of the Ninth

Circuit Court of Appeals, I think I should make it very clear to you

that I am here representing and speaking in behalf of the Commission on Structural Alternatives for the Federal Court of Appeals.

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Our recommendations with respect to the ninth circuit, are, of

course, reflected in S. 253.

Justice White, who chaired the Commission, of course, submitted

a written statement to you. But he also asked me to convey directly

to you his strong conviction that this legislation must be enacted.

As you know, the Congress created the Commission in great

measure at the urging of the ninth circuit to make an independent

study of structural alternatives for the Federal Courts of Appeal,

which we did, as instructed, with particular reference to the ninth

circuit.

The Commission conducted an extensive study and concluded two

things that are of equal importance: The circuit, which is an administrative entity with no adjudicative functions, ‘‘ain’t broke,’’

and it should not be fixed.

But equally important, the Court of Appeals for the Ninth Circuit is broke and should be fixed, but cannot be fixed without structural change. The reason is the Court of Appeals is too large to

function well as a single decisionmaking unit, yet the caseload will

likely continue to grow, and with that, the need for even more

judges to handle it. In the opinion of two-thirds of the Federal circuit judges throughout the country, an appellate court stops acting

like an appellate court should act if it has more than 11 to 17

judges.

The Ninth Circuit’s Court of Appeals has 28 authorized and 19

senior judges with another five requested. Unlike any other appellate court in the Nation, its judges do not sit together as a full

court en banc to develop and maintain a coherent and consistent

body of law. Instead, that critical function is consigned to a limited

en banc court, which is randomly constituted on a case-by-case

basis. Neither do its judges sit with each other regularly enough

on panels to get a true understanding of their colleagues’ jurisprudence or to polish off the rough edges, like any good partnership

or marriage.

And the court’s output is too large to read, let alone for each

judge personally to keep abreast of, think about, digest or influence. Inevitably, over time, there is a toll on coherence and consistency, predictability and accountability.

For this reason, a majority of the justices of the U.S. Supreme

Court unequivocally say that it is time for change. They review the

work of all appellate courts in the country. And as you can see from

their letters to the Commission, each of the five justices to comment on the ninth circuit thinks that the Ninth Circuit’s Court of

Appeals is too big to function well. The Commission unanimously

agreed.

It is important. The problem with the Ninth Circuit’s Court of

Appeals has nothing to do with good will or good administration.

No amount of either, and the court has both good will and very

good administration, no amount of either can make it possible for

30, 40, or 50 or more judges to decide cases together. It simply cannot be done, and that is the problem.

The problem is not that the court does not work. If the problem

were that the court does not work, then administration, and technology and ideas for operational improvement might make a difference, but it is not. Nor is the problem reversal rate. That is not

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a problem that the Commission identified or that the Commission

believes should weigh into the consideration of structural alternatives one or another. We made that very clear in the report and

in the language that Chief Judge Hug just quoted.

The problem with the court of appeals is that it cannot work because there are too many judges for the court to be a court. Therefore, to position the court of appeals so that it can function well,

requires restructuring to downsize the decisionmaking units. The

divisional structure that the Commission recommends will reduce

adjudicative units to manageable proportions, each with 7 to 11

judges, a doable caseload and a rational area of responsibility.

In turn, divisional judges can sit together as a full bench when

they need to. That will make the division a true and traditional en

banc court that can correct panel errors and can develop and maintain a coherent and consistent body of law. Because divisional

judges will serve with each other more frequently on panels and

will participate in crafting proportionately more of the opinions

that speak for the division, they can keep abreast of the output and

the views of their colleagues.

But in addition to size, there are two other values that are extremely important and should not be ignored: One is a regional

connection because circuits, in the main, have regional roots, and

the other is a Federal perspective because it is Federal law, not regional law, that a Federal court must apply. The divisional structure takes account of enhances both values.

On the one hand, a majority of the judges on each division will

reside in a district served by that division, and on the other hand,

judges from elsewhere in the circuit will be assigned to different divisions for a term to provide judge power where needed and to

cross-pollinate the divisions with diversity. In this way, the Federal

appellate court in the ninth circuit will be less remote to those

whose lives and fortunes depend on its decisions, yet still be a

court that is capable of maintaining uniformity, where uniformity

itself is a substantial interest to be served.

Of course, the divisions may diverge in how they interpret Federal law over time. But—and this is very important—mostly this

will not matter because lawyers and district judges in each division

will only need to worry about the law of that division; unlike today,

when even subtle differences between panels throughout the circuit

does matter because district courts are bound to follow and, thus,

to try to figure out the law of the entire circuit.

However, there may well be issues where itself is the compelling

interest. And in that circumstance, in that limited circumstance

only, the circuit division can resolve a substantial and square conflict. Even so, the circuit division will not be a group of super

judges. Indeed, circuit division judges will be far less super than

limited en banc judges are today. For unlike limited en banc

judges, the circuit division will have no power to rehear panel or

divisional decisions to correct the result or to resolve issues of exceptional importance. These are true en banc functions that the

Commission believes are too significant to be left to chance, as they

are now, but should, instead, be entrusted only to divisions that sit

as a full bench or to the U.S. Supreme Court. Nor will the circuit

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division be an extra level of appeal. That is expensive and cumbersome.

There are three possible levels of review now: Panel rehearing,

limited en banc rehearing and full court rehearing. And there will

be three possible levels of review under the divisional structure:

Panel rehearing, divisional en banc rehearing and circuit division

review, if required to resolve squarely conflicting divisional decisions.

As a practical matter, this will seldom happen because only 10

percent of the cases reheard in the last 10 years have been deemed

en banc worthy on account of conflict. There should be even less

conflict under the divisional structure because the division creating

the conflict will have to create it, advisedly and squarely. In any

event, essentially no extra work will be involved, since the issue

and the conflict will have been fully briefed and already the subject

of two fully reasoned, albeit squarely conflicting, divisional decisions.

In my mind, the only really tough call has to do with what to

do about California. No solution is perfect, given how much California contributes to caseload. Personally, having been a lawyer in

Los Angeles for nearly 20 years and a district judge in Los Angeles

for 6 more years, I see no problem at all with putting California

into different divisions.

As Justice John Paul Stevens explains in his letter, which I attached to my written statement and quoted on page 18, and which

I urge you to read carefully, as Justice Stevens explains,

To do so creates no more potential for inconsistency or

forum shopping than now exists. For under the California

state system, decisions of one Court of Appeal do not bind

others. And under the Federal system, there can always be

different decisions by different district judges.

So people who live and work throughout the State of California

already face and already deal with inconsistent determinations of

both State and Federal law. And under the structural arrangement, the circuit division will be there if a square conflict, in fact,

occurs.

Having said that, if, for other reasons, it seems preferable to

postpone the inevitable, the Commission sees no magic to the particular divisional arrangement that the Commission recommended.

California could be a division by itself, but the downside is that

from day one, if it has enough judges to handle the caseload, it

would start off being very close to the limit of not functioning effectively as an appellate tribunal.

Therefore, to me, it makes the most sense to do now what will

be best for the future, and that is to pass the bill in its present

form. As the Chief Justice of the United States has told you, this

structure will address head on most of the significant concerns

raised about the court of appeals and would do so with minimal to

no disruption in the circuit’s administrative structure.

Senator Grassley, thank you for your indulgence. I very much appreciate your consideration of the White Commission’s proposals.

We urge your favorable action on S. 253.

[The prepared statement of Judge Rymer follows:]

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PREPARED STATEMENT OF PAMELA ANN RYMER

EXECUTIVE SUMMARY

The White Commission was created by Congress to recommend structural alternatives for the federal courts of appeal, with particular reference to the Ninth Circuit.

Neither better case management, nor good administration, nor more judges can

avoid the need for alternatives.

The reason is: Beyond a range of 11–17 judges, an appellate court is too big to

function well because it can no longer sit together as a full court to rehear cases

en banc; read and keep up with the court’s output; sit with each other regularly;

take other steps (such as pre-filing circulation of opinions) to assure the coherent,

consistent, and predictable development of the law; and hold each other accountable

for decisions rendered in the name of the court.

At 28 active and 19 senior judges (with 5 more requested), the Ninth Circuit’s

Court of Appeals has too many judges to function well. But instead of splitting the

circuit—which is only an administrative entity with no adjudicative responsibilities

and that ‘‘ain’t broke,’’—fix the court of appeals, which is an adjudicative body, that

is.

Because of its size, the Ninth Circuit’s Court of Appeals is the only court in the

country that does not sit together as a full court to develop and maintain a coherent

and consistent body of law. Instead, it delegates en banc functions to a limited en

banc court of less than half of its authorized judgeships (11) that is randomly constituted on a case-by-case basis. Its members do not sit regularly with each other

on panels. Also because of its size, the court’s output is too great for all judges to

read all of the court’s decisions. Inevitably there is a toll on coherence and consistency, predictability and accountability.

A majority of the Supreme Court and one-third of the judges on the Ninth Circuit’s Court of Appeals believe these realities are serious enough to warrant change.

The divisional concept responds to the principal concerns about the ‘‘Ninth Circuit’’ by producing a judicial unit that is small enough to function well yet also provides a mechanism for maintaining uniform law on issues where consistency

throughout the west is important. It also respects the regional roots of the circuit

system by assuring that a majority of the judges in each division reside in a district

served by that division, but it retains an appropriate federalizing focus through assignment of judges from elsewhere in the circuit, a common set of rules and procedures, and the Circuit Division which may resolve squarely conflicting decisions on

issues where uniformity matters to the circuit.

The divisional structure prescribed in S. 253 is sensible and workable.

Asserted ‘‘disadvantages’’ are not difficulties but strengths.

A circuit-wide en banc process is not necessary as the divisions will sit as a full

bench to decide issues of exceptional importance and to maintain coherent and consistent law in the division. Divisional decisions should not bind other divisions because that would put the court of appeals back to square one—a condition that ultimately cannot work.

Replacing the circuit-wide limited en banc with a divisional full court en banc will

increase—not decrease—judicial participation and accountability.

The Circuit Division does not add a cumbersome new level of review, as there are

no more levels than are presently available and both the parties’ and the Circuit

Division’s work can largely be done on the existing record. Nor is the Circuit Division a collection of ‘‘Super Circuit Court Judges,’’ since its power (to resolve square

conflicts only) is considerably less than a limited en banc court’s, which may take

a case in order to reconsider and then resolve cases of exceptional importance, cases

that pose inter-circuit conflicts, and cases that create an intra-circuit conflict.

Once up and running, the divisional structure should make it easier to organize

calendars as assignments will be more stable, and it should not be more complicated

to support or staff as the divisions will continue to be administered centrally.

The problem of putting parts of California into different divisions is ‘‘seriously exaggerated’’; inconsistency and forum shopping opportunities exist already and will

not be exacerbated by a divisional structure. That said, there is no magic to the particular divisional arrangement the Commission thinks is preferable, except that it

will work now and for the foreseeable future. California could be a division by itself,

but a ‘‘California’’ division with an adequate number of judges to handle the caseload would immediately be too large to function well.

As the Chief Justice of the United States has said, the divisional proposal for the

Ninth Circuit Court of Appeals ‘‘addresses head-on most of the significant concerns

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1While I am testifying as a member of the White Commission, I am also a United States Circuit Judge for the Ninth Circuit and was a district judge for the Central District of California.

I currently serve on the Executive Committee of the Court of Appeals and am Administrative

Unit Judge for the Southern Unit as well as a member of the Judicial Council for the Ninth

Circuit. I have previously been a member of the Executive Committee of the Ninth Circuit Judicial Conference and was its Chair. 2The rider, passed by the Senate, would have split the Circuit by establishing a new Twelfth

Circuit of Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, Guam and the Northern Mariana Islands, leaving California and Nevada in the ‘‘old’’ Ninth.

raised about that court and would do so with minimal to no disruption in the circuit’s administrative structure.’’

S. 253 should be enacted.

I appreciate the opportunity of testifying in support of the recommendations of the

Commission on Structural Alternatives for the Federal Courts of Appeals which,

with respect to the Ninth Circuit, are reflected in S. 253, the ‘‘Ninth Circuit Reorganization Act,’’ that provides for restructuring the Court of Appeals for the Ninth Circuit into adjudicative divisions. I was privileged to serve on the Commission chaired

by retired Supreme Court Justice Byron R. White, and to work with N. Lee Cooper,

the immediate past President of the American Bar Association; Hon. Gilbert S. Merritt, former Chief Judge of the Sixth Circuit and Chair of the Executive Committee

of the Judicial Conference of the United States; and Hon. William D. Browning, who

was Chief Judge of the District of Arizona as well as a member of the Judicial Conference of the United States and the Judicial Council of the Ninth Circuit.1

In the wake of decades of concern about the size of the Ninth Circuit and a rider

to the Appropriations Bill in 1997 that would have split the circuit,2 the Commission was established to study structural alternatives for the federal courts of appeals—with particular reference to the Ninth Circuit. Although the Ninth Circuit

was a special focus of the Commission’s work, its charge was broader and our recommendations with reference to the Ninth Circuit grew out of the study we undertook of the federal appellate system as a whole, its present condition and future capacity.

The most significant fact that emerged is the growth in caseload that federal

courts across the country have experienced in recent years. Appellate courts have

been disproportionately affected because the number of circuit judges has not kept

pace with the growth. To an extent, caseload pressures are exacerbated by unfilled

vacancies, but the problem is more systemic than that.

Better case management is a band-aid that helps alleviate, but does not cure, the

problem. Appellate courts (including, in particular, the Ninth Circuit’s) have responded to increased demand by adding staff support, tracking cases differently depending upon their difficulty, providing ADR, borrowing judges, and taking advantage of technology to coordinate consideration of related issues. At the same time,

fewer appeals are orally argued and fewer result in fully reasoned, published dispositions. With all that has been accomplished, however, most courts appear close

to the limit of their ability to manage the caseload more effectively and efficiently—

yet still render decisions that are, and are perceived to be, fairly and fully considered by Article III judges.

Curtailing jurisdiction could also relieve caseload pressure. Indeed, all members

of the Commission believe that restoring and retaining a more appropriate balance

of federal and state jurisdiction is critical to enabling the federal courts to perform

their core constitutional functions in the future. That said, we cannot realistically

count on changes in jurisdiction to solve the caseload problem.

Another palliative is to increase the number of judges, but the problem with this

solution is that at some point an appellate court becomes too large to function effectively as a single judicial decision-making unit. Unlike judges on a district court,

appellate judges must work together to develop the law of the court’s jurisdiction.

Two-thirds of the circuit judges throughout the country (including one-third of my

colleagues on the Court of Appeals for the Ninth Circuit) believe that the maximum

number of judges for an appellate court to function well lies somewhere between

eleven and seventeen. Beyond this range there are too many judges:

• To sit together as a full court en banc;

• To read the court’s output;

• To sit with each other regularly;

• To take steps such as pre-filing circulation of proposed opinions to assure coherence and consistency, predictability and stability; and

65

3Letters written by the Chief Justice and by Justices Stevens, O’Connor, Scalia, Kennedy and

Breyer to the Commission are available on the Commission’s web site but are attached for convenience as Exhibit A to this statement. Survey results are summarized in the Commission’s

Working Papers. 4 ‘‘Collegial’’ in this context does not mean friendly or sociable or enjoying one another’s company. Nor does it connote that judges get along personally or agree on the law. Rather, a ‘‘collegial’’ court is one that must work together, over time, to develop a consistent, coherent, and predictable body of law for the jurisdiction.

• To hold each judge accountable for decisions that are rendered in the name of

the court.

Historically, when the number of circuit judges needed to deal with a circuit’s increasing caseload has gone beyond a tolerable number, the circuit has been split and

two new circuits have been created, each with an acceptable number of judges to

handle the caseload of the newly aligned circuit (at least for a while). This happened

with the ‘‘old’’ Fifth and Eighth Circuits earlier in the century. Inevitably until now,

splitting the circuit has been seen as the way to solve the conundrum of the Ninth

Circuit, thought by many to be too large in terms of judges, caseload, and population.

But there are downsides—and limits—to circuit splitting. For one thing, to make

more, smaller circuits tends to Balkanize federal law and adversely to affect the federalizing function of a federal court of appeals. For another, everyone to look at the

question has agreed that no regional circuit should have fewer than three states.

This is so for reasons both of policy and practicality: a federal appellate court should

be more than a single state court since it declares federal law that speaks beyond

state boundaries; as such, its judges should come from, and be appointed by and

with the consent of senators who are concerned about the interests of, more than

one or two states. In addition, the only forum where inter-circuit conflict can be resolved is the United States Supreme Court. This makes splitting a single large state

(California, for example) between two different circuits especially undesirable. Finally, there are obvious costs, both to the fiscal and legal order, in creating an entirely new, essentially duplicative, apparatus.

Thus the question Congress posed to the Commission: Are there structural alternatives for the federal courts of appeals, in particular the Court of Appeals for the

Ninth Circuit? The answer is yes. Instead of splitting a circuit that ‘‘ain’t broke,’’

fix the appellate court that is.

A court of appeals is different from the circuit, and the difference is critical to

the White Commission’s analysis. Even though an appellate judge is a ‘‘circuit’’

judge and the court of appeals is commonly called the ‘‘circuit’’ court, the circuit is

not the court of appeals or vice versa. A circuit is an administrative entity that is

the governance mechanism for all courts and judges within the geographic area it

covers—district courts, bankruptcy courts, and magistrate judges as well as the

court of appeals. A circuit has no adjudicative role; adjudication is entirely a court

function. Therefore, to the extent there are perceived problems with a court of appeals on account of the fact that it has grown too large or would be too large if an

adequate number of judges were appointed to handle the caseload, the court of appeals can be restructured without the circuit being split to achieve it.

In the case of the Ninth Circuit, no one seriously questions how the circuit performs its administrative functions. The circuit’s size allows for flexibility in assignment, economies of scale, and a common body of law for the Pacific Rim and the

western part of the United States—all of which are positive values. But many circuit judges, lawyers who practice within the circuit, and a majority of justices on

the United States Supreme Court question how the court of appeals performs its adjudicative functions.3 It is significantly larger than any other collegial court in this

country,4 and there are serious concerns about creeping inconsistency, lack of predictability, and the absence of review of decisions by all judges on the court.

Alone among the circuits, the Ninth Circuit’s Court of Appeals does not sit together en banc, as a full court, to develop and maintain a coherent and consistent

body of law. By statute, federal appellate courts may go en banc for three purposes:

to decide issues of exceptional importance, to resolve intra-circuit conflict, and to

avoid inter-circuit conflict. Instead of a full court en banc, the Ninth Circuit’s appellate court has a ‘‘limited en banc.’’ The limited en banc court is constituted on a

case-by-case basis, consisting of the Chief Judge and ten judges who are randomly

drawn for the particular case. Whatever the limited en banc court decides is the law

of the circuit, unless a majority of the full court votes for a rehearing by the full

court—a possibility that exists in theory but has never happened in practice. In addition to limiting full court review of panel decisions to eleven judges, only 57 perVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
66

5 You may wish to consider whether a cap of 13 is preferable given the size of the caseload

and its distribution within the circuit. 6 Judges drawn for out-of-division service would not move to that division; they would simply

travel to that division’s place of holding court, as circuit judges do now when they are assigned

to an argument calendar that convenes at a location where they do not live. 7The Circuit Division would be composed of the Chief Judge and six to twelve other judges

drawn equally but randomly from each division. They would serve on the Circuit Division for

a term of three years as well as their own division. 8 As the Commission’s Final Report explains, the Ninth Circuit’s previous experiment with regional calendaring was so totally different that no pertinent conclusions can be drawn from it.

Likewise, the ‘‘old’’ Fifth Circuit’s experience is dissimilar in that it operated through divisions

only in transition. But the step is nevertheless not radical in the Ninth Circuit, for it already

has Administrative Units, Northern, Middle and Southern.

cent of the Ninth Circuit’s appellate judges read all or most of the opinions of the

court. This is a far lower percentage than in other circuits with smaller courts.

I believe a smaller court that can sit together regularly in panels, that can convene as a full bench to correct panel error and to maintain a body of coherent and

consistent law, and that can monitor all of its output, is better for the administration of justice than a bigger court that cannot. The benefits of a smaller tribunal

can be obtained without splitting the circuit, but it will take structural change to

make it happen. S. 253 appropriately requires the Court of Appeals for the Ninth

Circuit to be restructured into adjudicative divisions, as the White Commission recommends.

The proposed arrangement creates a Northern Division for the Districts of Alaska,

Idaho, Montana, Oregon, and Eastern and Western Washington; a Middle Division

for the Districts of Northern and Eastern California, Guam, Hawaii, Nevada, and

the Northern Mariana Islands; and a Southern Division for the Districts of Arizona

and Central and Southern California. Each division will consist of seven to eleven

judges,5 a majority of whom are resident within the region served by the division.

Judges can be drawn at random from outside the division to provide judge-power

as needed, and to cross-pollinate the divisions with judges from around the circuit.6

Thus, each division will have a regional connection without losing a federal perspective. At the same time, each division is small enough for every judge to read every

decision and for the division to sit comfortably together as a full bench en banc,

thereby authoritatively declaring the law (and correcting errors) for districts within

the division. Because this might eventually lead to divergence among divisions, the

Commission recommends (and S. 253 provides for) a Circuit Division to maintain

circuit-wide uniformity on issues where consistency is important to the circuit but

on which the divisions have taken squarely conflicting positions.7 In this respect the

Circuit Division has discretion only to break a ‘‘tie’’ in the interest of consistency.

The Circuit Division has no discretion to rehear issues of exceptional importance or

to avoid inter-circuit conflict; these functions repose solely in the divisions, sitting

en banc, or in the United States Supreme Court where certiorari would be available

(as it is now) from panel decisions, from divisional en banc; decisions, and from Circuit Division decisions.

I believe this structure responds to the principal concerns expressed about the

‘‘Ninth Circuit.’’ It reduces the size of the judicial decision-making unit, and replaces

the circuit-wide limited en banc—which does not work like a true en banc works—

with a full division en banc in which all division judges have a voice and a vote.

With these changes, each judge will no longer be ‘‘charged’’ with the output of the

whole court, but can concentrate on the output of the division. All circuit judges can

again be expected to read all decisions that speak for them. In this way, inconsistency and lack of predictability will be less likely and coherent development of the

law more likely.

In addition, the divisional structure accomplishes three other objectives that the

Commission believes are worthwhile. First, it preserves flexibility for the future.

Unlike circuits, divisions and their composition can change up, down or sideways

as changes in caseload require. Second, the divisional structure produces a judicial

unit of suitable size yet provides a mechanism for maintaining uniform law on

issues where consistency throughout the west is important. Finally, it makes the

federal appellate court in the Ninth Circuit less remote to those whose lives and

fortunes depend on its decisions. To some extent tension between the regional roots

of circuit organization and the federalizing function of its court of appeals is inevitable, but the structure proscribed in S. 253 goes a long way toward reconciling the

two.

The divisional structure is sensible and workable. For sure, it has not been tried

before in the form proposed and there is understandable reluctance on the part of

bench and bar alike to experiment with any structural alternative.8 After all, we

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9 Chief Judge Hug has succinctly summarized them in his Analysis of the Final Commission

Report (January 11, 1999), which I believe has been circulated to your Committee and to other

members of Congress. 10 Chief Judge Hug’s Analysis suggests a related disadvantage, that resolution of conflict by

the Circuit Division would be by thirteen judges, not representative of the full court or even

proportionately representative of the divisions. The short answer is that 13 out of 28 is more

‘‘representative’’ than 11 out of 28, which is how the limited en banc court is currently composed. But the real point is that the Circuit Division (unlike the present limited en banc court)

will have limited power—its only authority will be to weigh in on one side or the other of a

square conflict. That assignment could well be done by fewer even than 13 because two entire

divisions will already have fully considered the issue.

were brought up on stare decisis. However, the important thing is what furthers the

administration of justice in the long run. The Commission’s is not a perfect solution.

Nor can there be one, with a state as large as California as part of the mix. However, it is a viable solution that is preferable to splitting the circuit or to letting

the court of appeals grow to 40, 50, 60 or more judges. No one suggested during

the course of our study how that many judges can decide cases as a court, for panels

speak with authority for the court as a whole only so long as the full court is perceived to be capable of speaking for itself if it disagrees.

I am, of course, familiar with the concerns that have been expressed about how

the divisional concept would work. I understand where they are coming from, because a known quantity—even a flawed one—may seem safer than an unknown one,

which surely is imperfect as well. However, I disagree that the ‘‘disadvantages’’ are

genuine difficulties.9 In reality they are strengths of the divisional structure that

correspond to weaknesses of the status quo. In my view, the ‘‘disadvantages’’ do not

come close to outweighing the advantages of the divisional structure.

The perceived disadvantages are that divisional decisions would not bind other divisions and the circuit-wide en banc would no longer exist to maintain and develop

circuit law; that the Circuit Division would be an additional and cumbersome level

of appellate review, resulting in additional expense and delay; the present participation of all appellate judges circuit-wide in resolving circuit law would be eliminated,

and practical problems of assignment would ensue; and ‘‘splitting’’ California would

produce different interpretations and enforcement of the law within the state. However, as I see it:

1. A circuit-wide en banc process is not effective and is not necessary to the divisional concept, since the divisions will sit as full courts to decide issues of exceptional importance and to maintain coherent and consistent law within the division. Divisional decisions should not bind other divisions because otherwise, the

Court of Appeals for the Ninth Circuit is back to square one: All circuit judges

would have to try to read and monitor all decisions of all divisions, and participate in the rehearing process for all of the court’s output (at least up to the time

a case goes to a limited en banc court).

2. The divisional structure replaces the circuit-wide limited en banc for issues of

exceptional importance with a full court divisional en banc in order to increase

participation of judges in that function. The limited en banc process permits no

participation in the outcome by judges who are not drawn for a limited en banc

court. Because not all judges have a say in it, the limited en banc is too limited

to result in a decision that truly speaks for all judges on the court. It is also a

time-consuming process that is regarded by some judges as not worth the candle,

particularly since the composition of the limited en banc court (unlike a true en

banc) is not known when voting occurs. By contrast, under the divisional structure every divisional judge will both participate in the en banc process and be on

the en banc court. In this way issues of exceptional importance will be resolved

for the division by every judge on the division. This generates greater participation and closer attention to the outcome. While judges will presumably continue

to review petitions for rehearing and be able to make sua sponte calls for en banc

rehearing, circulate memoranda in support of or in opposition to going en banc,

and (if active) vote on whether to take the case en banc, their participation will

not stop at this point as it may do now. For under the divisional structure, if a

matter does go en banc, each judge will be assured a place on the bench.10

3. Although the Circuit Division may appear at first glance to add a new level

of review, it really doesn’t. Today in the Ninth Circuit, a panel decision may be

reheard by the panel, by a limited en banc court, and by the full court (something

which hasn’t happened, but could). All of this can take place without the parties

wishing it to, and they can be asked to file supplemental briefs and must show

up for reargument—which adds expense, and the process can unfortunately take

a long time—which means delay for the litigants. Under the divisional structure,

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11Only 10 percent of limited en bancs in the last ten years have been to correct a conflict. 12The Commission assumed that all divisions will be bound by current Ninth Circuit law even

though S. 253 does not require continuation of Ninth Circuit precedent, because it is reasonable

to suppose that the Ninth Circuit Court of Appeals would so provide by rule.

The Chief Judge’s Analysis suggests there may be two other, related glitches in the statutory

scheme. One is the inability of the Circuit Division to modify the first conflicted case when it

has become final. However, this is no different from an en banc court’s power under the present

regime. A limited en banc court may only decide the case in front of it, but once it does it overrules prior inconsistent authority. The same would be true of a Circuit Division decision that

adopts the second inconsistent opinion; that rule would become the law circuit-wide and prior

authority (including the first conflicted case) would be overruled. The second problem has to do

with what happens if a division overrules an existing precedent, in that it would not be binding

circuit-wide unless there is a case in another division that is in conflict and can be modified.

However, the division that overruled existing Ninth Circuit precedent (that is binding elsewhere) would itself create a conflict that the Circuit Division could resolve. 13See Analysis of the Final Commission Report by Chief Judge Procter Hug, Jr. (January 11,

1999), p. 22. 14The Chief Judge’s Analysis suggests two other problems. First, that resident judges within

a division who are assigned to another division would have no say in the en banc consideration

of panel decisions within the division of their residence. While true, this doesn’t matter. Where

a judge’s chambers is located is irrelevant to the law of the division on which that judge serves.

Each division will speak for every judge sitting on the division and every judge sitting on the

division will have a say in its decisions. It will also be the case under the divisional structure

that a majority of the judges on each division will always be a resident in the division, yet no

individual judge is (or should be) guaranteed a spot on the division in which he or she lives.

The second problem has to do with designation of the presiding divisional judge, which might

turn out to be a brand new judge or a judge who is not a division resident. However,the senior

active judge traditionally presides on all panels, no matter how recently confirmed. Since presiding at divisional en bancs is the divisional presiding judge’s only role, it seems logical for the

senior active judge within the division to be so designated.

a panel decision may be reheard by the panel, by the full division, and by the Circuit Division but only if the panel decision (left in place by the full division) or

the en banc decision squarely conflicts with the settled law of another division.

In other words, there are precisely the same number of possible layers of review

under the divisional structure as under the present limited en banc system.

In any event, if the Circuit Division takes a reasonable view of its mission—which

we must assume that it will—then it is unlikely to have that much to do, for it

will be the rare case that qualifies.11 Inconsistency alone is not sufficient for Circuit Division review. There must be square and significant conflict. Each division

will take care of its own inconsistencies, and inconsistencies between divisions are

inconsequential (because they are not precedential outside the division) unless

they directly (and deliberately) occur with respect to issues on which uniformity

throughout the circuit is important. Thus, the Circuit Division’s jurisdiction will

not be triggered unless some division creates a square conflict on an issue where

consistency matters.12 Even then, additional work for the parties (and the Circuit

Division) should be minimal because the petition for rehearing in the division will

have raised the conflict and the Circuit Division will already have the benefit of

a fully developed record and two reasoned (but conflicting) opinions.

Accordingly, the Circuit Division is not at all a collection of ‘‘Super Circuit Court

Judges.’’ 13 While serving on it, judges may have to read more petitions for rehearing than their colleagues, and upon occasion will get to break a tie. But if anything, a judge serving on the Circuit Division will be far less of a ‘‘super judge’’

than a judge who serves on a limited en banc court at present. Unlike limited en

banc judges, Circuit Division judges will have no power to reconsider issues that

are exceptionally important, or to correct wrong decisions; that will be for the divisions to do, sitting together in a true en banc.

4. At first, the divisional structure will no doubt be more complicated to staff because it is different. But there should be no more difficulty in randomly assigning

a judge from Billings to Pasadena for eight panels per year for three years than

in sending him randomly to Pasadena, or San Francisco, or Portland, or Seattle,

or sometimes Anchorage or Honolulu during the same period. In either case that

judge will have to be scheduled along with other members of the panel.14

The same support the Clerk’s office now provides to the Court of Appeals for the

Ninth Circuit will sustain the new divisional structure as well. Some internal adjustments will no doubt have to be made, but they are minor and have no significant effect on the way the court of appeals does business. Rules will be the same

circuit-wide. Motions, screening, and calendaring will also be essentially the same

except for being reorganized by division. The clerk’s ability to identify related

issues will continue to be helpful to divisional panels, especially to the extent they

try to avoid conflict—as they should. Divisions would sit (and hear argument)

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15 California produces approximately 4,000 appeals annually, or 60 percent of the circuit’s appellate work. Thirteen of the authorized judgeships are held (or may be held if present nominees

are appointed) by California residents.

where the court now does and the Clerk would have offices where she has offices

now.

The particular divisional arrangement in S. 253 works logistically. It might work

better with a 13 judge cap because the caseload could be more evenly apportioned,

and of course it would be easier with 33 judges than 28. But assignments are necessarily complicated at present, and making them more permanent should not add

to the burden.

5. As Justice Stevens points out, the problem of splitting California between two

circuits is ‘‘seriously exaggerated.’’ It follows that the problem of putting parts of

California into different divisions is also ‘‘seriously exaggerated.’’ Justice Stevens

explains:

It is, of course, true that occasionally there will be conflicting interpretations of both State and Federal issues that will require resolution either by

use of the certification process for the former, or by our Court’s review of

the latter, but such temporary uncertainty is not new to the law. It would

differ only in degree from the comparable uncertainty that attends conflicting rulings on state court questions in different California jurisdictions, conflicting rulings on federal questions in different federal districts within

California and in different federal circuits today. In my considered opinion,

the importance of this concern pales in comparison with the disadvantages

associated with a circuit that is so large that even the most conscientious

judge probably cannot keep abreast of her own court’s output.

In short, to put parts of California into different divisions does nothing to California that California does not do to itself. California’s system allows for the same

inconsistency and the same forum shopping that it is said the divisional arrangement would foster. One state court of appeal is not bound by the decisions of another state court of appeal. Therefore, state law (and state court determinations

of federal law) can be different depending upon where in the state one lives or

does business. By the same token, the federal system has itself long tolerated inconsistent determinations of federal law by different circuits. These inconsistencies survive until settled by the United States Supreme Court, but in the meantime persons who travel or do business in different circuits simply deal with the

problem. The divisional concept is unremarkable in this respect. It would neither

create a forum-shopping opportunity that does not currently exist, nor subject

Californians to the possibility of disagreement on the law (including constitutionality of state-wide initiatives) that does not happen already.

Even though it is possible that resolving an intra-state inter-divisional conflict

might entail an extra step in the unusual situation where one of the California divisions refuses to defer to a prior divisional decision on point, the conflict would get

resolved and, I believe, efficiently. Today, if a federal district court in Los Angeles

decides an issue of state or federal law differently from a federal district court in

San Francisco, and if the issue is appealed, it can be resolved by the Court of Appeals for the Ninth Circuit, although it may take a limited en banc court to do it.

Under the divisional structure, if the same conflict were to persist after divisional

review, it could be resolved by the Circuit Division.

As seems clear, no alternative involving California is perfect because the ‘‘big

state’’ problem is not easily solved.15 Ultimately I do not believe that it can be

solved without structural change, for it is unlikely that California’s contribution to

caseload will greatly change. The options are at least equally, if not more unattractive. To split California between two circuits leaves the United States Supreme

Court as the only forum for resolving inconsistency, whereas to put the state in different divisions of the same circuit allows for the conflict to be resolved within the

circuit. Similarly, to make California its own division is problematic because the

caseload and number of judges required to handle it would start the ‘‘California’’ division off at (or over) the top of the maximum number of judges a decisional unit

should have to function well. However, recognizing the disparate caseload impact

that would follow, in the short run it would be possible to make California a single

division, with Arizona and Nevada in another, and the remaining states and territories a third.

No matter how configured, the divisional proposal resolves the debate about the

Ninth Circuit. As the Chief Justice says of the divisional proposal for the Ninth Circuit Court of Appeals, it is ‘‘better than merely a compromise between those who

70

have advocated a split of the circuit and those who argue for the status quo. It appears to me to address head-on most of the significant concerns raised about that

court and would do so with minimal to no disruption in the circuit’s administrative

structure.’’

I therefore urge your favorable action on S. 253.

EXHIBIT A

SUPREME COURT OF THE UNITED STATES,

Washington, DC, October 22, 1998.

DEAR BYRON,

Thank you for providing me with a copy of the October 7, 1998 Draft Report of

the Commission on Structural Alternatives for the Federal Courts of Appeals. I

write to commend you and the Commission for your efforts. The thorough analysis

of historical and contemporary information about the federal circuit system in the

United States is all the more impressive in that it was accomplished in only nine

months since the appointment of the Commission. And while I believe that the entire draft report contains useful guidance for the circuit system as a whole, I write

in particular support of the proposal to organize the Court of Appeals for the Ninth

Circuit into three regionally based adjudicative divisions.

I share many of the concerns expressed by my colleagues, on the Court who previously corresponded with the Commission and advocated that some change in the

structure of the Court of Appeals for the Ninth Circuit is needed. The challenges

to stay abreast of the law within a circuit With 28 authorized judges—already a

near impossibility—will continue to grow as the circuit’s caseload increases. Similarly, the en banc review process in a court so large is problematic. As to complaints

that the Ninth Circuit is slow to dispose of its cases, I would add to the anecdotal

evidence in that regard by referring to the fact that our Court will hear oral argument in, our November session in Hughes Aircraft Company v. Jacobson, et al., a

case that was argued and submitted to the Court of Appeals for the Ninth Circuit

on November 4, 1993. The circuit opinion deciding the case, however, was not filed

until January 23, 1997, and a petition for rehearing was not denied until October

23, 1997, nearly four years after oral argument. The effect of such delays on public

confidence in our system of justice is obvious.

The proposal to create three divisions in the Court of Appeals for the Ninth Circuit with a Circuit Division for conflict correction strikes me as better than merely

a compromise between those who have advocated a split of the circuit and those who

argue for the status quo. It appears to me to address head-on most of the significant

concerns raised about that court and would do so with minimal to no disruption in

the circuit’s administrative structure. As to the caseload problem facing not only the

Ninth Circuit, but all, federal courts, I agree with the Commission’s statement that

significant changes need to be made in the jurisdiction of the federal courts. I also

agree with the separate statement filed by Judge Merritt and you that changes in

diversity jurisdiction are needed. In particular, I agree with the proposed elimination of in-state plaintiffs’ diversity jurisdiction.

Congratulations again on a well-written report.

Sincerely,

WILLIAM REHNQUIST.

SUPREME COURT OF THE UNITED STATES,

Washington, DC, June 23, 1998.

Justice BYRON R. WHITE,

Chair, Commission on Structured Alternatives for the Federal Courts of Appeals,

Thurgood Marshall Building, Washington, DC.

DEAR BYRON: You have written to invite me to offer any thoughts or suggestions

I might have regarding the Commission’s work. My comments will doubtlessly echo

those of others who have addressed the Commission, but I am pleased to offer some

general observations.

Our nation has long been proud of its federal court system. The federal courts

have traditionally been perceived as of the highest quality. The ability of the federal

circuits to continue to perform work of the highest caliber, however, has recently

been placed under the strain of a large number of unfilled vacancies. I serve as the

Circuit Justice for the Ninth Circuit and, as you know, there are today seven unfilled vacancies on the Ninth Circuit Court of Appeals, and ten on its District

Courts. These vacancies obviously have a negative effect on the ability of the Ninth

71

Circuit to carry out its work in a timely manner. The Chief Justice has already spoken to this issue, and I share his concerns.

The pressures on the federal courts have been escalating rapidly because Congress has been enacting broad provisions under federal law criminalizing conduct

historically regulated under state and local police powers. The result has been a significant expansion of federal court jurisdiction. All of this makes the work of your

Commission very important indeed.

With respect to the Ninth Circuit in particular, in my view the circuit is simply

too large. It embraces nearly one-fifth of our nation’s population. It handles roughly

one out of every five appeals in the federal system. With 28 appellate judges, it is

nearly twice the size of the next largest circuit. Because of its cumbersome size, the

Ninth Circuit alone among the federal circuits is currently forced to use en banc

panels comprised of eleven selected judges. See 92 Stat. 1663, Rule 35–3 (CA9

1994).

Such panels, representing less than one-half of the authorized number of judges,

cannot serve the purposes of en banc hearings as effectively as do the en banc panels consisting of all active judges that are used in the other circuits. It is important

to the federal system as a whole that the Courts of Appeals utilize en banc review

to correct panel errors within the circuit that are likely to otherwise come before

the Supreme Court. It is also important that every circuit review en banc its rules

that are in conflict with other circuits in order to examine the wisdom of perpetuating the conflict. The Ninth Circuit resolved only eight out of 4,841 cases en banc

in the twelve months ending September 30, 1997. During that same period, this

court granted hearing on 25 cases from CA9, and summarily decided 20 more. These

numbers suggest that the present system in CA9 is not meeting the goals of en banc

review.

In my view, some division or restructuring of the Ninth Circuit seems appropriate

and desirable. I have no particular suggestion regarding how that division should

be drawn, but I hope that the Commission will take a fresh and independent look

at the alternatives. It is human nature that no circuit is readily amenable to

changes in boundary or personnel. We are always most comfortable with what we

know, and it is unrealistic to expect much sentiment for change from within any

circuit. The main difficulty I expect that the Commission may encounter when

weighing the alternatives is the size in population of California, which, even if all

alone, would continue to be the largest of the federal circuits. In some proposals I

have seen it suggested that Arizona be placed with non-contiguous areas in the Pacific Northwest. I find that proposal troublesome. Perhaps Arizona could be placed

in the Tenth Circuit, although I am aware that judges in the Tenth Circuit are opposed to such a change. Or perhaps California itself could be divided and placed

within two different circuits.

There are also other proposals for setting up separate divisions within CA9, or

for setting up some district court appellate panels to handle most of the error correction part of the appellate review process. These approaches are untried but should

be weighed along with the other options.

If you believe I can be of any more specific assistance, I will be pleased to respond.

You have an unenviable task.

Sincerely,

SANDRA DAY O’CONNOR.

SUPREME COURT OF THE UNITED STATES,

Washington, DC, August 24, 1998.

Hon. BYRON R. WHITE,

Chairman, Commission on Structural Alternatives for the Federal Courts of Appeals,

Thurgood Marshall Building, Washington, DC.

DEAR BYRON: Please forgive me for being so slow in responding to your invitation

to comment on the Ninth Circuit issue. I would like to make just one point. In my

opinion the arguments in favor of dividing the circuit into either two or three smaller circuits overwhelmingly outweigh the single serious objection to such a change.

That objection, of course, is the concern about placing some California districts in

one circuit and the remainder in another.

I realize that members of the California Bar regard this possibility as unacceptable, but I have long believed that their concerns are seriously exaggerated. It is,

of course, true that occasionally there will be conflicting interpretations of both

State and Federal issues that will require resolution either by use of the certification process for the former, or by our Court’s review of the latter, but such temporary uncertainty is not new to the law. It would differ only in degree from the

72

comparable uncertainty that attends conflicting rulings on state court questions in

different California jurisdictions, conflicting rulings on federal questions in different

federal circuits today. In my considered opinion, the importance of this concern

pales in comparison with the disadvantages associated with a circuit that is so large

that even the most conscientious judge probably cannot keep abreast of her own

court’s output.

Having some notion of the time and effort that you have devoted to this assignment, I want to express my special thanks for what you have done and are continuing to do. It is characteristic of someone who never pauses to ask what his country

can do for him because he has answered the more important question so often and

so consistently.

Sincerely,

JUSTICE JOHN PAUL STEVENS.

SUPREME COURT OF THE UNITED STATES,

Washington, DC, August 21, 1998.

The Honorable BYRON R. WHITE,

Chairman, Commission on Structural Alternatives for the Federal Courts of Appeals,

Thurgood Marshall Building, Washington, DC.

DEAR BYRON: I have refrained from conveying to you my views concerning realignment of the Ninth Circuit, since I think it unlikely that I can contribute any fact

or consideration that you and the distinguished members of your commission are

not already aware of. However, after reading the thoughtful letter of Justice Kennedy—who does have special expertise on the subject—I find myself so thoroughly

in agreement with his analysis that I must send along a seconding statement.

I will add to what he has said only two points: First, the function of en banc hearings—which the current size of the Circuit discourages, and the incomplete and random nature of its en banc panel deprives of predictability—is not only to eliminate

intra-circuit conflicts, but also to correct and deter panel opinions that are pretty

clearly wrong (which occasionally occur, of course, in any Circuit). The disproportionate segment of this Court’s discretionary docket that is consistently devoted to

reviewing Ninth Circuit judgments, and to reversing them by lop-sided margins,

suggests that this error-reduction function is not being performed effectively. The

following figures are compiled from the statistics maintained by the Clerk’s Office:

October Term

Total SCt

Cases Argued1

Argued

From CA9

Reversed

or Vacated

Unanimous

Two or

Fewer

Dissents

Unargued

Summary

Reversals

1997 94 17 14 10 13 0

1996 88 21 20 12 12 6

1995 90 12 10 4 10 2

1994 94 17 12 5 10 1

1993 95 14 12 9 10 0

1992 113 22 15 6 11 1

1 Excludes cases where writ of certiorari was dismissed as improvidently granted.

My second point is that, in my judgment, this Court will have no difficulty sustaining whatever additional caseload will be created by the addition of a Circuit,

and by the necessity of being especially prompt in resolving conflicts between the

two Circuits containing California, (The latter necessity could be reduced by requiring an en banc heading when either of the two Circuits wishes to depart from a

holding of the other.) Indeed, it may well be that the new Circuits’ greater ability

to perform what I have called the error-reduction function will result in a net decrease in our business from that part of the country. But if an increase does occur,

our docket has been such in recent years that I am confident we can manage it.

For all the very good reasons described by Justice Kennedy, the additional effort

will be well spent.

I wish you and your colleagues success in your difficult task.

Sincerely,

JUSTICE ANTONIN SCALIA.

73

SUPREME COURT OF THE UNITED STATES,

Washington, DC, September 9, 1998.

The Honorable BYRON R. WHITE,

Chairman, Commission on Structural Alternatives for the Federal Courts of Appeals,

Washington, DC.

DEAR BYRON: Chief Judge Hug was kind enough to send me a copy of the letter

to you of August 29, written on behalf of past, present and yet-to-be Chief Judges

of the Ninth Circuit, which challenges my assertion that a disproportionate number

of cases from the Ninth Circuit are regularly taken by this Court for review, and

a disproportionate number reversed.

