S. HRG. 109–1035 

EXAMINING THE PROPOSAL TO RESTRUCTURE 

THE NINTH CIRCUIT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

SEPTEMBER 20, 2006 

Serial No. J–109–112 

Printed for the use of the Committee on the Judiciary 

( 

EXAMINING THE PROPOSAL TO RESTRUCTURE THE NINTH CIRCUIT 

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43–383 PDF 2009

S. HRG. 109–1035 

EXAMINING THE PROPOSAL TO RESTRUCTURE 

THE NINTH CIRCUIT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

SEPTEMBER 20, 2006 

Serial No. J–109–112 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

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 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

prepared statement .......................................................................................... 178 

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

statement .............................................................................................................. 254 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 

WITNESSES 

Baucus, Hon. Max, a U.S. Senator from the State of Montana ........................... 7 

Boxer, Hon. Barbara, a U.S. Senator from the State of California ..................... 8 

Brand, Rachel L., Assistant Attorney General for Legal Policy, U.S. Department of Justice, Washington, D.C. ..................................................................... 14 

Eastman, John C., Chapman University School of Law, Anaheim, California .. 38 

Ensign, Hon. John, a U.S. Senator from the State of Nevada ............................. 12 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................ 10 

Neukom, William H., Esq., Preston Gates & Ellis, LLP, Seattle, Washington .. 40 

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

Circuit, Portland, Oregon .................................................................................... 26 

Roll, John M., Chief District Judge, U.S. District Court for the District of 

Arizona, Tucson, Arizona ..................................................................................... 28 

Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, 

Phoenix, Arizona .................................................................................................. 21 

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

Circuit, Seattle, Washington ............................................................................... 23 

Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Billings, Montana ........................................................................................ 24 

Wilson, Hon. Pete, a former U.S. Senator from the State of California, former 

Governor of California, and Bingham McCutchen, of Counsel, Bingham 

Consulting Group, Principal, Los Angeles, California ...................................... 2 

QUESTIONS AND ANSWERS 

Responses of Rachel L. Brand to questions submitted by Senators Kyl, Feinstein ....................................................................................................................... 46

Responses of John C. Eastman to questions submitted by Senator Kyl ............. 69 

Responses of William H. Neukom to questions submitted by Senator Feinstein ....................................................................................................................... 72

Responses of John M. Roll to questions submitted by Senator Kyl .................... 79 

Responses of Diarmuid O’Scannlain to questions submitted by Senator Kyl .... 89 

Responses of Mary M. Schroeder to questions submitted by Senator Feinstein 92 

Responses of Richard C. Tallman to questions submitted by Senator Kyl ......... 99 

SUBMISSIONS FOR THE RECORD 

Alaska Bar Association, Anchorage, Alaska, letter and attachment ................... 107 

American Bar Association, Washington, D.C., statement and attachment ........ 111 

American Civil Liberties Union, Caroline Fredrickson, Director, and Christopher E. Anders, Legislative Counsel, Washington, D.C., joint letter ........... 129 

Arizona State Bar, Helen Perry Grimwood, President, Phoenix, Arizona, letter .......................................................................................................................... 131 

Page

IV 

Bea, Carlos Tibureio, Circuit Judge, Court of Appeals for the Ninth Circuit, 

San Francisco, California, letter ......................................................................... 133 

Boxer, Hon. Barbara, a U.S. Senator from the State of California, statement .. 135 

Brand, Rachel L., Assistant Attorney General for Legal Policy, U.S. Department of Justice, Washington, D.C., statement .................................................. 138 

Bryan, Hon. Richard, a former U.S. Senator from the State of Nevada, statement ...................................................................................................................... 149 

California State Bar, William J. Caldarelli, Chairman, Litigation Section 

of the State Bar, San Diego, California, letter .................................................. 151 

Earthjustice, Glenn Sugameli, Senior Judicial Counsel, Washington, D.C., 

joint letter ............................................................................................................. 154 

Eastman, Dr. John C., Interim Associate Dean of Administration and Henry 

Salvatori Professor of Law & Community Service, Chapman University 

School of Law, Director, Claremont Institute Center for Constitutional Jurisprudence, statement ........................................................................................ 163 

Ensign, Hon. John, a U.S. Senator from the State of Nevada, statement .......... 174 

Federal Bar Association, Northern District of California Chapter, San Francisco, California, letter ......................................................................................... 182 

Federal Practice and Procedure Committee, Michael G. Hanlon, Protland, 

Oregon, letter ....................................................................................................... 185 

Gillers, Stephen, Emily Kempin Professor of Law, New York University, 

New York, New York, letter ................................................................................ 187 

Hawaii State Bar Association, Richard Turbin, President, Honolulu, Hawaii, 

letter ...................................................................................................................... 190 

Hispanic National Bar Association, Nelson A. Castillo, Esq., President Washington, D.C., letter ............................................................................................... 191 

Inter Tribal Council of Arizona, Jamie Fullmer, President, Chairman, 

Yavapai Apache Nation, Phoenix, Arizona, Resolution .................................... 193 

Kennedy, Anthony M., Justice, Supreme Court of the United States, Washington, D.C., letter ............................................................................................... 195 

LaForge, William N., Federal Bar Association, Office of the President, Washington, D.C., letter ............................................................................................... 202 

Law Professors Opposed to Splitting the Ninth Circuit, letter ............................ 205 

Los Abogados Hispanic Bar Association, Margarita Silva, President, Phoenix 

Arizona, letter ....................................................................................................... 256 

Los Angeles County Bar Association, Charles E. Michaels, President, Los 

Angeles, California, letter .................................................................................... 258 

Lasnik, Robert S., Chief Judge, Western District of Washington, Chair, Conference Executive Committee, Seattle, Washington, joint letter ...................... 260 

McGrath, Paul B., Executive Director, Western States Sheriffs’ Association, 

Carson City, Nevada, letter and resolution ....................................................... 266 

Montana State Bar, Resolution .............................................................................. 268 

Napolitano, Janet, Governor, State of Arizona, Phoenix, Arizona: 

September 13, 2006, letter ............................................................................... 270 

October 20, 2004, letter .................................................................................... 272 

October 20, 2004, letter .................................................................................... 273 

Neukom, William H., Esq., Preston Gates & Ellis, LLP, Seattle, Washington, 

statement and letter ............................................................................................ 274 

Nevada State Bar, Rew R. Goodenow, Esq., President, Las Vegas, Nevada, 

letter ...................................................................................................................... 296 

Opposition to Splitting the Ninth Circuit .............................................................. 297 

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

Circuit, Portland, Oregon, statement and attachment ..................................... 302 

Roll, John M., Chief District Judge, U.S. District Court for the District of 

Arizona, Tucson, Arizona, statement .................................................................. 415 

Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the Ninth Circuit, 

Phoenix, Arizona, statement and attachment ................................................... 434 

Service Employees International Union, Anna Burger, Internatinal SecretaryTreasurer, letter ................................................................................................... 455 

Stensgar, Ernest L., Affiliated Tribes of Northwest Indians, Portland, Oregon, 

letter and resolution ............................................................................................ 456 

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

Circuit, Seattle, Washington, statement ............................................................ 460 

Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Billings, Montana, statement ..................................................................... 480 

Washington State Bar Association, S. Brooke Taylor, President, Port Angeles, 

Washington, letter ................................................................................................ 517 

Page

V 

Wilson, Hon. Pete, a former U.S. Senator from the State of California, former 

Governor of California, and Bingham McCutchen, of Counsel, Bingham 

Consulting Group, Principal, Los Angeles, California, statement ................... 519 

Winmill, B. Lynn, Chief District Judge, District Court of Idaho, Boise, Idaho, 

letter ...................................................................................................................... 526 

Zive, Gregg W., Chief Nevada Bankruptcy Judge, and Chair, Conference 

of Chief Bankruptcy Judges of the Ninth Circuit, Reno, Nevada, joint 

letter ...................................................................................................................... 528 

(1) 

EXAMINING THE PROPOSAL TO 

RESTRUCTURE THE NINTH CIRCUIT 

WEDNESDAY, SEPTEMBER 20, 2006 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, pursuant to notice, at 2 p.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

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

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. It is 2 o’clock, and this Committee starts on 

time, so we are going to proceed. Our first panel is a panel of Senators, and understandably they have other duties. 

I am going to go out of turn here and call Senator Wilson first, 

if Senator Wilson is in the room—I saw him a moment or two ago. 

May I, Pete?—out of deference to a former colleague. They have 

you all alone on Panel 4, Senator Wilson. I could call you ‘‘Governor Wilson.’’ I could call you ‘‘Mayor Wilson.’’ 

Mr. WILSON. Some guys just cannot hold a job. 

[Laughter.] 

Chairman SPECTER. But if you don’t mind, I prefer ‘‘Senator.’’ 

Mr. WILSON. Thank you. 

Chairman SPECTER. We have a 5-minute rule, which applies to 

Senators on this side of the podium as well as Senators on that 

side, but I guess you are entitled to 15 minutes, Pete, since you 

have three titles. 

[Laughter.] 

Chairman SPECTER. Just kidding. Just kidding, Pete. We welcome you here. 

Mr. WILSON. I was prepared to accept your generous offer, Mr. 

Chairman. 

Chairman SPECTER. Senator Wilson was elected in 1982, and he 

was here, re-elected in 1988, and then he became Governor in the 

1990 election. It is nice to have you back, Pete, and the floor is 

yours. 

2 

STATEMENT OF HON. PETE WILSON, A FORMER U.S. SENATOR 

FROM THE STATE OF CALIFORNIA, FORMER GOVERNOR OF 

CALIFORNIA, AND BINGHAM MCCUTCHEN, OF COUNSEL, 

BINGHAM CONSULTING GROUP, PRINCIPAL, LOS ANGELES, 

CALIFORNIA 

Mr. WILSON. Thank you very much, Mr. Chairman and members. 

I am delighted to be back and have the pleasure and privilege of 

seeing some old friends. 

The matter before us is not new. I can offer neither a new face 

nor a new voice, but I think perhaps I can present an argument 

which, to my knowledge, the Committee has not considered before. 

Historically, of course, the rare splits—there have been only two 

in the history of the appellate courts—had been predicated upon 

considerations that were largely logistical, having to do with case 

load and the ability of the court to perform its duties adequately. 

Today, my testimony will not echo the powerful arguments relating 

to the logistical burdens. Instead, those are going to be dealt with 

by eminent members of the court: Chief Judge Mary Schroeder and 

Judge Thomas. I will not take the time to simply echo their arguments. I simply subscribe to them. Rather, I would like to focus the 

attention of the Committee on the scant but very clear precedent, 

the legal authority that is involved in a very different matter. 

Now, I do not think that there has ever been an explicit basis 

in terms of seeking ideological change for the body of precedent 

presented to the Committee. And perhaps that time has not yet 

come. I would like to think so. But in the interest of time, let’s 

focus on that legal authority, the Bonner case, which was, in fact, 

the very first case heard and the very first opinion published by 

the new Eleventh Circuit when it was created in 1981 from the old 

Fifth Circuit. 

The court in Bonner made an extensive analysis. I think it is 

squarely on point if, in fact, the purpose of the legislation that you 

are hearing today is to seek to bring about a change in the body 

of precedent. Because, in fact, what the court in Bonner decided 

was that that was really not a tenable situation, and they came up 

with very practical reasons as well as some that were purely philosophical. They not only rejected their own procedural rulemaking 

power as totally inappropriate for establishing a body of precedent, 

but they went still further, expressing a concern about having to 

relitigate ‘‘every relevant proposition in every case.’’ The risk they 

saw was that it could involve a requirement for a rehearing en 

banc under Federal Rule of Appellate Procedure 35 on the ground 

that each new precedent would involve a ‘‘question of exceptional 

importance.’’ The result, the court felt, would be a ‘‘burden that 

this court could not discharge without seriously damaging its effectiveness,’’ which would ‘‘mean years of waiting to determine the 

law of the circuit.’’ Hardly a way for a court dedicated to achieving 

predictability and stability to begin. 

And so the court said, quite predictably, ‘‘We choose instead to 

begin on a stable, fixed, and identifiable base while maintaining 

the capacity for change’’—which, of course, they have beyond dispute. 

Now, that was an eminently practical decision because the burdens of relitigation which it avoided, while preserving the capaVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
3 

bility to make responsible change, I think and the court thought 

cannot be responsible ignored, either by a court conscientiously 

seeking to decide truly important new issues without inordinate 

delay or, I respectfully submit, by responsible legislators seeking to 

avoid imposing those burdens and unconscionable delays on the 

bench, the bar, and the public of a proposed new Twelfth Circuit. 

Rather, any evolution in the direction of the Twelfth Circuit ought 

to occur slowly and by increment. 

As the court pointed out, there was not only a compelling motivation in terms of the practical burdens, but this, I think, was really 

at the basis of their consideration. 

The court clearly recoiled from the prospect of injury to the rule 

of law, were it to be ‘‘cast adrift’’ upon a metaphoric sea of unpredictable precedents, and this was, I think, the very pointed comment they made. 

Theoretically this court could decide to proceed with its duties 

without any precedent, deciding each legal principle anew, and relying upon decisions of the former Fifth Circuit and other circuit 

and district courts as only persuasive authority and not binding. 

This court, the trial courts, the bar, and the public are entitled to 

a better result than to be cast adrift among the differing precedents of other jurisdictions, required to examine afresh every legal 

principle that eventually arises in the Eleventh Circuit. 

What they said was very clearly a defense and an admonition 

that the law of stare decisis, the doctrine of stare decisis was one— 

Chairman SPECTER. Senator Wilson, how much more time would 

you like? 

Mr. WILSON. About 2 minutes, sir. 

Chairman SPECTER. Okay. 

Mr. WILSON. Thank you. 

The court said, ‘‘We tend to think of stare decisis as only ‘it is 

decided.’ The full phrase is stare decisis et non quieta movere—‘to 

adhere to precedents and not to unsettle things which are established.’ The prospect of decades of writing on a clean slate in pursuit of the possibility that in some case or cases we might find a 

rule we like better (or even conclude that an old Fifth Circuit decision is wrong) is at best unappealing, at worst catastrophic.’’ 

Mr. Chairman, I would like to think that that admonition is 

needless. But just in the event that some future Congress would 

choose to not only create a split and a new circuit but in the act 

creating that new circuit instruct it to apply the precedent of a different circuit than that from which it has come, I think that we 

should understand that that court, the Bonner court, regarded that 

as essentially flouting the doctrine and doing so in flagrant violation of stare decisis and inviting all the ills that would ensure. I 

can only hope that that does not occur, but that if some future 

court is going to—or if some future act of Congress creates a new 

Twelfth Circuit, that the members of that new court will have the 

same respect for precedent as did the Eleventh when, in their first 

decision, they decided that they were going to be bound by the decisions of the old Fifth. If indeed there are some who would seek by 

means the kind of wholesale change that would unsettle established things and undermine the rule of law, then I think they will 

find that the Bonner case is at the table like Banquo’s ghost to 

4 

haunt them. They will be required to learn patience and respect for 

stare decisis. 

I would also point out that if that new court does create precedent, as it should, it is quite predictable that before such broad 

change is legitimately achieved by a new circuit court of appeals, 

several other circuits will have attained the size of the present 

Ninth Circuit and apply for a split to the Judiciary Committee of 

the next generation. 

Mr. Chairman and members, thank you for your patience and 

your courtesy. 

[The prepared statement of Senator Wilson appears as a submission for the record.] 

Chairman SPECTER. Thank you, Senator Wilson. I am going to 

recognize Senator Feinstein for a moment to greet her adversary 

in 1990, and then recognize Senator Kyl, and then back to Senator 

Feinstein for an opening statement. 

