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24–710 PDF 2005

S. HRG. 109–190

REVISITING PROPOSALS TO SPLIT THE NINTH

CIRCUIT: AN INEVITABLE SOLUTION TO A

GROWING PROBLEM

HEARING

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

OCTOBER 26, 2005

Serial No. J–109–47

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 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

JEFF SESSIONS, Alabama, Chairman 

ARLEN SPECTER, Pennsylvania 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

CHARLES E. SCHUMER, New York 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

WILLIAM SMITH, Majority Chief Counsel 

PREET BHARARA, Democratic Chief Counsel 

(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 ................. 4

prepared statement .......................................................................................... 53

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 7

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

statement .............................................................................................................. 85

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

prepared statement .......................................................................................... 134

WITNESSES 

Ensign, Hon. John, a U.S. Senator from the State of Nevada ............................. 11

Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court, Southern District of California, San Diego, California ........................................................... 42

Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, Fairbanks, Alaska .................................................................................. 36

Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, 

Pasadena, California ............................................................................................ 20

Murkoski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................... 9

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

Circuit, Portland, Oregon .................................................................................... 13

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

Arizona .................................................................................................................. 38

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

Phoenix, Arizona .................................................................................................. 17

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

Circuit, Seattle, Washington ............................................................................... 15

Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Billings, Montana ........................................................................................ 40

SUBMISSIONS FOR THE RECORD 

Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court, Southern District of California, San Diego, California, prepared statement ........................ 55

Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for the Ninth 

Circuit, Fairbanks, Alaska, prepared statement ............................................... 57

Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, 

Pasadena, California, prepared statement ......................................................... 78

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

statement .............................................................................................................. 87

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

Circuit, Portland, Oregon, prepared statement ................................................. 89

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

Arizona, prepared statement ............................................................................... 104

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

Phoenix, Arizona, prepared statement ............................................................... 129

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

Circuit, Seattle, Washington, prepared statement ............................................ 149

Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, Billings, Montana, prepared statement ..................................................... 168

United States Court of Appeals for the Ninth Circuit Judges’ Vote on Circuit 

Division, table ....................................................................................................... 193

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REVISITING PROPOSALS TO SPLIT THE 

NINTH CIRCUIT: AN INEVITABLE SOLUTION 

TO A GROWING PROBLEM 

WEDNESDAY, OCTOBER 26, 2005 

U.S. SENATE, 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE

COURTS, OF THE COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Jeff Sessions (Chairman of the Subcommittee) presiding. 

Present: Senators Sessions, Kyl, and Feinstein. 

Also present: Senators Murkowski and Ensign. 

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

SENATOR FROM THE STATE OF ALABAMA 

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

pleased to convene this hearing to consider a division of the Ninth 

Circuit. 

You might say, here we go again. It has been a year and a half 

since we last discussed this topic in the Subcommittee and I am 

looking forward to hearing the witnesses and their testimonies, all 

of whom have traveled a long way and have dedicated, many of 

you, quite a lot of hours in personal time and attention to develop 

your well-researched opinions on the topic before us today. 

I appreciate Senator Feinstein for her interest in this. We work 

together on the Judiciary Committee. No one works harder or is 

more committed to doing the right thing and we are delighted that 

you could be with us, you and some of our other members who will 

probably appear before long that are interested in the Ninth Circuit, Senators who represent States in the Ninth Circuit. 

So we are eager to hear the opinions of the distinguished jurists 

before us. It is going to be very helpful to us. 

It is, however, the constitutional duty of the Congressional 

branch, the legislative branch, to create such inferior courts, quote, 

‘‘as the Congress may from time to time ordain and establish,’’ Article III, Section 1 of the Constitution. So it is with this constitutional duty in mind we have convened today’s hearing. Our question is whether the enormous size of the Ninth Circuit is an impediment to the administration of justice and whether a division of 

the circuit would enhance justice. 

2

The division of circuits has been a normal and natural evolution 

of judicial organization in our country and it has succeeded, I believe, each time it has been tried. Most recently, Congress recognized this need when it decided to split the Fifth Circuit into two 

separate courts of appeals. In 1973, the Commission on Revision of 

the Federal Court Appellate System, the Hruska Commission, recommended that the Fifth and Ninth Circuits be split. 

In 1980, the Congress split only the Fifth, carving out a new 

11th Circuit, and I think I told you last time, as a new U.S. Attorney, I was in Atlanta at the formation ceremony of that 11th Circuit. Judge John Godbold, who had been the Chief Judge of the old 

Fifth, supported the division and became the new Chief at the 

11th. I think that all those judges have felt very good about that 

division in the years since. The recommendation, however, to divide 

the Ninth Circuit was not acted upon. 

In the year prior to this division, for example, the old Fifth Circuit’s 26 judges disposed of 4,717 appeals. In 1995, the combined 

29 judges from the old Fifth and the 11th disposed of nearly triple 

that number of appeals, 12,401. In a Montana Law Review article 

by Ninth Circuit Senator Conrad Burns, he noted, quote, ‘‘tripling 

the output of the Fifth Circuit while only adding three new judgeships certainly indicates that splitting the Fifth Circuit yielded a 

long-term benefit for all.’’ 

I will add that the testimony before this Subcommittee several 

years ago by Chief Judge Gerald Tjoflat of the 11th Circuit was unequivocal. He said that their current level of harmony and 

collegiality and efficiency would not be possible in a much larger 

circuit. As a matter of fact, he was dubious of even taking new 

judges. He would rather the workload go up to keep the numbers 

smaller. 

So today, we must face the problem of the unprecedented size of 

the Ninth Circuit and consider the options to improve administration of justice. 

The Ninth Circuit covers 40 percent of our country’s land mass 

and stretches from Northern Alaska, and Judge, we are glad to 

have you down from Fairbanks, to the Mexican border. It encompasses more States than any of the other 11 circuits and manages 

almost one-fourth of the caseload of the whole United States, 

14,800 to 63,000 total filings of the other circuits. 

The Ninth Circuit claims one-fifth of the nation’s population, 58 

million, within its jurisdiction. That is almost three times the average population of any other circuit, or the other circuits. Though 

the Fifth Circuit was split 25 years ago, largely due to its size, the 

Ninth Circuit currently has almost the same population as the current Fifth and 11th Circuits, both of which have also grown. Today, 

the Ninth Circuit has 58 million people while the 11th and Fifth 

Circuits together have 60. 

At our April 2004 hearing, we learned a lot about the numbers 

impacting the Ninth Circuit. Today, those numbers are still dramatic. The Ninth Circuit has 28 authorized judgeships, 24 active 

and four vacancies, and 23 senior judges, for a total of 51 judges. 

That amounts to 11 more active judgeships than the next-largest 

circuit, and it is more than double the average number of authorized judgeships in the other circuits. If you add senior judges to the 

3

authorized judgeship numbers, the Ninth Circuit has 24 more 

judges than the total number of the next-largest circuit. 

As of June 30, 2005, the Ninth Circuit had more than triple the 

number of appeals filed in 2005 than the average of all the other 

circuits and has 6,000 more filings in 2005 than the next busiest 

circuit. Though the average caseload increase between 2000 and 

2005 for a circuit court was just over 14 percent, the Ninth Circuit’s caseload increase was by almost 70 percent, which is a really 

stunning figure to me. During that same time—I will skip that. 

And the rate of increase has continued steadily. From 1997 to 

2003, the Ninth Circuit caseload bore a 48.1 percent increase. Now, 

it is a 70 percent increase. It is still going up. 

The large number of judges and the caseload burdens do appear 

to have impaired the administration of justice in the circuit. The 

Ninth’s efficiency in deciding appeals, that is the time the court 

takes between the filing of a notice of appeal and the final disposition, has consistently lagged behind other circuits. In 2003, for example, the Ninth Circuit had 418 cases pending for 3 months or 

more, almost the same as the next five circuits combined. The next 

highest circuit had 98 such cases. 

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

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

the Federal system combined, with the next highest circuit at a 

mere 19 cases. 

According to the latest statistics, the Ninth Circuit takes almost 

40 percent longer to dispose of an appeal than the average of all 

of the other circuits. The Ninth takes 15.4 months and the average 

is 11.1 months. Please note that this delay cannot be explained 

solely by a lack of judgeships, because although the caseload for 

the Ninth is high—it is high—several other circuits have higher 

caseloads per judge than the Ninth. 

I would also note, time of disposition is important to litigants. 

Huge impacts are at stake as a court’s cases sit on that docket. I 

would like to see the average of 11.1 months be reduced, frankly, 

and I think the addition to 15 is a significant concern. 

The limited en banc procedures employed by the Ninth Circuit, 

coupled with the large number of public opinions issued each year, 

make it impossible for the Ninth to speak with clarity and consistency, it seems to me. A circuit with as many judges and as many 

opinions as the Ninth Circuit has loses collegiality and unity. Additionally, the Ninth Circuit’s limited en banc procedures have permitted a random draw of ten judges plus the Chief Judge to be the 

final review of a three-judge panel decision. This can result and 

has resulted in a mere six judges making the law for the entire circuit. Even though the circuit has recently voted to increase the 

number of judges that sit en banc to 15, that number still allows 

a mere eight judges to make the law for the entire circuit. In all 

other circuits, en banc means en banc, what it always has meant, 

the full court. 

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

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

abreast of the law. In 2004 alone, the Ninth Circuit published 691 

decisions. That is over 60 a month. 

4

These factors, loss of collegiality, the limited en banc, and the inability to monitor new law, undermine the goal of certainty in the 

law. I hope that each of the Ninth Circuit judges testifying before 

us today will speak to these factors and tell us how they impact 

the Ninth Circuit’s ability to maintain clear and consistent law in 

the circuit. 

[The prepared statement of Chairman Sessions appears as a submission for the record.] 

Chairman SESSIONS. Now, three of my Ninth Circuit colleagues 

are here today, or at least two—I guess three counting Senator 

Feinstein, and I think maybe another one will show up, to help us 

explore the issues surrounding the decision to split the Ninth Circuit. 

Senator Lisa Murkowski of Alaska has been a leader in addressing reorganization of the Ninth Circuit and has introduced legislation to restructure the circuit both in this Congress and in the last. 

Her comments based on her experience as a Senator from the 

Northwest and as a lawyer who practiced within the Ninth Circuit 

will give us a useful context for understanding the issues. 

I also see my colleague on the Judiciary Committee, Senator Kyl 

here, who has not only argued cases before the Ninth Circuit, on 

numerous occasions, he has argued a bunch of cases before the U.S. 

Supreme Court. He is clearly our most experienced attorney probably in the Senate, and Jon, we are glad to have you here. I know 

this is a matter close to your heart and we look forward to hearing 

you. 

Senator Feinstein, thank you for your leadership on these issues. 

I know you have watched it very closely over the years and we are 

delighted to hear from you at this time, and then we will go to Senator Kyl and Senator Murkowski. 

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

FROM THE STATE OF CALIFORNIA 

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

I would like to welcome each of the judges that is here. It is a long 

trip from the West Coast, and so we really appreciate it. I would 

like to acknowledge the fact that today is the Chief Judge’s 40th 

wedding anniversary and guess where she is, right here, and so— 

[Laughter.] 

Chairman SESSIONS. We are impressed. 

Senator FEINSTEIN. Thank you very, very much for being here. 

As the Chairman has said, the Ninth Circuit is the largest circuit 

court of appeals in the Nation in both population and caseload. Advocates for splitting the Ninth Circuit often cite the size as a basis 

for dividing it. However, I think what matters is not the size of the 

Ninth, but whether the Ninth meets its charge of providing justice 

to those living in the States. The current Ninth Circuit, I believe, 

achieves this goal. 

As I have looked at the various proposals over the years that 

have come before this Committee, splitting the Ninth is a lose-lose 

proposition. There are clear financial costs to the split. The Administrative Office of the Courts has submitted documentation. I will 

speak about that in a few minutes. And there are clear and dramatic costs to the administration of justice. 

5

The uniformity of law in the West is a key advantage of the 

Ninth, as large as it is. It provides consistency among Western 

States that share many common concerns. For example, splitting 

the circuit could result in one interpretation of a law governing 

trade with Mexico in California and a different one in Arizona, or 

in the application of environmental regulations one way on the 

California side of Lake Tahoe and another way on the Nevada side. 

The efficiency of the Ninth is also a significant consideration. As 

presently constituted, the Ninth is one of the most efficient courts 

of appeals in the nation. Splitting the Ninth Circuit into two or 

even three courts of appeals would require the creation of new and 

costly bureaucracies to administer these new courts, thereby losing 

the economy of scale which has been achieved by having a single 

administration tending to the Federal courts of the Ninth Circuit. 

Dividing up the Ninth Circuit would also require additional Federal funds for new or expanded courthouses and administrative 

buildings, as existing judicial facilities would be insufficient for the 

new circuit or circuits. 

Yesterday, the Administrative Office of the United States Courts 

provided me with a letter estimating the costs for splitting the 

Ninth Circuit under S. 1845, which would split the Ninth Circuit 

into the Ninth and 12th Circuits. The Administrative Office estimates that the split to two circuits would have a startup cost of 

$95,855,172 and would have $15, almost $16 in annual new recurring costs. 

In a two-way split with a circuit headquarters in Phoenix, with the new judgeships, the cost is $15.9 million, the startup cost 

$95,800,000. The two-way split with the 12th Circuit headquarters 

in Seattle, with new judgeships, the cost is $13,140,049 and the 

startup costs $13,815,801. The cost of the seven additional judgeships in annual recurring costs is $5.656 million, with startup costs 

of $1.156 million. This is a rather lengthy letter and I would like 

to place it in the record so that everybody could have a chance of 

reviewing it. 

But let me summarize by saying these are substantial costs, particularly considering that the judiciary budget is already stretched 

thin. 

Finally, one must consider what organization of the Ninth Circuit—must consider that it will be fair to all of the States of the 

current Ninth. The plan to split the Ninth leaves the States remaining in the Ninth with a far higher caseload per judge than 

those States that would move to a new 12th or 13th Circuit. They 

become easy. You can put your feet up on the desk, because they 

would have very few cases. That is the bottom line. 

Under the current proposals, California and Hawaii would be left 

in the Ninth, while Arizona, Nevada, Idaho, Montana, Oregon, 

Washington, and Alaska would move to a new circuit or circuits. 

These proposals would create nice sinecures with low caseloads for 

judges in the newly created 12th or 13th Circuit but would disadvantage what would remain in the largest circuit in the nation. 

The new Ninth would still have 72 percent of the cases in the 

old Ninth. However, even with the addition of the five permanent 

and two temporary judgeships proposed in the two bills before the 

Senate, the new Ninth Circuit would have only 60 percent of the 

6

judges. So they would have 72 percent of the caseload, but 60 percent of the judges. Is this fair? I don’t think so. 

The caseload in the new Ninth would be 536 cases per judge as 

opposed to 317 cases per judge for the proposed 12th. This would 

leave judges in the Ninth with 219 more cases per judge. This is 

simply not a fair distribution of judicial resources. So we create all 

this new additional courthouses, administration, circuits, and yet 

72 percent of the cases remain in the Ninth. 

For the judges in the new Ninth to have a comparable caseload 

to judges in the new 12th, the Ninth would need an additional 14 

judges on top of the five permanent and two temporary judges created by the bills before the Committee. In total, 21 new judges 

would need to be added to the Ninth Circuit for a split to be fair. 