The letter contends—without citing any data—that the percentage of this Court’s

discretionary docket devoted to reviewing CA9 judgments (18 percent over the past

six terms combined) ‘‘corresponds very closely to the percentage of cases decided in

the Ninth Circuit, as compared to the total in the country.’’ Letter at 4. As far as

I can discern, this latter percentage represents a fraction, the numerator of which

is all cases decided on the merits in CA9, and the denominator of which is all cases

decided on the merits in all Federal Circuits—a figure that averages 17.2 percent

over the five terms ending with OT 1996 (the figures for OT 1997 are not yet available). It is meaningless, however, to compare that percentage (CA9’s share of the

United States Circuit Court docket) with CA9’s share of this Court’s entire docket—

which includes, of course, many cases taken from state courts. A proper evaluation

would compare CA9’s share of Circuit Court business with CA9’s share of this

Court’s docket devoted to Circuit Court cases. That comparison shows that during

the five-year period in which CA9 disposed of an average of 17.2 percent of all Circuit business, CA9’s cases occupied an average of 25.3 percent of this Court’s Circuit

docket—a share that is larger by almost half.

October Term

CA9’s Share of US Circuit Court

Docket1

(percent)

CA9’s Share of SCt Docket Devoted

to Reveiwing US Circuit Courts2

(percent)

1997 Not available 21.5

1996 18.7 32.3

1995 16.2 20.3

1994 15.9 26.2

1993 17.1 23.7

1992 18.1 24.2

1These numbers are compiled from the annual reports of the Director of the Administrative

Office of the United States Courts. The percentages refer to the Ninth Circuit’s share of the

total number of appeals decided on the merits during the twelve-month period ending September 30 that corresponds roughly to the indicated Supreme Court Term. The Director’s statistics

do not include cases from the Federal and Armed Forces Circuits. 2To facilitate comparisons, these numbers exclude cases from the Federal and Armed Forces

Circuits.

The Chief Judges also assert—again, without citing any data—that the Ninth Circuit’s record during OT 1997 of being reversed 82.4 percent of the time falls within

the ‘‘historical norm for the Court’s reversals nationwide.’’ Id. During the last six

terms, however, this Court’s nationwide reversal rate has never exceeded 71.1 percent. For every term within that period, CA9’s reversal rate has appreciably—sometimes drastically—exceeded the national average. And the gap is even more pronounced when one compares CA9’s reversal rate, not with the combined reversal

rate for all courts, but with the more relevant figure of the combined reversal rate

for all courts other than CA9: Averaging the figures for the last six terms, CA9’s

reversal rate is 81 percent, and the average for all other courts 57 percent.

October

Term

CA9’s Reversal Rate

(percent)

Nationwide Reversal

Rate Including CA9

(percent)

Nationwide Reversal

Rate Excluding CA9

(percent)

1997 82.3 58.9 53.3

1996 95.2 71.1 62.7

1995 83.3 61.0 56.9

1994 70.6 66.3 65.2

1993 85.7 52.9 42.5

1992 68.2 64.2 63.1

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There must be added to the inordinate frequency of reversal, of course, the likewise inordinate frequency with which reversal has been by a unanimous or nearunanimous Supreme Court, as described in my earlier letter.

There is, in short, no doubt that the Ninth Circuit has a singularly (and, I had

thought, notoriously) poor record on appeal. That this is unknown to its Chief

Judges may be yet another sign of an unmanageably oversized Circuit.

Sincerely,

JUSTICE ANTONIN SCALIA.

SUPREME COURT OF THE UNITED STATES,

Washington, DC, August 17, 1998.

The Honorable BYRON R. WHITE,

Chairman, Commission on Structural Alternatives for the Federal Courts of Appeals,

Washington, DC.

DEAR BYRON: In response to your invitation, I am pleased to comment on the

question of the geographic boundaries of the United States Court of Appeals for the

Ninth Circuit. Based on my observations and perspective as a former judge of that

court and as a member of this Court, I submit the reasons for dividing the Ninth

Judicial Circuit outweigh the reasons for retaining it as now constituted.

BACKGROUND

In 1975, the Court of Appeals for the Ninth Circuit, anticipating an increase in

its thirteen authorized judgeships, began informal discussions to decide whether to

recommend division of the Circuit. There was a difference of opinion; but a majority

of the judges, myself among them, concluded the Circuit should maintain its geographic boundaries at least until it could operate for a time with a full complement

of judges. We wanted to experiment, to determine the advantages and disadvantages of a large Court of Appeals. So the court did not recommend changes in its

geographic jurisdiction. A 1978 statute, Pub.L. 95–486 (92 Stat. 1633), authorized

ten new judges for the court. In response, and as permitted by the new statute, the

court implemented a limited en banc panel composed of fewer than all the court’s

judges. Some of us wanted nine judges on the panel, others thirteen. The resulting

compromise was eleven.

In part, I think, because some of us did recognize that the large circuit was an

experiment, we devoted tremendous time and energy to make it a success. We hoped

the opportunity to decide a large number of cases might yield principles of decision

which would bring more clarity and cohesion to the law than if the Circuit were

smaller. We thought the bar would benefit if nine states were to have a single resolution of any common issue. More ambitious suggestions, such as assigning judges

to discrete subject areas for a period of time, were thought problematic and were

not pursued.

As the Federal Courts Study Committee observed, the Courts of Appeals have

been faced for more than a decade with a ‘‘crisis of volume.’’ Report of the Federal

Courts Study Committee 109 (April 2, 1990). Like all of its sister circuits, the Ninth

Circuit confronted the problem by innovations and changes, not the least important

of which was the successful use of Bankruptcy Appellate Panels. The Committee

was also correct to note, however, that increases in productivity ‘‘seem to be approaching their limit.’’ Ibid.

Few members of the public, indeed all too few members of the Bar, appreciate the

scholarship and dedication of the individual judges on our courts of appeals. I retain

the greatest admiration and respect for all of my former colleagues. Since I have

left the Court of Appeals, their workload has again increased in dramatic proportions. It is remarkable that they have been able to manage the case load, though

it seems to me unfair to ask them to continue to process such a high number of

cases per judge. This heavy case load makes it all the more urgent to ensure that

the size of the circuit is not an additional and systemic problem.

REASONS FOR CONCERN ABOUT PRESENT SIZE

I have not had the opportunity to study all the submissions made to your Commission, but my present view is that the large Circuit has yielded no discernible

advantages over smaller ones. From my discussions with the judges of the court and

my review of some of the material submitted in support of retaining the Circuit with

its present boundaries, what is striking is the relative absence of persuasive, specific

justifications for retaining its vast size. A court which seeks to retain its authority

to bind nearly one fifth of the people of the United States by decisions of its threeVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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judge panels, many of which include visiting Circuit or District Judges, must meet

a heavy burden of persuasion. In my view this burden has not been met. The size

of the Ninth Circuit has a number of disadvantages, a few of which I shall mention.

First, a laudable desire to respect the views and prerogatives of other judges on

the court tends, I think, to encourage judges to avoid general principles so that

other members of the court can write on the same subject. The result is a certain

lack of clarity and cohesion in the case law of the Circuit.

Second, there is an unacceptable risk of intra-circuit conflicts, or, at the least, unnecessary ambiguities. A large number of dispositions tends to make it difficult for

judges to keep abreast of the jurisprudence of the court. Soon after the 10 judges

were added in 1978, not to mention the five additional judges in 1984, see Pub.L.

98–353 (98 Stat. 346), I found I could not read all of the published dispositions of

my own court. This in turn causes inadvertent intra-circuit conflicts. Further, even

when judges in good faith attempt to follow stare decisis, a certain potential for

error exists. The risk and uncertainty increase exponentially with the number of

cases decided and the number of judges deciding those cases. Thus, if Circuit A is

three times the size of Circuit B, one would expect the probability of an intra-circuit

conflict in the former to be far more than three times as great as in the latter. The

number of en banc decisions should be correspondingly higher, yet the Ninth Circuit, which is the largest circuit by far, does not use its en banc process more often

than other circuits. In some years the Ninth Circuit has had fewer en banc hearings

than other circuits even in terms of absolute numbers. True, en banc hearings are

such a small percentage of the total number of dispositions system-wide that no

clear comparative pattern of utilization emerges, even on a ten-year study. It is

quite apparent, however, that the Ninth Circuit does not come close to the number

of en banc hearings necessary to resolve intra-circuit conflicts, much less to address

questions ‘‘of exceptional importance.’’ Fed. R. App. Proc. 35(a). Uncertainty and

lack of cohesion in the law are antithetical to the ends of our judicial system.

A decision in an en banc case, as a general rule, requires more time, more deliberation, and more writing than go into the ordinary three-judge panel opinion. The

result, however, is beneficial. Products of en banc consideration, majority opinions

and separate writings, reflect extra efforts invested in the process and represent appellate judging in one of its most instructive forms. En banc opinions assist other

courts, including the Supreme Court, in resolving difficult legal issues. And where

circuit precedent has been ‘‘overtaken by the tide’’ of authority from other Courts

of Appeals, Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F. 2d

871, 876 (CADC 1992) (en banc), rehearing en banc allows a circuit the opportunity

to assess the soundness of its earlier views and, if need be, to put its house in order

before the Supreme Court must do so. If the Ninth Circuit were divided, then the

necessity for more en banc hearings, and the harm from the failure to use the device

often enough, would be reduced.

Third, even if the Court of Appeals does have a consistent internal law in a number of subject areas, its size prevents the multiple panel opinions that sometimes

produce inter-circuit conflicts. In other words, if the Ninth Circuit were to be divided

into two or more circuits, then we would be more likely to have the benefit of more

than one panel opinion on a given issue and would have the advantage of the views

of more judges. While intra-circuit conflicts or ambiguities and the instability they

create are harmful to the system, inter-circuit conflicts, where there is reasoned and

deliberate disagreement, are instructive to the system as a whole and in particular

to the Supreme Court.

Fourth, although I deplore the tendency to increase the number of Article III

judges and to expand the jurisdiction of the federal courts, past experience would

seem to show that, even if federal jurisdiction is not increased, a certain number

of additional judges will be needed in the future. The Commission’s report will be

influential in considering the size of the Circuit not just at present but for perhaps

two decades. The Commission, therefore, may wish to consider what recommendation it would make if the Ninth Circuit were to have 40 or more judges. The likelihood of the addition of some judges is a further reason to divide the Circuit now,

so that the problems I note are not exacerbated.

Fifth, the recruitment of judges is a relevant consideration. A talented lawyer or

jurist who contemplates the prospect of service on a court which should be designed

to offer the benefits and rewards of a collegial relationship might well hesitate before agreeing to serve on a court where some 3000 different combinations of judges

will make up the panels, and where he or she will be the junior judge on a court

of 28 active judges, in addition to valued senior members.

This brings me to a sixth observation about the Ninth Circuit even in its present

size. Our constitutional tradition has been one of broad community participation in

the judicial selection process. When a court is seen as an integral part of a commuVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00079 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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nity, then persons and groups from the community as a whole, and not just the bar,

can insist that the political branches consider nominees who are distinguished by

their fairness, detachment, and impartiality. The sense of shared identity and responsibility dissipates, however, when a circuit is so large that the makeup of a

panel is a luck-of-the-draw proposition, with a strong likelihood of drawing judges

having no previous attachment to the affected community. In these circumstances

there is less incentive for groups other than political ones to become involved in the

judicial appointment process. If the selection and nomination process is accessible

and meaningful only to those with partisan interests, there will be a tendency to

give less consideration to those qualities of judicial temperament and demeanor that

are essential to a fine judiciary. I am concerned, then, that in the future the large

size of the Circuit will have an adverse effect on the judicial selection process. Justice must be detached but should not be remote; judges must be impartial but ought

not to be faceless. When an appellate court becomes as large as the Ninth Circuit,

there is a greater risk that unfortunate influences—will predominate in the appointment process. Special interests work best when simple lines of responsibility are

blurred.

This is related to my seventh concern, which is that the present size of the Ninth

Circuit is not sensitive to the vital necessity of preserving the values of federalism.

As noted by the Judicial Conference’s most recent study of the federal courts, those

values are reflected in our long tradition of appointing judges to serve a specific region. See Judicial Conference of the United States, Long Range Plait for the Federal

Courts 43 (December 1995). For this reason, and because of the undesirability of any

of the contemplated structural alternatives for the federal appellate system, see Report of the Federal Courts Study Committee 116–124 (April 2, 1990), our present system should be preserved and strengthened. The legal communities and other constituencies in the separate states ought to have a real interest in the judges of their

respective circuits, and the judges, conversely, ought to have historic and professional ties to the regions they serve. The experiment accepted in 1978 represents

a notable departure from the design which has served us so well. What began as

an experiment should not become the status quo when it has not yielded real success. In my view the judicial system would be better served if the states of the

present Ninth Circuit were to comprise more circuits than one.

POSSIBLE WAYS TO DIVIDE THE CIRCUIT

It is one thing to identify a problem, another to solve it. How to split the Ninth

Circuit is a difficult, sensitive question. In an attempt to offer some assistance, I

make these brief observations.

The States of Alaska, Washington, Oregon, Idaho and Montana have a community

of interest and a geography that justify assigning them to their own circuit. There

is no reason to hold these Northwest states hostage to the difficulty of determining

a proper circuit for California, Arizona, Hawaii, and Nevada. If the solution for the

latter states is not at hand, that could be studied and debated while the Northwest

states concentrate their energies on at once forming a cohesive and effective circuit.

The problem with the remaining states, of course, is the vast population of the

State of California. California’s population today is the rough equivalent of the entire population of the United States at the time of the Civil War. The problem, however, suggests its own solution. Serious consideration should be given to assigning

California to two different circuits. The Districts of Northern and Eastern California

could be in one circuit, with, say, Hawaii and Nevada. The Districts of Central and

Southern California could form another, with Arizona, Guam, and Saipan. These are

just illustrative possibilities, for I have not studied projected case loads or population figures.

The described alignment would give Senators from California a special interest in

two circuits, not just one. The attendant advantages of manageable size and sensible

administration, however, seem to me to overcome that objection, if indeed it be one.

If California were not divided, moreover, the number of judges required for California alone would constitute a circuit so large that the deficiencies already present

in the Ninth Circuit might persist.

If California were assigned to two circuits, it would, of course, be imperative to

ensure prompt resolution of any conflict between these circuits with respect to

issues affecting California. I have seen no proposal for an inter-circuit en banc procedure that makes sense or is fair to the bar and litigants of the State. To take just

one example, a bill in the House of Representatives in the 103d Congress provided

that, in the event of a conflict between the two circuits, the ‘‘California’’ judges from

each Circuit would constitute in inter-circuit en banc. See H.R. 3055, 103d Cong.

§ 3 (1993). This is contrary to our tradition and to sound judicial principles. After

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being appointed some judges find it necessary or convenient either to move to California or to move away from it, depending on their individual situations, Does mere

residence while serving on the court determine who is a ‘‘California’’ judge? In addition, an inter-circuit en banc should bind both circuits, but it would be inappropriate

and destructive of collegiality to require ‘‘non- California’’ judges to be bound by

their ‘‘California’’ colleagues on important questions of law. Yet this would be the

necessary result, for even if the cases prompting an inter-circuit en banc arose from

California, the en banc, decision would bind both circuits in cases arising from all

other states.

At one time, I thought the absence of a fair and workable proposal for an intercircuit en banc mechanism was an all but insurmountable objection to allowing two

circuits to operate within a single state. I have begun to think this is not an obstacle. The judicial system could function well without an inter-circuit en banc, leaving

to the Supreme Court the responsibility to resolve any inconsistent decisions affecting the single state. After all, the government of the United States functions well

despite the possibility of having to litigate a question in multiple circuits and the

concomitant possibility of conflicting decisions in those courts. Furthermore, duplicative litigation and potential conflict between two circuits in the same state would

hardly be unfamiliar to California, which like every state already faces the possibility of litigating the same question in both state and federal court. Where such litigation results in a conflict between a state’s highest court and a federal court in that

state on a question of federal law, our Court resolves the conflict. See, e.g., South

Dakota v. Yankton Sioux Tribe, ll U.S. ll, 118 S.Ct. 789 (1998) (conflict between the Supreme Court of South Dakota and the Eighth Circuit). No one has suggested that such conflicts are the result of some serious dysfunction of judicial structures. If duplicative litigation, in practice, should result in an excessive burden on

the State of California, the statutes and rules governing transfer and consolidation

of cases could no doubt be adapted to mitigate the problem. Thus, although not insensitive to the potential burden to California of having to defend its laws in two

different circuits, I believe the advantages attendant to California in having concise,

orderly, predictable case law in two circuits would outweigh the temporary problems

of a few conflicting decisions, decisions which can have prompt resolution in this

Court. The advantages to all of the other states of the present Ninth Circuit have

been enumerated.

CONCLUSION

My present view is that if the Ninth Circuit were divided, the new alignment

could better serve the orderly and efficient administration of justice. My further conclusion is that the State of California could be assigned to two different circuits and

the Supreme Court could act with the necessary speed and determination to resolve

any conflicts that create difficulty or uncertainty in administering and enforcing the

laws and policies of that State.

I extend to you and your Commission my greetings and special thanks for undertaking this study, which will be of vital importance to the federal courts and to our

judges, who remain devoted to preserving the integrity of the justice system.

Sincerely,

JUSTICE ANTHONY M. KENNEDY.

SUPREME COURT OF THE UNITED STATES,

Washington, DC, September 11, 1998.

The Honorable BYRON R. WHITE,

Chairman, Commission on Structural Alternatives for the Federal Courts of Appeals,

Thurgood Marshall Building, Washington, DC.

DEAR BYRON,

You have asked three questions: What major problems do the Courts of Appeals

face? What measures would I recommend to resolve them? What works well in the

federal appellate system? I shall address those questions in order, drawing upon my

former experience (1990–1994) as Chief Judge of the First Circuit—our smallest Circuit Court of Appeals. I have not worked in the Ninth Circuit, and I shall not express a view about whether that Circuit has special problems that warrant its division. I suspect, however, that, at least to some extent, the Ninth Circuit’s experience

reflects the more general problems that every circuit faces.

My conclusion is that your Commission should, among other things, examine the

various forms of restructuring the appellate system suggested in Chapter 10 of the

Long Range Plan for the Federal Courts. The States, when faced with serious problems of congestion, have had to consider restructuring—including the use of addiVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
78

tional ‘‘tiers’’ of review. And the federal courts eventually may have to do the same.

In the meantime, we should continue our efforts to maintain efficiency in the face

of increasing caseload—through, for example, ‘‘tracking’’ and ‘‘alternative dispute

resolution.’’ Your Commission might also explore ways of preventing unnecessary

caseload increases, say through institutionalizing efforts to inform Congress about

the practical impacts of proposed legislation upon the federal courts (which, of

course, affects the practical implementation, and hence the ultimate effect, of any

new statute).

1. The major problem, in my view, is one of congestion. That congestion grows out

of the fact that growth in appellate caseload cannot, or should not, simply be

matched through a corresponding increase in the size of the federal appellate system.

On the one hand, the number of federal appellate cases now approximates 50,000

per year, having multiplied by a factor of ten to fifteen over the past half century.

The caseload of the First Circuit, a court of six active, and five senior, judges, for

example, now approximates 1500, or, say, 250 cases per active judge per year.

(The First Circuit had about 1200 cases per year when I was a member of that

court.) Of course, many cases disappear from a docket through settlement or some

obvious procedural failing. Others contain only a simple fact-related issue that

may require little of a judge’s time for resolution. Senior judges provide considerable assistance. Nonetheless, in my experience, about one-third or so of the total

docket contained cases raising serious legal issues—those that would each call for

a significant amount of a judge’s time leading to a full judicial opinion. The result

(if I extrapolate from the 1200-case-per-year First Circuit docket of a few years

ago and assume considerable help from senior judges) is that each active judge

might sit on three-judge panels considering, say, 150 to 160 such cases per year

and might write, say, fifty to sixty full opinions. Given the various other demands

on a judge’s time, including brief reading, hearing argument, and considering simpler cases and motions, this means that a judge must write a full opinion in two

to four days on average. Obviously, the growing caseload means that, at some

point, time available on average is inadequate.

On the other hand, creating more judicial time by increasing the size of the federal appellate system itself creates serious problems. It makes conflicts of various

sorts (including ‘‘intangible’’ conflicts) more likely. It makes it ever more difficult

for the appellate system to speak with an authoritative legal voice. It means too

many equally authoritative circuit court opinions for the bar or the academy readily to absorb (and to criticize). It ever more significantly favors those who have

the resources to ‘‘keep up’’ with an evolving state of the law. I do not know the

‘‘right’’ number of federal appellate judges, but I do believe that, for reasons such

as these, the appellate system is not infinitely expandable.

2. To ameliorate this kind of problem, one must either cut back the intake or improve the system’s efficiency. Cutting back intake is difficult because of the risk

that closing federal court doors will significantly disadvantage one, or another,

class of litigants. In theory, one might work out a system that would assure each

such class adequate legal remedies elsewhere and without, for example, imposing

new burdens upon state courts. But the practical difficulties involved in providing

the necessary assurances are great. It may prove easier to prevent an unnecessary

increase in federal caseload through careful attention to the likely practical impact of proposed new federal legislation. But that will require more than federal

judges simply pointing out to Congress that a proposed new federal law will mean

more federal cases. It requires analysis of how the congestive impact of a proposal

might inhibit achieving the proposal’s own objectives (or those of other, existing

laws) as well as suggestions as to how the proposal’s specific objectives can better

be achieved in less congestive ways. Although judges understand the practical impact of additional caseload, I believe that the Department of Justice is institutionally better equipped to factor such-matters into the drafting of particular bills, to

bring them to Congress’s attention, and to shape the laws that emerge from the

legislative process accordingly. Those ‘‘separation of powers’’ considerations that

make it inappropriate for the Department of Justice to administer the federal judicial system do not prevent the Department and the Judiciary from working together, and with Congress, in respect to this kind of matter. And I believe your

Commission might usefully explore better ways of their doing so.

Improving the system’s efficiency (enabling the system to process more cases without adding a commensurate number of new judges) involves a variety of approaches that are not mutually exclusive. The appellate courts are currently trying many of them. They include greater reliance upon alternative dispute resolution (including mediation at the appellate level), case management systems, and

79

certain incentive-based systems. Most circuits, including the First and the Ninth,

have developed informal ‘‘tracking’’ systems, which rely upon staff attorneys to

prepare simple matters for decisions that are embodied in something less than

full opinions. The First Circuit’s system worked well. Studies of the Ninth Circuit’s system also have reached favorable conclusions. Unless the system is to be

changed radically, this kind of staff resource should receive necessary funding,

and you may wish to say so.

I recognize that congestion, at some point, may require radical change. In my

view, the kind of structural change that would be easiest for the federal system

to absorb would amount to additional ‘‘tiering.’’ States have typically created additional tiers to deal with congestion. In the Nineteenth Century, Congress established the federal courts of appeals in part for similar reasons. And, if one counts

the federal Supreme Court, many state systems involve four tiers.

I do not advocate the creation of a new federal ‘‘fourth tier’’ between the present

courts of appeals and the Supreme Court. I do believe, however, that it is worth

considering the possibility of other forms of ‘‘tiering.’’ For example, one might add

between district and appellate courts three-judge panels, made up in part of district judges, to consider fact-intensive ‘‘error correction’’ appeals, say, with further

appellate review discretionary. Appointment of additional district judges to such

panels would avoid some (though not all) of the ‘‘more judges’’ problems I discussed earlier. To repeat, I am saying only that this, or related, proposals maybe

worth exploration in some detail.

Regardless, I believe that the congestion problem is serious, that it will get worse,

that its solution will involve a choice of lesser evils, and that an eventual solution

that involves some form of tiering may prove more practical and less problematic

than various other restructuring suggestions that have been made. For that reason, I suggest that the Commission further explore the structural suggestions

made in Chapter Ten of the Long Range Plan, and in particular those related to

tiers.

3. You conclude by asking what ‘‘is working well in the federal appellate courts.’’

I am not an alarmist. The appellate courts normally work well—particularly when

federal appellate judges focus upon, and decide, particular significant questions of

law. The federal judge is meant to be independent and conscientious, devoting the

time and attention that a particular litigant’s individual legal problem requires

for proper decision, irrespective of the litigant’s wealth, position, or power. That,

in my experience, is roughly how the federal appellate courts have worked, do

work, and will continue to work. Still, the need for a guarantee about the future

may help explain why I am glad your Commission has begun to tackle the congestion problem.

Yours sincerely,

STEPHEN BREYER.

Senator GRASSLEY. Thank you.

Senator Kleinfeld. Or, I mean, Judge Kleinfeld.

STATEMENT OF HON. ANDREW J. KLEINFELD

Judge KLEINFELD. I am only a judge. I do not get a vote. [Laughter.]

Thank you, Chairman Grassley, Senator Feinstein, members of

the committee. I appreciate the honor of being allowed to testify before you. I testify on behalf of myself in order to give you the benefit of my experience as a judge on the U.S. Court of Appeals for

the Ninth Circuit.

My feeling has been, for a long time, that the court should be

split. The fifth circuit was split into the fifth and eleventh circuits.

The eighth circuit was split into the eighth and the tenth circuits.

Those splits worked out fine. There were no great complexities. It

was a simple way of dealing with the problem of growth of the circuits.

However, I also think that the Commission has done a very fine

job, and nobody in a political system gets everything they want.

Why, even if I were a Senator, I would only have one vote, and I

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am not. And I think the Commission is a very fine solution to the

problem of the ninth circuit as a decisional body.

The Commission has said that, as a decisional body, the ninth

circuit should be divided. Although as an administrative body, it

should not be divided. The Commission has done a fine job, and I

urge you to adopt it.

The problem that you are dealing with is one of the oldest problems that has been a political issue in the United States. When the

Founding Fathers were trying to put together the Constitution,

they had to deal with the problem that some states were a lot bigger than other states. Then the chief problem was Virginia. California did not exist. But it was the same kind of problem. Virginia

was much bigger, much more powerful, controlled much more

wealth, as well as having much more population, than other States.

Somehow they had to organize the Republic so that Virginia would

not so dominate the other States as to prevent them from expressing their own autonomy, but that there would be a Federal union

in which Virginia would be adequately represented. They did it.

The problems never go away. The problems of the ninth circuit continues.

This problem of the ninth circuit has continued for quite a while.

I read in the Commission report that the first proposals to split the

ninth circuit were in the 1930’s. It made me think of the case of

Jarndis v. Jarndis in Charles Dickens’ novel ‘‘Bleak House,’’ where

people were born into the case and died out of the case.

I have been born into this. I am not even all that young a judge,

though I like to think of myself that way, but I was not born until

1945, and splitting the ninth circuit was already an old chestnut

by then. And unless you take action, I am going to die out of it,

even though I am a pretty young judge, and I think I will be serving for quite a while yet. There is an enormous cost in money and

in time of this process, and I do not think the process can be ended

until you adopt the Commission report, or something like it, to divide the adjudicative responsibilities of the ninth circuit.

Part of the cost is money. I have been able to chat with the panel

that I am on this morning while I am here because all three of us

happen to be here. You have a lot of judges who have been flying

back and forth. I flew on a free ticket that I got with mileage because I just hate to spend Government money when I am not making decisions and cases, but you cannot always do that, not everybody does it.

The money cost is nothing compared to the time cost. The time

we have spent since I have been on the ninth circuit, in my 8

years, we have had so many court meetings devoted to the issue

of a split, the staff of the ninth circuit has been doing so much

work on whether we should split. This has been going on for decades, remember. We have been generating staff reports with statistics and memoranda advocating issues on why we should not split.

People go back and forth to Washington, DC, and I am sure that

with your political experience, you recognize that bar resolutions,

and newspaper editorials and magazine articles do not happen by

themselves. They all take judicial time, too. At the least, it takes

time for the judges to be interviewed. Frequently, it takes more

than that.

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Once, when I was on the Board of Governors of our State bar association about 20 years ago, the chief judge of our district, I believe at the behest of the chief judge of the circuit, came to us for

a resolution. He wanted a resolution against splitting the ninth circuit. We retired into executive session, agreed that none of us much

cared whether the ninth circuit was split, but we all cared a lot

about keeping the chief judge with the organized bar, so we adopted the resolution opposing the split.

Now, that involved a phone call, maybe a few phone calls, it involved the chief judge of the district court spending his morning

with us at the Board of Governors of the bar association. There is

a lot of time that goes into this. It ought to be spent deciding cases,

but it will not be until the split issue is resolved, and it is not going

to be resolved until you split the decisional function of the ninth

circuit. It will just be a ‘‘Bleak House’’ that goes on and on and people are born into and die out of.

The reason that the issue arises, I believe is exactly what Judge

Rymer has said. A decisional unit as large as ours cannot function

in the traditional effective way that a court of appeals does. Now,

that has nothing to do, and it cannot be solved by, the quality of

the judges. The quality of the judges and the diligence of the judges

on my court overwhelms me. I have never dealt with any group of

people as intelligent and as diligent to serve the public interest, as

devoted to the law, as the judges of my court. The quality is simply

overwhelming.

But the job cannot be done by this large a unit. There are no

economies of scale to the appellate process. We do not manufacture

goods, we do not run a railroad. It is a job that is done with much

greater facility by a smaller than a larger unit. The reason for that

is the necessity of communication within the unit.

The kinds of quality differences or quality problems that the size

of the unit causes were very well explained to me by a friend recently. I was at the local bar picnic, and the assistant general counsel of the university and I—we’re friends—and we were chatting,

and he was complaining that he cannot guarantee his clients even

qualified immunity because he cannot tell what the law is.

He says that we are frequently inconsistent with the trend of the

law in the rest of the country and what he knows the Supreme

Court is going to do. So he has to tell his clients to follow ninth

circuit law because the district court will be bound by it, but he

also has to tell them that the result may depend on the panel and

that if the ninth circuit grants cert, it will reverse. As a result, he

cannot confidently bring about compliance with the law by his client, whose only interest is compliance so that they can avoid litigation and judgments against them.

The two reasons are simple, the reasons why we cannot function

as a decisional unit, considering how large we are. One is that we

cannot read or effectively communicate orally to each other the contents of our decisions. The problem is not getting information on

our desk through some staff statistical report or tip that a decision

may affect our decision, it is getting it from our desks into our

heads. There are too many decisions to do that with.

The second problem is that we are, so far as I know, the only

court in the English-speaking world, that does not sit en banc, the

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only appellate court that does not sit en banc. Our en bancs consist

of less than half the judges, and the majority, six judges, is less

than a quarter of the judges on our court. So they cannot effectively speak for the court. It is a roll of the dice. Appellate decision

making should not be that way.

Two-thirds of the judges in the country say that the largest size

that is feasible for an appellate court is somewhere between 11 and

17. Sounds right to me.

Finally, I would like to remind you that it is entirely an accident

that the Ninth Circuit Court of Appeals is as big as it is. The court

was created for a jurisdiction that consisted of California, San

Francisco mainly, and empty space. The space is filled in. We are

now 20 percent of the population of the country. If we make a mistake, and we do make mistakes, the consequences affect far too

much of the country. We have too much power because we affect

too much of the country.

The issue before you is serious. It is not as manageable perhaps

as dividing up a regional office of the Veterans Administration, but

neither is it like cessation of states from the Union. It is not that

serious. The fifth circuit and the eighth circuit divided without any

problems. Dividing the decisional unit of the ninth circuit strikes

me as somewhere closer on the spectrum to dividing up a regional

office of the Veterans Administration than to cessation of States

from the Union. It is manageable. You have got an excellent report.

Many Senators called for it, and I urge you to do it so we can get

back to deciding cases full time.

[The prepared statement of Judge Kleinfeld follows:]

PREPARED STATEMENT OF ANDREW J. KLEINFELD

MR. CHAIRMAN AND SENATORS: Since the beginning of the Republic, one of our

more intricate political problems has been the great difference in the populations

of the states. The Founding Fathers struggled with the tremendous size of Virginia

relative to the other states at the Constitutional Convention. Today you struggle

with the problems of judicial administration caused by the immense population of

California, compared to all the other states in its judicial circuit. A single group of

judges cannot hear all the federal appeals from a state as large as California, and

also hear all the federal appeals from the eight smaller states in the circuit, without

sacrificing reckonability and coherence of the law.

The last time the issue of dividing the Ninth Circuit came under consideration

in the Senate, many who were wary of change called for study by a commission of

experts prior to taking any action. A very distinguished commission was appointed,

chaired by the Honorable Byron R. White, Associate Justice of the Supreme Court.

The White Commission has recommended, basically, that you split the Ninth Circuit

into three separate decisional units to decide cases, but keep it together as an administrative unit. While a traditional split, as Congress did with the Eighth Circuit

and the Fifth Circuit in past decades, would be simpler and in my view better because of the simplicity, the White Commission’s proposal would be a great improvement over the status quo.

The Commission concluded, after extensive study, that an appellate court with as

many judges as the Ninth Circuit is too big. The Fifth Circuit reached the same conclusion when it approached our size and recommended to you that it should be divided, in 1970. It was, resulting in the present very successful arrangement of the

Fifth and Eleventh Circuits. The White Commission said ‘‘in our opinion, apparently

shared by more than two-thirds of all federal appellate judges, the maximum number of judges for an effective appellate court functioning as a single decisional unit

is somewhere between eleven and seventeen.’’ The Commission explains that in a

court bigger than that, the judges cannot read each others’ opinions and correct errors en banc.

I believe that a simple split of the Ninth Circuit, like the previous splits of the

Fifth Circuit into the Fifth and Eleventh, and the Eighth Circuit into the Eighth

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and Tenth, would be better for the law than the White Commission proposal insofar

as it relates to the Ninth Circuit. Senator Murkowski’s earlier bill had proposed a

simple split of the Ninth Circuit into the Ninth and Twelfth. The complexity and

novelty of the Commission approach are worrisome, because they will generate unpredictability and complexity for lawyers and novel administrative burdens for quite

some time. But they would largely solve the problems we now have in monitoring

and achieving consistency and coherence in the law of our circuit. The White Commission proposal would be much better than taking no action, and allowing the

problems for the public of a gargantuan circuit to continue unremedied.

If you adopt the bill recommended by the White Commission, I recommend that

you eliminate the provision that some judges shall be drawn to sit with divisions

other than their own. The values to be promoted by this innovation are slight, relative to the losses to those judges’ divisions. The smaller states, as in the northwest,

are unlikely to have more than one judge on the Ninth Circuit. If the only judge

from a state were drawn to sit with another division for several years, as the bill

now provides, that judge’s division would lose the benefit of that judge’s particularized knowledge. That would leave the people of that judge’s state subject to the adjudication of a unit, none of whose judges knew as much about it.

My remarks are addressed only to the portions of the bill affecting the United

States Court of Appeals for the Ninth Circuit. My remarks are not addressed to the

provisions that would affect other circuits, district court appellate panels, or any

other provisions. You are doubtless hearing from judges on those other courts about

those provisions. Of course the complexity of the issues raised by these other provisions can be avoided if you simply split the Ninth Circuit like the old Eighth and

the old Fifth.

Before addressing the problems of size, I’d like to say something about the costs

of the process itself. This issue of whether to split the Ninth Circuit has been the

subject of legislative attention since before I was born. Unless you split the Ninth

Circuit, I am sure that the debate will continue after I die. The people suffer when

their judges spend so much of their time as this process takes on a matter other

than adjudicating cases. We have had numerous court meetings devoted to the issue

of the split since I was elevated to the Ninth Circuit eight years ago. The staff of

the Ninth Circuit assists the circuit leadership, as it has for decades, in preparing

and circulating statistics and memoranda addressing whether the circuit should be

split. Several of our judges, and all of our chief judges for many years, have spent

a great deal of time in going to Washington to address the issue. And here we are

again, today.

And I am sure that with your political experience, you recognize that bar resolutions, newspaper editorials, magazine articles, and contributions to the debate also

take judicial time. When I was on the board of governors of the Alaska Bar Association almost twenty years ago, the chief judge of the district court came to our meeting, and asked us for a resolution opposing a Ninth Circuit split. As I recall, the

chief judge had asked him to solicit it. When he left the room so that we could deliberate privately, we agreed that none of us much cared whether the Ninth Circuit

was split, but we all cared whether the chief judge was happy with the organized

bar, so we gave him a unanimous resolution. He had spent the better part of a

morning getting it. Judicial attention to whether the Ninth Circuit should be split,

including testimony in Congress, phone calls, letters, contacts, interviews, meetings

with newspaper editorial boards, faxing, mailing, clipping, and compiling, has been

extensive for decades. All this judicial attention to the split issue takes a lot of time

away from deciding cases. And it will not stop until Congress splits the Ninth Circuit.

Our existing Ninth Circuit has many of the best appellate judges in the United

States. We have had a succession of superb chief judges. In my appellate experience

as a practicing lawyer, I never saw panels of more capable judges, or better prepared judges, than those of the Ninth Circuit. Yet our reputation does not reflect

this high quality. I was sent a clipping from a small town newspaper in Kentucky,

about one of our many Supreme Court reversals, characterizing us with such

phrases as ‘‘sharply rebuked,’’ ‘‘grave abuse of discretion,’’ ‘‘stinging lecture,’’ ‘‘scolded the lower court,’’ ‘‘procedural legerdemain,’’ and ‘‘negligence.’’ Despite the high

quality of our judges, our Supreme Court reversal rate is notorious.

A friend of mine who is assistant General counsel to a university told me he cannot reliably keep his client in compliance with the law, because on important issues

it is impossible to comply with Ninth Circuit law and Supreme Court law simultaneously. Even though district courts must follow Ninth Circuit law, he must warn

his client that Ninth Circuit law in some critical areas is inherently unstable because the Supreme Court will reverse it when they grant certiorari. He may think

that the Ninth Circuit approaches to some of these issues are preferable to the SuVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
84

preme Court’s, but that does not solve the university’s problem of knowing what law

to follow. We owe people better than this.

Why are judges so good making so many errors? That is a serious question, and

I do not think, in view of our Supreme Court record, that it can be avoided. The

reason, I suggest, is our size. We have so many judges that we cannot read each

others’ opinions, and we cannot correct errors by effectively rehearing cases en banc.

In every organization, there has to be some size limit, at the bottom end and the

top end; such that if the organization was smaller or bigger, it would be less efficient. That is probably why dentists’ offices do not grow to the size of General Motors, and General Motors is not operated out of a small garage. Justice Brandeis

wrote, in The Curse of Bigness, ‘‘In every business concern there must be a size limit

of greatest efficiency. What the limit is will differ in different businesses and under

varying conditions in the same business. But whatever the business or organization,

there is a point where it would become too large for efficiency and economic management, just as there is a point where it would be too small to be an efficient instrument. The limit of efficient size occurs when the disadvantages attendant on the

size outweigh the advantages, and for large size, when the centrifugal force exceeds

the centripetal.’’ There are no economies of scale for appellate courts. In our particular activity, we become less efficient rather than more efficient beyond a certain

size.

READING EACH OTHERS’ DECISIONS

Judges on the same court should read each others’ decisions. We are so big that

we cannot and do not. That has the practical effect that we do not know what judges

on other panels are deciding. It is odd word usage to call a public body a ‘‘court,’’

in the singular, if its judges neither sit together as one body, nor read each others’

opinions.

The Ninth Circuit issues too many decisions for anyone to read. We learn of decisions of our own court, affecting our own cases, when they are cited to us by lawyers

or by our law clerks. This deprives the people we serve of two important services

a court should provide. We cannot give them consistent, reliable applications of law

to the facts of their cases. And we cannot spot and correct errors by other panels.

The White Commission said ‘‘[t1he volume of opinions produced by the Ninth Circuit’s Court of Appeals and the judges’ overall workload combine to make it impossible for all the court’s judges to read all the court’s published opinions when they

are issued.’’

Note that the Commission spoke only about the published opinions. There are

around nine times as many unpublished opinions that we cannot even attempt to

monitor. One of my law clerks collected a year’s worth of dispositions, and weighed

them at the end of the year. They weighed forty pounds. Most of what we do that

is important is not statements of rules, because you, not we, legislate. Our job is

application of law to the facts of particular cases. Where there is nothing novel

about the issues of law, we usually do that in unpublished dispositions, but those

who must live with the results say that although we state the rules of law fairly

consistently, our applications of it in unpublished dispositions are quite inconsistent.

This problem of not knowing what other panels are deciding is purely a function

of size. It has nothing to do with the rate at which judges produce opinions. If each

judge generates the same number of published decisions per year on a small court

or a large one, there will be four times as many decisions to read if the court is

four times as large. Even if everything else about a large court and a small one is

the same, the judges on the court can read their own, court’s decisions only if it is

a small court.

Thus judges on a large court, though of the highest quality, will do a less capable

job than judges on a smaller court of maintaining coherent, consistent law. They

simply cannot maintain the same level of knowledge of what their own court is

doing. Technology cannot repair this problem. We already have excellent systems for

getting decisions into the hands of all the judges. The problem is not getting the

information from the writing panel to the other judge’s desks. It is getting the contents of a decision from the judge’s desk into the judge’s head.

The fastest, easiest way of letting one panel know what another is doing is usually for judges to talk about it. Sometimes one of the judges on a panel mentions

that another recently decided a related question, or has it pending. On a small

court, the ordinary discussion at conference probably does much of the job of maintaining consistency in the law. But a Court of 28 judges has more than 3,000 possible combinations in which panels sit. Add to that all the visiting judges, and we

are not likely, in so large a court, to learn what we need to know by easy oral interchange in conference. We just do not overlap enough in our sittings. The White

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Commission said that a much smaller decisional unit than the Ninth Circuit ‘‘would

become much more a ‘known bench,’ fostering judicial accountability and public confidence.’’ But as the White Commission pointed out, on a court as large as ours, ‘‘it

would be rare for a judge to sit with every other judge of the court more than once

or twice in a three-year period.’’ There is one judge on our court with whom I have

never sat on a three judge panel, even though that judge was active rather than

senior for four years during my tenure.

The problem I have been discussing harms the consumers of our decisions, not

the producers. If we render inconsistent decisions, the district courts, practicing lawyers, and, most important, the general public cannot effectively comply with the law.

The great scholar of the common law tradition, Karl Llewellyn, characterized the

chief virtue of appellate opinions as providing ‘‘reckonability of result.’’ Professor

Llewellyn said ‘‘spend a single thoughtful weekend with a couple of recent volumes

of reports from your own supreme court, * * * and you can never again, with fervor

or despair, make that remark about never knowing where an appellate court will

hang its hat. Spend five such weekends, and you will be getting a workable idea

of the local geography of hat racks.’’ Karl N. Llewellyn, The Common Law Tradition:

Deciding Appeals, 179 (1960).

When I was a practicing lawyer, I was generally able to predict with great accuracy what the Supreme Court of my state would do, even where there was no case

in point. I read its decisions as they came down, and as Llewellyn suggests, I knew

what the thinking process of each of the five justices would be when faced with a

new problem. Of course, there were occasional surprises, but not very many, to me

or to other lawyers. Our clients benefited from advice based on this high degree of

reckonability. They could learn from their lawyers what the law was, comply with

it, and avoid the expense and misery of litigation.

The Ninth Circuit, because of its size, is not and cannot be a reckonable court.

No district judge and no lawyer can, by reading even a few hundred of our decisions,

predict what our court will do in the next case. Even if the decisions could be read,

there are over 3,000 combinations of judges who may wind up on panels, so the exercise would not be worth the time. At best, the bar can predict that we will restate

our clear holdings as controlling law. But different panels may apply the same holdings to similar facts in different ways. The disparateness will naturally be higher

in unpublished dispositions. When a circuit crows to a size such that its judges cannot read and correct other panels’ decisions, district judges and lawyers trying to

figure out what the law is are compelled to say that it depends on who is on the

panel.

A court that is not reckonable is of far less use to the general public, the lawyers

who represent them, and the trial judges who must adjudicate their cases, than one

whose outcomes can be predicted. There is no expense caused by the law that can

be so great as the expense to the public of not knowing what it is. That expense

to the public is much greater than all the salaries, courthouses, air fares, and other

government budget expenses, as large as those are. If people cannot, with the assistance of good lawyers, say what the law is, the unpredictability generates lawsuits.

Courts should settle disputes, not create them.

EN BANC

The other fundamental problem of an overly large court such as ours is with its

en banc process. Traditionally on a court that decides cases in panels consisting, of

fewer than all the judges, there is a process, called en banc, by which all the judges

on the court sit together to rehear a case about which importance, inconsistency,

or possible error makes them especially concerned.

On a small court, the en banc process often works so well as a possibility that

few en banc rehearings are needed. Judges know, from frequent sittings together,

what outcomes will be viewed as erroneous by majorities of their colleagues. On a

large court like ours, it is a formal, very time consuming, device.

The practical upper limit on the size of an efficient appellate court is the number

of judges who can effectively sit together en banc. Sitting together effectively requires three things: (1) an oral argument in which the unstructured give and take

between counsel and the judges can accommodate the practical needs of all the

judges to air difficult issues; (2) a conference in which reasoned deliberation rather

than mere voting can take place; (3) an opinion writing process that can work the

views of those judges in the majority into a majority opinion. Other circuits sit together en banc with as many as 17 judges. The Fifth Circuit, before it split, as it

approached the size of the present Ninth Circuit, decided that it could not effectively

sit en banc.

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The Ninth Circuit has by circuit rule limited its en banc panel to 11 judges. Traditionally ‘‘en banc’’ has meant the entire court. To the best of my knowledge, we are

the only appellate court in English common law tradition that calls less than the

entire court ‘‘en banc.’’ But we do not sit en banc in the traditional sense of the

word. That means we have no mechanism for assuring that our decisions are collegial.

The word ‘‘collegiality’’ in its traditional meaning is critical to the en banc process.

The word is sometimes used in contemporary speech to mean some combination of

civility and bonhomie. That is not its dictionary definition. The traditional definition

is ‘‘shared authority among colleagues.’’ The word is derived from ‘‘the doctrine that

bishops collectively share collegiate authority.’’ Because we do not rehear cases as

a full court, we cannot assure that our decisions represent shared authority among

all our colleagues.