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

wanted to say welcome, Pete, Senator, Governor. I was listening to 

you, and I could not help but think, because it has been so long 

ago, 1990, how great a Senator you would have been if you had remained in the Senate. 

[Laughter.] 

Senator FEINSTEIN. In any event, I want to thank you for coming 

back for this. It is very important to all of us in California, and I 

think your views are both critical and important. So thank you 

very much. 

Mr. WILSON. Thank you very much, Senator. That is a generous 

comment. The only way I can respond is to suggest that you should 

be grateful that I saved you from the budget I faced in 1991. 

[Laughter.] 

Mr. WILSON. And 1992 and 1993. Thank you. 

Senator FEINSTEIN. Thank you. 

Chairman SPECTER. Senator Kyl? 

Senator KYL. Thank you, Mr. Chairman. I just wanted also to 

thank Senator Wilson for being here and the other panelists, and 

to excuse myself in advance. In about 12 minutes, I have to go to 

another hearing to introduce the person who I hope will be the new 

Secretary of Transportation from Arizona, and as soon as that is 

completed, then I will return. But it means no disrespect to whoever happens to be talking at the time. 

Chairman SPECTER. Thank you, Senator Kyl. It is a complex 

game of musical chairs. I am going to have to excuse myself at 

2:20, and Senator Kyl will preside as long as he is here, and then 

Senator Feinstein will preside if there is no other majority party 

Senator. Then when Senator Kyl comes back, he will preside. And 

Senator Murkowski has notified us that she has a commitment and 

hopes to leave by 2:25, and whoever is presiding, Senator Murkowski, will try to accommodate you. You are in competition with 

Senators. 

And now for an opening statement, Senator Feinstein. 

5 

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

SENATOR FROM THE STATE OF CALIFORNIA 

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

is a very important matter for the West, and I think it has implications for the Nation as a whole. The Supreme Court reviews less 

than 1 percent of all of the cases appealed to it, so for most of the 

Ninth Circuit residents, the Ninth Circuit is the court of last resort. And last year, the circuit reviewed almost 16,000 cases, making decisions on virtually every legal issue there is. 

I agreed with many of the decisions. I disagreed with some of 

them. However, the Framers of the Constitution intended the judiciary to be independent and free from Congressional or presidential 

pressure or reprisal. 

I am very concerned that recent attempts to split the Ninth are 

part of an assault on the independence of the judiciary by those 

who disagree with some of the court’s rulings. As Governor Wilson 

has stated, these attempts are judicial gerrymandering, designed to 

isolate and punish judges whose decisions some disagree with. 

They are antithetical to the Constitution. Attempting to coerce or 

punish judges or rig the system is not an appropriate response to 

disagreements with the court’s decisions. It is essential that we 

preserve our system of checks and balances and make it clear that 

politicians will not meddle in the work of judges. 

The configuration of the Ninth is not set in stone; however, any 

change should be guided by concerns of efficiency and administration, not ideology. The Ninth is the largest circuit in the Nation. 

That is measured by both population and case load. Its size alone 

actually tells us little. The question is whether the size helps or 

hinders it in providing justice to the people within its boundaries. 

After a substantial review of statistics, decisions, and reports 

from those who know the circuit best, it is clear that splitting the 

Ninth would hinder its mission of providing justice to the people 

of the West. When ideologic concerns are set aside, it becomes evident that the proposal before the Committee to split the circuit is 

a lose-lose proposition. The costs of court administration would rise 

while the administration of justice would suffer. The uniformity of 

law in the West is a key advantage to the Ninth. It offers consistency, and it helps share common concerns. 

The size of the Ninth is an asset. It offers a unified legal approach to issues from immigration to the environment, and dividing the circuit would make these problems more difficult to solve. 

Let me just give you a few examples. 

Splitting the circuit could result in different interpretations in 

California and Arizona of laws governing immigration, different applications of environmental regulations on the northern and Nevada sides of Lake Tahoe, and different intellectual property law 

in Silicon Valley and the Seattle technology corridor. These differences would have real economic costs. 

The economy of scale offered by the Ninth has resulted in numerous innovations to increase efficiency: one, a circuit mediator whose 

office settled 90 percent of the 977 cases that came before it saved 

both time and money; two, a bankruptcy appellate panel that resolved almost 700 appeals last year; three, a system for case trackVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
6 

ing that inventories and tracks appeals, groups similar questions 

of law together to promote consistent treatment. 

In a time of tight judicial budgets, splitting the circuit would add 

significant and unnecessary expense. It would require additional 

Federal funds to duplicate the current staff of the Ninth and new 

or expanded courthouses and administrative buildings since existing judicial facilities for a Twelfth are inadequate. The Administrative Office of the U.S. Courts estimates that creating a Twelfth Circuit would have a start-up cost of $96 million, with another $16 

million in annual recurring costs. 

Those who know the Ninth, know it best overwhelmingly oppose 

a split. Of the Ninth’s active court of appeals judges, 18 oppose the 

split, 3 support it. The district court and bankruptcy judges of the 

Ninth also oppose the split. Every State bar that has weighed in 

on the split—Alaska, Arizona, Hawaii, Montana, Nevada, Oregon, 

and Washington—oppose breaking up the Ninth. And more than 

100 different national, regional, and local organizations have written to urge that the Ninth be kept intact. 

Yesterday, I received a letter from 368 law professors representing 49 States and countless legal philosophies counseling 

against a split. I will put those letters in the record; also, letters 

from judges, organizations, and individuals opposing the split; as 

well as the written testimony offered by Senator Richard Bryan of 

Nevada in opposition to the split. 

One last point. The split as proposed grossly, unfairly distributes 

judicial resources in the West. The Ninth would keep 71 percent 

of the case load, but only 58 percent of the permanent judges. That 

is unacceptable. Currently, the Ninth has a case load of 570 cases 

per judge as opposed to the national average of 381 cases per 

judge. Under the split, the average case load in the Ninth would 

actually increase to 600 cases per judge while the new Twelfth 

would have only 326 cases per judge. This inequitable division of 

resources would leave residents of California and Hawaii facing 

greater delays and with court services inferior to their Twelfth Circuit neighbors. Clearly, that is untenable to both Senator Boxer 

and myself. 

Some advocates of splitting the Ninth assert that doing so would 

reduce delays in court appeals. This bill would actually increase 

the case load per judge, and with it, increase delays. If our goal is 

to reduce delays in the Ninth, a better answer is give its judge the 

case loads comparable to other circuit courts, not splitting the circuit. 

New judges for the Ninth are long overdue. Adding judges to 

bring the Ninth’s case load per judge down to the national average 

would cost far less than splitting the circuit and would have a 

much greater impact in combating delay. 

In addition—and this is an important point—40 percent of the 

Ninth Circuit’s current case load consists of immigration appeals— 

40 percent. That is an increase of 497 percent in less than 5 years. 

Now, I hope that Congress will pay new immigration legislation. 

I hope we can move through some new judges. But, in conclusion, 

let me just say splitting the Ninth I believe would create more 

problems than it would solve. So, Senator Kyl, would you like to 

make an opening statement? 

7 

Senator KYL [Presiding.] Senator Feinstein, all of the submissions for the record will be accepted, in addition to a letter that I 

am going to submit for the record, dated June 29th. 

Senator FEINSTEIN. Thank you. 

Senator KYL. And what I would like to do now is to call upon 

Senator Baucus, Senator Boxer, and Senator Murkowski, in that 

order, and excuse myself in about 1 minute, and I will turn the 

gavel over to Senator Feinstein. 

Senator Baucus? 

STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM 

THE STATE OF MONTANA 

Senator BAUCUS. Thank you very much, Mr. Chairman. First, I 

would like to welcome a member of the next panel, that is, Judge 

Sid Thomas. He is here to testify. Judge Thomas is one of the most 

senior judges on the Ninth Circuit. He is the en banc coordinator 

and death penalty coordinator for the circuit. He also serves on the 

Executive Committee for the circuit and can explain the real effect 

that this proposal will have on the country, let alone on the circuit. 

I recommended Judge Thomas for the Ninth Circuit many years 

ago. Montana is very proud to have one of its own on the bench. 

We are eager to hear what he has to say about the proposal. 

In our proposal, let me say this: Yes, the Ninth Circuit is the 

largest court of appeals in the United States. That is undisputed. 

It has the largest population and the largest case load. That is because it is so large. But these alone are not good reasons for splitting what is currently a very productive court of appeals. 

Some of our colleagues talk about delays in the Ninth Circuit. In 

reality, the Ninth Circuit is one of the fastest circuits in the Nation 

in resolving cases once the case is actually heard by the court. The 

delays in processing are caused by the number of cases referred to 

the court, and these cases are mostly immigration appeals. Splitting the circuit will not resolve this problem. It will not reduce the 

number of immigration appeals. We are still going to get immigration appeals. The Federal judiciary, the Ninth Circuit, a circuit is 

going to have to still take those cases. It makes no sense to have 

one circuit that only takes immigration cases. 

Splitting the circuit would also have a detrimental effect especially on the West, and my home State, to name one. Splitting the 

Ninth would eliminate uniformity of law in the West. So important. 

States sharing common concerns, such as environment and Native 

American rights, would end up with different rules of law. That 

makes no sense. This would create confusion, cause serious problems, and even animosity among the States in the West. 

Splitting the Ninth would impose huge new costs. A split would 

require new Federal funds for courthouses and administrative 

buildings. Existing judicial facilities are just not equipped for a 

new circuit. The Administrative Office estimates the start-up costs 

to be $96 million additional and then $16 million in annual recurring costs under the proposed split. The judiciary budget is already 

stretched thin. The creation of a new and costly bureaucracy to administer the new circuit would just add to our growing deficit. 

And this proposal does not have the support of the people whom 

it will most directly affect. Judges on this circuit oppose it. MemVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
8 

bers of the State bars affected by the split oppose it. Almost 100 

Federal, State, and local organizations oppose splitting the Ninth 

Circuit. Only three of the 26 active judges on the Ninth favor splitting the circuit. Many State bars oppose it, including Alaska, 

Washington, Nevada, Hawaii, Arizona. Even the Federal Bar Association and the Appellate Section of the Oregon Bar feel strongly 

that we should not split the Ninth Circuit. The State Bar of Montana does not support the proposal. The Montana Bar unanimously 

passed a resolution opposing division of the Ninth Circuit. 

We ought to be listening to the people on the ground who deal 

with this issue every day, not the hardship from our offices in 

Washington, D.C. Let’s be frank. The motivation behind splitting 

the circuit is political. It is an attempt to control the decisions of 

the judiciary by rearranging the bench. It reminds me of FDRs 

court-packing. The same thing—trying to change results by changing the composition of the court by law and the number of judges 

and how the lines are drawn. This is, as has been said, judicial gerrymandering. It is not appropriate for the Congress to gerrymander 

the circuits. 

The judiciary is supposed to be an independent branch of Government. It must remain so. Splitting the Ninth is not the right 

thing to do for Montana, it is not the right thing to do for the country, and I for the life of me cannot understand why anybody thinks 

this is a good proposal, why we are sitting here today. It is just the 

wrong thing to do. 

Senator FEINSTEIN [Presiding.] Thank you very much, Senator 

Baucus. 

Senator Boxer, I believe you are next, Senator Murkowski, and 

then Senator Ensign. 

STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM 

THE STATE OF CALIFORNIA 

Senator BOXER. Madam Chairman, thank you so much for all the 

work you have done on this subject. I wanted to thank my colleagues here. We are going to have a few disagreements, but so far 

former Governor and Senator Wilson and Senator Baucus and you, 

Madam Chair, and I certainly agree that this is not a bill whose 

time has come. And we need to do everything to stop it, and I hope 

we can do it right here. And I was wondering if you could call the 

roll since you are alone right now, and maybe we can dispose of 

the bill. 

[Laughter.] 

Senator FEINSTEIN. No such luck, I am afraid. 

Senator BOXER. But since that will not work, then I am going to 

add my voice to this debate. And I am going to try to put most of 

my comments in the record and summarize, and I know I am going 

to be repeating some of the arguments, but it is important to fill 

this record with the facts. So bear with me if I am repeating a bit 

here. 

Opposition to this bill has brought together many Republicans 

and Democrats—I think it is evidenced here today—liberals and 

conservatives and moderates. And, again, I want to thank former 

Governor and former Senator Pete Wilson for taking the time to 

come before the Committee. 

9 

I will not go through the exact change that is proposed because 

we all know it, but I will say I oppose this legislation for three reasons: first and foremost, it is unnecessary; second, splitting the 

Ninth would create additional costs without benefits and create administrative problems that do not exist; and, third, the bill is opposed by the majority of the people who would be the most effects—the judges and the attorneys of the Ninth. 

The Ninth Circuit is one of the fastest courts in the country in 

terms of issuing decisions following oral argument, and there are 

those who would make it sound like that is not the case, but it is 

the case. To the extent there is delay in the movement of cases in 

the circuit, it is due to the high case load per judge in the circuit, 

which can lead to delays in assigning judges to each case. However, 

this issue can be resolved by adding more judges to the circuit, 

which would decrease the case load per judge. Adding judges to the 

circuit would be more effective and less costly than creating a new 

circuit court. So if the real reason behind this is efficiency, we have 

got a very clear way to do it. But as you have heard from others, 

I do not think that is, in fact, the agenda here. 

Splitting the Ninth would lead to an interesting result. The new 

Ninth, with California and Hawaii, would be left with 71 percent 

of the former circuit’s case load, as my colleague stated, just over 

11,000 cases spread among 58 percent of the former circuit’s 

judges. So it is going to make matters worse. Splitting the circuit 

would increase the case load per judge in California and Hawaii, 

not decrease the case load. So what is the benefit of adding cases 

to our judges? Does it make sense to claim that the judges in the 

circuit are overburdened and then propose a fix that increases their 

case load? That does not make any sense to me. 

Also, the bill would require the creation of a new administrative 

bureaucracy. I thought, you know, some of the people on the other 

side of the aisle do not like to create new bureaucracies, but, yes, 

that is what they are doing with the creation of a new Twelfth Circuit. There will be construction costs, and I sit on the Committee 

with my colleague, Senator Baucus of Montana—we sit on the Environment and Public Works Committee, and the building of these 

courthouses is no small matter. It costs an absolute fortune, and 

we do not need that cost right now when we have so many other 

pressing needs. 

And then we have personnel, administrative costs, security costs, 

all of this going through the roof. Why would we be for a proposal 

that is unnecessary and which is so very costly? At the end of the 

day, we will get less judicial efficiency in the courts. It does not 

make sense. 

Only twice in our Nation’s history have we divided a Federal judicial circuit. Both times the split was supported by the majority 

of judges and attorneys in the circuit who would be affected by the 

split. And again, as was stated, in this case the split is not supported by the majority of judges and attorneys in the circuit. Again, 

18 Federal appellate court judges oppose the split, and many of the 

trial court judges in the circuit whose decisions are reviewed oppose this bill. And the ABA and almost every State bar association 

oppose the break-up. And yet in the face of this overwhelming opVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
10 

position, there is a still a push within the Senate to split the Ninth 

Circuit Court. 

So I urge my colleagues, who are not here right now, but maybe 

somewhere they are hearing my words, to vote against this bill, 

which would not only increase the burdens on Federal appellate 

judges in my home State, Senator Feinstein’s home State, and certainly in Senator Baucus’, but also send a bad message that we do 

not respect the independence of our judiciary. And that is key. At 

a time when we all revere our Constitution, we should respect the 

independence of the judiciary. 

So thank you, Madam Chair. I cannot believe I did this within 

the 5 minutes, almost. 

