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94–844 PDF 2004

S. HRG. 108–537

IMPROVING THE ADMINISTRATION OF JUSTICE:

A PROPOSAL TO SPLIT THE NINTH CIRCUIT

HEARING

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

APRIL 7, 2004

Serial No. J–108–64

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

JEFF SESSIONS, Alabama, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

LARRY E. CRAIG, Idaho 

JOHN CORNYN, Texas 

CHARLES E. SCHUMER, New York 

PATRICK J. LEAHY, Vermont 

RUSSELL D. FEINGOLD, Wisconsin 

RICHARD J. DURBIN, Illinois 

WILLIAM SMITH, Majority Chief Counsel 

JEFF BERMAN, Democratic Chief Counsel 

(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 7

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 4

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 5

prepared statement .......................................................................................... 99

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 101

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 1

prepared statement and attachments ............................................................. 184

WITNESSES 

Coughenour, John C., Chief Judge, District Court for the Western District 

of Washington, Seattle, Washington .................................................................. 46

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................ 8

O’Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit, 

Portland, Oregon .................................................................................................. 14

Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the Ninth Circuit, Phoenix, Arizona .......................................................................................... 11

Tallman, Richard C., Judge, Court of Appeals for the Ninth Circuit, Seattle, 

Washington ........................................................................................................... 18

Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh Circuit, Jacksonville, Florida .................................................................................................... 43

Wallace, J. Clifford, Senior Judge, Court of Appeals for the Ninth Circuit, 

San Diego, California ........................................................................................... 21

QUESTIONS AND ANSWERS 

Responses of Mary M. Schroeder to questions submitted by Senator Feinstein 51

SUBMISSIONS FOR THE RECORD 

California Academy of Appellate Lawyers, Jerome I. Braun, for James C. 

Martin, President, Los Angeles, California: 

letter April 19, 2004 ......................................................................................... 55

letter February 24, 2004 .................................................................................. 57

California Public Defenders Association, Michael T. Judge, Chairperson, Legislative Committee Sacramento, California, letter ............................................ 58

Cebull, Richard F., District Judge of Montana, Billings, Montana, letter .......... 61

Crapo, Hon. Mike, a U.S. Senator from the State of Idaho, prepared statement ...................................................................................................................... 62

Coughenour, John C., Chief Judge, District Court for the Western District 

of Washington, Seattle, Washington, prepared statement ............................... 64

Curley, Sarah Sharer, Chief Judge, District of Arizona, Bankruptcy Court, 

Phoenix, Arizona, letter ....................................................................................... 68

Ensign, Hon. John, a U.S. Senator from the State of Nevada, prepared statement ...................................................................................................................... 71

Federal Bar Association, Joyce E. Kitchens, National President, Atlanta, 

Georgia, prepared statement ............................................................................... 73

Haddon, Sam E., District Judge, District Court of Montana, Great Falls, 

Montana, letter ..................................................................................................... 75

Hawaii State Bar Association, Dale W. Lee, President, Honolulu, Hawaii, 

prepared statement .............................................................................................. 76

Page

IV

Kleinfeld, Andrew J., Circuit Judge, Court of Appeals, Ninth Circuit, Fairbanks, Alaska, letter and attachment ................................................................ 78

Locke, Hon. Gary, Governor, State of Washington, Olympia, Washington, 

letter and attachment .......................................................................................... 103

Los Angeles County Bar Association, Robin Meadow, President, Los Angeles, 

California, prepared statement ........................................................................... 107

Malkin, Harold, Esq., Seattle, Washington, letter ................................................ 109

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, prepared 

statement and attachments ................................................................................. 111

Nielsen, William Fremming, Senior U.S. District Judge, Eastern District of 

Washington, Spokane, Washington .................................................................... 120

O’Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth Circuit, 

Portland, Oregon: 

prepared statement .......................................................................................... 122

letter, May 7, 2004 ........................................................................................... 140

Perris, Elizabeth L., Bankruptcy Judge, Oregon Bankruptcy Court, Portland, 

Oregon, letter and attachment ............................................................................ 144

Roll, John M., District Judge, District Court of Arizona, Tucson, Arizona 

letter, October 8, 2003 ...................................................................................... 150

letter, November 4, 2003 .................................................................................. 154

letter, April 5, 2004 .......................................................................................... 160

letter, April 29, 2004 ........................................................................................ 168

letter, May 21, 2004 ......................................................................................... 170

Santa Clara County Bar Association, Lisa Herrick, President, Santa Clara, 

California, prepared statement ........................................................................... 173

Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the Ninth Circuit, Phoenix, Arizona: 

prepared statement .......................................................................................... 175

letter, April 19, 2004 ........................................................................................ 180

letter, May 5, 2004 ........................................................................................... 182

State Bar of Arizona, Pamela A. Treadwell-Rubin, President, Phoenix, Arizona, letter ............................................................................................................ 203

State Bar of California, Charles V. Berwanger, Litigation Section, San 

Franclsco, California, letter ................................................................................. 204

Tallman, Richard C., Judge, Court of Appeals for the Ninth Circuit, Seattle, 

Washington, prepared statement ........................................................................ 207

Tamm, Bradley R., Attorney at Law, Honolulu, Hawaii, letter ........................... 226

Thomas, Sidney R., Circuit Judge, Court of Appeals, Billings, Montana, letter 228

Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh Circuit, Jacksonville, Florida, prepared statement ................................................................. 244

Van Sickle, Fred, Chief Judge, District Court, Eastern District of Washington, 

Spokane, Washington, letter ............................................................................... 268

Wallace, J. Clifford, Senior Judge, Court of Appeals for the Ninth Circuit, 

San Diego, California, prepared statement ........................................................ 270

Witherspoon, Kelley, Davenport & Toole, Attorneys & Counselors, Spokane, 

Washington: 

Bhan T. Rekofke, Harvey Saferstein, Margaret Carew Toledo, letter, April 

21, 2004 .......................................................................................................... 275

Leslie R. Weatherhead, letter, April 21, 2004 ................................................ 277

(1)

IMPROVING THE ADMINISTRATION OF JUSTICE: A PROPOSAL TO SPLIT THE NINTH 

CIRCUIT 

WEDNESDAY, APRIL 7, 2004 

UNITED STATES SENATE, 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE

COURTS, COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:02 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions, 

Chairman of the Subcommittee, presiding. 

Present: Senators Sessions, Kyl, Craig, and Feinstein. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Chairman SESSIONS. Good morning. The Subcommittee on Administrative Oversight and the Courts will come to order. I am 

pleased to convene this hearing on the division issue of the Ninth 

Circuit. I think we have great panels today, and I look forward to 

a very interesting and informative hearing. 

I guess the first question one would ask is why are we discussing 

a division of the Ninth Circuit now. To answer that question, we 

need to appreciate the basic purposes of a Federal court of appeals. 

In our Federal judicial system, an appellate court has two basic 

functions. First, it must review lower court and agency decisions. 

In this regard, it acts effectively as a court of last resort, since the 

Supreme Court reviews very few courts of appeals decisions each 

year. 

Second, to borrow from Chief Justice Marshall’s famous opinion 

in Marbury v. Madison, it must say clearly and consistently ‘‘what 

the law is’’ for that circuit. Uncertainty in the law frustrates litigants, encourages wasteful lawsuits and undermines the rule of 

law. 

We will discuss today with regard to the circuit the fundamental 

facts of it, its size, and discuss the pros and cons of division. We 

will not be discussing opinions or judicial philosophy or matters of 

that nature. I think that is not really what we should be about 

today. 

How well does the Ninth Circuit fulfill the basic functions I outlined earlier? We start with some facts. The Ninth Circuit is the 

largest circuit in our system by far. It covers almost 40 percent of 

the land mass of the United States. It stretches from the Arctic 

2

Circle to the border of Mexico and rules almost one-fifth of the population of the country. 

It now has 28 authorized judgeships—11 more than the next circuit, as this chart shows, and almost 17 more than the average circuit. It has 21 senior judges, who provide a great service to the 

court. Many senior judges carry virtually a full caseload, and I 

know with the caseload you have in the Ninth Circuit you wouldn’t 

be able to get along without them. 

It is therefore not much of an exaggeration to say that the Ninth 

Circuit panel assigned to a particular case, when you have as many 

judges as you can draw from, is a sort of luck-of-the-draw panel. 

In addition, district judges are called up to sit, and visiting judges 

from other circuits are called to sit on panels. 

The Judicial Conference of the United States has recommended 

that the Congress create seven additional judgeships for the Ninth 

Circuit. If we did so, the court would have 35 active judges, making 

it even larger. Nobody would claim that our Supreme Court could 

function with 35 justices. In fact, I am not aware of any court in 

America of this size. 

Why should we feel any different about the Ninth Circuit with 

35 active and 21 senior judges, given that the court of appeals is 

the court of last resort in the vast majority of cases? Counting senior judges, the Ninth Circuit would be twice the size of any other 

circuit. 

Moreover, as this chart illustrates, the caseload of this large circuit has exploded in recent years. In 1997, about 8,700 appeals 

were filed. In 2003, there were almost 13,000—a 48-percent increase, or over 4,000 more appeals in just 6 years. This huge increase in caseload appears to have impaired the administration of 

justice. The Ninth Circuit’s efficiency in deciding appeals—that is, 

the time the court takes between the filing of a notice of appeal 

and the final disposition of a case—consistently has lagged behind 

other circuits. In 2003, for instance, the Ninth Circuit had 418 

cases pending for 3 months or more—25 shy of the next five circuits combined. The next highest circuit had 98 cases. 

The next chart shows that 138 cases were pending in the Ninth 

Circuit for over a year. This was more than every other circuit in 

the Federal court system combined, with the next highest circuit 

at a mere 19 cases. This delay cannot be explained solely by lack 

of judgeships. Although the caseload is high, several other circuits 

have higher caseloads per judge. Thus, it appears that the first 

function of a court of appeals—reviewing decisions from below—

may not be performed as well as it could be. 

If population growth is any indication, the problem is quite likely 

to get worse. As you can see from this chart, the population of the 

States within the Ninth Circuit grew faster than that of any other 

circuit between 1990 and 2000. That population is projected to 

grow even more substantially between 1995 and 2025, as this chart 

demonstrates. With the higher caseload that those millions of new 

residents will bring, the administrative challenges can only grow. 

How about the second function? Are Ninth Circuit judges able to 

speak with clarity and consistency on what the law of the circuit 

is? This, too, appears doubtful. Because the circuit has so many 

3

judges, it is difficult to preserve the collegiality that is so important 

to judicial decisionmaking. 

As D.C. Circuit Judge Harry T. Edwards eloquently argued, 

quote, ‘‘In the end, collegiality mitigates judges’ ideological preferences and enables us to find common ground and reach better decisions. In other words, the more collegial the court, the more likely 

it is that the cases that come before it will be determined on their 

legal merits.’’ 

Additionally, the Ninth Circuit employs a limited en banc procedure under which it is not the full court of appeals, but a random 

draw of ten judges, plus the chief judge, that reviews three-judge 

panel decisions. This can result, and often has resulted in a mere 

six judges making the law for the entire circuit. In all other circuit, 

en banc means en banc—the full court. 

Finally, with so many cases decided each year, it is hard for any 

one judge to read the decisions of his or her peers, and it is virtually impossible for lawyers who practice in the circuit to stay 

abreast of the law. Judge Becker, a distinguished judge of the 

Third Circuit, has explained that, quote, ‘‘When 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.’’ These factors—loss of collegiality, the limited en banc, 

and an inability to monitor new law—undermine the goal of maintaining a coherent law of the circuit. 

Chief Justice Rehnquist and Justices Stevens, O’Connor, Scalia 

and Kennedy publicly have agreed that structural reform was 

needed. No Justice on the Supreme Court has disagreed. These jurists voiced their concern 6 years ago. Today, the Ninth Circuit 

issues almost 50 percent more decisions than it did then. It is difficult to argue that Ninth Circuit judges and lawyers receiving the 

flood of opinions find the law any more coherent. 

So is this a circumstance in which the Congress should exercise 

its constitutional power to ordain and establish new inferior courts? 

Several of my colleagues are here today to help answer that question. Senator Murkowski, of Alaska, has been a leader in addressing reorganization of the Ninth Circuit and has introduced a bill 

to that effect. I am sure her comments, in a moment, based on her 

experience as a Senator from Alaska and a lawyer who has practiced within the Ninth Circuit, will give us a useful context for understanding the issue. 

I would also like to commend my colleague, Senator Dianne Feinstein, who is the Ranking Member for this hearing, for her interest 

in Ninth Circuit reorganization. Senator Feinstein has long advocated that the Congress look at objective measures in determining 

whether or not to split the circuit, and has wisely insisted that any 

division serve administrative, not political purposes. 

In fact, the very title of this hearing borrows from a speech she 

gave on the Senate floor several years ago in which she stated, 

‘‘That is the fundamental question: Would a split improve the administration of justice and, if so, what should that split be?’’ Senator Feinstein asked the precise question that we intend to focus 

4

on in this hearing, and I look forward to the insights from our distinguished group of witnesses. 

Senator Feinstein, would you like to make opening remarks? 

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

FROM THE STATE OF CALIFORNIA 

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

would like to begin by welcoming our distinguished witnesses. I 

also particularly want to thank the Chief Judge, Judge Schroeder. 

I know she had other plans and she changed those plans to be 

here. I think it is very important that she be here, and I am delighted that you were able to accommodate the Subcommittee. It 

means a great deal to us, so thank you very much. 

The issue of whether to split the Ninth Circuit has come before 

us many times before. It was introduced in the 98th session of Congress and virtually every session since that time. Some have said 

the court, with its 57 million citizens, is simply too large and that 

there need to be greater efficiencies and those efficiencies could be 

done if the court were smaller. Others hint that California judges 

have a liberal bent which is coloring decisionmaking in that circuit. 

I believe that we really have to look at this circuit in view of its 

increasing size. Frankly, I was amazed to see that the caseload in 

1 year, from 2002 to 2003, has gone up by 13 percent, with 12,782 

additional cases. That is more than some circuits even have in the 

entire year, and it is just the increase in the Ninth Circuit. 

I think we have to look anew at travel time and how much time 

is spent in extraordinary travel; the circuit is so large. In reading 

last night the comments of some of the judges who are going to testify, I would like to urge them to spend some time in their remarks 

before us about the en banc proceedings. 

I, for one, very much appreciate the court’s accommodation to our 

request that you hold more en banc hearings, and I believe, in fact, 

you have. But the question arises, even with 11 judges en banc, it 

still means that 6 judges effectively determine precedent for the entire circuit. 

The final one, and where most, I think, students of circuit split 

come down is do the judges themselves and the legal profession 

itself want a split in the circuit. Now, we have eight judges, senior 

and active judges, who say they would like to have a split. I think 

those reasons are very important to be examined. 

Additionally, the circuit has instituted a number of new administrative procedures. I think it is very important that we take a look 

at those procedures and see if technology alone is enough to accommodate reduced collegiality. 

Some feel the Ninth Circuit has become extraordinarily impersonal. Does that meet the test of circuit law in an adequate way? 

Some say judges are so stressed and busy with the largest caseloads in the Nation that they can’t really keep up with the law. Is 

that, in fact, the case today or is it not? 

One of the problems we have had is that people take sides in 

this. You are either for a split or you are against a split, and you 

develop a defensive posture and therefore you really can’t look, I 

think, with an open mind at changing needs of the circuit. So I actually welcome this hearing, and perhaps I look at it with a much 

5

more open mind than I have in the past. And this really driven by 

this enormous 13-percent increase in caseload 1 year after the 

other. 

Mr. Chairman, the American Bar Association, under date of 

April 6 of this year, has produced a letter which I would like to 

enter in the record, but I would like to read one paragraph from 

it, if I might. 

‘‘Statistics compiled by the Administrative Office of the United 

States Courts and submitted to Congress annually demonstrate 

that the circuit is functioning very well and utilizes its resources 

effectively. In fact, even though filings increased by 13 percent during the 2002 fiscal year, the Ninth Circuit terminated 11.7 percent 

more cases in 2003 than in 2002. Disposition times for the Ninth 

Circuit also have steadily improved over the last few years and 

compare favorably with times of other circuits in many respects. 

For example, the Ninth Circuit was the second fastest circuit in 

terms of median time from the date of first hearing to final disposition—one-and-a-half months. Similarly, the Ninth Circuit’s median 

time from submission to disposition was a record-breaking .2 

months. These and other statistics readily available from the statistical reports presented by the Administrative Office amply demonstrate that the Ninth Circuit continues to cope admirably with 

its rising caseload without jeopardizing the quality of justice, and 

that its overall performance is on par with that of other judicial circuits.’’ 