The people are entitled to have us act with shared authority. We were not put

in office to be 28 individuals each imposing our idiosyncratic individual will on the

50 million people of our circuit. The en banc process is what an appellate court uses

to rein in those judges who may mistakenly canter off the trail of established principles of law. But our en banc process does not work, as the frequent Supreme Court

reversals of our en banc dispositions show.

The White Commission points out that ‘‘the entire body of judges for whom an

en banc opinion speaks should have a voice in that opinion.’’ Yet we cannot. On

other courts, en bancs can assure that mistaken decisions are repaired in accord

with the views of the court as a whole. But not on ours. We have no true en banc.

Our en banc rehearings are before 11 judges. Eleven is just another panel, not even

40 percent of our 28 judge court. When an en banc panel is divided 6 to 5 on a case

or an issue, the majority of the en banc panel is not even a quarter of the full court.

There is no reason to think that an en banc panel of eleven is representative of

the court. For one thing, no Judge really represents another. We are not organized

by party and we are not representatives. We decide things individually.

It is not especially likely that any particular en banc will be representative of the

court as a whole in any sense. An en banc panel is like a random draw of ten (the

number of judges drawn for an en banc, in addition to the chief judge who sits automatically) cards from a deck. It will rarely come out as a straight or flush. Even

though a coin tossed enough times will come out heads half the time, a single series

of ten tosses will not usually come out five heads, five tails. For example, consider

two judges on our court who are philosophically quite distinct, Judge Betty Fletcher

and Judge O’Scannlain. From 1987 to 1997, ten full years in which they were both

active on the court, Judge Fletcher served on 62 en bancs, Judge O’Scannlain on

only 34. Despite a random draw, one served almost twice as often as the other on

en banc panels! If you run a judicial process as a crap shoot, then crap shooters’

principles will affect the outcomes. The principle here seems to be, ‘‘when you’re hot,

you’re hot.’’

BENEFITS OF A SMALLER CIRCUIT

The serious concerns addressed above would be alleviated by adopting the White

Commission proposal or splitting the Ninth Circuit. Both changes would also afford

positive benefits. Particularly for the less populated states, the judges deciding the

cases would have much more familiarity with the law, procedure, customs of the

bar, and social and economic conditions on which their decisions would be superimposed.

Much federal law is not national in scope. Quite a lot of federal litigation arises

out of federal laws of only local applicability, such as the Bonneville Power Administration laws, the laws regarding Hopi and Navaho relations, the Alaska National

Interest Lands Conservation Act, and the Alaska Native Claims Settlement Act. It

is easy to make a mistake construing these laws when unfamiliar with them. Yet

it is a rare law clerk who has ever heard of any of these complex federal laws. For

example, a judge who sits once in ten years in Alaska, as we do now on the Ninth

Circuit, is unlikely to have a working, knowledge of the two tremendously important

Alaska laws mentioned, which come up in Alaska federal litigation all the time. This

unfamiliarity leads to errors, as in a recent 9–0 reversal by the Supreme Court,

after more than a year of intense political turmoil in Alaska.

Much federal procedure mirrors state procedure in the particular district. For example, Federal Rule of Civil Procedure 4 imports state procedure. Where law is not

specified, bar and bench customs in the different localities often fill it in. It is very

helpful for judges to know how releases, attorney’s fees contracts, and other documents for common transactions, are typically written in a state, so that they know

when something is suspicious and when it is ordinary. In diversity cases, we are

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required to apply state law in federal court. Yet on our court, ordinarily no judge

on the panel has intimate familiarity with the law and practices of the state in

which the case arose, except for California.

Social conditions also vary, in ways that can color judges’ reactions to facts, and

disable them from understanding the factual settings of cases not arising in California. For example, Judges from Los Angeles tend to have different assumptions

about who possesses guns and what for, than do judges from Idaho, Montana, and

Alaska, who tend to associate gun ownership with longtime law-abiding residents

of the state. Native Americans have reservations in most states in our circuit, but

in Alaska reservations have generally been abolished. It is quite possible for Alaska

lawyers not to point this out in a brief because it is so obvious and well known,

and for Ninth Circuit judges on a panel and their law clerks, who have never been

to Alaska, not to know it.

A critically important virtue of smaller circuits or decisional units is that it limits

the impact of our mistakes. Sometimes we are going to be wrong. When we are

wrong in a way that affects one American out of five, as we do now, that is very

wrong indeed. Because error is inevitable, limiting its consequences is a good idea.

Those who advocate more jumbo circuits like the Ninth Circuit overlook these

costs. The logic of those who argue in favor of keeping the Ninth Circuit as it is

implies that all of the circuit courts in the United States should be consolidated into

a single giant circuit court, which would function as a pool from which panels of

judges would be drawn for the whole country. If you can imagine the problems of

maintaining coherence and predictability of the law in such a circuit, you need only

apply some discount to see what the problems are in the Ninth Circuit.

There has been a lot of political debate about whether a split would favor liberals

or conservatives, or one interest or another, that strikes me as a red herring. The

political motives of the advocates for both sides do not have much bearing on which

position would be better as a matter of judicial administration. People can seek good

things for bad reasons, and bad things for good reasons. The regional distribution

of judicial philosophies among members of the Ninth Circuit is entirely fortuitous.

The president, with the advice and consent of the senate, picks judges, and can find

lawyers of whatever philosophy the president wants in any state. It is perfectly legitimate for the political branches of our government, not the judiciary, to decide

which states should be in which circuits. That is where the Constitution places the

responsibility. In the White Commission’s view and mine, non-political concerns of

judicial administration require smaller decisional units than we now have in the

Ninth Circuit.

The Ninth Circuit now decides cases for about twenty percent of the nation’s population and forty percent of its territory. It is too big. I urge you to split it, preferably simply as with the Fifth and Eighth Circuits, or else as a decisional unit,

in accord with the White Commission recommendation.

Thank you.

Senator GRASSLEY. I have 28 minutes left. I hope I can hear all

three of you. Normally, judges enforce time. I did not want to enforce time, but you are cognizant of the time limits.

And I am going to ask Senator Feinstein if she would ask her

questions. I am going to submit mine for answer in writing, and

then you would adjourn the meeting. And I want to make it clear

to all of you that we will ensure—my questions may not cover all

of the issues that you want to bring up. I will take additional written testimony from any of you to supplement anything that you

may have wanted to say to other members in rebuttal to the questions that Senator Feinstein would ask.

Judge O’Scannlain.

STATEMENT OF HON. DIARMUID F. O’SCANNLAIN

Judge O’SCANNLAIN. Thank you very much, Mr. Chairman and

Senator Feinstein.

I would like to begin by stating that as a sitting active circuit

judge, I support the White Commission’s findings, and I am in general agreement with Judge Rymer’s comments, but will emphasize

certain points. I will not repeat my written remarks, but I would

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request that you have the appendix to my remarks handy because

I do want to refer to a couple of items.

First and foremost, this neverending judicial saga of what to do

about that judicial Goliath, the ninth circuit, an epic that, as we

have heard dates back to before World War II, must be brought to

closure, and decisively.

The White Commission of 1998 and the Hruska Commission of

1973 both came to the same conclusion. Regardless of which party

controlled the Congress when these separate Commission were appointed, they both concluded that the ninth circuit needs restructuring.

S. 253 is the most carefully crafted and sophisticated legislative

solution thus far, and hopefully should be the vehicle to resolve the

ninth circuit’s future, hopefully, for a long time. And there is nothing sinister, immoral, fattening, politically incorrect or unconstitutional about the restructuring of judicial circuits. This is simply the

natural evolution of the Federal appellate court structure. As

courts grow too big, they evolve into more manageable judicial

units.

When the circuit courts of appeals were created in 1891, there

were only nine regional circuits. Since then, the District of Columbia circuit was created, the tenth circuit was split off from the

eighth, the eleventh circuit was split off from the fifth, and in due

course, I have absolutely no doubt either the ninth circuit will be

restructured along the lines of S. 253 or a new twelfth circuit will

be created.

No circuit, not even mine, Mr. Chairman, has a God-given right

to an exemption from the laws of nature. There is nothing sacred

about the ninth circuit keeping essentially the same boundaries for

over 100 years. And frankly, I am mystified by the relentless refusal of some of my colleagues, including my beloved chief and my

brother, Wiggins, to contemplate the inevitable.

The problem, as we have heard, with the ninth circuit can be

summarized quite simply. We are too big now and getting bigger

every day. Although we are officially allocated 28 judges, we currently have 21 active judges, but 19 senior judges. In other words,

there are 40 U.S. circuit judges on our court today. And when the

seven existing vacancies are filled, our court will have 47 judges.

Now, I have compiled a roster of the ninth circuit judges, which

is on exhibit A of my prepared remarks. And I think you may find

it quite revealing when you turn to it. It is a remarkable array of

judge power, more judges on one court than the entire Federal judiciary when the circuit courts of appeals were created.

And in the chart you will see the composition going back to appointees of President Kennedy, President Nixon, President Carter,

all of the way down to the appointees and the nominees of President Clinton. And knowing that with the possible exception of

three of the nineteen, these judges are doing 100 percent down to

25 percent, depending on each individual, of the work of a sitting

active judge.

Chart 2 reveals that the ninth circuit has almost double the

number of judges as the next largest circuit and more than quadruple that of the smallest when the senior judges are taken into account.

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Chart 3 gives a sense of the enormity of the circuit’s population

relative to other circuits and the caseload tracks population quite

closely.

Together, these charts reveal that the ninth circuit has double

the average of number of judgeships, handles double the average

number of appeals and has double the average population of all

courts of appeals in the country. As we can see, the ninth circuit

is already two circuits in one.

Now, is the extraordinarily large size of our court and of our population a cause for concern? Well, the White Commission, and before it the Hruska Commission, thought so, and so do I. As Judge

Rhymer explained, any court with more than 11 to 17 judges lacks

the ability to render clear, circuit-consistent and timely decisions.

And I, as a member of this court, would agree with that.

In addition to handling his or her own share of the 9,000 appeals

filed last year, each judge is faced with the Sisyphean task of keeping up with all of us, his colleagues’ opinions. And as Judge Rymer

reported in her report, only about half of the ninth circuit judges

read all or most published opinions, which, frankly, is as embarrassing as it is intolerable.

And furthermore, because of the circuit’s geographical reach,

judges must travel on a regular basis from far-away places

throughout the circuit to attend hearings and court meetings. I am

very much relieved that I only have to travel from Portland to San

Francisco in circuit, and I am just in awe of the fact that my colleague from Fairbanks, AK, has to make that trip as often as I do.

It is tough enough for me when the flight is only less than 2 hours.

But if you are coming all of the way from Fairbanks on a regular

basis, that is probably one day each direction. Much of this time

and expense could be avoided if the divisional restructuring plan

or an outright circuit split were implemented.

At 52 million people and counting, we are faced with a fundamental choice: Either do nothing and let the court of appeals become more unwieldy, or restructure the circuit into more manageable regional entities. The White Commission recognized that the

first option is not responsible, and the latter option is inevitable.

And I agree.

But on this point, my chief judge and I appear to disagree, although with the greatest respect. In his report vigorously opposing

reform, my chief emphasizes that the White Commission recommended that the ninth circuit not be split.

Well, with respect, this misses the point, and frankly obfuscates

the real defects of the Court of Appeals. Rather, the Commission’s

principal findings are:

No. 1, that a Federal appellate court cannot function effectively

with more than 11 to 17 judges;

No. 2, that the consistent, predictable and coherent development

of the law over time is best fostered in a decisionmaking unit

smaller than what we have;

No. 3, that a disproportionately large proportion of lawyers practicing before the circuit deemed the lack of consistency in the case

law to be a grave or large problem;

No. 4, that the outcome of cases is more difficult to predict in the

ninth circuit than in other circuits; and

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No. 5, that our limited en banc process has not worked effectively.

Those are the principal recommendations of the Commission report. The Commission’s main finding was that the Ninth Circuit

Court of Appeals—and I am glad Judge Rymer emphasized that

point. We are not saying that the circuit is not operating effectively, but the court of appeals has its limitations, and the result

being that the Commission is not saying that creating new circuits

is inherently bad.

My chief also characterizes the fact that the chief judges of eight

other circuits have expressed opposition to the Commission’s divisional restructuring plan as evidence of strong disapproval of restructuring among the Federal judiciary. Again, however, with respect, my brother, misreads the actual details. What these chief

judges are opposed to is the creation of intracircuit divisions with

respect to the heir own circuits, none of whom have our problems.

And, frankly, they are right.

As a judge on the ninth circuit, I must also take issue with my

colleague’s assertion that an overwhelming majority of ninth circuit

judges oppose reform. A large proportion of judge in our court; that

is, yet a minority, do favor restructuring, many strongly so.

As Judge Rymer reported and as my chief has indicated in his

testimony today, one-third of our judges have said so in a Commission survey. And with respect to that court meeting on January 21,

I will leave it up to my chief to decide if he may wish to make public the minutes which would disclose the exact vote tally and the

identity of those voting and the specific questions that were presented.

In any event, I am authorized to tender the letter which you find

at exhibit B, bearing today’s date, which is written on behalf of six

of us, including a Californian, who are willing to go public in support of reorganization. Now, since sending that letter to the printer

so I could make your deadline for submitting the testimony, I made

a few telephone calls, and I can now represent for the record that

three more California members of my court wish to be shown as

joining in that letter; Judge Rymer, of course, Judge Hall of Pasadena, and Judge Fernandez of San Bernadino.

And I have reason to believe there are many ninth circuit judges,

including other Californians, who, if given the opportunity, would

vote today for an outright split-off of the five Northwest States into

their own circuit.

And while I am at it, many district trial court judges agree that

this is also necessary. After denying that anything is wrong, our official court position straddles the fence by arguing that we can alleviate any problem simply by making changes at the margin. In response to the Commission report, our chief has appointed an Evaluation Committee, which has since suggested various quick fixes.

But I must respectfully disagree, once again, that any problems

with our court can be solved by tinkering at the edges. The time

has come when cosmetic changes will no longer suffice and a significant restructuring is necessary.

As you may recall, Mr. Chairman, from my testimony before the

full committee, and I remember that Senator Feinstein was an active participant back in September 1995, I have become a public

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proponent of the Hruska Commission’s recommended structuring

plan, but after starting out upon my appointment to this court in

1986 opposed to any change whatsoever.

And as Senator Hatfield and Senator Gorton would recall, I refused to support their efforts throughout the eighties to split the

court because they appeared to be motivated by dissatisfaction with

some environmental law decisions of our court.

Mr. Chairman, we have moved past those inappropriate concerns. The more I consider the issue from the judicial administration perspective today, the more I appreciate the benefits of the

White Commission’s restructuring proposal. Not only will the creation of smaller judicial decisionmaking units in the form of divisions promote consistency, predictability and improved decisionmaking, these divisions will be more connected to the various regions involved.

Now, I am not here to defend S. 253 in minute detail, but I do

urge the committee to give serious consideration to doing something to address the problems, which not only I have outlined, but

the Commission report outlines, and frankly, all of the witnesses

so far have indicated there are problems. And I presume that is the

basis upon which Senator Feinstein wishes to offer some legislation

to address a perception of problems.

If we go with the Commission’s plan, of course, we can make adjustments to the divisional structure to cope with political realities;

for example, placing California in its own division and making

other adjustments, if that is what it takes, to make the legislation

acceptable.

But in the event that Congress receives too much resistance to

the Commission’s divisional approach, then it should specifically

consider an outright split along the lines of the three alternative

reorganization plans. They are listed as A, B, C in the report. All

three are meritorious.

Finally, Mr. Chairman, please do not be deterred by nitpicking

criticisms of the Commission’s proposal. Men and women of good

will can fashion modifications to the plan to satisfy the greatest

number. The ninth circuit’s problems are not going to go away, and

they will only get worse. We have been engaged in gorilla warfare

on this circuit split issue for much too long. You must force us to

restructure now one way or another so that we can end the distractions caused by this neverending controversy and get back to doing

the job of judging, which is why the President appointed us, and

you confirmed us.

Thank you, Mr. Chairman, for allowing me to make these remarks. I would be happy to accept any questions that you wish to

ask.

Thank you.

[The prepared statement of Judge O’Scannlain follows:]

PREPARED STATEMENT OF DIARMUID F. O’SCANNLAIN

EXECUTIVE SUMMARY

The strains from the size and ever-increasing caseload of the Ninth Circuit

present us with a fundamental choice: do nothing and let the circuit become even

more unwieldy, or restructure the circuit into more manageable regional entities.

The White Commission, recognizing the need for smaller decisional units to promote

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1 I have previously served as Administrative Judge for the Northern Unit of our court and

two terms as a member of our court’s Executive Committee. 2See Statement of Diarmuid F. O’Scannlain, Hearing Before the Committee on the Judiciary,

United States Senate, S. Hrg. 104–810, at 69–77 (Sept. 13, 1995); Diarmuid F. O’Scannlain, A

Ninth Circuit Split Commission: Now What?, 57 Montana L. Rev. 313 (1996); Diarmuid F.

O’Scannlain, A Ninth Circuit Split is Inevitable, But Not Imminent, 56 Ohio St. L.J. 947 (1995). 3The original name of this court was the Court of Appeals for the District of Columbia. In

1934, this court was renamed the United States Court of Appeals for the District of Columbia. 4This is not to mention the Federal Circuit, which was created in 1982.

consistency and predictability in adjudication, concluded that the first option is not

feasible and that the latter option is inevitable. I agree. The Commission was prescient in its recognition of the Ninth Circuit’s problems, and its creative recommendations, now in the form of S. 253, deserve careful consideration.

The natural evolution of the federal appellate court system entails the restructuring of circuits in response to changes in population and workload. As courts grow

too big, they are restructured into more manageable judicial units. No circuit has

a God-given right to an exemption from inevitable restructuring. The only legitimate

consideration is the optimal size and structure for judges to perform their duties.

Although it has been suggested that we can fix the problems plaguing the Ninth

Circuit by tinkering at the edges, I agree with the Commission’s implicit finding

that a more significant overhaul is needed. I commend the Commission’s divisional

restructuring approach. With fewer judges in each division, collegiality of adjudication within divisions will rise, and consistency of law will be improved.

The same phenomena that counsels for the divisional restructuring approach also

counsels for a split. I think that we should implement S. 253, which is a step in

the right direction. If it does not work or if the obstructionists prevent the passage

of S. 253, however, then there should be an outright split of the circuit, which is

probably inevitable anyway. Most of all, we should end the guerilla warfare and let

us get back to judging.

Good morning, Chairman Grassley and Members of the Subcommittee. My name

is Diarmuid O’Scannlain, and I am a judge on the United States Court of Appeals

for the Ninth Circuit with chambers in the Pioneer Courthouse in Portland, Oregon.

Thank you for inviting me to appear before you today to discuss the future of the

Ninth Circuit, an issue of great significance to the federal judiciary as a whole.

I

Having served as a federal appellate judge for over a dozen years on what has

long been the largest court of appeals 1 in the federal system and having written

repeatedly on issues of judicial administration,2 welcome the chance to offer my perspectives as a member of the court in this never-ending saga of ‘‘what to do about

that judicial monster,’’ the Ninth Circuit. I have heard my colleague Judge Rymer’s

persuasive presentation, and I have read the Commission’s report and most of its

accumulated testimony. I support the Commission’s findings and am in general

agreement with Judge Rymer’s comments, but I will emphasize certain points in

particular. But this judicial epic which has been going on since at least World War

II must be brought to closure, and decisively. S. 253 is the most carefully crafted

legislative solution thus far and should be the vehicle to resolve the Ninth Circuit’s

future once and for all. Your choice is either to implement S. 253, probably with

some adjustments in details, or to order an outright split. Congress can no longer

afford to luxuriate in passivity over the future of this lumbering judicial entity.

When the circuit courts of appeals were created over one hundred years ago by

the Evarts Act of 1891, there were only nine regional circuits. Today, there are

twelve. For a long time, each court of appeals had at most three judges each; indeed,

the First Circuit was still a three-judge court when I was still in law school. Over

time, courts grew to six, seven, seventeen, and eventually, to a high of twenty-eight

judges for my court. The District of Columbia Circuit can trace its origin as a separate circuit to a few years after the Evarts Act was passed.3 The Tenth Circuit was

split off from the Eighth in 1929. The Eleventh Circuit was split off from the Fifth

Circuit in 1981.4 And, in due course, I have absolutely no doubt, either the Ninth

Circuit will be restructured along the lines of S. 253 or a new Twelfth Circuit will

be created out of the Ninth.

And there is nothing sinister, immoral, fattening, or unconstitutional about the

restructuring of circuits. This is simply the natural evolution of the federal appellate

court structure responding to population changes. As courts grow too big, they are

restructured into more manageable judicial units. No circuit, not even mine, has a

God-given right to an exemption from the laws of nature. There is nothing sacred

about the Ninth Circuit’s keeping essentially the same boundaries since 1855. The

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5See Exhibit A; Table 1. With the exception of three judges—one of whom is no longer accepting calendar assignments, one of whom is recuperating from cancer surgery, and one who is

temporarily sitting only on screening calendars, all of our senior judges carry a substantial load

ranging from 100 percent to 25 percent of a regular active judge’s load. 6See Table 2; Chart 2. 7 If senior judges on other circuits are factored in, the average is 21 total judges per circuit.

8See Table 3. There may be slight variations in terms of the summary statistics reported here

and those reported elsewhere as a result of differences in sources. I use caseload statistics provided by the Administrative Office of the United States Courts in a report entitled Judicial

Business of the United States Courts: Annual Report of the Director and population statistics

compiled by the United States Census Bureau. 9See Table 3. 10See Tables 2 and 3.

only legitimate consideration is the optimal size and structure for judges to perform

their duties. We certainly have no vested interest in retaining a structure that may

not function effectively, and Congress has a responsibility through its oversight to

prod the judiciary to keep up with the changing times.

The White Commission was prescient in its recognition of the Ninth Circuit’s

problems, and its creative recommendations, now in the form of S. 253, deserve

careful consideration and sensible adjustments towards the ideal. Judge Rymer has

well articulated the real problems and a sound solution which will either be the

model for all large circuits or an interim step toward eventual split into two or three

circuits. Frankly, I am mystified by the relentless refusal of some of my colleagues

to contemplate the inevitable; as loyal as I am to my own circuit, I cannot oppose

the logical evolution of our judicial structure as we grow to colossus size.

The problem with the Ninth Circuit can be stated quite simply: we are too big

now, and getting bigger every day. This is so whether you measure size in terms

of number of judges, caseload, or population. Even though we are officially allocated

28 judges, we currently have 21 active judges and 19 senior judges. In other words,

regardless of our allocation, there are forty judges on the Ninth Circuit today. And

when the seven existing vacancies are filled, we will have 47 judges.5 I have compiled a roster of Ninth Circuit judges in Exhibit A, which you may find quite revealing. To put the figure of 47 in perspective, consider the fact that this is almost double the number of total judgeships as the next largest circuit (the Sixth Circuit) and

more than quadruple that of the smallest (the First Circuit).6 The exceptional size

of the Ninth Circuit is illustrated in Charts 1 and 2. With every additional judge

that takes senior status, we grow even larger. Indeed, if we get the five new judgeships that Judge Rymer mentioned we have asked for, there will be 52 judges on

the circuit, while the average size of all other circuits today is 14 active judges.7

Table 3 and Chart 3 give a sense of the enormity of the Ninth Circuit’s caseload

and population relative to other circuit. Last year, we handled 9,070 appeals—over

double the average (4,484) and almost 1,000 more than the next busiest court (the

Fifth Circuit).8 Looking at population, the Ninth Circuit’s nine states and two territories, which range from the Rocky Mountains to the Sea of Japan and from the

Mexican Border to the Arctic Circle, contain over 52 million people, or 21 million

more than the next largest circuit (the Fifth).9 Tellingly, the Ninth Circuit has double the average number of judgeships (28 vs. 14), handles double the average number of appeals (9,070 vs. 4,484), and has double the average population (52 million

vs. 23 million).10 In essence, the Ninth Circuit already is two circuits in one.

Is the extraordinarily large size of the Ninth Circuit a cause for concern? The

Commission thought so. And so do I. After careful analysis, the Commission concluded that any court with more than eleven to seventeen judges lacks the ability

to render clear, circuit-consistent, and timely decisions. I agree that a court with

as many judges as the Ninth cannot continue to function well. Courts of appeals

have two principal functions: correcting errors on appeal and declaring the law of

the circuit. Having more judges helps us keep up with our error-correcting duties,

but, as Judge Rymer has outlined, it hampers our law-declaring role by making it

more difficult to render clear and consistent decisions.

The White Commission found that what an appellate court needs for consistency

and predictability in adjudication—values fundamental to the effective administration of justice—is small decision-making units. Consistency of law in the appellate

context requires an environment in which a reasonably small body of judges has the

opportunity to sit together frequently. Such interaction enhances understanding of

one another’s reasoning and decreases the possibility of misinformation and misunderstandings. Because the Ninth Circuit has so many judges, the frequency with

which any pair of judges hears cases together is quite low, thus making it difficult

to establish effective working relationships in developing the law.

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11See Commission on Structural Alternatives for the Federal Courts of Appeals, Final Report

38 (Dec. 18, 1998) [hereafter ‘‘White Commission Report’’]. 12See Letter from Justice Sandra Day O’Connor to Justice Byron R. White, Chair, Commission on Structural Alternatives for the Federal Court of Appeals 2 (June 23, 1998); Letter from

Justice Anthony M. Kennedy to Justice Byron R. White, Chair, Commission on Structural Alternatives for the Federal Court of Appeals 3 (August 17, 1998).

In addition, as several Supreme Court Justices have commented, the risk of

intracircuit conflicts is heightened in a court which publishes as many opinions as

the Ninth.11 In addition to handling his or her own share of the 9,000 appeals filed

last year, each judge is faced with the Sisyphean task of keeping up with all his

colleagues’ opinions. Frankly, we are losing the ability to keep track of our own

precedents. As Judge Rymer reported, only about half the Ninth Circuit judges read

all or most published opinions, which is as embarrassing as it is intolerable. It is

imperative that judges read opinions as they are published, since this is the only

way to stay abreast of circuit developments as well as to ensure that no intra-circuit

conflicts develop and that, when they do (which, alas, is inevitable as we continue

to grow), they be reconsidered en banc. This task is too important to delegate to

staff attorneys.

As consistency of law falters, predictability erodes as well. The Commission pointed out that a disproportionately large number of lawyers indicated that the difficulty of discerning circuit law due to conflicting precedents was a ‘‘large’’ or ‘‘grave’’

problem in the Ninth Circuit. From my own experience since 1986, I can tell you

that this problem has worsened notably as the court has grown in size. Predictability is difficult enough with 28 active judgeships. But this figure understates the

problem because it does not count either the senior judges who participate in the

court’s work (most very actively) or the large numbers of visiting district and outof-circuit judges who are not counted in our present 40-judge roster.

The White Commission recommended a restructuring of the circuit in part because of its finding that the circuit’s en banc process is not working correctly. As

a member of the court, I can tell you that, although the en banc process, in theory,

promotes consistency in adjudication by resolving intra-circuit conflicts once and for

all, this has not been the case in the Ninth Circuit. All courts of appeals other than

the Ninth Circuit convene en banc panels consisting of all active judges. The Ninth,

however, uses limited en banc panels comprised of eleven of the twenty-eight active

judgeships. This limited en banc system appears to work less well than other circuits’ en banc systems; because each en banc panel contains fewer than half of the

circuit’s judges and consists of a different set of judges, en banc decisions do not

incorporate the views of all judges and thus may not be as effective in settling conflicts or promoting consistency. Relatedly, several Supreme Court Justices have commented that the Ninth Circuit fails to hear cases en banc often enough to settle

intra-circuit conflicts or to correct wrongly decided opinions.12

The Ninth Circuit’s problems do not just hinder judicial decision-making, but also

create administrative difficulties and waste. Because of the circuit’s geographical expansiveness, judges must travel, on a regular basis, from faraway places throughout

the circuit to attend court meetings and hearings. For example, in order to hear

cases, my colleague Judge Kleinfeld must, many times a year, fly from Fairbanks,

Alaska to distant cities including San Francisco and Pasadena. In addition, he must

travel on a quarterly basis to attend court meetings generally held in San Francisco.

Obviously, all this travel entails not only time, but a considerable amount of cost.

Either the divisional restructuring plan or an outright circuit split would do much

to curtail this extensive travel and expense.

II

At 52 million people and counting, we are faced with a fundamental choice: either

do nothing and let the circuit become even more unwieldy, or restructure the circuit

into more manageable regional entities. The White Commission recognized that the

first option is not feasible, and the latter option is inevitable. I agree. However,

some say: If it ain’t broke, don’t fix it. This is the position of our Chief Judge of

the Ninth Circuit, who has circulated a report vigorously opposing any restructuring

of the circuit.

In his report, Chief Judge Hug emphasizes that the White Commission recommended that the Ninth Circuit not be split. With respect, this misses the point

and obfuscates the real defects of the court of appeals. Rather, the Commission’s

principal findings are:

1. That a federal appellate court cannot function effectively with more than eleven

to seventeen judges;

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13White Commission Report at 38. 14 Id.

2. That decision-making collegiality and the consistent, predictable, and coherent

development of the law over time is best fostered in a decision-making unit smaller than what we now have;

3. That a disproportionately large proportion of lawyers practicing before the

Ninth Circuit deemed the lack of consistency in the case law to be a ‘‘grave’’ or

‘‘large’’ problem;

4. That the outcome of cases is more difficult to predict in the Ninth Circuit than

in other circuits; and

5. That our limited en banc process has not worked effectively. In light of these

many problems—and notwithstanding the Ninth Circuit’s longstanding official position that everything is working just fine—the White Commission unequivocally

recommended a substantial restructuring of the circuit’s adjudicative operations.

The Commission’s main finding was that the Ninth Circuit Court of Appeals is

not functioning effectively, not that creating divisions is better than creating new

circuits. The Report’s principal finding relates to the Court of Appeals’s adjudicative functions which can only be cured by smaller decision-making units.

Chief Judge Hug reports that there is strong opposition to restructuring among

the federal judiciary. Specifically, he characterizes the fact that the chief judges of

eight other circuits have expressed opposition to the Commission’s divisional restructuring plan as evidence of their opposition to reforming the circuit. Again, however, with respect, Chief Judge Hug misreads the actual details. What these chief

judges are opposed to is the creation of intra-circuit divisions with respect to their

own circuits, none of whom have our problems.

As a judge on the Ninth Circuit, I must also take issue with my chiefs assertion

that ‘‘[t]he view that the serious disadvantages of the restructuring proposal outweigh any possible advantages is shared by an overwhelming majority of the judges

on the Ninth Circuit Court of Appeals.’’ Again, with respect, this is simply untrue.

A large proportion of judges on our circuit favor restructuring, many strongly so.

As Judge Rymer reported, approximately one third of judges said so in response to

a survey by the Commission. In addition, I am authorized to tender the attached

letter (Exhibit B) bearing today’s date on behalf of six Ninth Circuit judges including another Californian who are willing to ‘‘go public’’ in support of reorganization.

In my personal opinion, there are many judges, including Californians, who, if given

the opportunity, would vote for an outright split off of the Northern Division into

its own circuit. We had a court meeting on January 21 in which an actual vote on

the White Commission Report was taken, and I leave it to my chief to decide if he

wishes to disclose the exact vote tally and identities of those voting. Suffice it to

say that nothing has transpired since the actual survey which would lead me to

doubt that the roughly one-third/two-thirds alignment with respect to the Commission’s findings is still accurate. As a final comment on this point, I would note that

conspicuously absent from Chief Judge Hug’s report is the fact that, of the five Supreme Court Justices who commented on the Ninth Circuit in letters to the Commission, ‘‘all were of the opinion that it is time for a change.’’ 13 The Commission

itself reported that, ‘‘[i]n general, the Justices expressed concern about the ability

of judges on the Ninth Circuit Court of Appeals to keep abreast of the court’s jurisprudence and about the risk of intracircuit conflicts in a court with an output as

large of that court’s.’’ 14

After denying that anything is wrong, our official court position straddles the

fence by arguing that we can alleviate any problems simply by making changes at

the margin. In response to the Commission Report, the Chief Judge appointed an

Evaluation Committee, which has since suggested various quick fixes. I must respectfully disagree that any problems with our circuit can be solved by tinkering

at the edges. The time has come when cosmetic changes will no longer suffice and

a significant restructuring is necessary. I am not, however, saying that our circuit

as a whole is already broke. I would emphasize that Chief Judge Hug and the Clerk

of the Court are presently doing a marvelous job of administering this fifteen-court

circuit as a whole, but my instant focus is on where we go from here. If the Ninth

Circuit Court of Appeals is not yet broke, it’s certainly on the verge.

III

How, then, should the Ninth Circuit be restructured? Frankly, I think that the

toughest issue facing the long-term planner is what to do with California, which is,

in itself, larger than any existing multi-state circuit in terms of population. What

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15See Tables 4, 5. 16See Letter from Justice John Paul Stevens to Justice Byron R. White, Chairman, Commission on Structural Alternatives for the Federal Court of Appeals 1 (August 24, 1998); Letter

from Justice Antonin Scalia to Justice Byron R. White, Chairman, Commission on Structural

Alternatives for the Federal Court of Appeals 1–2 (August 21, 1998); Kennedy, supra note 14,

at 3.

are the options? One option is to make California a circuit by itself. A second is to

align it with other states. A third is to place California within two or more circuits

or divisions. I would like to emphasize what is perhaps the most significant of the

White Commission’s well-considered findings with respect to exactly how the Circuit

should be reorganized: that decisions of the district courts within the same state

may indeed be reviewed by different divisions without difficulty. This finding comports with the conclusion of the Hruska Commission over 25 years ago, which recommended that two of California’s four district courts be included in a newly created Twelfth Circuit. California now represents over 60 percent of the total workload of our nine-state and two-territory circuit.15 Whatever Congress decides to do—

be it an outright circuit split or the creation of divisions—it should no longer be deterred from entertaining the possibility that appeals from the four districts within

California be allocated to different appellate courts.

Critics argue that placing California within two different divisions would encourage forum shopping and subject Californians to diverging lines of federal authority.

I specifically agree with Judge Rymer and the White Commission that the potential

for forum shopping would increase only marginally because California litigants already can choose in which district to file and because any ‘‘division conflicts’’ could

be quickly and expeditiously resolved. Like Judge Rymer, I was struck by the comments of Justice Stevens, Justice Scalia, and Justice Kennedy that the consequences

of splitting California between two circuits have been seriously exaggerated.16

I think that the Commission has crafted a well-considered, detailed proposal for

restructuring the circuit that will help to alleviate many of the problems that the

Commission identified and that I outlined earlier. I have become a public proponent

of the Hruska Commission’s recommended restructuring plan over the last four

years after starting out in 1986 opposed to any change whatsoever. The more I consider the issue, however, the more I appreciate the benefits of the White Commission’s restructuring alternative. By creating smaller judicial-decision making units

in the form of divisions, the Commission’s proposal will promote consistency in law,

predictability, and collegiality. These divisions will certainly be more connected to

the regions involved. This is exactly what we need. If we go with the Commission’s

plan, we can, of course, make adjustments to the divisional structure as necessary

to cope with political realities, perhaps for example, placing California within its

own division and making other adjustments as necessary.

I am not here to defend S. 253 in minute detail, but I do urge the Committee

to give serious consideration to doing something to address the many problems I

have outlined. The divisional restructuring embodied in the present bill is most certainly worthy of consideration. In the event that Congress receives too much resistance to the divisional approach, in particular, then, as the only other alternative,

it should specifically consider an outright split along the lines of the the three alternative reorganization plans—Options A, B, and C—outlined by the Commission on

pages 54–57 of the Report. These are, of course, the ‘‘Variation on the ‘classical

split,’’’ the ‘‘‘Classical split’ plus realignment of Tenth Circuit to reduce size of new

Ninth,’’ and the ‘‘Division of California between two circuits to reduce size of new

Ninth,’’ respectively. My personal preference is Option C, which approximates the

reorganization plan recommended by the Hruska Commission. This plan has a number of concrete benefits, resulting principally from the fact that it would create an

even sharing of the Ninth Circuit’s current caseload.

At the same time, I am also sensitive to political concerns which may cause delay

before putting part of the same state in two separate circuits for the first time. But

this simply counsels in favor of trying the Commission’s divisional approach. Let’s

give S. 253 a chance to work first time. But this simply counsels in favor of trying

the Commission’s divisional approach. Let’s give S. 253 a chance to work first.

IV

Mr. Chairman, do not be deterred by nit-picking criticism of details of the Commission’s proposal. Men and women of good will can fashion modifications to the

plan to satisfy the greatest number. And if the obstructionists wear you down, then

go ahead and split us—permanently into two or more circuits as the alternative.

The Ninth Circuit’s problems won’t go away, they will only get worse.

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We’ve been engaged in guerilla warfare on this circuit split issue for quite some

time now. What we need to do is get back to judging. You must force us to restructure now, one way or another, so that we can concentrate on our sworn duties and

end the distractions caused by this long-running controversy.

V

Thank you, Mr. Chairman, for allowing me to appear before you today. I would

be happy to answer any questions you may have.

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Senator GRASSLEY. My former colleague, Judge Wiggins.

STATEMENT OF HON. CHARLES E. WIGGINS

Judge WIGGINS. Thank you, Mr. Chairman. I am delighted to

have the opportunity to appear before you in your present status.

You have come a long way since we were colleagues in the House

of Representatives.

Senator GRASSLEY. There are a lot of people in the House that

say coming to the Senate is not very far. [Laughter.]

Judge WIGGINS. Well, I commend you, and I am proud of you.

I appear as a senior judge from the ninth circuit. I have been on

the ninth circuit for 15 years; prior to that, I practiced law for 16

years; and prior to that I served for 12 years in the House of Representatives, a colleague of our chairman.

I have a problem with my sight. I cannot see any more, and so

I am not going to testify consistent with my submitted statement.

But I urge you to read it and to consider what is there. I am just

going to extemporize for about 5 minutes and say something that

I feel very deeply about.

The ninth circuit is a fine institution. We have an example of the

quality of judges right here at this table, and I am proud to say

that they are colleagues of mine. There is not a case that is submitted to Judge Andy Kleinfeld, who resides in Alaska, that originates

in Southern California, that I would not be proud to have him sit

on because he would provide judgment and a fair decision. And I

think the other side is true; that he would not find that I am unqualified to sit on cases that intimately affect Alaska because I try

to be fair as well.

The whole notion of dividing the circuit has to consider the

present personnel and the fact that they are going to remain. We

have some judges who are characterized as liberals, some characterized as conservatives, and a great many in the middle. They are

all going to remain deciding cases in the future, how many divisions, subdivisions we ever make of the ninth circuit.

The second problem, and maybe the fundamental problem is size,

but it is the fact that population is increasing. The population of

the ninth circuit is increasing about 5 percent a year, and it is

going to continue in the future, whatever the subdivisions of the

circuit may be. One of these days the Congress is going to have to

address that problem. It is a tough political problem, and I do not

want to speak to it now.

The other problem is subject matter jurisdiction. The circuit has

to hear cases that you assign, the Senate and House of Representatives assign to us. We do not have any choice in the matter. The

selection of judges is a political decision as well. But the personnel,

the subject matter jurisdiction is a problem that you must one of

these days come to grips with. You could appoint a Commission

truly to make revisions in the subject matter jurisdiction of the circuit courts of appeal, and you would be doing something constructive. The present proposal has nothing to add to its constructive result in the circuit. It is addressing a problem that is not a problem.

I am proud to serve on the circuit. I think my colleagues up here

are fine members of the circuit, and they should be permitted to

decide cases wherever the circuit. We need more judges, of course.

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But because we need more judges, we should not sidetrack the fundamental problem that we have too many cases. We have 9,000,

approximately, arising in the circuit now; 55,000, approximately,

across the country.

The problem that people have addressed here is not confined to

the ninth circuit. We have Senator—a Senator that has a southern

accent. I cannot see him up there. But he may be affiliated with

the fifth circuit. That is presently a problem that they are up about

17 judges. The eleventh circuit is presently a problem, and those

are the next two areas that are going to be addressed if you establish the precedent of subdividing the ninth circuit.

Now, we are doing a good job. We are truly doing a good job.

There is a lot of political interest in subdividing the circuit, but

those are not meritorious, and I urge you, strongly urge, to leave

well enough alone. You should put this divisive issue behind us. I

would recommend that you just file the White Commission report

and take no action with respect to it.

I served as a member, as you know, on the Hruska Commission.

I am getting to be the last surviving member of the Hruska Commission. We made some mistakes. We made some mistakes in dividing California, but we made some fundamental findings that

there is one law existing across the country. It is the same law in

New York City as it is in Fairbanks, AK, and as it is in Los Angeles. We should not encourage regionalism. That is fundamentally

wrong.

Now, you are a national officer, and I am too, to some extent. We

are applying national law. To the extent that we are citizens of our

State and our interests may be at odds with the national law, the

national law should prevail. This fosters regionalism, and that is

wrong. We are not going to survive as a court with 40 courts that

the magic formula of 17 or 11 mandate.

Now, you have got to study the issue of concentrating in larger

circuits because it is inevitable. The population is growing up, and

the caseload that you have assigned to this is going up as well. The

only answer is larger circuits.

Let me urge you, and I will conclude, that this is a terribly important subject. It is a national issue, and I urge you, as national

officers, to foster one law for the Nation. It is the way the Constitution was founded.

Thank you very much, Mr. Chairman.

[The prepared statement of Judge Wiggins follows:]

PREPARED STATEMENT OF CHARLES E. WIGGINS

SUMMARY

The Ninth Circuit operates well with its present structure and boundaries. The

drive to split the circuit is animated by political concerns, not by a desire to improve

the federal appellate courts. Therefore, I oppose the White Commission’s restructuring of the circuit as well as any other plan that would divide the circuit.

The argument that the circuit is just ‘‘too big’’ collapses under scrutiny. As the

White Commission made clear, there is no reason to believe that the circuit is too

large to administer justice fairly and effectively. In addition, modem technology has

shrunk the circuit. Modem jets cover large distances in minutes or hours. We also

can communicate instantaneously across vast distances, rendering face-to-face meetings less important. Finally, splitting the circuit would do little to case the travel

burden that remains.

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One of the prime factors motivating proponents of a split is provincialism—the belief that judges from a state should decide cases that originate in that state. Provincialism is inconsistent with the purpose of the federal court system, which strives

to interpret and apply national law uniformly. Federal law should not mutate to satisfy local constituents; federal law is the same nationwide.

Political philosophy is another factor motivating proponents of a split. This is an

illegitimate motive. Tampering with the federal courts because of the political or judicial philosophies of particular judges is inconsistent with the separation of powers

doctrine and the independence of the judiciary.

My name is Charles Wiggins, and I’m a Senior Judge on the Ninth Circuit, where

I have served for the last fifteen years. Prior to that, I served twelve years in the

House of Representatives. My primary committee assignment was the Judiciary

Committee, where I served for a number of years as the ranking Republican member on the Courts and Intellectual Property subcommittee. As a member of the Judiciary Committee, I was given the privilege of serving on a variety of important, special commissions; most relevant to this hearing, I served 25 years ago as a member

of the Hruska Commission. Thus, I have devoted a quarter of a century to the careful study of the jurisdiction and boundaries of the several circuits. Over this time,

with the benefit of subsequent study and experience, I have concluded that some

of the conclusions of the Hruska Commission were erroneous, and I can no longer

support them.

I have concluded, as a result of extensive study of the subject, that the overall

functioning of our appellate system will not be improved by adding further circuits

to the present structure, but that the problems with the present structure are traceable to the growth in population and the expansion of subject matter jurisdiction

for the circuits.

Accordingly, we must direct our efforts to narrowing the subject matter jurisdiction of the circuits, and we should attempt to reduce the number of circuits, making

them larger, not smaller. Therefore, I oppose the recommendations of the White

Commission, as well as any other proposals that would further subdivide the existing circuits, and I urge this body to file the White Commission’s recommendations

without taking action.

I will not analyze the particular shortcomings of the Commission’s recommendations. Other witnesses will adequately engage in that analysis. Instead, I am going

to undertake an explanation of why this Commission’s recommendations are before

you at all. I am satisfied that there are no cogent reasons to tamper with the physical size of the Ninth Circuit, except that it is perceived to be in the political interests of its sponsors.

I. Is the circuit too big?

As a starting point, let me confront the foremost argument for a Division, namely

that the Ninth Circuit is just ‘‘too big.’’ Proponents of a Ninth Circuit split frequently justify their position by asserting that the circuit is just that—‘‘too big.’’

This, of course, begs the question: too big for what? The key question should be

whether the Ninth Circuit is too large to administer justice fairly and effectively.

The answer to this question is easy—it is not. As the White Commission proclaimed

‘‘there is no persuasive evidence that the Ninth Circuit is not working effectively

or that creating new circuits will improve the administration of justice in any circuit

or overall.’’

The other potential argument is that the Ninth Circuit is ‘‘too large,’’ not because

it is unable to carry out its mission, but because administering justice over such a

large territory is burdensome on both judges and litigants. I disagree with this assessment as well. Over the past century the circuit has operated effectively despite

its massive boundaries, and, today, the circuit’s large territory imposes fewer hardships on judges and litigants than ever before. We live in a shrunken world. As

technology continues its giant leaps forward, our old way of looking at large distances becomes increasingly obsolete. Our judges no longer traverse the circuit’s

large distances via horseback. In the early years of this century, travel was a significant burden. For example, it took about three days to travel from Los Angeles to

San Diego, yet this is a minor distance in comparison to the circuit as a whole. Likewise, a trip from San Francisco to Sacramento was itself a journey of a couple of

days. But at that time there was, no outcry against the size of the circuit. Only now,

after we have managed to shrink, practically speaking, the distances that separate

one part of our country from another, do we hear that the circuit is ‘‘too big.’’ But

this argument cannot coexist with the high technology world around us. Not only

has our modem system of air travel made it easier to cover large distances, but the

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importance of travel itself diminishes as technology advances. Judges in San Diego

or Los Angeles can communicate easily and instantaneously with judges in Boise

and Fairbanks via electronic mail, fax machines, conference calls and

videoconferencing. With time, many of our traditional ways of conducting court business, relying as they do on face-to-face communication, will become obsolete.