Senator FEINSTEIN. You did. 

Senator BOXER. Almost, 16 seconds, okay. But I really think you 

have been my hero on this issue, and I thank you so much. 

Senator FEINSTEIN. Thank you. Thank you, Senator Boxer. 

Senator Murkowski? 

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

FROM THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you, Senator Feinstein. I do appreciate your attention to this matter, and I understand the musical 

chairs that we are all engaged in here today. But I think we would 

all agree that this is an incredibly important issue for those of us— 

and you notice we are all from the West here. This is an incredibly 

important issue, and the fact that it has finally risen to the level 

of a full Committee level as opposed to just the subcommittees 

where you and I have had opportunity to discuss this issue. 

We recognize that it is an issue that I believe the time has come 

to be discussing this, and there is one point that you made that I 

certainly agree with, and you stated that if there is to be a split, 

it should be a split that is guided on the principles of efficiency, 

of administrative effectiveness, and those are the things that we 

should be looking to as we talk about the need for a split of the 

Ninth Circuit Court of Appeals. 

I have been working with Senator Ensign and Senator Kyl on 

this, and I think that the proposal that you are looking at is one 

that, in my opinion, does make sense and does indicate that we 

have reached a point where we have to do more than just talk 

about splitting up the Ninth Circuit and move forward on it. And 

the reasons that I cite are pretty substantive in terms of just numbers. 

We talk about the geographic size. We understand that, yes, in 

the West everything is large. But the Ninth Circuit, encompassing 

nearly 40 percent of the geographic area of the United States, that 

is bigger than seven of the other circuits combined. And so when 

you talk about the ability to produce decisions that have some consistency of laws, some uniformity, just the sheer geographic nature 

of the district that we are dealing with is one that is almost incredible. 

The population factor. The fact that the Ninth serves 58 million 

people, nearly twice the size of most other districts, again, setting 

it apart from all of the other circuits. 

11 

The case load. We recognize that the Ninth Circuit docket is one 

that just continues to grow. In 2004, it had nearly 60 percent higher case load than the next largest district. You mentioned, Senator 

Feinstein, the immigration case load increasing by—my figures put 

it at 463 percent. I think yours was 490. It is an incredible amount 

in terms of an increase. 

And the delays have been addressed, the recognition that the average time for final disposition of a case is 5 months longer than 

the national average. 

Now, there has been a suggestion that this is all about bringing 

about an ideological change within the district. That is not what 

we should be looking at. We should be looking to what is happening within the demographics of the Ninth Circuit itself. 

Now, some have suggested that the improvements through technology can help us control the overwhelming case load of the Ninth 

Circuit, and I have had an opportunity to listen to the chief judge 

and some of the other judges there talking about those efficiencies 

that have been introduced. And we appreciate it, we applaud it, 

and there has been great effort in that regard. 

But I guess I look at it and say, you know, we are able to stay 

on top of it now. We are kind of treading water. But I see literally 

a tidal wave coming towards the court that technology is not going 

to help us get around. And this is just simply population growth. 

And a reference, a couple charts here. As I stated, the Ninth Circuit already has population more than double most circuits, but it 

does not stop there. The Ninth Circuit also contains the fastestgrowing States in the country. So we can see what is happening. 

We have got the existing case load now. We know what is happening with immigration. But we also see the population growth in 

these States. So we cannot sit back and watch these warning signs 

without acting. 

I think our legislation is a sensible reorganization of the Ninth. 

The distances and the populations will be more proportionate and 

more manageable, we believe significantly reducing wasted money 

and time spent on judicial travel. We believe the case loads will be 

more manageable, which will improve the uniformity and the consistency in the case law. 

Senator Boxer mentioned that there have been two occasions 

where we have split the courts before, so we know that this is not 

unprecedented for us to consider this. And when you appreciate 

what happened in the South with the Fifth Circuit, when they 

made that split, it was because of factors just like we are seeing 

in the West: population growth booming and predicted to keep on 

the rise. 

With the 58 million residents of the Ninth Circuit that are suffering, if you will, as they are waiting for cases to be heard and 

decided, perhaps prompting some to forego the appellate process altogether, I think we have looked at this problem now for decades. 

We have been studying it. I believe that the time is now to move 

forward with it. 

I appreciate your time, your courtesy, and I look forward to the 

opportunity to address, I believe, a very real issue you have addressed, and that is, the one of the judicial case load and how we 

better manage that. And I am certainly willing within our legislaVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
12 

tion to look at how we might make sure that there is a more equitable allocation there. So I look forward to working with you, and 

thank you. 

Senator FEINSTEIN. Thank you very much, Senator Murkowski. 

Senator Ensign, welcome. 

STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM 

THE STATE OF NEVADA 

Senator ENSIGN. Thank you, Madam Chair, and I think this is 

a very important hearing. I have heard that now is not the time 

to split the circuit, and I think we have to ask ourselves one fundamental question. Why did we ever divide circuits in the first place? 

Why are there the number of circuits that we have today? Because 

each got to a certain point where they were not manageable, and 

they split circuits. 

At what point in the future is the Ninth Circuit too large? At 

what point is it unmanageable? We already have heard the population statistics that we have before us. I live in the fastest-growing 

State as far as a growth rate is concerned. Senator Feinstein lives 

in the fastest-growing State as far as true population increase is 

concerned. The whole West, we know, everybody from the Midwest 

and the Northeast is moving to the West, and especially the Southwest. Those trends are not going to change. The Western States are 

going to continue to rapidly increase in population. 

I want to point out a couple of the problems with that population 

growth, because some have suggested that this is purely ideological, the reason for the split. And I think that some would have 

that as motivation. But I do not think we need to make an ideological argument to justify a split—I think Senator Baucus talked 

about judicial gerrymandering. Well, the courts are going to be 

changing and even with this split, you cannot predict the makup 

of the court. New people will be appointed, and you cannot actually 

gerrymander the courts as far as ideology because judges are going 

to be constantly changing. And you cannot say today what it is 

going to look like tomorrow because of new judges, especially the 

number of new judges in the fastest-growing area that will continue to be needed. And if you look at the makeup, there are a lot 

of liberals and a lot of conservatives that will go both ways. 

I think that it is very important that we address some of the 

issues that have been brought up, for instance, the cost. Well, there 

is additional cost, but it can be held to a minimum. First of all, 

there are buildings within Portland and Seattle that would take remodeling, that could house the circuit headquarters—I am not 

going to get in the battle of who is going to choose whether it is 

Seattle or Portland. For Nevada, as much as I would like to go into 

Las Vegas, there are GSA buildings that are available. I think 

there are two buildings within Phoenix that could be used that 

would just have to be remodeled, and so we could keep the costs 

down fairly significantly by doing that. 

But we also need to consider that the way that the Ninth Circuit 

is able to handle cases right now—and I have heard this from 

many, many members on the Ninth Circuit. When they get together to consider cases in what are known as a limited en banc 

hearing, that is something that is not done the same that it is done 

13 

in other courts. They do not have the time to consider the cases. 

A lot of these decisions, they do not have the time as colleagues to 

discuss the cases nearly in the detail that they do in other circuit 

courts. That is a common complaint that I hear. 

Well, if they are getting together and they are trying to put together these decisions, they need collegiality. Working together is 

a very important aspect for the circuit courts that are weighing 

some of the heavier decisions that are necessary for the functioning 

of our constitutional republic. The judges need to take more time. 

And I think that we see this in decisions, because of the large number that are overturned. The number of decisions that are overturned in the Ninth Circuit is high. Judges have related to me that 

that is one of the reasons they believe the circuit should be split— 

not because of ideology. The split is justified simply because of the 

time that is needed to consider the cases. 

So for the sake of the administration of justice, not only the efficiency but also in the types of decisions that can be made, I think 

it is time to split up the Ninth Circuit. It is time for us to go to 

something that is more manageable where our judges have time to 

consider the cases in a much more detailed fashion. Is this bill perfect? No. We are willing to work with our colleagues to address 

their concerns. We are willing to give California the judges that 

they need and to address any other issues. But I think it is time 

to split the largest circuit geographically, population-wise, because 

this situation is only going to continue to get worse. That is why 

I believe that it is actually time to finally address the splitting up 

of the Ninth Circuit, and I thank you, Mr. Chairman. 

Senator KYL [Presiding.] Thank you very much, Senator Ensign. 

Senator ENSIGN. And, Mr. Chairman, could I submit the rest of 

my statement for the record? 

Senator KYL. Your statement will be included in the record. 

[The prepared statement of Senator Ensign appears as a submission for the record.] 

Senator KYL. There are members of the bench who are with us 

that will not be testifying. I would like to at least recognize your 

presence here, and we appreciate your interest in these proceedings, all from the Ninth Circuit Court of Appeals: Judge Callahan, Judge Rawlinson, Judge Bea, Judge Clifton, and Judge 

Kozinski. 

The next panel consists of Rachel Brand, and, Rachel, if you 

would take the dais, I will introduce you. Rachel Brand was confirmed as the Assistant Attorney General for Legal Policy at the 

U.S. Department of Justice in 2005. From 2003 until her appointment, she served as Principal Deputy Assistant Attorney General 

in the Office of Legal Policy and before that served as Associate 

Counsel to the President, before that with the law firm of Cooper, 

Carvin & Rosenthal. She clerked for U.S. Supreme Court Justice 

Anthony Kennedy and Massachusetts Supreme Judicial Court Justice Charles Fried; received her J.D. degree from Harvard Law 

School, where she was Deputy Editor-in-Chief of the Journal of 

Law and Public Policy; and received her B.A. from the University 

of Minnesota. 

Ms. Brand, nice to have you with us today. The floor is yours. 

14 

STATEMENT OF RACHEL L. BRAND, ASSISTANT ATTORNEY 

GENERAL FOR LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. BRAND. Senator Kyl, Senator Feinstein, I am happy to be 

here to testify on behalf of the Department of Justice. 

The Department supports legislation creating additional judgeships in the Ninth Circuit. Adequate staffing of the judiciary is essential to the effective administration of justice. Steadily increasing 

case loads in the Ninth Circuit necessitate additional judgeships 

there, and we urge Congress to authorize them. The Department 

also supports splitting the Ninth Circuit. Although we have not 

taken a position favoring any particular split, we applaud the Committee for focusing on legislation to divide the Ninth Circuit into 

courts of a more manageable size. 

From time to time, Congress has acted to improve the administration of justice by adding or splitting courts of appeals, and we 

believe the time is right to do so now in the Ninth Circuit. That 

court bears a strong resemblance to the Fifth Circuit that existed 

prior to the time Congress split it into the Fifth and Eleventh Circuits. For example, the Fifth Circuit then had 26 authorized judgeships. The Ninth Circuit now has 28 authorized judgeships and will 

become even larger if new judgeships are authorized there. 

Similarly, at the time of the split, the Fifth Circuit had about 18 

percent of the nationwide appellate case load. The Ninth Circuit 

currently is larger with about 23 percent of the nationwide case 

load. 

There are two primary reasons why the Department of Justice is 

weighing in on the issue of splitting the Ninth Circuit. First, the 

United States is by far the most frequent litigant in the courts of 

appeals, and the Department employs thousands of civil and criminal litigators who practice in courts all around the country, including the Ninth Circuit. As such, we have a particular interest in the 

effective and efficient operation of the Ninth Circuit and all Federal courts. 

The Department has directly experienced some of the downsides 

of the Ninth Circuit’s large size. For example, we experience the 

cost of the relatively long delay in the Ninth Circuit between the 

time of filing a notice of appeal and the time the court ultimately 

decides the case. 

We have also experienced the downsides of the Ninth Circuit’s 

unusual en banc procedure. The purpose of an en banc proceeding, 

as you know, is for the entire court to decide a case. In all other 

courts of appeals, en banc proceedings are heard by all eligible active judges, whereas, in the Ninth Circuit, only 15 of the 28 authorized judges participate. In other courts, then, it is certain that the 

entire court has spoken when there is an en banc ruling. In the 

Ninth Circuit, in a closely divided case, only eight judges could 

bind the circuit, making it possible that a minority of the court had 

spoken for the court in an en banc proceeding. This defeats the entire purpose of an en banc proceeding. 

The United States also has an interest in predictability and consistency in the law. Law enforcement officers need to understand 

what the constitutional limitations on their authority are. Prosecutors need to understand the rules applicable in criminal trials. RegVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
15 

ulatory agencies need to understand the scope of their authority 

and how to go about issuing regulations. 

The Department of Justice has noticed inconsistencies within the 

Ninth Circuit’s case law. In my written testimony, I describe one 

such intra-circuit conflict. In that case, the Department attempted 

to get resolution of the conflict through an en banc proceeding, but 

our petition for rehearing en banc was denied. 

The White Commission, in preparing its 1998 study, surveyed 

lawyers and judges around the country and reported evidence that 

reinforced the Department’s experiences. It said, for example, that 

more district judges in the Ninth Circuit than elsewhere reported 

difficulties stemming from inconsistencies between published and 

unpublished opinions, and that lawyers in the Ninth Circuit more 

than lawyers elsewhere reported problems relating to conflicting 

precedents. 

Senator FEINSTEIN. Relating to what? I am sorry. 

Ms. BRAND. Conflicting precedents. 

As Justice Kennedy noted at that time, it is only natural that a 

larger number of decisions from a court will result in inadvertent 

intra-circuit conflicts and legal ambiguity. According to the White 

Commission, a court of appeals, which must ‘‘develop a consistent 

and coherent body of law, functions more effectively with fewer 

judges than are currently authorized for the Ninth Circuit.’’ We 

agree and believe that dividing the Ninth Circuit will alleviate 

some of the Department’s concerns. 

Second—this is the second reason why the Department has decided to weigh in—we have a significant public policy interest in 

ensuring the effective administration of justice for all litigants in 

all the Federal courts. We regularly engage with Congress and the 

courts in discussions about how to improve our Nation’s civil and 

criminal justice systems. Just as certainty in the law benefits the 

United States as a party and makes the Department of Justice’s 

lawyers’ jobs easier, consistency and predictability in the law benefit every American. Companies and individuals need to have the 

ability to know what the law is. They need to know whether a particular action will subject them to liability or will get them arrested. 

For these and for the other reasons explained in my written testimony, we support legislation to add new judgeships and to divide 

the Ninth Circuit, and I would be happy to take your questions. 

Senator KYL. Thank you very much. 

Let me start with a couple questions. You have just, I think, answered the question that was foremost on my mind as to why the— 

I gather it is not particularly—that the Justice Department would 

not ordinarily speak to an issue like this, but the reasons are primarily because of the large number—or the large amount of litigation the Department of Justice has in the Ninth Circuit and its 

concerns with the way that the decisions can be conflicted, for example; and, second, the Department’s general interest in the administration of justice. 

I might have not summarized that very well, so I guess I should 

just ask you the question why the Department of Justice is particularly interested in this issue. 

16 

Ms. BRAND. Well, it is for exactly the reasons you state, Senator 

Kyl. We have a specific, you might say a parochial, interest as a 

litigant and a litigator in how the courts operate when the United 

States is sued or when the United States takes enforcement action 

in the courts. Our lawyers obviously experience the same things 

that all lawyers experience in the courts. And so it is important to 

us, as it is to all parties and all lawyers, that the courts operate 

well. 

And that leads into our second interest, which is a general public 

policy interest in the efficient and effective administration of justice, and we think of that not only in terms of administrative issues 

such as delay, but also in consistency and predictability in the law. 

People need to be able to order their primary conduct, they need 

to know what they can do and what they cannot do, and ambiguity 

makes that very difficult. 