Now, you can be sure that representing California, I am not going 

to let an unfair distribution of caseload happen. I am just not going 

to do it. This would entail its own problems and costs and it highlights the difficulties created by proposals to split the Ninth. 

Opposition to splitting the Ninth comes from judges and State 

bar associations that would move into a proposed new circuit as 

well as those that would remain in the Ninth Circuit. Only three 

of the active judges on the Ninth Circuit, as far as I know, favor 

splitting the circuit, and we are going to hear from one today. He 

is very respected. I have had an opportunity of having at least an 

hour with him to discuss this, Judge O’Scannlain in San Francisco, 

and I very much appreciate his point of view. I thought a lot about 

it. But unless you want to guarantee those 21 new judges for the 

Ninth and an equal caseload across the field, I would be foolish to 

let a split happen to the circuit that I represent. 

Additionally, the bar associations of Arizona, of Washington, of 

Montana, and Hawaii have all voiced their opposition to breaking 

up the Ninth Circuit. Washington State says they strongly oppose 

both bills. We believe there is no legitimate reason to split this jurisdiction, and certainly no reason to incur the very substantial 

costs that such a split will generate. We further believe that our 

democratic process demands formal hearings on this matter, which, 

of course, we are having. 

It says that the Washington State Bar debated the issues of size, 

regional differences among the States, judicial collegiality, and necessary consistency in rulings. The Board of Governors of our organization unanimously concluded that splitting the Ninth would not 

serve the interests of justice or the citizens of the State of Washington. 

The State Bar of Montana has passed a resolution which says in 

a ‘‘whereas’’ clause, a divided circuit would remove the numerous 

benefits which Montana enjoys as a part of the United States Court 

of Appeals for the Ninth, and whereas a divided circuit would result in additional one-time construction and division costs and increased annual administrative expenses, et cetera, they oppose it. 

The Hawaii State Bar says they believe the composition of the 

Ninth serves the public well, representing as it does diverse demographic areas as well as a broad range of political and economic 

constituencies. 

And the Arizona Bar says, at its regular meeting in Phoenix on 

August 19 of this year, the State Bar Board of Governors analyzed 

7

the proposals to reorganize the Ninth. Further, the Board discussed 

how the bar is served by the current configuration and considered 

the fiscal impact of splitting the circuit. The Board voted to reaffirm its longstanding position to oppose splitting the Ninth Circuit. 

I would like to ask that these letters also be included in the file. 

Chairman SESSIONS. We will make them a part of the record. 

Senator FEINSTEIN. So unless somebody can guarantee me that 

there will be 21 new judges and an equal caseload spread, this 

thing doesn’t even get to first base with me because I think we 

hurt the administration of justice, we create new costs, and we 

don’t even the caseload, and I thank you very much. 

Chairman SESSIONS. Thank you, Senator Feinstein. They are not 

all equal now, that is for sure, but we probably should look at that 

more. 

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

Chairman SESSIONS. Senator Kyl, and Senator Ensign, did he 

come in? Oh, there you are. Do you want to stay there or would 

you like to join us? You can stay right there, if you would like. 

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

STATE OF ARIZONA 

Senator KYL. Mr. Chairman, I will just be very brief because we 

really do want to hear from our witnesses and also because after 

I have heard an argument such as that just delivered by Senator 

Feinstein, my lawyer juices flow. I immediately want to take the 

other side. 

I would like, first of all, Senator Feinstein, to assure you that as 

of right now, I guarantee you that there will be an equal number 

of judges with a caseload that is essentially identical. Are we on 

first base? 

Senator FEINSTEIN. Well, it is— 

[Laughter.] 

Senator KYL. You don’t need to answer that. I am not the cross 

examiner and you are not the witness. Senator Feinstein, I just— 

Senator FEINSTEIN. If you make the guarantee— 

Senator KYL. Yes, if I can make the guarantee. I just conducted 

a— 

Chairman SESSIONS. You two have made good partners on a lot 

of matters and maybe you yet can make partnership on this one. 

Senator KYL. Let me just speak to that for a moment, because 

we are—Senator Murkowski, Senator Ensign, and the two of us, of 

course, all have a dog in this hunt, being that we represent Ninth 

Circuit States. It is important to us. We do listen to our lawyers 

and judges, although I would say polls of lawyers and judges, while 

probative, aren’t necessarily dispositive given our responsibilities 

that extend beyond representing our colleagues in the bar or on the 

bench. 

But we have worked together on a lot of things and I have made 

it clear that I understand that Arizonans are of two minds on this. 

I have, at one time or another, had different views on this subject. 

I find that a lot of the arguments just remind me of when I practiced law. When a lawyer passionately believes in the cause of a 

client, you can make great arguments on both sides. 

8

But I think there is a lot about the arguments that is not so 

great. What I have told Senator Feinstein privately, I will tell all 

of you, and that is that she has a big stake in this. California is 

the big elephant in the room, if you want to put it that way, and 

it cannot be—we can’t override the interests of a State like California, nor should one State dominate over all others. There is 

going to be a lot of give and take here. We are all going to work 

with each other and try to come to a conclusion that represents the 

best interests of our constituents. 

So I don’t view this as just a majority-minority thing in terms 

of political parties, nor do I think one State should dominate, nor 

do I think all the other States should join and pick on California. 

And I do believe that if there is to be a division, it needs to be done 

fairly, and since caseload is one of the dominant factors here, there 

does need to be an appropriate relationship between the judges and 

the caseload and that would mean a fair division along the line 

that Senator Feinstein suggested. 

But here is what I will close with. I know that for many of you, 

this has been going on a long time, and when I first came to the 

Senate, we immediately began hearings on this subject. So I have 

been involved in it for a long time. But don’t take the fact that 

there are a couple of bills out here as evidence that this is all 

locked in stone. For example, arguments about cost are not very 

persuasive to me because I don’t think you have got it right in 

terms of what the costs are. You do have to take what is in front 

of you in terms of a bill’s language, and I understand that, and so 

you have to figure out, all right, if that is where the head of the 

circuit is and lawyers are going to be arguing in these two other 

cities or whatever, what might that cost? But there isn’t a single 

new courthouse that has to be built. 

So let us be realistic about costs. I know opponents love to talk 

about costs. I would just recommend to you that you get a little bit 

more realistic about that. Just like proponents talk about the politics of it, I would suggest we get the politics out of it right now. 

I don’t know what the politics of two new circuits are going to be, 

and in one sense, that ought not to be the consideration here. So 

there are things that advocates love to talk about that I think on 

the Committee here we need to cull out of the discussion. 

Let me just say that I see this as a process involving both 

Houses of Congress, both parties. I really commend the Chairman 

for having this Subcommittee hearing. He and his staff have done 

a lot of work, and all of us, I think, are going to have to discuss 

this. We are going to have to visit with all of you. We are going 

to have to take your arguments on board and think it through very 

carefully and try to come out with what we think is the right answer and the fairest answer if there is to be a division. If everyone 

will just take a deep breath and look at this in a realistic and not 

an advocate way, I think we just might be able to come to some 

conclusions that are agreed to, for the most part, by most people. 

And finally, I thank everybody for being here. I know it was very 

difficult, especially in the case of Chief Judge Schroeder, who not 

only has personal matters but other matters to attend to and I 

think it involves a red-eye either last night or tonight. So I know 

how important this is to all of you and I really do appreciate the 

9

interest that you have had. Please continue to talk to us. I appreciate your being here today, and let us all just handle this in a 

problem solving way. How is that? Thank you, Mr. Chairman. 

Chairman SESSIONS. Well said. 

Senator Murkowski? 

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

FROM THE STATE OF ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman, and thank 

you— 

Chairman SESSIONS. I will also note Senator Murkowski is a 

practicing lawyer in Alaska and has herself quite a bit of experience in these matters. 

Senator MURKOWSKI. Thank you. 

Senator KYL. Might I, with your indulgence, correct the record? 

I would not want the record to go uncorrected. I have briefed a lot 

of cases to the Supreme Court. Only three have seen oral argument. However, all three of my clients were the prevailing party. 

[Laughter.] 

Chairman SESSIONS. Let me ask you, Senator, is there any other 

Senator who has argued three cases in the U.S. Supreme Court? 

Senator KYL. No, I don’t think so, but— 

Chairman SESSIONS. Well, then I wasn’t incorrect. 

[Laughter.] 

Senator MURKOWSKI. Humility and modesty gets you everywhere. 

I want to thank you, Mr. Chairman, for the invitation to be with 

you in this Committee today. I also want to welcome all of the 

judges that have taken the time to be with us and I want to extend 

a special welcome to my judge representing us in Alaska, Judge 

Andrew Kleinfeld. I appreciate you making the long trek down. 

As Senators from the West, this is an issue that has been discussed a great deal. I think there has long been a focus on the 

Ninth Circuit and its effectiveness and its efficiency as a circuit 

court of appeals. Senator Ensign and I have come at this issue, 

both of us with a little different approach and joined together in 

introducing S. 1824, the Circuit Court of Appeals Restructuring 

and Modernization Act of 2005. I don’t know whether this is a 

nudge to California, but I will note that the acronym is CCARMA, 

so for whatever that is worth. 

[Laughter.] 

Senator MURKOWSKI. You ought to appreciate that in California. 

But Senator Ensign and I looked at this issue, as I say, perhaps 

from a little different perspective, but we recognize that in order 

to advance this, in order to get to a place where I think we can 

see real efficiencies and see real effectiveness within the court in 

addressing the ever-increasing caseload, that we must do something to move forward with a division of the Ninth Circuit. 

Mr. Chairman, you have noted all of the statistics, the geographic size, nearly 40 percent of the geographic area of the United 

States, the population serving 58 million people more than double 

the size of the other circuits, and then the emphasis and the focus 

on the caseload, and the fact that the Ninth Circuit docket is ever 

increasing. 

10

Last year, it had nearly a 60 percent higher caseload than the 

next largest circuit. Immigration cases alone—and I find this figure 

absolutely staggering—immigration cases alone have increased by 

an astounding 463 percent. This causes delays in the circuit, and 

as you have noted, the average time for final disposition of a case 

is 5 months longer than the national average. 

Now, some on this panel may argue that the Ninth Circuit is not 

inefficient. They will defend the court. They will say that the State 

improvements have been made to the lengthy period in which a 

case is dispensed, and I truly do applaud the efforts of the court, 

the very hard work and all that has gone into that. But we need 

to recognize, you can tread water for a while, but I think in the 

instance of the Ninth Circuit, the tidal wave is coming and it is a 

tidal wave that can’t be stopped. It is a tidal wave called population growth. 

Mr. Chairman, I have got a couple charts here. The Ninth Circuit—I have already said this—has a population more than double 

of most of the circuits, but it doesn’t stop there. The Ninth Circuit 

also contains the fastest-growing States in the nation. So if you 

look at the chart, California is the first largest, Hawaii is the third, 

Arizona the fourth, Nevada the fifth, Idaho the sixth, Alaska the 

eighth. The numbers speak for themselves. 

Right now, we have a caseload that is overwhelming, but with 

the population and the demographics in the area, we can only anticipate that it gets worse. We can’t sit back and watch these warning signs without acting. It would be irresponsible for us not to act, 

and I believe it would misuse Congress’s constitutional authority to 

effectively manage the courts if we do not act. 

So what we have done with CCARMA is what I believe is sensible reorganization of the Ninth Circuit, dividing it into the Ninth 

and into the new 12th. The distances and populations will be more 

proportionate. It creates circuits with more manageable populations and more manageable travel distance, which I think will reduce wasted time and money spent on judicial travel. 

The caseload will be more manageable, and this is a point that 

goes directly to Senator Feinstein’s concern, and very real and very 

legitimate. We must do what we can to make the caseloads more 

manageable. A smaller circuit will mean a lower volume of caseload. The reality, as has been said, California, as the largest State, 

and California, as the fastest growing State, is going to have an exceedingly large caseload. But anything that we can do to help reduce that is a step that we should take. Reductions in caseload will 

improve the uniformity and the consistency in case law. 

So this legislation that Senator Ensign and I have moved forward may not be the only way to divide the circuit, but I do believe 

that it is a sensible division. I think it is a solution that is long 

overdue. As you mentioned, we have had precedents in dividing 

both the Fifth and the Eighth Circuits and the reasons for doing 

that were just exactly what we are faced with today in the Ninth, 

responding to a caseload and a population growth. 

We must recognize that the direction that we are taking in the 

West with our growing population, recognizing the huge caseload, 

the 58 million people that are being served right now, we have got 

a responsibility. We cannot wait. We have all heard the phrase, 

11

‘‘Justice delayed is justice denied,’’ and I think in the Ninth Circuit 

it is time we figure out how we make that accommodation, make 

the split to provide for justice in the Western States. 

So I appreciate the Committee taking the time to review this and 

look forward to working with you and all the other members as we 

move this forward. 

[The prepared statement of Senator Murkowski appears as a 

submission for the record.] 

Chairman SESSIONS. Thank you, Senator Murkowski. You have 

put forth legislation. You have talked with other Senators and been 

accommodating and tried to work with other Senators to develop 

the best possible legislation. You have been open minded about 

that and we thank you. 

Senator Ensign, likewise, has felt strongly about this issue and 

has worked diligently to consider every possible suggestion. I guess 

you and Senator Murkowski are together now on your suggestions, 

so Senator Ensign, we are delighted to have you to talk about your 

circuit, the Ninth Circuit. 

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

THE STATE OF NEVADA 

Senator ENSIGN. Thank you very much, Mr. Chairman and Senator Feinstein. I appreciate the comments that you made. I want 

to associate myself with the comments of the Senator from Alaska. 

A lot of the points that she had made, I think are right on target. 

But I also want to address to Senator Feinstein that this is not 

about attacking the Ninth Circuit. It is not about attacking the 

State of California. 

The reality is, we have to ask ourselves why do we have the circuits that we have today? Why don’t we just have one or two or 

just a few circuits around the country? The reason we add circuits 

or we divide circuits is for more efficient management. Companies 

do this. There are all kinds of reasons for efficiencies, and what has 

been laid out today, whether it is delays, whether it is number of 

caseloads, whatever it is, whatever is happening today, I mean, we 

understand. 

My State is the fastest growing rate-wise. California is the fastest growing as far as total population. The number of people, that 

is not going to change. The West is going to continue to be the fastest growing area in the United States. When we have the populations that we have today, and knowing that this situation is 

going to continue to get worse, it seems to me that without splitting the circuit, the burden that is going to be put on the courts, 

and therefore the burden on our citizens for delaying their justice 

is going to continue to get worse in the future. 

Senator Murkowski and I, we had different approaches. Her approach last time was a reasonable approach. I thought my approach last time was a reasonable approach. I obviously liked my 

approach last time better than this time, but we have been willing 

to compromise. We came together on legislation and we are both 

open to changing the legislation if people have better ideas. We 

want to be open to the marketplace of ideas on restructuring the 

Ninth Circuit. But to be wed to say that it is functioning well today 

and cannot be improved by splitting it up, I think is closed minded. 