It is also important to understand that splitting the circuit does very little to reduce what travel burden remains. Clearly, lawyers and judges in rural parts of

Alaska, Montana or Idaho bear a more significant travel burden than do judges or

lawyers in San Francisco or Los Angeles. Nevertheless, the travel burden on these

parties will remain significant even after the unveiling of a circuit split. It is difficult to travel to court meetings or oral arguments from rural Alaska. But it is only

marginally more difficult to travel from rural Alaska to San Francisco than it is to

travel from rural Alaska to Portland, Oregon. The relatively minor additional travel

time is grossly insufficient to justify a fundamental transformation of the federal appellate system.

For these reasons, I believe the cry that the circuit is ‘‘too big’’ collapses under

close scrutiny.

II. The problem of provincialism

Another primary motive animating many proponents of a split I label provincialism. This is the belief that Judges from State X should decide cases from State X.

Some of the key proponents of a split argue that California judges should not be

deciding cases from Alaska, or Montana, or other Northwestern states. Under scrutiny, this argument shows itself, not only flawed, but even illegitimate. The United

States Court of Appeals is charged primarily with interpreting and applying national law, not regional law, not state law. There is only one national law, enacted

in D.C., under authority derived from the U.S. Constitution. The proponents’ theory

only makes sense if we believe that judges in Alaska should interpret the Constitution or federal statutes in an Alaska-friendly manner, and that California judges

should interpret the same law in a California-friendly manner. But this is not the

purpose of the federal judiciary. The U.S. Constitution is the same in California as

it is in Alaska, it’s the same in New York as in Florida. This is equally true of federal statutory law. For example, Congress did not pass, and the President did not

sign, separate Americans with Disabilities Acts for Alaska and California. Thus, federal law is the same, region to region, and state to state. The goal of the federal

judiciary is to achieve uniformity in interpretation, without splintered interpretations designed to favor the local constituency. National law is not an appropriate

forum for regional experimentation; this is the proper exercise of state law. Where

the Constitution entrusts matters to the federal government, the law applies to all

and should apply uniformly to all. The uniform application of national law is

harmed, not helped, when the courts of appeals are splintered into smaller adjudicative bodies in order to tailor their views to local constituencies.

Splitting a circuit to appease regional interests deprives a circuit of the diversity

of background that circuits need in order to interpret and apply national law in a

uniform manner. Proponents of a Ninth Circuit split often argue that judges from

other parts of the circuit, particularly California, are insufficiently familiar with life

in the Pacific Northwest to decide cases arising in the northwest. I disagree, first,

with the claim that California judges lack sufficient familiarity with their northern

neighbors to adjudicate disputes from the northern states. It is true that no judge

can be intimately familiar with the culture, background, and lifestyle of every party

that comes before his or her court. Some judges that have an intimate understanding of logging or fishing in the rugged northwest may be unfamiliar with the lives

of inner-city Los Angelinos. The reverse is often true as well. But let us remember,

federal law is not designed to appeal to a small segment of the nation, it is written

to apply to all Americans. Thus, we have long recognized that more diversity, not

less, is necessary for a healthy circuit. A political generation ago, the Hruska Commission was given the task of exploring the state of the circuit courts, including

their boundaries. In laying out the general principles through which decisions on

the circuit courts should be made, the Hruska Commission articulated a truth that

we must not lose sight of today: provincialism is a danger, not a benefit, to the

courts of appeals. The Hruska Commission warned that we must avoid circuit courts

that ‘‘lack the diversity of background and attitude brought to a court by judges who

have lived and practiced in different states.’’ 62 F.R.D. 223, 237. The Commission

rightly noted that ‘‘such diversity is a highly desirable, and perhaps essential, condition in the constitution of the federal courts.’’ Id. As the White Commission report

makes clear, this Hruska Commission finding still rings true. See White Commission Report at 49. The federal appellate courts cannot cater to local tastes or interests if they are to satisfy their function of applying a uniform body of law uniformly.

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That being the case, the circuit courts should be composed in a way that best accomplishes that goal, by having judges from different parts of the country and different

backgrounds working together to create truly national interpretations of our national law.

The key, then, is not to break the circuit courts into small bodies that cater to

local tastes. The key is to ensure that the circuit courts are comprised of judges that

represent the full diversity of the circuit. The proper question is whether the different regions of the circuit are adequately represented on the court by judges from

the different regions. I would argue that the present Ninth satisfies this goal. But

if it does not, the remedy is to appoint and confirm judges that ensure that all regions of the circuit are adequately represented, the remedy is not to splinter the circuit into smaller bodies that cannot effectively represent broad viewpoints.

It is also important to remember that the Ninth Circuit is not the only circuit that

is growing rapidly. The Judicial Conference of the United States projects that the

number of filed appeals will multiply by a factor of seven in the next twenty years.

See Lloyd D. George, The Split of the Ninth Circuit: Is It Really Our Best Option?,

6–Jun Nev. Law. 5. Thus, to maintain smaller 12–15 judge circuits, while still maintaining viable caseloads per judge, would require up to 40 circuits by the year 2020.

Id. Maintaining uniformity in the federal law would be an almost-impossible task

with such a large number of circuits. Thus, it is necessary to readjust our thinking

about the federal circuit courts. The circuit courts of the future, whether we like

it or not, will be large circuits. Our only hope for an effective court of appeals system lies in finding ways to make large circuits work better; the answer is not to

ignore the clear growth trends and stubbornly demand the small circuits that are,

more and more, becoming a relic of the past.

Furthermore, smaller circuits cannot allay the concerns expressed by many proponents of a split. Many split proponents, particularly those from the Northwest,

claim that their states are dominated by California. Again, I disagree with this assertion. But even if they are right, splitting the Ninth Circuit sets a bad precedent

for those smaller states that are concerned with the dominance of a larger neighbor.

Splitting the Ninth may remove Alaska from under California’s real or imagined

dominance, but only at the expense of those smaller states left in the Ninth. Whatever states remain tied to California, most likely Nevada, Arizona, maybe Hawaii,

will be more dominated by California than Alaska or Montana ever were, because

the other smaller states that once comprised the circuit have left, taking their

judges with them. The only answer to large state dominance in the circuits is larger

circuits, where many smaller states can balance one large one.

The Ninth is not the only rapidly growing circuit. Soon Congress will have to decide whether to divide a number of others. If Congress is concerned with the dominance of large states, it must set an important precedent by keeping the Ninth Circuit together. Otherwise, many other small states may soon find themselves in

splintered circuits of their own, joined with a large and dominant neighbor and

without any other small states that can provide balance to their circuit.

III. Political philosophy

The final motivation behind a circuit split is even more troublesome than provincialism. There is a perception among many conservatives that our circuit is a ‘‘liberal’’ circuit that is out-of-touch with the Supreme Court, and the other circuits. I

strongly believe that this characterization is unfair. As one intimately familiar with

the judges on the Ninth Circuit, I can say with confidence that our circuit is diverse,

with a few liberals, a few conservatives, and many moderates. But however you

view the philosophy of the Ninth, splitting the circuit for political reasons is illegitimate and would, in any case, be ineffectual in promoting the political philosophies

of its proponents.

Let me first address illegitimacy of a political restructuring of the circuit. We have

long recognized, ever since President Roosevelt’s attempt to pack the Supreme Court

with favorable justices, if not before, that it is illegitimate for the political branches

to alter fundamentally the character of the federal judiciary for political reasons.

The Constitution is clear; the federal judiciary is an apolitical body, separate and

equal to the political branches and unaccountable to them. Article III serves as a

constant reminder that the federal judiciary cannot be played with to accomplish political whims, it cannot be punished because of a judge’s political views. Elected officials have come and gone. As the old were replaced by the new, the prevailing political views on Capitol Hill often changed. Time has had the same effect on the federal

judiciary. As old judicial personalities were replaced by new judges, prevailing judicial philosophies have often changed. What has remained constant throughout the

century is the, effectiveness with which the Ninth Circuit has administered justice.

To alter significantly the structure of the federal judiciary because of disagreements

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1Sec. 305(a)(1)(B)(i, ii), Pub. L. No. 105–119, 111 Stat. 2491 (1997).

with some judges’ political views cuts to the heart of judicial independence, and fundamentally strains the separation of powers that animates our Constitution. Under

our constitutional system, it is the interplay between the President and the Senate

that places federal judges on the bench and, consequently, gives a district, a circuit,

or the Supreme Court a liberal, conservative, or moderate character. These elected

officials must then live with the results of the political process until they can alter

the character of the courts through this political process. Over the long term, this

process serves the country well.

Second, speaking practically, and setting aside the illegitimacy of restructuring

the federal judiciary for political reasons, splitting the Ninth Circuit because of its

perceived ‘‘liberal’’ character will not achieve the goals of its conservative proponents. Splitting the circuit does not replace ‘‘liberal’’ judges with ‘‘conservative’’

judges. The same judges will still occupy the appellate bench, and they will still

produce decisions consistent with their judicial views. Thus, a split for political reasons cannot reduce the number of ‘‘liberal’’ decisions, nor can it increase the number

of ‘‘conservative’’ ones. The theory, then, must be that a split will create a new circuit with a more conservative bent in the Northwest, while leaving California to its

liberal judges. This theory is fundamentally flawed. Speaking as one intimately familiar with the court and its judges, I can say with a great deal of certainty that

a Northwestern circuit will have a character very similar to that of the Ninth Circuit as it presently stands. There is no Mason-Dixon line in this circuit. Chopping

California off from the Northwest will create two circuits, but it will not create a

conservative circuit and a liberal circuit.

IV. Conclusion

In conclusion, the White Commission’s recommendations, and any other plan to

split the Ninth Circuit, are inherently flawed. First, because of a rapidly increasing

population, the demand for circuit judges will continue to rise dramatically. If we

are to maintain uniformity in our federal appellate system, the circuit courts of the

future will be large circuits; splintering our appellate system into a multitude of

small circuits can only increase conflict, not uniformity. Thus, we must search for

ways to make large circuits work better, primarily by reducing the subject matter

jurisdiction of the circuit courts to make case loads more manageable. Second, the

reasons given for a Ninth Circuit split collapse under scrutiny. The circuit is not

‘‘too big.’’ Though large, it allows for the fair and effective administration of justice.

And practically speaking, the circuit gets smaller every day with every technological

leap forward. Finally, the motives animating circuit split proposals are illegitimate.

Provincialism is a misguided motive because it jeopardizes the federal courts’ duty

to administer national law uniformly. Likewise, splitting a circuit because of the political philosophies of some federal judges threatens the separation of powers upon

which our governmental system is based. I therefore urge the Committee to maintain the circuit’s present structure.

Senator GRASSLEY. Thank you, Judge Wiggins.

Before I call on Judge Browning, who will finish the panel, I

want to say that Assistant Attorney General Acheson also had another commitment and will be submitting her testimony for the

record. I appreciate her willingness to testify.

[The prepared statement of Ms. Acheson follows:]

PREPARED STATEMENT OF ELEANOR D. ACHESON

Good morning. I appreciate the opportunity to appear before the Subcommittee on

Administrative Oversight and the Courts to express the views of the United States

Department of Justice on the final report of the Commission on Structural Alternatives for the Federal Courts of Appeals and on S. 253, the Ninth Circuit Reorganization Act. The Department opposes enactment of S. 253.

INTRODUCTION

In 1997, Congress created the Commission on Structural Alternatives for the Federal Courts of Appeals to study, for one year, ‘‘the present division of the United

States into the several judicial circuits’’ and ‘‘study the structure and alignment of

the Federal Court of Appeals system, with particular reference to the Ninth Circuit.’’ 1 The five-member Commission, chaired by retired Supreme Court Justice

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2White Commission Final Report (hereafter ‘‘Final Report’’) at 29.

3Final Report at 29.

Byron White, provided the Justice Department and other interested parties two opportunities to submit ideas concerning these subjects, once at the beginning of the

Commission’s work and again in response to the Commission’s draft report. The Department appreciated the opportunity to contribute to the Commission’s work. A

copy of the Department’s official comments to the Commission on Structural Alternatives have been submitted for the record and are incorporated as part of the Department’s testimony.

In its final report, the Commission made recommendations in four general areas

regarding the structural reorganization of the courts of appeals: First, the Commission specifically rejected the suggestion that the Ninth Circuit be split, noting that

there was ‘‘no persuasive evidence’’ supporting a realignment of the circuit.2 Instead, the Commission recommended that the Ninth Circuit be divided into three

semi-autonomous decisional regions. Under this novel arrangement, none of these

regional divisions would be obligated to follow the others’ precedents and any

‘‘square conflicts’’ in their decisions could be resolved by a Circuit-wide division

called the Circuit Division. Second, the Commission recommended that each other

federal Court of Appeals be granted the statutory authority to divide into regional

divisions and to establish a Circuit Division once its bench reached 15 or more active judges. Third, the Commission urged that the Courts of Appeals be granted the

authority to experiment with appellate panels consisting of two judges, instead of

the three-judge panel that is the norm. Fourth, the Commission recommended that

the Courts of Appeals be permitted to use panels consisting of two federal District

Court judges and one federal Circuit Court judge when resolving cases that involve

the routine application of well-settled law or that involve certain subject matter

areas. S. 253, the Ninth Circuit Reorganization Act, was introduced in response to

the White Commission’s report and incorporates all four of the Commission’s recommendations.

Because S. 253 so closely tracks the White Commission’s recommendations, our

written testimony before this Subcommittee draws from the comments submitted to

the Commission by the Department.

GENERAL VIEWS OF THE DEPARTMENT OF JUSTICE

The structural reforms contained in S. 253 have serious, far-reaching implications

for the structure and functioning of the federal courts. The Justice Department approaches these issues from our perspective as a frequent litigant in the federal system—a participant in over 40 percent of the cases heard in the federal courts of appeals—which must reconcile tensions in the results and reasoning of decisions in

order to assess how to proceed in federal investigations and prosecutions, to give

advice to client agencies, and to consider whether to seek review of decisions adverse to the government.

We begin with the observation that all available means of non-structural reform

should be attempted and assessed before structural changes are imposed on the federal courts. In our comments to the White Commission, we expressed the view that

structural changes should be undertaken only if a pervasive and well-documented

problem exists, that problem cannot be addressed within the existing structure, and

a workable solution can be devised whose advantages outweigh its immediate and

potential detriments. Guided by those principles, we agree with the White Commission’s recommendation—and the sponsors of S. 253—that there is no basis for a split

of the Ninth Circuit.3 In our view, the lack of any compelling evidence supporting

a circuit split also counsels against what we view as the principal recommendation

contained in S. 253—the mandated creation of divisions for the Ninth Circuit and

the recommended extension of this proposal to other large circuits. That proposal

would have potentially adverse repercussions for the administration of justice in the

Ninth Circuit, and ultimately across all federal courts of appeals.

We believe that mechanisms short of a split (divisional or otherwise) should be

tried first—particularly since the provisions in S. 253 would likely exacerbate, rather than ameliorate, the main problem we perceive: the Ninth Circuit should employ

adequate mechanisms to review and reconcile panel decisions that conflict or are in

tension with one another, or that require correction by the court as a whole. Therefore, before recommendations such as those contained in S. 253 are enacted, we urge

the adoption of the non-structural reforms suggested in this testimony and our earlier submissions to the White Commission.

In this vein, we note and applaud the Ninth Circuit’s current efforts to evaluate

its own processes to determine how it can enhance more consistent decision-making

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4 § 2(b)(5). 5 § 2(c)(2). 6 § 2(b)(5).

and reduce docket backlog. We understand that the Chief Judge recently created a

Ninth Circuit Evaluation Committee to consider these issues, solicit public comment, and make recommendations to the Court. We believe that the Circuit should

be afforded an opportunity to consider and implement changes proposed as a result

of these processes before Congress acts.

We now provide our views on S. 253.

SECTION 2: REGIONAL DIVISION OF THE 9TH CIRCUIT

Section 2 of S. 253 would divide the Ninth Circuit into Northern, Middle and

Southern Divisions, with California split between the Middle and Southern Divisions. Between seven and eleven active judges would serve in each division, with

the presiding judge of each division chosen in the manner that currently exists for

the selection of a circuit’s chief judge. A majority of judges serving on each division

would be residents of the districts over which that division has jurisdiction, but each

division would also include some judges not residing within the division, assigned

randomly or by lot for terms of at least three years. Judges from each division would

hear appeals arising from district courts within the division’s geographic boundaries. Each division would use an en banc procedure to rehear cases from within

the division. One division’s decisions, whether panel or en banc, would not ‘‘be regarded as binding precedents in the other regional divisions.’’ 4 Finally, a non-regional ‘‘Circuit Division’’ consisting of thirteen judges would be formed. The Circuit

Division panel would include the Chief Judge of the Circuit, plus four randomly selected judges from each of the three regional divisions. The 13-judge Circuit Division

would have discretionary jurisdiction to review ‘‘any final decision rendered in any

of the court’s divisions that conflicts on an issue of law with a decision in another

division,’’ but only after a panel decision had been reviewed by the division en banc

or had been denied divisional en banc review.5 The Circuit Division would not have

the jurisdiction to review decisions for error, decisions that conflict with another circuit’s decision, or decisions involving issues of exceptional importance.

In our view, this proposal is not likely to significantly advance, and instead is

likely to detract from, the goals the Ninth Circuit Court of Appeals strives to

achieve—consistency of decisions, efficiency in resolving cases, and the appearance

that all of its decisions reflect the views of the Court as a whole. Indeed, section

2 of S. 253 is likely to create greater confusion in Ninth Circuit law, further delay

the resolution of appeals, and undermine the representativeness (and thus, the legitimacy) of the Court’s decision-making process. We outline our specific concerns

below.

UNIFORMITY AND CONSISTENCY OF DECISIONS

A basic tenet of American jurisprudence is that federal law should be applied as

uniformly as possible within and across circuits. National uniformity and predictability are particularly important to the Department of Justice, which must enforce

federal law and advise federal agencies about the meaning of that law throughout

the country. The Department also plays a special role in the process of unifying the

meaning of federal law: as the most frequent litigant in the federal courts, the Department, through the Solicitor General, exercises considerable restraint in choosing

which cases the United States brings to the courts of appeals.

It is of paramount importance that federal law be interpreted consistently regardless of the location of the court or the composition of the judicial panel. Rather than

reduce the amount of intra- and inter-circuit conflicts created by Ninth Circuit decisions, we believe that S. 253’s divisional structure would effectively validate, and

even encourage, the development of such conflicts. Indeed, S. 253 is explicit that

‘‘the decisions of 1 regional division shall not be regarded as binding precedents in

the other regional divisions.’’ 6

S. 253 purports to delineate a way of resolving conflicts among divisions through

the mechanism of a ‘‘Circuit Division.’’ The Circuit Division’s only role, however,

would be to resolve ‘‘conflicts on * * * issue[s] of law’’ between the regional divisions. It is unclear from the legislation what a ‘‘conflict’’ is and how a conflict is different from the existence of other decisions that are difficult to reconcile but which

nonetheless point the law in different directions. Often, the creation of a conflict is

not clear, much less immediately clear. And because the decisions of other divisions

are not binding precedents, judges would be less likely to distinguish, discuss, or

even cite decisions from outside their division. Overall, the Circuit Division mechaVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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7That concern is not theoretical. In the area of criminal law, the Supreme Court in recent

Terms has reversed decisions of the Ninth Circuit in which that Circuit alone has held the particular view of the issue presented and been in conflict with every other circuit to have considered that issue. See United States v. Ramirez, 118 S.Ct. 992 (1998), rev’g, 91 F.3d 1297 (9th

Cir. 1996); United States v. Hyde, 520 U.S. 670 (1997), rev’g, 92 F.3d 779 (9th Cir. 1996); United

States v. Watts, 519 U.S. 148 (1997), rev’g, 78 F.3d 1386 (9th Cir. 1996) and 67 F.3d 790 (9th

Cir. 1995); United States v. Armstrong, 517 U.S. 456 (1996), rev’g, 48 F.3d 1508 (9th Cir. 1995)

(en banc); United States v. Mezzanato, 513 U.S. 196 (1995), rev’g, 998 F.2d 1452 (9th Cir. 1993);

United States v. Shabani, 513 U.S. 10 (1994), rev’g, 993 F.2d 1419 (9th Cir. 1993); United States v. X-Citement Video, 513 U.S. 64 (1994), rev’g, 982 F.2d 1285 (9th Cir. 1992); United States v. Padilla, 508 U.S. 77 (1993), rev’g, 960 F.2d 854 (9th Cir. 1992); see also Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998) (overruling United States v. Gonzalez-Medina, 976 F.2d 570

(9th Cir. 1992)); Neal v. United States, 516 U.S. 284 (1996) (overruling United States v. Muschik,

49 F.3d 512 (9th Cir. 1995)). A process that insulated from Supreme Court review those types

of erroneous division panel decisions that conflicted with other circuit decisions would be unfortunate. In our view, rather than creating a structure that might insulate such decisions from

Supreme Court review, the Ninth Circuit should employ a more vigorous en banc procedure to

address those types of conflicts and erroneous decisions. 8We have not had an opportunity to assess completely to what extent the proposed geographical divisions, including dividing California, would create the possibility of conflicting jurisprudence on a range of substantive areas of law of particular interest to the United States. However, the federal government’s unique docket, which includes issues involving public lands and

ecosystem management, wildlife and marine resource issues, and Native American rights and

interests. Those issues do not neatly fit into, but transcend, the boundaries of the proposed geographic divisional structure and may be adversely impacted by any inconsistent interpretation

of federal law that would result from the proposed division of the Ninth Circuit into geographic

divisions. 9 Although splitting California between two regional divisions makes S. 253 all the more objectionable, keeping California in the same division does not remedy our general concerns that the

proposed restructuring of the Circuit would increase the number of inconsistent decisions, delay

the appellate process, and decrease the representativeness of the Circuit’s decisions. Placing

Continued

nism, as proposed, does not provide an effective mechanism for the resolution of the

many intra-circuit inconsistencies that the semi-autonomous division system would

produce.

The inability of the Circuit Division to review cases not involving inter-divisional

conflicts on issues of law may have a further pernicious effect—insulating many decisions from Supreme Court review. The Circuit Division’s narrow jurisdictional

mandate would effectively preclude Circuit-wide review of matters of exceptional importance, cases that conflict with decisions of other circuits, and cases in which the

intra-circuit disagreement is significant but does not rise to the level of a ‘‘conflict.’’

Such cases would be decided solely at the divisional level, and those decisions would

not be binding circuit-wide. That structure would inevitably multiply the number of

decisions within the Ninth Circuit that conflict with decisions of other circuits, while

simultaneously creating a possible impediment to Supreme Court review. It is uncertain whether Supreme Court Justices would vote to grant certiorari in cases that

present conflicts between only one division of the Ninth Circuit (rather than the Circuit as whole) and another circuit. The discretionary nature of certiorari jurisdiction

suggests that parties opposing review will argue that the Supreme Court should

give the Ninth Circuit as a whole an opportunity to overturn a divisional decision

so as to bring the division into harmony with the other circuit’s decision. The proposed divisional structure therefore might serve to insulate decisions of the Ninth

Circuit from further review, effectively isolating it from the rest of the federal court

system.7

The probability that S. 253’s divisional structure could spawn greater inconsistency in Circuit law would be particularly problematic in California. Under S. 253,

the State of California would be split between the Middle and Southern Divisions

of the Ninth Circuit, neither of which would be required to follow the precedent of

the other. We do not support dividing any State in this manner, because, as much

as possible, federal rights and responsibilities should be the same for all citizens

within a State. Splitting California between two divisions that are not bound by

each other’s precedent would yield different interpretations of federal and state law,

and could result in inconsistent federal court rulings regarding the constitutionality

of the same California law.8 For the reasons discussed above, Supreme Court review

and resolution of these inconsistencies might be rare and, at a minimum, protracted,

particularly with the requisite added layer of Circuit Division (following divisional

en banc) review. In addition, the existence of different divisions within one State

could encourage forum shopping among those seeking to assure a more favorable audience to adjudicate questions of federal and state law, as well as delays in the reconciliation of conflicting decisions.9

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California in one division would, moreover, implicate several other problems including, most notably, the size of any division with sufficient judges to handle California’s immense appellate

volume (which currently accounts for 60 percent of the cases within the Ninth Circuit). It is

difficult to see how any ‘‘California division’’ that would decide 4,000 or more cases with 18 or

more judges would offer significant advantages in terms of size as compared to the existing

Ninth Circuit. Indeed, such a division would probably have to employ some form of limited en

banc review and would undercut the Circuit Division’s representativeness (at least if its membership was comprised of equal numbers of judges from each regional division). 10 Although it is difficult to demonstrate a ‘‘conflict’’ between two or more judicial decisions,

our experience opposing petitions for a writ of certiorari in the Supreme Court suggests that

a large number of litigants nonetheless will try. It seems likely that the Circuit Division will

forgo review in several cases while awaiting for inter-division conflicts to become sufficiently

clear to warrant Circuit division review and resolution. This may further delay the time for consistent Circuit precedent to be established. 11Filling existing vacancies on the Circuit, or creating new judgeships, as S. 1145, the Federal

Judgeship Act of 1999, would do, would be preferable ways to reduce judicial workload and

thereby increase the speed with which appeals are decided.

EFFICIENT RESOLUTION OF CASES

The interest in achieving an expeditious appellate process is important for all

kinds of cases, but it is particularly acute in two areas in which the Ninth Circuit

has large caseloads: criminal cases, in which the defendant’s liberty, as well as the

victim’s and public’s interest in finality, are at stake; and immigration cases, in

which the Ninth Circuit currently reviews as much as 50 percent of the nationwide

caseload and in which delay defers a determination of the alien’s status and can encourage new case filings. A swifter and less cumbersome process in such matters

is in the interest of both the government, which must enforce the law, and the individual, whose resources typically cannot sustain vigorous multi-tier litigation.

By adding another layer of review, the Ninth Circuit restructuring contained in

S. 253 would delay the completion of the judicial process for litigants. Following an

adverse panel decision, an aggrieved litigant could seek en banc review by the Division en banc court, as would now be true of the Circuit as a whole. A denial of such

a petition would, in many cases, precipitate a further request for rehearing at the

Circuit Division level.10 The evaluation of a case for alleged conflicts with a decision

of another panel would only add to what is already a protracted period for finally

resolving cases.

The White Commission justified this divisional structure partly on the grounds

that smaller decisional units might increase efficiency by reducing the volume of

precedent judges would be required to consult and monitor (thereby saving these

judges time). We doubt that the creation of smaller decisional units would save

much time or that Circuit judges will deem it advisable to disregard the development of law in the other divisions of the Circuit. Because S. 253 contemplates that

a number of judges would be assigned outside their division of residence for substantial periods of time, it is unlikely that judges would benefit substantially over

the long run by ostensibly being relieved of the burden of monitoring other divisions’

opinions. While serving outside their division of residence, they would presumably

be expected to keep abreast of the decisions of at least two divisions—their division

of permanent residence and their division of temporary assignment. And if, over a

three-to-five year period, they might be assigned to all three divisions, that monitoring responsibility would be hindered by a failure to have kept up with the output

of all three divisions. Whatever benefit might accrue to individual judges with respect to the burden of monitoring opinions, therefore, is likely to be only modest and

incomplete, at best.

Indeed, the use of smaller decisional units may not only be ineffective as a means

of reducing delay, but may also have undesirable collateral effects. By creating a

smaller pool of judges from which panels would be selected, litigants would be able

to better predict the identity of a panel’s judges. But it is precisely to discourage

litigants from attempting to tailor their arguments for particular judges that many

circuits do not publicly announce the judges on the panel until shortly before argument. And under the proposed divisional plan, predictability may encourage forum

shopping (especially within California) or tactics to delay pursuit of an appeal to

await either the periodic change in judicial composition within a division or the resolution of a pending case raising the same issue in a different division. A unified

circuit avoids those anomalies.11

APPEARANCE OF LEGITIMACY

As the Supreme Court has recognized time and again, the authority of the judicial

branch is tied to its legitimacy. One important aspect of a court’s legitimacy is the

perception of the public and the bar that when a judge or a panel of judges speak,

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12 Creating regional divisions on an experimental basis would, for the reasons described in the

text, be equally irreversible. Thus, a ‘‘sunset’’ provision would not remedy our concerns.

they speak for the entire court of which they are members. More to the point, the

views of a panel of judges on the Court of Appeals should represent the views of

the entire Circuit Court. In all other Circuits but the Ninth, this is always the case

because all of the judges on the Circuit have either implicitly approved of the decisions of the three-judge panels (by opting not to rehear the case en banc) or have

reheard the case en banc with all of the non-recused, active judges on the Circuit

participating. The Ninth Circuit, however, employs a limited en banc procedure

under which the Circuit’s en banc panel is comprised of 11 judges—the Chief Judge

and 10 other judges selected at random. As a result, the Ninth Circuit’s en banc;

panel involves fewer than a majority of the Circuit’s 28 active judgeships. Thus, the

Ninth Circuit has been criticized on the ground that its en banc decisions are not

representative of even a majority of the judges on its court.

Instead of making the court more representative, S. 253 is likely to reduce the

representativeness of the Ninth Circuit’s decisions. Once a three-judge panel issues

an opinion, each regional division would have the opportunity to rehear the case en

banc. This en banc process would involve every active judge on the regional court.

However, given that the divisional court would consist of only 7 to 11 judges, at

least two of whom joined the majority decision being challenged, a litigant would

likely face an uphill battle in obtaining divisional en banc review. In those rare instances where en banc review were granted, the decisions issued within any regional division would be representative of the views of the judges in that region.

This representativeness at the regional division level does not reach the Circuit

level, however. At the Circuit level, S. 253 would create the Circuit Division to replace the limited en banc structure currently employed by the Ninth Circuit. While

the Circuit Division is slightly more representative than the limited en banc because

it increases the number of judges from 11 to 13, the 13 Circuit Division judges still

do not consistent a majority of the 28 judges on the Ninth Circuit and are not selected randomly for each en banc; case (they are instead assigned by lot for three

year terms). The Circuit Division would only operate where there is a ‘‘conflict’’ on

a legal issue, however. In every other case, the decision of the regional en banc court

(of 7 to 11 judges) would be the final word of the 28-judge Circuit. As a result, S.

253 would appear to undermine the representativeness, and hence the legitimacy,

of the Ninth Circuit’s decisions.

* * * * *

Our serious reservations about implementing S. 253 are magnified by the recognition that the move to any divisional structure would likely be irreversible.12 Once

regional divisions are created—and differences in divisional law are permitted to

flourish—the Ninth Circuit would have little ability to reunify. Instead, the restructuring compelled by S. 253 would lead in only one direction—to an eventual split

of the Circuit. But this result is precisely what the White Commission found to be

unwarranted and unworkable. Rather than proceed down this inevitable path to

split of a Circuit viewed by its users (and its evaluators) as operating reasonably

well, we respectfully suggest that Congress should instead, at least as a first effort,

direct the Ninth Circuit to study and implement constructive changes in relation to

the specific areas of concern identified by the White Commission and the Department.

ALTERNATIVES TO DIVISIONAL RE-STRUCTURING

From our perspective as litigants, the Ninth Circuit’s primary shortcoming is

traceable not principally to its large number of judges or geographical size, but rather to its failure effectively to address erroneous panel decisions in important cases

and to review cases in which a meritorious claim of conflict is presented. This problem is already being mitigated in the light of the recent upswing in the number of

cases that the Ninth Circuit has voted to hear en banc. The problems that continue

to persist, while admittedly difficult to quantify, nonetheless appear susceptible to

amelioration by nonstructural means, as suggested in our submissions to the White

Commission. Indeed, the Circuit’s en banc mechanism, if modified, is particularly

well suited to solving many of these problems. If that course is followed, structural

changes might ultimately prove to be unnecessary and their attendant difficulties

and dislocations avoided. After a period of experience with non-structural alternatives and an assessment of legal and demographic trends, the need for any structural reforms might become clearer.

Improving the opportunity for en banc review. There are a number of discrete but

effective ways to increase the opportunities for en banc review of panel decisions.

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13The version of S. 253 provided to us contains two section 2s. For ease of reference, we refer

to the second section 2, which is entitled ‘‘Assignment of Judges; Panels; En Banc Proceedings;

Divisions; Quorum’’ as section 2A. 14 § 2A(a) (creating new 28 U.S.C. § 46(d)).

In particular, Congress might consider granting the courts of appeals a dispensation

to lower the statutory requirement that a majority of the Circuit’s active-service

judges must vote affirmatively to rehear a case en banc. The success of the Supreme

Court in exercising its discretionary review based on the votes of less than a majority is a model that should be studied for application in the courts of appeals’ en banc

process. A similar ‘‘4/9s’’ rule might well work at the Circuit level.

Other actions could better alert Circuit judges to the need for en banc review. For

example, the recently amended Federal Rule of Appellate Procedure 35(b)(1) now requires litigants to set forth at the outset of any petition requesting en banc rehearing a summary statement regarding why the case creates an inter-Circuit or intraCircuit split or involves a question of exceptional importance. In addition, opinions

to be published that distinguish or disagree with existing precedent should be circulated among the judges of the Circuit for review before publication. Staff personnel could be deployed to act as an additional check in the review of panel decisions

for potential conflict with other circuit decisions.

Although a system of increased availability of rehearing en banc would require

some investment of judicial resources, it seems likely that time expended en banc

in clarifying the law of the circuit and resolving issues of exceptional importance

would in the long run be repaid by a corresponding reduction in litigation and an

enhanced ability of the Ninth Circuit as a whole to speak through the en banc procedure. The short-term costs of increased en banc review may well pay substantial

long-term dividends.

Improving the representativeness of the en banc panel. The Ninth Circuit should

also consider methods of enhancing the representativeness of its en banc panel. The

most direct way to do so is to increase the number of judges who sit on the en banc

panel from 13 judges to 15. With 15 judges, the Circuit’s en banc decisions would

properly represent the views of a majority of the Circuit’s active membership. Except for the Chief Judge, these judges should be selected at random. Judges who

call for en banc rehearing or who authored the three-judge panel’s opinion should

not automatically be placed on the en banc panel, for that might skew the representativeness of the panel, and the legitimacy of the resulting en banc opinion.

* * * * *

In the long term, we recognize that demographic changes in the Nation’s population may well necessitate structural changes in the court of appeals system. If and

when that occurs, the analysis contained in the White Commission’s final report will

provide valuable insight on the potential options to be considered. At this time, however, we believe that these non-structural alternatives should be explored first and

that any structural reforms should be reserved for a time when these other alternatives are no longer workable.

SECTION 2A: REGIONAL DIVISION OF OTHER CIRCUITS 13

Section 2A of S. 253 would give all appellate courts with more than 15 authorized

judgeships discretion to adopt a divisional arrangement such as the one set out for

the Ninth Circuit.14 These courts would be permitted to organize themselves into

two or more adjudicative divisions, each capable of rehearing cases en banc. Each

judge would be assigned to a specific division for a substantial period of time, and

each division would exercise exclusive jurisdiction over the appeals assigned to it.

Any Circuit that opted to reorganize itself would be required to create a Circuit Division modeled on the one set out for the Ninth Circuit, involving no more than 13

judges and convened solely to resolve ‘‘conflict[s] [regarding issues of law] in the decisions or 2 or more divisions.’’

The Department of Justice does not support the recommendation that the remaining circuits be permitted to split themselves into semi-autonomous adjudicative divisions when they reach a certain number of judgeships. We do not believe such a

significant change in the federal appellate structure is justified, particularly before

non-structural alternatives of the type we have suggested are implemented and

their effects evaluated.

The implementation of a nationwide adjudicatory divisions plan would create for

each circuit the types of problems we have identified in our discussion of the proposed changes to the Ninth Circuit. Moreover, widespread enactment ultimately

would result in a completely restructured system overall, adding a fourth layer of

review throughout much of the federal judicial system, creating differing paths of

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15 In addition, section 2A’s proposal to create divisions in the courts of appeals may result in

the development, over time, of even more complex and varied local rules of procedure. The Department has worked extensively with the Advisory Committee on Appellate Rules to develop

simplified, centralized rules of appellate procedure and to reduce the number and range of local

appellate rules. Section 2A gives considerable flexibility to the courts of appeals in creating independent divisional systems. Thus, we remain concerned that the proposed structural rearrangement could derail efforts to develop nationally uniform procedural rules.

Moreover, the considerable leeway afforded to circuits other than the Ninth to develop divisions does not foreclose the possibility that circuits might create special subject-matter divisions.

For the reasons the Department set forth in its submissions to the White Commission, we would

be concerned about the creation of subject-matter divisions. Such a possibility would add an element of potentially great variability in practice and procedure among different areas of practice. 16Final Report at 64.

access to the Supreme Court depending on geography, and allowing varying bodies

of law to be developed by numerous mini-courts of appeals in relative isolation from

one another.15

As an alternative to section 2A, we recommend implementing experimental nonstructural changes of the type described above with regard to the Ninth Circuit. At

a minimum, we suggest that section 2A be deleted from S. 253 until such time as

the existence of systemic problems in other circuits sufficient to warrant such a

change has been found and to allow litigants and judges an opportunity to assess

whether the proposed structural changes would improve the quality of justice.

SECTION 2A: TWO-JUDGE PANELS

Section 2A of S. 253 would authorize federal appellate courts to use two-judge

panels, and to allow the courts to designate by rule those case types suitable for

such disposition. The legislation leaves it entirely to the court to determine when

a case assigned to a two-judge panel should be referred to a three-judge panel for

hearing or decision.

The Department’s experience with various screening procedures employed by the

courts of appeals, including summary affirmance, leads us to question whether it

is necessary for Congress to authorize two-judge panels and whether such panels

would actually conserve judicial resources. We have further questions regarding

whether this provision ensures both adequate procedures for assessing how cases

are selected for decision by such panels and necessary safeguards for determining

how a third judge is to be brought into the process when the two-judge panel

reaches an impasse. We are also concerned about how this provision would affect

the public’s perception of the administration of justice by the courts. If the two-judge

panel provision is to be adopted at all, we believe it would best be implemented as

an experiment for a limited duration in a few courts to allow Congress, courts, and

litigants an opportunity to assess the change.

SECTION 3: DISTRICT COURT APPELLATE PANELS (DCAP)

Section 3 of S. 253 would authorize judicial councils to create a ‘‘district court appellate panel service’’ with district and circuit judges from the circuit. The judicial

council would specify categories of cases appropriate for DCAP jurisdiction and the

panel would have exclusive jurisdiction over those cases. Although S. 253 is silent

on this point, the White Commission opined that diversity cases would be likely

prospects for DCAP jurisdiction, as well as sentencing appeals and cases that ‘‘generally require the reviewer to apply well-settled legal rules to varying fact patterns.’’ 16 Panels created from the DCAP service would consist of two district judges

and one circuit judge designated by the chief judge of the circuit. District judges

would not review judgments from the courts on which they serve. Further review

of decisions by a DCAP would be discretionary in the court of appeals. In addition,

the panel itself could transfer a case to the court of appeals if disposition involved

a determination of a question of law it deemed appropriate for the court of appeals.

In our view, the use of DCAP services in the Courts of Appeals would likely result

in a net cost to litigants and to the judicial system as a whole, even if it produced

an incidental reduction in the burdens on the courts of appeals. Accordingly, we are

not persuaded that the creation of DCAPs is warranted or desirable.

First, the use of DCAPs would not reduce the overall judicial workload—instead,

it would simply divert much of the workload for some appeals from busy appellate

judges to busy district court judges. Although the factual justification underlying

this legislative proposal is unstated, it may be a response to the statistical trends

recorded in Table 2–3 of the White Commission’s final report, which suggest that

in the past century the per-judge caseload for circuit judges has increased five-fold

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17Final Report at 14. 18Section 3 does not contain any formal recommendation concerning how diversity cases

should be treated, so we have not included an analysis of that issue in this testimony.

while that for district judges has only doubled.17 Without a more careful analysis

of the workload of district judges, however, it would be premature to base conclusions on those numbers alone. The statistics do not capture the increasing complexity of time-consuming pre-trial practice, trials, and sentencing proceedings, as well

as district judge assignments to court of appeals cases. Absent more definitive data,

it seems unwarranted to conclude that district judges are sufficiently underutilized

that they may absorb the extra work contemplated by this provision. Indeed, overall

the proposal may require even more judicial resources than are now required at

both the district court and court of appeals level, because in at least some instances

the court of appeals would grant permission to take a further appeal after a DCAP

decision and would in any event have to consider requests for the exercise of discretionary review. Thus, the courts (as well as the parties) could incur the expense of

conducting two appeals instead of just one before seeking Supreme Court review.

Second, section 3 calls for judicial councils, rather than Congress, to determine

the class of cases to be adjudicated by DCAPs. That assessment, however, involves

policy decisions about the nature of the underlying legal disputes, including a substantive evaluation of the applicable law. Such significant policy decisions, such as

whether diversity cases should be handled in a distinctive manner, should be made

by Congress, rather than by the judicial councils.18

Moreover, we question whether the administration of justice would be served by

creating a class of appellate courts inferior to circuit courts of appeals and assigning

cases deemed to be less significant to them. Certainly service on such courts is not

made to seem attractive as described in the White Commission’s reports, since it

seems unlikely that a circuit judicial council would assign the most interesting

classes of cases to any court other than its own court of appeals. Finally, section

3 states that ‘‘[f]inal decisions of district court appellate panels may be reviewed by

the court of appeals, in its discretion.’’ Such discretionary review raises the possibility that a litigant might be foreclosed from having the right to seek Supreme Court

review of a decision that the court of appeals declined to review.

For the foregoing reasons, the Department opposes section 3 and the creation of

District Court Appellate Panels. At a minimum, this provision should be adopted

only as a temporary pilot project that would operate in a single court, in carefully

and explicitly designated categories of cases selected by Congress, and only for a

limited period of time.

CONCLUDING REMARKS

I have outlined the more important of the concerns of the Justice Department

based upon its review of the Federal Ninth Circuit Reorganization Act of 1999. The

White Commission has performed a valuable service in studying the United States

court of appeals system and proposing ideas for its future organization. We are not,

however, convinced that either its conclusions or any other data evidence a need for

the structural reforms contained in S. 253. As we noted above, the provisions contained in S. 253 themselves risk creating greater inconsistencies in the law, greater

delay in the resolution of cases, and greater challenges to the representativeness

and legitimacy of the courts of appeals. Accordingly, while circumstances may one

day warrant the adoption of structural changes, other measures should be tried

first. We are committed to working with this Subcommittee and the Ninth Circuit

to develop and, where appropriate, implement such proposals.

I thank you for the opportunity to submit the views of the Department of Justice

to this Subcommittee.

Senator GRASSLEY. For the record, my own absence, after 12:05,

is because I have other commitments in my State.

I now call on Judge Browning.

STATEMENT OF HON. WILLIAM BROWNING

Judge BROWNING. Senator, thank you.

Senator GRASSLEY. Would you take the microphone, please.

Judge BROWNING. I am sorry. Thank you very much. I, too, appreciate the opportunity to appear before the committee and speak

on behalf of the Commission, of which I was a member.

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Obviously, I join in the written remarks of Justice White and

Justice Merit, Professor Meador, who was the executive director of

our Commission, and Judge Rymer’s remarks here today. I join in

those without qualification.

I think it needs to be said, not that I take any particular offense,

that there was never, during the course of this Commission, almost

a year’s work, 10 months, and I made every meeting, save one

when I was ill, a discussion about the political ideology of judges

on the ninth circuit. Not once did that subject come up. Not once,

even in jest, was there any reference to who appointed that judge.

The review was dispassionate, it had to do not with ideological outcome of cases, but with the effectiveness of the court of appeals as

an adjudicative body.

I think Judge Wiggins has framed the disagreement that the

Commission has with the current status quo very well, and that is

they do not believe, those who support the current ninth circuit,

that there is such a thing as it being too big. If in addition to the

numbers Judge O’Scannlain set forth a moment ago, the court had

a full complement of judges, senior judges, it would also have visiting judges in increasing numbers from other circuits who have no

way to keep up with what the ninth circuit law is. They have a law

clerk who tells them the highlighted cases that come to their attention, but they do not understand what the collegial approach to adjudication in the ninth circuit is.

The same is true of my fellow district judges. I sit here with

some trepidation with the court of appeals, but let me quickly distinguish myself. I am not a member of that court, and they are

happier about that, I am sure, than I am. But I have sat with that

court on many occasions, and I have sat with some of the judges

testifying here today. I have never been treated with anything

other than the utmost respect. I have never been subject to any

criticism or comment, other than a disagreement honestly felt

about my views, if that were the case. So that was never anything

we discussed.

We held six public hearings throughout this country, from New

York to San Francisco. The two on the Pacific coast were the most,

obviously, highly attended by ninth circuit judges. I posed the question at both of those hearings: How big is too big? I asked the leadership of the ninth circuit, I asked other members of the ninth circuit, and, ladies and gentlemen, Senators, I never got a response,

which I take to mean, and which I think Judge Wiggins has reiterated, is that it cannot be too big.

In 1954, the Ninth Circuit Court of Appeals voted among itself,

with no prodding from this body or anyone else, to divide the ninth

circuit. They were a much smaller court then, but they felt that the

ninth circuit was unmanageably large, not in terms of the number

of judges, but in terms of the geography and the difficulty in getting together to decide cases. Those problems have been resolved,

in large part, by modern transportation. But it is interesting to

note that the court voted internally to divide or recommend to Congress that it divide itself. That recommendation was forwarded to

the judicial conference who joined in the recommendation and sent

it on to the Congress.