Senator KYL. You heard the testimony of former Senator Wilson, 

and it prompted another question, and that is, whether we need a 

consistent body of law in the West or, more precisely, whether you 

have a concern that the creation of a new circuit might create more 

precedents and, therefore, be more difficult for litigants to work 

with. 

Ms. BRAND. The Fifth Circuit was split in 1981, as Governor Wilson discussed. The Eleventh Circuit, when it was created, adopted 

prior Fifth Circuit precedent as its own. So if you litigate now in 

the Eleventh Circuit and you cite a Fifth Circuit case from 1970, 

as long as it has not been overturned, it remains good law in the 

Eleventh Circuit. 

Now, the bill that is before the Committee does not specifically 

address that issue, and it, therefore, would be up to the judges to 

decide when a new court was created. But I would guess that they 

would probably handle it the same way, and that would lessen the 

unpredictability that would result from a circuit split. 

Senator KYL. Among the things that your testimony dealt with 

was the intra-circuit splits, and you talked about en banc hearings. 

Two questions here. What are some of the effects of intra-circuit 

splits? And then, second, can you be a little bit more precise as to 

the reason why you believe the Ninth Circuit is particularly susceptible to these intra-circuit splits or divisions? 

Ms. BRAND. The effect of an intra-circuit split is what I discussed 

earlier. It is the inability to order your conduct. It is the inability 

to know, if you are an agency, how you go about issuing a regulation. What is the scope of your statutory authority? If you are a 

prosecutor, you may not know how to argue before the court, what 

the court should take into account in sentencing, for example, if 

you have two conflicting panel decisions saying the court must consider this, or, no, the court does not have to consider that. It makes 

life very difficult, and you are in the position then as a lawyer of 

not knowing what to argue. You are in the position as a party of 

not knowing what to do. So that is the problem with an intra-circuit split. 

Now, I guess there is no way to empirically prove whether there 

are more intra-circuit splits in the Ninth Circuit than elsewhere, 

but when the White Commission did a survey of lawyers and 

judges in the late 1990’s, it found that the perception of lawyers 

17 

and the perception of district judges was that there was more ambiguity and more inconsistency in the Ninth Circuit than elsewhere. And it seems logical that, with a greater number of decisions, the risk of inadvertent intra-circuit splits is greater. So the 

larger the caseload, the more judges there are, inevitably, the more 

ambiguity and more intra-circuit conflict there will be. And that is 

what Justice Kennedy pointed out to the White Commission, and 

that is what the White Commission itself said. 

Senator KYL. Thank you. In view of the seconds left here, I will 

now turn the questioning over to Senator Feinstein. 

Senator FEINSTEIN. Thank you very much. Welcome. 

I take it you have had Federal agencies complain about intra-circuit splits. Is that correct? 

Ms. BRAND. The Department of Justice’s lawyers have provided 

us with a number of examples of intra-circuit splits that affect the 

criminal justice system and that affect public lands issues. So, yes, 

we have had folks from around the Government bring this to our 

attention. 

Senator FEINSTEIN. I would request to see them, then, please. 

Ms. BRAND. Sure. I can provide you with some more examples in 

addition to the ones that are in my testimony. 

Senator FEINSTEIN. Thank you. I appreciate that. 

You also noted that the Ninth Circuit has the longest period of 

time from notice of appeal to decision. However, as noted by others, 

the Ninth is the second fastest from hearing to decision. Since once 

judges receive cases they dispose of them quickly, wouldn’t the addition of additional judges speed the Ninth Circuit? 

Ms. BRAND. I think that the addition of new judges is critical, 

and, yes, I think it would definitely help disposition time. And as 

I said in my testimony, we support providing additional judgeships 

for the Ninth Circuit. 

I do not think that that would solve all the problems, however, 

because if you added the seven new judges that are provided for 

by S. 1845, you would then have a court consisting of 35 district 

judges, which is even larger than it is now, and it would exacerbate 

the problems that I just described. So, yes, adding judges would 

help, but it would not completely solve the problem. 

Senator FEINSTEIN. You see, I guess I have a problem really understanding the problems that you are describing. Let me ask this: 

In 1998, the Justice Department opposed splitting the Ninth. 

Today, you are coming before us and you are supporting splitting 

the Ninth. 

What has changed? The Ninth has always been big. It has always had a high case load. But there was always an admission by 

Justice that there were certain economies of scale, certain advances 

the Ninth had put in place that really offset any deficiency caused 

by its size. 

Now, you are not taking that position today, so what has 

changed? 

Ms. BRAND. Well, I have read the Department of Justice’s 1998 

testimony. It provided comment to the White Commission in connection with its study, and it then provided testimony to Congress 

when Congress was looking at a bill that would have implemented 

the White Commission’s recommendations. 

18 

What the Justice Department said then was that we need to wait 

and see. Basically the Ninth Circuit should take additional administrative measures to address what the Department did see as 

issues in the Ninth Circuit, and see how it went. 

Well, now 6 or 7 years have passed, and the Ninth Circuit has 

no doubt been very innovative and very creative in using administrative measures to improve its efficiency. But, nevertheless, the 

case load has continued to rapidly increase, the length of time for 

disposition has remained long, and the administrative measures 

that they have taken have not entirely solved the problem. The 

measures that have been taken consist largely of delegating certain 

functions of the Court to non-judicial officers, and inevitably there 

is some limit to how much of the judicial function can be delegated 

to non-judges. So at some point there are maximum efficiencies. 

And, regardless of the measures that have been taken, we have 

continued to see longer times and increased case load. 

So I think we have taken a new look at the issue now. It is 2006, 

and there are good arguments on both sides, but we think the 

weight of the evidence is in favor of a split. 

Senator FEINSTEIN. Okay. It is just that I have never seen any 

advocacy by your Department for additional judges. As I have tried 

to get additional judges, I have never received any help from your 

Department. And I would like the record to reflect that. 

Ms. BRAND. Well, may I make a comment about that? 

Senator FEINSTEIN. Sure. 

Ms. BRAND. The Attorney General has said on a number of occasions that he supports adequate staffing of the judiciary and that 

he supports new judges. He has told the Judicial Conference that 

a few times now. 

In October of 2005, the Department of Justice provided a views 

letter on a Ninth Circuit split bill, and in that letter we supported 

additional judgeships, and I just want to make sure that you know 

today that we are supporting additional judgeships for the Ninth 

Circuit. 

Senator FEINSTEIN. Yes. I guess what I am talking about, Ms. 

Brand, is when it is really not writing a letter or speaking to an 

outside group. It is lobbying in the House and it is lobbying in the 

Senate. And I know of no such lobbying to produce additional 

judgeships for the Ninth Circuit. 

Let me ask you this question: If further study determined that 

splitting the Ninth would result in inefficiency and increased 

delays, would the Department still support splitting the Ninth? 

Ms. BRAND. Well, Senator, I think that when you split a circuit, 

in the beginning there will be certain administrative challenges 

that will occur. That is inevitable. I think that so much study has 

been done at this point that there is not a lot of point in doing additional study. And I would also point out that it is not just delay, 

it is not just cost that can be measured in monetary terms that it 

is at stake here. There is a very strong justice interest in consistency in the law. People have to know what the law is, and the 

greater the body of case law, we think, the greater the inevitability 

of intra-circuit conflicts. You cannot quantify that in terms of efficiency, administrative function, or money, but you can quantify it 

19 

in terms of the impact on justice. And so we want to make sure 

that that interest is also taken into account. 

Senator FEINSTEIN. You know, it is just kind of interesting to me. 

I have sat on this Committee for 14 years now. No one from Justice 

has ever picked up the phone and called me and said, ‘‘You should 

know we have a problem with the Ninth Circuit, and these are 

what the problems are.’’ So I can only conclude—and I must just 

say this—that this is political, that it has nothing to do with the 

performance of the circuit. 

I sat down with the Attorney General over a very pleasant lunch. 

We discussed many issues. The Ninth Circuit was never raised. 

And so if this is, you know, a substantial enough effort, when you 

have the bar associations of every State, when you have the majority of judges, when you have the majority of lawyers that practice 

before the Ninth opposing a split, that Justice suddenly comes up 

and does something they have never done before, which is support 

a split, I really think the reasons you present today are not, frankly, compelling. 

Ms. BRAND. May I respond to that very briefly? 

Senator FEINSTEIN. Sure. 

Ms. BRAND. The reasons why we have supported the split are the 

ones that are stated in my testimony, and political motivations 

would not have much bearing here because Ninth Circuit case law 

that is in existence now is going to, I predict, stay in effect. As I 

said, the bill does not address what would happen with precedent, 

but if the Ninth Circuit and Twelfth Circuit did what the Fifth and 

Eleventh did, then existing Ninth Circuit case law would remain 

in effect in both the Ninth and the Twelfth Circuits. So even if we 

wanted to do away with Ninth Circuit case law, this split would 

not do it. 

Moreover, the judges that are on the court now are going to stay 

on the court, so our opposition has nothing to do with the outcome 

of any particular case. It has nothing to do with our opinions about 

any particular judge. It has to do with our observations as litigants, our observations as lawyers, and our general public policy 

interests in the administration of justice. That is all I can say. 

Senator FEINSTEIN. So you are saying today that you do not believe that the administration of justice is well served by the Ninth 

Circuit? 

Ms. BRAND. I think it could be improved by a Ninth Circuit split. 

Senator FEINSTEIN. Well, I would appreciate getting in writing 

some specifics with the documentation. 

Ms. BRAND. I would be happy to do that. 

Senator FEINSTEIN. Thank you very much. 

Thanks, Mr. Chairman. 

Senator KYL. I appreciate it, and if other members of the panel 

wish to submit questions for the record, or perhaps if we have additional questions, we will get those to you, and I presume that we 

will leave the record open for the usual period of time. 

I appreciate your testimony, and I would just add one thing to 

what Senator Feinstein said. I have mixed emotions about dividing 

the court, but I have never determined that it would make much 

difference politically. If you look at some of the decisions, some of 

the judges live in places other than California that some people 

20 

love to rail against. But, in any event, the one litigant that is in 

every circuit is the U.S. Department of Justice, so you are not 

going to be able to escape the clutches of whatever is being complained of, if it is a political complaint, it seems to me. 

Senator FEINSTEIN. Let me just say this, if I might, Mr. Chairman. The Justice Department has now joined the fray, and I want 

them to put up, and if there is a problem with the circuit and what 

was said here today is that there is not the proper administration 

of justice, I want to know chapter and verse and subchapter where 

the problems are. 

Senator KYL. Sure. Fair enough. I noted the two specific cases 

you cited in your testimony, and you said you would try to find 

some additional ones, and we will leave the record open for you to 

do that. 

Ms. BRAND. Thank you. 

Senator KYL. Thank you very much for your testimony. 

[The prepared statement of Ms. Brand appears as a submission 

for the record.] 

Senator KYL. The next panel consists of Hon. Mary Schroeder, 

who is Chief Circuit Judge of the Ninth Circuit; Hon. Richard 

Tallman, Circuit Judge of the Ninth Circuit; Hon. Sidney Thomas, 

Circuit Judge of the Ninth Circuit; Hon. Diarmuid O’Scannlain, 

Circuit Judge of the Ninth Circuit; and Hon. John Roll, Chief District Judge for the District of Arizona. 

I would like to briefly introduce each of these witnesses because 

they are all extraordinarily distinguished, starting with Judge 

Schroeder, current Chief Judge on the circuit, the first woman to 

hold that position. She was appointed to the Arizona Court of Appeals and served until 1979, when she was nominated by President 

Jimmy Carter and appointed to the Ninth Circuit. Before that, she 

was with the Phoenix firm of Lewis and Roca. She served as a law 

clerk to Justice Jesse Udall of the Arizona Supreme Court in 1970, 

practiced as a trial attorney with the Civil Division of the Department of Justice, authored numerous publications, received her B.A. 

from Swarthmore, and her J.D. from the University of Chicago. Interestingly, one of six women in her class at the University of Chicago. 

The Honorable Richard Tallman currently serves on the Ninth 

Circuit. Prior to his judicial service, he was a partner with the Seattle firm of Tallman & Severin and was previous to that a member of the firm of Bogle & Gates. He had previous service as a Federal prosecutor, first with the Criminal Division of the U.S. Department of Justice and then with the U.S. Attorney in Seattle; received his bachelor’s degree from the University of Santa Clara, 

summa cum laude, and his juris doctorate from Northwestern University School of Law, where he was Executive Editor of the Northwestern University Law Review. 

The Honorable Sidney Thomas serves currently as the en banc 

coordinator and death penalty coordinator for the Ninth Circuit as 

a member of the court’s Executive Committee. He previously served 

as administrative head of the Northern Unit of the Ninth Circuit, 

a member of the Judicial Council for the circuit. He was in private 

practice and received his undergraduate degree from Montana 

21 

State University and graduated with honors from the University of 

Montana Law School. 

Judge O’Scannlain was confirmed to the Ninth Circuit in 1986. 

Between 1969 and 1974, he served as Deputy Attorney General of 

Oregon, Public Utility Commissioner, Director of the Department of 

Environmental Quality in Oregon. And then in 2003, the late Chief 

Justice Rehnquist appointed him to the Federal Judicial Center’s 

Advisory Committee on Appellate Judge Education, and Chief Justice Roberts has recently elevated him to chair that committee. He 

received his B.A. from St. John’s University, his J.D. from Harvard 

Law School, and his L.L.M. from the University of Virginia Law 

School. 

The Honorable John Roll was just recently elevated to the position of Chief District Judge of the Arizona District Court. Prior to 

that appointment, he served in a variety of positions, including 

Judge for the Court of Appeals for the State of Arizona, Judge on 

the Pima County Superior Court, and as an Assistant U.S. Attorney for the District of Arizona. He received his B.A. from the University of Arizona, his J.D. from the University of Arizona College 

of Law, and L.L.M. from the University of Virginia School of Law. 

As you can see, a very distinguished panel, and I think the best 

thing to do is simply start from my left with Chief Judge Schroeder. Each of you are aware that we have a 5-minute clock, if you 

can adhere to that to the best of your ability. Of course, all of your 

written statements will be put into the record, and so, Judge 

Schroeder, the floor is yours. 

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

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

Judge SCHROEDER. Thank you, Senator Kyl, and Senator Feinstein— 

Senator FEINSTEIN. Could you move the mike directly—thank 

you. 

Judge SCHROEDER. It is a pleasure for me to— 

Senator FEINSTEIN. And turn it on. I do not believe it is on. 

Judge SCHROEDER. It is not? There, now it is on. 

It is a pleasure for me to appear here this afternoon. I understand the Committee has a specific proposal before it for division 

of the circuit, and I think it illustrates the dramatic inequities that 

flow from a split proposal that separates California and Hawaii 

from the rest of the States in the circuit. 

I am pleased to have with me here to testify in opposition to this 

proposal my colleague Sidney Thomas of Montana. He is in line to 

become chief judge one of these days, and he has a great expertise 

in dealing with case volume. You have already introduced our 

newer colleagues who were confirmed by the Committee within the 

last few years: Judge Callahan, Judge Clifton, Judge Rawlinson, 

and Judge Bea. They also oppose split of the circuit. Judge 

Kozinski is also here. He will succeed me as chief judge, and he is 

opposition to splitting the circuit. My concern in opposing is underlined by my view of the administration of justice. My opposition is 

shared by all of my predecessors within living memory as chief of 

the circuit, beginning with Richard Chambers of Arizona, appointed 

22 

by President Eisenhower, and extending through chiefs appointed 

by Presidents Kennedy, Nixon, and Carter, and the future chiefs 

appointed by Presidents Reagan and Clinton. The overwhelming 

majority of our court of appeals judges oppose a division. This has 

never been a partisan issue for us. 