I actually believe this is fact and truth. However, I am not sure 

it is the whole story. I do think that circuits can become so overburdened, so impersonal, so harassed that they can’t keep up with 

the law, and that the collegiality on which many of the circuits 

seem to base some of their decisionmaking gets lost. 

So I would be hopeful that our witnesses today would address 

some of these questions, and I would ask unanimous consent to 

place this letter from the bar association in the record, if I might. 

Chairman SESSIONS. Without objection, it will be made a part of 

the record. 

Senator FEINSTEIN. That completes my statement. Thank you. 

Chairman SESSIONS. I will be glad to hear briefly from our other 

two Senators, Senator Kyl and Senator Larry Craig. 

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

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman. I know that we are all 

anxious to get to the panel, and I know Senator Murkowski is anxious to testify as well. I want to make a couple of preliminary comments, though, if I could. 

This hearing kind of snuck on me and as a result I have another 

meeting that I have got to go to at 10:30, but I will return and will 

review very carefully the written comments that I miss in any 

event. 

I want to thank you, Mr. Chairman, for holding the hearing. The 

reasons for it were well laid out by both you and Senator Feinstein. 

I also want to note I think we have incredible panels here. It is 

hard to imagine more judicial firepower, given the fact that the SuVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
6

preme Court is unlikely to come visit us at this site. So I want to 

acknowledge that. 

If I could take the personal privilege of introducing Chief Judge 

Schroeder, since I will not be here when she begins her testimony, 

and thank her for making herself available. She did have to change 

her schedule, as Senator Feinstein said. 

She received her law degree from the University of Chicago Law 

School, and after serving as a trial attorney in the U.S. Justice Department’s Civil Division, spent several years in private practice in 

Phoenix, Arizona. She was appointed to the court of appeals in Arizona in 1975, and in 1979 was elevated by President Carter to the 

U.S. Court of Appeals for the Ninth Circuit. She has served as 

chief judge of the circuit since the year 2000. She brings a unique 

and valuable perspective to the topic of this hearing. 

Mr. Chairman, the subject, whether to divide the Ninth Circuit, 

is one that I have been involved in for many years. Prior to coming 

to Congress, I spent nearly two decades in private practice in Phoenix, and in that capacity represented clients before every level of 

both the State and Federal courts, including much litigation before 

the Court of Appeals for the Ninth Circuit. 

As a Senator from Arizona, I have supported and submitted written comments to the White Commission on structural alternatives 

for the Federal courts of appeals that was issued in 1998. Commenting on the commission’s draft report, I urged commissioners to 

consider and evaluate multiple proposals for reconfiguring the 

Ninth Circuit. 

Among the proposals that I suggested to the commission were 

making California into a separate division of the Ninth Circuit, or 

into a separate circuit; creating four divisions, with central California alone as its own division, in order to more evenly distribute 

caseload; even adding Arizona to the Tenth Circuit. 

Mr. Chairman, I am very open-minded about this subject, as you 

can see, and I agree with Senator Feinstein that all of us need to 

be open-minded and constructive to our approach to this. 

Each of the various ideas presents its own issues for consideration, but ultimately the path that Congress chooses to follow will 

depend upon which criteria we deem to be most important in configuring a circuit. Is top priority to be given to evenly balanced 

caseload, to preserve geographic contiguity, to avoid subdividing a 

State, to maintain compactness? And there are other issues, as 

well. 

As this process moves forward, I hope that all of us can keep in 

mind one criterion above others, and that is to ask how do any of 

the proposed configurations, including the status quo, affect litigants who have matters before the court? How does it affect their 

ability to gain access to a stable and reliable body of law by which 

they can arrange their affairs? And when disputes arise, how does 

the circuit’s structure affect their ability to have a case decided 

quickly and efficiently and correctly? 

I think by devoting our good-faith energies to this matter and deciding which criteria are most important, while always holding the 

interests of the court’s customers above all others, we should be 

able to come to an agreement on how the U.S. Court of Appeals for 

the Ninth Circuit should be configured in the future. 

7

Again, I commend you for addressing this subject and for all of 

our witnesses for taking the time to be here and help inform us on 

the subject. 

Thank you. 

Chairman SESSIONS. Thank you, Senator Kyl. I know that you 

have taken a real interest in this as a full-time practicing lawyer 

who has, I am sure, argued before the Ninth Circuit. I know you 

have had several cases you have argued before the U.S. Supreme 

Court, so you are one of our premier lawyers in the Senate. 

Senator Craig.

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM 

THE STATE OF IDAHO 

Senator CRAIG. Mr. Chairman, thank you very much, and let me 

reflect, as all have, our appreciation for having these most prestigious panels before us this morning to consider with us what we 

believe in the West to be a very necessary and important issue. 

I also want to thank the Chairman and the Ranking Member for 

their objective approach to this issue. There are a lot of reasons to 

look at the Ninth Circuit, and many of them have been expressed 

and I will hold to those objective reasons. We have two bills introduced here in the Senate. We have a bill introduced in the House. 

Senator Murkowski is before us. She has faced this issue and has 

introduced legislation that I am supportive of. 

I am here also to say I don’t know of the magic of the design or 

the geography, but I do believe, based on all the statistical work 

I have read and the opinions that I am hearing—and I have had 

the opportunity to read some of your testimony already—that a day 

is rapidly coming when this Senate, this Congress, has to face the 

issue and resolve what I think Senator Feinstein has appropriately 

asked this morning. 

I am one of the few non-lawyers on the Judiciary Committee, so 

I will make only one political statement and then I will retain the 

balance of the time to listen. If I want to be assured of one applause line that is the loudest I can get in any single bipartisan 

audience in the State of Idaho, it is to suggest that I am openly 

and aggressively supportive of redesigning and reshaping the 

Ninth Circuit. 

For any who would argue that this is too expensive to do, most 

Idahoans would suggest that failure to do it is too expensive for my 

State to put up with. That is the feeling in Idaho and that is the 

feeling in many Western States today. So it is incumbent upon this 

Congress to look at it in an objective way and to try to determine 

if it is necessary and appropriate to do. 

I have concluded that it is; others have already concluded it. But 

I will also tell you I don’t know quite how effectively to do it in a 

right and responsible manner that gets the citizens of our country 

the best legal actions and activities through the courts they can 

have. 

Thank you, Mr. Chairman. 

Chairman SESSIONS. Thank you, Senator Craig. 

We will hear from two panels of witnesses today. On the first, 

we will discuss whether a division of the Ninth Circuit is warranted. We will also address the merits of the various proposals to 

8

effect such a division, including Senator Ensign’s bill, who is not 

here today but who has offered legislation, and Senator Murkowski, who is here today. 

The witnesses on the first panel will include Judge Diarmuid 

O’Scannlain, appointed to the Ninth Circuit in 1986; Judge Mary 

Schroeder, appointed to the Ninth Circuit in 1979; Judge Richard 

Tallman, appointed in 2000; and Judge Clifford Wallace, appointed 

in 1972. 

On the second panel, we will focus on the administrative aspects 

of a division, with respect to the most recent restructuring of a 

Federal circuit. In 1981, Florida, Georgia and my home State of 

Alabama were carved out of the Fifth Circuit to become the Eleventh Circuit. 

Judge Tjoflat, I was sort of surprised. I thought you were too 

young to have been on the old Fifth Circuit and been a part of that 

split. I don’t know why I didn’t remember that. I remember being 

at the opening ceremonies in Atlanta when Judge Godbold formed 

the new Eleventh Circuit. 

This reorganization was initiated in large part because of the 

size of that circuit and has proven to be a tremendous success in 

terms of administration. Two witnesses will share their wisdom. 

The first will be Judge Gerald Bard Tjoflat, appointed to what was 

then the Fifth Circuit by President Ford in 1975, and has served 

on the Eleventh Circuit since 1981. The second witness will be 

Judge John Coughenour, appointed to the Western District of 

Washington by President Reagan in 1981. 

I mentioned Judge Schroeder, did I not? 

Judge Schroeder, we are delighted to have you. You are Chief 

Judge of the circuit and you were appointed to the circuit in 1979. 

Senator Murkowski. 

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

FROM THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you. Good morning, Mr. Chairman, 

Senator Feinstein, members of the Subcommittee. I thank you for 

holding a hearing on this very important matter of the United 

States Court of Appeals for the Ninth Circuit. 

The Ninth Circuit has a direct and dramatic impact on my State. 

And, Senator Craig, your comment about the sentiment of Idahoans on this issue—I can assure you that in Alaska it also is extremely important and one of those issues that generates huge response, as you have indicated. 

For 20 years, we have examined the need to make changes and 

actively considered how the Ninth Circuit should be restructured. 

The court’s administration, the physical size of the circuit, the 

length of time that the court takes to resolve cases and the huge 

and diverse caseload for judges create considerable problems in dispensing justice. 

Last year, in response to these problems, I introduced S. 562, the 

Ninth Circuit Court of Appeals Reorganization Act of 2003. I was 

joined by Senators Stevens, Burns, Craig, Crapo, Inhofe and Smith. 

S. 562 would split the Ninth Circuit by leaving Nevada and California in the Ninth Circuit and create the Twelfth Circuit, containing Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, WashVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
9

ington, along with the territories of Guam and the Northern Mariana Islands. 

The bill provides that the present Ninth Circuit would cease to 

exist for administrative purposes on July 1, 2005. To allow the prudent administration of the court system, the Ninth Circuit and the 

newly-created Twelfth Circuit could meet in each other’s jurisdiction for 10 years after the enactment of the bill. 

The bill also provides that judges in the Ninth Circuit may elect 

in which circuit they wish to practice. Each circuit judge who is in 

regular, active service and each judge who is a senior judge of the 

former Ninth Circuit on the day before the effective date of the Act 

may elect to be assigned to the new Ninth Circuit or to the Twelfth 

Circuit, and shall notify the director of the Administrative Office 

of the United States Courts of such election. 

Let’s talk a little bit about the numbers. As the Subcommittee 

members have indicated, some of the problems of the circuit can be 

traced to issues related to its geographic size, the caseload, the lack 

of geographic diversity in its sitting judges and many other issues 

unique to the Ninth Circuit. 

In 2003, the Ninth Circuit had 11,277 cases pending before it—

a 17-percent increase over the previous year of 9,625 cases. In comparison, in 2003, the Second Circuit had the next highest caseload, 

with 6,767 cases pending, or over 4,500 fewer cases than the Ninth. 

Next in line is the Fifth Circuit, with 4,444 cases in 2003. 

The Ninth Circuit takes an average of 5.8 months between the 

notice of appeal and the filing of the last brief. But from notice of 

appeal to final disposition, it averages 14 months. Now, in comparison, the Fifth Circuit averages 5.6 months between the notice of 

appeal to the filing of the last brief. But from the filing of the notice of appeal to a final decision, in the Fifth Circuit the average 

time is 9.4 months—nearly 5 months faster. So it takes 5 months 

longer in the Ninth Circuit, with close to 7,000 more cases pending. 

With such a large caseload and the length of time involved, the reality is that the Ninth Circuit will only fall farther and farther behind the other circuits. 

Part of the problem with the Ninth Circuit is its sheer size. The 

three-judge panels cannot circulate opinions to all of their colleagues for corrections or review. This breeds conflict of decision between three-judge panels all within the same circuit. There are 27 

judges. There is no telling how some issues will be decided. In the 

Ninth Circuit, the court cannot really sit en banc. Instead, 11 

judges are picked to review a decision of a 3-judge panel. And once 

again the process ensures that a decision of the whole court is, in 

reality, the luck of the draw sometimes. 

I am committed to the belief that the people and institutions that 

comprise the Ninth Circuit support splitting the circuit and creating a new circuit. On March 21, 2003, Greg Mitchell, in the Recorder, wrote that the Ninth Circuit Court should be split not as 

a means to punish it for bad decisions, but that it, quote, ‘‘should 

be split for the ho-hum reason that it is just too big to operate as 

intended and needs to become bigger still to carry what has become 

the heaviest caseload in the country.’’ 

According to Mitchell, the Judicial Conference said it would seek 

11 new circuit judges from Congress, with 7 to be for the Ninth 

10

Circuit. If that happens, there would be over 35 active judges in 

that circuit, with another 20 on senior status. 

An editorial in the Oregonian newspaper dated July 25, 2002, encourages the splitting of the Ninth Circuit not because of the 

court’s decisions, but because, quote, ‘‘The hard facts make the 

case.’’ The paper pointed out that the Ninth Circuit comprises nine 

States and two territories which contain a population of over 56 

million people. The next largest-populated circuit is the Sixth Circuit, with a population of 32 million. The Ninth Circuit has twice 

the population of the average appeals court. 

The Oregonian cited Judge O’Scannlain, who sits on the Ninth 

Circuit and who is with us this morning, and he said his support 

of the split, quote, ‘‘is solely based on judicial administration 

grounds, not premised on reaction to unpopular decisions or Supreme Court batting averages.’’ I do look forward to hearing his 

comments this morning. 

Seven years ago, the U.S. Congress was considering legislation to 

split the Ninth Circuit. The split did not occur then, but the legislative effort resulted in a commission being convened to consider and 

make recommendations on the issue. The White Commission, in 

the 1990’s, did not recommend the split, but suggested administrative changes that subsequently seem unworkable and do not address the problems we have today. 

So here we are this morning considering my legislation, S. 562, 

as well as S. 2278. I am pleased to see that Senator Ensign and 

Senator Craig have put forward another proposal to address the 

problem. Senator Ensign’s bill would create two new circuits. One 

circuit would keep California, Hawaii and the two territories in the 

Ninth Circuit. The new Twelfth would include Arizona, Nevada, 

Montana and Idaho. The State of Alaska would join the States or 

Oregon and Washington to create the Thirteenth Circuit. This proposal is intriguing and I am anxious to hear more about it. The 

several administrative changes that are suggested in Senators Ensign and Craig’s bill are also attractive. 

Quite honestly, Mr. Chairman, I am just pleased to see some 

progress and further discussion on any of these proposals. I thank 

Senator Ensign for his leadership on this. 

Mr. Chairman, I thank you for holding the hearing this morning 

and I am looking forward to the presentations from the various 

judges. 

Thank you. 

Chairman SESSIONS. Thank you, Senator Murkowski. Your leadership in moving this issue forward has been helpful. I know you 

are a lawyer and a member of the Ninth Circuit bar and care about 

it deeply and want to see the court reach its highest potential. 

I think it is interesting to have the different ideas, as Senator 

Kyl said, that have been floating about. So I guess your position 

is somewhat like Senator Kyl’s. You are open to discussion, but you 

have presented a proposal that you believe would work. 

Senator MURKOWSKI. Absolutely. I think what is happening now 

with the various proposals that are out on the table and the discussions and a review of what we can do to better provide for justice 

within the Western States is what we are all looking for. 

11

Chairman SESSIONS. Very good. Well, we thank you for that presentation. 

Senator MURKOWSKI. Thank you. 

Chairman SESSIONS. We would be delighted to have you stay 

with us, but if you have other things to do, you are free to go as 

you choose. 

Senator MURKOWSKI. Thank you. 

Chairman SESSIONS. All right. We will take our first panel now—

Judge O’Scannlain, Chief Judge Schroeder, Judge Tallman and 

Judge Wallace. 

If you would each stand and raise your right hand—okay, we 

won’t swear you in this morning. You are officers of the court. You 

can pretend this is a court, but trust me, it is not. This is a political branch. 

Chief Judge Schroeder, we would be delighted to hear from you 

and your observations on this subject, and we will just go down our 

list. 

STATEMENT OF HON. MARY M. SCHROEDER, CHIEF JUDGE, 

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA 

Judge SCHROEDER. Thank you very much, Mr. Chairman. I very 

much appreciate being here. My name is Mary M. Schroeder. I am 

the Chief Judge of the United States Court of Appeals for the 

Ninth Circuit, appointed to the court in 1979 by President Carter. 

I am the Chief Executive Officer of both the Court of Appeals and 

the Ninth Circuit Judicial Council, which governs the court of appeals, the district courts and the bankruptcy courts. My home 

chambers are in Phoenix, Arizona, and I welcome the opportunity 

to appear before you even on short notice. 

Chairman SESSIONS. Thank you for that. 

Judge SCHROEDER. I want to thank Senator Kyl for the comments that he made earlier, and I do look forward to the testimony 

of all of the witnesses. 

Appearing with me today in opposition to the proposals to divide 

the circuit are two other judges with administrative experience in 

our circuit. The first is Senior Judge J. Clifford Wallace, of San 

Diego, who served as Chief Judge before I did, and he has a great 

deal of experience internationally in traveling around the world 

working with judges in other countries and showing them how our 

system of Government works and sharing our belief in the rule of 

law. 

Also here testifying on the next panel is Chief District Judge 

Jack Coughenour. He is the Chief District Judge for the Western 

District of Washington. Judge Coughenour has been involved in administrative matters with our circuit for many years, as well. He 

is currently the Chair of our Conference of Chief District Judges. 