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Six months later, the ninth circuit reversed itself and said we do

not want to split or divide. The judicial conference also advised the

Congress that the ninth circuit had done that and withdrew the

proposed legislation.

The next meaningful event was the 1973 Hruska report, of which

Judge Wiggins was a member. That report identified virtually all

of the problems we speak about here today, over 20 years ago, over

25 years ago, and it is interesting that the ninth circuit now, since

the issuance of the final draft of the White Commission report, has

formed a committee to study these problems. And I can integrate

them, but they are all problems that have existed for over 25 years.

And respectfully, Senator Feinstein, I have not seen the legislation

you propose to introduce, but it deals with problems that have existed for 25 years. And one wonders why those problems are just

now being addressed.

In order to flesh out that observation, I would refer the committee to Justice Kennedy’s letter to the Commission, which is attached to Judge Rymer’s written remarks. He was a member of the

Ninth Circuit Court of Appeals. He talks about personal experience, as well as his observations as a member of the U.S. Supreme

Court. He notes that over 20 years ago the subject of division of

the ninth circuit came up in court meetings, and people who advocated it, among them himself, were dissuaded by the ninth circuit’s

promise and effort, which was a good-faith and sincere effort, and

no one has ever doubted that, to find procedural, administrative

and other ways to alleviate the problems that have been identified

here today.

As Justice Kennedy says in his letter, that was a failed experiment. He went along with it as one of the detractors saying, ‘‘All

right. We should experiment. But after 25 years, we * * *’’ in his

words ‘‘* * * have come no further.’’ And I think that that is a particular telling letter, and I commend it to all of you.

The next meaningful event was in 1984, when the fifth circuit

split, and it split as a result of the recommendation in 1973 of the

Hruska report. Reference has been made, I think by Senator Sessions and perhaps by panelists, about the split of that circuit.

There is an interesting book, which I commend to all of you. The

name of it is, ‘‘A Court Divided,’’ talking about the split of the fifth

into the fifth and eleventh, as we know them today. That was not

done, as Mr. Olson suggests, with a light heart and realization of

problems superficially. That was done, grown men, experienced

judges, who were in tears, as they voted to split that court.

There was no less emotion in keeping that court together than

today exists in the ninth circuit. What there was was a realization

that they can no longer function as a unified court. That is what

led to the split. I think that as one looks at that, one sees that the

time has come for the ninth circuit to be divided.

Opponents claim there is no objective evidence that the circuit

needs to be split, yet a committee has been formed by the circuit

leadership, by Chief Judge Hug, to look into the very matters we

cite as objective evidence that it does need to be split: dispositional

times, the inability of judges to keep abreast of the ninth circuit’s

output, things of that nature.

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I also commend, because it has been talked about today, the

opinions of the U.S. Supreme Court Justices who responded to our

inquiry; Justice Rehnquist, Justice Scalia, Justice Stevens, Justice

Kennedy and Justice O’Connor, and Justice Breyer, who did not

make a specific recommendation regarding the ninth circuit, but all

of the others did. The remaining three; Justice Thomas, Justice

Ginsburg and Justice Souter, declined to make any comment at all.

But of those who commented and made recommendations, they

unanimously recommend a circuit division or split. I think that is

important not because of the reversal rate of the ninth circuit,

though I will address that just briefly, but because these are the

people who judge the work product of the ninth circuit. These are

the people who see it and the results of it as judges, viewing

judges, on a regular basis.

With regard to the reversal rate, everything that is said about

its minimal importance is true, but it is also true that the ninth

circuit is the most reviewed circuit in the country. The U.S. Supreme Court takes more of its cases than anyone else’s; it is the

most reversed circuit in the country, according to Judge Justice

Scalia, whose letter is also in the file, and I commend those figures

to you in response to I believe Justice Hug’s comments about that;

it is the circuit reversed unanimously by the U.S. Supreme Court

the most; and it is the circuit, when reversed, which draws the fewest dissents in the U.S. Supreme Court. There is some message

there. The message has been out there for all to read and hear for

years.

I see, Senator, that my time has expired, and I do not want to

impose upon you. It has been a long morning. I have more to say,

and I will answer any questions. But if you wish me to, and you

will allow me to, I will supplement these remarks in writing to

shorten the hearing this morning.

Senator FEINSTEIN [presiding]. I thank you, Judge Browning, and

I thank you for your comments.

Let me just commend this panel. And it is wonderful for me to

listen to each of you because your logic is crisp and your conclusions are definitive. And the precision with which you spoke was

very much appreciated. So it was really a great treat for me, who

listens to a lot of panels, to listen to all of you.

I would like to proceed by making a few comments. And then

asking each one of you to quickly reflect on these comments in any

way you choose.

I represent California. I do have that parochial interest. Although the State is so big it is hard to think of it sometimes as

parochial. But the people of California whose legal concerns come

before the Federal bar must be served by a unity of law within the

State. To me, this proposal is powerfully flawed in that regard because in the urging of these three divisions, it balkanizes that

unity of law, in my view.

I would like to enter into the record some letters, two letters

from the Los Angeles County Bar Association, dated April 14, and

April 16, specifically on the proposal; a letter from Governor Wilson, dated April 15 of this year. And if I might quote one point:

Governor Wilson—since we began discussing this 5 years ago—he

has very eloquently made the argument of judicial gerrymandering.

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In his letter here, he says, ‘‘This bill does the same, and it is worse

because it would divide the West Coast into not two, but three segments, each with its own precedents not binding on the other regions and would add another layer of judicial review to appellate

proceedings, adding delay and expense to adjudications.’’

[The information referred to is located in the appendix.]

Senator FEINSTEIN. I would then like to enter into the record a

letter from the State Bar of California, dated May 17, 1999, speaking about the proposal on behalf of virtually every large and major

bar association in the State of California. They specifically cite L.A.

County, San Francisco, San Diego, Beverly Hills, Alameda County,

the Federal Bar, Northern District, Los Angeles and Orange County Chapters, the John Langston Bar, the Black Women Lawyers’

Association and the Women Lawyers of Los Angeles, and the Lesbian and Gay Bar Association as well.

So you have got a picture from the very diverse bars of the State

of California.

[The information referred to is located in the appendix.]

Senator FEINSTEIN. I would then like to offer a letter to me from

Governor Gray Davis, dated July 7 of this year, and I would like

to quote from it as well.

The legislation would subdivide the appellate function of

the ninth circuit into three semi-autonomous regional divisions and split the State of California in half. The northern part of the State would be placed in one division and

the southern part of the State in another. The court’s rulings in one division would not be binding on the other. I

find this proposal to split the State alarming. Not only is

the proposal untried and unproven, it creates a separation

between north and south that is inimical to what I am attempting to accomplish as governor.

We need to bring our people together and de-emphasize

our differences. The Senate Bill 253 does just the opposite.

Furthermore, splitting California between two divisions

would likely result in inconsistent Federal rulings on important California laws; one ruling covering the north and

a different ruling covering the south. As a result, businesses operating in California would be subject the conflicting State law, making it more costly to do business in

California.

The proposed legislation is also likely to foster more disputes and more litigation. For example, if a State law were

found unconstitutional in the division covering Northern

California, the decision would be binding only in that part

of the State, leaving us with a law that is valid in the

south and invalid in the north.

While SB 253 creates a circuit division to resolve conflicts between divisions, that body is powerless to do anything until such time as an inconsistent decision is rendered by the division covering Southern California. Thus,

it will be necessary to file a second suit in the second division to achieve uniformity in the law.

[The information referred to is located in the appendix.]

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Senator FEINSTEIN. Now, let me quote from comments of the U.S.

Department of Justice on the draft report, in three places. On page

4 out of 15 pages, the Justice Department states that the proposal

would unnecessarily delay the administration of justice. I am just

quoting from a part of it.

By adding another layer of review, the suggested ninth

circuit restructuring would delay the completion of the judicial process for litigants. Following an adverse panel decision, an aggrieved litigant would seek en banc review by

the division en banc court, as would now be true of the circuit as a whole. A denial of such a petition would, in many

cases, precipitate a further request for rehearing at the circuit division level. Evaluation of a case for alleged conflicts

with a decision of another panel would only add to what

is already a protracted period for finally resolving cases.

They go on to say, as I just stated from both governors’ letters,

that dividing California is undesirable, for essentially the same

reasons. So it is in a more legalistic form, but I will not read that.

So, why do I not just stop there and ask each of you to quickly,

with your views, respond as directly as you can to these individual

comments, and I will begin with the presiding Judge, Judge Hug.

Judge HUG. Thank you, Senator Feinstein.

I think one thing that is very important to recognize and I think

Judge Rymer brought it out very well. These really are very separate courts. The divisions of the circuit court of appeals are very

separate and as she indicated the circuit division, that 13-Judge

one, really is going to, and as she envisions it operating, not have

much to do with straightening out the law of the circuit.

So, we really have three separate courts of appeals operating.

And, as you mentioned, it does present a very real situation, a real

problem with the State of California being in two separate divisions. And I can see, say, for example, one of the controversial

propositions, having been interpreted by, say, the middle division,

and in the meantime, say, for example, it is held unconstitutional,

we do not have a resolution of it in the Southern Division, where

California is involved. So, we have two with no binding precedent.

If the Supreme Court does not take it up, we have got two situations between the two divisions in California. It is a very serious

problem.

It is a serious problem for the whole circuit for that same reason.

I think that there are more subtle differences also that, for example, a search and seizure resolution of how appropriately to search

a house. If you are going to have different resolutions to that in

these different divisional courts, that is going to present real serious problems and is going to be contrary to keeping a development

of a total circuitwide law.

Senator FEINSTEIN. Judge Hug, in the interest of fairness I do

not want to cut you off but I have to. I have a 1 o’clock plane.

Judge HUG. OK.

Senator FEINSTEIN. So, we need to go rather rapidly and I want

to give everyone a chance to respond.

Judge HUG. That is all I had to say.

Senator FEINSTEIN. Thank you very much.

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Judge Rymer.

Judge RYMER. The short answer to your question is then do not

divide California between two divisions. There is no magic to that.

It is sensible, in my judgment, because I think eventually that is

going to have to happen because in order to service the people of

California more judges will be required than can function effectively together as a single decisionmaking unit. But that is the

short answer.

The long answer is also short and that is that putting parts of

the State of California into different divisions will exactly mirror

what the State of California has done for itself. Because it is precisely the same structure that the California Court of Appeals has

got, precisely. So, it will create no new problem that California does

not already have, does not live with, has not adjusted to, very, very

well.

Finally, with respect to things like Constitutionality of State

propositions, it is something I simply do not understand. If, as

Judge Hug suggests, one division says that a ballot proposition is

unconstitutional that is going to win and the Governor of the State

is going to be enjoined, period. He cannot enforce that ballot proposition. So, I do not understand the problem. It exists in the State

of California now. And one final note.

California——

Senator FEINSTEIN. Would you comment on the search and seizure argument, which is a little different than a ballot measure?

Judge RYMER. Sure.

Sure. It is a difference. If there comes to be a difference between

what the northern division says about search and seizure and the

southern division, it is a difference that does not matter to anyone.

Because only the lawyers in the district courts within each division

will be bound by that division’s law. They only have to be concerned that the divisional law is consistent.

It just does not matter if the law is the same throughout the

West. If it does matter and if there is a square conflict, then the

circuit division can, in fact, step up to the plate and resolve it if

uniformity of the law throughout the Western part of the United

States is, in fact, crucial.

Senator FEINSTEIN. Thank you.

Judge Kleinfeld.

Judge KLEINFELD. Thank you, Senator.

Your concern about dividing California strikes me as serious and

well-taken. I do not think it affects the Northwest. It seems too bad

to saddle the Northwest and the other parts of the circuit with a

decisional body that is too big to work effectively because of concerns about dividing California.

It may be that simply changing the divisions around so that California is not divided would be to reconcile these interests. California could be its own division or it could be a division with one or

two other States, instead of being divided as the Commission says

and you could still keep the commission structure.

The second thing that occurs to me is you already have incoherence of Federal appellate law in California. Right now, it is not because of a difference between North and South, it is because we are

too big to work effectively as a decisional body.

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We have decisions in death penalty cases out of California that

I cannot reconcile. And the only way that I can make any sense of

them is that different panels decided them. We are too big to work

effectively and create coherent law for California as it is.

Senator FEINSTEIN. Thank you very much.

Judge Scannlain.

Judge SCANNLAIN. Senator Feinstein, I tend to be pretty pragmatic. And if the California member of the Senate Committee on

the Judiciary has expressed profound concerns about putting California into two separate divisions or two separate circuits, then it

is not going to happen, and I would not want to force that issue

in any possible way.

It seems to me what that counsels is that S. 253 is going to have

to go through some modification and either California becomes its

own separate division or that California, perhaps some day if not

sooner, becomes its own separate circuit. Something will occur with

respect to California which will respond to the underlying problem

and I gather there is a fair amount of agreement, Senator. I see

no reason at all why some of your suggestions could not be taken

into account in the legislation that you are proposing which I have

not yet seen but which has been described so far.

But I wish, on the other point, I wish Senator Torricelli were

here because he might be rather mystified by the curious argument

from people on the west coast that somehow they are sacred and

they cannot have separate circuits compared to the east coast.

Senator FEINSTEIN. You do not believe we are sacred? [Laughter.]

Judge SCANNLAIN. On some things, absolutely.

But the whole idea that you cannot have separate circuits in the

west coast is really frankly just not worth pursuing. You have got

the first, second, third, fourth and the eleventh on the Atlantic

Coast and as far as I know those freighters are not colliding any

more frequently because they do not know what the law is than the

freighters going from the west coast to the Far East.

So, those are my responses.

Thank you, Senator.

Senator FEINSTEIN. Thank you, Judge.

Judge Wiggins.

Judge WIGGINS. There is not a problem, do not fix it. I would not

address these problems by creating a new circuit. Leave well

enough alone. That is my answer, do not address it.

Senator FEINSTEIN. Thank you very much.

Judge Browning.

Judge BROWNING. Senator, my remarks would not be remembered so much for what they are as for the fact that they made you

miss your plane, so, I will be brief. [Laughter.]

Senator FEINSTEIN. That is a good adaptation, actually.

Judge BROWNING. Let me just comment. All of the comments

that have been made to the point you raised, I would agree to. I

want to comment only on the layer of review. There is exactly the

same review today as this Commission report proposes. They are

called by different names, but they have the same number of appeals.

What has not been said and what this committee, I think, should

study and look into is that since the limited en banc procedure has

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gone into effect in the ninth circuit, which I believe was 1973 or

1974, there has also been a procedure where the ninth circuit can

set en banc, meaning entire judicial panel would sit. That has

never in the history of the ninth circuit been used. That does not

mean it is not available. It just means that ninth circuit judges, for

whatever reason—and I suspect their workload is a big part of it—

have not seen fit to go en banc with a full panel.

So, the Governor’s comment about an additional layer of review,

I think, omits that simply because it has never happened but it exists. It is there. And I am sure my friends on the ninth circuit will

tell you they receive petitions every month of lawyers who ask

them to convene that huge 28-judge panel. But the lairs have been

so far unsuccessful.

With regard to the admiralty question it is not a big concern in

Arizona so I will leave it to others. [Laughter.]

Senator FEINSTEIN. Thank you very much.

Thank all of you very, very much. I think it has been a very interesting hearing. Clearly the issues have been joined and the dialog will continue. And I want to thank you on behalf of our Chairman, Senator Grassley, as well, and this hearing is adjourned.

[Whereupon, at 12:32 p.m., the committee was adjourned.]

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1 Nonetheless, this point should not be overstated, either with respect to better decision-making or intimacy itself. Some 32 years ago, I clerked on the United States Court of Appeals for

the D.C. Circuit, then a very small court sitting together on a single floor of the Courthouse.

Despite its small size and physical intimacy, two of the more prominent judges not only disagreed philosophically and in judicial decisions but refused to speak to each other and communicated only by formal memoranda.

QUESTIONS AND ANSWERS

MUNGER, TOLLES, & OLSON LLP,

Los Angeles, CA, August 19, 1999.

The Honorable CHARLES E. GRASSLEY,

U.S. Senate Committee on the Judiciary, Subcommittee on Administrative Oversight

and the Courts, Washington, DC.

DEAR SENATOR GRASSLEY: I am writing in response to your letter of July 29,

which arrived while I was out of the office on business and vacation. I apologize for

the tardiness in responding.

Taking your questions as presented, I have the following responses:

RESPONSES OF RONALD L. OLSON TO QUESTIONS FROM SENATOR GRASSLEY

I. DESTROYED COLLEGIALITY

Answer 1. Certainly there is some correlation between the size of an institution

and the intimacy of its members.1 However, in my opinion, as an active advocate

and court watcher, the size of the Ninth Circuit has not interfered with the

collegiality needed for sound judicial decision-making. Well-over 90 percent of the

judicial decision-making occurs within 3-judge panels. Hence, the overall size of the

circuit is secondary to how well these 3-judge panels relate. Here, my experience

suggests that individuals on 3-judge panels are not only cordial with each other but

genuinely interested in sharing views and analysis in a way that leads to a prompt

and fair decision. At least 3 factors bear on this experience:

(a) Typically, each panel comes together for a full-week of argument, shared analysis and tentative decision-making. This intense shared professional relationship

may well promote more ‘‘collegiality’’ in decision-making than one would have in

an environment of fewer circuit-wide judges sitting more randomly with each

other and for shorter time periods.

(b) Second, it is obvious that, because of its size, the Ninth Circuit makes an extra

effort to maintain professional collegiality through in-person and tele-picture conferences and through its existing administrative offices in San Francisco and

Pasadena.

(c) Third, the important collegiality is that which stimulates communication related to decision-making. With the help of a sophisticated clerk’s office that codes

issues in each case, judges are prompted to have timely communications with

other judges who have expressed themselves on related matters. Further, I would

argue that important professional collegiality, such as that which occurs at the

annual circuit conferences, is enriched by the presence and participation of a

greater number of judges. Indeed, my personal experience in other professional

settings is that the smaller the group, the more personal and social the experience, and the larger the group, the more professional the experience.

2. QUALITY OF COURT OPINIONS

Answer 2. I know of no meaningful analysis of the comparative quality of federal

court appellate opinions. I would argue that in the Ninth Circuit the depth and accuracy of legal analysis, the integrity of the process and the results, and the timeliness of opinions (especially if adjusted to account for the Ninth Circuit’s work for

so long without a full complement of authorized judges) is equal to that of any other

circuit in the country. I would further argue that the 1997 Supreme Court reversal

rate for the Ninth Circuit is a meaningless indicator of the ‘‘quality of opinions.’’ I

am personally familiar with many of those Ninth Circuit opinions and know them

to present very difficult policy questions on which the Supreme Court itself was divided and know that the alternative result of the Ninth Circuit was generally supported by sound analysis and judicial integrity. I would further note that Justice

Scalia’s reliance on reversal rates to support the view that the Ninth Circuit is conVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00154 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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sistently out-of-step with the Supreme Court is not borne out in more current years,

not borne out by a longer-term analysis than years referenced by Justice Scalia,

and, in any event, is essentially meaningless. Different views are not dishonest

views and may well be constructive as part of the national debate on difficult policy

questions. Nor does a different result indicate that the decision is less well-reasoned

or less well-expressed or have less integrity. In any event, there is no known correlation between the size of the circuit and ‘‘getting it right’’ with the Supreme

Court.

3. TIMELY DISPOSITION OF CASES

Answer 3. The experience of our law firm suggests that the Ninth Circuit is timely in reporting its decisions. However, I know that your committee and the Ninth

Circuit have access to complete statistics for the Ninth Circuit and for other circuits,

and I would, therefore, defer to those statistics. However, the speed of decision-making is not, in my opinion, meaningfully related to the size of the circuit. As noted

before, most decisions are made by 3-Judge panels and most opinions are written

by a single judge. The diligence of the individual judges on the panels and writing

the opinions overwhelms any other factor in determining timeliness. Finally, it must

be noted that the Ninth Circuit has long labored with less than a full complement

of authorized judges. In my opinion, filling judicial vacancies would have a far more

positive effect on timeliness than reorganizing the existing circuit. Indeed, the proposed tripartite division would seem likely to slow the disposition of those cases that

received the additional review by the circuit division.

4. WHAT EVIDENCE WOULD SUPPORT REORGANIZATION?

Answer 4. My answer to this question is articulated best by the ‘‘Proposed Long

Range Plan for Federal Courts,’’ adopted by the Judicial Conference of the United

States in December 1995, and the resolution adopted by the House of Delegates of

the American Bar Association in August 1999. Both of these policy-making bodies

agree that restructuring should not occur without ‘‘compelling empirical evidence to

demonstrate adjudicative dysfunction.’’ An aberrational case such as Hughes Aircraft Company vs. Jacobson occurs from time to time in most circuits. An occasional

aberrational case does not equal ‘‘compelling empirical evidence’’ of adjudicative dysfunction. Nor is there any indication that the unacceptable delay associated with

Hughes Aircraft was attributed to the size of the Ninth Circuit.

In conclusion, I again thank you, Senator Grassley, and the Judiciary Subcommittee on Administrative Oversight and the Courts for your attention to this important

matter and for giving me the opportunity to participate in the hearing. If I can be

of any further assistance, please let me know.

Sincerely yours,

RONALD L. OLSON.

RESPONSES OF PROCTER HUG, JR. TO QUESTIONS FROM SENATOR GRASSLEY

Question 1. The commission has suggested allowing appellate courts to use panels

of two judges—instead of the traditional 3 judge panels—to hear appeals. However,

the legislation does not offer a solution where there is a split between the judges

on a two judge panel. How should such a disagreement be handled?

Answer 1. The two judges assigned to such panels will rarely disagree because

the panels would ‘‘primarily’’ decide ‘‘cases in which the outcome is clearly controlled

by well-settled precedent.’’ (Report at 63.) If disagreement or doubt does arise, the

Commission recommends the two judges ‘‘enlist a third judge to participate in the

decision, or refer the case to a regular three judge panel for hearing.’’ (Id.) Either

alternative would provide an efficient and effective mechanism for resolving the few

disagreements that might occur. We have successfully employed similar procedures

in the screening program maintained by our Court.

Question 2. The Commission states that the Circuit Division should only hear

‘‘square conflicts’’ between the regional divisions. Critics argue that this will cause

the law of the different regions to drift apart over time and erode the uniformity

of circuit law to the point where the law of the circuit is insignificant. On the other

hand, if the circuit division takes more than ‘‘square conflicts’’ in order to provide

more uniformity in the circuit, it will be operating like another full layer of appeal.

What is likely to be the practical way in which the circuit division operates and

what consequences will this have on the circuit as a whole?

Answer 2. The dilemma exposed by Senator Grassley’s question provides yet another persuasive reason for rejecting the divisional structure proposed by the ComVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00155 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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mission. At a minimum, the circuit division will create an additional layer of appeal

before finality, compounding the delay, cost, and administrative burdens of the appellate process. Limiting the jurisdiction of the circuit division to resolving ‘‘square

interdivisional conflicts,’’ (Report at 45), will generate additional litigation and leave

questions of exceptional importance unresolved in the Ninth Circuit. Three autonomous, adjudicative divisions will erode the uniformity of circuit law, and ultimately

create more work for the Supreme Court.

RESPONSES OF PROCTER HUG, JR. TO QUESTIONS FROM SENATOR THURMOND

Question 1. Judge Hug, as you know the size and number of the Federal Circuits

has changed over time as the country has grown. In 1929, the Tenth Circuit was

created, in 1981, the Eleventh, and in 1982 the Federal Circuit was created. Indeed,

Judge O’Scannlain testified that ‘‘There is nothing sacred about the Ninth Circuit’s

keeping essentially the same boundaries since 1855. The only legitimate consideration is the optimal size and structure for judges to perform their duties.’’ Do you

disagree with this statement of Judge O’Scannlain, and is it your belief that the

Ninth Circuit should never be split no matter how large it gets?

Answer 1. I do not disagree with Judge O’Scannlain’s statement that optimal size

and structure for the court of appeals to perform its duties should be the primary

consideration. However, no one knows what the optimal size of the Ninth Circuit

(or any other circuit, for that matter) may be. The Commission conceded that the

size of a circuit, and its resulting effects on the consistency and predictability of its

decisional law, are ‘‘too subtle * * * to allow evaluation in a freeze-framed moment.’’ (Report at 40.) We do know, however, based on our experience over the last

fifteen years, that twenty-eight judgeships are not too many to enable the court of

appeals to operate effectively. I agree with the Long Range Plan of the Federal

Courts, adopted by the Judicial Conference of the United States, that no circuit

should be split unless or until there is ‘‘compelling empirical evidence’’ that it is not

functioning effectively. (Judicial Conference of the United States, Long Range Plan

for the Federal Courts, at 44 (1995).) The Commission failed to meet that burden.

Question 2. Judge Hug, the Commission’s report recognizes a consensus among

appellate judges that in order to function effectively a court of appeals should be

made up of no more than seventeen judges. Of course, the Ninth Circuit is beyond

that number with 28 judges. Do you disagree with this consensus of the Appellate

judges? Please explain.

Answer 2. Yes, I disagree. If you look closely at the Commission’s working papers

you will see that the Commission’s ‘‘consensus’’ includes views of judges on courts

that have never had more than 17 judges. The response from the judges on the only

federal appellate court that has exceeded that number—the Ninth Circuit—are

quite different: 2⁄3 of the judges (and lawyers) of the Ninth Circuit are satisfied that

the present court of appeals is functioning well with 28 judges, and should not be

restructured. When our court of appeals grew from 3 to 7, 7 to 9, 9 to 13, 13 to

23, and 23 to 28, critics proclaimed that the court had exceeded its maximum practicable size before the new judges arrived. They were wrong. As I testified, I believe

we have effectively demonstrated that a large court of appeals can function well, delivering quality justice and coherent, consistent circuit law in the face of an increasing workload.

U.S. COURT OF APPEALS, NINTH CIRCUIT,

Fairbanks, AL, August 11, 1999.

The Honorable CHARLES E. GRASSLEY,

Chairman, Subcommittee on Administrative Oversight and the Courts, Committee on

the Judiciary, U.S. Senate Washington, DC.

DEAR SENATOR GRASSLEY: Thank you for your perceptive questions about the

White Commission Report. Below I restate the questions and Then give my answer.

RESPONSES OF ANDREW J. KLEINFELD TO QUESTIONS FROM SENATOR GRASSLEY

Question 1. Many have expressed a concern about splitting the State of California,

into two regions. I am interested in any drawbacks there would be to a plan that

would arrange The divisions differently by keeping California intact in one region.

What drawbacks would there be to such a plan? On the other hand, what advantages does splitting California between divisions offer that outweigh the potential

problems of forum shopping?

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Answer 1. I also have doubts about the desirability of splitting California into two

federal appellate divisions. As the While Commission points out, California already

has multiple appellate divisions in its state court system and the inter-divisional,

en banc could reconcile conflicts. Nevertheless, a simple split of The Ninth Circuit

as Congress did with the Eighth and the Fifth, with all of California left in the remaining Ninth Circuit, seems like a better idea to me. The White Commission report’s general scheme could be kept, with the divisions altered somewhat, to avoid

splitting California. For example, California could be one division, Alaska, Washington, Oregon, Idaho, and Montana another, and Arizona, Nevada, and Hawaii a

third. But even if The White Commission Report is adopted as is, I think it is better

for California than the status quo. Because the Ninth Circuit is too big for us to

read each other’s decisions, or maintain an effective en banc procedure, California

already lacks coherent federal law. Instead of one coherent body of law for Northern

California, and another coherent body of law for Southern California, federal appellate law for California now depends much too much on the composition of the particular panel.

Question 2. What extra costs, if any, would be involved with implementing S. 253?

Would you see any increase in any personnel positions, including judgeships?

Answer 2. My guess is that splitting the Ninth Circuit would save money, not cost

money. It would have no effect on the number of judgeships necessary. However the

circuit is split, judges could be allocated according to the percentages of the caseload

going to the new circuits or new divisions. It is possible that the complexity of The

White Commission plan would require some additional administrative assistance,

but I am not at all sure that this is true. If we had a simple split of the Ninth Circuit, probably administration would cost less, because it is always simpler to administer a smaller unit. I do not see any difference in needs for buildings according to

whether we are one circuit, two, or three, or one, two, or three divisions. If we were

to split the circuit and require 21 Northern headquarters, there is a substantially

vacant federal court building in Portland, the Gas Solomon Courthouse, which could

be used for this immediately. Once a new district court facility is constructed in Seattle, the now shared federal courthouse in Seattle would also be an entirely appropriate and adequate headquarters.

Question 3. The commission has suggested allowing appellate courts to use panels

of two judges—instead of the traditional 3 judge panels—to hear appeals. However,

the legislation does not offer a solution where there is a split between the judges

an a two judge panel. How should such a disagreement be handled?

Answer 3. There are several possibilities for handling disagreements between two

judges on a two judge panel. The one that commends itself to me is for the two

judge panel to refer the case back to the clerk’s office for reassignment to a three

judge panel. The court could decide by general order or a circuit rule whether the

same two judges should be on the three judge panel automatically, if they volunteer,

or only if they are drawn according to the random process. We do something like

this in our screening process for simple cases. A three judge panel either adopts a

staff recommendation after a quick look at the case, or asks the clerk’s office to assign it to a regular three judge panel for fuller consideration.

Question 4. Opponents of the Commission’s proposal say that there is no evidence

that justifies reorganizing the Ninth Circuit. In your opinion, is there evidence that

would justify such a reorganization? Specifically, what is it (please give examples

if possible)? And if such evidence does not exist at this time, what sort of evidence

would justify a reorganization?

Answer 4. The clearest evidence that reorganization is necessary is that a majority of Supreme Court Justices have said that it is. They review what we do, and

they think repair is needed.

A clear example of the kind of distortion that can occur when fewer than all the

judges on a court serve on an en banc panel is in Thompson v. Caldero, 120 F.3d

1045 (9th Cir. 1997) (en banc). In this case, as the dissents make clear, a majority

of the en banc panel, but a minority of the court, made a surprising decision in a

death penalty case, which the dissenters believed was outside the scope of the en

banc call. In any other court, the scope of the en banc call would be of little importance, but where fewer than all the judges serve on the en banc panel, the scope

of the call is critical, because it represents the only time that the entire court votes.

The Supreme Court later characterized what the majority of our en banc panel (but

a majority of our court) did as ‘‘a grave abuse of discretion.’’ Calderon v. Tbompson,

523 U.S. 538, 542 (1998). Whether a man lives or dies should not depend on who

happens to be drawn for a panel.

Question 5. The Commission states that the Circuit Division should only hear

‘‘square conflicts’’ between the regional divisions. Critics argue that this will cause

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the law of the different regions to drift apart over time and erode the uniformity

of circuit law to the point where the law of the circuit is insignificant. On the other

hand, if the circuit division takes more than ‘‘square conflict’’ in order to provide

more uniformity in the circuit, it will be operating like another full layer of appeal.

What is likely to be the practical way in which the circuit division operates and

what consequences will this have on the circuit as a whole?

Answer 5. It is hard to predict just how the circuit division will develop, because

the idea is new. My hope would be that the circuit division would take very few

cases, so that it would not turn into an expensive additional layer of appeal for the

parties. I see no harm in having the different regions of the circuit drift apart with

regard to substantive law, especially if California is left as one division, perhaps

with Arizona, Nevada, and Hawaii as the Southern division.

There is no more of an intrinsic problem with California, Idaho, and Arizona taking different views than in New York, Illinois, and Texas taking different views on

issues of federal law, New York, Illinois, and Texas are in different circuits and do

exactly that. Likewise, Massachusetts, New York, Virginia, and Florida, though all

East Coast states, are all in different circuits. It simply is not a problem. Supreme

Court Justices have frequently characterized the differing views of the circuit as a

public benefit, because the Supreme Court can then see how the issue develops as

it ‘‘perculates’’ in the circuits.

Sincerely yours,

ANDREW J. KLEINFELD/BGF,

Circuit Judge.

RESPONSES OF DIARMUID F. O’SCANNLAIN TO QUESTIONS FROM SENATOR GRASSLEY

Question 1. Many have expressed a concern about splitting the State of California

into two regions. I am interested in any drawbacks there would be to a plan that

would arrange the divisions differently by keeping California intact in one region.

What drawbacks would there be to such a plan? On the other hand, what advantages does splitting California between divisions offer that outweigh potential problems of forum shopping?

Answer 1. The most serious drawback of keeping California intact in one region

is that the resulting division would be disproportionately large, whether measured

in size of population or caseload. California now has 63 percent of the Ninth Circuit’s total workload and about the same proportion of population. If California were

kept intact by itself and the remainder of the states divided between two other divisions, the California division would have more than triple the workload of each of

the other two divisions (enough, incidentally, to justify being a stand alone circuit

by itself, which wouldn’t be a bad idea alternative, by the way).

I have never been impressed by the ‘‘forum shopping’’ charge. As the White Commission recognized, litigants in California are already free to choose the district

court in which they file. Any ‘‘division splits’’ could be quickly and expeditiously resolved whether by the Circuit Division in the proposed legislation or by an intercircuit panel if Option C were adopted.

In any event, I would not object to an all-California division as a consensus compromise to accommodate the regional interests involved.

Question 2. What extra costs, if any, would be involved with implementing S. 253?

Would you see any increase in any personnel positions, including judgeships?

Answer 2. New courthouses would not be required in either the Southern or Middle Divisions, because the current spacious Pasadena and San Francisco courthouses would presumably serve as the headquarters of those divisions, respectively.

There is an empty federal courthouse in Portland, Oregon, the ‘‘Gus J. Solomon Federal Courthouse,’’ which would be available at no cost (except minimal remodeling)

as the Northern Division headquarters if Congress agrees so to designate.

I do not believe that the implementation of S. 253 would require an increase in

the number of judgeships. Further, the existing court personnel both the staff attorneys and the administrative personnel would simply be reallocated among the three

divisions.

The geographical expansiveness of our present circuit requires judges to expend

considerable time and resources traveling from distant cities to panel hearings and

court hearings, which are primarily in California. S. 253 would do much to curtail

extensive travel expense.

Question 3. The commission has suggested allowing appellate courts to use panels

of two judges—instead of the traditional 3 judge panels—to hear appeals. However,

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the legislation does not offer a solution where there is a split between the judges

on a two judge panel. How should such a disagreement be handled?

Answer 3. I agree with the White Commission that federal appellate courts would

benefit from having the flexibility to adjudicate some cases using two-judge panels,

because this proposal would conserve resources without any loss in fairness. If the

judges on a two-judge panel disagree over how to resolve the case, a third judge,

drawn at random, would be enlisted (as we do now on two-judge motions matters)

or the case would be calendared for consideration by a regular three-judge panel.

Question 4. Opponents of the Commission’s proposal say that there is no evidence

that justifies reorganizing the Ninth Circuit. In your opinion, is there evidence that

would justify such a reorganization? Specifically, what is it (please give examples

if possible)? And if such evidence does not exist at this time, what sort of evidence

would justify a reorganization?

Answer 4. There is much evidence that justifies reorganizing the Ninth Circuit.

First, after careful analysis, the White Commission concluded that any court with

more than eleven to seventeen judges lacks the ability to render clear, circuit-consistent, and timely decisions, and I agree. In light of this finding, the Ninth Circuit,

with 28 authorized judgeships (not to mention our 19 senior judges), has far more

than the maximum number of judges with which a circuit can function effectively.

Second, as several Supreme Court Justices have commented, the risk of

intracircuit conflicts is heightened where a circuit publishes as many opinions as the

Ninth Circuit does. Frankly, we are losing the ability to keep track of our own

precedents. As Judge Rymer reported, only about half the Ninth Circuit judges read

all or most published opinions. It is imperative that judges read opinions as they

are published, since this is the only way to stay abreast of circuit developments as

well as to ensure that no intra-circuit conflicts develop and that, when they do, they

be reconsidered en banc.

Third, as the Commission reported, a disproportionately large number of lawyers

indicated that the difficulty of discerning circuit law due to conflicting precedents

was a ‘‘large’’ or ‘‘grave’’ problem in the Ninth Circuit. From my own experience

since 1986, I can tell you that this problem has worsened notably as the work of

the court has grown.

Fourth, the Ninth Circuit’s limited en banc system has not worked well to promote consistency of law, which can only be guaranteed by regular full court en banc

rehearings. Several Supreme Court Justices have criticized the court for failing to

rehear a sufficient number of cases en banc.

Question 5. The Commission states that the Circuit Division should only hear

square conflicts’’ between the regional divisions. Critics argue that this will cause

the law of the different regions to drift apart over time and erode the uniformity

of circuit law to the point where the law of the circuit is insignificant. On the other

hand, if the circuit division takes more than ‘‘square conflicts’’ in order to promote

more uniformity in the circuit, it will be operating like another full layer of appeal.

What is likely to be the practical way in which the circuit division operates and

what consequences will this have on the circuit as a whole?

Answer 5. The jurisdiction of the Circuit Division appropriately balances the two

competing needs identified by Senator Grassley. By having Jurisdiction only over

‘‘square conflicts,’’ S. 253 will promote uniformity of the law of the circuit, but avoids

creating a full additional layer of appeal. I must concede, however, that it is difficult

to predict exactly how the Circuit Division will operate in practice.

Question 6. The report states that one concern in dealing with the Ninth Circuit

is the need to ‘‘respect the character of the West as a distinct region.’’ However, this

region of the country is by no means homogeneous. Why are states on the west coast

so similar to other states that they need to remain in the same circuit?

Answer 6. The notion that the West has a distinct character which immunizes it

from the normal evolution of federal judicial institutions is, quite frankly, a joke on

Congress. If any American region has a distinct character, it would be the South

which now spans three circuits, the most recent split having occurred in 1980 by

carving out Alabama, Florida, and Georgia from Louisiana, Mississippi, and Texas

into the Eleventh Circuit. And while we’re at it, what about the law of the Midwest?

The Sixth, Seventh, and Eighth Circuits all include states in the Midwest, yet no

one seriously contends that having three circuits has been deleterious to the development of the law of that region.

The argument that we need to keep the circuit together so that we can retain a

consistent law for the west coast is also absurd. The states along the eastern seaboard are divided among five different circuits. I challenge critics of S. 253 to

produce evidence that the failure to keep all the states on the east coast in the same

circuit has produced deleterious effects. Are freighters colliding more frequently off

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Cape Hatteras or Long Island than the Pacific Coast because of the uncertainties

of maritime law on the East Coast? Of course not.

U.S. COURT OF APPEALS NINTH CIRCUIT,

Las Vegas, NV, August 3, 1999.

Hon. CHARLES E. GRASSLEY,

Chairman, Subcommittee on Administrative Oversights and the Courts, Committee

on the Judiciary Washington, DC.

DEAR CHUCK: I was pleased to appear before your committee and am willing to

respond to the questions you asked in subsequent correspondence.

First, you should appreciate that I do not support the proposed legislation now

pending in the Senate. I would recommend that you avoid the problem entirely by

rejecting the legislation. Nevertheless, I am willing to respond further to your inquiries.

RESPONSES OF CHARLES E. WIGGINS TO QUESTIONS FROM SENATOR GRASSLEY

Answer 1. The first suggestion is to substitute in certain classes of cases appellate

panels of two judges instead of three. You have asked me to comment on the possibility of a split between the appellate panels of two. The legislation is silent on this

possibility. I would recommend that if the appellate panels of two are provided for

in legislation, the possibility of splits must be resolved by referring the split panel

to a third judge who should participate in the proceedings. I have observed that the

Commission has proposed a reduction in size of panels for the handling of routine

cases but insists on enlarging the en banc court to provide a full review of the two

judge panel decision. I think that this is an inconsistent proposal which should be

rejected by the Senate. Nevertheless, circuits should be permitted to examine options to the traditional three judge panels in certain categories of cases. I see no

disability in their doing so now.

Answer 2. The second question raises the issue of the resolution of ‘‘clear conflict’’

by regional divisions. The proposal is not worthy of further consideration by the

Senate. It is a product of the divisional concept recommended by the White Commission. I reject that proposal in its entirety. I would predict that the resolution of

square conflicts between the divisions will unsettle the law of the circuit.

I doubt that you will accept my recommendations, Chuck, but I have given a great

deal of thought to this issue and have concluded that the Ninth Circuit is not too

large and does not need correcting. The Courts of Appeal of other circuits should

be restructured and should be combined to promote larger and fewer circuits. The

growth in population and the evident inability of Congress to limit the subject matter jurisdiction of the Courts of Appeal make the consideration of consolidation an

inevitable solution.

Warmest personal regards,

CHARLES E. WIGGINS.

RESPONSE OF JON P. JENNINGS, ACTING ASSISTANT ATTORNEY GENERAL, TO A

QUESTION FROM SENATOR GRASSLEY

Question 1. Those who support the Commission’s proposals cite a lack of

collegiality and the current en banc procedure as major problems with the Ninth

Circuit. Since you do not support the Commission’s proposals, what, if anything,

would you propose to alleviate these problems?

Answer 1. As we observed in our written testimony, the Justice Department believes that the three primary goals that the Ninth Circuit Court of Appeals strives

to achieve are consistency of its decisions, efficiency in resolving cases, and the appearance that all of its decisions reflect the views of the Court as a whole. While

collegiality may contribute to these primary goals, we do not see it as an end in

itself, nor do we see that the size of a court has an impact on the general collegiality

of the court’s membership. By the same token, we do not believe that the Ninth Circuit’s size is the cause of any lack of consistency in its decisions. Instead, we think

that the inconsistencies may stem from a failure of the Circuit to correct erroneous

or conflicting panel decisions in an effective manner. As you are aware, the Ninth

Circuit already has an en banc procedure in place to address such panel decisions.

That procedure could nevertheless be improved by making slight modifications

aimed at serving two goals: increasing the availability of en banc review and increasing the representativeness of the en banc panel itself.

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Three modifications in particular might accomplish these ends. First, reducing the

number of active judges who must vote to rehear a case en banc from the current

requirement (a majority) to some lesser number would increase the opportunities for

en banc reconsideration of panel decisions. We suggested a ‘‘4/9s’’ threshold in our

testimony, but understand that Senator Feinstein has proposed a 40 percent threshold in the Ninth Circuit Court of Appeals En Banc Procedures Act of 1999 (S. 1403).

Either proposal would be an improvement over the existing requirement. Second,

circulating opinions that distinguish or disagree with existing precedent to the Circuit judges before those opinions are published may avert the creation of conflicting

precedent or, at the very least, better alert the judges to the need for en banc review

of particular decisions. Third, increasing the number of judges who sit on the Ninth

Circuit’s en banc panel from 11 to 15 would make the Circuit’s en banc decisions

more representative because those decisions would then be more likely to reflect the

views of a majority of the Circuit’s 28 active judges. As the most frequent litigator

in the federal courts of appeals, the Justice Department is committed to working

with this Subcommittee and the Ninth Circuit to improve the quality and consistency of decisions in that Circuit.

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ADDITIONAL SUBMISSIONS FOR THE RECORD

LOS ANGELES COUNTY BAR ASSOCIATION,

Los Angeles, CA, April 14, 1999.

Re: Senate Bill 253—Federal Ninth Circuit Reorganization Act of 1999

Hon. DIANNE FEINSTEIN,

U.S. Senate, Hart Senate Office Bldg., Washington, DC.

DEAR SENATOR FEINSTEIN: We are writing to express our concerns over and opposition to the restructuring of the Ninth Circuit, as proposed in Senate Bill 253 (‘‘S.

253’’). As set forth below and in the enclosed analysis, we have seen no reliable evidence or data justifying the unprecedented and problematic structural changes proposed by the pending legislation.

Some twenty-five years ago, the Hruska Commission cautioned that any realignment of courts of appeal should proceed with me: ‘‘[T]he present [circuit] boundaries

* * * have stood since the nineteenth century. * * * Except for the most compelling

reasons, we are reluctant to disturb institutions which have acquired not only the

respect but also the loyalty of their constituents.’’ Commission on Revision of the

Federal Court Appellate System, The Geographic Boundaries of the Several Judicial

Circuits: Recommendations for Change (Dec. 1973), reprinted in, 62 F.R.D. 223, 228

(1973). These sentiments were echoed more recently in the United States Judicial

Council’s Long Range Plan for Federal Courts (1995): ‘‘’Circuit restructuring should

occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and

coherent, consistent circuit law in the face of increasing workload.’’ Id. at 44.

Proponents of the reorganization of this Circuit have identified no compelling evidence that the current structure and performance of the Ninth Circuit satisfies the

requisite high standards justifying change. We thus were heartened to see that the

report of the Commission on Structural Alternatives (the ‘‘White Commission’’) embraced these conclusions and that the pending legislation does not seek a division

of this Circuit. Indeed, the White Commission’s analysis of the more frequently proposed options for splitting the Ninth Circuit amply demonstrates the problems associated with any attempt to disturb an appellate court that is operating reasonably

well.

While S. 253 does not propose, a split of the Ninth Circuit, it does adopt the

White Commission’s recommendation that the Circuit be reorganized into three ‘‘divisions’’ staffed by judges located both within and outside that division, that the

state of California be split among two divisions (thereby subjecting litigants in the

state to potentially conflicting interpretations of state law and encouraging problematic forum shopping), and that significant cases raising far reaching issues of law

be resolved by newly created ‘‘division en banc courts,’’ with Circuit wide en banc

adjudication limited to cases. involving inter-divisional conflicts. It is our firm belief

that this proposed restructuring of the Circuit is ill advised and would create a

great many more problems than it solves. Our view is premised on the conclusions

and concerns set forth in the attached analysis.