12

When I first was elected to the House of Representatives, this 

was being talked about back then because the West was so fast 

growing back then. And I remember talking to the judges in the 

State of Nevada, and unanimously, they were opposed to splitting 

the Ninth Circuit. Well, today, as far as the District of Nevada, 

every single one of the judges is for splitting the Ninth Circuit, 

every single one of them. And one of the two on the Ninth Circuit 

are for splitting from my State. 

So the judges have come a long way in changing their minds because they are seeing the realities of the way that the court is functioning. So I know there are differences of opinion. I guess being 

the only non-lawyer here, I don’t have the experience in the courtroom, but I have the experience listening to my constituents and 

I am here to represent them to say that we would like to see faster 

justice done in the courts through a more efficiently run Ninth Circuit. I believe that the legislation that we have put forward would 

achieve that, and once again, I am glad that Senator Kyl said, let 

us put ideology out the door. Let us put a lot of those other arguments out the door, because just based on the merits to make it 

more efficient, to reflect the population growth of today, there is 

plenty of justification for splitting up the Ninth Circuit. 

So I thank you, Mr. Chairman, and I know we have a vote coming up on budget reconciliation in the Budget Committee, so I have 

to get back there, as well, so I thank you for the time and allowing 

me to testify today. 

Chairman SESSIONS. I guess Chairman Gregg would like me to 

be back for that vote, perhaps— 

[Laughter.] 

Chairman SESSIONS [continuing]. Since there is no proxy voting 

in the Budget Committee and it might be attacked without me. 

We have got two panels of witnesses today. The first, we will discuss the judgeship caseload numbers that seem to evidence a continuing need to divide the Ninth Circuit. We will also discuss 

whether a two-way split or a three-way split would be better and 

we will address the recent cost estimates for a division. Very interesting to me will be the discussion concerning currently empty Federal courthouses in Seattle and Portland, each of which are able, 

clearly, it appears, to serve as a seat for the 12th. 

The witnesses on this panel, starting from my left, are Judge 

Diarmuid O’Scannlain, who was appointed to the Ninth Circuit in 

1986; Judge Richard Tallman, appointed in 2000; Chief Judge 

Mary Schroeder, appointed in 1979; and Judge Alex Kozinski, appointed in 1985. 

On the second panel, we will gain more insight into the Ninth 

Circuit as we explore the possibility of housing a new 12th Circuit 

in Phoenix, again, without, we believe, having to build a new courthouse to do so. We will again hear from four witnesses on that 

panel. 

So, ladies and gentlemen, we are delighted to have you here. 

Judge O’Scannlain, we are delighted to let you start off. 

13

STATEMENT OF DIARMUID O’SCANNLAIN, CIRCUIT JUDGE, 

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON 

Judge O’SCANNLAIN. Thank you very much, Mr. Chairman and 

members of the Subcommittee of the Senate Committee on the Judiciary. My name is Diarmuid O’Scannlain, United States Circuit 

Judge for the Ninth Circuit with chambers in Portland, Oregon. I 

am very much honored to be invited to participate in this hearing 

on revisiting proposals to split the circuit. Indeed, the urgency of 

restructuring the largest judicial circuit in the country is even 

more evident today, in my view, by the number of Ninth Circuit 

reorganization bills pending in both Houses of Congress this session, perhaps the highest number in Congressional history. 

As you know, Senator Ensign, who has just appeared before you, 

on behalf of Senators Kyl and Murkowski and five other sponsors, 

recently introduced the latest Senate Ninth Circuit reorganization 

bill, which is S. 1845, which is, I understand, the central focus of 

your hearing today. 

Although I have this prepared statement to make, I do want to 

be able to respond to the very kind invitation from my good friend, 

Senator Feinstein, with whom I have started a dialog of sorts, to 

pursue the questions which she raises, which I am very happy to 

do and which I hope I can do after I finish my prepared statement, 

or when it is time for questions and answers, if that is appropriate, 

Senator. 

It is inevitable that Congress must restructure the Ninth Circuit 

and I think S. 1845 is a perfectly legitimate vehicle for accomplishing that goal. It bears emphasis, however, that since I last appeared before you on April 7 of 2004, the Judicial Conference of the 

United States, the policymaking arm of the Federal judiciary, has 

now gone on record as expressing neutrality on splitting the Ninth 

Circuit. This is a most significant change, indeed. 

Also, the Attorney General of the United States, Alberto 

Gonzales, announced that the United States Department of Justice 

now supports a split of the Ninth Circuit without specifying which 

particular configuration it prefers. 

The passage by the House of Representatives of a Ninth Circuit 

split bill last year and recent indications of its doing so again very 

shortly, the newly expressed non-opposition by the Judicial Conference, and the support of the Attorney General, and the widening 

support across the country for splitting the Ninth Circuit auger 

well for Congressional action this year. 

Let me emphasize that S. 1845, like any restructuring proposal, 

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

batting averages and public reaction to any of our individual highprofile decisions. My support of the fundamental restructuring of 

the Ninth Circuit has never been premised on the outcome of any 

given case. I believe that the sheer magnitude of our court and its 

responsibilities negatively affect all aspects of our business, including our solidarity, our consistency, our clarity, and even, sadly, our 

collegiality. 

Simply put, the Ninth Circuit is too big. It is time now to take 

the prudent, well-established course and bring the Ninth Circuit 

14

into line with the rest of the circuits in the Federal judicial system. 

Restructuring large circuits is the natural process of judicial evolution, as you can see if you would look at the appendix part of my 

testimony, beginning at page 17, you will see Exhibit 1, which runs 

for two or three pages. This shows the history of the evolution of 

circuits since 1789, and starting with the Evarts Act, you, Congress, have restructured circuits four times since 1891, most recently the Fifth Circuit just 25 years ago. I believe that the legislation today before you represents a workable restructuring plan and 

I urge you to give it serious consideration. 

From a purely numerical perspective, the enormity of my court 

is undeniable, and none of the comments today have refuted the 

numbers that are so oppressive to us as we look at this issue. That 

doesn’t matter whether you measure by number of judges, population, or caseload. If you would turn to Exhibit 4 on page 24, you 

will see that at 28 authorized judgeships, our court of appeals has 

11 more authorized judgeships than the next-largest circuit. 

Exhibit 5 indicates that the Ninth Circuit has more than double 

the average number of judgeships of all other circuit courts of appeals. The Ninth Circuit has 22 more total judges than the nextlargest circuit. At 51 authorized and senior judgeships, the Ninth 

Circuit has more than double the average number of total judges 

of all other circuits, as demonstrated by Exhibit 7 on page 27. 

By population, also, our circuit dwarfs all others. More than 58 

million people, almost exactly one-fifth of the entire population of 

the United States, live within our circuit. 

And the caseload is killing us. Even with the lumbering number 

of judges on our circuit, we can hardly keep up with the immense 

breadth and scope of our circuit’s caseload. As you can see from Exhibit 12 on page 32, the Ninth Circuit has 6,000 more filings in 

2005 than the next busiest circuit, and at 15,600 appeals, the 

Ninth Circuit had more than triple the average number of appeals 

filed of all circuits in 2005. 

Sadly, this caseload has taken its toll on the litigants within our 

circuit. Looking at Exhibit 16 on page 36, the Ninth Circuit is now, 

regrettably, the slowest circuit in the disposition of appeals. And 

the numbers on Exhibit 17 show that the Ninth Circuit takes 40 

percent longer to dispose of its appeals than the average of other 

circuits, although you will probably hear from some of my colleagues, which is absolutely true, that we have a very good record 

in terms of disposing of cases. Once the case gets to argument until 

it is decided, we probably have one of the best records in the country. But the problem is getting it from a notice of appeal to the 

scheduling it for oral argument and that is what the fundamental 

problem is. 

So no matter what metric one uses, the Ninth Circuit dominates 

out of all proportion to the structure of the rest of the Federal judicial system. From any reasonable perspective, the Ninth Circuit already equals at least two circuits in one. 

Now, I am not alone in my conclusions. Several Supreme Court 

Justices have commented— 

Chairman SESSIONS. Judge O’Scannlain, I think I failed to start 

you off on time, so you have had an extra minute or so and— 

Judge O’SCANNLAIN. Oh, OK. 

15

Chairman SESSIONS. I guess one of the pleasures of a lawyer is 

to be able to cutoff a judge, having the light go off. 

Judge O’SCANNLAIN. All right. 

[Laughter.] 

Chairman SESSIONS. That is a very rare privilege, but anyway, 

if you would just wrap up so we can give everybody a similar 

amount of time. 

Judge O’SCANNLAIN. All right, Mr. Chairman. I submit to you 

that the tide has now turned and the burden of persuasion has 

plainly shifted. Indeed, the whole paradigm has shifted. As long as 

one accepts the underlying premise of the appellate circuits in the 

first place that discrete decisionmaking units provide absolute benefits to the administration of justice, there is no denying that the 

Ninth Circuit must be reorganized. I challenge any opponent of reorganization to articulate a reasonable justification for placing onefifth of our citizens, one-fifth of the entire Federal appellate judiciary, and one-fifth of all of the appeals filed by all of the Federal 

litigants into this country into one of 12 regional circuits. 

In closing, let me say that Chief Judge Schroeder and her predecessors have done a truly admirable job with the limited tools that 

they have had, chipping away at the mounting challenges to efficient judicial administration. However, I do not believe that longterm solutions to long-term problems come from tinkering at the 

edges. The time has come when cosmetic changes can no longer 

suffice and a significant restructuring is necessary. 

Thank you, Mr. Chairman, and I will be very happy to take questions at the appropriate time. 

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

Chairman SESSIONS. Thank you. 

Judge Tallman? 

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

COURT OF APPEALS FOR THE NINTH CIRCUIT, SEATTLE, 

WASHINGTON 

Judge TALLMAN. Good afternoon, Mr. Chairman and distinguished members of the Subcommittee. My name is Richard C. 

Tallman. I am a United States Circuit Judge with chambers in Seattle. Thank you for the invitation to appear here this afternoon to 

discuss why the reorganization of our court is overdue to bring 

about a new era of judicial efficiency in the circuit courts of the 

Western United States. 

I join eight other circuit judges on our court who are listed in 

Footnote 1 of my written testimony who also support a split, and 

Mr. Chairman, I would ask that that written testimony be made 

a part of the record. 

Chairman SESSIONS. We will make that a part of the record. 

Judge TALLMAN. I can also say that there are other judges on our 

court who support reorganization but who prefer, for various reasons, not to identify themselves. 

Mr. Chairman, the statistical evidence is overwhelming. 

Unmentioned in the previous numbers is the fact that we are 

forced to borrow visiting circuit and district judges from all over 

the United States. In this year alone, we brought in 137 visitors. 

16

Next year, we expect around 200. That has an impact on the development of the jurisprudence in the Ninth Circuit. That is in addition to the 51 active and senior circuit judges who continue to hear 

cases on the Ninth. 

We should not be deterred by overstated arguments of short-term 

financial costs. Instead, we should view the cost of splitting the 

court as a necessary investment which will pay great dividends in 

the delivery of justice to the people we serve. 

If Congress prefers a two-way split, the most readily available, 

cost effective, and geographically desirable location for the 12th 

Circuit’s headquarters is the now empty ten-story William K. 

Nakamura United States Courthouse located at 1010 Fifth Avenue 

in Seattle, Washington. It is pictured in Exhibit 1 and is up on the 

chart. This building, rich in history, where many great men and 

women have served our Nation, is the perfect building to begin a 

new era in our reorganized judiciary, and Senator Feinstein, we 

can lop off $84 million from the AO’s letter that you just marked 

in the record by using the Nakamura Courthouse. Congress has already approved the $53 million in renovation costs and that work 

is underway by the General Services Administration. That building, with 104,000 usable square feet, is more than adequate to 

physically house the judges’ chambers, the courtrooms, and all of 

the clerks and administrative space for the new 12th Circuit with 

plenty of room for future growth. 

The architectural drawings for its renovated courtrooms are 

shown in Exhibits 3 and 4 to my testimony. That is a typical threejudge panel hearing room, and the next one is the en banc courtroom which is designed and will be built out to handle 15 judges 

so that the full court could sit en banc. 

Congress has already approved the $53 million in repairs and 

renovation costs in GSA’s budget for fiscal year 2005 and preparing 

it to serve as the headquarters for the 12th Circuit will not add excessive work or cost to the ongoing renovation. Most importantly, 

the renovation work will be completed in plenty of time to allow 

the 12th Circuit to begin operations, hear oral arguments, and 

carry out other judicial functions upon the effective date of the 

split. 

Seattle is centrally located for the States that would make up the 

12th Circuit. That is a substantial cost to taxpayers in lieu of having current Ninth Circuit judges and staff regularly travel these 

great distances. Flights to and from Seattle are more convenient, 

more frequent, would be shorter in duration, and are less expensive, allowing for cost savings, less time wasted in airports, and 

more time spent in chambers handling appellate work. 

If Congress prefers another Pacific Northwest location, the Gus 

Solomon U.S. Courthouse in Portland, Oregon, stands ready to answer the call. It is shown in Exhibit 5 to my testimony, another 

empty, available courthouse. 

With these existing facilities, it is clear that we do not need to 

build new courthouses. We also ought to try to avoid arrangements 

in which the new circuit headquarters would be housed in separate 

buildings within the same city. Either Nakamura or Solomon can 

do the job in one building. 

17

Because California is producing 70 percent of the Ninth Circuit’s 

16,000 cases, a substantial amount of time and money is spent 

sending judges from outside the Golden State to hear cases in California, while California judges travel to hear cases in other States 

of the Ninth Circuit. This past year, I heard cases in Seattle for 

only five days for the entire year. It is wasteful to pay judges to 

play this game of judicial musical chairs, traveling to one another’s 

States when the job could easily be done by local judges working 

at their home duty stations. 

By adding new judges in California and splitting many of the 

current Ninth Circuit States into the 12th Circuit, all judges will 

spend less time traveling and more time working on cases within 

their own State or States closer in proximity. Those are real cost 

savings of millions of dollars annually and countless hours of travel. 

With or without a split, it is absolutely necessary to add additional judgeships in California and fill empty seats already authorized, but it is unfair to attribute the cost of doing so to the cost 

of splitting the Ninth Circuit. Those judges are needed now. We 

have to address this growth problem, which is rapidly growing and 

getting worse by the day. The startup costs have been inflated in 

past discussions because it was assumed that brand new courthouses would have to be constructed. Nor was there any offsetting 

credit based on the financial gain from cost savings resulting from 

separating the States and enjoying judicial resources closer to 

home. 

The transaction costs of investing in improving the delivery of 

justice are far less than the opportunity costs of simply maintaining the status quo. That is unacceptable. Justice delayed is justice 

denied. It is hard to quantify the benefits of speedier resolution of 

appeals, which will surely follow the creation of more manageable, 

smaller appellate courts. 

In the end, our citizens, both as taxpayers and consumers of our 

court services, will greatly benefit from the a split of the Ninth Circuit. It will provide them with better service, litigants with prompt 

decisions, and a full en banc review of the most important cases to 

reach the court. The time is now to make the investment in improving the delivery of justice in the Western United States. Thank 

you, Mr. Chairman. 

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

Chairman SESSIONS. Thank you, Judge Tallman. 

Chief Judge Mary Schroeder, we are delighted to have you here 

again and look forward to hearing from you. 