You will have before you letters from lawyers, from district 

judges, from law professors. They do not want a split either. Neither do the bar associations that have been mentioned already this 

afternoon. 

The fact is that while the debate has been focused on a handful 

of decisions from our court of appeals, the proposal would dismantle the entire circuit. The circuit law for California would be 

different from that of its neighbors. Lawyers would have to track 

new and different circuit law in bankruptcy, in commercial litigation, for example, that spans Arizona and California. There is a lot 

of that, and that makes the practice of law more expensive. 

Of course, circuits on the East Coast have been fragmented from 

the 18th century, but why in the 21st century should we set out 

to create a similar system in the West. We in the West didn’t grow 

from 13 colonies. 

This bill would leave California alone with Hawaii in a circuit 

containing more than 70 percent of the cases in our circuit, too few 

judges, much of the Pacific Ocean, and only four Senators, leaving 

it difficult to get resources in the future. And it could not use the 

judges we already are able to use in the remaining States because 

they would be operating under a different circuit law. They would 

no longer be interchangeable. 

So the new circuit would be overwhelmed with new cases that included California, and as for the new Twelfth Circuit, it would 

have a very busy Arizona border, a long border with Canada, and 

large security issues to cope with, and it would take years for a 

new circuit to assemble a staff with the experience of the existing 

Ninth Circuit staff. And I might mention our Clerk of Court Cathy 

Catterson is here as well as our Circuit Executive Greg Walters. 

And all of this is costly, as you have heard. We are now experiencing growth in the number of immigration-related filings. This is 

largely due to decisions in the executive branch to decrease administrative review of immigration cases and increase enforcement on 

the border. And we need to have and the Governors of our border 

States have called for comprehensive legislative policy. 

We want to work with you in any details of whatever legislation 

you enact so that immigration law can be administered well. We 

need to work together. 

Now, there are myths driving the proponents of dividing circuit. 

One is that all circuits should look alike. But I live in Maricopa 

County, Arizona. That county is bigger that Connecticut. And another myth is that our en banc process—we would not have to use 

a limited en banc. Congress authorized it. We like it. We could sit 

with all of our judges. But we have decided that limited en banc 

is a better use of resources. 

There is a myth that smaller courts are more collegial, but I 

think the testimony of our judges who oppose splitting show that 

that is not true, either, and also that splitting is in the natural 

order of things. I refer to the split of the Eleventh and Fifth. It is 

23 

documented in this book, ‘‘A Court Divided,’’ published by Yale 

University Press. It really had nothing to do with court administration. It grew out of the bitter fight over civil rights divisions and 

civil rights cases and the demands of some in Congress that the 

circuit be divided to separate judges in that circuit. And eventually, 

when they withheld judgeships long enough, the judges asked to be 

divided. We have not asked to be divided. 

I thank you for your time. I have gone a little over, and I appreciate your indulgence. 

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

Senator KYL. That is quite all right. Thank you, Judge Schroeder. 

Judge Tallman? 

STATEMENT OF HON. RICHARD C. TALLMAN, CIRCUIT JUDGE, 

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

WASHINGTON 

Judge TALLMAN. Good afternoon, Mr. Chairman and Senator 

Feinstein. My name is Richard C. Tallman. I was appointed by 

President Clinton to the Ninth Circuit in May of 2000, with chambers now in Seattle, Washington. 

I am here today because I believe Congress must redress the current burden on the Ninth Circuit’s decisionmaking process. I do not 

urge reorganization because I take issue with my court’s decisions, 

because I am tired of writing dissents, or because I am looking for 

a comfortable sinecure here. My court is just too big, with too many 

judges and too many cases to consistently render quality decisions 

with adequate time to reflect upon each case and apply the relevant case law, to adequately confer with my colleagues in crafting 

a careful and thoughtful disposition, or adequate time to call en 

banc all of those cases requiring rehearing. 

Instead, I see the case load growing at more than 10 percent per 

year, collegiality declining, and a lower percentage of cases reviewed en banc. We are coping with the remorseless crush of cases 

by employing the judicial equivalent of triage. It works most of the 

time, but all objective data suggest it is not working as well as it 

should, and I agree with Assistant Attorney General Brand on that 

point. 

Ultimately, it is our ability to maintain the people’s respect for 

the quality and reasoning of our decisions that ensures the effectiveness of our system of justice and public confidence in our 

courts. The case load is now too great to permit even the most conscientious judge on our court to read all the dispositions we issue, 

all decisions of the United States Supreme Court, and the briefs 

and records of the nearly 600 cases annually assigned to each judge 

on our court. When that process is rushed, mistakes are made. 

Cases fall through the cracks. 

Collegial decisionmaking is the hallmark of an effective appellate 

court. In the past year, there were 26 active and 23 senior circuit 

judges on my court. I was able to sit on three-judge panels with 

only nine of the active and seven of the senior judges during the 

past 12 months. Because of our case load, we are required to borrow increasing numbers of visiting district and circuit judges from 

24 

all over the United States, more than 150 this year alone. The use 

of visiting judges, though we appreciate their time and effort greatly, when combined with the staggering size of my circuit, has made 

it increasingly difficult for me to work with all of the judges of my 

own court. This is unlike the experience on the other Federal circuit courts of appeal where the average number of active judges per 

court is less than 13. Working together on a regular basis promotes 

a cohesive court, with shared information, circulated expertise, and 

maximized efficiency. 

Our current problems will only worsen over time. No matter how 

efficient the circuit becomes in its current form, it simply cannot 

keep pace with its ever increasing case load. The Ninth Circuit terminated just under 2,500 fewer cases than it received last year. My 

own recent experience hearing cases just last week confirms that 

private civil appeals are hardest hit by delays in case processing. 

As a result of our inability to keep up, there are now over 17,000 

cases pending on our docket as of June 30, 2006, comprising 30.3 

percent of the Nation’s entire Federal appellate case load. 

I support some form of reorganization, either through Senate bill 

1845 or under a different configuration. I urge consideration of a 

three-way split composed of a Pacific Northwest circuit with five 

States, a Southwest circuit with Nevada, Arizona, Hawaii, and the 

Pacific Territories, and a stand-alone California circuit. But whatever choice you make, please act soon. Any action now will greatly 

increase our efficiency, our collegiality and manageability, and reduce the delay in processing and deciding cases while saving money 

and reducing productivity losses from extended travel time. 

Conspicuous by its absence is any effective rebuttal to the voluminous data showing that my court is disproportionately large 

when measured by any metric. If we do not act now, we will continue to do the best we can. But it will not be the best we are capable of doing given the constraints within which we must currently 

operate. 

Thank you. 

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

Senator KYL. Thank you, Judge Tallman. 

Judge Thomas? 

STATEMENT OF HON. SIDNEY R. THOMAS, CIRCUIT JUDGE, 

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, BILLINGS, MONTANA 

Judge THOMAS. Yes, Senator Kyl, Senator Feinstein, I appreciate 

the opportunity to testify on the legislation today. 

Division of the Ninth Circuit would have a devastating effect on 

the administration of justice in the Western United States. It 

would increase case delay and reduce our ability to provide service. 

It would cause unnecessary and wasteful duplication. No one disputes that the Ninth Circuit has created an extraordinarily efficient and effective administrative structure that is unique among 

the circuits. We have been able to accomplish this through economies of scale, technology, and the aggregation of resources. 

To give some examples that I believe you gave earlier, Senator 

Feinstein, our mediation unit, with a 90-percent success rate, setVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
25 

tled almost 1,000 cases last year. That is nearly the entire case 

output of the D.C. Circuit. The Bankruptcy Appellate Panel decided 

nearly 700 appeals. The Appellate Commissioner, a position unique 

in the Ninth Circuit, resolved 4,000 motions and over 1,000 fee requests. Through presentations of our Staff Attorneys Office, we resolved over 2,000 appeals and 11,000 motions. Our Habeas Unit assisted in resolving over 1,000 appeals. The Ninth Circuit Pro Se 

Unit handled over 6,000 appeals. 

Now, what has been the result of this? Well, even though the 

Ninth Circuit, as you have heard, has experienced an astounding 

increase in immigration case load, over 587 percent over the past 

5 years, which has caused our total case load to increase 50 percent 

over the same period, our case processing time has only increased 

1.2 percent over that same period. But for the unexpected and temporary increase in immigration cases, the Ninth Circuit would be 

current. 

During the same period of time, other circuits did not fare so 

well. Delay in the Second Circuit, which is the other circuit hardest 

hit by the surge in immigration cases, increased 23 percent. And 

even though the case load in the Fourth, the Fifth, and the D.C. 

Circuits grew only 5 percent over the past 5 years, as compared 

with the 50-percent increase in the Ninth Circuit, their delay increased by more than 50 percent. 

Despite unprecedented case load increases, we have held our own 

because of our administrative efficiencies. However, due to unnecessary duplication and increased costs, these efficiencies would be 

destroyed by circuit division, leaving the same case load to be managed with sharply reduced resources. One cannot expect improved 

performance or reduced delay by forcing the Ninth Circuit to lay 

off a substantial percentage of its employees, and starting up a new 

circuit from scratch on a shoestring budget. Circuit division will increase delay and not reduce it. 

None of the arguments raised in support of a circuit split are 

persuasive. Proponents argue the circuit is too geographically large, 

although it has been the same size since the Truman administration. The present legislation will not even address size, leaving 90 

percent of the present land mass in the new Twelfth Circuit, which 

would still stretch from the Sonoran Desert to the Arctic Circle. 

Proponents contend the Ninth Circuit issues too many opinions 

for lawyers and judges to absorb, yet the Seventh and Eighth Circuits produce more, with the Eighth Circuits issuing 30 percent 

more opinions than the Ninth. If circuit division is justified by the 

sheer number of opinions, those circuits should be split first. 

All academic studies conducted to date indicate the Ninth Circuit 

does not experience case conflict any more than any other circuit. 

In fact, we have instituted a number of procedures to prevent case 

conflict, including electronic case and issue tracking that other circuits have not been able to employ due to lack of resources. 

Split proponents argue that population growth justifies a split. 

However, there is no longer any correlation between population 

growth and case load growth in the Federal judiciary. Over the 

past 5 years, although the population in the Ninth Circuit has increased substantially, the case load from the district courts has acVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
26 

tually decreased 1.2 percent. Present case load growth is due to factors other than population. 

The separatists argue that the limited en banc process justifies 

a split. However, the present legislation would still retain a limited 

en banc court in the Ninth Circuit. All studies of our en banc process indicate it is working well. Few en banc decisions over the past 

20 years have even involved close votes, and, in addition, the Ninth 

Circuit already has a mechanism to rehear a case before the full 

court if a majority of the cases thought it necessary. In any event, 

a rehearing en banc is a rare event in any circuit. Last year, only 

the Eighth and Ninth Circuit reheard more than four cases en 

banc. It makes no sense to dismantle one circuit and start up a 

new one from scratch to allow more judges to hear four cases. 

In the end, the question is how best to administer justice in the 

West. The solution is not to duplicate management and create more 

bureaucracy nor to build expensive new buildings in one circuit 

while the space goes empty in another. The best path is to become 

more efficient and effective by pooling our resources and using 

economies of scale. Can we do better? Sure we can. But the present 

structure of the Ninth Circuit provides the best platform for administering justice in the Western United States. 

Thank you. 

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

Senator FEINSTEIN. Wow, he did it within 5. 

Senator KYL. All of you guys are really good. 

[Laughter.] 

Senator KYL. Of course, I guess you are used to holding litigants 

to that standard. It is only fair. 

Judge O’Scannlain? 

STATEMENT OF HON. DIARMUID O’SCANNLAIN, CIRCUIT 

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

PORTLAND, OREGON 

Judge O’SCANNLAIN. Senator Kyl, Senator Feinstein, my name is 

Diarmuid O’Scannlain, United States Circuit Judge for the Ninth 

Circuit, with chambers in Portland, Oregon. I appear today in support of S. 1845, which has been set for markup by your Committee 

in the next few days. My written testimony with graphics attached 

is before you, substantially unchanged from the very extensive 

hearings which you held last fall. Today, I would like to emphasize 

three points. 

First of all, the Ninth Circuit just does not look like America 

anymore. Our court has grown to a size utterly disproportionate 

from all other circuits in the Federal judicial system, and as you 

can see from the charts and the graphics beginning at page 17, the 

question of circuit realignment is no longer whether, but when and 

how. All of this disproportionality is exactly what the Congressionally mandated Hruska Commission foresaw in 1973. Over 30 years 

ago, the Commission recommended that both the then-Fifth Circuit 

and the current Ninth Circuit be split. The Fifth Circuit promptly 

was split, but the Ninth Circuit resisted. Regrettably, the chief 

judges of the circuit have continually opposed a necessary and inevitable restructuring. 

27 

After the Senate passed a Ninth Circuit bill in 1997, our thenchief judge called for another study. Congress graciously accommodated that request by creating the so-called White Commission, 

which essentially reiterated the observations of the Hruska Commission. Furthermore, the White Commission recommended splitting the circuit into three semi-autonomous divisional courts, leaving the circuit as but a shell. Yet, once again, our circuit’s leadership rejected that Congressionally authorized Commission’s wellconsidered report. 

I listened to my colleagues in opposition, and they talk like the 

Ninth Circuit is the center of the judicial universe. I suggest their 

perspective is misplaced. The Ninth is only one of 12 circuits in the 

Federal judicial system. The Supreme Court, of course, is central. 

Chief Judge Schroeder cannot point to a single Supreme Court Justice who agrees with her. We have pointed to at least four who 

favor restructuring of the Ninth Circuit. 

Mr. Chairman, except for decisions in cases, the Ninth Circuit is 

not immune from your oversight. It is no longer defensible to allocate 20 percent of the Nation’s population, over 23 percent of the 

Federal case load, and over 30 percent of the backlog of all Federal 

appeals into but one of 12 regional circuits. Why should the Ninth 

Circuit be treated differently from its sister circuits? The burden is 

now on the diehard split opponents to show why the overwhelming 

burdens and vastly disproportionate size of the Ninth Circuit 

should be retained in a system which presumes co-equal appellate 

courts. 

My second point is to debunk the extravagant claims made regarding the cost of a split. Most administrative costs would be 

amply set off by reducing the size of the old circuit. With respect, 

my chief judge assumes the new Ninth keeps the budget of the old 

Ninth. If the new Ninth Circuit is about two-thirds of the old circuit, that obviously means that one-third of the combined budget, 

including a third of the staff and supplies, would get reallocated to 

the new Twelfth. If there are any significant additional costs beyond reallocation of the present budget and some minor transitional expenses, I would be very much surprised. 

Certainly, there is absolutely no need whatsoever for new courthouses to be built. Unused courthouse space now available in Phoenix and Portland and Seattle will accommodate any administrative 

needs. The $100 million number is a red herring, and most of us 

in this room can see that for what it is. 

Third, while I support S. 1845, which is similar to the bill that 

actually passed in 1997, I do think that there are other options as 

well. I have long felt that the Hruska Commission offered a preferable solution, but out of respect for the concerns of Senator Feinstein and, I believe, Chairman Specter, about placing California 

into two different circuits, I have demurred. 

Let me conclude by noting that opponents of restructuring myopically argue that everything is just fine. When they urge that 

smaller circuits merge into bigger ones, they are simply unrealistic. 

With respect, the data show that it is the Ninth Circuit that is out 

of sync, and it is getting worse by the day. I urge the Committee 

to act now. 

Thank you, Mr. Chairman. 

28 

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

Senator KYL. Thank you, Judge O’Scannlain. And, finally, Judge 

Roll. 