Practitioners have been well served over the years by the existence of an independent and high caliber federal appellate system that has worked to minimize the

incidence of unwarranted, disparate interpretations of law. Any determination that

the Ninth Circuit, or any other court of appeal, requires restructuring should result

from the presentation of data and evidence establishing compelling reasons to

change the status quo, and riot from any particular political or ideological agenda.

While we applaud the White Commission’s opposition to the split of the Ninth Circuit and its willingness to consider creative vehicles for improving the operation of

our courts of appeals, we question the wisdom of the proposed statutorily mandated

creation or divisions. This de facto split of the Ninth Circuit will require the Circuit

to implement an unprecedented structure that has grave implications for businesses

and litigants in California and throughout the Circuit. In lieu of this unworkable

proposal, we urge Congress to allow the Circuit the flexibility and opportunity to

continue to experiment with innovative reforms designed to improve the operations

of this and other federal appellate courts in the coming years.

We greatly appreciate your consideration of our views on this important issue and

welcome the opportunity to provide any further information that may be of assistance.

Very truly yours,

LEE SMALLEY EDMON, THERESE M. STEWART,

159

President, Los Angeles County Bar

Association.

President, Bar Association of San

Francisco.

TODD F. STEVENS, LINDA WIGHT MAZUR,

President, San Diego County Bar

Association.

President, Beverly Hills Bar Association.

JAMES I. FISHER, GEORGE M. DUFF, III,

President, Alameda County Bar

Association.

President, Federal Bar Association,

Northern District of California

Chapter.

THOMAS E. HOLLIDAY, JULIE MCCOY AKINS,

President, Federal Bar Association, Los

Angeles Chapter.

President-Elect, Federal Bar Association,

Orange County Chapter.

JONATHAN R. IVY, KATEESA CHARLES DAVIS,

President, John M. Langston Bar

Association.

President, Women Lawyers Association of

Los Angeles, Inc.

LINDA S. PETERSON, PAULA TESKE,

President, Women Lawyers Association of

Los Angeles,

Co-President, LHR: The Lesbian Gay Bar

Association.

HUGH BIELE,

Co-President, LHR: The Lesbian and Gay

Bar Association.

LOS ANGELES COUNTY BAR ASSOCIATION,

Los Angeles, CA, April 16, 1999.

Re: Senate Bill 253

Hon. DIANNE FEINSTEIN,

U.S. Senate, Hart Senate Office Bldg., Washington DC.

DEAR SENATOR FEINSTEIN: I am writing in response to your letter of March 10,

1999, soliciting input from the Los Angeles County Bar Association on pending legislation that seeks to restructure the Ninth Circuit Court of Appeals. As the largest

voluntary bar organization in the Circuit; our Association has, followed this issue

with great interest and, based on the views and experiences, of our members, has

grave concerns about the unprecedented proposed divisional reorganization of the

Ninth Circuit. Our view that a divisional arrangement would create a great many

more problems than it solves is shared by over a dozen other bar associations located throughout California.

This Association and the many other bar organizations joining in the enclosed

analysis wholeheartedly agree with your observation that the proposed split of California among divisions would be troublesome, especially for practitioners and businesses who practice in this state. Our opposition to the suggested split of the Circuit

into divisions does not, however, stem solely from the proposed placement of California in two different divisions. Rather, the attached analysis reflects our fundamental disagreement with the notion that the Circuit would benefit from a divisional

structure.

Even if California were placed in a single division, the proposed divisional structure would create a cumbersome, inefficient, and problematic system for the handling of appeals that would adversely impact the administration of justice in this

Circuit. Isolating California in a single division not only would fail to address the

many problems posed by a divisional structure (as discussed in greater detail in the

attached analysis), but also would implicate other concerns. Indeed, we question

what benefits would be gained from the formation within the Circuit of a division

of the size that would be needed to handle the immense appellate caseload arising

from California’s appeals. Moreover, we worry that this divisional arrangement

could serve as a precursor for a California-only Circuit—a structure that would deprive the state of the advantage associated with decisionmaking by geographically

diverse Courts of Appeal. Additionally, the isolation of our state over time could lead

to difficulties in obtaining the funding and support needed to staff the increasing

appellate load associated with the heavy volume of litigation arising in

* * * * * * *

In sum, this Association, as well as the other bar groups who join in the attached

analysis, view a divisional arrangement for this or any other Circuit as generally

unacceptable, whether or not California is split among divisions. As such, we would

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not favor the proposed alternative divisional configuration set forth in your March

10 letter.

We greatly appreciate your willingness to consider the views of the organized bar

on the pending legislation and would be happy to discuss this issue of tremendous

import to attorneys in our Circuit with you further should you have any additional

questions.

Sincerely yours,

LEE SMALLEY EDMON,

President, Los Angeles County Bar Association.

[EDITOR’S NOTE: The completed material was not available at presstime.]

GOVERNOR OF THE STATE OF CALIFORNIA,

April 15, 1999.

Re: Senate Bill 253

The Honorable ORRIN HATCH,

U.S. Senate, Russell Building, Washington, DC.

DEAR ORRIN: I wish to register my opposition to Senate Bill 253, which would divide the Ninth Circuit into three regional divisions and split California in half. Unfortunately, I believe that the bill would promote forum shopping and foster confusion over the application of federal law in California, impacting litigation ranging

from admiralty to the decennial redistricting of California.

I have written to you previously regarding my concerns over proposals to split the

Ninth Circuit. In my view, these proposals did nothing to address the rising caseload per judge (but would merely divide the existing judges between two circuits)

and amounted to no more than judicial gerrymandering: Limiting the judges from

other western states who would hear California cases and vice-versa. This bill does

the same, and is worse because it would divide the West Coast into not two but

three segments, each with its own precedents not binding on the other regions, and

would add another layer of judicial review to appellate proceedings, adding delay

and expense to adjudications.

My principal objections are as follows:

1. INCREASED UNPREDICTABILITY OF THE LAW IN CALIFORNIA AND THE WEST COAST

The bill would split the Ninth Circuit into three regional divisions, splitting California in the process. Under the bill, ‘‘[t]he decisions of 1 regional division [would]

not be regarded as binding precedents in the other regional divisions.’’ (S. 253, sec.

2(b)(5).)

Thus, these three divisions—each with their separate jurisprudence—would subject the West Coast—and California—to differing interpretations of the law. For instance, a regional division’s determination that a California law was unconstitutional would not bind another region that covered another part of California. This

would make the law on the West Coast inconsistent and unpredictable.

2. ENCOURAGEMENT OF FORUM SHOPPING

The regional spilt would also encourage forum shopping, particularly in connection with constitutional challenges to state laws and statewide initiatives, as litigants searched for the appellate division that most favored their case.

3. parochialism

While the new northern division of the Ninth Circuit would be composed of five

states (Alaska, Idaho, Montana, Oregon, and Washington), the new southern division would be composed of only one and one-half states (Arizona and half of California), which would lack the balance and objectivity that geographical diversity in a

multi-state circuit fosters. The Hruska Commission in 1973 concluded that a judicial

circuit should be ‘‘composed of at least three states’’ and that ‘‘circuits should contain states with a diversity of population, legal, business and socioeconomic interests.’’ For this reason, making California a part of a region composed of one and

one-half states—or making California a single regional division—would deprive

California of the objectivity that a multi-state federal circuit is designed to foster.

(And amending the bill to make California a single regional division would achieve

none of the purported objectives of the bill, since California accounts for over 60 percent of the Ninth Circuit’s caseload.)

4. MORE DELAYS AND COSTS

The bill would create another appellate layer: a new Circuit Division composed

of 13 judges, which could review any final decision rendered in any of the circuit’s

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divisions that ‘‘conflict on an issue of law with a decision in another division of the

circuit’’ (S. 253, sec. 2(c)), but only if ‘‘en banc review of the decision has been sought

and denied by the division.’’

This adds a fifth layer to the current four levels of trial and appellate proceedings:

(a) the district court adjudication; (b) the appeal before a three-judge panel; (c) the

request for hearing en banc; (d) the request for review by the Circuit Division; and

(e) the request for review by the United States Supreme Court.

Moreover, not only does the Circuit Division add another layer of review but its

jurisdiction over ‘‘conflicting’’ decisions is too narrow to promote a coherent jurisprudence within Ninth Circuit: It would only review decisions which conflict another

division of the court, but would not review decisions that were merely erroneous or

which conflict with another circuit’s decision. And since the judicial composition of

the Circuit Division will change at regular intervals, even the resolution of conflicting cases will not be given consistent treatment.

I submit that reform of the appellate courts’ en banc procedures (e.g., amending

them to police errant decisions by permitting, but not requiring, en banc review of

any erroneous decision) would better promote more consistent decisions within a circuit. At present, an appellate court is authorized to grant en banc review only to

secure uniformity of its decisions or where ‘‘the proceeding involves a question of

exceptional importance.’’ (Fed. R. App. Pro. 35)

I recognize, Orrin, that this bill seeks to implement the recommendations of the

Commission of Structural Alternatives for the Federal Court of Appeals, but I note

that the Commission’s recommendations is itself inconsistent with its primary conclusions, including the following:

1. The Commission states: ‘‘Having a single court interpret and apply federal law

in the western United States, particularly in federal commercial and maritime

laws that govern relations with the other nations on the Pacific Rim, is a strength

of the circuit that should be maintained.’’ Yet, under the bill, the Ninth Circuit

is divided into three regions, and each region’s decisions do not bind the other regions.

2. The Commission found: ‘‘Any realignment of circuits would deprive the west

coast of a mechanism for obtaining a consistent body of federal appellate law, and

of the practical advantages of the Ninth Circuit administrative structure.’’ Yet,

this bill deprives the west coast of a consistent body of federal appellate law. A

transaction in San Francisco will not be governed by the Appellate law in Los Angeles, and neither will be bound by the appellate law applicable to Oregon and

Washington.

3. The Commission observed: ‘‘There is no persuasive evidence that the Ninth Circuit * * * is not working effectively, or that creating new circuits will improve

the administration of justice in any circuit or overall.’’ Does this absence of evidence not argue against dividing the Ninth Circuit into three autonomous regions?’’

4. The Commission exclaims: There is one principle that we regard as

undebatable: It is wrong to realign circuits * * * because of particular federal decisions or particular judges.’’ But judicial gerrymandering is what the bill would

achieve.

Indeed, the bill is in direct conflict with each of these conclusions. While this bill

may be motivated, in part, by concerns over certain Ninth Circuit decisions, gerrymandering the circuit to cordon off certain judges will only deprive the west coast

of the benefit of the objectivity that a broader geographical diversity necessarily engenders.

It will confuse the law, harm the interest of California, and promote forum shopping. I urge you to defeat this bill.

Very truly yours,

GOVERNOR PETE WILSON.

THE STATE BAR OF CALIFORNIA,

San Francisco, CA, May 17, 1999.

Re: Senate Bill 253—Federal Ninth Circuit Reorganization Act of 1999

The Honorable DIANNE FEINSTEIN,

Hart Senate Office Building, Washington, DC.

DEAR SENATOR FEINSTEIN: On behalf of the State Bar of California, I am writing

to reaffirm our opposition to the proposed restructuring of the United States Court

of Appeals for the Ninth Circuit. The creation of three autonomous regional adjuVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00165 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
162

dicative divisions would not only divide California, it would impair the development

of consistent circuit law, add an additional level of appeal and provoke attendant

delay and expense, eliminate the present participation of all judges circuit-wide in

resolving circuit law, and preclude the Ninth Circuit from effectively conducting its

ongoing reevaluation and experimentation with innovations leading to greater efficiency and effectiveness.

The Commission on Structural Alternatives for the Federal Courts of Appeals

rightly and strongly recommended that the Ninth Circuit not be split. However, it

undermined that recommendation with an unfounded proposal for three adjudicative divisions. That proposal is opposed by lawyers throughout California, as evidenced, for example, by the letter of April 14, 1999 to you, and accompanying analysis, on behalf of the Los Angeles County Bar Association, the Bar Association of San

Francisco, the San Diego County Bar Association, the Beverly Hills Bar Association,

the Alameda County Bar Association, the Federal Bar Association (Northern District of California, Los Angeles, and Orange County chapters), the John M. Langston

Bar Association, the Black Women Lawyers Association of Los Angeles, Inc., the

Women Lawyers of Los Angeles, and The Lesbian and Gay Bar Association.

The United States Department of Justice vigorously opposed divisional restructuring and stated ‘‘that proposal would have potentially adverse repercussions for the

administration of justice in the Ninth Circuit and, ultimately, across all federal

courts of appeal.’’ Similar opposition was expressed by the Federal Bar Association,

the Association of the Bar of the City of New York, and the Chicago Council of Lawyers and many other organizations and individuals.

We urge your continued opposition to the Commission’s misguided proposal and

S. 253 and any similar rider or bill.

Sincerely,

RAYMOND C. MARSHALL,

President.

STATE CAPITAL,

Sacramento, CA, July 7, 1999.

Re: S. 253 (Federal Ninth Circuit Reorganization Act of 1999)

The Honorable DIANNE FEINSTEIN,

U.S. Senate, New Senate Office Building, Washington, DC.

DEAR SENATOR FEINSTEIN: I urge you to oppose Senate Bill 253. This proposed

legislation to drastically reorganize the United States Court of Appeals for the

Ninth Circuit is unwarranted, unwise and detrimental to the interest of California.

The legislation would subdivide the appellate function of the Ninth Circuit into

three semi-autonomous regional divisions and split the State of California in half.

The northern part of the State would be placed in one division and the southern

part of the State, in another division. The courts rulings in one division would not

be binding in the other division.

I find this proposal to split the State alarming. Not only is the proposal untried

and unproven, it creates a separation between Northern and Southern California

that is inimical to what I am attempting to accomplish as Governor. We need to

bring our people together and de-emphasize our differences. Senate Bill 253 does

just the opposite.

Furthermore, splitting California between two divisions would likely result in inconsistent federal ruling’s on important California laws—one ruling covering the

north and a different ruling covering the south. As a result, businesses operating

in California would be subject to conflicting state laws, making it more costly to do

business in California.

The proposed legislation is also likely to foster more disputes and more litigation.

For example, if a state law were found unconstitutional in the division covering

Northern California, the decision would be binding only in that part of the State,

leaving us with a law that is valid in the south and invalid in the north. While Senate Bill 253 creates a Circuit Division to resolve conflicts between divisions, that

body is powerless to do anything until such time as an inconsistent decision is rendered by the division covering Southern California. Thus, it will be necessary to file

a second suit in the Southern Division to achieve uniformity in the law.

The legislation will also promote forum shopping in the State. We can expect a

litigant who operates throughout the State to bring its lawsuit in a division that

is perceived to be more friendly to the litigant’s Interest. Similarly, if a party gets

a bad result in one division, we can also foresee that the party will bring a lawsuit

in the other division in an effort to get a better result.

163

In addition, the method proposed in the legislation to resolve conflicting rulings

among the divisions is costly and burdensome and will delay the administration of

justice. A litigant who is dissatisfied with a division’s ruling and who believes that

the ruling conflicts with a ruling in another division is required to take two additional steps. First, the litigant must request an en banc determination of the ruling

by the judges in the division. Following such determination (or denial of the request

for en banc hearing), the litigant must then seek a determination by the Circuit Division. Whether or not to grant a hearing is within the discretion of the Circuit Division.

At a time when litigation is altogether too expensive and time consuming for California residents and businesses, we should be seeking ways to simplify the resolution of conflicts, not add to the complexity of the process. The proposed legislation

would add a burden to Californians and citizens of other states within the Ninth

Circuit that is not borne by litigants in the rest of the country.

We should also be extremely cautious in changing the structure of government

without compelling reasons for doing so, particularly when the structure has endured for many years. Here, the case for splitting California has not been made. Indeed, the White Commission acknowledged in its report that there is no persuasive

evidence that the Ninth Circuit (or any other circuit, for that matter) is not working

effectively * * *.’’

I must emphasize that this is not a partisan issue. Former Governor Pete Wilson

recently sent a letter to Senator Orrin Hatch registering his opposition to Senate

Bill 253 because ‘‘the bill would promote forum shopping and foster confusion over

the application of federal law in California, impacting litigation ranging from admiralty to the decennial redistricting of California.’’

Uniformity, stability and predictability of federal and state law are the foundation

blocks of an orderly and healthy government and economy. The new and untested

proposed structure for the Ninth Circuit would by its very design, undermine those

key values and jeopardize our citizens’ faith and confidence in the judicial process.

I urge you to reject this legislation as not being in the best interests of the citizens

of California.

Sincerely.

GRAY DAVIS.

U.S. COURT OF APPEALS NINTH CIRCUIT,

San Francisco, CA, July 21, 1999.

The Honorable CHARLES E. GRASSLEY,

Chair, Subcommittee on Administration Oversight and the Courts, U.S. Senate, Hart

Senate Office Building, Washington, DC.

DEAR SENATOR GRASSLEY: I submit this letter with the request that it be included

in the record of the hearing scheduled for July 16, 1999 before the Subcommittee

on Administrative Oversight and the Courts on the ‘‘Review of the Report by the

Commission on Structural Alternatives for the Federal Courts of Appeals regarding

the Ninth Circuit and S. 253, the Ninth Circuit Reorganization Act.’’

Chief Judge Hug will testify at the hearing and has submitted a written statement which incorporates a full and careful analysis of the White Commission Report, and hence of the problems raised by S. 253. I agree with Chief Judge Hug’s

analysis.

As Chief Judge Hug points out, the Commission Report strongly recommends that

the Ninth Circuit not be split because there is no persuasive evidence that the

Ninth Circuit is not working effectively, and restructuring the Ninth Circuit would

entail substantial costs.

The Commission’s second major recommendation (that the adjudicative functions

of the Ninth Circuit Court of Appeals be divided among three essentially independent divisions) offers a solution to a problem that does not exist. The Commission

Report repeatedly states that there is no empirical evidence and no substantial

basis for a subjective opinion, that the Ninth Circuit and its Court of Appeals are

not functioning effectively. The Commission nonetheless recommends the immediate

and radical alteration of time-tested adjudicative procedures of the Court of Appeals

with no evidence that the court is not operating effectively. The Commission’s position is directly contrary to the conclusion reached in three prior surveys of the federal court system and, perhaps more significantly, to the policy adopted by the Judicial Conference of the United States only a few years ago that major restructuring

should not be considered unless compelling empirical evidence demonstrates the inability of a court to operate efficiently. That policy is based upon good common

sense.

164

The Court of Appeals for the Ninth Circuit decides approximately 1⁄6th of all federal appellate litigation in our country. The Commission acknowledges that there

is no evidence that the size of the court or the load it carries justifies the major

restructuring the Commission proposes. If nothing else is clear, it is absolutely certain that the proposed restructuring is radical, inevitably disruptive, and permanent. If the proposed, untested system does not work, the circuit will divide along

the lines underlying the Commission’s proposed adjudicatory divisions.

The Commission looks not to the present situation but to the future, and rests

its case upon the major premise that the Court of Appeals for the Ninth Circuit will

become too large and its inevitable growth will prevent it from handling efficiently

the workload that will develop. The Commission sets out a pattern it hopes will provide the model for the new federal court system.

There is no evidence, none, to support the Commission’s thesis.

The Commission concedes that there is no evidence that the Court of Appeals for

the Ninth Circuit is not operating effectively, except in a few minor and easily corrected respects. There is no evidence that it will become ‘‘too big’’ to continue to do

so. The truth is that no one knows the optimal number of judges for a Court of Appeals. When our court grew from 3 to 7 in 1937, critics worried ‘‘that a court of

seven members with a wide range of ideological and jurisprudential viewpoints

could not provide justice across the circuit’s massive geographical jurisdiction.’’ As

the circuit grew from 7 to 9, 9 to 13, 13 to 23, and 23 to 28, critics assured the

world that the court had exceeded its maximum practicable size before the new

judges arrived. They were always wrong.

Professor Charles Allen Wright has written that when he clerked in the Second

Circuit in 1949 and 1950 , ‘‘it seemed perfectly clear that the maximum number of

judges a court of appeals could have without impairing its efficiency was six’’ the

number of judges then on the Second Circuit. As Professor Wright said later ‘‘in

1950 when we made these comments we were illustrating in striking fashion

deToqueville’s admonition against confusing the familiar with the necessary.’’

The predictions of the Judicial Conference have been no better. In 1964 the Conferees adopted the position that the maximum number of judges on a court of appeals was 9. Eight years later it drew the line at 15. In 1977 Chief Justice Burger

suggested, as the Conference had, that the magic number was 9—the size of his District of Columbia Court of Appeals. He stated ‘‘by any measurement of logic, reason,

or standards of judicial administration, the Ninth Circuit cannot function effectively

as one unit with 13 circuit judges.’’ Today every circuit other than the First Circuit

has a court of appeals of 11 or more. I predict that the Commission will turn out

to be just another in this long line of unreliable prophets.

Unless and until those who propose splitting this or any other court are required

to demonstrate that in fact, not simply in theory, the court has exceeded the number

of judges that will permit it to operate effectively, unsound predictions of calamity

and the senseless destruction of valuable institutions will persist.

It is significant but a little frightening to realize that by the Commission’s own

admission, one of the principal bases for its conclusion that the Court of Appeals

for the Ninth Circuit is or soon will be too large is a survey of circuit judges across

the country in which the majority expressed the opinion that the optimal size of a

court of appeals was between 11 and 17. Nowhere does the Commission mention the

fact that 2⁄3 of the judges and lawyers of the Ninth Circuit are satisfied that the

present court of appeals is functioning well with 28 judges, and ought to be left

alone.

One of the many problems with the Commission’s report and the statute that

would implement it, is that they impose their preferred procedure draconianly. The

system they propose must be in place within 6 months of enactment, and is to be

permanent—a provision to terminate the divisional system after seven years was

eliminated in the final report.

The possible minor problems the Commission saw in the way in which the Court

of Appeals for the Ninth Circuit is presently operating can be, should be, and are

being corrected by the Court itself, in accordance with its long continued practice

of periodic reexamination and improvement of its own procedures. Chief Judge Hug

has appointed a committee of judges, lawyers and academics which, with our Rules

committee of experienced practicing lawyers, is charged with examining possible

problems and dealing with them. The first proposal, already implemented, is to recognize at least some legitimacy in the argument for regionalization by providing

that an appeal to any of the three divisions of the Court will be heard by a panel

that includes at least one judge from that division—if there is something in the local

air or local mores that really affects the case, the panel will have the benefit of it.

I will admit to some misgivings based upon my own notion that federalism is a difficult concept to maintain at best and we must be rareful of any move in the direcVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00168 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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tion of substituting local points of view for national law. In any event, the committee is examining regional calendaring, monitoring opinions to assure consistency

with circuit law, changes in the present en banc process, reducing our backlog, and

what we can do, if anything, to further reduce our reversal rate in the Supreme

Court.

Finally, I would like to comment on a recent proposal to avoid the conflicts that

will inevitably arise if California is divided between two or more divisions as proposed by the Commission. The new proposal is that California be made the sole

state in one of the three adjudicative divisions. There is no empirical evidence justifying this suggestion, just as there is none supporting the other restructuring proposals advanced by the Commission. Virtually all of the objections to the Commission’s restructuring proposals generally apply to this one as well. All the arguments

previously discussed regarding the cost and disruption that would inevitably result

from the Commission’s plan are equally applicable. Appeals, for example, would be

just as complicated, costly, time-consuming and ineffective. Even the problem of conflicts within the circuit over questions of federal law would remain. The problems

are well summarized in the Los Angeles County Bar Association’s letter to Senator

Feinstein dated April 16, 1999, which has been submitted for inclusion in this

record.

The proposed California division would also suffer from a serious imbalance between judges and cases. California as a separate unit would have half of the federal

judgeships in the circuit to deal with 2⁄3 of the circuit’s appeals. In a very real sense,

California is the root of the whole controversy. Much of the pressure for circuit division arises from animosity toward California based upon its size and dominance. A

‘‘bash California’’ attitude is common in other states—no state wants to be alone

with a giant. Isolating California in a single adjudicatory division would tend to

focus this negative feeling with its negative consequences on California itself. The

remainder of the circuit would suffer as well; losing the perspective of California’s

unique position within the western region would diminish the circuit’s capacity to

develop and maintain national law—the federalizing function that is central to the

concept of regional courts of appeals. As presently constituted, the Ninth Circuit

serves that function well. Virtually all of the conflicts that tend to pull our nation

apart are represented in one part of the Ninth Circuit or another. Judges drawn

from all parts, sitting on common panels in the decision of cases, provide a powerful

instrument for finding the accommodations that keep the national law alive and

well. Moreover, I think everyone, especially the proponents, realize the suggested

arrangement is almost inevitably a precursor to a division of the circuit, a result

strongly opposed by the Commission itself.

I respectfully suggest S. 253 should be rejected.

Sincerely,

JAMES R. BROWNING.

CROSBY, HEAFEY, ROACH & MAY,

San Francisco, CA, July 13, 1999.

Re: S. 253 (Ninth Circuit Reorganization Act)

Hon. CHARLES E. GRASSLEY,

Chair, Subcommittee on Administrative Oversight and the Courts, U.S. Congress,

Hart Senate Office Bldg., Washington, DC.

DEAR SENATOR GRASSLEY: I would like to register my opposition to S. 253 (The

Ninth Circuit Reorganization Act), and urge you not to restructure the Ninth Circuit

Court of Appeals. I am an appellate lawyer who has handled appeals almost exclusively for the last 25 years and thus have appeared in many appellate courts, including the Ninth Circuit. I was recently elected as President-Elect of the American

Academy of Appellate Lawyers and am a Past President of the California Academy

of Appellate lawyers—both of these organizations are composed of experienced appellate lawyers. I am past chair of the Ninth Circuit Advisory Committee on Rules

and Internal Operating Procedures, which is responsible for recommending revisions

and drafting Ninth Circuit rules and internal operating practices. I have also been

a consultant to the National Center on State Courts on appellate court issues, where

I looked at the procedures and performances of many states appellate courts. I am

also a member of the California Appellate Process Task Force which is studying all

aspects of California’s intermediate appellate courts. I do not speak here for any of

these organizations, and the views I am expressing below are entirely my own. However, I thought that, as you consider my opinions, you should know a little about

my background.

166

S. 253 tracks the final report of the Commission on Structural Alternatives for

the Federal Courts of Appeals. My comments therefore address that report. Perhaps

the most significant of the Commission’s conclusions is that there is no basis to split

the Ninth or any other circuit. It is essential that Congress recognize that splitting

circuits is not a viable way to deal with circuit court growth or help the circuits

move forward into the next century. I applaud the Commission’s conclusion on that

point. On the other hand, it is disappointing that the Commission accepted the notion, by recommending the creation of autonomous divisions within the Ninth Circuit, that federal circuit courts should be perceived as local tribunals, where primarily judges who reside in that geographical area hear cases in that region.

We should be striving to make federal courts, including appellate courts, faster,

cheaper and more uniform in their decisions. This bill creating semi-autonomous

local courts goes in the wrong direction on all counts. The added layers of en banc

review are likely to add delay and cost to the appellate process. And splintering the

circuit into three rigid divisions with none of them (as well as the district courts

in them) bound by the decisions of either of the other two, virtually guarantees less

uniformity and greater conflict than we have now.

Why create drastic and permanent structural changes in the Court? In my view,

neither the Commission nor anyone else has demonstrated serious deficiencies in

the Ninth Circuit that would require the unique structural changes that S. 253

would mandate. It appears that the proposed structural changes are based on the

perceptions of a few rather than on hard data that show serious problems in the

current structure.

There is always room for improving any of the federal courts. My own experience,

however, is that the Ninth Circuit operates about as well on all levels as any other

appellate court that I have appeared before or whose operations I know about. In

fact, one of the distinguishing features of this Court is its willingness to listen to

constructive suggestions and make procedural changes to improve its processes. It

is far and away the best appellate court I know of in that regard. I urge Congress

not to mandate structural changes based on the skimpy perceptional and anecdotal

feelings of a few. Those feelings are not a sufficient basis to make fundamental

changes, particularly when those changes threaten to take us in the wrong direction

on the important issues of delay, cost uniformity of decisions.

Sincerely,

PETER W. DAVIS.

STATE OF ALASKA,

OFFICE OF THE GOVERNOR,

Juneau, AK, July 13, 1999.

The Honorable CHARLES GRASSLEY,

Chairman, Senate Judiciary Subcommittee on Administrative Oversight and the

Courts, U.S. Senate, Hart Senate Office Building, Washington, DC.

DEAR SENATOR GRASSLEY: I write this letter to voice strong support and urge approval of S. 253. I appreciate your consideration of S. 253 to adopt the recommendations of the Commission on Structural Alternatives for the Federal Courts as they

affect the Ninth Circuit Court of Appeals. I also would like to reiterate the state’s

suggestions to modify the commission’s recommendations that we submitted to the

commission last year.

Alaskans have long observed that the Ninth Circuit is the largest in the nation,

both in territory and population. It spans nine states and two territories, serving

a population of more than 45 million Americans and spanning a land area larger

in size than Western Europe. It serves 15 million more people than the next largest

circuit and about 20 million more people than the average population served by

other courts of appeals.

The Ninth Circuit has told the Senate Judiciary Committee it takes four months

longer to complete an appeal in the Ninth Circuit as compared to the median length

of time nationally. Its annual caseload has grown from 2,300 filings to more than

8,000 filings since 1973. However, Alaska’s caseloads constituted only two percent

of the court’s caseload in 1997. Only 12 circuit judges were assigned to all the Alaska cases published in 1997.

Given the relatively few Alaska cases compared to the whole, litigants in Alaska

are far less likely than litigants in the heavily populated states to draw panels with

judges who are familiar with Alaska. This is aggravated by the fact that Alaska

cases often involve complex federal statutes the judges do not encounter in the other

98 percent of the court’s caseload, the Alaska Native Claims Settlement Act

(ANCSA), and the Alaska National Interest Lands Conservation Act (ANILCA).

167

These statutes apply only to Alaska, so the issues they generate—which have totaled more than 100 cases in the Ninth Circuit over the past 20 years—arise only

in Alaska cases. The issues these cases address have varied tremendously, from the

interpretation of revenue-sharing provisions to the question of extinguishment of Indian country. Each case required an understanding of the history, purposes, and

context of complex legislation. Despite the court’s myriad decisions involving

ANCSA and ANILCA, Alaska litigants raising claims under these statutes are highly unlikely to be assigned a panel of judges with a depth of understanding of these

federal laws because of the large number of circuit, senior, and visiting judges.

The Commission on Structural Alternatives agreed that there are problems regarding the Ninth Circuit’s operations and recommended that the Circuit be split

into three adjudicative divisions. S. 253 implements this and other pertinent commission recommendations. We ask that the following amendments which would be

beneficial to Alaska be made prior to passage of S. 253:

• The provision for a circuit division should be eliminated. The proposed circuit

division permits non-regional judges to preponderate the northern perspective.

Judges lacking adequate knowledge about an enormous area like Alaska do a

disservice to the citizens of the state in applying federal law here. In general,

appellate courts are regional courts, and for the overwhelming majority of cases,

are the courts of last resort. For those cases from Alaska that conflict with cases

from the central or southern division of the Ninth Circuit, however, the northern division will not be permitted to act as the regional court of last resort. The

circuit division will step in and essentially act as a quasi-Supreme Court, with

a southwestern rather than a national viewpoint. The effect would be as though

one circuit stepped in to clarify the law for another. This is the job of the Supreme Court, not that of a different regional court. For the few cases that conflict with cases from another division, litigants should be able to petition the

Supreme Court directly without going through the extra layer that the circuit

division would create. The existence of a circuit division also seems likely to

prompt forum shopping among the divisions. Litigants unhappy with the holding of a particular case will be motivated to bring subsequent cases raising the

same issue in a different division, thus creating the opportunity to convince the

circuit division to overrule the undesirable precedent.

• S. 253 should require that judges reside within the division they serve. The residency requirement for only a ‘‘majority of judges’’ would continue to produce

some panels with a minority of the judges residing in the northern division.

Therefore judges from the southwest United States still could determine the

outcome of cases in the northern district. The current residential distribution

of the court might necessitate that some judges sit outside the division of their

residence initially, but new appointments to the circuit should be required to

reside in the division with the opening. Alternatively, the bill could simply proclaim a ten-year transitional period before all judges would be required to live

within their division of assignment. Presumably the non-residential judges

could be reassigned to their own districts within this time, as vacancies open.

Thank you for your consideration of our views. Should you need further information, please contact John Katz in my Washington, D.C., office.

Sincerely,

TONY KNOWLES,

Governor.

U.S. DISTRICT COURT,

DISTRICT OF OREGON,

Portland, OR, July 13, 1999.

Re: S. 253 Hearing—July 16, 1999

Senator CHARLES E. GRASSLEY,

Senate Hart Office Building, Washington, DC.

DEAR SENATOR GRASSLEY: I am authorized to represent to you that a strong majority of the District Court Judges in the District of Oregon are in favor of an actual

split of the Ninth Circuit.

We do agree with our Chief Procter Hug, whom we greatly admire, that the bill

before you, S. 253, is flawed. As you know, it would create three ‘‘adjudicative divisions’’ rather than create one or more additional circuits.

The Commission’s detailed report certainly justifies the creation of new circuits

while the adjudicative division appears to be an interim costly compromise.

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The adjudicative divisions suggested by the Commission are logical divisions for

what has long been discussed as the ‘‘three way split.’’ That is, the creation of two

additional circuits.

It seems to us to be far more logical to create two additional circuits rather than

‘‘adjudicative divisions’’ which have drawn such criticism.

Very truly yours,

JAMES A. REDDEN.

SUNRISE RESEARCH,

Washington, DC, July 15, 1999.

The Honorable CHARLES E. GRASSLEY,

Judiciary Subcommittee on Administrative Oversight and the Courts, U.S. Senate,

Senate Hart Office Building, Washington, DC.

DEAR MR. CHAIRMAN: Based upon almost a half century of public service, both in

the State of Oregon and in the United States Senate, I have become more and more

aware of the need to bring problems down to a manageable size so that we might

best serve our areas.

The current Ninth Circuit Court of Appeals is too big to perform that function.

You are well aware of the population in the Ninth Circuit, its caseload, and other

easily accessible details involving the demographics of that circuit. By any measure,

it is too big. Because of its very bigness, it is unwieldy and inconsistent.

I, therefore, strongly support S. 253 that would divide the Ninth Circuit into three

regional divisions. While I might prefer actually separate circuits, I am well aware

of the opposition to that option. The divisions, therefore, that Senator Murkowski

has proposed in S. 253 is a ‘‘happy compromise.’’

Over the years I have known many of the judges on the Ninth Circuit. Some of

them I had a modest hand in appointing. Without exception, those that I have

known personally have indicated to me that the current court, because of its size,

simply doesn’t function as well as a court should function.

I, therefore, hope that you will not only give serious consideration to S. 253, but

will report it out from your subcommittee with a favorable recommendation.

Sincerely,

BOB PACKWOOD.

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT,

Pittsburgh, PA, July 30, 1999.

Senator CHARLES E. GRASSLEY,

U.S. Senate, Chairman, Senate Judiciary Subcommittee on Administrative Oversight

and the Courts, Senate Hart Office Building Washington, DC.

DEAR SENATOR GRASSLEY: I have noted in news reports that the Subcommittee

on Administrative Oversight and the Courts, which you chair, has begun consideration of the proposed reorganization of the Ninth Circuit. As you may recall from

our meetings of the Federal Courts Study Committee, some ideas on restructuring

the courts of appeals were discussed then.

The Report of the Commission on Structural Alternatives for the Federal Courts

of Appeals contains some novel recommendations that are worthy of serious consideration. The suggestions for establishing divisions within the Ninth Circuit offer an

unusual opportunity to test the feasibility of reorganization on a national basis.

I thought you might have some interest in comments of mine which I am submitting to the Journal of Law & Politics (University of Virginia School of Law) for their

forthcoming issue devoted to the subject. I have enclosed an advance copy for your

perusal.

I often think back to the interesting days when the Federal Courts Study Committee was engaged in its work. I particularly recall with pleasure associating with you

and your staff members at that time. I hope you are in good health and enjoying

your productive work on the Judiciary Committee. Best personal wishes.

Sincerely,

JOSEPH F. WEIS, JR.

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1 United States Circuit Judge, United States Court of Appeals for the Third Circuit; former

Chairman, Federal Courts Study Committee; former Chairman, Advisory Committee on Civil

Rules; former Chairman, Federal Judicial Conference Standing Committee on Rules of Practice

and Procedure. This essay is based in part on a Statement by Judge Weis before the Commission on Structural Alternatives for the Federal Courts of Appeals on April 24, 1998. 2 177 U.S. 485 (1900).

NINE DIVIDED BY THREE: A FORMULA FOR UNIFICATION?

Joseph F. Weis, Jr. 1

The mission of the United States Courts of Appeals should be to interpret and

apply federal law in a uniform and coherent manner. The present structure of the

appellate system does not enhance that goal. The recommendations contained in the

Final Report of the Commission on Structural Alternatives for the Federal Courts

of Appeals are solid steps towards improvement. Yet, they too could be improved

by placing more emphasis on reducing conflicting decisions.

This essay briefly traces the development of particular problems that plague the

appellate system and then outlines a workable alternative—a unified court system.

Further discussion touches on the most noteworthy aspects of the Commission’s recommendations, as well as their shortcomings in the area of decisional conflicts. Ultimately, the recommendations, subject to continuing study, are worthy of experimentation in the search for an appellate system equipped for the future.

I

In 1789, the speed of transportation and communication was measured in terms

of horses and sailing vessels. These two factors heavily influenced the structure of

the newly created federal judiciary and the circuit system that exists today.

By the time the Evarts Act was enacted in 1891, transportation and communication had improved. Railroads and steam ships supplanted buggies and schooners.

The telegraph had speed but extremely limited capacity for extensive communications. The telephone was in its infancy. Despite these advances, the federal circuit

system and the newly created courts of appeals could not escape the grasp of regionalization and associated problems of fragmentation.

The past 100 years, however, have witnessed dramatic technological growth.

Transportation is now measured by the hour rather than by days or weeks. Electronic communications are instantaneous and, unlike the telegraph, suitable for voluminous transmissions. The constraints on transportation and communication so

influential in 1789 and 1891 simply do not exist in this era of jet air travel, e- mail,

fax, interactive-video transmission, electronic document filing, and automated legal

research.

These profound changes should liberate thinking about the proper structure of the

federal intermediate appellate courts. Today, most lawyers do not restrict their practices to geographical boundaries and are accustomed to presenting cases in courts

all over the country. Similarly, it matters little whether judges fly from their home

chambers in, say, Chicago for arguments in Denver, New York, New Orleans, or

Jacksonville. The speed at which their draft opinions are transmitted via e-mail is

the same no matter what the destination. Consequently, the regionalization that is

so characteristic of, and so ingrained in, the current thinking on court structure

should be drastically minimized, if not abandoned altogether.

There is another, more corrosive agent eating away at the current system that

requires attention—one that cannot be overcome simply by technological improvements. Soon after the Evarts Act was enacted, the Circuit Courts of Appeals began

to consider themselves separate entities maintaining what might be called ‘‘diplomatic relationships’’ with their counterparts. This approach was encouraged by the

Supreme Court’s unfortunate decision in Mast Foos & Co. v. Stover Manufacturing

Company, in which the Court refused to apply issue preclusion when presented with

two different circuit court of appeals’ decisions involving the same patent.2 Considering the two courts independent of one another, the Supreme Court concluded that

comity between the two forums, rather than the compulsion of stare decisis, was the

overriding factor. In retrospect, it is clear that the Mast Foos Court missed the opportunity to adopt the principle that the various Circuit Courts of Appeals were part

of a national system and, as such, required to apply federal law on a uniform basis.

Thus began the balkanization of federal law and the establishment of the regional

judicial fiefdoms that prevail in the Courts of Appeals today. The drafters of the Evarts Act envisioned the Supreme Court as the arbiter of intercircuit conflicts. At the

time, that was neither an unreasonable nor unrealistic expectation. Congress, howVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00173 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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3See e.g., Administrative Office of the United States Courts, ‘‘Federal Judicial Caseload: A

Five-Year Retrospective’’ (1998). 4See e.g., United States Court of Appeals for the Third Circuit, Internal Operating Procedure

9.1 (1994). 5The Court of Appeals are adamant in their adherence to this concept. See e.g., Taylor v. Charter Medical Corp., 162 F.3d 827, 832 (5th Cir. 1998); Menowitz v. Brown, 991 F.2d 36, 40

(2d Cir. 1993) (per curiam) (‘‘until the Supreme Court speaks, the federal circuit courts are

under duties to arrive at their own determination of the merits of federal questions presented

to them * * * [i]f a federal court simply accepts the interpretation of another circuit without

[independently] addressing the merits, it is not doing its job); In re Korean Air Lines Disaster,

829 F.2d 1171, 1175 (D.C. Cir. 1987). 6Franchise Tax Board of California v. United States Postal Service, 467 U.S. 512, 519 n. 12

(1984). See generally A. Leo Levin & Susan M. Leeson, ‘‘Issue Preclusion Against the United

States Government,’’ 70 Iowa L. Rev. 113, 127–29 (1984). 7The evils of intercircuit conflicts are discussed in Joseph F. Weis, Jr., ‘‘Disconnecting the

Overloaded Circuits: A Plug for a Unified Court of Appeals,’’ 39 St. Louis U.L.J. 455 (1995). 8Telephone Interview with Thomas C. Goldstein, Esq., author of ‘‘Circuit Split Roundup,’’ and

Associate at Boies & Schiller, LLP (July 9, 1999). Mr. Goldstein cautions readers that ‘‘[i]t is

not possible to collect each and every ‘circuit split’ because there are varying degrees of disagreements between courts, and some opinions are written so as to minimize the appearance of conflicts.’’

ever, failed to anticipate the explosion of federal court litigation.3 At present, only

a small number of the ever-increasing disparate decisions by the Courts of Appeals

are reconciled by the Supreme Court. Practically speaking, this means that litigants

in various parts of the country are governed by federal case law that differs from

circuit to circuit.

The ‘‘law of the circuit’’ concept took root some years ago to combat intracircuit

conflicts. This practice, in full bloom today, requires appellate panels within a particular court of appeals to follow the precedent set by earlier panels of the same

court.4 A similar obligation is imposed on the district courts within the circuit. This

‘‘law of the circuit’’ approach was a step in the right direction, but paradoxically,

seems to have strengthened and perhaps even legitimatized the precedential independence of the various courts of appeals.5 The goal of national uniformity in the

interpretation of federal law has unfortunately been lost in the process of encouraging circuit uniformity.

Litigants and practitioners are understandably distressed by the resulting uncertainties. Worse yet, this balkanization has fostered the birth of administrative agency non-acquiescence. Executive agencies complain that their efforts to apply policy

on a national level are frustrated by inconsistent rulings among the various courts

of appeals. Agencies cope by simply refusing to follow decisions with which they disagree. Thus, there exists the unseemly spectacle of government agencies openly defying the Courts of Appeals. In one notable instance, the United States Postal Service presented the same issue to twenty different courts and eight courts of appeals,

losing in every instance until the Supreme Court finally ended the travesty by handing the agency the ultimate defeat.6

Intercircuit conflicts are a continuing and vexing problem.7 Despite efforts to give

it an attractive face by invoking the questionable benefits of a ‘‘percolation’’ process,

its pernicious drawbacks have not diminished. There have been some scholarly suggestions that intercircuit conflicts are actually not all that numerous. Most of those

studies, however, focused on the Supreme Court’s docket, a method that fails to account for the many cases in which, for a variety of reasons, the parties cannot or

opt not to seek certiorari. Much more realistic are the estimates given by Thomas

C. Goldstein, Esq., author of the monthly compilation ‘‘Circuit Split Roundup,’’ appearing in the Legal News section of The United States Law Weekly. Mr. Goldstein

estimates that two to three thousand such conflicts exist.8 They are a natural outgrowth of the hodge-podge circuit system.

In addition to their often varying articulations of federal law, the various courts

of appeals also differ in terms of size. This has long been a concern. Unfortunately,

the modus operandi of reformers has been to tinker with the system, applying bandaid solutions that merely perpetuate the size disparities and promote further balkanization. What is needed, and that need is ever-increasing in urgency, is a comprehensive plan for the entire system of intermediate courts.

II

The following five basic concepts may serve as guideposts to prepare a plan for

the future of the federal intermediate court system:

First, the Supreme Court should retain the ultimate power to declare law in the

federal system.

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9For a more in-depth discussion, see ‘‘Disconnecting the Overloaded Circuits,’’ supra. 10Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals 40 (Dec. 18, 1998) (‘‘Final Report’’). 11 I will use ‘‘Ninth Circuit’’ to refer to the Court of Appeals although I recognize that the

Commission recommends that the Ninth Circuit as a geographic entity not be split. See id. at

29–30.

Second, the intermediate court structure should provide uniform national interpretation and application of federal law. Construction of state law should be a secondary consideration, one that is not permitted to impair the primary goal of federal

law uniformity.

Third, deliberate creation of conflicts among the federal appellate courts should

be discouraged. Inadvertent conflicts should be resolved by an internal unit of the

intermediate court. Aberrant rulings of various components should be subject to review, not only by the Supreme Court, but by an internal body within the intermediate appellate court itself.

Fourth, while three-judge panels are a reasonably sized unit for initial appellate

review, they should operate within a larger unit. In such a system, pre-filing circulation of precedential opinions within the larger unit would reduce the likelihood of

aberrant decisions while securing the benefits of broader consideration. Experience

suggests that nine is a desirable size for such a unit, which for clarity’s sake, will

be referred to as a ‘‘division.’’

Judges should be appointed to a specific division and expected to serve on it during their tenure. Each division, having its own chief judge and clerk, would be assigned appeals from designated districts and administrative agencies. In some instances, a division could have its cases assigned based on subject matter jurisdiction—an approach similar to that used in the present Court of Appeals for the Federal Circuit.