Also present with us is our wonderful, superb clerk of court, 

Cathy Catterson, who formerly worked here in Washington for Senator Javits for many years, and also worked with the Deavitt Commission before coming to our court. 

I believe it is very important at the outset that all of us understand at least three important points. The first does go to cost. 

When we discuss any of the proposals before you—and most of the 

12

discussion so far this morning has been concerning the court of appeals, but when we talk about splitting up the judges of the existing court of appeals, we are not just talking about the court of appeals. We are actually talking about dividing the entire and wellintegrated administrative structure of the Ninth Circuit in order to 

create two, or even three, separate and largely duplicative administrative structures. 

This is costly and, I submit, wasteful. This is especially true 

when we face a budget crisis requiring us to lay off employees performing critical functions; for example, supervision of probationers 

and preparation of sentencing reports. So we are talking about district courts, bankruptcy courts, as well as the court of appeals. 

The second point goes to geography. The Ninth Circuit includes 

California. Although there are nine States in the Ninth Circuit, 

more than two-thirds of the workload of the court of appeals is 

from California. There is no way to divide the circuit into multiple 

circuits of roughly proportionate size without dividing California. 

None of the proposals before you would do that. So, like Goldilocks, 

we find that one is too big and another too small. The proposals 

to divide the circuit—I am very pleased that they do now—several 

contain proposals to add additional judges for California. But under 

all, there would still be more than 20 judges in any circuit containing California. 

The third point that I wish to make goes to history. Over the 

course of the extremely colorful history of the West, certain ties 

have developed that should be respected in circuit alignment in 

order to provide for continuity and stability. 

Arizona, for example, may at one time have seen itself as a 

Rocky Mountain State. But the truth today is its economic and cultural ties are overwhelmingly closer to California than to Colorado 

or Wyoming. Another example is California and Nevada. Their 

bond is so great that they have joined in a compact to protect Lake 

Tahoe. Idaho and eastern Washington have essentially treated 

their district judges as interchangeable for years. 

So the division proposed in S. 2278 into three circuits would 

sever all those ties by dividing Arizona from California, California 

from Nevada, and Idaho from Washington. A unified circuit keeps 

those ties intact. 

As Chief, I am very proud of the manner in which we have been 

able to administer a rapidly growing caseload with innovative procedures possible only in a court with large judicial resources. Some 

examples: Our system of identifying issues and grouping cases is 

unique among the circuits and allows for efficient resolution of 

hundreds of cases at a time once the central issue is decided by a 

panel. 

The staff attorney’s office, and in particular our Pro Se Unit—

and the largest growth in cases for some time was in pro se cases; 

it is now the immigration cases which make up that increase that 

has been referred to in the past year. But our Pro Se Unit efficiently processes approximately one-third of our cases each year, 

and these are cases in which jurisdictional problems dictate the result or in which the decision is compelled by existing case law. 

Our bankruptcy appellate panel has successfully resolved a large 

number of bankruptcy appeals which would otherwise be decided 

13

by circuit judges. Our mediation program, also unique in its 

breadth, resolves more than 800 appellate cases a year, and we are 

the leader in appellate mediation among the Federal circuits. Our 

mediators travel all over the country training others to follow in 

our stead. 

Technology has dramatically changed court operations over the 

last few decades. Senator Feinstein referred to this and it is extremely important. Particularly, these changes have taken place 

since the time when the Fifth Circuit split almost 25 years ago. We 

now have automated case management and issue tracking systems, 

computer-aided legal research, electronic mail, video conferencing. 

These have all permitted the court to function as if the judges were 

in the same building. 

Most important, the existence of a large circuit, with all circuit, 

district and bankruptcy judges bound by the same circuit law, gives 

us the flexibility to deal with the large concentrations of population 

and enormous empty spaces of the West. A large circuit has served 

our citizens well by allowing us to move judges from one part of 

the circuit to another, depending on where the needs are, as recently, for example, in the border districts of California and Arizona and in the widely scattered population centers of Idaho. 

I recognize that the latest proposal contains a number of provisions intended to ameliorate the harm that would result from division. It would add circuit judgeships for California and it would 

postpone actual division until after that most uncertain point in 

time when the new judges are confirmed, but this makes longrange planning very difficult. 

This proposal also envisions judges from the new Twelfth and the 

Thirteenth Circuit sitting with the Ninth Circuit on request. This 

would restore a bit of the lost flexibility, but not much. Judges 

would have to keep track of the law of multiple circuits to make 

it work. Most important, chief circuit judges are not anxious to see 

their active judges doing the work of other courts and not their 

own. 

The commission chaired by former Justice Byron White studied 

the issues a few years ago. It recommended against dividing the 

circuit, it praised its administration and it cautioned against restructuring courts on the basis of particular decisions by particular 

judges. Judicial independence is a constitutional protection for all 

our citizens. 

Circuit restructuring is, in fact, rare. It has happened only twice. 

The last was nearly a quarter of a century ago, when the Fifth Circuit divided into the Fifth and the Eleventh, upon the unanimous 

vote of the active circuit judges. Division should take place only 

after there is demonstrated proof that a circuit is not operating effectively and when there is consensus among the bench, the bar 

and the public it serves that division is the appropriate remedy. 

That burden has not been met here. 

The latest proposal was introduced 5 days ago. It took me a day 

to travel here, so I have had only limited time to prepare and to 

study it. If you have any questions that I am unable to answer or 

if you would like a written follow-up on any matter that arises during this hearing, I would be happy to provide. I would also invite 

14

any of you to visit our headquarters in San Francisco to see how 

we function. 

I am pleased to be here with my colleague, Diarmuid 

O’Scannlain, with whom I have appeared before, and with my colleague, Richard Tallman, whose views appear to reflect those of our 

mutual mentor and very esteemed colleague, the late, great Eugene 

Wright, of Seattle. Judge Wallace and I never got him to see the 

light either. 

We have had discussions within our court about this subject from 

time to time for several decades, but the great majority of our 

judges have consistently opposed division. We have 48 judges and 

I believe the latest list was 9 active and senior judges—9 of approximately 48 have supported division. The remainder do not. I 

am advised that the chief bankruptcy judge has opposed division 

as well. 

We are scheduled to discuss this subject at our next court retreat 

in about ten days. The Chair of our Conference of Chief District 

Judges, Judge Coughenour, of Seattle, is here and he will share his 

trial court perspective with you. 

To comment, if I may just briefly, on our en banc process, to respond to the Senator’s question, our limited en banc process has 

been in place for about 25 years, since I came on board. We believe 

it has worked quite successfully. It has a failsafe device. If any 

judge is unhappy with the decision of 11 judges, a judge may call 

for a vote of all of the judges, and our rules provide that we will 

sit as an en banc court, with every member of the court sitting. 

We have had, I think, two or three calls for a vote to sit en banc. 

I believe they were in death penalty cases. The court has never 

voted to sit its 28 judges. We believe this is testimony that the system has worked quite well. And, as noted, we have increased the 

number of en banc sittings in recent years. 

The American Bar Association and the Federal Bar Association 

have both weighed in against a split. I also want to clarify that the 

increase in our caseload recently—there was reference to 12,000. 

That is the total number of cases. The increase has been approximately 3,000 and it is due to an immigration case surge due to the 

increasing number of cases decided by the Board of Immigration 

Appeals. The circuit receives about 50 percent of the appeals nationwide in immigration cases. Most of those are in California as 

well. 

So I thank you very much for the privilege of appearing before 

you and I will answer any questions that you have. 

[The prepared statement of Judge Schroeder appears as a submission for the record.] 

Chairman SESSIONS. Thank you, Chief Judge Schroeder. We appreciate those comments and your insight. 

Judge O’Scannlain. 

STATEMENT OF HON. DIARMUID F. O’SCANNLAIN, JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND, 

OREGON 

Judge O’SCANNLAIN. Thank you, Mr. Chairman. Good morning, 

Mr. Chairman and members of the Subcommittee. My name is 

15

Diarmuid F. O’Scannlain, Judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Portland, Oregon. 

I am especially honored to be called upon, along with my colleague, Judge Tallman, and my colleague from the Eleventh Circuit, Judge Tjoflat, to support restructuring the largest judicial circuit in the country. The urgency is manifest in the number of 

Ninth Circuit reorganization bills which are pending in this session 

of Congress. Last year, Senator Murkowski introduced S. 562, and 

Congressman Simpson of Idaho introduced H.R. 2723 in the House, 

which incidentally has already had a hearing in the House Judiciary Committee. Just last week, Senator Ensign introduced S. 2278. 

Each of these proposals offers distinct, but elegant solutions to the 

problem of our over-large and overburdened circuit. 

Mr. Chairman, I speak not only on my own behalf, but on behalf 

of many circuit and district judges. Eight of my colleagues publicly 

support the restructuring of the Ninth Circuit—Judges Sneed of 

California, Beezer of Washington, Hall of California, Trott of Idaho, 

Fernandez of California, T.G. Nelson of Idaho, Kleinfeld of Alaska, 

and my colleague here, Judge Tallman of Washington. 

You may recall that my colleague, Judge Rymer, from California 

served on the White Commission and is on record that our court 

of appeals is too large to function effectively. I can also report that 

the judges of the District of Oregon have recently voted 10 to 4 in 

favor of a split in a survey which was requested by the Oregon 

Chapter of the Federal Bar Association. 

I appear before you as a judge of one of the most scrutinized institutions in the country. In many contexts, that attention is negative, resulting in criticism and controversy. Some view these episodes as fortunate events, sparking renewed interest in how the 

Ninth Circuit conducts its business. 

Yet, I believe that all of us testifying today would agree, supporters and opponents alike, that any restructuring proposal 

should be analyzed solely on the grounds of effective judicial administration, grounds that remain unaffected by the Supreme 

Court batting averages or public perception of any given decision. 

Mr. Chairman, I won’t repeat the detail of my written testimony, 

but I do want to emphasize a few points. Put very simply, the 

Ninth Circuit is now so large that the only reasonable solution is 

to reorganize it. We are the largest in every category—9 States; 

13,000 annual case filings; 47 judges, soon to be 50; 40 percent of 

the geographic area of the country and 57 million people. 

Indeed, your comments, Mr. Chairman, and those of Senators 

Feinstein, Kyl, Craig and Murkowski suggest that there may be a 

developing consensus that the size of the court bears very close 

scrutiny. Our increasingly gargantuan size relative to other circuits 

irrefutably demonstrates the necessity of a reorganization. No matter what metric one uses, the Ninth Circuit dwarfs all others. 

If you would kindly turn with me to the appendix to my written 

testimony, specifically to Exhibit 7 on page 33, you will see the 

comparison of the total number of judges on the Ninth Circuit with 

the average number of judges on all of the other circuits. This chart 

dramatically illustrates that the Ninth Circuit has two-and-a-half 

times as many judges as the average of all other circuits. 

16

Turning to the next page, Exhibit 8, page 34, you will see that 

Ninth Circuit law governs the lives of almost three times more 

human beings than the other circuits, on average, do. This is a 

truly extraordinary imbalance of judicial power. An opinion issued 

by the average circuit judge in this country establishes Federal law 

for about 20 million people, but the same opinion, if issued by a 

Ninth Circuit judge, adjudicates the Federal rights and obligations 

for close to 60 million citizens. That is a stunning discrepancy. 

Turning to Exhibit 9 on page 35, you will see that the Ninth Circuit now houses nearly as many people as the Fifth and the Eleventh Circuits combined. These two circuits were formed by splitting 

a single circuit, the old Fifth Circuit, back in 1981 in a relatively 

straightforward process that went largely unchallenged. So I am 

mystified by the relentless refusal by past and present Ninth Circuit chief judges to entertain any reorganization at all. 

Exhibit 10 on page 36 demonstrates the serious caseload gap between the Ninth Circuit and the average of all of the circuits. In 

overall appeals filed last court year—perhaps the most important 

metric of judicial administration—the Ninth Circuit dwarfed the 

other circuits by an almost three-to-one margin. And this will only 

get worse. As the Administrative Office has reported for several 

years now, the number of appeals in the Ninth Circuit keeps climbing at an ever-increasing rate. 

Although we have elevated our productivity through various 

triage efforts, we have not been able to increase the resolution of 

our appeals at the same remarkable pace set by new filings. The 

Ninth Circuit Court of Appeals has not yet collapsed, but it is certainly poised at the edge of a precipice, and only a restructuring 

can bring us back. 

Split opponents have long attempted to place the burden on Congress to demonstrate that a reorganization is absolutely necessary. 

There may have been some force to that argument in the past 

when the Ninth Circuit was the largest of our regional circuits, but 

by a relatively small margin. 

Of course, complete parity is impossible and, by consequence, 

there will always be a largest and there will always be a smallest 

circuit. But, Mr. Chairman, I submit to you now that the tide has 

turned and the burden plainly has shifted, indeed the whole paradigm has shifted. As long as one accepts the underlying premise of 

appellate circuits in the first place that discrete decisionmaking 

units provide absolute benefits to the administration of justice, 

there is no denying that the Ninth Circuit must be reorganized. 

I challenge any opponent of reorganization to articulate a reasonable justification for placing one-fifth of our citizens, one-fifth of the 

entire Federal appellate judiciary and one-fifth of all of the appeals 

filed by all of the Federal litigants in this country in just one of 

twelve regional subdivisions. 

The Ninth Circuit’s size has so far exceeded the other circuits in 

all relevant respects that it is difficult even to argue that it is part 

of the same appellate system. Indeed, opponents generally make 

precisely such an argument. They have to because there is no other 

justification for such a large deviation from the norm. 

But then maybe the Ninth Circuit is something special. Maybe, 

as reorganization critics appear to believe, we are the exception to 

17

every other circuit, and maybe we are some untouchable empire 

immune from scrutiny that should be allowed to swell to three 

times the size of all other circuits without consequence. 

But if that is the case, then it is time for the critics of restructuring to defend that position. Clearly, it has become the job of 

those who oppose reconfiguration to demonstrate why such a wildly 

uneven distribution should stand, for there can be no dispute about 

what the numbers alone prove. The question that must now be answered is whether there is any compelling evidence to avoid a split. 

There was at least one argument along these lines that warrants 

a specific response. In her most recent state of the circuit speech, 

our chief judge made the astonishing assertion that, and I quote, 

‘‘Split proposals must realistically be viewed as a threat to judicial 

independence,’’ end quote. I submit that this is directly contrary to 

over a century of Congressional attention to circuit structure, all of 

which is concededly within the legislature’s purview, and it simply 

cannot be true. 

Bills such as S. 562, H.R. 2723 and S. 2278, with many provisions directly responding to the concerns the chief judge and other 

critics have previously articulated, deserve considered commendation, not presumptive condemnation. They demonstrate the goodfaith efforts made by the House and the Senate reasonably to restructure the judicial goliath of our court. 

Calling for a circuit split based on a particular decision is counterproductive and unacceptable. But may I suggest so is attacking 

the integrity of our elected representatives when confronted with 

honest and fair proposals to divide our circuit. 

Unfortunately, the Ninth Circuit’s problems will not go away. 

Rather, they will only get worse. The case for a split has become 

self-evident. We have moved beyond the time for quibbles over presumptions and motivations. This issue has already spawned, both 

within and outside the court, too much debate, discussion, reporting, testifying, and for far too long. We judges need to get back to 

judging. 

I ask that you mandate some sort of restructuring now. One way 

or another, the issue must be put to rest so that we can concentrate on our sworn duties and end the distractions caused by 

this never-ending controversy. I urge you to give serious consideration to any reasonable restructuring proposal that might come before you. 

Mr. Chairman, I thank you for allowing me to appear before you 

today and I will be very happy to answer any questions that you 

may have. 

[The prepared statement of Judge O’Scannlain appears as a submission for the record.] 

Chairman SESSIONS. Thank you, Judge O’Scannlain, and your 

complete remarks and the remarks of all of you will be put in the 

record. We appreciate the tale you gave us in your written statement. 

Judge Tallman. 

18

STATEMENT OF HON. RICHARD C. TALLMAN, JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, SEATTLE, 

WASHINGTON 

Judge TALLMAN. Good morning, Mr. Chairman, members of the 

Subcommittee and Senator Murkowski. My name is Richard C. 

Tallman and I am a circuit judge on the Ninth Circuit, with chambers in Seattle, Washington. I was appointed by President William 

J. Clinton in May of 2000. I thank you for the invitation to appear 

here today to discuss the reorganization of our court. 

I again join my colleague, Judge Diarmuid O’Scannlain, and the 

other circuit and district judges throughout our circuit who publicly 

favor splitting our court to better serve the citizens of the West. 