STATEMENT OF MARY M. SCHROEDER, CHIEF JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA 

Judge SCHROEDER. Thank you so much, Mr. Chairman, and good 

afternoon. My name is Mary Schroeder and I am the Chief Judge 

of the United States Court of Appeals for the Ninth Circuit. I am 

very pleased to be with you. My husband is a little less enthusiastic about my being here— 

[Laughter.] 

18

Judge SCHROEDER [continuing]. But I hope to join him later in 

the day. 

I have served in the capacity of Chief Judge of the Ninth Circuit 

since December of 2000. My home chambers are in Phoenix, Arizona, and Senator Kyl and I practiced law together in Phoenix at 

the same time and we have been together on many projects for a 

long time. 

I would like to introduce our colleague, Carlos Bea. Judge Bea 

and his wife, Lucille, are here from San Francisco, and our wonderful Clerk of Court, Cathy Catterson, who is also here today. I notice 

that the Clerk of Court of the District of Arizona is also here, Rich 

Weir. 

As you know, technology has improved rapidly. We now have 

BlackBerrys, we have cell phones, laptops. We can communicate instantly with each other wherever we are on the planet. It is now 

easier to administer this circuit than it was when I took over as 

Chief in 2000. 

Moreover, it is the view of the overwhelming majority of our circuit judges, bankruptcy judges, and the lawyers who practice within the circuit that a division of the circuit would not improve the 

administration of justice in the West. We are not just talking about 

the Court of Appeals. We are talking about the entire circuit and 

this includes magistrate judges, district judges, everyone. 

There are only three active circuit judges who support division 

and they are all here today and you will hear from them. 

What I would like to focus upon this afternoon, however, is not 

how well the circuit is operating but how harmful a circuit division 

would be, especially now. There are three principal reasons. 

The first is the unprecedented devastation wrought by Hurricane 

Katrina, which the AO has already asked for $65 million in additional appropriation. 

The second is the temporary but unprecedented increase in immigration appeals to our court from the Board of Immigration Appeals in the Justice Department that cannot provide sufficient 

meaningful administrative review, and we hope to work with them 

so that they get the resources that they need, as well. 

The third reason that this is such a bad time to consider splitting 

the circuit is the need for court resources to prepare for new litigation spawned by the Bankruptcy Act that went into effect last week 

and new immigration legislation that you are struggling to formulate, and we would like to work with you to make sure that whatever policies you come up with in the immigration field work. 

I was in Houston after Katrina last week and their circuit executive’s offices in rented space, their clerk’s office on rented furniture, 

their entire clerk’s office, 100 people, is on per diem and working 

in Houston. They are worried about their children, their homes, 

and what the future will bring. The Federal Appellate Court for the 

Fifth Circuit is at least functioning, thanks to those efforts of the 

Chief Judge and its administrators, but I understand there are 

trial courts there that are not functioning at all. 

We don’t think this is the time to create an unnecessary and 

costly bureaucratic court structure in the West, especially when 

there is no legal system in one area of the country right now. 

19

With respect to the immigration case deluge, those cases are 

nearly all from California. Splitting the circuit would exacerbate 

administrative burdens because the judges from the rest of the circuit would no longer be there to help and staff resources would be 

cut. The Judicial Conference of the U.S. has taken a position of 

neutrality with respect to the merits of the split. That has always 

been the position. They have never taken a position in favor of circuit splitting or opposed. They do oppose linking new judgeships to 

the issue of circuit splitting. 

Let me speak for a moment about staffing. The new Circuit 

Court of Appeals has to be staffed and a new circuit has to be 

staffed. They would need a clerk of court, circuit executive, technology folks, staff attorneys. We have all of that now very effectively in the Ninth Circuit and we have services that are not 

matched because of the expertise that we are able to provide in a 

circuit executive’s office and a clerk’s office that serve a lot of folks 

out there. 

Finally, about administration, the existing circuit has a hub. It 

is easily administered because nearly all of the judges can get to 

San Francisco within 2 hours and they don’t have to lose more 

than a day in the office. I happen to follow college athletics and the 

headquarters of the PAC 10 and the Ninth Circuit are within seven 

BART stops from each other because that is the hub of that area 

of the lower 48, and when Hawaii and Alaska were added, they 

were added to the Ninth Circuit. Nobody thought a thing because 

there was nowhere else for them to go and I don’t think there is 

now. 

Neither of the circuits that were created by S. 1845 would have 

such a hub. One would cover the whole Pacific and the other would 

stretch from the border of Mexico to the Arctic Circle. Judges 

would have to change planes in San Francisco in order to get from 

Phoenix to Seattle. So the courthouse in Phoenix, we can look at, 

but it is fully occupied and it has ten courtrooms. You would have 

to fill in those courtrooms—that is very, very expensive—and move 

the bankruptcy court out. 

So given the stress on the administration of justice right now by 

all of the things we are seeing, all of the movement in this country, 

fracturing the administrative structure of the courts of the West is 

not a good idea. 

I thank you for the opportunity to appear before you and I would 

be happy to answer any questions later. Thank you. 

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

Chairman SESSIONS. Thank you. Thank you, Chief Judge Schroeder. 

Judge Kozinski, it is a pleasure to have you with us and see you 

again. I am not uninterested in your comments and will be studying your record, but unless Senator Kyl is leaving—he just disappeared. I have to go vote in just a minute. Senator Kyl says that 

he would be pleased to preside, so we are delighted to hear from 

you at this time. 

20

STATEMENT OF ALEX KOZINSKI, CIRCUIT JUDGE, U.S. COURT 

OF APPEALS FOR THE NINTH CIRCUIT, PASADENA, CALIFORNIA 

Judge KOZINSKI. Thank you, Mr. Chairman, members of the 

Committee. My name is Alex Kozinski. I am a judge on the Ninth 

Circuit. I have been a judge on the Ninth Circuit for 20 years. I 

am resident in Pasadena. 

I have written testimony and rather than summarizing it, which 

I planned to do, what I would like to do is address some points 

raised by the other witnesses, but partly because Senator Feinstein 

did such a fine job of saying most of the points that I did and there 

is no point repeating them here. 

On this matter of whether there is a consensus that the Ninth 

Circuit ought to be split, I think the Committee ought to think seriously about this. Who knows more about what is good for the people in the Ninth Circuit insofar as the Ninth Circuit is concerned 

than the lawyers, the people who represent the litigants who appear before us? I think it is significant. I think it is a fact that can’t 

be brushed aside that the State bars of Arizona, Hawaii, and Montana have all voted against the split. These are States that would 

be split away from the Ninth Circuit, that would get the supposed 

benefits of a split, and yet the lawyers representing the litigants 

that appear before us are against the split. 

Also, the judges know quite a bit about this and I think the Committee ought to find it significant that of the judges on our court, 

there are only three active judges, who are all present, who voted 

in favor of a split. We had a court meeting. We had a discussion. 

We had a vote. Only three active judges, all present here, voted in 

favor of the split. It is significant that of the circuit judges from 

Montana, Arizona, Nevada, and Hawaii, there was not a single circuit judge, active or senior, who voted in favor of the split. Not a 

single judge from one of those States voted in favor of the split. 

Now, I heard Senator Ensign say to the contrary, that he believed that one of the circuit judges from Nevada voted differently. 

I have here a vote tally sheet of the vote we have taken. It includes 

the list of all the judges who voted for and against, who abstained. 

It shows that— 

Chairman SESSIONS. Do we have a voting rights case here? 

[Laughter.] 

Judge KOZINSKI. Well, I think it is important, Senator, to have 

the record straight— 

Chairman SESSIONS. Well, it is. 

Judge KOZINSKI. and the record is that the Judge Rawlinson 

from Las Vegas voted in favor of a split and Judge Hugg, former 

Chief Judge, a great Chief Judge, a wonderful Chief Judge, voted 

against the split and the two judges abstained. Judge Brunetti and 

Judge Bybee abstained. I am aware, as I stand here and I am 

under oath, I am aware of no colleague of mine from Nevada who 

voted—who believes that the split is appropriate. 

Now, these are judges and lawyers from the States that would 

be affected by the split, the split that supposedly is inevitable. I 

think the Committee ought to think very carefully about why those 

people most intimately familiar with it and those who are most involved with our litigation process have voted against the split. 

21

Now, Judge O’Scannlain raised, as well did the Chairman, the 

business about delay in deciding cases in the Ninth Circuit. Judge 

O’Scannlain, a fine colleague of mine, and Judge Tallman, a wonderful colleague—one of the worst things about this proposed split 

is I really would miss them, and Judge Kleinfeld. I really would 

hate to see them go, and I am going to hold on to them as hard 

as I can. 

But Judge O’Scannlain was quite fair. He said, oh, they will tell 

you that once the cases get to the judges, we are the fastest, one 

of the fastest courts in the country to decide. Well, isn’t that the 

test of the circuit, of how the circuit is working? The reason cases 

are delayed is because we have four vacancies. Up until two or 3 

years ago, we had eight vacancies and ten vacancies in our court. 

The reason we have visiting judges from other courts is we don’t 

have the judges. Judges have not been confirmed. 

Once the cases get to the judges, once the judges get to decide 

the cases, once the decisionmaking process comes within our control, we are the second fastest court in the country. It doesn’t matter that some of our colleagues are in Alaska and others are in 

Montana and others are in Hawaii because I can talk to Judge 

Kleinfeld and I can talk to Judge Thomas in Montana, I can talk 

to my colleague, Judge Clifton, in Honolulu by picking up the 

phone or by sending an e-mail, and you know what? E-mail to 

Montana is just as fast as e-mail to downtown Los Angeles, believe 

it or not. 

We are unified as a court and at no time in the history of the 

United States has a circuit court been split over the strong opposition of a majority of the judges. The only time that we know about 

is the Fifth Circuit was split when the judges unanimously voted 

to split. Now, I don’t think we have a veto. I don’t think we are 

entitled to deference in the sense that you can’t do it. Of course, 

you can do it. It is your job to do it. But you need to think carefully 

about the people who actually deal with the lives and fortunes of 

the litigants before us, the judges and the lawyers, and the judges 

and the lawyers have spoken and by overwhelming margins they 

have said no. 

I think this Committee should accept that verdict, after close 

study, and should reject once and for all the proposals to split the 

Ninth Circuit, and what they should do is commend the court and 

help us with technology, help us with resources, help us here in the 

Senate with confirming our judges. Give us the judges to do the job 

for you. You do that and we are not going to see those numbers. 

We are going to see the fastest court in the country. 

Thank you, members of the Committee and—and Mr. Chairman. 

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

Senator KYL. [Presiding.] Thank you. I don’t mean to confuse 

things— 

[Laughter.] 

Judge KOZINSKI. Excuse me, sir, I do have this vote tally sheet. 

I know in court we would say, may I have it marked as an exhibit— 

22

Senator KYL. Without objection. Any written material that any 

of you would like to have appear in the record will be included in 

the record. 

Since Senator Feinstein is ranking, Senator Feinstein, would you 

like to begin the questioning? Are you prepared? 

I will tell you what. Let me just ask one question first and then 

I will turn to you, how is that? It was occasioned by, Judge 

Kozinski, one of the comments you just made. I don’t know why it 

takes the Ninth Circuit so long to get to oral argument. Your suggestion was, Judge Kozinski, that that was because there are four 

vacancies. On the other hand, isn’t it possible to set oral argument 

and if there are two judges set and a third that has to be filled in, 

to simply fill it in with a visiting judge or district court judge? In 

other words, why should the fact that there are four vacancies 

mean that it takes a long time to get to oral argument? I don’t understand that. And Judge Schroeder might be able to answer that, 

as well. 

Judge KOZINSKI. Since you directed the question to me, there is 

always a balance on a court between speed and getting the work 

done by bringing in more judges—being short of judges. Of course, 

there is not an unlimited number of visiting judges you can get. 

Other judges have their own work to do. But in terms of maintaining consistency in the law of the circuit, what you want to do is 

to have as many of the local judges, as many judges from the home 

circuit as possible because they see the same cases again and 

again. 

Now, the balance can be struck in various ways, but I believe it 

will be irresponsible for a court to promiscuously bring in visiting 

judges when there are vacancies. I think we try to do our job, but 

at the same time we don’t want to muck up the law by having too 

many hands in the pot. 

Judge SCHROEDER. What we like to do is to bring in our own district judges who are familiar with the circuit law. It is not helpful 

particularly to bring in a lot of judges from other circuits who are 

not familiar with the circuit law. 

One of the things that came out in the White Commission hearings that they had in the late 1990’s when they studied the circuit 

structure throughout the country was a dissatisfaction on the part 

of lawyers in some other parts of the country with some other circuits that relied more heavily on visiting judges than the Ninth 

Circuit does, because they would like to have the cases decided by 

those who are familiar with the law and not in Atlanta by a senior 

judge from Indiana. 

Senator KYL. And, by the way, let me make it clear that if it 

were up to me, there wouldn’t be any vacancies in any court, and, 

in fact, we would have more judges to be filled in the form of new 

judgeships, both district and circuit, but I don’t control all of that 

and I understand that that is a deficiency. 

Do, Judge Tallman or Judge O’Scannlain, do you have a view on 

this question of why it takes so long to get to oral argument? 

Judge TALLMAN. I should say, and I think you can appreciate 

this as a former practicing lawyer, it doesn’t matter to the litigants 

what the reasons are. All they know is that it takes 15.4 months 

on average to get their cases decided. We do have problems in imVerDate 0ct 09 2002 11:30 Nov 30, 2005 Jkt 024710 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24710.TXT SJUD4 PsN: CMORC
23

migration cases getting the record, the administrative record together, and that is a problem on the government’s side of the equation. But we have got a whole basement full of pending court cases 

in San Francisco that are waiting for oral argument panels to become available to which they can be assigned and that takes more 

judges. 

To respond directly to Senator Feinstein’s concerns expressed at 

the outset, Senator, there is no way to equalize the caseload with 

California unless the State itself is split and no one is advocating 

that. But none of the circuit caseloads are mathematically equal 

and there will always be variations from one to another. 

The logical result of the opposition argument is that there is no 

limit to the size to which this court may grow. Do we really want 

an appellate court of 75 active and senior circuit judges? That is 

not a court, it is a legislature. 

Senator KYL. By the way, the senior judges are available for designation on panels to the extent that they devote time to judging, 

so I presume they are included within the panel? 

Judge TALLMAN. Technically, they are not designated. As a senior judge of the court, they continue to hear cases. They just hear 

a reduced caseload. Some of them are handling caseloads that are 

equal to or greater than an active judge. 

Judge SCHROEDER. We rely on them. 

Senator KYL. Actually, my preliminary question has turned into 

a whole 5 minutes, but Judge O’Scannlain, do you want to conclude— 

Judge O’SCANNLAIN. I would just simply concur with my colleague, Judge Tallman, and suggest that that figure of 47 judges 

today, including seniors, includes 23 seniors, and if I am not mistaken, at least 20 or maybe even 22 of those 23 seniors are actively 

sitting on panels, so that if we were stuck with just the 28, we 

would be at a total loss. 

But from the standpoint of the litigant, it doesn’t matter how fast 

we are, and I totally agree with Judge Tallman on this, in terms 

of deciding cases as long as his case is waiting. So the problem is 

that notwithstanding all of these vaunted programs that we have, 

especially, for example, the screening panel, ironically, the cases 

that get the quickest treatment in our court are the ones that have 

the least complex issues to deal with. Those sometimes get in and 

out within six or 8 months, compared to 15 months as an average, 

and we do that with a screening panel. But notwithstanding that, 

we are still the slowest court in the entire country and that is a 

statistic which cannot be gainsaid. 