Because travel and communications no longer pose burdensome limitations, the

various divisions would be assigned appeals with an eye towards equalizing the

workload. Although geographical contiguity or state borders could be considered,

workload would become the dominant concern. Because state law issues and diversity cases should be subordinate to achieving uniformity and coherency in federal

decisional law, the allocation of appeals from existing districts to a particular division need not be shackled by state boundaries. Thus, for example, depending on the

case load, one division could be allocated appeals from the Middle and Eastern Districts of Pennsylvania, while another could be assigned appeals from the Western

District of Pennsylvania, the Southern District of Ohio, and the Northern District

of West Virginia.

Fifth, the unified Court of Appeals would be presided over by a chief .judge, having general administrative supervision of the unified court. He or she would also

preside over an entity we could label the Central Division. That body would resolve

divisional conflicts and review asserted aberrant decisions of the various divisions.

Judges of the Central Division would be drawn from the various divisions. Seniority and experience would be considered. Central Division Judges could be selected

by the chief judge of the unified court in consultation with the various divisions.

Central Division members could serve in that capacity for short or lengthy terms.

All judges of the unified court would receive the same salary and hold the same

rank.

This, of course, is only a general outline of what would be an improved and more

efficient structure designed to cope not only with today’s caseload but the larger

ones anticipated for the future. This is not the occasion to elaborate fully because

my intent is only to offer the generalized concept of a unified court of appeals for

consideration.9 Although the idea tends to elicit gasps of incredulity from most circuit judges, empirical evidence that such a court structure would function efficiently

would temper that skepticism.

III

In December 1998, the Commission submitted a report to Congress and the President recommending that existing Court of Appeals for the Ninth Circuit be organized into ‘‘three regionally based adjudicative divisions.’’ 10 Because of its size, the

Ninth Circuit, 11 unlike other Courts of Appeals, offers a laboratory for innovation

and improvisation. The organizational concept described in the Commission’s Report

offers a splendid opportunity to test the practicalities of a unified court.

The Commission has boldly departed from the straight-jacket of conventional wisdom in several respects. Foremost is its recognition that the court system’s adjudicaVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00175 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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12 Id. at 46. 13 Id. at 43–44. 14 Id. at 43. This is an appropriate size which should do much to enhance coherence and consistency, one of the primary goals of the proposed restructuring. See id. at 47–48. 15Final Report, at 43. 16 Report of the Federal Courts Study Committee, 155 (April 2, 1990) (‘‘Study Committee Report’’). 17Final Report, at 46. 18 Id. at 43. 19 Id. at 49–50. 20 Id. at 50. 21 Id. at 44. 22Final Report, at 44 n.99.

tive and administrative functions are separable and that the organizations performing these distinct tasks need not be coterminous.12

Also noteworthy is the proposal that appeals from the federal district courts within California be assigned to different divisions.13 In taking this step, the Commission has implicitly recognized that the primary concern of the United States Courts

of Appeals is federal law. Too often in the past, the concept of routing appeals from

district courts in the same state to different appeals courts has been denounced as

unthinkable. That attitude, however, had its origins in a by-gone era when federal

law was far less pervasive and diversity jurisdiction had an importance beyond that

of today.

The Commission’s plan is based mainly on geographic contiguity. Because that

configuration will result in some workload inequality, the size of each division’s judicial component is to be flexible, falling between seven and eleven judges.14 Although

there is much to be said for equality of dockets, the Commission’s decision to emphasize geographical contiguity is a reasonable choice worthy of experimentation.

The Commission seeks to promote collegiality between the judges of the Court of

Appeals by requiring that they periodically sit with other divisions.15 This should

reduce the effect of provincialism. Notably, the Federal Courts Study Committee

recommended that judges of the courts of appeals sit, on an exchange basis, on other

courts as a means to promote experience in court administration.16 The current proposal, however, envisages longer exchange periods—an even better opportunity to

enhance uniform adjudication as well as collegiality.

Worthy of special commendation is the retention of the administrative arms of the

Ninth Circuit as they now exist.17 It is but common sense that the library, clerk’s

office and central staff attorneys office remain intact to serve each and every division. For the convenience of the Bar, regional sub-offices can be established without

impairing the efficiency of the circuit offices. Apparently, in view of the Ninth Circuit’s present practice of hearing arguments in various cities within its jurisdiction,

there will be no need for additional physical structures.

For all its practical vision, however, there is one central weakness in the Commission’s proposal that threatens its effectiveness. The Commission recommends that

‘‘each division would function as a semi-autonomous decisional unit’’ and that ‘‘decisions made in one division would not bind any other division.’’ 18 By including this

principle in its plan, the Commission neglects to take advantage of one of the greatest opportunities offered in the laboratory setting of the Ninth Circuit—the chance

to promote uniformity in the interpretation of federal law.

According to the Commission, ‘‘[h]aving a single court interpret and apply federal

law in the western United States, particularly the federal commercial and maritime

laws that govern relations with other nations on the Pacific Rim, is a strength of

the circuit that should be maintained.’’ 19 It explains this ‘‘strength’’ by highlighting

that ‘‘the Atlantic seaboard and Gulf Coast are governed by law determined by

courts of appeals in six separate circuits, which gives rise to complaints about intercircuit conflicts from practitioners in the maritime bar, who regularly bemoan the

differences in interpretation of federal law in circuits from Maine to

Texas.’’ 20Somewhat inconsistently, the Commission acknowledges that ‘‘the specter

of inconsistent interpretations of federal law may be unattractive’’ but concludes

that this evil ‘‘is one that exists throughout the federal system, and one that circuit

splitting would not ameliorate.’’ 21

These statements are undoubtedly correct, but instead of resignation to an undesirable situation, one can aim for improvement. The Commission did recognize that

it would be ‘‘highly undesirable if the Northern and Southern Divisions established

different rules in an admiralty issue.’’ 22 Indeed, the Middle Division should have

been included in that statement, and the subject matter not confined to admiralty.

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23Particularly bothersome is the Commission’s suggestion that it ‘‘would not appear to matter

whether all divisions had the same rule of law with respect to factors to be considered in granting an adjustment for abuse of trust under the Sentencing Guidelines’’ when the very purpose

behind the Guidelines was to promote uniformity. See id. 24 Id. at 45-46. 25 John B. Oakley, ‘‘Memorandum on Divisional Organization of the United States Court of

Appeals for the Ninth Circuit’’ (July 18, 1998), reproduced in Working Papers of the Commission

on Structural Alternatives for the Federal Courts of Appeals, at 145–66.

Federal law should be uniform throughout the country, not just in the ‘‘western

United States.’’23

That is not to say, however, that the Commission ignored the conflicts issue. First,

in a commendable step, it proposed the creation of a ‘‘Circuit Division’’ to resolve

inter-divisional conflicts.24 Second, the Report urged continuation of the staff attorneys office in its present form. With circuit-wide jurisdiction, this office would operate as an aid to maintaining doctrinal coherence. Third, the assignment of judges

to serve intermittently on different divisions would also tend to encourage consistency in decisional law.

Any discussion of conflicts must recognize that they fall into two general categories—inadvertent and deliberate. The former will occur despite the best efforts

of all concerned and consequently, a body akin to the proposed Circuit Division must

exist even if deliberate conflicts are eliminated. One method of avoiding inadvertent

conflicts is pre-filing circulation of all precedential opinions within a division. The

relatively small size of the Commission’s recommended divisions makes this desirable practice feasible. As a further aid to consistency, the Court might consider designating one of its senior staff attorneys to be included in the pre-filing circulation

of all divisions. That person could alert the opinion writer to existing precedents inside or outside the division that might present a conflict.

An expanded pre-filing circulation in some situations would also assuage the fear

that different divisions would yield inconsistent interpretations of California law—

a point raised by some opponents of splitting the Ninth Circuit. Should the proposed

Middle District, for example, intend to file an opinion with significant pronouncements on California law, a draft could be circulated among the judges of the Southern Division as well. Thus, all of the judges concerned with California law would

be kept abreast and given an opportunity to comment. Together, these steps could

help avoid inadvertent conflicts while simultaneously minimizing some of the work

in each division.

Human errors are understandable, unavoidable causes of inadvertent conflicts

and, to that extent, are excusable. However, the maintenance of uniformity in federal law is a powerful—and to some, an unanswerable—argument against the creation of deliberate, inter-divisional conflicts. It is particularly unfortunate that the

Commission did not recommend a prohibition against that practice.

Yet, a ban against creating deliberate conflicts need not—and probably should

not—require legislative authorization. Such a practice, as was the ‘‘law of the circuit’’ doctrine, may be developed by the courts. Thus, the Commission’s recommendations do not preclude the divisions themselves from implementing a policy

against the creation of deliberate conflicts. While an argument is often made that

creating a deliberate conflict is necessary, even desirable when the pre-existing

precedent is aberrant or, for substantial reasons, should no longer be followed, the

remedy in such situations lies in the framework proposed by the Commission—i.e.,

referral to the Circuit Division.

Deliberate conflicts, whether between circuits or divisions, threaten federal law

uniformity. In considering the Commission’s proposal, Congress should reassess the

recommendation that the divisions not be bound by each others’ case law. Failing

that, the divisions themselves should act promptly to halt this pernicious practice,

as it remains a formidable obstacle impeding improvement in the national appellate

system.

IV

If the proposed reorganization of the Ninth Circuit takes effect and proves as

workable as its advocates—including myself—expect it to be, it will open up some

intriguing prospects. One would be the formation on a nationwide basis of a unified

United States Court of Appeals. Another possibility, as Professor John B. Oakley

mentioned in his report to the Commission, of a more incremental nature, would

be the consolidation of a number of the existing circuits into larger, ‘‘jumbo circuits’’

with similar divisional structures.25

None of these structural proposals will remove a single case from the appellate

dockets. Yet, the elimination of conflicting opinions would reduce, to some extent,

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26The creation of larger circuits by consolidation was one of the possibilities discussed by the

Federal Courts Study Committee in addition to a ‘‘unified’’ court, and other alternative. See

Study Committee Report, supra. at 122–23.

The potential for mergers itself raises some interesting questions. For example, would the

Fifth and the Eleventh Circuits decide that their amicable divorce a few years ago was a mistake and decide to live together once again? Having been created by a merger not long ago,

would the Federal Circuit now join with the D.C. Circuit, a resident of the same city and thus,

a partner with no geographical disincentives?

the task of resolving appeals. It would also have the more important result of improving public confidence in the work of the appellate courts.

The Commission’s recommendation to reorganize the Ninth Circuit into three adjudicative divisions is a progressive move that would improve the administration of

justice in the federal intermediate appellate courts. Congress should adopt these

recommendations as they pertain to the Ninth Circuit, and let the experimentation

continue.26

MUNGER, TOLLES & OLSON LLP,

Los Angeles, CA, August 19, 1999.

Re: July 16th Hearing on Ninth Circuit Reorganization

The Honorable CHARLES E. GRASSLEY,

U.S. Senate Committee on the Judiciary, Subcommittee on Administrative Oversight

and the Courts, Hart Senate Office Building, Washington, DC.

DEAR SENATOR GRASSLEY: I have recently reviewed my testimony and found it to

be inaccurate in one particular. In making the point that fewer judges of the Ninth

Circuit would participate in the en banc process for individual cases under the proposed reorganization, which is the case, I unintentionally overstated my argument

and wish to correct it.

While it is true that under existing procedures every active judge on the Court

has the opportunity to participate in the decision as to whether an individual case

receives en banc review and under the proposed reorganization only the active

judges assigned to one of the 3 divisions would participate, it is not true, as I stated,

that only the ‘‘resident judges’’ (those residing in the division) would vote on the en

banc decision. Rather, all active division judges, but not all active circuit judges, as

is now the case, would participate.

i very much regret this unintentional, inaccurate overstatement found on page 55

of the transcript, from the last 3 words of line 17 to the first word on line 22.

Thank you for allowing me to correct the record.

Sincerely yours,

RONALD L. OLSON.

PREPARED STATEMENT OF HON. GORDON H. SMITH, A U.S. SENATOR FROM THE

STATE OF OREGON

Mr. Chairman, and members of the Committee, I thank you for this opportunity

to provide testimony in support of S. 253, the Federal Ninth Circuit Reorganization

Act of 1999. I would also like to extend my appreciation to the Honorable Judge

Diarmuid F. Scannlain, United States Circuit Judge for the Ninth Circuit for his

forthrightness, and willingness to provide his professional perspective on this important issue facing the Ninth Circuit.

Mr. Chairman, the Ninth Circuit, encompassing about 1.4 million square miles,

faces an uncertain future in terms of its ability to serve a growing population, and

ever-growing caseload. Serving more than 50 million people, the Ninth Circuit Court

of Appeals handles over 8,500 filings per year—with a reversal rate of about 95 percent. By the year 2010, the Ninth Circuit population will increase in size by 43 percent—which under the current conditions, could only result in a significant increase

in caseload and reversal rate. While I understand that Judge O’Scannlian and I face

similar opposition from our respective colleagues with respect to our position on this

issue, I believe that S. 253 is an equitable solution that will ultimately result in

a more consistent and predictable Ninth Circuit Court of Appeals.

In 1997, Congress charged the Commission on Structural Alternatives for the Federal Courts of Appeals to study and make recommendations to Congress with respect to changes in the boundaries and structure of the Ninth Circuit Court of Appeals. The Commission recommended that ‘‘Congress enact a statute organizing the

Ninth Circuit Court of Appeals into three regionally based adjudicative divisions—

the Northern, Middle and Southern—each division with a majority of its judges resiVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00178 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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dent in its region, and each having exclusive jurisdiction over appeals from the judicial districts within its region.’’ The legislation you have before today, adopts those

recommendations, and does so without sacrificing the efficacy of the court.

S. 253 is a rational approach that would divide the Ninth Circuit into three regional divisions of the Northern, Middle and Southern, each having exclusive jurisdiction over cases within its region. However, the court will continue to have one

administrative office, and judges will primarily remain within their regions. Importantly, Northwest cases would be decided by Northwest judges.

As my predecessor, Senator Mark O. Hatfield stated, ‘‘The Ninth Circuit’s size has

created serious problems: too many judges spending more time and money traveling

than hearing cases, a growing backlog of cases which threaten to bury each judge,

a dangerous inability to keep up with current case law, a breakdown in judicial

collegiality and, most importantly, a failure to provide uniformity, stability and predictability in the development of federal law throughout the Western region. It is

increasingly clear that these problems cannot be solved by the reforms already implemented by the Court.’’

Mr. Chairman, I commend you for your timely consideration of this important legislation and for this opportunity to testify in support of S. 253, the Ninth Circuit

Reorganization Act of 1999.

PREPARED STATEMENT OF PROF. ARTHUR D. HELLMAN

Summary

1. Although the Commission states that the Ninth Circuit Court of Appeals

‘‘should continue to provide the West a single body of federal decisional law,’’ its

plan subverts that goal by abandoning circuit-wide stare decisis. This radical step

would authorize, if not encourage, the creation of intracircuit conflicts.

2. The proposed ‘‘Circuit Division’’ would do little to preserve uniformity. The

Commission’s plan places substantial constraints on the Division’s authority. In

all likelihood, decisions of the Circuit Division would be so infrequent, and their

effect on the law of the division so limited, that ‘‘the law of the circuit’’ would

shrink to near-insignificance.

3. The Commission plan is thus not a compromise. Those who want to divide ‘‘the

Ninth Circuit’’ have never cared about the circuit as such; what they have sought

is a division of the court of appeals. And that, for all but a handful of cases, is

what the Commission plan would give them.

4. The rationale for the Commission plan is that ‘‘the law-declaring function of

appellate courts requires groups of judges smaller than the present Ninth Circuit

Court of Appeals.’’ But the arguments offered in support of the rationale do not

stand up under scrutiny.

5. The Commission insists that judges on a large appellate court cannot adequately monitor other judges’ decisions. The flaw is that the Commission lumps

together two very different activities: keeping up with circuit law, which is something done by individual judges, and monitoring panel opinions, which is done by

the court as an institution. Judges today need not keep up with circuit law in

order to make use of opinions when they are relevant. Effective monitoring does

not require that all judges keep up with all opinions. The evidence indicates that

Ninth Circuit judges can and do monitor the opinions rendered by their colleagues.

6. The Commission argues that ‘‘large appellate units have difficulty developing

and maintaining consistent and coherent law.’’ But it disdains empirical research

and relies instead on ‘‘perceptions’’ and its own (unspecified) experience. That is

far too little to justify the radical restructuring that it proposes.

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: I appreciate this opportunity to express my views on S. 253 and the Final Report of the Commission on

Structural Alternatives for the Federal Courts of Appeals (White Commission). S.

253, the Ninth Circuit Reorganization Act, would implement the Commission’s recommendation regarding the Ninth Circuit. The Commission’s proposal would keep

the Ninth Circuit intact but divide the court of appeals into three ‘‘semi-autonomous’’ adjudicative units.

The Commission’s plan gives the appearance of compromise and moderation. But

appearances are deceiving. The Commission plan is not a compromise; it gives one

side almost everything it wants. And far from being moderate, it embodies a novel

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approach to ‘‘the law-declaring function of appellate courts’’ that is flawed both in

conception and in execution.

This leap into the unknown might be justified if the Commission had demonstrated the existence of a problem of serious dimensions that could not be dealt

with in any other way. On the contrary, in explaining its key conclusion—that ‘‘the

law-declaring function of appellate courts requires group of judges smaller than the

present Ninth Circuit Court of Appeals’’—the Commission offers remarkably little

in the way of proof. The Commission simply does not make the case for the radical

restructuring that it proposes.

Introduction

Five experiences have shaped my views on S. 253 and the White Commission report. First, from 1973 through 1975 I served as deputy executive director of the

Commission on Revision of the Federal Court Appellate System (Hruska Commission). In that capacity I drafted the report that recommended that the Ninth Circuit

be divided into two new circuits. (For a discussion of why that recommendation is

no longer persuasive, see Hellman, Dividing the Ninth Circuit: An Idea Whose Time

Has Not Yet Come, 57 Mont. L. Rev. 261, 264–74 (1996).)

Second, in 1978–79 I was the director of the central legal staff of the Ninth Circuit Court of Appeals. My responsibilities included devising and implementing procedures that would assist the court to do its work more effectively, and in particular

to meet the new needs created by the expansion of the court from thirteen to twenty-three active judges.

Third, in the late 1980s I directed a study by fourteen legal scholars and political

scientists of the structural and procedural innovations implemented by the Ninth

Circuit during the period 1976–1988. The fruits of that study were published by

Cornell University Press in 1990; the title of the book is ‘‘Restructuring Justice: The

Innovations of the Ninth Circuit and the Future of the Federal Courts.’’

Fourth, as stated by the Federal Judicial Center in the report submitted to Congress on Structural and Other Alternatives for the Federal Courts of Appeals, I have

conducted ‘‘the only systematic study of the operation of precedent in a large circuit.’’ This research has been published in several articles, including Jumboism and

Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court,

56 U. Chi. L. Rev. 541 (1989).

Finally, earlier this year, Chief Judge Hug appointed me to a 10-member Evaluation Committee whose mission is ‘‘to examine the existing policies, practices and administrative structure of the Ninth Circuit Court of Appeals, in order to make recommendations to its judges to improve the delivery of justice in the region it

serves.’’

It is an honor to serve on the Evaluation Committee and to work with the Ninth

Circuit Court of Appeals in seeking better ways of carrying out the processes of appellate adjudication. However, I do not speak for the court or any other institution;

the views expressed here are my own.

I. THE COMMISSION’S PLAN: CONTRADICTIONS AND CONUNDRUMS

The Commission offers a plan that would retain the Ninth Circuit but divide its

court of appeals into three ‘‘semi-autonomous’’ divisions. The plan contains four elements:

1. Regional jurisdiction over appeals. The present Ninth Circuit Court of Appeals

would be reorganized into three ‘‘regionally based adjudicative divisions.’’ Each division would hear the appeals filed from that geographical area.

2. Regional assignment of judges. Each division would include seven to eleven

court of appeals judges in active status. ‘‘A majority of [the] judges serving on

each division would be residents of the districts over which that division has jurisdiction, but each division would also include some judges not residing within the

division, assigned randomly or by lot for specified terms of at least three years.’’

3. Regional performance of the law-declaring function. ‘‘Each regional division

would function as a semi-autonomous decisional unit.’’ This entails two changes

from the current arrangement. The circuit-wide en banc process would be abolished; the functions now performed by the Ninth Circuit’s en banc court would

be performed by en banc courts for each division. More important, divisional decisions—whether by panels or by the en banc court—would be binding only within

the division.

4. Conflict resolution by a ‘‘Circuit Division.’’ In addition to the three regional divisions, the Commission plan would establish a ‘‘Circuit Division * * * whose sole

mission would be to resolve conflicting decisions between the regional divisions.’’

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The Circuit Division would be composed of the chief judge of the circuit and

twelve active judges—four from each of the regional divisions—who would be selected by lot and who would serve for staggered three-year terms.

The Commission argues that its plan ‘‘is the most principled and effective way to

resolve the debate about the Ninth Circuit and its court of appeals.’’ (Final Report

at 57.) However, analysis of the various elements leads to a very different conclusion. The Commission may be correct in saying that its proposal ‘‘addresses the adjudicative concerns that have animated calls to split the circuit.’’ But its confidence

that the plan ‘‘will achieve the legitimate ends of * * * those who seek to preserve

[the circuit]’’ is sorely misplaced.

A. Abandonment of circuit-wide stare decisis

The most radical aspect of the Commission’s proposal is the abandonment of circuit-wide stare decisis. Today, the Ninth Circuit, like all of the other federal courts

of appeals, follows the rule that panel decisions are binding on all subsequent panels unless overruled by the Supreme Court or by the court of appeals en banc.

Under the Commission’s plan, decisions handed down in one division would be binding only within that division.

If there was any doubt about the Commission’s commitment to this element of its

plan, it is eliminated by the Commission’s response to the comments by Chief Judge

Hug on the preliminary draft of the Commission report. Judge Hug, speaking for

a majority of the judges of his court, urged the Commission to modify its plan by

making panel decisions binding throughout the circuit ‘‘unless * * * overruled by

a circuit-wide en banc court.’’ The Commission emphatically rejected this suggestion,

stating that this modification ‘‘would leave the court of appeals essentially unchanged as an adjudicative body, and would defeat the purpose of the divisional

structure that we recommend.’’

Abandonment of circuit-wide stare decisis would be a logical step if the Commission were recommending that the Ninth Circuit be kept intact solely for administrative purposes and that three separate courts be created within the circuit for adjudication. But that is not the Commission’s plan, nor does the Commission reject the

premise that the law within the Ninth Circuit should be uniform. On the contrary,

the Commission states at the outset that the Ninth Circuit Court of Appeals ‘‘should

continue to provide the West a single body of federal decisional law.’’ (Final Report

at iii.)

How, then, can the Commission propose a regime under which ‘‘[d]ecisions made

in one division would not bind any other division’’? The Commission gives two answers, perhaps three (with the third buried in a footnote).

First, the report contemplates that decisions of other divisions would ‘‘be accorded

substantial weight as the judges endeavor to keep circuit law consistent.’’ As a prediction of judicial behavior, this is well grounded in experience. Circuit judges today

generally respect the decisions of other circuits, and there is no reason to think that

judges in a restructured Ninth Circuit would not accord similar weight to decisions

of other divisions.

On the other hand, there is a difference between respecting precedent and being

obliged to follow it. I have no doubt that judges today often follow precedents they

do not like, simply because it is their obligation to do so. If stare decisis did not

operate circuit-wide, judges would be free simply to reject precedent from another

division. The Commission plan would thus authorize, if not encourage, the creation

of intracircuit conflicts.

This brings us to the Commission’s second and more important response: the creation of a ‘‘Circuit Division.’’ The Commission insists that the Circuit Division—‘‘a

small, stable, but still representative subset of the court’s judges * * * focused on

conflict resolution’’—can insure the maintenance of ‘‘desirable circuit-wide uniformity.’’ (Final Report at 5 1.) This response raises two questions. What does the Commission mean by ‘‘desirable circuit-wide uniformity’’? And how much uniformity

would the Circuit Division bring? To those questions I now turn.

B. Jurisdiction and authority of the circuit division

The keystone of the Commission plan is the Circuit Division. Without the Circuit

Division, there could be no pretense that the Ninth Circuit Court of Appeals remained intact in anything but name. Each of the regional divisions would be totally

autonomous except for the cumbersome process of rotating judges among the regions. Thus, it is essential to understand how the Circuit Division would operate.

The first thing that stands out is the extraordinary constraints the Commission’s

plan places on the authority of the Circuit Division. The jurisdiction of the Division

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would be limited to resolving ‘‘square’’ conflicts between the regionally organized divisions. Further, the Circuit Division could not take any case on its own motion; it

could act only in response to an application for review filed by a party.

1. Only ‘‘square’’ conflicts

What does the Commission mean by ‘‘square’’ conflicts? One plausible interpretation is that the Commission refers to situations in which one division explicitly refuses to follow a decision handed down in another division. Explicit rejection is the

only treatment of circuit precedent now forbidden to court of appeals panels. It

would be logical to say that when a panel does take advantage of the freedom conferred by the divisional arrangement, the decision would be subject to review by the

Circuit Division to eliminate the disagreement.

Suppose, though, that the panel (or the regional en banc court) distinguishes a

decision from another division that reached a contrary result in a similar case. The

losing litigant argues that, notwithstanding the purported grounds of distinction,

the panel’s resolution conflicts with the other division’s ruling. Could the Circuit Division find that a square conflict exists and accept the application for review.

If the answer is ‘‘yes,’’ that is an invitation to tiresome wrangling over whether

two decisions really are in conflict. In this regard, it is instructive to consider the

experience of the Florida Supreme Court. That court is vested with jurisdiction to

review ‘‘any decision of a district court of appeal * * * that expressly and directly

conflicts with a decision of another district court of appeal * * * on the same question of law.’’ Commentators describe the jurisdiction as ‘‘disputatious’’ and note that

‘‘the existence of conflict often is not so certain, meaning that a brief [seeking review] must engage in a lengthier and more convoluted argument to establish the

Court’s discretion to hear the case.’’ See Gerald Kogan & Robert Craig Waters, The

Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L. Rev. 1151,

1225, 1238 (1994). That is hardly a model to be emulated.

What makes the arrangement even more problematic in the Ninth Circuit context

is that the judges of the Circuit Division would be questioning the good faith or competence of their own colleagues. If the Circuit Division agrees to review a decision

that has distinguished an opinion handed down by another regional division, that

would be tantamount to saying that the later panel has failed to recognize that the

earlier opinion involved the same issue and required the same result. I suspect that

the Circuit Division judges, taking into account the effect of such a declaration on

collegiality within the circuit and on the legitimacy of the system, would be reluctant to take that step.

These considerations suggest that the jurisdiction of the Circuit Division would

be limited to acknowledged conflicts—conflicts created by the explicit refusal of one

regional division to follow the precedent established by another division. That limitation, however, would substantially undercut the effectiveness of the mechanism.

Indeed, the Circuit Division would be far less able than the existing limited en banc

court to maintain uniformity within the circuit—a mechanism that the White Commission finds wanting.

Under the existing arrangement, Ninth Circuit judges can and do grant rehearing

en banc to resolve tensions in circuit law caused by inconsistencies in doctrines or

outcomes less blatant than explicit rejection. See, e.g., Hale v. Arizona, 993 F.2d

1387, 1389 (9th Cir. 1993) (en banc) (‘‘We consider these questions en banc to resolve the tension between [two panel decisions].’’); Townsend v. Holman Consulting

Corp., 929 F.2d 1358, 1365 (9th Cir. 1990) (en banc) (overruling panel decision, thus

obviating need to maintain ‘‘unstable and awkward’’ distinction drawn by later

case).

When the Commission issued its draft report in October 1998, it was unclear

whether the narrower or broader interpretation of the Circuit Division’s jurisdiction

was intended. The Final Report appears to endorse the narrower reading. In explaining how the arrangement it proposes ‘‘will ensure clearer, more consistent circuit law,’’ the Commission states that ‘‘conflicts * * * between divisions will be

more sharply highlighted,’’ and that the Circuit Division will ‘‘choose between articulated conflicting points of view.’’ (Final Report at 49; emphasis added.) This language implies that the Circuit Division would be limited to cases in which a panel

explicitly rejected the ‘‘point of view’’ adopted by one of the other divisions. As long

as the panel found grounds of distinction—even ‘‘unstable and awkward’’ grounds—

the Circuit Division would stay its hand.

2. Only upon litigant request

The authority of the Circuit Division would be further constrained by the Commission’s insistence that the jurisdiction of the Division could be invoked only by

a party to a case—and ‘‘only after the panel decision had been reviewed by the diviVerDate 11-MAY-2000 07:55 Oct 06, 2000 Jkt 000000 PO 00000 Frm 00182 Fmt 6601 Sfmt 6621 NINTH SJUD4 PsN: SJUD4
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sion en banc or a divisional en banc had been sought and denied.’’ Here, too, the

Commission plan casts aside one of the mechanisms used by the Ninth Circuit today

to maintain uniformity: the sua sponte panel-initiated en banc call.

Recent decisions illustrate the utility of this procedure. In 1998, the court took

a group of cases en banc sua sponte ‘‘to rethink our previous decisions’’ on the preemption of state tort claims by the Airline Deregulation Act. Charas v. Trans World

Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998). The en banc opinion explained, ‘‘Because of the need to clarify the law in this area, these cases were taken en banc

after they were assigned to a three-judge panel, but prior to the panel’s rendering

a decision.’’ The en banc court issued a unanimous opinion overruling two panel decisions and establishing the law for the entire circuit. This process would not have

been possible under the Commission’s plan. More recently, the court accepted a panel’s sua sponte en banc call to resolve ‘‘an irreconcilable conflict in this circuit’s case

law regarding the standard of review for rulings on the prosecution’s use of peremptory challenges.’’ Tolbert v. Gomez,—F.3d—(9th Cir. 1999) (No. 97–55004). The court

eliminated the inconsistency without waiting for a litigant’s request and without

waiting for the panel to issue an opinion.

C. The commission’s narrow vision of uniformity

Supporters of the Commission plan are caught on the horns of a dilemma. If the

Circuit Division can review decisions even when the regional panel insists that the

other division’s ruling is distinguishable, it opens the door to time-consuming and

uncollegial disputation over whether the new case creates a ‘‘square’’ conflict. But

if the Circuit Division is limited to hearing cases in which one division has explicitly

rejected another division’s precedent, it will be powerless to eliminate less blatant

inconsistencies of the kind that arouse concern today.

Is there any escape from this quandary? The White Commission gives what it

may regard as a partial answer. In a little-noticed footnote—not included in the October 1998 draft report—the Commission reveals that its vision of ‘‘uniformity’’ is

a narrow one. The Commission’s text refers to ‘‘conflicts on issues for which circuitwide (or state-wide) uniformity is important.’’ (Emphasis added.) The footnote explains:

[W]e envision that [the function of the Circuit Division] will be focused

on maintaining uniformity on issues of law that matter to the entire circuit

or to a state (such as California) that is in more than one division. For example, it would be highly undesirable if the Northern and Southern Divisions established different rules on an admiralty issue. On the other hand,

it would not appear to matter whether all divisions had the same rule of

law with respect to the factors to be considered in granting an adjustment

for abuse of trust under the Sentencing Guidelines. (Final Report at 44

n.99.)

Although the Commission does not generalize from its two examples, this passage

implicitly draws a distinction emphasized by the Federal Courts Study Committee

in its analysis of conflicts between circuits. The Study Committee recognized that

not all intercircuit conflicts are ‘‘intolerable,’’ and it posited that one criterion for

identifying ‘‘intolerable’’ conflicts is that they ‘‘impose economic costs or other harm

to multi-circuit actors.’’ The White Commission’s examples suggest that it draws the

line in the same way.

In the aftermath of the Study Committee report (and at the request of Congress),

I conducted a study of unresolved conflicts between federal judicial circuits. The

study concluded that, more often than not, unresolved conflicts do not pose a serious

threat to the activities of multi-circuit actors. Indeed, on many issues the subject

matter alone virtually forecloses any effect on multi-circuit actors. This is true of

sentencing issues, as suggested by the White Commission; it is also true of most

civil rights issues and most issues involving the elements of federal crimes. In disclaiming the importance of circuit-wide uniformity on these issues, the Commission

is implicitly telling us that the Circuit Division need not resolve even ‘‘square’’ conflicts in large and important areas of federal law.

Two other aspects of the distinction also warrant mention. First, ‘‘square’’ conflicts

on issues affecting multi-circuit actors are probably less common than ‘‘square’’ conflicts on issues such as the interpretation of federal criminal statutes or sentencing

guidelines. Second, the concerns that underlie the desire for uniformity between divisions on matters of admiralty law and other issues affecting multi-circuit actors

apply equally to uniformity between circuits. For that reason, these concerns often

guide the Supreme Court in the exercise of its certiorari jurisdiction. If the Circuit

Division is confined to resolving ‘‘square’’ conflicts on issues affecting multi-circuit

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actors, it will have little to do, and that little may well be overtaken in short order

by Supreme Court decisions.

D. The shriveled ‘‘law of the circuit’’

In sum, there is less to the Circuit Division than meets the eye. The Circuit Division would resolve only ‘‘square’’ conflicts—a category apparently limited to cases in

which one division has explicitly rejected another’s precedent. It would act only

upon the request of a party, and it would probably limit itself to issues that affect

the operations of multi-circuit actors—a circumstance that is the exception rather

than the rule. In all other respects, the law in each division would be left to develop

separately.

One other element of the Commission plan comes into play here. The Commission

contemplates that after granting review, ‘‘the Circuit Division will simply resolve the

issue in conflict, and return the case to the regional division for such other proceedings as are necessary.’’ (Final Report at 46; emphasis added.) This too suggests a

narrow view of the Circuit Division’s field of operation, and it reinforces the supposition that the Circuit Division would confine itself to discrete issues on which there

is an explicit disagreement.

What would the consequences of this arrangement be? I believe that, before very

long, the three divisions would be carrying out their law-declaring functions almost

as separate courts. Decisions of the Circuit Division would be so infrequent, and

their effect on the law of the division so limited, that ‘‘the law of the circuit’’ would

shrink to near-insignificance.

E. Isolation of the divisions

The scenario I have described is made even more likely by the probable fate of

another element of the Commission’s plan, the long-term random rotation of judges

among the divisions. Here is what the Commission has to say about the rotation

feature in its report:

A majority of judges serving on each division would be residents of the

districts over which that division has jurisdiction, but each division would

also include some judges not residing within the division, assigned randomly or by lot for specified terms of at least three years. (Final Report at

43.)

The draft statute is somewhat more open-ended:

A majority of the judges assigned to each division shall reside within the

judicial districts that are within the division’s jurisdiction * * *; provided,

however, that judges may be assigned to serve for specified, staggered

terms of three years or more, in a division in which they do not reside. Such

judges shall be assigned at random, by means determined by the court, in

such numbers as necessary to enable the divisions to function effectively.

(Final Report at 94.)

Even here, there is some ambivalence about long-term cross-division assignment

of judges. (Compare ‘‘would’’ in the report text with ‘‘may’’ in the draft statute.) And

when Senator Murkowski (joined by Senator Gorton) introduced the legislation implementing the Commission proposal, he offered the ‘‘strong suggestion’’ that the

Senate Judiciary Committee eliminate the rotation requirement altogether.

I believe that if the Commission plan were to be enacted into law, the Murkowski

view would prevail. I say this because there is simply no constituency for the longterm random rotation of judges among divisions. The northwestern senators—who

until now have been the most ardent advocates of splitting the circuit—have already

made clear their opposition to this feature. And the circuit judges, most of whom

do not want any division of the circuit or the court, would be equally opposed to

long-term cross-division assignment. A judge living in Alaska would hardly relish

the prospect of flying to Pasadena or Phoenix for every argument calendar for three

long years. A judge from Los Angeles would not want to hear all of his or her cases

in the northwest.

I am not suggesting that judges would hear cases only in their own region. On

the contrary, short-term cross-division assignment of judges would certainly be a

feature of the arrangement, if only because caseloads will seldom be proportional

to the number of judges residing in each of the regions. But that is little different

from current use of, for example, district judges and senior judges from other circuits. The judges regularly sitting in each division would be the judges who reside

there.

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F. Conclusion: the compromise that isn’t

What happens when you put all of this together? In all likelihood, the result

would be something like this. In each division, cases would be adjudicated largely

by a self-contained group of judges bound only by the precedents they themselves

have handed down. The Circuit Division would intervene to provide circuit-wide law

only on the rare occasions when a panel or en banc court in one division has explicitly rejected another division’s precedent on an issue that affects multi-circuit actors.

In many—perhaps most—areas of the law, each division would develop its own line

of precedent. The ‘‘law of the circuit’’ would become almost an irrelevance.

This analysis explains why the Commission plan is not a compromise. Those who

want to divide ‘‘the Ninth Circuit’’ have never cared about the circuit as such. It

is a matter of indifference to them whether the circuit council, the Bankruptcy Appellate Panel, the circuit conference, and other circuit institutions remain as they

are. What they have sought is a division of the court of appeals. And that, for all

but a handful of cases, is what the Commission plan would give them.

II. THE COMMISSION’S FAULTY DIAGNOSIS

Notwithstanding its flaws and limitations, the divisional structure plan might be

worth pursuing if the Commission had identified a serious problem in the Ninth

Circuit Court of Appeals that could be solved only through reliance on smaller adjudicative units. But on the evidence of the Commission report, no such problem exists.

The rationale for the Commission plan is that ‘‘the law-declaring function of appellate courts requires groups of judges smaller than the present Ninth Circuit

Court of Appeals.’’ This rationale rests in turn on two overlapping arguments. First,

judges in a large appellate court are unable ‘‘to monitor all the decisions the entire

court of appeals renders.’’ Second, ‘‘large appellate units have difficulty developing

and maintaining consistent and coherent law.’’ Neither argument stands up under

scrutiny.

A. Monitoring of panel opinions

Central to the Commission’s vision of effective appellate adjudication is the ‘‘monitoring’’ of panel opinions by other judges of the court. The Commission puts it this

way:

Courts of appeals rely on their judges to monitor the decisions of all panels of the court so that their own decisions are consistent with earlier decisions of the court and so that the court can identify and correct any

misapplication or misstatements of the law. * * * The volume of opinions

produced by the Ninth Circuit’s Court of Appeals and the judges’ overall

workload combine to make it impossible for all the court’s judges to read

all the court’s published opinions when they are issued. (Final Report at

47.)

For several reasons, the Commission’s reliance on this theory is misplaced.

First, as Chief Judge Hug and his colleagues have aptly stated, the assumption

that judges cannot keep sufficiently abreast of circuit law without reviewing opinions as they come out ‘‘is a relic of the pre-computer era.’’ Before computers, opinions would not appear in the advance sheets for weeks or months; digests, citators,

and other research tools lagged even further behind. On a large court, the only way

a judge could avoid an inadvertent conflict with another panel’s decision was to read

opinions as they came out, sort them into piles by subject matter, and perhaps keep

a personal index of important rulings.

Today, conditions are very different. If a judge is considering a case involving

NEPA or FOIA or Miranda or Noerr or any other issue, all of the court’s decisions

on point, no matter how recent, can be accessed in seconds through Westlaw and

Lexis. In addition, the Ninth Circuit has its own computerized case inventory tools.

A judge may scan newly filed opinions simply to get a sense of what is going on

in the court, but to collect cases in an effort to replicate the computerized databases

would be a waste of time.

Second, the Commission lumps together two very different activities: keeping up

with circuit law and monitoring panel opinions. Keeping up with circuit law is something done by individual judges. As already indicated, with all circuit law now easily

retrievable by computer when it is needed, there is no particular reason for individual judges to acquire familiarity with decisions that have no relevance for any of

their current cases.

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Monitoring panel opinions, in contrast, is something that the court does as an institution. The purpose of monitoring, as the Commission suggests, is to identify

panel decisions that conflict with earlier decisions of the court or that misstate the

law. But effective monitoring does not require that all judges keep up with all opinions. As long as each opinion receives some scrutiny by off-panel judges, the objectives can be met.

Third, the Commission goes off track by referring to ‘‘[t]he volume of opinions produced by the Ninth Circuit’s Court of Appeals.’’ (Emphasis added.) What the Commission fails to mention is that the volume of published opinions does not correlate

with circuit size. In 1998, three other circuits produced a larger number of published

opinions than did the Ninth Circuit.

(The analysis is limited to published opinions because only published opinions

contribute to the law of the circuit. Also, I recognize that 1998 may have been aberrational for the Ninth Circuit, in that the court’s output of published opinions was

probably reduced by its high vacancy rate. However, it is not uncommon for other

circuits to approach or exceed the output of the Ninth Circuit.)

One would think that, other things being equal, an annual output of 800 opinions

could be monitored more easily by 28 judges than by 14. Opinions are not fungible,

and neither are judges. The larger the number of judges engaged in the monitoring

process, the greater the likelihood that a particular error or inconsistency will catch

the eye of at least one member of the court.

Finally, the evidence leaves no doubt that the judges of the Ninth Circuit Court

of Appeals engage in a substantial amount of opinion monitoring. In the four-year

period ending in 1997, there were more than 300 cases in which an off-panel judge

initiated en banc activity. (This figure includes only cases in which the off-panel

judge formally invoked the en banc procedures of the court’s General Orders. It does

not include cases—perhaps quite numerous—in which the off-panel judge communicated only with the panel members.) Even when the court did not vote on an en

banc call, the off-panel judge’s comments often resulted in modification of the panel

opinion and sometimes in a modification of the disposition.

In this light, the Commission’s concerns about the supposed difficulties of opinion

monitoring in the ‘‘large appellate unit’’ ring hollow. Judges today need not read

opinions as they come out in order to make use of them when they are relevant.

As for monitoring, the evidence indicates that the judges of the Ninth Circuit can

and do monitor the opinions rendered by their colleagues.

B. Maintaining coherent and consistent law

Monitoring, of course, is not an end in itself, but a means to an end. The Commission’s principal argument is that ‘‘large appellate units have difficulty developing

and maintaining consistent and coherent law.’’ (Final Report at 47.) The Commission thus aligns itself with those who believe that inconsistencies in panel decisions

are more common in the Ninth Circuit than in other circuits.

What is the basis for this conclusion, so critical to the Commission’s recommendation? The Commission refers to ‘‘perceptions’’ of inconsistency and to its own ‘‘judgment, based on experience.’’ The ‘‘experience’’ is not specified or described. This is

a remarkably weak foundation on which to build so substantial a structure.

The Commission acknowledges ‘‘the literature on [the] subject,’’ including my own

empirical studies of inconsistency in the Ninth Circuit. The Commission’s only response is to say that consistency and predictability cannot be ‘‘reduce[d] * * * to

statistical analysis’’ because the ‘‘concepts are too subtle, the decline in quality too

incremental, and the effects of size too difficult to isolate, to allow evaluation in a

freeze-framed moment.’’ (Final Report at 39–40 & n.39.)

It is the Commission’s prerogative to reject the methods or conclusions of empirical research, but it is regrettable that the Commission simply gives up and declares

that the concepts are too subtle to warrant analysis. For example, what does the

Commission mean by ‘‘evaluation in a freeze-framed moment’’? The research I conducted, and which the Commission cites, embraced two distinct years of the Ninth

Circuit’s work, and the evaluation involved decisions rendered over a much longer

period of time.

Although the Commission is not willing to credit systematic empirical research,

it is willing to rely on ‘‘perceptions.’’ The reference to ‘‘perceptions’’ apparently incorporates the brief account earlier in the report of the Commission’s survey of district

judges and lawyers in the Ninth Circuit and nationwide. The survey is a valuable—

indeed unique—source of information, and happily the Commission has made available a complete account of the findings in its Working Papers. Those findings raise

some doubts about the conclusions drawn by the Commission.

Consider one of the specific points cited by the Commission in its report:

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Ninth Circuit lawyers, more often than others, reported as a ‘‘large’’ or

‘‘grave’’ problem the difficulty of discerning circuit law due to conflicting

precedents, and the unpredictability of appellate results until the panel’s

identity is known. (Final Report at 40.)

When we look at the corresponding table in the Working Papers, we find that,

indeed, Ninth Circuit lawyers were more likely than lawyers in other regional circuits to have experienced problems in ‘‘discerning circuit law due to conflicting

precedents.’’ (Working Papers at 86, Item 20g.) But two other points also stand out:

• The Ninth Circuit lawyers who viewed the problem as ‘‘large’’ or ‘‘grave’’ constituted only one-quarter of the respondents.

• The highest proportion of lawyers giving this response came not from the Ninth

Circuit, but from the Federal Circuit—a court of 12 judges, all of whom sit in

the same city.

A similar pattern can be seen in the responses to the question ‘‘how big a problem

is the unpredictability of results until the panel’s identity is known?’’ (Working Papers at 87, Item 20j.) Ninth Circuit lawyers were more likely to have experienced

problems than lawyers in other regional circuits, but so were lawyers practicing before the Federal Circuit. Interestingly, one out of seven lawyers experienced a

‘‘large’’ or ‘‘grave’’ problem of unpredictability in the First Circuit, which has only

six judgeships and enjoys a reputation for collegiality. (The Commission, in explaining what it means by ‘‘collegiality,’’ quotes at length from a book by the former chief

judge of the First Circuit.)

These findings point to the need for caution in interpreting the survey results.