Like so many of the contentious cases we decide, this topic also divides my colleagues. But I must respectfully disagree with the 

other point of view espoused by my distinguished chief judge, 

Judge Wallace and Chief Judge Coughenour. Size does affect the 

quality and efficiency of administering justice. Inevitable and continuing growth will not permit us to ignore this conundrum indefinitely. 

I agree with the opening comments of the Senators this morning 

and with Judge O’Scannlain that the key consideration is identifying the best structure to permit our judges to serve the public. 

The public has the right to prompt, quality decisionmaking. Justice 

delayed is justice denied. The quality of our decisionmaking process 

is impacted by a variety of factors. I would like to touch upon a 

few in my oral remarks. 

I am acutely aware of how the sheer size of our court impedes 

the critical development of strong personal working relationships 

with my fellow judges. The genius of the appellate process is the 

close collaboration of independent jurists who combine their judgment, experiences and collective wisdom to decide the issues presented in an appeal. 

I came on the bench nearly 4 years ago, in June of 2000. Yet, 

to this day, I have not sat on a regular three-judge oral argument 

panel with all of my other active and senior colleagues. I am not 

alone. Professor Hellman, a noted expert on our court, testified in 

October 2003 about H.R. 2723, introduced by Congressman Mike 

Simpson of Idaho. Professor Hellman’s research confirmed that 

even today the judges of my court sit with one another infrequently. He cited the example of Judge William Fletcher, who 

joined the court in February 1999 and who, four-and-a-half years 

later, had still not sat with all of the active judges appointed 

through 2000. 

The White Commission observed 6 years ago that only by sitting 

together regularly can members of a court come to know one another and work most effectively together. The sheer volume of the 

nearly 13,000 appeals filed annually would be difficult for our active and senior judges to handle under the best of circumstances. 

The problem is exacerbated by the enormous geographical size of 

our circuit; as some in Idaho and Montana describe it, ‘‘windshield 

time’’. The problem means that we have to travel long distances 

and spend substantial time away from our chambers in transit. 

Professor Hellman testified that judges need a working environVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
19

ment that is conducive to the thoughtful and efficient processing of 

their cases. Travel detracts from the creation of that environment. 

For example, there are only some kinds of work that I can do in 

the many hours I spend in airports and on airplanes. To protect the 

confidentiality of the decisionmaking process, I cannot work on 

opinions not yet publicly filed, or read sealed materials or memoranda from other judges relating to such matters. I would gladly 

give up my premier frequent-flyer status for more time in chambers. 

Turning to the aspect of our work that is most important to 

maintaining consistency in our decisions, I would like to tell you 

why our current system of limited en banc proceedings is not working fairly. 

The Ninth Circuit is the only circuit in the country where all active circuit judges do not participate in rendering the most important decisions. Size prevents us from functioning as a democratic 

institution with majority rule—the rule in every other circuit court 

and in the United States Supreme Court. Only our chief judge is 

assured a seat on every en banc panel. The remaining 10, out of 

26 active judges, are randomly drawn by lot using a jury wheel. 

The randomness of this selection process frequently results in en 

banc panels that do not contain any of the judges who originally 

sat on the three-judge panel. 

This occurred in the California recall election case and two recent death penalty cases cited in my written testimony. The recall 

case, in particular, has been touted as a shining example of how 

quickly and efficiently our en banc process can work. But the en 

banc panels deliberated and voted to reverse the initial decisions 

in all three cases without the participation and benefit of the indepth knowledge of the factual and procedural history of each case 

possessed by the three judges who initially heard them. 

Most strikingly, a mere 6 judges on a limited en banc panel can 

set the law of the circuit for the other 20 judges, whether the resulting decision reflects the full majority’s views or not. It is indisputable that some close cases with six-to-five or seven-to-four split 

votes would have been decided differently had different eligible 

judges been drawn for the en banc panels. I have provided specific 

examples in my written materials. 

It also is theoretically possible that an 11-judge panel could contain none of the minimum of 14 judges who voted to accept the case 

for en banc review in the first place. A court’s en banc process 

should be inclusive, encouraging participation by all judges. After 

all, these are by definition cases of great significance or those involving extraordinary legal error. 

Yet, our limited en banc system discourages judges from making 

en banc calls, which again plays a key role in developing and maintaining our jurisprudence. Making an en banc call or opposing one 

is a tremendously time-consuming endeavor. Unseen by the public 

is the written advocacy of the judges supporting the call, who essentially write legal briefs in support of the reasons why the case 

should be reviewed en banc. The panel that issued the decision normally opposes the call and writes a brief urging that the decision 

stand. 

20

All judges, active and senior, are free to join in the exchange of 

these internal memoranda, which can become quite voluminous. 

One reason that judges may not choose to participate in this process is because they will not know whether they have been randomly assigned to the 11-judge panel until after a majority of the 

active judges has voted in favor of en banc review. As the court 

grows bigger, a judge’s chances of being drawn for an en banc 

panel decrease. 

Due to the extremely large caseload in the circuit, too many 

cases are decided annually to permit effective review of each by an 

en banc panel. En banc proceedings occur only in a small percentage of our cases. For example, in 2003, out of 972 petitions for rehearing en banc filed by the parties, judges called for en banc votes 

in only 40 cases. Of those 40, only 13 were eventually reheard en 

banc. The Supreme Court lacks the capacity to correct the inevitable mistakes through its certiorari process that slip past our inadequate Ninth Circuit limited en banc process. 

Whatever you decide about whether to split the Ninth Circuit, I 

am pleased to see that the various bills recognize that California 

needs more judges. I would certainly be willing to visit wherever 

needed during the transition period while new judges are nominated and are under consideration by you for appointment. 

In terms of where a new circuit headquarters might be located, 

Seattle is home to the ten-story William K. Nakamura United 

States Courthouse, which the judges of the Western District of 

Washington will soon vacate when they move to a new facility. The 

Nakamura Courthouse has more than 100,000 square feet of usable 

space. It is certainly large enough to serve as a circuit headquarters and could be reconfigured for that purpose without excessive additional work or financial expenditure. 

We are well past the point of asking whether the Ninth Circuit 

should be split. Instead, we ought to be asking how it should be 

accomplished. I appreciate the fact that Congress has been considering various proposals for what the split might look like. I recognize that the ultimate configuration of such a split is a decision 

best left to the considered judgment of the legislative branch. 

Whatever you decide, a smaller court would speed dispositions of 

appeals, improve our collegiality, and enhance predictability, which 

I learned from practicing law is crucial to maintaining the respect 

for the rule of law among the people we serve. 

I thank the Subcommittee for the opportunity to testify and I 

look forward to your questions. 

[The prepared statement of Judge Tallman appears as a submission for the record.] 

Chairman SESSIONS. Thank you, Judge Tallman. 

Senator Feinstein, I believe you have a guest. Would you introduce her? 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. Indeed, I do. I am privileged to have my granddaughter here. She is 

11 years old. She lives in San Francisco. He mother, my daughter, 

is a judge, and so she is reviewing this process. 

Chairman SESSIONS. Very good. 

Senator FEINSTEIN. I am pleased to have her meet the panel. 

21

Chairman SESSIONS. We are delighted to have you. We just 

couldn’t be happier, and I hope you will give Senator Feinstein 

your best advice on how this matter should be settled. 

Judge Wallace. 

STATEMENT OF HON. J. CLIFFORD WALLACE, SENIOR JUDGE, 

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, SAN 

DIEGO, CALIFORNIA 

Judge WALLACE. Thank you, Mr. Chairman. My name is Clifford 

Wallace. I have been a judge on the United States Court of Appeals 

since 1972. I think that makes me senior. Prior to that, I was a 

district court judge, and before that I practiced as a trial lawyer 

in San Diego for 15 years handling major civil litigation. 

Since my taking senior status, I have reoriented my views as to 

the best use of my time and now spend over 50 percent of my time 

working with judiciaries overseas, now having worked with nearly 

60 countries. I only mention this because I come with a little different perspective which I intend to describe to you later. 

I am very, very pleased to be asked to testify again on the division of the circuit. I want to make two points. The first point is 

whether or not the case has been made for a division of the Ninth 

Circuit, and second, if so, or if no? What is the alternative to division of the circuit. 

I have testified in opposition to division of the circuit before, and 

one of the issues is who has the burden of proof. I notice my colleague, Judge O’Scannlain, was attempting to place the burden of 

proof on us, which is a very interesting ploy. In January I was in 

Indonesia. They have a new constitutional court and one of its duties is to certify election results. And the legislature gave them a 

very short time period, 30 days in one instance, 15 days in another, 

to certify over a country that has a huge numbers of islands and 

voting problems. 

I was asked to help them decide how to organize this particular 

challenge, and it seemed clear to me that what they needed to do 

was put the burden proof on the complainer rather than litigate 

each complaint through hearings. They would never get completed. 

The burden of proof has always been on those who wish to divide 

the circuit; that is, if you are going to make a change, a case must 

be made of a need. The long-range plan for Federal courts made 

this crystal clear: ‘‘Circuit restructuring should only occur 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’’. 

My position is that case hasn’t been made, the burden proof has 

not been met. I have outlined that in my written statement to this 

Committee. Rather than restating my opinions, I have attached a 

law review article I wrote in the Ohio State Law Journal. 

What I would like to do today is move to another area. But first 

I just want to make a footnote here that I am very grateful, Mr. 

Chairman, that you have indicated to my colleague, Judge 

O’Scannlain, that we shouldn’t decide issues as important as this 

based upon case decisions. 

22

I noticed that the junior Senator from Nevada, when he introduced his bill, gave a press release indicating the circuit should be 

divided because of the Pledge of Allegiance case, which has now 

been argued before the Supreme Court. I point out, Mr. Chairman, 

that the person who wrote that decision is a judge from Oregon, 

and the very able dissent in the case was by a judge from Los Angeles. The idea of dividing circuits so that certain cases come out 

a certain way is problematic. I am grateful to the Committee that 

this is not going to be an issue. 

What I would like to do is to bank upon your assurance that everyone has an open mind, because I want to go a little different direction. I think that what is needed is larger, fewer circuits in the 

21st century. Those who champion division seem to express a preference for a small-court culture. 

My good friend, Jerry Tjoflat, will testify in the next group, and 

he and I have been on opposite sides of this issue for quite a number of years. He equates the small, collegial court to life in the 

small town, which he contrasts to the big city where many people 

do not know, much less understand, their neighbors. 

This is indeed a romantic and appealing notion, that of the small 

town, in which everyone knows each other intimately, and can 

reach decisions by consensus in town meetings. Then on the other 

side, Judge Tjoflat contrasts it with the so-called ‘‘jumbo’’ court, 

which he describes as less efficient and less predictable. 

There is one issue that is bound to come collegiality: and that 

has been discussed this morning. There is no question that as you 

add judges, you decrease collegiality, but its significance depends 

on how much you try. My colleague, Judge Tallman, said there is 

too much time in travel. But that is because we have decided to 

travel, not because Congress has told us to travel. It is not because 

we can’t do it another way. We have chosen to travel. 

A few years before I came on the court of appeals in 1972, nearly 

every judge moved to San Francisco when they were appointed to 

the court of appeals. That is what we did. We lived at circuit headquarters. We saw each other everyday in circuit headquarters. 

The judges of our court today can all move to San Francisco and 

do what we used to do when we were a collegial court. But we have 

chosen, for creature comfort, to live in different communities. That 

is fine, but we shouldn’t object on the basis of collegiality when we 

were the ones who caused the decrease in collegiality. 

If it is a problem as serious as indicated, then why not decide 

in the Ninth Circuit and in every other circuit in the United States 

that we will all live at circuit headquarters, which Judges used to 

do in the early days of our Republic? 

The ultimate test is not the comfort of the judges, but what is 

best for the country. The Federal courts do not exist for the benefit 

of the judges; they exist, at taxpayers’ expense, solely to serve and 

meet the needs of the public. Judges are, fundamentally, public 

servants. Judicial policy must be dictated by concerns for the judiciary’s mission, not the personal preferences of its members. 

Thus, I am not sure that we really gain very much by comparing 

life in the big city with life in the small town. All of us would like 

to go back to the days of Learned Hand where we could sit and 

contemplate and enjoy the slow process, but it is not going to hapVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
23

pen. Life has gone on, and the people of the United States want 

something else. So what I would like to do is talk about regional 

courts. 

I remember the time when the Fifth Circuit was divided. I had 

been on the Ninth Circuit for some years by then, and the Congress decided that the Ninth and the Fifth Circuit could split, if the 

Judges chose to do so, or the alternative would be that they could 

have what are called administrative units and limited en bancs. 

We chose the latter, the Fifth Circuit the former. 

John Minor Wisdom, a judge of the old Fifth Circuit, told me that 

the Ninth Circuit is the last regional court left. With nostalgia, he 

said it. I want to talk to you a little bit about my view, which is 

consistent with Judge Wisdom’s perception, about regional courts. 

Large circuits like the Ninth can enhance stability, predictability 

and efficiency in law—just the charges made by those who wish to 

divide. Let me talk about stability and predictability. 

Critics maintain that a large court is inherently unstable and unpredictable. It is true the number of possible panel permutations 

in a court increases exponentially as the number of judges increases incrementally, and that one cannot predict which panel will 

hear one’s appeal. It is also true that you don’t sit as much with 

your colleagues on the bench. It does not follow, however, that the 

law in such a court will be unpredictable or unstable. 

Of course, for lawyers and litigants, the best guide for predicting 

the outcome of any litigation is a case on point. Where there is no 

case on point, they are left to shrug their shoulders and speculate 

what the court will do. The more published decisions from which 

to work, the more guidance lawyers and trial judges will receive. 

Recognizing this principle, some smaller jurisdictions with small 

courts voluntarily opt to follow the law of the State of California, 

the largest judiciary in our country, for the very purpose of providing guidance and predictability to lawyers and litigants. Guam 

is a typical example. 

Attorneys who practice law in small jurisdictions where there is 

little precedent know how difficult it is to plan and predict. A larger court is capable of providing sufficient case law to provide truly 

useful precedent. It is precisely in such a court where one can find 

a case on point. 

But will these added cases lead to conflict and inconsistency? 

Professor Arthur Hellman published a collection of articles analyzing the Ninth Circuit and commenting on the future of the judiciary. Hellman’s empirical study—and I point out again, empirical 

study—found that the feared inconsistency in decisions of a large 

court simply has not materialized. I have heard lawyers and others 

tell us our opinions are inconsistent, I have heard a lot of people 

say they are unpredictable, but there is only one empirical study 

and that empirical study says those who believe this are wrong. 

Hellman’s study is the most thorough, scholarly attempt that has 

yet been made on this issue, according to Professor Daniel Meador 

of the University of Virginia, in that it goes far toward rebutting 

the assumption that such a large appellate court, sitting in randomly-assigned three-judge panels, will inevitably generate an uneven body of case law. The contrary view, though popular, is unVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
24

supported by evidence and is really nothing more than seat-of-thepants assumptions. 

What about efficiencies? Chief Judge Schroeder has pointed out 

efficiencies in our court and I will not repeat: but let me state that 

statistics can be misleading. Statistics as to the time of filing to the 

time of disposition take more into account than the efficiency of 

judges. The efficiency of judges is determined from the time they 

get the case until the time they file the case. 

Last year, the Ninth Circuit was second best of all circuits in 

judges’ promptness as measured by median time from hearing to 

disposition, and, tied for first place for submission to disposition. 

The Ninth is the big circuit. Why has the ABA indicated that 

there are efficiencies in the Ninth Circuit? Why does the organization which represents all the lawyers of the United States believe 

the Ninth Circuit is doing well? 

The delay is before judges get the case. Judges in the Ninth Circuit are more prompt than most all in the United States. The question is getting the case to the panels, which means more judges. 

The issue is not how judges are doing in a large circuit; it is the 

lack of judges given to the circuit to dispose of its work. 

Now, let me turn for a moment to the 11-judge en banc court. 

I was a member of the court when we decided to adopt this program, so it is probably appropriate that I make a comment on why 

we did it and how it can be changed, if our court decides to do so. 

A court of 11 judges is designated when there is to be an en banc 

hearing. We were allowed by the Congress to do this by rule of 

courts. My colleague, Judge Tallman, says a three judge panel may 

not automatically be on the en banc court for that case. We can 

change that. We decided at that time that we wanted a fresh look 

at an en banc case and not have the three judges of the original 

panel automatically on the en banc court. The fresh look would 

mean we would have 11 new judges, although any of them may be 

drawn. If Judge Tallman is correct, we can change that tomorrow 

by local rule, if a majority of our judges can be convinced by him 

that the court should be so. 