Judge KOZINSKI. Senator, if I may just followup, my colleagues 

are absolutely right. It doesn’t matter to the litigant why the delay 

is, but it certainly matters in figuring out the swiftness. If the 

problem is we don’t have enough judges, then the solution is give 

us more judges. Splitting a circuit is not going to solve the problem 

that is created by the absence of judges. 

What it will do is exactly as Senator Feinstein pointed out, because the judges in the new proposed 12th Circuit would have a 

much lower caseload, yes, those cases would get their judges more 

quickly. But the cases in California and cases in Hawaii, and Senator Kyl, Senator Murkowski, you are representing the nation, not 

24

just your own State and I submit that it is not fair to have a solution that makes the problem of delay so much worse in important 

parts of the country in other States, Hawaii and California. The 

problem being created by lack of judges, give us the judges. That 

will solve the problem. 

Judge O’SCANNLAIN. Mr. Chairman, Senator Kyl, if I can call you 

Mr. Chairman at the moment, there is a little disingenuousness 

going on here, if I may say so, and I say so with a certain amount 

of regret. But we had the opportunity in 1990, the last major judgeship bill, to ask for new judges. We were entitled by the numbers 

to close to ten, maybe actually ten new judges, and we asked for 

zero. So the fact that we don’t have enough judges is to a certain 

extent a product of our own making. 

And at the very least, what this bill does is give us seven new 

judges. In my view, and I repeat what I shared with Senator Feinstein in our meeting, I think the number of seven judges for California is too low. I think California justifies significantly more than 

that. And the fact that we never asked for them until now, I think 

is unfortunate, to say the least. 

Senator KYL. Let me just conclude this and then, Mr. Chairman, 

Senator Feinstein should probably have the next opportunity since 

I basically took your spot here by asking a question that opened 

a bit of a can of worms. But let me just conclude with my thoughts, 

because I think both sides in this debate make a good point. 

Judge Kozinski, I think you are absolutely right that it is critical 

that we fill all of the vacancies and, I believe, create new judgeships consistent with the caseload and fill those as well and that 

that can have the effect of reducing the time to argument. That, 

therefore, helps to relieve the pressure that has been building for 

a split. 

But I also agree with the proposition that carried to not a logical 

extreme, day after tomorrow, we are going to have how many 

judges on this court? That makes the argument that, for any semblance of collegiality and ability to conduct en banc hearings and 

the other things which make for an effective court, there is going 

to be a point at which we either have to have a very different view 

of what a circuit court is with 75 judges or agree that at some point 

there does have to be a split. 

So it seems to me that there is validity in both points that have 

been made here. 

Judge KOZINSKI. I hop I will have a chance to speak to you privately at some point on all of those issues. I will be happy to come 

back to Washington or to Arizona to do that. 

Senator KYL. Let us do it in Arizona. I said before, I view this 

as not perhaps the beginning of a conversation, but the continuation of a conversation that is going to take us a while. Everyone 

can breathe easy that this isn’t going to pass tomorrow in exactly 

this form and there is plenty of time for conversation and I welcome, and I really do again appreciate the time that all of you have 

put in and the difficulty that it has created for some of you. 

Judge SCHROEDER. May I say, Senator, that Judge Thomas will 

also address these issues that you are concerned about. 

Senator FEINSTEIN. I am not going to ask a formal question. Let 

me just for a moment have a bit of a discussion. 

25

I think there is more actually underlying this than just, well, let 

us shorten the time that a case can get to a judge because that is 

pretty simple, as Judge Kozinski pointed out. Increase the number 

of judges. 

The fact of the matter is, it has been increasingly difficult to get 

new judge positions to the Ninth Circuit, and the fact of the matter 

is, I believe, and I can’t make any accusations, but I believe that 

there is an effort to starve the circuit to bring it to the point of a 

split. The points I have been trying to make is the very real need 

for parity in caseload. 

I think there are political reasons here. People say they aren’t. 

I believe there are. Clearly, there are travel reasons. Some judges, 

I guess, don’t want to travel as much, and I can understand that 

and I don’t blame you for it. I am not at all critical. 

But I don’t think the case should be made on the timeliness or 

the delay in getting the case, because if that is really the argument, then get the judges. When it comes to judges being active in 

lobbying, and I say this to both sides, nobody helps, really. The 

Chief Judge does, but that is somewhat limited. But while we are 

judges, we don’t lobby is kind of the answer that comes back. Consequently, the Ninth Circuit has been seriously disadvantaged. 

Now, any split—I told you, 72 percent of the caseload remains in 

California and the rest of it, I mean, if you look at the actual numbers, they are de minimis. I won’t do Guam. Hawaii, 247 cases are 

filed in a year. Alaska, 136 cases. that is all. Arizona, 1,195. Idaho, 

161. Montana, 355. Nevada, 827. Oregon, 638. Washington, 1,130. 

So the big States of those are Washington and Arizona. But California, 10,985 cases. 

Therefore, it seems to me that a decision has to be made whether 

there is enough, and I can’t answer this because I don’t know, judicial interest in having the kind of cosmopolitan Western circuit 

that exists there with interaction for trade laws, kind of a richness 

of law because of the geographical composition of the circuit, or if 

not, I mean, if California could get 21 new judges on the line and 

be its own circuit, we could try and see how that would work. 

Judge O’SCANNLAIN. Well, there is precedent for—if you look at 

Judge O’Scannlain’s Exhibit 1, back at the beginning days of the 

republic, there was a United States Court of Appeals for the California Circuit and it— 

Senator FEINSTEIN. I saw it, but it didn’t last long. 

Judge O’SCANNLAIN. No, because the West grew and there needed to be more judges. 

Senator FEINSTEIN. It grew and there was a synthesis of interests within the States. And as you know, no circuit except for the 

D.C. Circuit is less than three States. So the circuits have been devised on the basis that a number of States together is a good thing. 

So the question of size, in my view, is strictly related to numbers 

of judges. Go ahead, take me on. I am happy for you to take it on. 

Judge O’SCANNLAIN. I would have to say that on this particular 

point, maybe Judge Kozinski, you, Senator, and I are in total 

agreement, and that is we need more judges. I certainly feel that 

very strongly. I thought we needed them in 1990 when we failed 

to ask for them, but we need them certainly today. 

26

The problem is, how large can a court of appeals grow and still 

be a court of appeals? That is the nub of it. And if you read the 

White Commission report of 1998, that is the central piece they 

make. They recommended that we split into three separate divisions. Keep the circuit structure, but split into three semi-autonomous divisions, one of which would—well, two of which would split 

California. 

Now, I realize, Senator, that you have some concerns about the 

optics of that and— 

Senator FEINSTEIN. Forum shopping, yes. 

Judge O’SCANNLAIN. And that is a very respectable point and one 

which I share, as well. But the key here is that if we are looking 

at some modifications to this bill, in my personal view, I think the 

new 12th Circuit gets too many judges and the new Ninth does not 

get enough. So even with 35 judges to be reallocated, I think you 

could pick up two more judges just by shifting from the 12th to the 

Ninth in this bill, and then, as I said in my earlier testimony, I 

think you could justify ten or more judges at least to go with the 

number of California judges there are. 

So I think—but I think that is just a matter of adjustment. The 

principle, though, is the key, and the principle is you cannot let a 

court of appeals grow so large that the number of judges sitting 

around making law—now, we are not talking about making law in 

a legislative sense, in which there are much less limitations, but 

here, we have to speak as a unifying body which declares the law. 

The White Commission recommended nine to 17 as the ideal range. 

Over 17, it becomes cumbersome. We are at 28. If we go to 35 or 

38 or 45 or 55, it is impossible and we cannot function as a court 

of appeals with that number. 

Senator FEINSTEIN. Does everybody agree that if you grow like 

that, it is impossible? Judge— 

Judge SCHROEDER. No. No. 

Senator FEINSTEIN. Wait. Judge Schroeder, just a second. I will 

go down the line. Judge Tallman? 

Judge TALLMAN. I do agree with that, and it gets back to what 

we talked about at the last hearing, which is the importance of 

maintaining consistency and predictability in the law. The problem 

that we have now with 50 judges resident, active and senior, and 

150 to 200 visiting judges is that it is like going to Las Vegas in 

terms of what the outcome is going to be. Tell me who the three 

judges are going to be on the panel and I might be able to predict 

how that particular panel is going to go. 

That is not supposed to be the way circuit courts of appeal operate. They are supposed to apply the same legal principles, the same 

body of law to similar sets of facts that come before them, and the 

en banc process exists to correct those panels who wander off the 

reservation because they didn’t follow the law. 

With a court of 75 judges trying to have a functioning en banc 

process, even on a limited basis as we do now in the Ninth Circuit, 

would be virtually impossible. You are talking about the ability to 

review less than 3 percent now with the limited en banc process 

of errant cases that have gone awry. You couldn’t do it with a court 

of 25,000 cases and 75 judges. 

Senator FEINSTEIN. Judge Schroeder? 

27

Judge SCHROEDER. I am not sure why we are talking about 75 

judges when we have never had the 28 for more than five minutes, 

but the truth is that it used to be that nine judges was considered 

the ideal size of a court. Now, all the circuits except the First are 

larger than nine. We have seen by technology that it is easier to 

operate when you have larger courts as we get bigger in our ability 

to communicate. 

You referenced the community of interest of the West. That is 

very important. We have a community of interest in the West. We 

have Microsoft, for example, in Seattle. We have the Silicon Valley. 

We have Intel. All of these are looking toward the Pacific. We all 

think of ourselves as Pacific Rim. We need to keep that community 

together. It is very important. 

And we will, if we ever get to 35 or 40 judges and it turns out 

that there are problems, we will deal with them. But no one has 

ever, in studying the circuit, has ever concluded that it would be 

more efficient to divide the circuit. 

Senator FEINSTEIN. Judge Kozinski? 

Judge KOZINSKI. Well, it seems to me Judge O’Scannlain is giving up the game. He favors a split, but he says, oh, California 

should get ten more judges. Well, under the CCARMA bill, it is 16 

judges plus he said we should get two more. That is 18. Ten more 

is 28. We are back at 28 active judges. 

Now, it seems to me the reality is we are all getting bigger. The 

country is getting bigger. Courts are getting bigger. Cases are getting bigger. Litigation is getting bigger. Simply throwing out—and 

law firms are getting bigger. Simply throwing out a number, saying, oh, 75 is a very big number, you know, ten judges was a very 

big number for a circuit in 1960. There was not a single circuit in 

the country that had as many as ten judges. It was horrible, the 

very though. 

I remember 1960 and I am sure— 

Senator FEINSTEIN. I do, too. 

Judge KOZINSKI. There we go. It was not such a long time ago. 

We live in a different world. And just to answer the question that 

Senator Kyl asked and the thing I want to talk to him about in his 

office when I get a chance, yes, you can run a court with 75 judges. 

It is not ideal, but it is done and this bill is about collegiality. I 

love my colleagues. I get along well with my colleagues. We josh 

around here. But as I say to Judge Tallman every time I see him, 

I say, you bad guy. Do I not say that to you? 

Judge TALLMAN. You do. 

Judge KOZINSKI. And the reason I say, you bad guy, is because 

he wants to leave me and I don’t want to lose him. 

Judge SCHROEDER. Well, he is— 

Judge KOZINSKI. And that is how we relate to each other. 

Senator FEINSTEIN. Let me just say one thing about justice. I am 

not a lawyer, so it is easy for me to say. But it seems to me that—

I have always thought, to some extent, small is better because 

small is human. Judge Schroeder, I have a problem with doing 

things by BlackBerrys, probably because I am not of the generation, really. For me, it is the human interaction. It is the ability 

to take the time. It is having people feel really satisfied that they 

had their justice and that it was human, that it wasn’t mechanical, 

28

and that cases weren’t just sorted in bulk and dealt with in bulk 

and that kind of thing, that there was an individual quality to the 

justice that is meted out. 

I do think that as a circuit gets bigger, if this one is going to continue to grow, it is inevitable that 1 day, we are going to be there. 

I don’t pretend to know what is the size when we are going to be 

there, but for me, as I look at this and try to see the forest for the 

trees, it is parity. It is bringing down the number of cases per 

judge so that the individual case has a certain prominence and isn’t 

just in a batch that is dispensed with in a certain way. 

Judge SCHROEDER. I don’t disagree with that at all, but as you 

have pointed out, the reality is that California is very large and 

that it is going to have to have a certain number of judges and that 

any circuit with California is going to be larger than 20 judges. 

That is just the reality of the world in which we live. 

Judge O’SCANNLAIN. Perhaps, Senator Feinstein, the time has 

come to give some consideration, I am not sure where I would 

stand on it personally, but some serious consideration to the rule 

that we kind of followed, an unwritten rule that there has to be 

three states to make a circuit. The District of Columbia is an exception to that rule, but that didn’t occur until 1948. Maybe because of the population pressures of California, the time has come 

to consider whether California, like it was in 1855, should once 

again become its own circuit. Certainly, the numbers in every way 

justify it. I am not suggesting that as a solution here, but I am suggesting that we have to do something with these numbers because 

these are pressures which need a response. 

Senator FEINSTEIN. I haven’t seen a proposal that treats California fairly in terms of judges, candidly. 

Judge O’SCANNLAIN. OK. 

Senator FEINSTEIN. Clearly, it knocks down the caseload to, like, 

325 for the other States per judge with the judges that accompany 

the proposals, but it leaves California judges with over 500 cases. 

I can’t— 

Judge TALLMAN. Mr. Chairman, Senator, I think you are overlooking the fact that the bills also provide for continuing exchanges 

of circuit judges between the 12th and the Ninth to address that 

problem. We will continue to be sitting in California for some time 

to come as the bills are currently drafted. 

Senator FEINSTEIN. Then what is the point of doing it? 

[Laughter.] 

Judge TALLMAN. Because at some point, the thought was that 

California would get the additional permanent judgeships that it 

needs so that you wouldn’t need to be borrowing all these judges 

from the rest of the country. 

Senator FEINSTEIN. Let me just say, I have been here now for almost 13 years. I don’t think California will get the judges it needs. 

The only way for California to get the judges it needs is to get them 

before there is any split and have them, because I think California 

will be slighted, and I greatly respect Senator Murkowski. I think 

she does a super job. We serve together on Energy and Water. But 

the proposal doesn’t treat California fairly in terms of number—I 

leave out the word ‘‘fairly,’’ but doesn’t treat California adequately 

in terms of the number of judges and I have to fight for my State. 

29

Judge KOZINSKI. Mr. Chairman, may I just have 30 seconds to 

address this. Judge O’Scannlain put in this idea of a single State 

circuit for the first time and I just want to address it. There has 

been a philosophy in the Federal courts, and it is a very important 

philosophy and this Committee ought not to reconsider it lightly or 

casually or on an ad hoc basis. The idea is that trial courts, trial 

courts, for very good reasons, trial courts tend to be local. The 

judges are drawn from the local community. They have the approval of the local senators or the State senators. 