STATEMENT OF HON. JOHN M. ROLL, CHIEF DISTRICT JUDGE, 

U.S. DISTRICT COURT FOR THE DISTRICT OF ARIZONA, TUCSON, ARIZONA 

Judge ROLL. Thank you, Senator Kyl, Senator Feinstein. It is an 

honor to be invited to testify before you. I enthusiastically support 

S. 1845. I am the chief judge in the District of Arizona. I speak 

only for myself, although five of my colleagues from the District of 

Arizona have written to you in support of this legislation as well. 

When is a circuit court, which is only one of 12 regional circuit 

courts, too big? In 1998, the White Commission concluded that it 

was too big. Justice White, who chaired that Commission, described 

it as ‘‘adjudicatively malfunctioning,’’ and Judge Pam Rymer of the 

Ninth Circuit said, ‘‘The Ninth Circuit is broke. It needs fixing and 

structural changes are required.’’ As has already been mentioned, 

four Supreme Court Justices wrote in support of a split of the 

Ninth Circuit to the White Commission. Since the White Commission issued its report, the population of the Ninth Circuit has 

grown by 8 million people, and the case load is now 30 percent of 

all pending Federal appeals. Now, you have heard a lot of numbers 

discussed here. If you will look at my attachments, Attachment B 

shows where that 30 percent comes from. 

Justice Kennedy said, when he wrote to the White Commission 

in support of a split, the burden should be on the split opponents 

who want to have three-judge panels decide the law for one-fifth 

of the United States. I submit to you the Ninth Circuit has not 

made that showing. 

It is the slowest circuit in the country in decisional time, which 

is the time from the filing of notice of appeal to the time of disposition. That is the time that matters to litigants. It is 4 months slower than the average circuit and 2 months slower than the next 

slowest circuit. It has too many judges, which requires the use of 

a limited en banc procedure, which has been criticized by Judge 

Pam Rymer, who was a member of the White Commission, and by 

Justice O’Connor, who said that it just can’t serve the same purpose as a full en banc. In fact, Judge Rymer said a limited en banc 

is an oxymoron, because ‘en banc’ means ‘full bench.’ 

Only a fraction of the Ninth Circuit sits en banc. Panel members 

who decide three-judge panel decisions frequently are not selected 

to sit on the en banc. And I do dispute Judge Thomas’ indication 

that only a few of the limited en banc votes are close. My Attachment J shows that since the White Report was issued, one-third of 

the cases decided en banc by the Ninth Circuit were by close votes, 

6–5 or 7–4. It is the most unanimously reversed circuit in the country. Since the White Report was issued, it has been reversed unanimously by the Supreme Court 62 times. Sixty of those cases were 

not even heard en banc. 

S. 1845 benefits all nine States of the Ninth Circuit. The new 

Twelfth Circuit would look like most other circuits. Its population 

of 21 million would be average. Its case load of 4,500 cases would 

29 

be larger than five other circuits. Its case-to-judge ratio would be 

right in the middle. It would be 7th of the 13 circuits, with 351 

cases per judge, and this is illustrated on page 17 of my prepared 

statement, in a graph that shows where those numbers come from. 

That is actually larger than the case loads of the Third and the 

Sixth Circuits in addition to some of the smaller circuits. 

It would be tied with the Eighth Circuit for the most number of 

States—seven States. The cost, as Judge O’Scannlain has described, is not prohibitive, and that is described at length in my attachments at Attachment M. 

The Judicial Conference representation would be equalized for a 

circuit of that size, and a BAP would be available, in the opinion 

of Judge Lloyd George, who supports a split. And I would point out 

that the Tenth Circuit has a BAP, so certainly the Twelfth Circuit 

could have a BAP as well. 

The new Ninth Circuit’s case load would drop, with the addition 

of seven new judges, to a ratio of from 570 to 518 cases per judge. 

That would take the Ninth Circuit down from the third highest to 

the fourth highest. 

The mantra that we have heard from the beginning is ‘‘no split 

is possible because the only way to evenly divide the Ninth Circuit 

is to split California. California does not want a split; therefore, 

you cannot split the Ninth Circuit.’’ That logic cannot possibly continue to prevail. 

Thank you for the opportunity to appear before you. 

[The prepared statement of Judge Roll appears as a submission 

for the record.] 

Senator KYL. Well, thank you very much. 

We have heard a lot about the collegiality of the court, and it 

strikes me that if Senators could disagree as strenuously and yet 

agreeably, as you all have, we would be a better place. 

[Laughter.] 

Senator FEINSTEIN. You do not know what happens after they 

leave this room. 

Senator KYL. Well, for some reason I sense that somehow or 

other they are able to function, but you are right. 

Just a couple of things. First of all, do any of you who support 

a division of the court disagree with my view— and I suspect this 

is Senator Feinstein’s view—that neither of the two, or if it were 

to be three, new circuits should—if the object of the split is to try 

to relieve the case load burden—that we should add a number of 

judges sufficient that the case load is at least no greater than and 

hopefully less than the current case load for each of the different 

remnants that would be divided out? Is there any disagreement 

with that proposition? 

Judge TALLMAN. No disagreement. 

Judge O’SCANNLAIN. I don’t think so, Senator. I think that is the 

objective, and that can be attained through various devices. 

Senator KYL. One device is we would have to authorize many 

more judges, which I am in favor of doing, by the way. 

Judge Schroeder, just for the record, because I think you would 

want to probably do this delicately and in great consideration, but 

given the fact that the immigration cases are such a huge proportion of the new case load of the circuit, and undoubtedly a drain 

30 

on resources, if you all had ideas that might be useful to us as we 

are trying to put together immigration reform legislation that 

might in some way impact that, it would be very useful for us. And 

so if you would like to comment, fine. 

Judge SCHROEDER. Yes, if I may comment to that. What has created the tremendous increase in immigration appeals—and I might 

add that this is felt by all of the circuits in the country. Proportionately, it is just that we get about 50 percent of the immigration appeals. The Second Circuit gets about 30 percent. So the two circuits 

with the great ports are most affected in terms of the numbers, but 

everyone feels it. 

What has created it has been the decisions in the executive 

branch to increase enforcement and to reduce the intermediate administrative review of cases. 

Senator KYL. Right. 

Judge SCHROEDER. So that cases are coming from us—from the 

immigration judge directly to the courts of appeals. 

Senator KYL. Which might suggest some other kind of additional 

administrative remedies? 

Judge SCHROEDER. This is correct. It— 

Senator KYL. If—I am sorry. Go ahead. 

Judge SCHROEDER. Yes, administrative review would be one option. Another that has been suggested is the creation of something 

akin to the Tax Court that would take the cases from the immigration judges to an Article I court and then to an Article III court. 

Senator KYL. Would you treat this as an invitation to submit for 

the record from the court any ideas that you have that you think 

are appropriate coming from the judicial branch for policy making? 

Because it has a direct impact on the functioning of your branch, 

and, therefore, it seems to me a legitimate thing for you to be commenting on. 

Judge SCHROEDER. Well, within the bounds of respecting the 

independence of our two branches, I would be happy to do that. 

And as I indicated, if you settle—once Congress decides what kind 

of policy it wishes to enact, we can work with you on the administrative details so that it can be enforced effectively. And we would 

like to do that. 

Senator KYL. Maybe what we could do is propose some options 

and ask you to comment on them. 

Judge SCHROEDER. That would be helpful. 

Senator KYL. Okay. One thing that struck me, much of the statistical analysis and testimony are variations on themes that have 

been testified to before, and I remember this being said before, but 

it did strike me—and I think, Judge Tallman, this came from you 

regarding collegiality—that there are 150 visiting judges, which 

does detract from the collegiality. And I do remember testimony before that it is really critical for the proper functioning of the court 

to have this concept of collegiality, be able to know each other, to 

work with each other on a continual basis. And it does seem to me 

that that many visiting judges would impede that to some extent. 

If you would like to follow up on that, I would appreciate it. 

Judge TALLMAN. It impedes it in this way: We obviously need to 

have their help given the case load, but if we are bringing in judges 

from outside, then by definition, the panel is not composed of all 

31 

Ninth Circuit judges. So we cannot be spending the same amount 

of time we would be with one another if we didn’t have to rely so 

heavily on visiting judges. 

Senator KYL. I appreciate that. 

Senator Feinstein? 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

No current circuit consists of fewer than three States, and you 

have all read the Commission reports, and you know there is a reason for that. Obviously, if this split before us were to take place, 

it would just be California and Hawaii in a circuit, essentially, and 

very different in that respect. 

Judge O’Scannlain is correct about my strong resistance to a 

split of California. Clearly, if it were to happen here, it would set 

a precedent for it to happen in other ways. 

Judge O’SCANNLAIN. Right, and I respect that, Senator. 

Senator FEINSTEIN. We all know California is a huge State and 

it is growing, and it is going to be bigger, but to date, nobody has 

suggested dividing California. 

I am very curious why you do not consider the White Commission’s comments with respect to maintaining the three—State circuit as, to an extent, dispositive. 

Judge O’SCANNLAIN. Well, Senator, if I may, two points. 

First, I am not sure I agree with you on your statement that no 

circuit has less than three States. The District of Columbia Circuit, 

which is an independent, separate circuit, just like all the rest, only 

has one jurisdiction, and that is the District of Columbia. So there 

is a precedent for a one-jurisdiction circuit. Some people have suggested that the State of California is so large that it should be its 

own circuit. Indeed, if it were its own circuit, it would be, as of day 

one, the largest circuit in the country in terms of case load and 

judges, and it would be unique in that way. 

Now, with respect to the White Commission, don’t forget the 

White Commission created three separate divisions, divisional 

courts, two of which straddled California. There was one for the 

southwest, one for sort of the middle, that would include the northern and eastern districts and put them in two separate divisions 

within our court. So we would be splitting California to that extent. 

Again, the court rejected the White Commission’s recommendation. 

Senator FEINSTEIN. If I can, let me go back to the immigration 

situation, because a 497-percent increase in cases is considerable. 

The question is what to do about it. 

Now, Judge Schroeder referred to setting up some other entity. 

Senator Specter, Mr. Chairman, as you know, had a provision in 

the immigration bill that would automatically take those cases and 

place them elsewhere. 

Are there any other suggestions with respect to this high load of 

immigration cases? And let me ask another question. Where do 

they come from—well, I guess where do they come from is not a 

good question to ask. But are there any other suggestions as to any 

solution with respect to the high immigration case load? Judge 

Thomas? 

Judge THOMAS. Yes. First, our immigration case load came from 

a decision by the Attorney General to process— 

Senator FEINSTEIN. I cannot hear you. I am sorry. 

32 

Judge THOMAS. I am sorry. Our current immigration case load 

came from a decision by the Attorney General to process over 

50,000 cases in 4 months from the Board of Immigration Appeals. 

All indications are that this is a spike, although starting to decline, 

we do not know how long. So we think and hope that it is a bulge 

in cases rather than a permanent situation. 

Interestingly, of our case load, 80 percent of those cases wash out 

before they get to oral argument panels. Either they are procedurally barred or they are jurisdictionally barred. And that is 

where the importance of our staff and triage comes into play, because if the staff can triage 80 percent of the cases before it gets 

to an oral argument panel, that is very significant. 

So in any solution I think we have to maximize our staff resources, but there are two approaches. One, of course, if you create 

a different court, that takes 40 percent of our case load away right 

away. If we just concentrate our resources and try to even improve 

our ability to tackle these cases, then I think in a few years, we 

will be current with the immigration case load by just leaving it 

as it is. 

Senator FEINSTEIN. All right. Now, whatever is done, California 

accounts for 69 percent of the circuit’s appeals, and if size is the 

primary concern with respect to the current Ninth, the current legislation would still leave the Ninth with the largest case load circuit. 

Given the size, wouldn’t a new Ninth have the same alleged 

problems with numbers of judges and case load as the current 

Ninth? 

Judge O’SCANNLAIN. Well, Senator, if I may suggest, if any of 

these options is pursued, either transfer to a central court, such as 

the Federal Circuit, or the creation of perhaps an Article I court 

or another court of immigration appeals, the problem is not going 

to go away. There certainly has been a little bit of a bump because 

of the streamlining, but, on the other hand, given the enforcement 

by the executive in the immigration area, those prosecutions and 

those issues are going to continue to be with us for an indefinite 

period of time. 

Another option would be to sprinkle these immigration cases 

throughout the country so that circuits other than the Ninth and 

the Second would be assigned cases. This can be done—you have 

got the MDL model, the multidistrict litigation model, which could 

be used in that situation. But I would hope that you can look at 

the immigration issue as a separate issue, if that can be done. I 

have no idea where that stands in terms of your agenda this year. 

Senator FEINSTEIN. Thank you. 

Thank you, Mr. Chairman. 

Senator KYL. Thank you. 

We are joined by the Chairman of the Subcommittee on Courts, 

Senator Sessions of Alabama, and if he is not ready, I can go ahead 

with just one question. But if you are, Senator Sessions, the floor 

is yours. 

Senator SESSIONS. Why don’t you go ahead. 

Senator KYL. Well, I have one question. It just takes a little long 

to ask it. This is something that comes out of something that was 

near and dear to the heart of Senator Feinstein and myself, our 

33 

crime victims rights law, and a case in which the Ninth Circuit 

was so slow in performing its function that we finally filed an amicus brief in the case. And on the theory that a picture is worth a 

thousand words and that sometimes something that sort of directly 

impacts you is more meaningful than a lot of statistics, for example, this may suggest one area in which I have noted the difficulty 

of the court in dealing with a case within the time frame it was 

supposed to. 

Under the victims rights law, when there is a writ of mandamus, 

under this particular section, the court is to decide the application 

within 72 hours after the petition is filed. But in the Kenna case, 

instead of that happening, nothing was done with the case for 2 

months. Finally, the Ninth Circuit directed the district court to file 

a response to the petition. Unfortunately, Mr. Kenna was not 

served with that. He finally got a copy from the Ninth Circuit 

clerk’s office. On September 22nd, now 31⁄2 months after his original petition, he filed a request for ruling with the Ninth Circuit, 

reminding the court that almost 4 months had elapsed after the 

court was supposed to have decided the case within a matter of 72 

hours. 

Three weeks later, October 13th, the case was finally referred to 

the Merits Panel, but then instead of expediting the case, the clerk 

ordered it calendared during the week of January 9, 2006—7 

months after the petition for writ of mandamus was filed. 

On December 30th, we finally filed an amicus brief, as I said, on 

behalf of Mr. Kenna. And finally, on January 11, 2006, the case 

was argued. Then on January 20th, 71⁄2 months after the petition 

had been filed, the case was decided. 

I do note and appreciate the fact that in the opinion the court 

noted its error here and said, ‘‘Finally, we recognize under the statute we were required to take up and decide this application forthwith, within 72 hours after the petition had been filed. We acknowledge our regrettable failure to consider the petition within 

the time limits of the statute and apologize to the petitioner for 

this inexcusable delay.’’ 

Obviously, litigants have to abide by the time frames that are set 

forth by the court and by the rules, and I would note that at just 

about exactly the same time that this case was proceeding, a petition was filed in the Second Circuit and was resolved within the 

72-hour period that the statute required. 

Now, obviously, a case like—you know, it is always possible for 

there to be a slip-up, but in the administration of justice, we all 

work really hard to avoid slip-ups because we are dealing with real 

people’s lives, and in this case involving victims of crime who have 

already been victimized once. So the question is not how could this 

happen. I suppose anything—it is possible for a mistake like this 

to be made. But it has certainly made an impression on me as to 

the ability of the court to deal with cases in a speedy way. 