The question of panel autonomy has always been sacrosanct; that 

is, in most cases we rely on panels. Where we need to take a case 

en banc, we can. We can change it from 11 judges. That too is set 

by local rule. If Judge Tallman is correct that 11 is too small, 

change it to 13, change it to 15, change it to 21. It is all done by 

the court by local rule. Congress doesn’t have to do a thing. So if 

the limited en banc is imperfect, and if we in the Ninth Circuit 

agree with Judge Tallman, we can change that by local rule. 

Finally, what about the full court? The full court can always take 

the case. If a majority of the judges decide, after the limited en 

banc court opinion, to sit as a full court, we can do so by the same 

process that we voted for a limited en banc majority vote. The court 

has voted, but has never gone to full court. Why? Because I think 

the judges of the Ninth Circuit don’t believe that every judge has 

to have his or her hand on the en banc pencil; that is, for purposes 

of finality, 11 judges have reached a decision, which is sufficiently 

final. If we are wrong about that, we have the solution in our 

hands and can take any case as a full court. We have two courtrooms where it can be held. 

25

Now, let me point out that in 1990, the report of the Federal 

Courts Study Committee commented upon our limited en banc. 

This committee was made up of a group of judges and lawyers from 

across the country who looked at our system in-depth. Senators 

and Congressmen, this is the report: ‘‘The limited en banc appears 

to allow more efficient use of court of appeals resources and should 

be available to other courts of appeals, even those that do not regularly have 15 active judges. The growth in the number of circuit 

judges is likely to continue, increasing the potential for en banc 

courts of unwieldy size.’’ 

I have taken more time on that than I should, but let me talk 

about the alternative. Certainly, courts could be more congenial if 

they sat in smaller groups, et cetera. But once you divide the Ninth 

Circuit, where are you going in principle as a Congress? Are you 

going to set certain limits on the size of courts? 

There isn’t going to be a decrease in the number of cases coming 

to the courts, regardless of what you do with the Ninth Circuit. Filings will continue to increase. We will have more people. Our people understand their rights better. They are better educated. And 

I applaud these increases; it is showing that our courts are providing their useful purpose. 

So what is the average size you want of a circuit court? One of 

the bills before you calls for a six-judge circuit. Using that model, 

we would now have 30 circuits. What happens as you continue to 

divide? What occurs when you have 30 circuits, when you have 40 

circuits? We lose the whole ability of having coherent national Federal law. 

It is not just the division of the Ninth Circuit that is at stake. 

The Congress will now decide what will be the Federal appellate 

governance for the future of our country. By the end of the 21st 

century, a Congress will once more have many more of these division proposals before it. Do we eventually want balkanization of 

the Federal system, or is it wiser at this time to learn how to work 

with larger courts? Should we not be considering combining courts 

and learning the process that we have studied and developed in the 

Ninth Circuit? 

It is not that large is bad. Large is different. And it is not that 

we can go back to having small circuits of six or eight judges 

throughout the United States. It will not happen. We cannot turn 

the clock back. Our people demand more. The question is, at the 

end of the 21st century, what kind of structure do you want? And 

I suggest that continuing to divide will balkanize the Federal rule 

of law in the United States. We would be far better off with fewer, 

larger circuits. They have problems, certainly. Nothing is perfect, 

but we must look at what is best for the United States in the long 

term. And I suggest it is time to open our minds to another 

model—fewer, larger circuits. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Judge Wallace appears as a submission for the record.] 

Chairman SESSIONS. Thank you, Judge Wallace, and thank you 

for your articulate support for the contrarian view that large is not 

bad. You have articulated it well and it gives us a good place to 

work from. 

26

With regard to the question of burden of proof, I think I have 

learned in the Senate there is no burden of proof up here. It is 

however you feel when you cast your vote and whatever factors go 

into your mind. It is really a political world. As one who spent by 

far the biggest part of my professional life in court practicing law, 

it is something you have to get used to. 

Justice Kennedy also in his letter to the White Commission noted 

that, quote, ‘‘A court which seeks to retain its authority to bind 

nearly one-fifth of the people of the United States by decisions of 

its three-judge panels’’—in effect, a three-judge panel binds 50 million people—‘‘which include,’’ he says, ‘‘visiting circuit and district 

judges, must meet a heavy burden of persuasion.’’ So Justice Kennedy, who used to be a member of the Ninth Circuit, as I recall, 

saw the burden on the other side. 

Do you disagree with that, Judge? Obviously, you do. 

Judge WALLACE. I do. Justice Kennedy was my junior on the 

court. 

[Laughter.] 

Judge WALLACE. I disagreed with him at times then and I disagree with him now. 

Chairman SESSIONS. Well, Judge O’Scannlain, do you have any 

thoughts on the burden question and how the politicians here 

should look at that issue? 

Judge O’SCANNLAIN. Well, it seems to me that time has changed. 

As I indicated in my submitted testimony and in my remarks, the 

relentless growth that we have seen and the problems that it has 

created has called out for a resolution. And it seems to me that 

three very respectable proposals have been made in this session of 

Congress which I would hope our chief judge and the members of 

our court would be given an opportunity to review and perhaps get 

back to you, Mr. Chairman, and to your colleagues on the House 

side with some suggestions of how we might go about restructuring. 

I see the burden issue as being responsive to these respectable 

suggestions, and it seems to me that now that that has been made 

from the legislative branch, the burden is on us at this point to respond, and respond intelligently with suggestions about why this 

particular restructuring has greater strengths than others, or suggested alternatives or whatever. But it seems to me that is our burden. 

Chairman SESSIONS. Well, it is something that we would value. 

I think there really is a lack of concrete commitment to any one 

plan as being the absolute right way to do this. So I think if anybody has insight into what they think the circuit should look like 

if it were split, we would be delighted to hear it. 

I know the empirical study that you referred to may indicate that 

there is not a concern among lawyers. But the White Commission’s 

report found that lawyers in the Ninth Circuit report somewhat 

more difficulty discerning the circuit law and predicting outcomes 

of appeals than lawyers elsewhere. Ninth Circuit lawyers more 

often than others report a large or grave problem—the difficulty of 

discerning circuit law due to the conflicting precedents and the unpredictability of appellate results until the panel identity is known. 

27

Judge O’Scannlain, in your remarks you made reference to the 

fact that frequently there is an embarrassing situation in which a 

panel unknowingly conflicts with another panel. I believe that was 

the point you made. Is that more likely to happen in a larger circuit, and what did you mean by that? 

Judge O’SCANNLAIN. Well, it has happened and it is indeed more 

likely to happen in a larger circuit simply because of the fact that 

at any given time we have the potential for nine separate threejudge panels to be sitting at the same time. Whether it be in Pasadena or Honolulu or Anchorage or Portland or Seattle, wherever we 

routinely sit, we could very well have as many as nine panels sitting simultaneously, some of which panels might have identical 

issues without necessarily knowing that there is a case going to 

come down from one of the other panels or has recently come down 

and hasn’t been published yet. 

We do have an internal procedure that is designed to minimize 

that, but like everything it is not perfect. I respect the chief judge 

and our clerk of court for identifying that problem and coming up 

with a potential resolution of it. But it is not a perfect resolution, 

and it can’t be so long as you have that kind of volume going on 

and that many panels which could sit simultaneously. 

Chairman SESSIONS. Chief Judge Schroeder, you might want to 

comment on that, and then also I would like your thoughts on how 

important you think it is to have additional judges for the circuit. 

Judge SCHROEDER. Yes, thank you, Mr. Chairman. I would like 

to comment on the issue of conflicts. I recall just before I went on 

the Ninth Circuit, I had a discussion with one of our most revered 

judges in the history of the country, Judge Coffin, of the First Circuit, and it was at the time when the Omnibus Judgeship Act of 

1978 or 1979 had just passed. Ten judges were to be added to the 

Ninth Circuit and an additional judge to the First Circuit, Judge 

Coffin’s circuit. 

He said to me that he thought that the Ninth Circuit would have 

less trouble going from 13 to 23 judges than the First Circuit would 

have going from 3 to 4, because there are always problems of adjusting when you have different panels. We have attempted to minimize that with our system of issue identification. 

We have, since the White Commission report, studied this question. We have attempted to quantify the nature of the conflicts. We 

have been unable to do so. We have put a website up so that lawyers who find conflicts in our decisions can send them to our 

website. 

We have established a rule where we permit the citation of our 

unpublished decisions to us in petitions for rehearing or in requests 

for publication so that lawyers can cite to us instances where we 

have issued conflicting decisions. And we are getting almost no 

such citations, so the documentation, as Judge Wallace has pointed 

out, for the existence of multiple conflicts on a regular basis simply 

does not exist. 

Chairman SESSIONS. How about the need for new judges? 

Judge SCHROEDER. Thank you. The one thing I think that there 

is consensus here on is that additional judges needed to be added 

to serve the interests of the administration of justice in the West. 

That is true, no matter what you do. 

28

Judge Wallace said it far better than I could. The real issue is 

what do we do with the courts, the Federal courts, as the cases 

grow. This is true in the West and it is true in the South. The 

Eleventh Circuit has chosen not to add judges and has instead 

made very extensive use of visiting judges from other circuits. 

Many of our own judges have been sitting in the Eleventh Circuit. 

And they have also added the number of cases per judge, so that 

now in the Eleventh Circuit the number of cases that a judge sits 

on is now more than 800. I just read a book on the division of the 

Fifth and the Eleventh Circuits. They were worried about being 

overloaded when each judge had 67 cases. 

Chairman SESSIONS. Judge Tallman, you talked about the courthouse that might be existing in Seattle. I think maybe there is one 

in Portland that Judge O’Scannlain made reference to. But tell me, 

isn’t it true that six district judges would require more space than 

six circuit judges, actual space, and how many courtrooms would 

you actually need in a courthouse for six circuit judges? I know 

each judge has got to have their office space, but in additional to 

the office space, you don’t need six courtrooms, do you? 

Judge TALLMAN. Senator, I am on the Seattle space Committee 

that is intimately involved in the planning for the renovation of 

that facility. What we are planning is essentially a regional court 

of appeals facility similar to what we have in Pasadena as a satellite to the headquarters at 7th and Mission in San Francisco. 

The Seattle courthouse, as we are currently planning the earthquake retrofit and renovation, will have an en banc courtroom and 

two three-judge hearing rooms that will be carved out of the existing five courtrooms that the district court uses. We will use the 

fourth courtroom for a meeting room that would be large enough 

to hold the entire court, as it is currently comprised, if it wanted 

to come up and hear en banc cases in Seattle. And the fifth courtroom will be turned into a branch library for our circuit library. 

But even under that configuration, and using the planning—I 

guess it is called any Court, which is the Administrative Office 

computer program for planning space needs—we still can’t justify 

filling the entire 104,000 square feet that will be vacated by the 

district court. We are actually going to have to find some sub-tenants for the court of appeals. So there is plenty of room in the 

courthouse. 

Chairman SESSIONS. The point is you have a library and an office 

in that building. Is there another circuit that is there? 

Judge TALLMAN. We actually currently have three circuit judges 

in that building, and then two of us have been forced out, because 

of space shortages because of the needs of the district court, down 

the street in a nearby commercial office building. 

Chairman SESSIONS. And when that gets fixed, you will already 

have three— 

Judge TALLMAN. We will have five, in total, two active and three 

senior circuit judges. 

Chairman SESSIONS. Already in Seattle, and already there is 

chambers space for them there? 

Judge TALLMAN. Absolutely, and we are planning under the current planning documents resident judge chambers space for ten 

resident judges and for nine visiting judges. 

29

Chairman SESSIONS. That is a generous plan. 

Judge TALLMAN. It is a big building. 

Chairman SESSIONS. It sounds like you have got a pretty good 

budget, Chief. 

I am a little bit critical of the judiciary in feeling that every magistrate and every district judge has to have their own courtroom, 

when 75 to 80 percent of the time a judge is not in his courtroom, 

and so they are vacant. So I think from a cost point of view, we 

could probably do better. 

But, regardless, you have, I think, brought us up to date than 

appellate court is not quite the demand that magistrates and district judges have, with jury rooms and all of that. 

Judge TALLMAN. Mr. Chairman, we routinely share courtrooms 

all throughout the circuit for three-judge panel hearings. There is 

no such thing as a courtroom being assigned to a circuit judge. It 

is simply in existence for a three-judge panel to meet in, and the 

only reason we are planning two for the Nakamura Courthouse is 

that we do, every other month, have two three-judge panels sitting 

simultaneously in Seattle, so we could easily accommodate them. 

I would also like to add that the money for the renovation is coming out of the rent money that we have already paid to GSA as tenants of the building. So the Congress would not have to appropriate 

new construction funds for that work. So with all due respect to the 

chief’s cost figures that she submitted in connection with her written testimony, they are grossly overstated if the Nakamura Courthouse were to be utilized for a circuit headquarters. 

Chairman SESSIONS. Chief Judge Schroeder, and then I will recognize Senator Feinstein. 

Judge SCHROEDER. Thank you. I would like to comment to that 

briefly. There is a big difference between using a courthouse as a 

regional place of holding hearings for the Ninth Circuit Court of 

Appeals, which is what is being done in the Nakamura Courthouse, 

and converting that courthouse to a circuit courthouse. 

I have studied this and we have studied it for some time. We believe—and we have consulted with the Administrative Office on 

this—we believe that the Nakamura Courthouse, if you were to 

have a circuit of six judges under one of the proposals, might be 

sufficient to be a circuit headquarters, but you would then have 

to—because that proposal creates three circuits, you would have to 

create another courthouse either in Phoenix or in Las Vegas. 

If you were to convert the Nakamura Courthouse to a circuit 

headquarters for a larger circuit that is for more than six judges, 

it would have to be substantially reconfigured. It wouldn’t work because you have to have space for files, for clerks’ offices, for circuit 

executive, for computers, for all of the things that are now in San 

Francisco that would have to be moved to a circuit headquarters. 

Judge O’SCANNLAIN. Mr. Chairman, if I could comment on that, 

the best way to analyze this is in terms of the total number of employees for the current Ninth Circuit and what would result. 

Just hypothetically, suppose we were going to split into two circuits, one roughly two-thirds and one roughly one-third of where 

we are now. If we have 300 employees in San Francisco, San Francisco would reduce the number of employees presumably by 100. 

And whatever circuit headquarters would be needed in Seattle or 

30

Portland or whatever, you are only talking about a smaller number, one-third of what used to be in San Francisco. 

The assumption seems to be floating around here that somehow— 

Chairman SESSIONS. That is the way business people think, 

Judge, but I am not sure judges think that way. 

Judge O’SCANNLAIN. Well, some of us do. 

Judge SCHROEDER. Again, I would like to invite you to come and 

see how the space is utilized. It is not just people, it is files and 

documents. 

Chairman SESSIONS. Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I particularly want to make a comment on Judge Wallace because I remember him appearing, I think, when he was chief judge on this 

same subject. And you have lost none of your brilliance. I want you 

to do know that, and it is very much appreciated. 

One of the problems we have, Judge Wallace, is that this comes 

back and back and back again, which, if you sit on our side of the 

dais, you have to come to believe means that there are people out 

there who want to split the court. And it is particularly in the 

Northwest where this view applies. Both Senator Craig and Senator Murkowski mentioned the popularity of it in their States. You 

have a relatively new Senator in Senator Ensign, and yet he makes 

a proposal as well. 

So it is out there, and I would say to all of you I don’t think it 

is going to subside. So the question is whether we tackle it or we 

don’t tackle it. My view has been that I have seen no overriding 

reason up to this point to tackle it. I think it is much more complicated than we have looked at it to date. I will begin to get cost 

estimates now from CBO and others on each of the bills. 

Respectfully, Judge Tallman, I don’t think it is going to be that 

simple. I have found that courthouses become the redeeming fact 

of judges. I mean, they all want new courthouses. It just doesn’t 

stop. I hear different States wanting the courthouse, et cetera. 

Senator CRAIG. Senator, I think cost per square footage on courthouses is the highest of any Federal buildings in the Nation. 

Senator FEINSTEIN. I am sure that is right. Thank you. I am sure 

that is right. 

So the question comes, if you are going to do this, how do you 

do it to really serve the public the best? This is part of the point, 

and my own view is that the two-circuit split doesn’t really accomplish very much at all because it leaves the heavy preponderance 

in the Ninth Circuit. The three-circuit split doesn’t go much more 

than that because if you look, as has been suggested by one of the 

jurists, into sort of the split of business, under the Ensign proposal 

the Ninth Circuit would keep 69 percent of the cases, under the 

Murkowski proposal 72 percent of the cases, and under the House 

proposal 81 percent of the cases. So there is no way you can do a 

split without adding substantial new judges to the Ninth Circuit. 

I think that has to be the first point we have to have agreement 

on. 

Then the second point comes in with precedent, and I want to 

ask each of your views on that. If there were to be a split, how 

would you handle the issue of precedent? 

31

Why don’t you begin, Chief Judge? 