The question is not whether particular phenomena are associated with the Ninth

Circuit Court of Appeals, but whether those phenomena are causally linked to circuit size. On this score, a recent news story about the Court of Appeals for the Federal Circuit provides a useful perspective. (National Law Journal, Aug. 3, 1998, at

A–1.) The story notes that some members of the intellectual property bar ‘‘accuse

the specialized court of unpredictability, claiming that judges are deeply divided on

basic patent doctrine, [and] that results are often panel-dependent.’’ The story elaborates:

This factionalism leads to a crap-shoot mentality among lawyers who say

the outcome of their cases depends too heavily on who sits on a particular

panel. Because the U.S. Supreme Court rarely reviews patent cases, the

panels’ inconsistent rulings remain unresolved. * * * Some say the court

should take more cases en banc.

To anyone who has followed the debate over dividing the Ninth Circuit, these

comments will sound uncannily familiar. They are precisely the kinds of comments

that give rise to the ‘‘perceptions’’ that the Commission relies on. Yet no one would

argue that the Court of Appeals for the Federal Circuit is too large and should be

divided into smaller adjudicative units.

I do not know whether the criticisms of the Federal Circuit are justified. Nor

would I want the Ninth Circuit to view the survey findings with complacency. I do

suggest that the ‘‘perception’’ evidence drawn from the survey offers little support

for the Commission’s conclusion that ‘‘large appellate units have difficulty developing and maintaining consistent and coherent law.’’

Finally, there is (to borrow a favorite allusion of Chief Justice Rehnquist) the evidence of the dog that did not bark in the night-time. If inconsistency is as much

of a problem as the Commission believes it is, examples should be easy to find. The

Commission compiled a voluminous record of testimony and statements dealing with

the Ninth Circuit, yet not a single witness came forward with examples—systematic

or even anecdotal—of conflicts between Ninth Circuit panel decisions. It is not even

clear what kinds of conflicts the Commission has in mind—whether it believes that

panels are ignoring relevant precedents, or that panels are drawing unpersuasive

distinctions, or some combination of the two.

The absence of examples and the lack of specificity are emblematic of the flimsy

evidentiary support that underlies the Commission’s plan. At most, the Commission

has shown that there is some dissatisfaction with the Ninth Circuit Court of Appeals’ performance of its law-declaring function. The Commission has not demonstrated the existence of problems that would be cured by dividing the court into

three largely autonomous decisional units.

III. CONCLUSION

The Commission’s proposal for regionally based adjudicative divisions reflects a

conscientious attempt to respond to criticisms of the Ninth Circuit Court of Appeals

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‘‘while preserving [an] administrative structure that no one has seriously challenged.’’ Unfortunately, the plan is flawed both in conception and in execution. It

is unlikely to accomplish its goals, and it has the capacity to produce much mischief.

I urge the Committee to reject the proposal and to allow the Ninth Circuit Court

of Appeals to continue its course of productive experimentation ‘‘to improve the delivery of justice in the region it serves.’’

PREPARED STATEMENT OF DANIEL J. MEADOR, JAMES MONROE PROFESSOR OF LAW

EMERITUS, UNIVERSITY OF VIRGINIA

MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: This subcommittee is to be

highly commended for setting in motion a process that will lead, I fervently hope,

to enactment of the essential provisions of S. 253. That bill embodies the recommendations contained in the Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals (the Commission), submitted to the Congress and the President on December 18, 1998. It was my privilege to serve as Executive Director of the Commission, and I am pleased to respond to the invitation to

submit a statement to the subcommittee.

Before my work with the commission this past year, I had spent more than a

quarter-century studying federal and state appellate courts and working with

judges, the Department of Justice, other organizations, and Congressional committees to improve those courts. So I present this statement not solely from the standpoint of my service as the Commisssion’s Executive Director—indeed I do not speak

here for the Commission—but as one who has labored long in the appellate vineyards, always, to borrow from Lord Macaulay, to reform them in order to preserve

them—to preserve them as vital organs of government under law in the face of continued docket growth and changing circumstances.

Pursuant to its Congressional mandate, the Commission spent ten months of intensive study of the courts of appeals, resulting in the most thorough and in-depth

examination of the federal appellate system since the Hruska Commission report of

1973 (Commission on Revision of the Federal Court Appellate System). While no

proposals for structuring the courts and adjusting their processes is perfect—there

are always advantages and disadvantages to be weighed—it is doubtful that any

other body can or will devote the time and resources to developing a better set of

proposals. Having looked to this Commission for guidance—and the Commission

having done what it was directed to do—Congress would do well, after hearings and

due deliberation, to enact into law its recommendations. If this opportunity to ’fix’’

the federal’ appellate courts for the next century is not taken, the thirty-five year

old controversy over the Ninth Circuit will continue to fester, with its dysfunctional

and debilitating consequences and with its damage to the status of the federal

courts in the public mind. Moreover, an opportunity will have been lost to equip all

the courts of appeals with the means of coping with future growth.

Inasmuch as the Commission’s report gives particular attention, as the statute directed, to the Ninth Circuit, I devote the bulk of my statement to that subject.

THE NINTH CIRCUIT AND ITS COURT OF APPEALS

The commission’s report provides an important insight that has not heretofore

been appreciated, namely, that there is a significant distinction between a judicial

circuit and a court of appeals. A circuit is purely an administrative entity, organized

on a territorial basis, and should be evaluated as such. A court of appeals, by contrast, is an adjudicative body, charged solely with deciding appeals. Informal discourse among lawyers and judges tends to equate the two. For example, when one

hears that ‘‘Judge X is on the Ninth Circuit,’’ it is understood as meaning that

Judge X is a member of the court of appeals for the Ninth Circuit. The statement

that ‘‘the Ninth Circuit held that * * *’’ is understood to mean that the Ninth Circuit Court of Appeals made such a holding. While this may be useful as shorthand,

it has the unfortunate consequence of leading persons to think that the circuit and

its court of appeals are indistinguishable. This leads to the assumption that the only

way to address problems of an overgrown court of appeals and to create more manageable appellate units is to split the circuit. The Commission’s report rejects that

premise and makes it plain that circuit splitting is not the only way to deal with

problems of growth in a court of appeals.

The commission’s enunciation of this distinction between circuit and court provides a valuable premise not only for dealing with the Ninth Circuit, but also for

the consideration of the nationwide circuit structure for many years to come. It is

hoped that Congress will accept and act upon this premise.

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After close examination of the Ninth Circuit, the Commission concluded that the

problems agitating much of the bench, bar, and public officialdom relate only to the

court of appeals and not to the circuit. Believing that the remedy should be tailored

to the problems, the Commission recommended that the circuit be left to function

intact administratively, but that the difficulties of the huge, 28-judge court of appeals—a court certain to grow larger in the years ahead—which purports to function

as a single decisional unit, be addressed by restructuring the court into regional adjudicative divisions, thereby creating smaller, more manageable appellate forums.

The benefits and advantages of the recommended divisional structure are these:

1. Heightened uniformity in circuit court law

An argument that has been heard against the divisional structure is that it will

increase intra-circuit conflicts, as the decisions rendered in one division need not be

regarded as binding precedents in other divisions. But the opposite is true; uniformity will be increased by a divisional structure. Currently, the court of appeals functions through dozens and dozens of ever-shifting panels. In practice, the court uses

more than 40 judges annually (district judges and visiting circuit judges, in addition

to its own judges). Those panels decide thousands of cases annually. In theory, a

decision by any one of those panels is considered to be a precedent binding on all

judges and panels of the court. But according to many participants and observers,

the vast body of case law generated by this multitude of panels is in many instances

unharmonious, ranging from direct conflicts to near-conflicts to divergences in tone

and reasoning. Those who assert that this is not the situation appear not to acknowledge the realities as seen by many others. In theory, the court’s existing en

banc process irons out all conflicts. But again, theory does not accord with reality.

According to many participants and observors, the court’s limited en banc procedure

is inadequate and ineffective to monitor and conform those thousands of decisions.

By contrast, the divisional structure would provide an effective means for maintaining uniformity within each division because its seven to 11 judges could monitor

all divisional decisions and could sit in a true en banc whenever necessary to resolve

conflicting panel decisions. There would thus be only three decisional units (the

three regional divisions) among which conflict could arise instead of the many dozens or hundreds of panels, as at present. When an interdivisional conflict did arise,

it could be resolved far more-quickly and inexpensively through the Circuit Division

than is possible with the current en banc process.

2. Reduced judicial burdens, increased coherence in settling circuit law

A key here is the recommended Circuit Division. It would be a continuously functioning body, with a stable, though gradually rotating, membership, drawn from

throughout the circuit, available at all times to resolve inter-divisional conflicts

quickly. There would be no administrative hassle in having to assemble a fresh

group of judges for each case, as is done in present practice. The Circuit Division’s

resolution of such conflicts would require no elaborate additional process, such as

en banc rehearings presently involve. It would resolve the conflict on the papers

filed in the regional division, without any additional briefing or oral argument. Its

sole mission would be to decide whether position A or position B should be adopted.

It would be, as some have said, a ‘‘tie-breaker.’’ Because it would be a stable, ongoing body, its judges would become accustomed to working together and could thus

dispose of business more efficiently. The present Ninth Circuit limited en banc functions through judges who are unlikely to have worked together before in deciding

cases and will never do so again—hardly the picture of an appellate court, as such

is understood in the Anglo-American legal world.

The Circuit Division should not be confused with the en banc procedure long familiar in the federal courts of appeals. It would be a quite different entity. In addition to being a stable on-going body, a key difference is that it would not be involved

in the difficult and controversial business of deciding important or unsettled legal

issues, where there is no inter-divisional conflict. It would act only when such a conflict is presented. The Circuit Division would, of course, need to decide when a conflict existed so as to act, but this would not involve any additional litigation. The

judges would examine the assertion of a conflict and decide for themselves, as a

matter of unreviewable discretion, whether there is indeed the kind of conflict that

needs circuit-wide resolution.

The divisional plan would make each judge a more effective monitor of the court’s

output and would enable each to play a meaningful role in shaping uniform case

law. Presently, no Ninth Circuit appellate judge can possibly read or even cursorily

glance at all of the thousands of decisions the court as a whole produces annually.

As a member of a division of from 7 to 11 judges, he or she could do so. Now each

judge must consider and respond to en banc calls from each of the other judges—

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27 when the court is at full strength. That takes time away from the routine business of deciding appeals and writing opinions. Under the divisional plan, each judge

would need to consider en banc calls from only six to ten other judges. Moreover,

when an en banc is held, every judge of the decisional unit—the division—can fully

participate, something that is impossible on the court of appeals as it is presently

organized.

The Circuit Division is, of course, another tier in the judicial system, but it is a

minimal tier, not, as just explained, one that involves the full panoply of briefing

and argument. It could act expeditiously on existing papers with minimal expense

to litigants. Moreover, some additional tiers in the system are probably inevitable,

as the volume of appeals and number of judges grow. Indeed, Justice Bryer, in a

letter to the Commission, suggested ‘‘tiering’’ in the judicial hierarchy as a promising approach to anticipated growth.

3. Restored relationship between the appellate forum and the people and territory it

serves; appropriate accommodation of Federal and regional interests

The federal appellate structure nationwide is built on the concept of regionalism,

balanced with concern for the federalizing function of the appellate courts—a concept endorsed by the Judicial Conference in its Long Range Plan. The larger the

circuit’s territory, the more attenuated the regional relationship becomes. The Ninth

Circuit is the extreme, and it is the sense of many judges, lawyers, and observers

that this relationship is there stretched too thin. Compare the Ninth Circuit, embracing nine large states, with most of the other circuits: 1st (four states), 2nd

(three states), 3rd (three states), 4th (five states), 5th (three states), 6th (four

states), 7th (three states), l1th (three states). To assert that the entire Ninth Circuit, stretching from Arizona to Alaska and from Montana to Hawaii, is a single region, in the sense relevant here, taxes credulity. One can reasonably ask why the

lawyers, litigants, and citizens in the territory of the Ninth Circuit should be denied

the benefits of regionalism enjoyed in those other circuits.

Regionally based divisions would bring the regional interest back into balance in

the Ninth Circuit, and would do so without splitting the circuit. The federalizing

function would continue to be served because each division would include the territory of more than one state, and judges from more than one state would sit on each

division.

In my view, this consideration alone is sufficient to call for enactment of the divisional plan, even if one does not accept the other arguments that support it.

4. An appellate court preserved

The commission’s report embodies a traditional conception of appellate courts derived from two centuries of experience. This traditional conception is that of a relatively small group of judges working regularly together in considering and deciding

appeals, collaborating in arriving at commonly agreed reasoning and result in each

case. Whether one agrees with the recommendations for a divisional plan for a court

as large as the Ninth Circuit Court of Appeals depends to a considerable extent on

whether one shares that view of an appellate court. Those who oppose the divisional

plan appear not to do so; acceptance of their view would work a radical alteration

in the nature of appellate courts. Thus, the federal appellate courts are at a crossroads, presenting Congress with the necessity of deciding the nature of those judicial bodies for generations to come. This decision involves a fundamental matter of

value judgment, one not determined by empirical studies or statistics or conflicting

factual assertions over whether there is this or that degree of inter-circuit conflict.

Rather, it involves belief rooted in experience about the nature of an institution.

Appellate judges do not act alone, as trial judges do. They must function as a

team, a team whose members are constantly interacting in the decisional process.

This conception is often summed up in the word ‘‘collegiality.’’ One of the best statements of this quality in an appellate court—what he called ’judiciality’’—comes from

Judge Frank Coffin, former chief judge of the U.S. Court of Appeals for the First

Circuit. He says that it involves ‘‘the deliberately cultivated attitude among judges

of equal status working in intimate, continuing, open, and noncompetitive relationship with each other * * *’’

It takes little imagination to understand that 28 judges, or any very large number, cannot work in an ‘‘intimate, continuing’’ relationship. In the Ninth Circuit,

each judge is unlikely to serve on a panel with any other judge of the court more

than once every three years. The judges may be acquainted with each other and cordial in their relationships, but they do not constantly function together in adjudicative work.

Under the traditional conception, an appellate court is a special kind of body, basically different from a legislative body or any other entity. Those who do not share

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this conception place little or no value on the kind of collegiality described by Judge

Coffin, and they see no problem in an appellate court of near infinite size. At the

Commission’s public hearings, some of those who defended the present organization

of the Ninth Circuit Court of Appeals were unwilling to say that a court of even

forty or fifty judges, attempting to function as a single decisional entity, presented

a problem. Apparently to those holding that view, a random threesome of strangers

brought together every three years is sufficient to satisfy the appellate process in

the American legal order. The Commission’s report implicitly rejects that view, and

I urge Congress to do so.

The divisional plan would preserve the traditional conception of an appellate court

by establishing decisional units of from seven to 11 judges each. The plan would

permit an indefinite number of judges to be added to the court to meet increased

business without eroding the essential nature of an appellate forum, as additional

divisions of this size could be created. Without such a plan, we will lose institutions

that have served the law well and will have in their place ever-growing Towers of

Babel, increasingly unknown courts composed of a vast number of semi-strangers.

THE COURTS OF APPEALS GENERALLY

As charged by statute, the Commission examined the structure and alignment of

the federal appellate system as a whole, and it did so with an eye to the future.

It reached these conclusions: (1) There will be continuing growth in the volume of

appeals in the years ahead. (2) The rapidity and magnitude of growth will vary

among the circuits and among types of cases. (3) It is impossible to predict with confidence any of these future developments beyond the assertions just made. Given the

difficulty of predicting the rate, amount, and type of growth in each circuit, the

Commission concluded that it is not prudent to prescribe by legislation at this time

a single set of structures and procedures for all courts of appeals. Rather, the commission recommended that each circuit and court of appeals be authorized in its discretion to employ any one of three defined and circumscribed options to meet its

particular docket situation.

1. The divisional concept as long-range solution to growth in the nationwide appellate system

The beauty of the divisional concept is that it not only deals effectively with the

present Ninth circuit situation, but it also provides a means of enabling courts of

appeals in other circuits to continue to function effectively as they grow larger, without splitting the circuit. If we adhere to the proposition that no circuit should consist of fewer than three states—endorsed by the Hruska Commission and re-endorsed by this Commission—there are now eight circuits that cannot be split. Yet

their courts of appeals are almost certain to grow. It is not difficult to imagine several of those courts with 20 or more judges within the next 10 to 15 years, a growth

that will be necessary in order to cope with their dockets. They will increasingly encounter the same problems that the Ninth Circuit now encounters. A divisional plan

of organization will enable those courts to function effectively in a situation where

circuit-splitting is not an option.

While the Commission was clear that the Ninth Circuit Court of Appeals is at a

point where a divisional structure is required, it was hesitant to say exactly where

that point is reached short of 28 judgeships. Thus, it concluded that the wise course

of action is to authorize any court of appeals with more than 15 judgeships to organize itself into divisions, in its discretion. This gives each court the ability to assess

its distinctive situation and design an appropriate internal structure.

2. Two-Judge panels

Because the courts of appeals now decide many appeals through a summary process, typically using staff attorneys, the Commission concluded that as to cases of

that type, each court of appeals should be authorized, in its discretion, to assign

them to panels of two judges instead of three judges. The report explains this option

in detail.

3. District court appellate panels

Shifting a portion of the appellate work to the trial level has long been advocated.

The Commission concluded that the idea is sufficiently promising that each Circuit

Judicial Council should have discretionary authority to establish district court appellate panels and assign designated categories of cases to those panels, each consisting of two district judges and one circuit judge.

In all of these options, the Federal Judicial Center would be charged with monitoring the procedure and reporting on the experience to the Judicial Conference of

the United States, which, in turn, would communicate its views to the Congress.

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MINOR CHANGES IN S. 253

1. In Section 2(c)(1) of the bill, I suggest that the following sentence be added at

the end: ‘‘A judge selected for service on the Circuit Division shall continue to perform regular judicial duties as a member of a regional division.’’ The reason for

this provision is to make it clear that selection for the Circuit Division does not

relieve a judge from his or her regional divisional duties. service on the Circuit

Division is simply an additional duty, as service on an en banc now is.

2. In Sections 2(e), 3(c), and 4(c), The Federal Judicial center is required to report

within three years after the date of enactment of the Act. This is much too short

a period of time within which to obtain a meaningful study and evaluation of

these procedures. After enactment of this bill, it is likely to take any court several

months to put the new structures or procedures in place and begin to function

under them. After collecting and evaluating data, it is likely to take the Federal

Judicial Center a substantial time to write a report. The upshot is that there

would be less than two years of experience on which a report could be based. That

is hardly even one appellate cycle. While the eight years recommended by the

Commission may be considered too long, three years seems clearly too short. I

suggest that the bill be amended to specify five years within which the FJC report

must be submitted.

As is always the case with proposals for change, opponents can raise an array of

hypothetical questions and imagined difficulties in their operation. And so it is here.

Having heard many, and maybe all, of them, I am satisfied that no one of them

amounts to a reason for rejecting the Commission’s recommendations. Some of the

imagined situations will never occur, and others will be worked out in practice. It

must be remembered that any new judicial structure, jurisdiction, or procedure will

go through an initial ‘‘shakedown’’ period after its adoption, during which kinks are

ironed out and uncertainties are clarified. It should also be borne in mind that much

of the opposition voiced to the commission’s recommendations comes, as members

of Congress no doubt understand, from the instinctive objection to change by some

judges and lawyers.

The relatively modest, evolutionary changes to the century-old federal appellate

system recommended by this Congressionally created Commission are needed to

preserve the appellate courts as we have known them in the face of unprecedented

growth. After three decades of debates, conferences, committee hearings, studies,

and reports, I respectfully submit that it is time for Congress to act.

PREPARED STATEMENT OF JOSEPH T. SNEED, III

INTRODUCTORY REMARKS

I shall devote the initial Portion of this presentation to what the entire federal

judicial system should resemble fifty years hence. I do this because whatever happens to the Ninth Circuit in the near future should anticipate that future to the

extent possible.

Certain assumptions about future developments are quite reasonable. These include the increasing dominance of federal law over state law and continuing increases in the number of lawyers. In short, all signs point to a continuing increase

in federal litigation and a corresponding increase in the number of federal judges

serving the nation, Unfortunately, no other assumption appears reasonable.

This means this Commission, in my opinion, must base its recommendations on

that assumption. When so based I submit that the commission must proceed in one

of two basic directions. The first would be to preserve the existing Ninth Circuit as

a model for the future, and recommend the eventual consolidation of the remaining

circuits into Eastern, Midwestern, Southern, and Southwestern circuits. This, or

something resembling it, is the ‘‘Mega-Circuit’’ vision. Within such circuits there

would very likely develop specialized circuit agencies, such as the present bankruptcy appellate panels, functioning between the district court and the Mega-Circuit

court.

The second assumption upon which this commission might proceed is that the

number of circuits should be increased as the caseload drives the need for additional

judges power in a given circuit above a range between, I would say, 17 to 21 circuit

judges. In due course this will create the need for the creation of a court to serve

as an auxiliary to the Supreme Court. It is on the basis of this second assumption

that my written remarks are based.

My remarks are addressed to the present geographic configuration of the Ninth

Circuit Court of Appeals. My position is that it should be divided. This conclusion

is based on the following considerations.

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The case filings in this Circuit have increased 63 percent in the past ten years.

They were 5,490 in 1987, and 8,692 in 1997. Also, the number of motions filed in

this circuit have increased. They were approximately 8,643 in 1987, and 12,028 in

1997. Our en banc hearings in 1987 were 15, and those in 1997 were only 8. The

total number of habeas corpus cases was 786, which include 37 death penalty cases.

The total number of prisoner petitions was 2,151. The total number of pro se appeals was 3,424. In the past several years our active judge power has substantially

declined (for which Congress is largely responsible) and this further hampered the

Circuit’s ability to keep abreast with case filings and en banc calls.

I. SOME CONSEQUENCES OF SIZE

A. Collegiality

In many respects the consequences of these facts are more important than the

facts themselves. The size of the Circuit dictates that active and some senior judges

spend an inordinate amount of time in travel. While much work is done without the

necessity of travel by means of the telephone and e-mail, it remains true that rarely

is the full court assembled in one location. The annual symposium of three or four

days provides one of the few opportunities for such assembly. The Judicial Conference is too large and concerned with matters not always relevant to circuit business.

There are inescapable consequences that flow from these conditions. One is the

increasing inability to disagree respectfully. Too frequently a disagreement on the

law leads to sharp verbal thrusts that on occasion become infected with distinct hostility. Another is that the formal court meeting must be devoted to reporting to

those judges present the activities of the Chief judge, the Executive Committee, and

various other committees of the court.

To some extent the conditions I have mentioned also exist in smaller circuits. My

point is that they are made more intense by the large number of judges in the

present Ninth Circuit and their vast geographic dispersal. This heightened intensity

slowly undermines the obligations of collegiality and subtly excuses one’s failure to

perform them. Those obligations are more easily met, or perhaps one should say induced, in smaller circuits. Frequent encounters, a lunch, or an exchange of social

events softens the edge of legitimate judicial differences.

It is true that to some degree appellate judges must be reasonably courteous to

one another. However, when this obligation is burdened with unspoken hostility,

courtesy is marked by reserve and restraint.

it is undeniable that without regard to the size of the court judges will differ in

their approach to the nature of their duties. Usually this difference reveals itself in

the manner in which a judge utilizes precedents. All precedents can be squeezed or

stretched. Every judge sometimes resorts to both. These practices, unchecked by frequent personal encounters with each of one’s colleagues, tend to generate en banc

calls which can lead to intemperate remarks that further strain the obligations of

courtesy.

In my opinion, a court smaller than the present Ninth Circuit will better impose

a curb on these tendencies. The increasing frequency of the necessity of justifying

such tendencies to a relatively small group of colleagues gradually produces a movement of all toward the center more or less satisfactory to most. 33.

The en banc process

The reduced force of this pressure toward the center in courts the size of the

Ninth circuit increases the likelihood of resort to the en banc process. This was recognized when the Ninth circuit was increased in size to twenty-three active judges.

However, an en banc court of twenty-three judges is not practical. Then-Chief Judge

Browning designed and secured approval from the Court and Congress of a limited

en banc process whereby a case voted by a majority of the active judges would be

placed before a panel of eleven active judges chosen by lot from among all active

judges.

The element of chance in this process, while tolerable with a court of twenty-three

active judges, becomes, I submit, increasingly capricious as the authorized strength

of the Ninth circuit increases. A similar en banc process of a court of forty- one, for

example, very likely will not be tolerated. What then is the proper size? Certainly

the en banc court should be larger than the present eleven. But how much larger?

What is the proper balance between representational fairness and operational efficiency of the en banc panel? Today it would be possible to recommend that the en

banc court be increased by small increments as the authorized-strength of the court

grows. I strongly suggest that this is an inappropriate course for this Commission

to endorse.

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1While these combined figures do not correspond to the total number of case filings in 1997,

such discrepancy can be explained by the omission of case filings from Guam (61) and the Northern Mariana Islands (12).

C. Other ameliorative possibilities

No doubt there are procedures available now or relatively soon that would, or

could, ameliorate the disadvantages of the enormous geographic area embraced by

the Ninth Circuit. For example, e-mail has reduced the delays in inter-chambers

communication enormously. Video conferencing would permit intra-panel conferencing as well as possibly oral arguments heard and seen by all participants without

leaving their chambers or law offices. The number of appeals entitled to full scale

oral argument also could be substantially reduced by practice or legislation. Indeed,

in this circuit during my tenure this has been done by practice and without too

much protest. Progress in this direction could be formalized by creating at the circuit level an equivalent of the Supreme Court’s certiorari process. In such a system,

much of the screening process would be done by staff lawyers rather than elbow

clerks.

D. The legitimacy concern

No doubt other measures aimed at increasing our disposition capacity will be suggested in presentations to this Commission. While I cannot be dogmatic, I must suggest that many of these techniques will reduce the legitimacy of a key part of the

federal judiciary—the Circuit Courts of Appeals. That legitimacy ought not to be

eroded. It contributes enormously to permitting the Supreme Court to limit its

grants of certiorari to very important cases secure in the knowledge that all cases

from the district courts have been carefully screened for error by the circuit courts.

We should not erode the legitimacy of the security on which the Supreme Court relies.

II. A PROPOSED SOLUTION

I suggest that an appropriate and relatively long-term solution is the enactment

of a law dividing the Ninth Circuit and thereby creating a Twelfth Circuit consisting

of the northwest states of Oregon, Washington, Idaho, Montana, and Alaska. This

is not a new idea; it has been discussed at least since the 1930’s. Indeed in the early

1950’s then-Chief Judge Denman briefly promoted the idea for which at that time

there was some support among the circuit judges from the northwestern states.

A. The Northwest as a ‘‘bloodbank’’ for California

The late Chief Judge Chambers, then only recently appointed to the Ninth Circuit, opposed the idea at least in part because it was his firm belief that only by

including the northwestern states in the circuit would sufficient judges be nominated and confirmed by the Senate of the United States to enable the Ninth Circuit

to handle with dispatch the appeals that were filed by and on behalf of Californians.

In his inimitable style Chief Judge Chambers put it this way: ‘‘The Northwest is

the bloodbank for California.’’

An issue before this Commission is whether that belief remains valid. I would

argue that it does not. In 1950 the population of the then existing states of the

northwest was approximately 5,366,000. Today the population of those states, plus

the State of Alaska, is approximately 10,826,000. The combined populations of California, Arizona, Nevada and Hawaii is now 38,524,016. cases filed in the Ninth Circuit in 1952 originating in the northwestern states numbered 142. In 1997 the number of cases originating in those states reached 1,973. I submit that a Twelfth circuit

is justified by these numbers. It remains true that the filings originating in California and the states of Nevada, Arizona and Hawaii in 1997 are greater than those

of the northwestern states. In that year they were 6,646.1

These numbers clearly indicate that the case filings in the suggested Twelfth circuit are sufficient to justify its existence. Obviously the same is true of the reconfigured Ninth circuit. The only serious issue is whether the late Chief Judge Chambers, ‘‘bloodbank’’ strategy remains necessary to secure enough circuit Judges in the

southwest four-state circuit to dispose in a timely fashion of the appeals originating

in California.

I submit that the political power of California, one of the giants of the Union of

States, is sufficient to provide that protection. While it has only two senators, the

Arizona-Nevada-Hawaii-California Circuit would have a comfortable eight plus

many congressmen to assist in protecting California’s interest in securing the needed judges. The west is no longer that ‘‘area beyond the Rocky Mountains’’ but an

area rivaling the eastern seaboard in national influence.

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B. An alternative approach

Moreover, there exists a method by which Congress could eliminate, or substantially reduce, California’s reliance on the northwest ‘‘blood bank.’’ This Commission

should press Congress to enact, contemporaneously with the creation of a northwest

circuit, a provision requiring that a certain percentage of the judges of the resulting

southwest Ninth Circuit be from the State of California. Under the present figures,

roughly 75k of the cases filed in the Ninth Circuit, which have their source in the

four states of California, Nevada, Arizona, and Hawaii, are California cases. Thus,

it would be quite reasonable to provide that three out of five (60 percent) of the appointments should involve residents of California. No doubt were such a requirement written into the law, the Senators of these states would devise an orderly

process of rotation of making their recommendations to the President. Moreover, it

is likely that the percentage assigned to California would be subject to negotiation.

The minimum percentage assigned to California should never be permitted to fall

below one-half of the total active judge strength of the southwest circuit.

I cannot predict whether legislation structured along these lines is politically feasible. On the other hand, to release the northwest from the Ninth Circuit and simultaneously to assure California of a respectable share of Ninth Circuit appointments

has considerable appeal to both the northwestern states as well as to California.

Moreover, it should not antagonize Nevada, Arizona, or Hawaii.

C. A California split between two circuits

It was suggested some years ago that a portion of California remain in the Ninth

Circuit and the remainder be assigned to a northwestern circuit. The inevitable differences in the interpretation of California law and the application thereto of federal

statutory and constitutional law would make necessary either the creation of ponderous procedures to harmonize these conflicts or the imposition of that duty on the

Supreme Court. Moreover, I would suppose that California practitioners and their

clients would not welcome such a structure.

I do not favor this partitioning of California.

III. THE FUTURE OF CIRCUIT COURTS OF APPEAL

I have not to this point chosen to address directly the larger questions of whether,

how, and, if so, when the existing structure of the Circuit Courts of Appeal should

be altered. My focus on the Ninth Circuit is responsive to a significant portion of

the mandate given by Congress to this Commission. Nonetheless, it is obvious that

there is a link between what is proper for the Ninth Circuit and the future of Circuit Courts of Appeal in general.

It is clear that I do not support the creation of what have been called mega-circuits. In such circuits judges become mere overseers of a large staff, both within and

without the chambers, in which an increasing number of cases are decided without

a judge, or his or her elbow clerk, having examined the record with care. I do not

argue that such practices frequently result in disaster. That would not be true. I

do argue that the citizens of the United States, properly informed, would not believe

that such a system amounts to equal justice to all? To forfeit the faith that equal

justice exists is not a risk that should be encountered lightly.

I recognize that to downsize the geographical limits of circuits, as case filings exceed the limits of direct personal involvement of individual circuit judges, could lead

to a substantial increase in the number of circuits. This in turn creates pressures

for the creation of one or more judicial bodies to assist the Supreme Court in administering and establishing the law of the United States.

I regard this possibility more remote in time than the existence of mega-circuits.

Therefore, at this point the downsizing of circuits to stabilize and maintain the direct involvement of circuit judges in a substantial portion of the case filings is the

cautious and proper course to follow.

CONCLUSION

I close my remarks by observing that the geographic reach of the Ninth Circuit

is enormous, embracing that remnant of manifest destiny. Guam, as once it did the

treaty port portion of Shanghai. This enormity has an undeniable appeal to many,

not excluding the judges who sit thereon. Our fascination with size is one shared

by most Americans without regard to their station in life. It is part of our sense

of identity.

Nonetheless, it is out of place as a factor in determining whether the Ninth Circuit should be split. Our goal should be to design an appellate structure that will

most satisfactorily serve the citizens of the states of Alaska, Washington, Idaho,

Montana, Oregon, California, Nevada, Arizona, Hawaii, and the Commonwealth of

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the Northern Marianas, and the Island of Guam. It is by that standard that the

work of this Commission, as it relates to the Ninth Circuit Court of Appeals, should

be judged. In that process the many virtues of the Ninth circuit’s past should not

be controlling.

PREPARED STATEMENT OF CIRCUIT JUDGE DAVID R. THOMPSON

SUMMARY

The Ninth Circuit Court of Appeals has established an Evaluation Committee

which Judge Thompson chairs. The Committee is evaluating the processes of the

Circuit Court. To date, the Committee has considered issues within the categories

of Consistency of Decisions, Regional Sensitivity, Collegiality, Productivity and the

Court’s En Banc Process.

To identify cases perceived to create conflicts, the Committee will use its staff attorneys to review opinions; it also intends to implement a process to permit district

judges and the bar to bring potential conflicts to the Court’s attention. The Court

is experimenting with the regional assignment of judges, and is examining the issue

of ‘‘collegiality’’ in the context of how it may impact the work of the Court. To increase productivity, the Committee is considering an ‘‘assault’’ on pending cases, and

making changes in the Court’s calendaring procedures. With regard to the en banc

process, the Committee intends to make recommendations for increasing the number of judges on the en banc court and decreasing the voting number necessary to

take a case en banc.

The work of the Committee is ongoing. The Ninth Circuit can experiment with

changes to respond to perceived concerns with far less disruption, and at far less

cost, than a whole new divisional structure.

MR. CHAIRMAN, MEMBERS OF THE SUBCOMMITTEE: My name is David Thompson.

I am a Senior Circuit Judge of the United States Court of Appeals for the Ninth

Circuit. My chambers are located in San Diego, California. I am also Chairman of

the Ninth Circuit Court of Appeals’ Evaluation Committee, and it is in that capacity

that I appear before you today.

Thank you for the opportunity to present these remarks with regard to your review of the Report of the Commission on Structural Alternatives for the Federal

Courts of Appeals regarding the Ninth Circuit and Senate Bill 253, the Ninth Circuit Reorganization Act.

The Evaluation Committee was created by the Ninth Circuit in response to perceived concerns raised by the White Commission Report. The Committee’s task however, is part of the Ninth Circuit’s ongoing annual reevaluation of its practices and

procedures pursuant to its Long Range Plan. The White Commission Report simply

focused the task of the Committee.

It is not the task of the Committee to quibble with the White Commission Report.

The strengths and deficiencies of that report have been pointed out and analyzed

by others. The task of the Evaluation Committee is to accept the perceived concerns

expressed in the White Commission Report and by others and to respond to those

concerns.

The Committes’s mission statement was developed at its first meeting on March

23, 1999. That mission is,

To examine the existing policies, practices and administrative structure

of the Ninth Circuit Court of Appeals, in order to make recommendations

to its judges to improve the delivery of justice in the region it serves.

The Committee—consisting of Ninth Circuit judges from different regions within

the Circuit, as well as a representative from the district court bench, a prominent

scholar of the federal appellate courts, and an experienced appellate practitioner—

has met on a number of occasions over the past months. The Committee has considered a wide variety of issues within the following categories of subjects:

Consistency of Decisions

Regional Sensitivity and Outreach

Collegiality

Productivity

The En Banc Process

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The work of the Committee is ongoing. None of the foregoing subjects has been

exhausted, although the Committee has considered and given varying degrees of

study and evaluation to each.

CONSISTENCY OF DECISIONS

There is no objective evidence—none whatsoever—that decisions rendered by the

Ninth Circuit Court of Appeals are infected with inconsistency to a degree greater

than any other circuit. Because of the Ninth Circuit’s size, however, the perception

is that there must be inconsistencies in its decisions. How could there not be with

so many panels issuing so many opinions? The answer is that there is not a significant number of inconsistencies in decisions and any conflicts that have occurred

have been resolved by the Circuit’s en banc process. The task of the Committee,

however, is to increase the Circuit’s ability to recognize potential or perceived conflicts early on and deal with them immediately. To do this the Committee is considering methods that will enable judges of the district courts and practitioners to

bring perceived conflicts to the Court’s attention. These methods include establishing an ‘‘electronic mailbox’’ to receive such communications, and participating in

outreach programs to contact the bench and bar throughout the Circuit through

meetings and focus group encounters.

In addition to increasing the Court’s awareness of any potential conflicts in filed

decisions, the Committee is experimenting with gathering data from all opinions before they are filed. To do this, the Committee will draw upon the expertise of the

Ninth Circuit’s staff attorneys. These attorneys are divided into areas of expertise—

criminal law, environmental law, immigration law, to name a few. The staff examines all opinions sent to the clerk’s office for filing—before the opinions are filed.

The staff has been asked to identify any case that (a) expressly distinguishes one

or more Ninth Circuit precedents; (b) expressly rejects one or more precedents of

other circuits; (c) has a dissent; (d) holds a federal statute unconstitutional; (e) holds

a state statute or initiative measure unconstitutional; or (f) holds invalid a published regulation of any agency or department of the federal government. The idea

is to give the staff attorneys objective criteria with which to spot potential conflicts

and sensitive decisions and call those to the court’s attention. Members of the Evaluation Committee, on an individual judge volunteer basis, will examine reports from

the staff to determine whether a conflict appears to be real or more likely falls within those classes of cases in which a panel typically points out differences between

existing authority and the present case.

Currently, judges of the Court review opinions when they are first published in

slip opinion form. Conflicts may be discovered by this process. It is anticipated, however, that the specialized work of the staff attorneys applying objective criteria will

increase the Circuit’s ability to identify any conflicts.

REGIONAL SENSITIVITY AND OUTREACH

Responding to regional sensitivity, the Committee is experimenting with the regional assignment of judges. Under this process, at least one judge from the three

administrative units in the Circuit—southern, middle and northern—will sit on a

three-judge panel hearing cases that arise within that judge’s ‘‘home’’ administrative

region. Whether such a regional assignment of judges will prove to be a good or a

bad idea we do not know. Those who think it’s a good idea argue that it is important

to have a judge from the area where a case arises sit on a panel that decides the

case. Those who think it’s a bad idea argue the concept of regional assignment violates the principle of random selection of judges, and that the law federal judges

are called upon to apply is uniform national law.

Regional sensitivity also covers outreach to the communities served by the Ninth

Circuit. For years, the Court has, on occasion, sat in various cities throughout the

Circuit where the Court ordinarily does not sit. Those sittings, however, because of

a lack of facilities and the difficulty in gathering enough cases from a particular region to fill a week’s argument calendar, have not occurred as often as they might

have. The Court is currently experimenting with holding more Court sittings in

more cities. The intention is to combine these sittings with bench-bar activities to

develop communication with all areas of the circuit and find out if there are problems which the Court should confront.

COLLEGIALITY

In addressing the subject of collegiality, the first task is to define what we mean

by that term. If the meaning is derived from the usual comment made of a large

circuit that there are too many judges to permit the growth of a warm and fuzzy

feeling among them, that, to put it bluntly, is ridiculous. To the contrary, judges

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in a larger circuit are not thrown together as often as in smaller circuits, thus reducing occasions for potential tension between differing and strong personalities.

If we mean by ‘‘collegiality’’ the ability of judges to enjoy each other’s company

at social gatherings, that is a non-problem because even the most ardent opponents

can hit it off with one another for a limited time when they are not called upon

to come to grips with issues of substance that divide them.

More aptly, I believe the issue of collegiality can be defined as the ability of judges

to hammer out opinions, with knowledge of the idiosyncracies of each other enhanced by having sat together frequently. I believe this is the concept of collegiality

expressed in the White Commission Report. It assumes that the law of a circuit will

be more consistent (either consistently right or consistently wrong) if the judges of

that court over a period of time come to some common understanding of what it will

take to get at least two of three judges on a panel to agree to an opinion. This seems

to be the aspect of collegiality that we, as a Committee, should be studying. In any

event, we are proceeding with defining the term (which the White Commission referred to as ‘‘elusive’’) and determining how we should respond to the concern that

collegiality, whatever it means, is lacking in a large circuit, and if it is, whether

it impacts the delivery of justice to any significant degree.

PRODUCTIVITY

The distinguished Senator who chairs the Subcommittee on Administrative Oversight and the Courts has remarked that to accomplish a big job doesn’t necessarily

require more people to do the work; it requires people to work smarter. The Ninth

Circuit has taken this view to heart as it has coped with extreme vacancies in the

number of its active judges. For a good portion of the past few years, the Court has

operated with two-thirds or less of its full, active judge complement. The Court has

28 active judgeship slots, and only 21 are currently filled. Regardless of where the

blame lies for this failure to provide the Ninth Circuit with the judges it needs to

do its work, the Court has held its own. Are the Ninth Circuit judges working hard?

You bet they are! The Ninth Circuit is among the fastest, if not the fastest, in filing

decisions following oral argument. The challenge, however, is to work smarter.

The Evaluation Committee has under consideration the possibility of mounting an

‘‘assault’’ on the volume of pending cases. To do this, the Circuit would assemble

panels of judges to attack certain batches of cases, those with similar issues or at

least those falling within the same category of law. Panels would decide one after

another of these cases as quickly as possible, perhaps hearing oral argument in combined cases which raise common issues. The Court is already doing this to some extent in its calendaring process, but the assault would involve a major effort by all

judges of the Court, senior and active alike. The obvious downside of this is that

to move judges from what they are currently doing to a new task may not result

in any net gain. This proposal is currently under consideration.

Using some features of the ‘‘assault’’ concept, the Committee is currently experimenting with increasing the identification of cases with similar issues and assigning

a lead case or cases to a particular panel, notifying the parties in all of the following

cases that a decision affecting their case will be made by the lead case. We anticipate lawyers for parties in following cases may participate in sharpening the briefing and argument in the lead case. The lead-case concept concentrates the decisional

process in one three-judge panel, rather than defusing it among a number of judges

on different panels. Once a decision in the lead case is made, the following cases

should settle, or at least they could be disposed of without extensive disposition

time.

Increased productivity has already been achieved in the Ninth Circuit by the use

of the Court’s motions and screening calendars. Each month, a special screening

panel of three judges sits in San Francisco. These special panels are deciding an

average of 340 motions, and disposing of 140 appeals on the merits, every month.

This is in addition to the Court’s regular work. If the Court had more judges, it

could increase this output. Without more judges the Court seems to be at its limit

in this area, but the Committee is nonetheless trying to figure out some way to increase this aspect of the Court’s productivity.

THE EN BANC PROCESS

As you know, the Ninth Circuit has a limited en banc. When a case is taken en

banc, 11 judges of the Court sit as the en banc court. With the current active judge

complement of 21 judges, this represents a majority of the active judges of the

Court. But it does not include all of the active judges. A perceived concern is that

because all of the active judges do not sit on the en banc court, the en banc decision

does not reflect the views of all judges.

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In considering this perceived concern, the Committee enlisted the assistance of

academic experts. These experts were drawn from a variety of disciplines. They are:

Professor Linda Cohen, Department of Economics, University of California, Irvine;

Professor John Ferejohn, Hoover Institute, Stanford, California; Professor Lewis

Kornhauser, New York University School of Law; Professor Matt McCubbins, Department of Political Science, University of California, San Diego; and Professor

Roger Noll, Department of Economics, Stanford University, California. We provided

this distinguished group of scholars with copies of the White Commission Report,

together with the rules, procedures and statistics relating to the Ninth Circuit’s en

banc court process. The findings of this group were that the Court could achieve approximately 93 percent representation of the views of all judges of the court if the

limited en banc Court consisted of 7, yes seven judges. Increasing that number to

11 achieved a representative percentage of approximately 95 percent, and increasing

the number to 13 increased the percentage to about 96 percent. This scientific report

indicates there would be little to gain from the standpoint of statistical reliability

by increasing the number of judges on the en banc court.

Nevertheless, the Evaluation Committee recognizes that the perception of justice

is as important as justice itself. If the perception is that there should be more judges

on the en banc court, increasing the number of judges on the en banc court is something the Court should consider and act upon. The Committee intends to make a

recommendation to the Court on this subject at the Court’s next meeting on July

27, 1999.

Another facet of the en banc process is the ease, or lack thereof, by which a case

is taken en banc. Justice O’Connor has suggested that the Ninth Circuit should take

more cases en banc. One way to achieve this would be to decrease the number of

judges required to vote for en banc. Currently, to take a case en banc requires the

affirmative vote of at least a majority of the active judges of the Court. By contrast,

in the Supreme Court, certiorari is granted on the vote of four of the nine justices.

Question: Should the Ninth Circuit consider adopting a formula by which fourninths (roughly 45 percent) of the votes of its active judges would be enough to take

a case en banc? This would require a statutory change, but the Committee is considering something along this line. As we consider the issue, however, we have in mind

that increasing the number of cases taken en banc as well as increasing the number

of judges on the en banc court will most assuredly increase the judges’ workload—

on a Court already operating one-third below its authorized strength. This increased

workload might be offset to some extent by choosing judges to sit on an en banc

court to hear several cases at one time, rather than choosing judges to sit on separate en banc courts for each en banc case. To this end, the Court has adopted a

procedure, on an experimental basis, for the en banc court to sit approximately

quarterly throughout the year, hearing a number of cases, rather than having a different en banc court selected to hear each en banc case.

CONCLUSION

There is no ‘‘conclusion’’ to this statement. As stated at the outset, the work of

the Evaluation Committee is ongoing. The Ninth Circuit has always been willing

to re-evaluate itself, its performance, and to experiment with innovations that would

lead to greater efficiency and effectiveness. The annual evaluation of the Ninth Circuit Long Range Plan is specifically designed to do so. Concerns that have surfaced

in the Final Report of the Commission can be addressed with far less disruption

than a whole new divisional structure.

The Ninth Circuit, through its Evaluation Committee, is in the midst of reevaluating itself, its performance and experimenting with innovations to lead to greater efficiency and effectiveness. The Ninth Circuit Court of Appeals can accomplish these

goals, and address the Commission’s concerns, with far less cost and far less disruption than a whole new divisional structure.

Respectfully submitted,

DAVID R. THOMPSON,

Senior Circuit Judge, Ninth Circuit Court

of Appeals, Chair of the Evaluation Committee.

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