If any of you would like to comment on that, I invite it, but it 

is more in the nature of ‘‘this is one of the things that has kind 

of been sticking in my craw.’’ Yes, Judge Schroeder? 

Judge SCHROEDER. Yes, I would like to comment on that briefly, 

Senator Kyl. That was an unfortunate glitch that happened beVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
34 

cause it was new legislation and our clerk’s office did not understand, did not realize the time limitations on the legislation. 

We have now corrected our procedures so that we are alerted 

when these cases are filed, and that should not happen again. 

Judge THOMAS. In fact, I would add, Senator, that we had three 

of those cases last July. All of them were processed within the 72 

hours. And to get a written published opinion, which is a requirement of the legislation, is quite a feat. But we have now remedied 

that situation, and those cases are getting flagged. My understanding is that the parties in that case did not necessarily flag, 

and the parties may not have been interested in the time limits, 

or at least flag the time limits for us. But it was an error in that 

case, and I think the answer is when we make an error, we try to 

address it. And we have addressed it. 

Senator KYL. Well, I know from the counsel to the parties that 

the parties were very concerned about the lack of timeliness. As I 

said, everybody can make a mistake. The court certainly recognized 

it and made the point. But it does demonstrate that from an administrative standpoint, it slipped through. And at the same time, 

another circuit was handling the case that it had in accordance 

with the legal requirement. 

I actually took a Republican question. Would you like to question 

next, or shall I turn to Senator Sessions? 

Senator FEINSTEIN. Turn to Senator Sessions. 

Senator KYL. Okay. Senator Sessions? 

Senator SESSIONS. Thank you, Senator Kyl and Senator Feinstein. I know you both care about the Ninth Circuit. You have been 

engaged in these issues for many years. I have come to it as Chairman of the Courts Committee with the belief that we ought to have 

a good panel and a good hearing and good testimony and see what 

the facts shake out. And I look up, and this is the same group we 

had before. 

[Laughter.] 

Senator SESSIONS. And I guess that means you are the best of 

the best, with the best perspectives and best insight. 

I just remember very, very vividly testimony from judges in other 

circuits when Senator Grassley chaired the Subcommittee, and 

they were concerned about the growth of the circuit. Judge Tjoflat 

on the Eleventh said that they would be willing to work harder and 

have a higher case load because if you get the number too big, it 

does not work. Some have compared the Ninth Circuit to the House 

of Lords instead of a court. I mean, there are 28 active judges authorized, and we really need more. And you just get so big, that 

finally you are not a court anymore, in my view. And since the old 

Fifth split to the Eleventh and the Fifth, they have been happy 

with that. They would not go back. They are so enthusiastic about 

the collegiality they have been able to maintain, and that allows 

for consistency and uniformity when you are a tighter circuit. And 

when you get bigger, you get panels that, statistically speaking, 

may not represent the full—the heart of where the circuit is, and 

that may well be one reason the circuit has had more difficulties 

in getting its cases affirmed by the Supreme Court, because you 

can get an aberrational panel when you have 30 judges to pick 

from. You may get three that have the most extreme view on one 

35 

particular subject, and that is the one they decide. So it ends up 

with a number of problems. 

So I have concluded, after our hearing, that we should proceed 

forward. I have thought, I say to my colleagues, that perhaps a 

three-way split would be the best because it would have two idealsize circuits, both of which are in growing areas, and it would probably take care of us for 20 or 30 years, maybe, or more hopefully. 

It would still be a large California circuit, and whatever is with it, 

but I do think we need to take that first step in going forward. 

Looking at the case load, for example, I believe, Judge Tallman, 

you submitted this chart. First, I would say that even as currently 

configured and with the number of judges that you have—and I 

know you believe you should have more circuit judges. The case 

load per judge is 595 or 600; whereas, in the Eleventh Circuit it 

is higher, it is 642. So you don’t have the highest case load per 

judge in the country. And I do think we have got—as we work 

through the immigration matter, we have got to figure out a way 

to make the law clearer, and if we do that, I think we will have 

less appeals in the long run, and maybe a spate of them as the law 

is initially contested, but they could decline. 

I am sure you have discussed all the fundamental questions of 

the circuit. I would ask this question, I guess for Judge Schroeder. 

How many new judges—if we did not divide the Ninth Circuit and 

we just left it, how many new judges do you need now? And I am 

sure you probably have a number a little higher than I would 

think, but I know you need some additional judges. What is your 

judgment and what does the AO recommend? 

Judge SCHROEDER. Yes, I am glad you asked that question, Senator Sessions. We have not had a new judgeship on the Ninth Circuit since 1984, and we have requested—and we have never had 

our full 28 authorized judgeships full except for about 5 minutes 

once. And we now have two vacancies. As long as 5 years ago, 

about 5 years ago, before I became chief, we had as many as ten 

vacancies. 

Now, we have asked for a number of years for seven judges. I believe that if the seven judges were added to the circuit, that would 

help—that would enable us to do our job well if the immigration 

cases, as you say, as you indicate, there were a different channel 

for those or they were to diminish, as we think they will. 

So if you were to split the circuit, in order to make the Ninth 

Circuit load equivalent to what the new Twelfth Circuit would be, 

you would have to add somewhere between 13 to 20 judges all to 

the California circuit. 

So that we want to share the load. Administratively, that is our 

goal. And we can share the load, we think, pretty effectively with 

the seven additional judgeships if they get filled. Of course, I am 

not holding my breath for that. 

Senator SESSIONS. Well, I think at some point we have got to 

confront that problem. I think you are at the upper end. You have 

the second heaviest case load per judge in the country, and so we 

need to think about your request. 

Now, I would ask you to comment, and if any of the others 

would, but you have opposed the idea that we would have immigrant appeals go to the Federal Circuit or another type arrangeVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
36 

ment. Wouldn’t that be a real relief to the circuit? And why would 

you oppose that? 

Judge SCHROEDER. I opposed their going to the Federal Circuit 

because the Federal Circuit is already a specialized court with 

other fields. Those judges are not familiar with immigration issues, 

and it is a court that is located in Washington, D.C. It is as far 

away as possible from where the immigration cases emanate. 

But my mind is open as to—I have no fixed solution for this. I 

did not think that the Federal Circuit was a good solution. 

Senator SESSIONS. Any other members of the panel want to comment on that subject? 

Senator KYL. Senator Sessions, I might note that at the very beginning we invited the members of the court to give us their suggestions as to how to deal with these large number of immigration 

appeals, and perhaps the best way to deal with that is to send 

them some options that might come out of our debate about the immigration reform and elicit their reaction to those options. And 

they have agreed to do that for us. 

Senator SESSIONS. You know, the split did not occur after the 

Fifth, the old Fifth split, and the White Commission, I think probably, assuming some political problems out there, proposed this divisional concept, which I am not particularly comfortable with. 

Judge O’Scannlain, would you like to opine on the difference between a two-way or three-way split? I do not know what perspective—I do not remember your perspective on it, but— 

Judge O’SCANNLAIN. Well, in my detailed written testimony, I 

have indicated a fairly thorough analysis of different options. My 

preferred option, as I indicated here, was the Hruska Commission 

report, which was, in effect, followed in the White Commission 

when it decided to split the single circuit into three separate divisions, divisional courts, including two courts that would share California, the third division would be mostly the Northwest. 

I think there are considerations both ways. If you cannot split 

California, maybe the time has come to look at California being its 

own circuit, just like the District of Columbia. That should be examined. 

After that, if we want to get into closer parity with the rest of 

the country, why, it might make sense to have a mountain circuit 

starting from Arizona up to Montana and Idaho, with Nevada. 

That was the bill, actually, that came out of the House in 2004, 

with a Northwest circuit. There is another option which would be 

a Northwest-Southwest. Now, that has been a fairly popular proposal starting with Senator Jackson and Senator Magnuson as far 

back as 1955 when this entire debate kind of got started in a real 

way. So we are at this 50 years now. 

But there are a variety of different ways to go, and I can see 

pluses and minuses on all of them. But I think they all come back 

to your State, Senator Feinstein. California has to be the center of 

the analysis. The rest of us are very logical regions. The Northwest 

is probably the most logical region—Oregon, Washington, Alaska, 

Idaho, and Montana. I think there is almost very broad unanimity 

on that. In fact, we have a division inside our court that represents 

that. But then from there on, I think it is a matter of negotiation, 

as well as analysis in terms of what works. 

37 

Senator SESSIONS. Well, thank you, and I have taken too much 

time. I appreciate your leadership. 

I think we should move forward. That is all I would say. I think 

we need to move this thing to a solution, and I hope that we can 

reach a comfort level in the Senate that will allow that to happen. 

Senator KYL. Senator Sessions, thank you. 

I am going to have to apologize to the panel. Senator Feinstein 

has one final comment or question she would like to pose, but I am 

going to have to leave here. I will turn the meeting over to Senator 

Sessions. We do have one more panel. 

But I appreciate all of you being here to testify. It may have been 

dejavu all over again, but I learn something new each time. 

[Laughter.] 

Senator KYL. So at least I appreciate it very, very much. 

Senator Feinstein, I will turn the microphone over to you now. 

Senator FEINSTEIN. You know, Judge Schroeder very politely said 

that the court has been asking for seven judges and has not gotten 

them. I want to put this on the table. We try, and the reaction that 

comes back from the House is no new judges until the circuit is 

split. Ergo, starve the Ninth Circuit, force it into disrepair, until 

they finally have to admit that it needs a split. 

I want everybody to know I will never, ever go to that. I will 

never, ever let that happen, one way or another. The fair thing, if 

the proponents of a split want a split, is to give the Ninth the 

judges it needs now, and then see if there is still a problem. If 

there is still a problem, then we know something. But, you know, 

15 judges sit en banc. Well, that is not enough. It should be all 28 

or 30 or 35. 

I do not agree with that at all, and I think that there has been 

a basic unfairness in this whole argument, and it is sub rosa, but 

it continues year after year and it is not fair. It is not fair to do 

this to this circuit. And the most cost-efficient way is simply to provide the necessary judges, then make the judgments. Then see 

what the time lags are. Then see how the cases proceed. 

But absent that, I can only believe this is being done with a political motive. If you don’t give the circuit what it needs to be equal 

with other circuits, you do not start out on a level playing field. 

And that is where this discussion is today. It is not a level playing 

field. No circuit is as distressed as the Ninth in terms of vacancies 

and the need to fill them. The longer you keep the vacancies vacant, the more you do not accede to the requests based on case load 

for additional judges, the more you starve the circuit and you increase the problems. And I believe that is the strategy around here, 

and it is a wrong strategy. And some of us cannot accede to that 

strategy. So I think that card has to be put on the table. 

Senator SESSIONS [Presiding.] All right. Thank you. Of course, 

there are other circuits that need judges also, and I would just say 

that is not the Senate’s strategy. 

Senator FEINSTEIN. It is the House strategy, though. 

Senator SESSIONS. It may—I have heard things of that nature 

said. 

[Laughter.] 

Senator SESSIONS. But I do not know that that is the definitive 

issue, and I do not know that—you know, at some point we have 

38 

got to move beyond those intense feelings. I understand your approach to it, Senator Feinstein. I know you care about it, and you 

are not going to be ordered around. And we have got some on the 

other side that will not be ordered around, either. 

Senator FEINSTEIN. Sure. 

Senator SESSIONS. They have hard heads, too. 

So this is an excellent panel. I wish I could have heard all of 

your testimony. Thank you for that. Unless any of you have something you feel like you have to add, we will go to the next panel. 

Thank you for your service to your country and your commitment 

to justice. 

Senator SESSIONS. Our next panel includes Dr. John Eastman, 

the Henry Salvatori Professor of Law and community Service at 

Chapman University School of Law. Prior to joining the Chapman 

faculty in August 1999, he served as a law clerk for Justice Clarence Thomas at the Supreme Court and at the United States Court 

of Appeals. After his clerkships, he practiced with the national law 

firm of Kirkland & Ellis, specializing in civil and constitutional litigation. Prior to law school, he served as Director of Congressional 

and Public Affairs at the U.S. Commission on Civil Rights and was 

a 1990 Congressional candidate. He earned his undergraduate degree at the University of Dallas and J.D. from the University of 

Chicago School of Law, where he graduated with high honors. He 

has a Ph.D. and an M.A. in government from the Claremont Graduate School, with fields of concentration in political philosophy, 

American government, constitutional law, and international relations. That is a lot. 

Mr. EASTMAN. Do I get more than 5 minutes? 

[Laughter.] 

Senator SESSIONS. Mr. Neukom is the Chair of Preston Gates & 

Ellis, LLP. In January of 2004, he was elected to that position. He 

rejoined Preston Gates in the fall of 2002 from his position as Executive Vice President of Law and Corporate Affairs at Microsoft, 

where he spent 17 years managing the company’s legal and government affairs and philanthropic activities. As Microsoft’s lead counsel, he was instrumental in securing the landmark victory in Apple 

v. Microsoft. That was a historic event. And he has led Microsoft’s 

defense in antitrust claims and other actions. He is President-elect 

of the American Bar Association. He earned his A.B. from Dartmouth and his L.L.B. from Stanford. 

Dr. Eastman, we are prepared to hear from you. 

STATEMENT OF JOHN C. EASTMAN, CHAPMAN UNIVERSITY 

SCHOOL OF LAW, ANAHEIM, CALIFORNIA 

Mr. EASTMAN. Thank you, Senator Sessions, Senator Feinstein. 

It is a real honor and pleasure to be here. 

I teach constitutional law at Chapman University in Southern 

California, so I am a constituent of yours, Senator Feinstein. But 

I also run the Center for Constitutional Jurisprudence, which litigates all over the country, but in particular in the Ninth Circuit. 

And so I deal with these questions, and I want to address the notion that this effort to split the Ninth Circuit is political. If it were, 

and if I were politically motivated, most of the judges that tend to 

vote my direction on my cases would be lost from the Ninth Circuit 

39 

that would remain in California, and so I would be on the other 

side of this. So I guess I am speaking against interest here in arguing it is not political. 

I want to focus on the notion of judicial collegiality because I 

think that is a real stake, a real issue here, and I do not think it 

has been addressed in the right terms. By ‘‘collegiality,’’ I do not 

mean the mere exchange of pleasantries. The judges on the Ninth 

Circuit are famous for their collegiality in that sense. What I mean 

is the notion of shared authority that comes from a court. It is the 

idea that judges embody the knowledge that they have a common 

interest in getting the law right, as Judge Harry Edwards noted in 

a 2003 Law Reserve article. 

Collegiality within an appellate panel permits an open, honest, 

and frank discussion of otherwise divisive legal issues without fracturing the unity of the group but, more importantly, I think helps 

get the law right. That familiarity between the judges means that 

there will not be any particular judge who decides to go off solo and 

apply his own personal agendas rather than really making an effort to get the law, as received, correct in their opinions. 

As First Circuit Judge Frank Coffin noted nearly two decades 

ago, while serving as the Chairman of the Committee on the Judicial Branch of the United States Judicial Conference, ‘‘The increased size of courts and heavy workloads mitigate against the 

old-fashioned collegiality that existed when judges sat often with 

each other.’’ And I think this is a huge problem. In my written testimony, I go through several other examples of this. 

In other words, if we are serious about having decisions from 

courts rather than individual decisions from individual judges, the 

size of the court does matter. And the larger you make the court, 

the more number of judges you add, the fewer opportunities they 

have to sit with each other and develop the kind of collegiality that 

I think is necessary to the rule of law. 