Judge SCHROEDER. Well, the precedent for precedent is the Fifth 

Circuit–Eleventh Circuit split, which was that all of the previous 

decisions of the Fifth Circuit were adopted as precedent for the 

Fifth and the Eleventh. 

Senator FEINSTEIN. So you would say Ninth Circuit precedent be 

adopted among any new circuits? 

Judge SCHROEDER. I think that would be the way probably that 

it would be handled, but I don’t speak having discussed it. 

Senator FEINSTEIN. Well, I think that is important. 

Judge O’SCANNLAIN. Thank you, Senator. I would expect on the 

first official meeting of the new circuit that the judges would adopt 

a rule of court that all existing Ninth Circuit precedents shall become the law of the new circuit from day one. I think that is what 

happened in the Fifth Circuit and I think that particular fact goes 

a long way to dispelling the concerns of those who do worry about 

whether the law would be different if it were different judges or in 

different parts of the existing circuit. I think that is a very important point. 

Senator FEINSTEIN. Thank you very much. 

Judge Tallman. 

Judge TALLMAN. Senator, I think that Judge Tjoflat can address 

your question directly because they had that problem and he can 

tell you how they resolved it. But my understanding is that for purposes of respecting precedent and the fact that, let’s say, in business transactions lawyers have counseled clients in the past to rely 

upon existing Ninth Circuit precedent in structuring their transactions, you would have to leave that law in place initially until 

such time as the new circuit had occasion through future case development to perhaps address those issues in the future. Maybe 

new Supreme Court cases would come down that might change it, 

but I think you would have to, for the stability of the transition, 

adopt existing precedent. 

Senator FEINSTEIN. Thank you, Judge. 

Judge Wallace. 

Judge WALLACE. I have nothing to add. I agree with my colleagues. 

Senator FEINSTEIN. Thank you very much. 

Another point I would like to raise is every time we have considered this before, we have always looked to the positions of the 

State bars, the individual State bars in all of the States. At this 

point, we have had just a smattering of response and I do think 

we need to get that. 

I would suggest that if we were to do this and do it right, it is going to have substantial cost to it well in excess of $100 million. 

I think we need to at least begin to get some of those figures assembled and I would like to ask if the court could assemble some 

figures for us. You mentioned all of the technology that would have 

to be duplicated, and I think we need to get a handle at least on 

those as well. 

Judge SCHROEDER. We would work with the Administrative Office to do that, and it is not just court figures; it is the circuit-wide. 

Senator FEINSTEIN. Yes. Now, one question on the en banc proceedings. Because this was raised, let me go to the Pledge of AlleVerDate 0ct 09 2002 12:16 Jul 26, 2004 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\94844.TXT SJUD4 PsN: CMORC
32

giance case. It would seem to me if there were any case where the 

circuit would sit as an absolute full circuit, it would be that case 

because judges must know the resounding impact of that case. 

It would seem to me that rather than leave a case like that 

which so impacts the history of what this Nation is all about, a 

very solemn Pledge of Allegiance, the entire circuit would sit. So 

from the time this came down, I was puzzled why that didn’t happen. 

Could any of you take a crack at that? 

Judge O’SCANNLAIN. As you may recall, Senator, I wrote the dissent from failure to rehear the case en banc. So the public knows 

that there was a call for a rehearing en banc, and what the public 

can surmise is that there were less than whatever it was, 14 votes 

at that point, in favor of taking that case en banc. 

But I would like to suggest that there are probably a variety of 

reasons why judges would vote one way or the other on that proposition. For the same reason that you suggest that this is a very 

high-profile issue, some of my colleagues might very well have decided not to vote in favor of en banc rehearing so that the Supreme 

Court could get the case as quickly as possible, precisely because 

it is such a case of major importance. But there is no record of the 

individual views of the 26, or whatever there were at that time, 

judges. So we can’t really go beyond that level of speculation. 

Senator FEINSTEIN. Judge Wallace. 

Judge WALLACE. Because I am a senior judge, I can speculate. 

As I indicated, the majority opinion was written by Judge Ted 

Goodwin. He was appointed to the district court and to the circuit 

court by Richard Nixon. He is from Oregon. He is a judge who 

looks very carefully at the dispositions. 

I have read the case. I am more persuaded by the dissent, but 

the majority opinion makes a good point that a case in the Supreme Court leads them in that direction. It was a case authored 

by my former colleague, Justice Kennedy, and it may be that our 

the court thought this is an issue for the Supreme Court; it is their 

problem, they should look at it. And they have. 

We aren’t always happy with the decisions we have to write. We 

have to follow the Supreme Court and we have to follow our own 

precedent. I think that the opinion can be justified on that basis 

and that the action of our court was proper that this is one the Supreme Court is going to have to solve, and apparently they are 

going to if they can find standing. 

Senator FEINSTEIN. Thank you. 

One of the things that I have had a great deal of trouble 

throughout the years with as this has come up over and over and 

over again is the diversity issue, the three–State issue. Yet, there 

is so much diversity. I mean, just in California alone a test of diversity, in a sense, is met. 

The question comes, too, because there is such feeling from the 

more agricultural States, I think, and I think Idaho is probably a 

classic example—and Senator Craig, I am sure, will not hesitate to 

correct me—that they don’t belong in the circuit. There are feelings 

that some States have such different interests that they belong in 

a different circuit. 

33

How do you look at that, how do you regard it? How should we 

look at that? 

Judge O’SCANNLAIN. Senator, the notion that there is a minimum 

number of circuits, I believe, is one that arises in the academy. The 

law professors seem to think that it is very important to have a 

minimum number, presumably three. Now, I don’t know why it has 

to be three, necessarily. Two might work. Theoretically, one could 

envisage a one–State circuit. After all, you have the District of Columbia Circuit, which is a one-district, one-entity circuit. 

The reason why commentators have supported more than one 

State tends to have to do with impact on the State itself. For example, California has three different options. One, there could be an 

all–California circuit, a single–State circuit, but that would give 

rise to perhaps unhealthy competition between the circuit court of 

appeals, the Federal court, and the State supreme court, both of 

which have overlapping responsibilities on a number of issues. The 

other option would be to put California into two separate circuits, 

which was the recommendation of the Hruska Commission. But I 

recognize, Senator, I believe you have some reservations or concerns about that. 

So the analysis has been, all right, assuming California is the 

building block, what are the least populace or least case-heavy 

States that could be added to it to accomplish a split that would 

result in a circuit which would still contain California and then the 

minimum addition, whether it is plus one or plus two. 

So in a sense, you have a conundrum, the problem being that 

California is so large that it could certainly justify a circuit all by 

itself, with all the diversity that it represents and with the four 

separate judicial districts within the State. There is no question, 

based on population or even on caseload, that that would certainly 

be viable. The real question is what do we do with the notion that 

you have a Federal role and you also have a State role and you 

want to minimize the tensions the best you can. 

Judge SCHROEDER. May I comment to that, Senator? 

Senator FEINSTEIN. Please. 

Judge SCHROEDER. Thank you. The reason historically that there 

has been a three–State principle has been, I believe, the need to 

have at least six Senators in order to get the resources for a circuit 

because the Senate has such a vital role in confirming judges. 

As for the diversity, I think there is no question that California 

is diverse. The concern has been that the driving force here has 

been to create a new circuit in the Pacific Northwest from those 

States, and the concern has been that that is not a diverse interest 

because the reason for the movement to create a circuit and the 

concern is that there is driven by certain economic interests. 

I will only reiterate the concern expressed by my distinguished 

late colleague, Judge Wiggins, who sat in Congress and who pointed out repeatedly in opposition to my distinguished colleagues that 

we should have a circuit made up of the Pacific Northwest. He said 

that Congress makes one law for the entire United States and we 

should not create courts in order to interpret that law differently 

for certain parts of the country. I share that concern. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

Chairman SESSIONS. Thank you. 

34

Senator Biden said that one time. I was presiding in the Chair 

and he said, well, there is only one Constitution and one Federal 

law; you ought to get the same ruling in every Federal court in 

America. Maybe the Northwest knows about salmon and Arizona 

judges have more expertise in immigration, but I think you make 

a good point. 

Judge Wallace, I would just say that I sort of took your position 

when the panel rendered the Pledge case. Most of the Senators 

criticized the Ninth Circuit, including the Democratic Leader and 

Democratic Whip, pretty aggressively. 

Senator FEINSTEIN. May I put Senator Leahy’s statement in the 

record? 

Chairman SESSIONS. Yes. Senator Leahy’s statement will be 

made a part of the record. 

I remember saying that, well, it is the Supreme Court’s time to 

get this thing straight. They have muddled the law of separation 

of church and state in many, many ways, and ultimately they have 

got to call the question. I do believe that. 

Senator Craig. 

Senator CRAIG. I am learning a great deal this morning—and I 

appreciate that—from your differing points of view about a single 

issue and how we view it as objectively as we can. 

As I said earlier, I am not an attorney. At the same time, I do 

believe it is my incumbent responsibility to attempt to reflect a majority opinion of my State as best I can. So in listening to all of you 

this morning, I am factoring several things in. So let me make several observations as it relates to some of what you all have said. 

Judge Schroeder, it is interesting that politics would be the original designer of a circuit; so many Senators, therefore so many circuits. But the politics of that day did not understand that one State 

could become so very dominant. In the case of resource allocation 

today, the State of California controls a little better than a sixth 

of the votes in the House and the Chairman of the House and Ways 

Committee. So from the standpoint of California being impaired by 

resources in a division, that day has passed, and we must retain 

as best we can a certain amount of contemporary opinion. At the 

same time, reality suggests different kinds of things today than it 

might have at the time of that design. I don’t dispute the original 

basis. 

Judge SCHROEDER. May I comment? 

Senator CRAIG. Please. 

Judge SCHROEDER. I was giving the historic basis. 

Senator CRAIG. Exactly. 

Judge SCHROEDER. On the domination of California, no one understand your views more than a judge from Arizona because we 

are adjacent to California, but we know that we are tied to California. We don’t want to lose that tie, we don’t want to be dominated. Therefore, we believe that the balance of the existing circuit 

is the best way to achieve the kind of balance and efficient administration of justice for all the people in the West, which has to be 

my first priority. 

Senator CRAIG. Let me now turn to an interesting observation 

that Judge Wallace has made as it relates to size. Size is inevitable, so we ought to learn to manage size. If that is true, let me 

35

offer you this suggestion, Judge, as it relates to the Ninth Circuit 

and the Eleventh Circuit. 

If you think you can manage what you have got now, give it another decade because of the rates of growth in those two circuits. 

If you look at the rate of growth in the three States of Arizona, Nevada and Idaho alone, I would suggest to you that that circuit will 

grow increasingly larger proportionate to other circuits, simply because many of us in the West would suggest that the rest of the 

world has discovered us and they are wanting to come there to live. 

Be that as it may, the growth factors are substantial. I find it 

very interesting in my State, in a time of relative economic flatness, the growth hasn’t changed; people are still coming in high 

numbers. So I do believe we are looking at a very large circuit that 

will grow larger than others, increasingly so, and that remains a 

problem. I think it is also true of the Eleventh, for a variety of 

maybe different reasons, but clearly growth is at hand in those two 

circuits, more so than almost any other circuits in the Nation. That 

is part of the frustration I think we are all looking at when we look 

at the facts of the circuit and the caseload involved and the time 

lines and whether justice is, in fact, being rendered in a timely 

way. 

Let me go to another point that I find quite fascinating. Some 

would like to retain the small-town culture. That day has passed; 

let’s get on with bigness. I would suggest to you that America does 

want to try to retain as best it can the small-town culture. 

I find it very interesting that in almost attitudes today reflected 

in polls that Americans really want family and community to supersede the influence of a broader, larger culture, if you will. So reflective from some of the bases from which we make decisions here, 

I think we all take that into consideration. That is the political side 

of evaluating how a court or the process itself works. 

I find it very fascinating that that remains true even in a State 

like Idaho that is now growing very rapidly. Of course, it is ironic 

that the growth itself is a product of those searching for the small 

town, and in searching for it they create the large town, and that 

is inevitably true. So it is an interesting struggle we are at. At the 

same time, I think what we now look at and must look at is numbers and timeliness and can, in fact, decisions be rendered that are 

consistent with law and precedent that is extremely important. 

Lastly, I found it interesting, Judge Schroeder, your observation 

about the culture of the court and the character of the western 

growth. Idaho has grown at an unprecedented rate in the last decade. Certainly, for Idaho, it has been a struggle. 

What is fascinating is that half of those who come to Idaho are 

from California. So it isn’t that the California culture is going to 

escape Idaho. It is moving there. I would suggest that California 

is culturizing the West. Whether I like it or not, the reality is quite 

true. 

Senator FEINSTEIN. Point of personal privilege. That is actually 

the nicest thing you have said in a long time. 

[Laughter.] 

Senator CRAIG. See, Dianne, you are seeing my kinder, gentler 

moments here. 

36

But it is very true. That is the reality of how we grow in the 

West. As California grows, people from the West love the West, so 

they are not going to leave the West and they go elsewhere in the 

West. That is true of Idaho and I suspect it is extremely true of 

Nevada today. It has always been true of Arizona and other places. 

But, statistically, that is true. About half from California, half from 

the rest of the United States, come to Idaho. 

What is at stake, I do believe—and I don’t disagree with the Senator from California about differences as it relates to how Idahoans 

perceive a San Francisco judge judging on an Idaho agricultural, 

resource, or public land issue. They feel, and have expressed very 

openly, that there is an inherent urban bias, if you will, upon a 

State where its ruralness, or more importantly its historic and 

what I believe legal precedents of a relationship between its people 

and the land are, in part, different. That has always been a frustration, also, and I think that has helped push the issue of a division of the court to try to get judges that are more reflective of the 

culture that they are judging cases coming from. 

Well, those are some observations. My bias toward splitting the 

court I have expressed for a good number of years. I do believe that 

I agree with Judge O’Scannlain. I believe that my bias is now being 

increasingly confirmed by a broader majority of citizens because of 

the sheer numbers involved and what is happening out there. What 

might have started as a political bias, if you will, or a bias based 

on politics is rapidly a bias that may well be justified by size and 

the ability of the court to effectively function. 

Thank you all very much for your observations and your concern. 

We will rely on you as we must and should, because of your experience, as we draw toward what I think is an inevitable decision on 

how we handle this issue. 

Thank you. 

Chairman SESSIONS. Thank you, Senator Craig. 

Counselor Kyl. 

Senator KYL. Thank you, Mr. Chairman. 

A lot of the concern about a potential split of the circuit has to 

do with the en banc review issue in a court as large as the Ninth 

Circuit. That was a significant focus of the White Commission 

which resolved it in a different and unique way that I think, by the 

way, Mr. Chairman, we should go back and review because there 

was a lot of work that went into that commission. I disagreed with 

the specific recommendation of the commission, but I thought it 

had a lot of very sensible things to day, and I think we should go 

back and review that thoroughly. 

But this question of en banc review, especially with a court as 

large as the Ninth Circuit—and I wanted to review something that 

Judge Posner said that puts this at the top of the list of things we 

have to address. Judge Posner has called this limited en banc procedure a formula for in-fighting and doctrinal incoherence, among 

other things because of the possible discrepancy between the threejudge panel and the random draw of ten judges, plus the chief 

judge, on the en banc panel, the lack of collegiality and the other 

things that have been mentioned here. 

Now, Judge Wallace says, well, we might as well get used to this 

because inevitably the population in all of the circuits is going to 

37

grow. The caseloads will grow, and we should be using the Ninth 

Circuit in this situation as somewhat of a pilot project to figure out 

how to deal with the inevitable growth of all of the other circuits. 

I suppose one response to that is, yes, that is certainly true, but 

is it still nevertheless healthy to have a mega circuit that not only 

is about as big as any two other circuits combined, but growing at 

a faster rate than any of the other circuits? 

In other words, should we be trying to deal with that growth situation as a group of equal courts rather than one that is so substantially larger and growing at a faster rate? In other words, is 

there is a question of optimum size, even with growth, and of relative size that is important for us to address? 

Could I ask, with that sort of obtuse observation, each of you to 

just address it as an open-ended question, but focused on especially 

the problems with en banc review that I think all of us would acknowledge are one of the driving forces in presenting this issue? 

We will start with Judge Schroeder and go down the panel. 

Judge SCHROEDER. Yes. Senator, as Judge Wallace noted in his 

testimony, the question of en banc review in our procedures we can 

change. We established the limited en banc; we can change it. I 

would be more than happy to talk with you or with anyone else. 

We can take it back to the court and discuss it and see whether 

it is advisable, whether it would make any meaningful difference 

to expand the size of the en banc. So we can do that. 