Appellate courts in this country in the Federal system have been 

regional and national, regional for the circuits, national for the 

United States Supreme Court. It is a very important principle that 

ought not to be slighted or overlooked, and that is that you have 

regional interests in the application of facts, but when it comes to 

application of the law, you want regional consistency and you do 

want views from outside the State. 

I am very happy when Judge Kleinfeld comes and sits on California cases or when Judge Thomas does and our colleagues from 

Arizona. It is very important to have that and to continue with 

that. A single State circuit would go contrary to that long-established principle. I would beg this Committee not to do so without 

a very careful thought to it. 

Chairman SESSIONS. [Presiding.] Well, it is a big circuit. California is a big State. Some call it a nation-state. It is further from 

San Diego to San Francisco than it is from Mobile to Atlanta, and 

maybe further culturally, I don’t know. We have got a whole bunch 

of circuits on the East Coast. We have got several on the Gulf 

Coast. 

I think these things don’t make much sense to me, frankly. I 

think it is just angst. There was a lot of angst when they split the 

Fifth Circuit. It went on, every kind of fear and concern, voting 

rights were going to be denied, it was just awful, but somehow, it 

was done and everybody is so happy. 

Look at these numbers, Senator Feinstein. Now, I know this is 

a busy circuit. It has got 6,000 immigration cases. But trust me, 

an immigration case is not as big as a multi-defendant conspiracy 

cocaine case or an antitrust case. Those can be handled in a larger 

number. But even then, the existing caseload per judge that is 

being handled is not the highest. The Ninth handles 560 per judge, 

which is large, but the 11th has 642. The Fifth has 567. And the 

Second has 524, and that is as of June 2005 from the Administrative Office of the Courts statistics. 

True, some others, you say that the 12th would not have that 

many judges, but it would be about 326, I believe. But here, the 

First Circuit has 314 per judge. The Third, 307. The Fourth, 355. 

The Sixth, 316. The Seventh, 337. The Eighth, 322. And the D.C. 

Circuit, which I have been trying to take a judge from— 

[Laughter.] 

Chairman SESSIONS [continuing]. Has 114, but they act like the 

roof is going to fall if you take one of their judges, but they only 

have 114 per judge and you have 560. But they say theirs are big 

cases. 

But anyway, so I think the numbers are important here. But I 

have— 

30

Judge O’SCANNLAIN. Mr. Chairman, if I could just make one 

point with respect to that, and that is that perhaps the most successful circuit of all is your circuit, the 11th Circuit, which has the 

highest number of cases per judge. They have made the decision, 

they do not want additional judges because they feel to do so would 

be to affect their decisionmaking ability and to create precisely the 

kinds of problems we have been hearing about during this hearing. 

So they have elected to stay at whatever it is, 12 or 13 or something like that, and yet take a huge burden, which, God bless 

them, they do a terrific job. They have all of the same bells and 

whistles that we do, pretty much. There are differences, of course. 

But they are a much more efficient circuit than we are and their 

backlog, or at least their lag time, isn’t as bad. 

I am glad you pointed out the disparity between the circuits, 

which run from 100-and-something to well over 600. The key to me 

when I hear all of that is that the 11th Circuit can do it with fewer 

judges and be very effective. 

Chairman SESSIONS. I know there perhaps have been ideological 

and judicial philosophy concerns about the Ninth Circuit. We know 

it is the most reversed circuit in the country. I think some of the 

reasons for that is not ideological, but as I think some of you suggested, these panels of three being selected out of a very large 

number, you have more likelihood of an aberrant panel than you 

would in a smaller court, perhaps. 

But at any rate, I am concerned about the size of this court. I 

think 28 judges is breathtaking. I would note that the bill that has 

been proposed would add seven new judges to the old Ninth Circuit 

and add no new judges to the 12th. So all the new judges in their 

proposal, which should be a pretty noticeable increase in judges 

and at least keep those caseload numbers more reasonable, perhaps, than they are today. 

I want to discuss this question of whether we are dealing with 

a court or the House of Lords. 

[Laughter.] 

Chairman SESSIONS. I mean, to have an en banc that 28, 35, 

51—well, 51 judges counting the senior judges, but an en banc, you 

would just have, say, 28 if you were fully stocked in the Ninth, 

would you share with me—I think, Judge O’Scannlain, you wrote, 

or was it you, Judge Tallman, that emphasized that most—the 

practical problems of maintaining uniformity, maybe the psychological pressures on judges to try to conform to a circuit that they 

can identify with, how that is impacted as you get larger and larger? 

Judge TALLMAN. Mr. Chairman, you are recalling, I think, both 

my oral and my written testimony from the April 2004 hearing, 

where I laid out the case for why the limited en banc process has 

not worked very well. I know Judge Roll is prepared to address 

that in his testimony, as well. But there certainly is a practical 

limit to how many judges can effectively hear a case en banc. 

We are now, as you know, going to experiment starting January 

1 with 15 judges, which I understand is about what the Fifth does 

when they sit en banc, but I also understand, and I believe Judge 

Tjoflat touched on this when he testified in April of 2004 that that 

was one of the deciding factors that pushed the judges of the old 

31

Fifth into agreeing that it was time to divide. They had an en banc 

hearing with 25, I think it was at that time, and it was just unmanageable. It was too many judges to try and wrestle with the 

issue effectively. 

Chairman SESSIONS. Perhaps— 

Judge SCHROEDER. Could I just respond? 

Chairman SESSIONS. I will say this, and then I will recognize 

you, that I am not aware in the Western world of a court this big, 

in the Western heritage of law that we have a court this big. It 

ceases—I think the question is, is it a court anymore? Is it just a 

vote, you know, some sort of who can get the most votes in this big 

to-do? So I think that is a legitimate concern. 

Chief Justice Schroeder, I will hear from you and then we will 

go to Senator Murkowski. 

Judge SCHROEDER. I just wanted to respond briefly with respect 

to size that we should keep this in perspective. There are fewer 

judges in the entire Ninth Circuit than there are in the State court 

system of Arizona. The former Chief Justice of the Arizona Supreme Court has testified previously—he was not Chief Justice at 

the time, but in opposition to a split of the circuit because in relation to other court systems in the court, we are not that big. 

Chairman SESSIONS. The Supreme Court of Arizona? 

Judge SCHROEDER. The Supreme Court of Arizona has five, but 

there are over 20 appellate court judges, intermediate appellate 

court judges in Arizona. 

Chairman SESSIONS. Well, we have those, too. I think we have 

nine on our Supreme Court, but as you said, I think traditionally 

it has been seven or nine. Some have had five. But I have never 

seen this one as large as the Supreme Court— 

Judge SCHROEDER. Of course, we are not a supreme court. 

Chairman SESSIONS. Well, that is true— 

Judge KOZINSKI. You could make us. 

[Laughter.] 

Chairman SESSIONS. Do you want to make that? 

Judge KOZINSKI. It is OK with us. 

[Laughter.] 

Judge O’SCANNLAIN. Well, Mr. Chairman, we are indeed the 

court of last resort for something like 97.6 percent of all Federal 

appeals, at least in our circuit, and it is pretty much the same in 

every other circuit. 

Chairman SESSIONS. In our court of appeals, I don’t know how 

they do the en banc. 

Judge Kozinski, and then—Senator Murkowski. 

Judge KOZINSKI. I think if you make us— 

Chairman SESSIONS. Senator Murkowski? 

Senator MURKOWSKI. Mr. Chairman, before I begin my questions, 

I have got a question to you. I understand we have got a group of 

five stacked votes that have just begun. Can I ask what your intention is in terms of the second panel and what you— 

Chairman SESSIONS. My intention would be for you to, I guess, 

finish with this panel. I think we need for—these judges have come 

so far, I think we need to make it complete today. 

Senator MURKOWSKI. OK. I appreciate that. I will be quick, then, 

with my questions. 

32

Judge Schroeder, you had indicated in your testimony the three 

reasons why it is imperative that we not move forward now. One 

of them was what we are facing with Katrina. The second was the 

immigrations appeals issues. And then the third you noted was the 

new litigation from bankruptcy reform and immigration reform. 

Last year, in April, I had also introduced legislation that would 

split the court. This was pre-Katrina, this was pre-bankruptcy reform, although we were certainly talking about bankruptcy reform 

and immigration reform and the immigration cases are certainly 

escalating. I guess my question to you is, you are saying, not now. 

In your mind, is there ever a point when it is appropriate, when 

demographics or whatever issues within the court would merit a division of some sort? 

Judge SCHROEDER. Senator, I am not religious on the subject. I 

think that times change, that things happen. I think that if we 

have experience with a court of 35 or of 40 active judges, if we do 

have that experience and find that that is too large and that it 

should not function, we should reconsider. I think that we can always look at what we are doing and benefit from our own experience and from the possibility of change. 

As I have indicated, we have moved from a court of 11 on an en 

banc to 15 because we are trying to respond to criticisms that the 

11 was too small. We—actually, our court liked the 11 because we 

thought it was an efficient use of resources, but we want to respond 

to criticisms and to adjust, and we are willing to work to see what 

changes may be constructive. We will work with you, what changes 

might be constructive in helping us deal more effectively with the 

caseload. 

Senator MURKOWSKI. I appreciate that openness and we do, I am 

sure, look forward to working with you and the others who have 

testified here today as we try to resolve these issues. 

You had also indicated—your comments were more to the stress 

on the administrative structure and I think, certainly in the presentation that I made and the Chairman here, our concern was 

more to the delay to the litigants, the justice delayed is justice denied approach. And I can appreciate that from an administrative 

point of view, we do need to be conscious of the costs. We do need 

to look to administrative efficiencies. 

But my constituents, again, are more concerned about when is 

my case going to be heard? We want to be able to answer to them 

and to respond to them. 

You have indicated that you had used to the court’s benefit technology, and that is necessary and it is important, but I recognize 

that even with all the advantages of the technology that I have at 

my disposal, I still have to read my clips. I still have to read my 

briefs. I still have to do that work. There are things that technology 

cannot make efficient. All of you judges sitting there know that you 

have to do the listening, you have got to do the reading, and no 

amount of BlackBerrys or computers are going to speed that up. 

Have we gotten to the point where we have utilized t technology 

as much as we can, but still, because of the nature of our courts 

and because of the process that requires that we have a human 

brain to process it at the final outcome, how much more can we 

squeeze out of the Ninth? 

33

Judge SCHROEDER. Oh, we have learned to work smarter, Senator, and we have learned that when you have a volume of cases 

that have repetitive issues, that there are ways to deal with them 

that give adequate consideration, full consideration to those issues 

and yet still permit similar cases to, once the critical issue is decided, to be handled expeditiously. And there are ways that we 

have been able to do that and we can continue to do it. 

Other courts have done the same, because the volume of cases 

both in the State courts and the Federal courts has increased and 

we have adjusted to it and we have been aided greatly by technology and by new means of communication. But we also are very 

concerned, as Judge Kozinski has said, about maintaining very 

good relations with each other and I think we have superb relations with each other in the Ninth Circuit. 

Senator MURKOWSKI. It makes you wonder, though, when we 

count cases, it is just one, two, three, four five. But, in fact, one 

immigration case might be very similar, an Alaska lands issue that 

relates to laws that judges who have an expertise in immigration 

cannot be possibly able to prepare in a quick time period and I 

think this is where some of the frustration lies, is that all cases are 

not equal in terms of counting for caseload purposes. You have 

some, as was mentioned, whether it is an antitrust case or whatever the issue is, where we are trying to say in looking at a caseload that a number is a number and that there is some equivalency 

there and I don’t think that that is necessarily the situation that 

we are faced with. 

It is something that when we are looking to Senator Feinstein’s 

concerns about how we get to parity with caseload, that might be 

something that we need to review, as well, is the types of cases 

that are coming to us. If the types of cases that are coming out of 

Arizona and California are 85 percent immigration-type cases, how 

does that mean we might want to account for and move those cases 

around? Any comments on that? 

Judge KOZINSKI. There is no doubt about it, Senator, that Arizona and Nevada have a great deal more in common with California than they do with Alaska. That raises the question of what 

sense it makes to have a circuit that starts out at one end of the 

Mexican border and ends at the other end of the North Pole. 

The beauty of the current Ninth Circuit is that there is not a single State that has a common interest with no one in the circuit. We 

have California. California has a border with Mexico, but so does 

Arizona. We have water problems, issues which I understand is not 

a big issue— 

Senator MURKOWSKI. We want to solve your water problems. 

Judge KOZINSKI. Senator, you do that and you can take away a 

judgeship. 

[Laughter.] 

Senator MURKOWSKI. Is that a promise? 

Judge KOZINSKI. But it is not a big issue in Montana. It is not 

a big issue in Alaska. It is a huge issue and a huge shared issue 

in Nevada, Arizona, and California. 

Timber, frankly, is not a big issue in Arizona, I don’t think, but 

it is a big issue in Washington and Oregon—it is not in Nevada, 

either—and in California. 

34

The beauty of the current makeup of the Ninth Circuit is that 

all of us have to be experts in some areas. I am very proud to say 

that sitting right here at the front table and behind us, including 

Judge Kleinfeld, each of us, I think—and again, I don’t want to 

brag for myself, but just to speak for my colleagues—I consider 

each of them an expert in immigration law. Now, this may seem 

a simple subject to you, but believe me, it is an intricate field that 

requires a great deal of expertise and a great deal of understanding. And each of my colleagues, and I hope I also include myself, is not simply just familiar with it, but actually knows it quite 

well. 

Now, I think it would be a great loss, and I think that experience 

learned from, in Judge O’Scannlain’s case, 19 years on the court, 

Judge Kleinfeld, 15 years on the court, would be lost because there 

would not be very many immigration cases coming out of the 12th 

Circuit. What we are doing is then having a bunch of rookie judges 

deciding these cases. It may seem easier than your conspiracy 

cases and than your no-conspiracy cases, but trust me, Mr. Chairman, they are hard. They are much harder than you would imagine. 

What we have in the circuit now, where each of the judges is a 

generalist and at the same time is an expert. But we have no case, 

no State that has a single interest that isn’t shared by at least one 

other State. This is a strength, Senator. This is a strength we 

should not give up. 

Senator MURKOWSKI. Let me ask you just very quickly down the 

line— 

Chairman SESSIONS. Go ahead, if you will be brief and— 

Senator MURKOWSKI. I will be very quick and I will ask everyone 

to, as well. 

Chairman SESSIONS [continuing]. If you ask your question and 

the answers will be brief— 

Senator MURKOWSKI. You all have years and years of experience 

on the bench. Since coming to the Ninth Circuit, what has the increase in caseload done to your quality of life? Judge Schroeder, we 

already know that you are giving up your anniversary to be here 

to testify and we do appreciate that, but what does it mean to your 

day? 

Judge O’SCANNLAIN. Well, a very practical answer in my case, I 

came on in 1986 when we were doing about 180 cases per judge 

per year, which meant that I was responsible for about 60 decisions, 60 opinions per year in the late 1980’s. Now, we are well 

past 500 cases per judge. We have tripled our productivity and we 

have enormously expanded the amount of time that it takes to get 

to maintain that. 

The one thing that I will say is common to this court, but it is 

no different to any other court, is that I think we have an enormously strong work ethic and we really work very, very hard to try 

to bring those numbers down. That is why it is so embarrassing for 

us to be known as the slowest circuit in the country, because it is 

not from any lack of effort on our part, at least in terms of the 

judges that are here now. 