Now, the most comprehensive assessment of this was done by 

Judge Richard Posner, a sitting judge on the Seventh Circuit, and 

he has gone through trying to control for every splits on ideology 

and these other things by looking at one of the critical statistics: 

the number of unanimous or summary reversals by courts in the 

country, by the Supreme Court, by a Supreme Court that does not 

often do things unanimously over the last number of decades. And 

the Ninth Circuit is by far the largest reversed court on that, six 

times larger than the next circuit. And I think that, quite frankly, 

is a function of this lack of collegiality in the sense of court building, getting the law right. They do not sit often enough. You heard 

testimony today that they have 150 judges a year from other circuits, district judges sitting by designation. All of that undermines 

the ability of the Ninth Circuit judges to function as a collaborative 

court rather than individuals. And it enhances the prospect that 

those individual decisions will simply get the law so wrong that 

they unanimously get reversed. 

The second thing—and I think the Department of Justice testimony on this was accurate, and I can give you anecdotal stories. 

When I get clients and they say, ‘‘What is the likelihood of success 

on this appeal?’’ I often tell them, ‘‘I can’t tell you that until I know 

what the panel looks like.’’ That is a terrible statement about the 

40 

notion of law in any circuit in the country. And I think practitioners told the White Commission that exists—they have the 

sense that it exists. It is hard to quantify, but they have the sense 

that that exists more often in the Ninth Circuit than anywhere 

else. And I think the Department of Justice testimony—and I look 

forward to the additional information that they provide in response 

to Senator Feinstein’s request—about the number of intra-circuit 

conflicts that are created is important. And it is not just on the 

published decisions. The Ninth Circuit is frequently using unpublished decisions or summary decisions by staff in order to keep up 

with the workload. That is not the way we ought to be looking at 

the implications of justice in this country, and I think the evidence 

is very strong that it is time to split that Ninth Circuit at least into 

two and, I would argue, probably three circuits. 

Thank you. 

[The prepared statement of Mr. Eastman appears as a submission for the record.] 

Senator SESSIONS. Mr. Neukom? 

STATEMENT OF WILLIAM H. NEUKOM, ESQ., PRESTON GATES 

& ELLIS, LLP, SEATTLE, WASHINGTON 

Mr. NEUKOM. Thank you, Senator Sessions, Senator Feinstein. It 

is good to see each of you again. I am appearing as a lawyer who 

has the privilege of representing clients, largely business clients, in 

the Ninth Circuit. 

Senator FEINSTEIN. Could you pull over the mike, please? 

Mr. NEUKOM. Yes, of course. 

Let me suggest, in addition to my written testimony, that there 

are four significant advantages for enterprises of keeping intact the 

Ninth Circuit Court of Appeals. 

First, in a geopolitical era characterized by a global economy, it 

seems to me it is clear that a uniform, stable, and predictable body 

of law in a large and coherent—and I am going to come back to 

that—geographic area is of enormous value. As enterprises plan 

their work and work their plans, they desire as consistent a set of 

rules by which to run their businesses as is possible. It is apparent 

and it is common-sensical that it is more difficult and much more 

expensive to try to manage a business to pockets of law in a geographical region of any size. 

Second, the coastal States of the Ninth Circuit are incubators for 

a huge share of the intellectual property brought to regional and 

national and, indeed, to the world market. Those intellectual property enterprises perform best, they are most efficient, they are 

most productive in an environment of well-developed intellectual 

property rights law. Intellectual property rights law is the means 

by which technological companies can derive value from their inventions. That is how inventors and innovators protect their intellectual property from piracy and counterfeiting. It is how they earn 

a royalty, by permitting others to use their intellectual property, 

how they get a return on their investment. Intellectual property 

rights law is the foundation in a very fundamental sense of a powerful incentive cycle that leads to the creation and the bringing to 

market of useful technology and drives the economy, and will increasingly in the 21st century. And it is this Ninth Circuit, as presVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
41 

ently constituted, this bench, with its experience and its expertise 

in intellectual property rights law that has created an invaluable 

body of law that guides the activities and helps resolves the disputes in the critical sector of intellectual property businesses. 

Third, a unified West Coast jurisprudence of intellectual property 

rights law, of maritime law, of commercial law, encourages commerce and trade between our country and the other countries 

around the Pacific Rim, an area which, by most measures, may be 

the fastest-growing economy in the world. 

And, finally, at a somewhat more conceptual level, if you will, I 

think the history of the judiciary and I think any basic understanding of human nature shows that the convergence on panels 

and in chambers of judges of different backgrounds from a broad 

region and the resulting diverse and broad perspective that they 

bring to their deliberations and to their analyses promotes sound 

reasoning and just results. 

Let me comment on one other notion. It seems to me that the 

theater of this hearing, chock-full of information as it was, is just 

a bit misleading, and I invite the Committee to pay particular attention to the record in its entirety. And I believe that any objective review of the record in its entirety will reflect that the evidence overpoweringly is in support of retaining the Ninth Circuit 

intact for good reasons: because of the quality of its work and because of the efficiency of its administration of its important responsibilities. 

The people who know the most about the Ninth Circuit and 

bringing justice to the parties who appear before the Ninth Circuit, 

the judges on the circuit, the judges in the districts within the circuit, the lawyers and their professional associations who appear as 

advocates before that bench, the law professors who constantly 

analyze and organize the decisions by that bench—all of them, the 

people who know most and best about this vital organ of Government, overwhelmingly endorse the Ninth Circuit in its current configuration. 

Thank you for your attention. 

[The prepared statement of Mr. Neukom appears as a submission 

for the record.] 

Senator SESSIONS. Just briefly, while you mentioned the fact, Mr. 

Neukom, that we are in a global economy and the Ninth Circuit 

involves a lot of international trade and that it is important to 

have uniform, stable, predictable, and coherent opinions, my observation is that is exactly what we are not getting out of the circuit. 

You, Mr. Eastman, raised a point that has been obvious for some 

time that this is the most reversed circuit by the Supreme Court, 

whose duty it is in one sense to maintain uniformity and consistency throughout the land, and it is 6 times as likely to be reversed 

by unanimous decisions. 

So I would ask both of you to make a brief comment on maybe 

Mr. Neukom’s and my disagreement. Mr. Eastman, you start since 

you raised the reversal rate. 

Mr. EASTMAN. Yes, I think that is right. There are two ways to 

look at uniformity. You can have uniformity by having a single circuit, and if it could consistently apply the law within the circuit, 

you would get a greater degree of uniformity. But I think Judge 

42 

Posner’s statistical analysis has demonstrated that is not what we 

are getting out of the Ninth Circuit. And nobody has laid a finger 

on his analysis in criticizing that. We are getting disuniformity 

within the circuit because it is too large. 

But let me add a point to that. If the point we want to have intellectual property—a single body of law because of the importance 

of the technology, we should perhaps add Boston and Northern Virginia to the Ninth Circuit because of their thriving economies in 

that field as well. We do not do that anywhere else in the country, 

and we do not do it for good reason. 

There is an importance to the size of the court that allows you 

to get within a court a judgment that was uniform within the 

court, and then the Supreme Court can deal with inter-circuit conflicts to make sure you get unanimity at that level. 

Senator SESSIONS. Mr. Neukom? 

Mr. NEUKOM. Senator, in terms of consistency, I would invite the 

Committee’s attention to the written testimony of Judge Thomas, 

who I think sets out the evidence quite clearly. I think each of us 

has our opinions. I simply cannot resist the observation that I do 

not hear the uproar from the advocates who appear in front of this 

circuit day in and day out. 

There is a single law professor in front of you today. There is a 

letter from several hundred law professors. You have heard from 

three judges in favor of this legislation from the circuit, two opposed; there are others in the audience who are in favor of keeping 

it intact; and there is the overwhelming majority of the 23 or the 

26 who say keep it as it is. 

I do not see the problem, and we each have our own anecdotal 

evidence, and perhaps better than that. But I think the point is for 

the Committee, with the help of its staff, to consider this record in 

its entirety. And I think what comes out of that kind of an overarching review is that this circuit is exemplary all in, in terms of 

the quality of its decisional process, in terms of the guidance it provides to its constituents within that district, and particularly with 

regard to its efficient and innovative administration. 

Big is not bad. The question is how you manage your size and 

the resources that you— 

Senator SESSIONS. Wouldn’t you agree that an en banc panel of 

nine is more feasible than one of 28? 

Mr. NEUKOM. I think it is, and I think an en banc panel of nine 

judges of the quality that we have in our circuits may be perfectly 

adequate to afford the parties a broader review, a broader perspective review of the merits of an appeal. It is not clear to me where 

the quality leaves off between nine or 15 and 25. 

Senator SESSIONS. Well, you have made a number of points, and 

I would just say that there are two sides to both of those points. 

The intellectual property rights, well, the upper West Coast has a 

strong basis of intellectual property cases, and many of them are 

right there in the Washington-Oregon area. I do not know why 

they would not maintain an expertise. 

Second, as to maritime trade laws, I think there are other circuits that have trade and maritime laws to deal with. They have 

panels more consistent than the Ninth Circuit. And I do not know 

that—it seems to me the fundamental thing that the Ninth Circuit 

43 

seems to lack is the focus on—well, that is probably an unfair 

statement. Let me just say it this way: I believe the circuit ought 

to be committed to getting the case right, what the law says, not 

what their personal view of international trade is or trademark 

cases. And it seems that based on the historical appellate record, 

panels from other circuits get it wrong less often than panels of the 

Ninth Circuit. So I think that is a reason to consider smaller circuits. And, second, it just would strike me, once this decision would 

be made and a division were to occur, if ever it does, that people 

would be really happy with it. They may be objecting right now, 

but I think the judges are all going to be happy, just like the Fifth 

Circuit was when it split. I remember being there when the Eleventh Circuit was started up, and they would never want to go back. 

Senator Feinstein? 

Senator FEINSTEIN. I think this is a very interesting discussion, 

Mr. Chairman, because it is true there is a small coterie of people 

who have been pushing for this split of the Ninth Circuit. You 

know, I have great respect for Judge O’Scannlain. He hangs in 

there like a tiger. His reports are like—you could get a Ph.D. This 

could be a dissertation. And he hangs in, and I respect that and 

appreciate it. I am not being critical. 

On the other hand, there is no pressure that I get anywhere I 

am home for a split in the Ninth Circuit. All the bars are opposed 

to a split. The dominant number of judges are opposed to the split. 

Most of the Governors are opposed to the split. 

This comes, obviously, from somewhere, but in terms of size, it 

is not at all reflective of the circuit. In terms as Mr. Neukom has 

said, it is not reflective of participants in the circuit, professional 

participants. It comes from outside. So when I say it is political, 

because there is no popular support for this, I come to the conclusion it is political within certain circles. 

Now, Mr. Neukom, I think you have raised a very interesting 

point, and I want to explore it a little bit more. Obviously, you have 

represented a very large intellectual property industry in your 

time, and that is Microsoft. Could you be more specific in how the 

Seattle-based companies and the Silicon Valley based companies 

rely on the unity of law and what might happen, if it would happen, if there were not that unity of law? 

Mr. NEUKOM. I would be pleased to, Senator, and I should say, 

as I have in my written testimony, that these are my views and 

do not represent the views of my former employer or my current 

employer. But an example would be, I think, the very contentious 

litigation that has gone on between the Microsoft Corporation and 

some prominent companies in Silicon Valley. If you are trying to 

design a litigation strategy for such a company in that situation, 

and if the case is before a district court in the Northern District 

of California, you are gratified to know that that court will be likely applying the law of the Ninth Circuit, which is law well known 

and understood to you because your company is based in a State 

which is also within the Ninth Circuit. And you are also gratified 

to know that that is a circuit, as I alluded to earlier, which, because of its breadth, certainly all the way up and down the coast— 

and I do not mean to suggest there is not increasing amounts of 

intellectual property being created inland from that coast. But cerVerDate Nov 24 2008 13:02 Feb 09, 2009 Jkt 043383 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43383.TXT SJUD1 PsN: CMORC
44 

tainly it is a powerful incubator of intellectual property, and as a 

result of that, a lot of those cases have come before this circuit, and 

this circuit has become expert in it. 

So you can expect that you will get a fair shake wherever you 

might be, in whatever district court you might be, because you 

know that it will be reviewed and those judges know it will be reviewed by a circuit, and it will be reviewed by a circuit which is 

expert. 

That helps you in terms of predictability and confidence in designing a strategy and advising a client. And what that leads to, 

I think, is less prospect of that sort of litigation and the chance to 

resolve matters earlier. 

The same thing is true in licensing of intellectual property. You 

are going by a set of rules, whether in litigation or in licensing, 

that are relatively uniform, and that is helpful to businesses. That 

increases their efficiency and reduces their cost and lets them pay 

attention to job one, which is creating useful technology that drives 

this economy of ours. 

Senator FEINSTEIN. What would you have done, representing 

Microsoft, if the circuit was split? 

Mr. NEUKOM. I would have cared a lot more which district the 

case was being tried in, and I would have allocated resources to 

trying to determine that forum at the outset. And it would have 

changed the strategy from the beginning. Do you bring a lawsuit 

or respond to a lawsuit? If you respond to a lawsuit, you try in 

some way to have it moved to a different venue. That complicates 

things enormously and increases the expense. 

Senator FEINSTEIN. Of course, forum shopping has been one of 

my objections to the split of California that you would have real 

conflicts between the north and the south as to—and you could 

have conceivably one decision in the southern part of the State and 

another decision in the northern part of the State, which would not 

make much sense. 

Do you have any specific anecdotal evidence with respect to maritime law and, again, the concept of unit? 

Mr. NEUKOM. I do not have any before me. I would be pleased 

to look into that subject and to bring some to the Committee’s attention, if you think that would be helpful. 

To the point that was made earlier, I think that if we could do 

it over again, and if we were trying to get the most out of our opportunities in the Atlantic Rim—forgive me for coining a phrase, 

ineptly—I think it is just obviously more—it is easier to do business when you have a uniform set of rules in a coast which is doing 

trade with countries off of that coast. And so, yes, we have a number of circuits on the East Coast, going from Maine to Texas, if you 

will. That does complicate, I think, trade on the East Coast in a 

way that having the uniformity of the West Coast maritime law 

makes it simpler and more efficient to do trade and to provoke 

trade and commerce with Pacific Rim countries. 

Senator FEINSTEIN. Thank you. My time is up. 

Thanks, Mr. Chairman. 

Senator SESSIONS. One thing I would add that I think is important is that I assume when the circuit splits, if it were to, we would 

by law or the circuit would itself adopt, as the Eleventh Circuit did, 

45 

the authoritative law of the old Fifth, and you would adopt as authoritative the Ninth Circuit law. And I think that would give confidence that there is not going to be any real change. 

And, second, I really want to object to the concept that every circuit is independent and has all kinds of different bodies of law. You 

know, we have just one Constitution. We have one body of Federal 

statutory law. And in theory and our ideal is that there is a fair 

interpretation of that and everybody ought to reach the same interpretation and we ought not to have a whole bunch of different theories. 

The problem, as I understand it, with the Ninth is that they 

have had this extraordinary number of reversals by a unanimous 

U.S. Supreme Court because of the large number of judges on the 

court, they have been consistently or too frequently unable to 

render opinions that are deemed by the U.S. Supreme Court to be 

faithful followers of the law. And I think the numbers and statistics indicate that. 

Yes, there has been some concern about the Ninth Circuit, and 

I guess the circuit and others may have a defensive feeling about 

it. I have become more convinced that the size maybe is a problem 

more than ideology. But, regardless, I think we ought to move forward with this. I think we ought to listen to Senator Feinstein, because we always do, because she is thoughtful on it. And we appreciate both of you for your insights into subject. 

If there is nothing else, we will stand adjourned. Thank you. 

[Whereupon, at 4:34 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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531 

Æ 


43383.486