On the whole issue of circuit configuration, I think that Senator 

Craig made a very good point and that is in line with what we 

have been saying. The issue here is what do you do with the fact 

that there are growing areas of the country where cases are going 

to continue to be filed at an increasingly fast rate. That includes 

the Eleventh Circuit and the Fifth Circuit and the Ninth Circuit. 

It may well be that the time has come for there to be another 

independent look not at the whole system, not at the Ninth Circuit, 

but simply dealing with the issues of how to administer justice in 

those areas which are growing so fast that additional judges are 

going to have to be needed. I think that larger issue is what needs 

to be confronted. 

Senator KYL. Judge O’Scannlain. 

Judge O’SCANNLAIN. Senator, I think the thing to keep in mind 

with respect to this limited en banc option is that this is a creature 

of statute that permits two circuits to function with less than its 

full court. The only other circuit besides ours that qualifies is the 

Fifth Circuit and they have, since 1980, declined to function with 

a limited en banc court. We are the only court of the two that are 

eligible that has adopted the limited en banc option. 

I think what you see from the testimony, in particular, of my colleague, Judge Tallman, and some of my comments is that there are 

a lot of people who wonder if the limited en banc process isn’t broken, for a variety of reasons. First of all, the notion that 6 judges 

can bind 28 is in itself a very, very difficult concept to deal with. 

But more importantly, there have been a number of instances 

now, and in particular the Payton case which Judge Tallman may 

wish to speak to, where more judges on our court voted one way 

than the six judges who had the last word. More than six voted the 

38

other way, so it is a very, very difficult case to support at this 

point. 

Now, it is true that we could sit as a 28-judge full court en banc. 

There were two calls; they both occurred since 1986, when I came 

on the court. One had to do with the physician-assisted suicide 

case, where the vote was eight to three in favor of finding a constitutional right for physician-assisted suicide. There was a call, 

but there was less than a majority. So the Supreme Court took it 

and reversed us. 

Senator KYL. Excuse me. When you say there was a call, could 

you explain that for the record? 

Judge O’SCANNLAIN. There was a call for a full court rehearing 

after the eight to three en banc decision, and the call was unsuccessful. In other words, maybe it took 15 votes at that point. Whatever a majority of the number of active judges at that time was, 

it did not materialize. So therefore it went on to the Supreme 

Court. 

The other one was a six-to-five decision where the majority held 

that there was no Eighth Amendment violation when the State of 

Washington used as a form of execution in capital cases hanging. 

There was a call for that case to be reheard en banc as well because, first of all, it was a six-to-five case. I am sure a lot of people 

would think that in and of itself might justify a rehearing by the 

full court, and obviously it was a very significant constitutional 

issue. Well, there was a call made at that point for a full-court review and the full court did not do so. There was not a majority to 

do so. I think, as a matter of fact, that case never went to the Supreme Court. As I understand it, it ended at that stage. 

So there is a real problem, and the only reason we have a limited 

en banc is because we are so large. That is really what we are dealing with here. Every other circuit will function with a full court en 

banc, and have done so all along. I think we have arrived at a point 

where there is a diminishing confidence in our limited en banc 

process. 

Judge TALLMAN. Senator, my response would be if the limited en 

banc is such a good system, why hasn’t anybody else emulated it? 

The Fifth Circuit certainly could if it wanted to, but has chosen not 

to do so. And making en banc panels larger is not a solution. Judge 

Tjoflat, I think, is prepared to tell you about his experiences with 

an en banc where they actually had some 25 or 26 judges, and at 

that point it begins to look less like a court and more like an argument in the House of Lords. The dynamics are very different when 

you get a group that big trying to decide a single legal issue. 

Senator KYL. If I could just interrupt—and, Judge Wallace, excuse me—that is the situation that is going to exist in, let’s say, 

a hypothetically California-only Ninth Circuit. You are going to 

have that many judges on the court today, and eventually you will 

have that many judges on some of the other courts. 

So what does that say about the desirability of having all 25 

judges, let’s say, sit on a case? 

Judge TALLMAN. Never having done it, I agree with Judge 

O’Scannlain. The few times it has been suggested on our court, it 

has been voted down, and my understanding is because of the concerns that people have of trying—I mean, imagine as a lawyer 

39

standing in front of three tiers of judges in the courtroom to argue 

your case. 

Senator KYL. Well, excuse me again for interrupting, but knowing the six that I was going to argue before, I might well relish 

that notion. 

Judge TALLMAN. What you might not like would be the individual opinions that could be generated because, theoretically, 

every one of the judges could write separately if they wanted to. 

And trying to discern the legal rule out of that ruling would make 

a mockery of our attempts to do so, such as when the Supreme 

Court writes multiple plurality opinions. 

Senator KYL. Well, I would suggest the dynamics itself would 

probably move toward a consolidation of opinions and views. 

Could I just interrupt and ask one more question, too, in terms 

of your procedures? Twice, you said, since you have been on the 

court, Judge O’Scannlain, there has been a call for a full en banc 

review. Procedurally, how does that work and could that theoretically happen in any case, or how does that work? 

Judge O’SCANNLAIN. Well, when I say call, that is the device that 

we have within the court. In other words, a judge will simply call 

for a vote on whether a given case be reheard. We have about 40 

of those a year, on average, from 3-judge panels. I might, for example, see a decision in a particular three-judge panel and I have 

some concerns about whether that is an accurate statement of 

Ninth Circuit law. So I will send a message—we operate by email—to my colleagues saying I would like to call that case. 

Then that starts a process by which we have an internal exchange of memoranda. Some of these memoranda are even more 

carefully done than a lot of briefs that we see. A lot of effort goes 

into it. Ultimately, there will be an end to that period and there 

will be a vote and each judge will vote either yes or no on whether 

a case should be reheard en banc or not, and it takes a majority 

to do so. 

Senator KYL. A majority of the full court? 

Judge O’SCANNLAIN. A majority of the active, non-recused judges, 

yes, that is correct. 

Senator KYL. And then that creates an en banc panel? 

Judge O’SCANNLAIN. Well, no. 

Senator KYL. That is the procedure for the full-court review? 

Judge O’SCANNLAIN. Well, it is the same for either. In other 

words, the call simply asks for a vote. Whether it is with respect 

to a 3-judge case or after an 11-judge panel has issued an opinion, 

a call operates exactly the same way. 

Senator KYL. So just to make sure I understand, have there been 

roughly 40 calls from an 11-judge en banc panel for a full-court review? 

Judge O’SCANNLAIN. No, no, no. I hope anything I might have 

said would have been clear. 

Senator KYL. Only twice since you have been on the court has 

that happened? 

Judge O’SCANNLAIN. Only twice since I came on, and as I understand it, only twice ever, because this process only started in 1980 

or so, or 1981, when that statute became effective. 

40

Senator KYL. And Judge Schroeder is acknowledging that. So 

could I summarize it this way, then, that while your procedure admits of the possibility of a full-court review upon a majority vote 

of the full, qualified court, obviously it has not occurred and it 

would be very sparingly done? 

Judge O’SCANNLAIN. Right. The 40 number refers to the average 

number of calls on three-judge decisions that we are at about now. 

Judge SCHROEDER. I think that is the key statistics that Judge 

O’Scannlain is correct about, that out of 8,000 cases that are filed 

and some 4,000 that we actually decide, on average, there may be 

30 to 40 requests for a vote to go en banc from the 3-judge panel 

decision. 

Judge O’SCANNLAIN. And roughly more or less half of those are 

successful. 

Judge SCHROEDER. Yes. 

Senator KYL. Judge Tallman, before I call on you—and I still am 

going to get to you, Judge Wallace, and I know my red light is on, 

but I think this is an important point. 

So am I correct, then, that out of the full caseload of the court 

in a year, there will be only be between 20 and 40 en banc hearings? 

Judge TALLMAN. That is right. If you look at page 17, which is 

Appendix B of my written testimony, I have listed for you the total 

number of en banc calls. 

Senator KYL. Thank you. I will review that carefully. 

Judge TALLMAN. And when the call is made, taking 2003, there 

were 40 en banc votes, but only 13 passed and 27 failed. 

Senator KYL. That is very helpful and I appreciate that. 

I will just conclude with this, since I referred to Judge Wallace, 

back to my central question, your point being that while all the circuits are going to grow, we might as well figure out how to deal 

with that using a court that is already big, and my sort of posited 

response, yes, that is fine, but is it still perhaps too big relative to 

the size that we would like to see even though, of course, all of the 

courts are inevitably going to grow in size. 

Judge WALLACE. Senator Kyl, thank you for the question. My 

point is that we ought to think further than just the Ninth Circuit; 

that is, I have been pleading for, and there has not yet been consideration of, a discussion about whether we are going the wrong way. 

Why should the First Circuit have so few judges? We always talk 

about the Ninth Circuit having many, but why shouldn’t consideration be given to combining circuits? It is not politically easy, I am 

sure, and would not be accepted well by judges of the courts of appeals. But that is not the issue. The issue isn’t the creature comfort 

of the judges. It is what is best for our Republic. 

To me, you will never get to the place where you decide what you 

need for the growth that is going to occur everywhere, more in the 

West than in the East—until you decide if you on the right track 

by dividing and balkanizing or whether you should look to larger 

circuits and begin thinking of combining smaller circuits. Then the 

issue really is before you. There is no question that growth is going 

to occur and we are not in a position to really accommodate that 

unless we look at the issue of fewer, larger circuits. 

41

Senator KYL. Excuse me. I didn’t mean to be impertinent. I have 

got to conduct a luncheon at 12:30 which I Chair, and therefore I 

am going to have to go. And I was just conferring with the Chairman about that problem, since I am not going to be able to hear 

the rest of the testimony. I apologize for being rude. 

Judge WALLACE. That is all right. 

As far as the full court en banc is concerned, the Fifth Circuit 

tried it and didn’t like it. That doesn’t mean that we couldn’t hold 

a full-court en banc and be able to accommodate it. It depends on 

the personality of the judges who are involved. If Judge 

O’Scannlain or others are disappointed with our limited en banc, 

they can go to our court and ask for a change of our en banc rule. 

We can do away with the limited en banc tomorrow if a majority 

of the judges wish to do so. 

What I am suggesting is there is no perfect way of accomodating 

growth in the future. But if we can be flexible in our approach and 

experiment in pilot programs, as we have in the Ninth, not kill the 

pilot program, but think in long range terms: what do you want at 

the end of the 21st century? I think this opens up the door to consider having fewer, larger circuits as the way of the future. 

I might say, Senator Kyl, that we shouldn’t limit the contribution 

small States make to our large circuit. We have many times when 

the view of a small–State judge, such as Idaho or Arizona, carries 

the day because it is a different perspective. 

Senator KYL. I have no doubt that the court would be well served 

if it listened more closely to the views of those small–State judges. 

Nothing against my colleagues from California, of course. 

Well, I was just going to ask one other question. I don’t want to 

get into the procedure of the court, but I was kind of curious from 

your last comment whether you do this in secret ballot and whether there has ever been a vote of the judges in the circuit on the 

hypothetical question of splitting the circuit. Has that ever occurred? 

Judge O’SCANNLAIN. Well, it has not occurred and I think there 

are a number of us in the court who feel that it would be a very 

desirable thing to happen at some point. It would be very, very useful, it seems to me. 

Senator KYL. It would be interesting because contrary to those 

who sort of relegate the judges to a lesser role in the process of 

making this decision, frankly, while I am not willing to defer to the 

court, especially since undoubtedly there would be a divided opinion within the court, I think we have to really respect the experience that all of the judges on the court have in this matter. 

You certainly know far better than we do about how you can best 

function. Now, that doesn’t mean you have the last word, obviously, 

but frankly it would be very, very informative for us, I think, to 

get that kind of an expression of view. 

Judge O’SCANNLAIN. We could either do it ourselves or perhaps 

through the Committee there might be a request that we have a 

secret ballot on precisely that issue, and I think it would be very 

interesting to see the results. 

Judge WALLACE. The discussion just changed, I would point out, 

from a request to a secret ballot, and that has never been the view 

of our court that things are done in secret. We are a collegial court. 

42

Judge SCHROEDER. We have never done that. We have never had 

a vote in secret. But, Senator, if I may just add that we are scheduled to discuss this issue of the circuit configuration at our next retreat which takes place in about ten days, and if we wish to have 

a further discussion at a court meeting and take a vote, we will. 

Senator KYL. If a majority of the judges call for a secret ballot, 

you will do it, right? 

Judge SCHROEDER. If they call for a secret ballot, we will do that, 

but we will vote on that openly. 

Chairman SESSIONS. Thank you, Senator Kyl. 

Well, it has been a very, very interesting and rewarding discussion, I think. People have put their opinions out. I guess I am inclined to be concerned that as the court grows, we are reaching just 

an intolerable level, unless you really do believe in a huge regional 

court. 

As I recall the rule of 7, 7 percent growth means you double in 

10 years. Isn’t that right? 

Judge TALLMAN. Yes. 

Chairman SESSIONS. So at 13-percent growth, we are moving 

rapidly forward, it seems to me. I think a court this large becomes 

more like a legislative body and less like a court. You have less 

pressure to work with your colleagues and more of a willingness 

just to vote like you think that minute. 

I am not aware of any State appellate court that has ever existed 

as large as the Ninth Circuit. In New York, they have grown from 

small to big and they have always kept a smaller supreme court 

and appellate court. Maybe they have intermediate court systems. 

But I think about Alabama, Judge Wallace, on the question of 

how many circuits. I think most States have multiple circuits. We 

have 67 counties and I believe 45 or 55 circuits that feed to the supreme court or the intermediate courts for certain specialized 

cases. So I think that is the model America is used to. I appreciate 

your willingness to think outside the box. I am not there yet, but 

I believe we do better to stay with the system that brought us here 

which has given us the greatest legal system in the history of the 

world. 

Thank you so much. We have got another panel. 

Judge O’SCANNLAIN. Thank you, Mr. Chairman. 

Judge SCHROEDER. Thank you, Mr. Chairman. 

Chairman SESSIONS. Excellent testimony, and your written testimony was superior, also. 

Judge TALLMAN. Thank you. 

Judge SCHROEDER. Thank you. 

Chairman SESSIONS. Judge Tjoflat and Judge Coughenour, thank 

you. I am sorry to keep you waiting so long. As you can see, the 

interest was high in this panel, and I guess the judges that are in 

the middle of the discussion have a lot to say and want to be heard 

on it. 

Both of you have submitted superb written testimony. I am sorry 

we have lost some of our numbers. There are meetings that occur 

this time everyday by both of the Senate Leaders, Senator Daschle 

and Senator First, and that has caused us to lose some of our numbers. 

43

I would like to hear from you, if you could allow your written testimony to be made part of the record, and just hear from you 

straight up how you see this issue and what we are going to do 

about it, if anything. 

Judge Tjoflat, I know that you were a member of the old Fifth 

Circuit and were part of the change with Judge Wisdom, who also 

apparently voted to split the old Fifth into the Eleventh. I do remember that, and I don’t think there is a single judge that would 

vote to merge them back. You served, also, as chief judge of that 

Eleventh Circuit Court of Appeals and had the administrative responsibility, as has Judge Schroeder. 

STATEMENT OF HON. GERALD BARD TJOFLAT, JUDGE, U.S. 

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, JACKSONVILLE, FLORIDA 

Judge TJOFLAT. Thank you, Mr. Chairman. This is the second 

time the Committee has asked me to appear on the matter of what 

to do about the Ninth Circuit. The last hearing was, if I recollect, 

1995, October, or 1996, which led to the creation of what became 

known as the White Commission. 

I asked the general counsel of the Committee, why do you want 

me to appear at a hearing—that was back then—on what to do 

about the Ninth Circuit? And they said, well, you were in the old 

Fifth Circuit and you are what is left of the old Fifth Circuit who 

is still active. 

Judge Godbold and I were elected by the old court as the spokesmen on the circuit split issue, the reason being that Chief Judge 

Brown was against the division of the circuit. So the court decided, 

well, we will have two other judges appear, one from Alabama and 

one from Florida, to testify before the House and the Senate. So I 

have been wrestling with this problem all this time. 

Let me say at the beginning that I commend the Ninth Circuit 

for doing an incredible job in the face of an overwhelming caseload 

and problems that are beyond comprehension. I was chief judge of 

the Eleventh Circuit for 7 years and I was very active in the administration of the old Fifth, and we never saw anything comparable in terms of the onslaught of cases and personnel and the 

number of judges you have to deal with. So my hat is off to them. 

The finger is in the dike and they have done a damn good job—

excuse me—of handling it. 

Let me just share some experiences about what happened in the 

old Fifth Circuit after the Congress added 11 judges to the court. 