35

The problem is the load. It has tripled in my lifetime. If you go 

back to Judge Browning, who was appointed in 1960, it is probably 

a tenfold increase in load. 

Senator MURKOWSKI. So yours has tripled? 

Judge O’SCANNLAIN. Yes. 

Senator MURKOWSKI. Judge Tallman? 

Judge TALLMAN. The biggest supporter of the split is my wife 

and it is because she never sees me. I travel, on average, between 

case and court Committee work, at least half of each month, two 

out of 4 weeks. And the caseload has increased by 70 percent in 

the 5 years that I have been on the court, 2000 to 2005. You bet 

that has an adverse impact on the family life of our judges. There 

is a limit, there is a breaking point beyond which machines cannot 

replace human endurance and families suffer. I know your families 

pay a high price, as well, for your sacrifice. 

Senator MURKOWSKI. Did you say you live in Seattle? 

Judge TALLMAN. I do. 

Senator MURKOWSKI. And yet you said you only had 5 days last 

year— 

Judge TALLMAN. Five days. I sat hearing cases in Seattle 5 days 

last year. The rest of the time was in California or some other part 

of the circuit, and that does not make my wife very happy. 

Senator MURKOWSKI. Judge Schroeder or Kozinski? 

Judge SCHROEDER. The tip of the iceberg is the time that we 

spend in court hearing cases, because we do our work in the chamber, and the court does not sit in Phoenix, so I spend all of my time 

in hearing cases outside of my home chambers, but I am able to 

do that because I am able to travel and I have learned to do it. 

I regard it as the greatest honor and privilege one can have, to 

be a United States Circuit Judge. I regard being a United States 

Circuit Judge of the Ninth Circuit as the best job that the law has 

to offer. I regard the diversity of the geography, the people, the joy 

of working with colleagues who are smarter than I am is wonderful, and one of the greatest experiences I have is when I am able 

to travel to Alaska. I have done so with my husband several times. 

It is a wonderful place and it— 

Chairman SESSIONS. Judge Schroeder, our vote is down to one 

minute, I think— 

Judge SCHROEDER. Excuse me. 

Senator MURKOWSKI. Thanks for the compliment. I appreciate it. 

Chairman SESSIONS. and they are not going to carry them much 

longer. They are getting serious. Obviously, we don’t think they are 

real serious, but they are more serious, and so the extra time that 

we sometimes have—and Judge Kozinski, thank you— 

Judge KOZINSKI. My answer is very simple. When I got appointed 

20 years ago, I got about 4 hours’ sleep and I still get about 4 

hours’ sleep. I insist on it. I don’t care how hard the work is. I am 

going to get my 4 hours no matter what. 

[Laughter.] 

Chairman SESSIONS. One thing I would note under the bill as I 

see it that Senator Murkowski has proposed, a new Ninth Circuit, 

yes, the new 12th Circuit would have 340 cases per judge, but the 

new Ninth Circuit with their new judges would have its caseload 

36

fall from 560 to 511, and that would not be out of line with at least 

half a dozen other circuits. 

I wish we could continue this. Our other panel, let me tell you, 

sometimes we have been able to work back and forth between the 

votes. I don’t think—they are keeping the time tighter now. We are 

supposed to have five votes. That can mean almost an hour. Our 

goal would be to be back here in about 45 minutes to have the next 

panel, but I am sure it will be at least 30 before we get back. I 

apologize. 

[Recess.] 

EVENING SESSION[6 p.m.] 

Chairman SESSIONS. The Committee will come to order. 

That spasm called a series of votes took longer than it should. 

While Senator Murkowski and I were working away, they were voting and we missed the first of the votes. It wasn’t close, it didn’t 

affect any outcome, so you have to get there. But then they slowed 

down. If they had moved on at that same speed, we would have 

been here sooner and I apologize very much for interrupting what 

has been a remarkably interesting and important hearing, I think. 

So we have our second panel. Senator Feinstein told me she will 

be here. She was just voting when I was and perhaps some of our 

other members will be able to return. 

On this panel, we will gain more insight into the Ninth Circuit 

as we will explore the possibility of housing a new 12th Circuit in 

Phoenix, again, without having to build a new courthouse to do so. 

We will hear from four witnesses. The first witness will be Judge 

Andrew Kleinfeld, appointed to the Ninth Circuit in 1986. Judge 

Kleinfeld traveled all the way from Fairbanks, Alaska. I saw Senator Stevens just a moment ago and told him you were here. 

The second witness will be District Judge John Roll, appointed 

to the United States District Court in Tucson in 1991, and we will 

hear from Judge Sidney R. Thomas, appointed to the Ninth Circuit 

in 1995, and from Chief Judge Emeritus Marilyn Huff, appointed 

to the U.S. District Court for the Southern District of California in 

1991. 

Senator Murkowski, we are glad you are here. Thank you for 

coming back. 

Judge Kleinfeld, we will start with you, and we will try to keep 

this to 5 minutes. It is getting late. But if you need time to wrap 

up, that will be all right. 

STATEMENT OF ANDREW J. KLEINFELD, CIRCUIT JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, FAIRBANKS, 

ALASKA 

Judge KLEINFELD. Thank you, Mr. Chairman. I very much appreciate your inviting us and allowing us to be heard on this, and I 

am especially proud and grateful as an Alaskan to see my fellow 

member of the Alaska Bar Association, Senator Murkowski, in this 

august body. I really appreciate it. 

The basic theme of my colleagues who oppose a split is if it ain’t 

broke, don’t fix it. It has been just the way it is since 1891, except 

that we added Hawaii to it, and that is not that long a time and 

nothing much has changed that requires a change of the Ninth Circuit. 

37

My basic theme is, there is no reason to hold the other States 

hostage to California. California is so big that it cannot be part of 

a traditional appellate court. Any appellate circuit that California 

is a part of has to be different from a traditional appellate court. 

There is no help for that, but there is no reason to impose it on 

everybody else. 

The big question, I guess, if you are trying to decide which advice 

to take is, is it broke? Has anything changed since 1891? Well, five 

Supreme Court Justices, disinterested persons who are more expert 

than anyone else in the quality of our work, say that it is broke, 

the late Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, 

Justice Stevens, and Justice Kennedy, who served on our court. 

Now, that is a very broad spectrum of the Supreme Court. There 

is nothing ideological about that group of five. 

What I think is notable to them is not even the rate of reversals, 

but the rate of nine-zero reversals. If a court gets reversed fivefour, there may be philosophical differences. When you get reversed 

nine-zero, that is not a philosophical difference, that is a mistake, 

and we are a real leader in nine-zero reversals. That is a bad thing. 

The White Commission also said that, after its considerable 

study, the Ninth Circuit was too big to be a practical appellate 

body. It recommended that for appellate decisionmaking purposes, 

the Ninth Circuit be divided into three divisions. My impression is 

that the White Commission report—I don’t really know anything 

about politics and you do, but my impression is that it was dead 

on arrival because it proposed to split California and it was terribly 

complicated, but they just didn’t think it was practical to have such 

a big circuit all sitting together. 

Judge Richard Posner of the Seventh Circuit did one of those 

quantitative economics analyses that he is famous for and concluded and demonstrated in his article about it that the high error 

rate of the Ninth Circuit, and by error, he is thinking nine-zip reversals, is caused by excessive size. He looked at all courts, and basically, bigger court, more mistakes. 

Why? It is plain and simple. We are too big to rehear cases en 

banc and we are too big to read each other’s decisions. What Senator Murkowski said is absolutely right. The technology doesn’t do 

you any good. The problem isn’t getting it into our computers, it 

is getting it from our computers into our heads. They say your 

head size grows when you become a judge, but it doesn’t grow 

enough to hold everything that is coming from all the other judges. 

I suggest to you that the draws on our court, combined with its 

size and its partial en banc, make the law a game of chance in the 

Ninth Circuit and law should not be a game of chance, and the Supreme Court can’t fix our mistakes. Eighty cases a year, their docket, isn’t enough to fix whatever mistakes are in 8,000 decisions of 

the Ninth Circuit. Too many balls are flying at them. 

As for how to split it, my own view is you have got two choices. 

You can split it into two like the bill pending and it is just like the 

split of the Fifth into the Fifth and the 11th, perfectly practical, 

but we will be back because Nevada and Arizona are growing so 

fast. 

You can split into three, Alaska, Washington, and Oregon in one 

circuit and the remaining States in the other, or you could add 

38

Montana and Idaho to the Northern Circuit. It doesn’t much matter. Adding them to the Northern Circuit makes some sense because Arizona and Nevada are the fastest growing States in the 

country. If you do that, then both of those circuits become very 

much like the Tenth Circuit in size. 

Senator Feinstein is right that California needs a lot more 

judges. We need 21 judges for California’s caseload now. We asked 

for ten in the fall of 1992, after asking for zero in 1990. In the fall 

of 1992, we asked for ten. Our caseload is vastly greater than it 

was then. But it can’t be a traditional court with so many judges. 

It is just an address list or a data base from which you draw 

courts. 

Even though it has to be different from the other circuits, there 

is no reason that the law and the legal system has to be different 

in all those other States. What is worse is, if you try to keep everything together, it can’t be done right. Right now, a judge on the 

Ninth Circuit sits in Alaska about once in eight years. There is no 

way that a Ninth Circuit judge can be sufficiently knowledgeable 

in the unique Federal law applicable to Alaska, sitting that infrequently. The Alaska National Interest Lands Conservation Act, the 

Alaska Native Claims Settlement Act, Indian law is totally different in Alaska from every place else. It can’t be done. The cases 

are especially big and complex. 

And as for the size, I can’t even call people in Phoenix on the 

phone for a lot of the day because there is a 1-hour time difference 

and a 2-hour time difference for half the year. 

Finally, to wrap up, I have never understood why this is so controversial. We are not talking about seceding from the Union. This 

is more like splitting up a regional office of the Veterans’ Administration. If Congress split a regional office, you would expect some 

squawks from the present and the future regional administrators, 

whose fiefdoms were reduced, and from people who feared a RIF 

or a relocation. But if it was a good idea for the veterans, you 

would do it. 

This is a good idea for America, and it is entirely up to you. The 

stuff about how you are attacking judicial independence, it is nonsense. It says right here in the Constitution that the judicial powers for cases and controversies, and it says that the power to ordain 

and establish inferior courts is Congress’s. You don’t need our advice and consent. 

So I urge you to do it. It has been 114 years. It is about time, 

now that those other States have filled in population, lots of it, that 

they have a traditional appellate court to go to. 

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

Chairman SESSIONS. Thank you. 

We did go over, so if you could stay with us on the time. Judge 

Roll? 

STATEMENT OF JOHN M. ROLL, DISTRICT JUDGE, U.S. 

DISTRICT COURT, DISTRICT OF ARIZONA, TUCSON, ARIZONA 

Judge ROLL. Good evening, Mr. Chairman and Senator Feinstein 

and Senator Murkowski. First of all, on behalf of all the members 

of the panel, I want to express our appreciation for the chance to 

39

be heard. I know that the first panel was very invigorating and I 

know what an inconvenience it had to be to come back and hear 

us and we appreciate the opportunity to speak to you. 

I am John Roll. I am a District Judge in the District of Arizona. 

I am next in line to become Chief Judge. That will be next year. 

Attached to the materials that I submitted in my written testimony 

is a letter from former Chief Judge Robert C. Broomfield, and he 

joins with me in strongly supporting the formation of a new 12th 

Circuit Court of Appeals. 

He also adopts the conclusions contained in the report concerning 

available space for courtrooms in Phoenix. There are two courthouses in Phoenix, the Sandra Day O’Connor Courthouse at 401 

and the 230 North First Courthouse in Phoenix. Both of those 

courthouses have adequate room to house a circuit executive’s 

headquarters immediately, for the immediate future. There is not 

a need to construct new courthouses, and the significance of that 

is, of course, the figures from the Administrative Office which were 

offered earlier today describe the need for an $84 million new 

courthouse in the event of a circuit split. 

For the short term and even likely for the mid-term, that is not 

true. For the long term, of course, the West is growing, and as one 

witness has already mentioned, Nevada is the fastest growing 

State in the country by percentage and Arizona is second, so there 

will be growth that will ultimately require in the long term, perhaps, a new courthouse, but not in the short term. 

Judge Browning, another former Chief Judge from the District of 

Arizona, testified before you 6 years ago. In his testimony, he said 

in his work with the White Commission, he repeatedly asked split 

opponents, how big is too big, and when Judge Browning testified 

before you 6 years ago, the population in the Ninth Circuit was 

51.4 million people. It is now 58 million people. When Judge 

Browning testified before you 6 years ago, the caseload of the 

Ninth Circuit was under 9,000. It is now about 16,000 cases. When 

he testified, the median time for decision was 14.4, and it was 

among the slowest. It is now the slowest at 15.4 months. 

When he testified before you, there were 28 circuit judges that 

were authorized for the Ninth Circuit. There are still 28, but another seven are being requested and really are needed. If seven 

more are added, the Ninth Circuit will become three times the size 

of the average circuit, active judge circuit size for the other circuits. 

This creates some problems, all related to the limited en banc, 

and I would respectfully submit and incorporate my comments on 

that. I think that it is structurally flawed. The limited en banc results in only 11 judges sitting. It will be 15 after the first of the 

year. The votes, as I included in my appendix to my testimony, indicate that currently, since the White Commission, one-third of the 

en banc votes are by six-to-five or seven-to-four votes. That means 

six or seven judges are speaking for a court of 28. When 15 judges 

sit, it will be eight or nine judges speaking for a court of 28. 

It results in some odd results. First of all, because whether a 

case goes en banc is determined by whether a majority of the 

judges on the court vote for the case to be heard en banc. Our court 

is so large, it takes 15 votes for that to happen. There weren’t 15 

40

votes for medical marijuana, for euthanasia, for any number of 

other cases that I point out and they were never heard. 

There is, in fact, a recent case, the Bactine v. Bayer case, that 

was recently decided by two-to-one. There was a ruling by a panel 

that the Supreme Court’s Crawford v. Washington case would be 

retroactive. Nine judges, including four circuit judges who appeared 

before you here today, voted for rehearing. They said five other circuits have looked at this already and they have concluded it is not 

retroactive. We should take this en banc. They didn’t have enough 

votes. It will probably become one of the latest cases by the Supreme Court to be unanimously reversed when it was decided by 

a panel but never heard by the full en banc. 

Justice Kennedy in his letter to the White Commission said a circuit that wants to be outside the normal scope of a regular circuit 

court in the United States should bear the heavy burden of showing that, in fact, there is a reason for that, that there are compelling reasons, and Justice Kennedy, who served on the Ninth Circuit, said there has been no such showing. 

If the Senate and the House leave it up to the Ninth Circuit to 

decide when it is time for a split, I submit that, as Judge Browning 

said, when will a circuit be too big? The answer from the circuit 

will either be never or the answer will be, we will tell you, and respectfully to the Ninth Circuit, it is not a Ninth Circuit decision. 

It is a Congressional call. Thank you. 

[The prepared statement of Judge Roll appears as a submission 

for the record.] 

Chairman SESSIONS. Thank you, Judge. 

Judge Thomas? 

STATEMENT OF SIDNEY R. THOMAS, CIRCUIT JUDGE, U.S. 