If you will recall, during the 1970’s, judges weren’t added to the 

federal courts until the Carter administration. In 1979, I guess it 

was, or early 1978, the quadrennial judgeship bill, which was long 

overdue, added 10 judges to the Ninth, which increased the court 

from 13 to 23, and 11 to the Fifth, which increased it from 15 to 

26. At that time, we had more business in those six States than 

the Ninth, and that is the reason for that. 

Leading up to the addition of the 11 judges, the Congress did 

that over our unanimous objection. I am talking about the unanimous objection of the Fifth Circuit Court of Appeals, and all the 

judges in the Fifth Circuit for that matter, the district judges as 

well. 

44

Chairman SESSIONS. What did the judges object to? 

Judge TJOFLAT. Objected to any more judges on the court of appeals. 

I had gone on the Middle District of Florida court in 1970, and 

then went to the Fifth Circuit in 1975, and was familiar with the 

general attitude. The problem from the trial judge point of view 

was, what is the law of the circuit? We saw, as the Fifth Circuit 

grew from, say, 11 to 13 and 13 to 15, that the stability of the rule 

of law was impaired to some extent. 

At any rate, when the quadrennial judgeship surveys that the 

Judicial Conference would have every 4 years—when they came to 

the Fifth Circuit, we said no more judges, and we had our heels 

dug in. And so came 1979 and the bill was introduced. As a matter 

of fact, we didn’t even know it was coming. We knew a bill was 

coming to add judges, but not 11 to our court. A Senator from Arkansas introduced the bill, is my recollection. 

But at any rate, we acquired ten new judges and we never got 

the eleventh until late in the fall of 1979. We acquired ten by the 

time September rolled around. Maybe we had 23. The policy on the 

Fifth was that we sat en banc in September, February and June 

every year, and we had a court meeting each of those times. 

I can’t overemphasize the importance of an en banc proceeding. 

It is absolutely essential to the health of the Nation that the rule 

of law be stable, predictable and reliable so that citizens can act 

in accordance therewith. When the law is this way today and 

maybe that way tomorrow, people lose their rights. They lose property rights, they lose their civil liberties. It is a bad scene, and I 

think my colleagues on the Ninth agree with that a hundred percent. Every judge does. 

So we met in September 1979. I think we had 23 sitting around 

the table, the old 15 and 8 new ones, and we decided not to rehear 

any cases. The whole agenda was, what do we do with this mob? 

We said that in a joking sort of way. So the newer judges who had 

just been appointed in June, July, August and September said, 

well, we think this will work. Well, of course, they had no experience, but okay. 

So the idea of what to do with the court was tabled for 1 year. 

So we met in February. Well, the en banc calendar in February 

had the September cases and the February cases. I don’t recall how 

many, but by that time drugs were a big, huge problem and we had 

cases in the Fifth Circuit where the Coast Guard wanted to board 

ships on the high seas. Do you need a search warrant? Do you need 

reasonable suspicion? Can the Coast Guard do it? Will international law allow them to do it? Can you do it in the contiguous 

zone? Can you do it in territorial waters? What if the ship isn’t flying a flag? 

I am running out of time. 

Chairman SESSIONS. Well, you are making a good story. That is 

a good history. Maybe you can wrap it up. 

Judge TJOFLAT. I will wrap it up. 

Chairman SESSIONS. This is not like the Eleventh Circuit, however, Judge. When the light came on, I knew I had to hush, especially when you were presiding. 

45

Judge TJOFLAT. Well, I will try to wrap it up this way. The statute that gives the Ninth Circuit the right to have a mini en banc 

gave the old Fifth, not the new Fifth, the old Fifth, the same right. 

So after we sat in February, 1980—it is a painful proposition to 

have 26 judges trying to decide a case in conference, I tell you—

we decided whether to have mini en bancs after the first experience. Maybe it was even after the second one, in June. This isn’t 

working with this many people sitting around the table. 

So the discussion went this way: Well, we will have a mini en 

banc of 11, but suppose 6 people out of 11 carry the day and we 

have got 20 people on the court who disagree. Are we going to reen banc the case? If we do, what is the public perception? This is 

the dialogue. 

Well, the public perception is, and to the legal profession, we will 

just keep re-en bancing cases until we get a majority view out of 

the mini en banc court. So that would make the mini en banc court 

a dry run, in effect. So we decided, well, if we do the mini en banc, 

we are going to have a blood oath that we will not re-en banc cases 

because we don’t want to create that perception. 

We studied that for a good while and decided against it, so we 

sat the full crowd. Sitting in an en banc court of that size, I tell 

you, is not only an emotionally draining exercise. It takes an enormous amount of work. And I will finish with this: There is a group 

dynamic. You have a room full of 26 people trying to reach principle, not compromise, principle, and some people are going to talk. 

The larger the group, they are silenced. You take somebody who 

won’t talk, won’t speak; they ‘‘pass’’ when it comes to them in an 

en banc conference of 26. You put that same individual on a threejudge panel and you can’t keep them quiet. 

I have sat on en banc courts from 7 to 18, then skipped all the 

way to 26. The reason for the lower numbers was because after we 

split the circuit, which was easy to do because the western States 

had 51 percent of the business and the eastern States 49, so we 

didn’t have the California problem—but I sat on en banc courts in 

the Eleventh Circuit of 7, 8, 9, 10, 11 and 12. 

We have more business in the Eleventh Circuit now than the 

Fifth Circuit had when we split. With the exception of one judge 

voting in the last 23 years, everybody has voted against adding one 

more judge to the court, for the very reason that we are concerned 

about the stability of the rule of law. 

Chairman SESSIONS. I think that is a dramatic demonstration of 

your belief in tangible terms that collegiality and coherence of the 

circuit is endangered if you actually say you don’t want more 

judges to help you do the growing caseload. 

The Eleventh has the highest caseload per judge in the country, 

or close to that. Isn’t that right? 

Judge TJOFLAT. Something like that. 

[The prepared statement of Judge Tjoflat appears as a submission for the record.] 

Chairman SESSIONS. Judge Coughenour. 

46

STATEMENT OF HON. JOHN C. COUGHENOUR, CHIEF JUDGE, 

U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF 

WASHINGTON, SEATTLE, WASHINGTON 

Judge COUGHENOUR. Thank you, Mr. Chairman. I welcome the 

opportunity to express my views, and I think it is appropriate that 

I be the last to speak because I think the value of the views of a 

country boy from the wilds of Kansas is probably appropriately positioned at the end. 

Let me say, by the way, in case you are not aware of it, at the 

new building in Seattle we are sharing courtrooms. We are the first 

in the country to do that. 

Chairman SESSIONS. I am impressed. Every magistrate does not 

have their own courtroom? 

Judge COUGHENOUR. Every magistrate does not have their own 

courtroom. Every judge does not have their own courtroom. 

Chairman SESSIONS. I am impressed. 

Judge COUGHENOUR. We have two courtrooms for every three 

judges. 

Chairman SESSIONS. That makes sense, and it takes some scheduling, but most of the time I am sure that works very well. Do you 

think that works well? 

Judge COUGHENOUR. I think it is going to work just fine. Something that hasn’t been said here today which I think bears scrutiny 

is that there is a phenomenon afoot in this country recognized by 

all the chief judges at the most recent national chief judges’ conferences that we are trying fewer cases across the country than 

was true. And in Seattle and in a number of other districts, we are 

trying less than one-half the number of cases than we were just a 

few years ago. So these concerns about this constant growth may 

be premature. 

In addition, I think it needs to be emphasized that the tremendous growth in the Ninth Circuit filings is driven by and large by 

immigration cases. As that glut works its way through the court, 

those numbers are going to be back down at a much more reasonable level. 

On the subject of your question, let me state quite bluntly my 

views on this subject have changed. When I went on the court 23 

years ago, I was put there largely by the efforts of Senator Slade 

Gorton, who was a close personal friend then and is still a close 

personal friend. I must say that I could not say the same thing 

about Ronald Reagan. I had never met the man, but Senator Gorton was the one who put me where I am. 

Senator Gorton was out front on the issue of splitting the circuit, 

and largely out of loyalty to him I deferred to his judgment on the 

question. When Senator Gorton retired from the Senate, my objectivity on the issue was enhanced. And after a couple of decades 

where the rubber meets the road, as opposed to some of my colleagues here, I have to tell you that I don’t see these problems from 

down below where I am. 

I don’t have any difficulty following the law of the Ninth Circuit. 

When I get to work each morning, I make my coffee. I don’t have 

a secretary, by the way, to save money. I make my coffee and then 

I go sit down at my computer and I look at the most recent summary of Ninth Circuit decisions, and it takes me about 15 minutes 

47

each morning. We have a very effective way, by technology, of 

alerting all of our judges in the circuit immediately what the Ninth 

Circuit is doing and we can keep abreast of it very easily. It is not 

a problem at all. 

The problem that is perceived by many that these decisions are 

being made down in California that affect us up in the Northwest 

really is a problem of perception and a lack of knowledge of what 

the facts are. 

For example, probably the most controversial decision that the 

people of the Northwest had difficulty accepting was the so-called 

spotted owl decision, a ruling by a dear friend of mine who is now 

gone, Bill Dwyer, from Seattle. We have another very controversial 

decision in the Northwest right now regarding the use of pesticides 

and herbicides adjacent to salmon-bearing streams. You are looking 

at the judge who has to be careful where his name is spoken out 

loud in the Northwest right now because of that decision. I am not 

from California. That is a northwesterner making a decision about 

northwestern law. 

The perception that we have all these problems in the Northwest 

because we have these decisions coming out of the Ninth Circuit 

that is dominated by California—there is a siren song that attracts 

one to that conclusion, but upon examination it fails. 

The same is true for the attitude that large must be bad. Again, 

there is a siren song that attracts one to that conclusion, but it just 

doesn’t bear scrutiny. For those of us on the firing line applying the 

law everyday, who have perhaps more responsibility than anyone 

else in this room to keep track of what the law is in the Ninth Circuit, it is not a problem. I do it everyday. I don’t have any difficulty 

keeping up with the Ninth. In fact, I welcome the number of Ninth 

Circuit decisions we have because very often when I am struggling 

with a problem, I can find a Ninth Circuit case right on point and 

it makes my job a lot easier. 

So I can give Judge Tjoflat my one minutes and 18 seconds, if 

he wishes it. 

[The prepared statement of Judge Coughenour appears as a submission for the record.] 

Chairman SESSIONS. Judge Coughenour, statistically speaking, 

however, with the number of judges as they are configured and as 

they are likely to be configured in the future, the odds are pretty 

high that a salmon case in Washington is going to be decided by 

California judges. Isn’t that right? 

Judge COUGHENOUR. Yes, and I think the odds are very high 

that I will be affirmed. 

Judge TJOFLAT. That is because he is such an able judge. 

Chairman SESSIONS. Well, I have got to tell you I am not a speed 

reader, but people used to read the opinions, and now we are reading summaries and I am not sure a summary can really handle an 

opinion. You know, you can’t do everything, but if your circuit is 

not too large and the cases are not too many, if you read that, it 

is a thorough education and it keeps you up. 

I remember when I was a prosecutor, I tried to read the Federal 

criminal cases in the circuit and the Supreme Court. I just got 

down to that, which was hard enough for me. Yes, a lot of times 

48

you just skim the head notes and that kind of thing, and you just 

have to. 

Judge Tjoflat, would you comment on Harry T. Edwards, a D.C. 

Circuit Judge’s comments that I quoted earlier? ‘‘In the end, 

collegiality mitigates against judges’ ideological preferences and enables us to find common ground and reach better decisions. In 

other words, the more collegial the court, the more likely it is that 

the cases that come before it will be determined on their legal merits.’’ 

Do you think there is a sense in which judges in a smaller circuit 

feel more of a responsibility to come together and speak coherently 

than in a 28-judge circuit? 

Judge TJOFLAT. I think all judges would like to have a good intellectual exchange and relationship with their colleagues. In the old 

Fifth Circuit days before we split, we figured out how long it would 

take for everybody on the court to sit with everybody else, and 

what has already been expressed was our situation. 

I don’t think there is any question at all that when you are sitting on panels with the same judge three or four times a year and 

you are handling emergency matters administratively—stays of 

execution in death penalty cases, for example, or stays of deportation or stays of district court decisions of great moment, stays in 

class actions, all that sort of thing—the ability to mind-read your 

colleague is extremely important. 

You don’t even call for a law clerk or somebody. You know who 

is on the panel with you and you know exactly how that individual 

thinks and you know what they are interested in or what may concern them, and so you get on a quick conference call or use the email or just a fax. If we merged the new Fifth and the Eleventh 

together, it would take a good deal of time to get to that point, if 

we could at all. 

Judge COUGHENOUR. Senator, could I make a comment about 

that? 

Chairman SESSIONS. Yes, please. 

Judge COUGHENOUR. When I joined my old law firm, I was number 38. By the time I left the firm, it had almost 200 lawyers and 

there was a point that it passed through where collegiality started 

becoming an issue. But it wasn’t at 38 or 28; it was at more like 

100 to 150 lawyers where collegiality became an issue. 

I have always understood that the most collegial institution in 

the world is the U.S. Senate, and there are 100 members of the 

United States Senate. 

Chairman SESSIONS. You have been ill-informed. 

[Laughter.] 

Chairman SESSIONS. And I won’t even make a comment on the 

Judiciary Committee. 

[Laughter.] 

Chairman SESSIONS. Well, you can work together. I know the old 

Fifth had a series of tough civil rights cases in the early days, and 

many times you were able to get virtually unanimous support there 

that sent a signal. On the Richard Nixon case and other cases, 

courts have gotten together and they have sat down in a room and 

they have said we need to figure out what we can agree on and 

render an opinion that we can all join in on. 

49

Is that a factor, Judge Tjoflat? 

Judge TJOFLAT. Well, in the old Fifth Circuit days, we had school 

desegregation cases in every village and town and city in the 

South, and there were unanimous decisions just like in Brown v. 

Board of Education in the Supreme Court, in 1954 and 1955, that 

carried forward into the 1970’s. 

Chairman SESSIONS. Judge Coughenour, a chief judge who has 

supported some form of restructuring, former Chief Judge William 

Browning, in Arizona, said this. He served on the White Commission and he said, ‘‘I think the people of the Ninth Circuit today are 

receiving a rationed form of justice,’’ close quote, and that part of 

the reason the Ninth Circuit judges resist dividing the circuit is 

that lawyers naturally have, quote, ‘‘an institutional bias against 

change.’’ 

How would you respond to that? 

Judge COUGHENOUR. Well, I think I would never disagree with 

my dear friend, Bill Browning. I think lawyers and judges tend to 

be very conservative when it comes to change. I must say that I 

have grown very fond of the Ninth Circuit and I am enormously 

proud of the way it has been administered by our chief judges and 

our current chief judge. I frankly believe that we have the best 

chief judge in the United States right now, and that we have every 

reason to be, if you will pardon the term, a little defensive when 

it comes to the scrutiny that is focused on us from time to time. 

We are on the left coast and people do think a little differently 

out there, and as a consequence the rest of the country sometimes 

may have a little difficulty understanding the way we think. But 

there is a West Coast mentality and there is something to be said 

for a West Coast court that ties together these many diverse States 

and people. I frankly am very proud to be a member of that court 

and I will do what I can to try to help the Senate understand why 

we should remain the same. 

Chairman SESSIONS. Well, thank you, Judge. 

Do any of you have any further comments? 

Let me just say that even judges whose judicial philosophy I 

don’t share that I may describe as an activist judge—you have 

some extraordinarily capable judges on the court, intellectually superior, and they make great opinions, even if I would disagree with 

them. 

I do think Senator Biden is basically correct, however, that a 

case tried in Idaho ought to have the same ruling that comes in 

Los Angeles or New York or Miami, for that matter. We have got 

one law, one Constitution, one set of statutes, and fundamentally 

they have to be in sync. I can imagine it is more difficult to control 

panels when you have them all over the place, and just mathematically the odds that you get a weird panel with two of the three 

maybe having a more extreme view of the law than would otherwise be the case is a factor. 

Of course, most panels don’t get overruled. Most circuit cases are 

affirmed. Fifty-plus million people are bound by the decisions of the 

Ninth Circuit, and if you are looking for left coast law instead of 

Supreme Court law, then they are stuck because the Supreme 

Court can’t review them all. 

50

But, anyway, you both have made good cases. We are going to 

study this hard. My commitment to you is that if we do move forward with something, my goal will be to create courts that make 

sense that are not driven by ideology, because I think there is no 

way people could affect ideology anyway, really, in the way this 

court exists and the way it will be divided. So let’s just do it on 

merit. 

If there is nothing further, we will adjourn the hearing. I will 

note that we will keep the record open for two weeks for any further questions or information that the members might like to provide. 

If there is nothing else, we are adjourned. 

[Whereupon, at 1:07 p.m., the Subcommittee was adjourned.] 

[Question and answer and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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