COURT OF APPEALS FOR THE NINTH CIRCUIT, BILLINGS, 

MONTANA 

Judge THOMAS. Thank you, Mr. Chairman. I want to also thank 

you and the other Senators for coming back from the vote. We appreciate your time today and also appreciate the extra time you are 

giving. 

My name is Sid Thomas. I am a Circuit Judge. I have chambers 

in Billings, Montana. I presently serve as the en banc coordinator 

for the Ninth Circuit, the death penalty coordinator. I sit on the 

Executive Committee. As I testify here, my views are, of course, my 

own. 

You have my written testimony and I will not repeat that, but 

I did want to address a couple of issues today, and I want to take 

perhaps Senator Kyl’s challenge to step back a bit and see what 

kind of judicial administration we want for the—how to administer 

justice best in the West. If you look at the data and step back, I 

think you will find that the Ninth Circuit, and a large circuit, is 

the best way to administer justice effectively. 

There has been a tremendous change in the case mix of the Federal courts, not only in the Ninth, but in particular the Ninth, over 

the last 20 years. It used to be that population growth and caseload 

growth were correlated. They are not. In fact, you take away the 

immigration cases, our caseload has actually decreased in the last 

5 years. Every other category of cases is decreasing. Partially, that 

41

is due to reforms from Congress in the Prison Litigation Reform 

Act, the Anti-Terrorism Act, and others. But the fact is, the caseload is decreasing in the Ninth Circuit that is non-immigration-related. 

For some areas of the country, this has been a long-term trend. 

In the Northwest, it has been completely flat for about 20 years. 

It has not increased, even though the population has increased. 

The reason is that we have a lot more ‘‘pro se’’s filing. We have 

a lot more administrative appeals. So we cannot assume for the future that we are going to have population increase, caseload increase justification for additional judges. 

What the case mix now means is that we need to have a strong 

central staff to engage in triage and let judges do judging. If the 

Ninth Circuit is split, we will take valuable resources, we will replicate them, we will significantly increase delay. We will not solve 

delay. Let me explain why that is. 

Right now, 80 percent of our cases are dealt with through nonjudicial panels, that is, cases processed through our staff attorneys. 

The Ninth Circuit, because it has been able to aggregate resources, 

has saved judges an enormous amount of time in ways that other 

circuits have been unable to duplicate. Let me give you a couple 

of examples. 

We have an appellate commissioner. No other circuit has that because they can’t afford it. The appellate commissioner resolved 

4,600 motions that would have been heard by judges last year, 

about 1,200 fee petitions. 

Our circuit mediators resolved about 900 appeals. Now, to put 

that in context, the entire output of the D.C. Circuit on merits 

cases was 500 cases last year. Our mediators resolved 900 cases, 

and they enjoy success much greater than any other circuit because 

they have critical mass. 

Our staff attorneys resolved 6,000 procedural motions, and that 

is done by triage to make sure that we don’t have procedural waivers, by focusing in on that. That centralized staff is critical to handle volume. 

If the Ninth Circuit is divided, no matter how it is divided, those 

resources will be lost, and we know that because we can look at 

other circuits and see what kind of staff resources they have. We 

track cases by inventory, and so therefore when a precedential case 

is made, we have resolved up to 200 cases at a time. No other circuit has that sort of resource. 

So what is the issue now? We are looking at delay. The Ninth 

Circuit hasn’t been the slowest circuit over the last 10 years. The 

Sixth Circuit generally has, and the Second Circuit. The White 

Commission found that delay is not related to size. 

Our delay problem started in the early 1990’s when a third of 

our court was vacant. We built up a delay in that period that Senator Kyl was talking about between submission of briefs and oral 

argument. We were able to bring that fairly current until the onslaught of immigration cases. Immigration cases have increased 

570 percent in the last few years. As I said, our other caseload has 

only increased 1 percent. 

If you take the resources available to us and you divide them and 

you strip them, it is sort of like if you have a restaurant where you 

42

have a slow wait staff and you think the solution is to divide the 

restaurant, hire more chefs, fire a lot of the wait staff in the kitchen, it is going to be slower. It will be significantly slower in terms 

of delay. 

So I think we need to put this in a broader context and look at 

the assets. Now, can we do things better? Of course, we can. If you 

take a look at spot delays, for example, if you take the States of 

Montana and Alaska with low caseloads, we can eliminate the spot 

delays in those areas fairly quickly, and those are solutions we can 

do without restructuring the Ninth Circuit. 

But what will happen with the Ninth Circuit is you won’t solve 

any of the problems. We will still have a limited en banc system 

in California because that will have over 20, 25 judges. You will 

still have all of the other attendant problems that people are discussing today. You won’t have solved anything. 

The better approach is to, I think, reinvent the judiciary, make 

it more effective. We try to do that every year. We try to be responsive to what your concerns are and we certainly want to work with 

you in the future. But I think for the present, if you look at the 

data carefully, it only supports keeping the Ninth Circuit together. 

Thank you, Mr. Chairman. 

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

Chairman SESSIONS. Thank you, Judge Thomas. 

Judge Huff? 

STATEMENT OF MARILYN L. HUFF, CHIEF JUDGE EMERITUS, 

U.S. DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO, CALIFORNIA 

Judge HUFF. Thank you. Last but not least, I am Marilyn Huff, 

the former, immediate past Chief Judge of the Southern District of 

California District Court and I am also speaking for our current 

Chief Judge, Hon. Irma Gonzalez. Together, we oppose the split of 

the Ninth Circuit because the split will reduce resources for the 

district courts, hurt administrative sharing, result in a waste of 

taxpayer money, and further splinter enforcement of our borders. 

There is a reason I am passionate on the resource issue. Senator 

Feinstein knows me well, as perhaps many of you do on this issue. 

Senator FEINSTEIN. May I interrupt you for just a moment? I 

didn’t have a chance to introduce Judge Huff. She is a bright star. 

She is an amazing judge. I have had occasion to talk with her and 

to watch her and California is very proud of her. I just want you 

to know that. 

Judge HUFF. Thank you. I share the respect for Senator Feinstein because she is right on this issue. This is lose-lose on the resource issue, and this is why. 

Our court already experienced a tremendous increase in caseload 

and then a tragic loss of judges due to illnesses and death and we 

clamored for help. We were forced to rely on volunteer judges, 

which is the proposal of this split. The volunteers are helpful, but 

you can only do crisis management with volunteers. You can do no 

long-term planning and it doesn’t work. 

43

The split proposals, all of them, end up with 72 percent of the 

work in the circuit with California, and so the split is not fair and 

it is not equitable. Because of our experience, this is a problem. 

Next, splintering enforcement of our borders. We share the border with Arizona. This would only further exacerbate the problems. 

Right now, Border Patrol can bring cases either in Arizona or in 

California and we have an administrative sharing agreement. That, 

on one of the split proposals, would go out the window. 

Next, the issue of administrative sharing. Because of size, the 

Ninth Circuit has actually done some positive things. The Jury 

Committee, one of our critical components, improving service for jurors. Our Capital Case Committee has saved millions of taxpayer 

dollars by instituting rigorous case budgeting requirements for the 

lawyers. It has been wonderful. Our Fairness Committee has promoted equal justice of the law. And then finally, we believe our 

Wellness Committee has resulted in promotion of health for our 

most important resource, our people. 

And then, finally, the issue of cost. Because we are going to end 

up with too many cases, 72 percent of the cases in one circuit, then 

it is going to unnecessarily waste taxpayer funds to duplicate the 

administrative staff necessary to handle a new circuit. 

So in conclusion, I believe that it is improper at this time to have 

a split of the Ninth Circuit and I note that I am ahead of my time. 

[Laughter.] 

Chairman SESSIONS. Thank you very much, all of you. 

[The prepared statement of Judge Huff appears as a submission 

for the record.] 

Chairman SESSIONS. I guess I want to say, everybody has got 

numbers and everybody has facts. I remember one time in Alabama 

there was a dispute within the Republican Party about whether the 

Presidential electors should be given based on a winner-take-all or 

a proportional representation. We heard the other day California is 

still winner-take-all. So they had this big fight and they made the 

most eloquent arguments. But when it was over, everybody that 

was for Ronald Reagan voted for winner-take-all because they 

knew he was going to get the most votes, and everybody that was 

for George Bush voted the other way because they wanted at least 

a few of the votes. I don’t know why that made me think of that. 

[Laughter.] 

Chairman SESSIONS. I almost want to say, why are you really for 

splitting and why are you really against splitting? 

Let me ask a few questions and I will pass on my time. Judge 

Thomas, both you and Judge Huff say that you think somehow 

there would be—you say in your written statement there would be 

an increase in delays and a reduction in access to justice. 

Judge THOMAS. Yes. 

Chairman SESSIONS. That did not happen when the Fifth split, 

and, in fact, they have the most efficient circuit, the 11th and the 

Fifth, too, are two of the most efficient, productive circuits there 

are, both of which, if I am not mistaken, the Fifth has 567 case per 

judge, more than the Ninth, and the 11th has 642 cases per judge, 

40 percent more than the Ninth Circuit per judge. 

So I guess I am going to ask you really honestly, why do you all 

think this is going to be some bureaucratic, expensive deal? 

44

Judge THOMAS. Well, I do really believe that and it is not a partisan issue on our court. On a bipartisan basis, the vast majority 

of our judges want to keep the circuit together and we are talking 

appointees from Kennedy through Carter through Reagan, Nixon, 

and George Bush. 

Chairman SESSIONS. But is it all because of money? 

Judge THOMAS. No, it is not just all—and the reason, if you look 

back to what happened when the Fifth was split, as I mentioned, 

the case mix was so different. Every case was argued. Every case 

was a real case. Now, 40 percent of our cases are pro se and it 

takes a lot of staff to get through those cases. If you have a pro 

se case in chambers, it takes a lot of time for judges and for the 

law clerks, the available law clerks. We have an effective pro se 

unit and we require every pro se case to go through that. That is 

40 percent of our cases. That is about 5,000, 6,000 cases last year 

in the Ninth Circuit alone. 

So things are far different, and what I think the 11th Circuit figures suggest is that we have some room on our court to be even 

more efficient before you need to split. If you can get those numbers up, we still have a substantial reduction— 

Chairman SESSIONS. You want more judges, I mean— 

Judge THOMAS. Well, we do, but, you know, it is not the key to 

get more judges. I think if—it is like too many chefs, really, at the 

restaurant. If you have more judges and they are forced to— 

Chairman SESSIONS. Well, why do you not want to split it? I 

mean, OK, you are saying we can be more efficient and we don’t 

need a lot more judges. But what is it that causes you to draw back 

from what from my perspective is the perfectly logical thing? 

Judge THOMAS. If it would solve the problems and if I thought 

it would, I certainly would support it. But, in fact, it is going— 

Chairman SESSIONS. What problems? I mean, I am just saying 

collegiality, coherence in your opinions, less reversals by the Supreme Court, perhaps more ability to hold—we heard from the 

Chief Judge—she is back there shaking her head, but we heard 

from the chief judges of the Fourth Circuit, the chief judges of the 

11th Circuit passionately argue that they think 12, 13, is really 

getting large, and if you get much larger than that, you can’t operate a court effectively, and they would never— 

Judge THOMAS. They didn’t have our experience, though. We are 

able to get along collegially quite well. I see my friends and colleagues much more than I do the district court judges who are 

across the alley from me. We talk all the time. We do have a fairly 

close-knit circuit. So despite those fears, we have—the 11th Circuit 

has survived because of their very heavy reliance on visiting 

judges. That is the tradeoff they made. They have a third of their 

published opinions involve visiting judges and they decided to expand that way, which, of course, is an option to us, but we haven’t 

used visiting judges to the extent that the 11th Circuit has. 

Why am I really against it? Because I think we understand that 

if this is split, California and the Arizona-Nevada sections, we will 

be in such a deep hole, we can’t dig out in our judicial lifetime, 

both administratively— 

Chairman SESSIONS. What do you mean, you can’t dig out? 

45

Judge THOMAS. The caseload. Right now, we are doing quite well 

with the caseloads, but if take away— 

Chairman SESSIONS. I have already gone beyond my time, so— 

Judge THOMAS. But if you take away those essential tools that 

we have to deal with the case management now— 

Chairman SESSIONS. Why would they take those away? 

Judge THOMAS. Because they aren’t available. Those resources 

aren’t available in smaller circuits. The judiciary budget is based 

on— 

Chairman SESSIONS. Well, let us stop there. Why would they 

take away what you have already got, and why would we take 

money from a district court that has no real—I mean, you are just 

going to try the same number of cases and they are going to appeal 

the same number and it is going to go up there. Why are you worried? I don’t understand this. 

Judge HUFF. Could I answer? 

Chairman SESSIONS. I think there is something more at stake 

here. 

Judge HUFF. Could I answer that? Because of our experience, the 

formula for funding the judiciary primarily comes from number of 

authorized judges, not from your caseload. So if the California circuit has 72 percent of the cases, they will not get the same proportion of resources and so you are not able to then have staff— 

Chairman SESSIONS. What does that have to do with the District 

Court in the Southern District of California, your district? 

Judge HUFF. If the circuit is—we care about delays of our caseload. 

Chairman SESSIONS. Well, all right. So you are speculating that 

they are not going to get enough, but this bill calls for seven more 

judges for the— 

Judge HUFF. You could pass seven more judges tomorrow with 

delinkage, which the Judicial Conference says, don’t link the two 

together. 

Chairman SESSIONS. OK. So that is what you would prefer. OK. 

My time is up and we have got— 

Judge THOMAS. May I finish, just one quick additional answer— 

Chairman SESSIONS. All right. 

Judge Thomas [continuing]. Is that we have been talking about 

the circuit court, but I think Judge Huff makes an excellent point 

on the district courts because you are splitting up the district 

courts, as well, and from— 

Chairman SESSIONS. They don’t work together. District courts 

don’t— 

Judge THOMAS. If I might, one of the reasons it is important to 

district courts is that we have the flexibility now, which you don’t 

have with intracircuit—as easily with intracircuit honing of judges. 

We sent judges down to help out when they had problems in the 

border States in Arizona and San Diego. We were down to one active judge in Montana and we were parachuting judges in at the 

last minute, and we could do that because we would pick up the 

phone and people could call judges. 

On the other hand, dealing with another circuit is entirely different. The Tenth Circuit—Montana borders Wyoming on the 

Tenth and we border the Dakotas on the Eighth. We couldn’t get 

46

any judges out of those circuits and they didn’t want to come for 

a lot of reasons, but one of them is, well, they say that is different 

circuit law. It was too cumbersome to get through the administrative procedure. 

But because judges have relationships, they can pick up the 

phone and do it, and we know there are going to be spot problems, 

whether it is on the border States, whether it is caused by the 

Exxon Valdez, whether it is caused by simple judicial vacancies. 

So for the district courts, it has been a great resource. And the 

other thing for the district courts is smaller circuits don’t have the 

resources in terms of courtroom management architects and so 

forth. In Montana, we have benefited greatly because we have a 

circuit architect who came in and said— 

Chairman SESSIONS. Well, those are reasons, but I don’t know. 

I remember that one of the best judges we used to get was from 

California. He would come down to Mobile to try cases every year 

because he was a National Fellow of the Camellia Society, and 

when we had the camellias in season, he came down and contributed wonderfully. 

Judge THOMAS. Yes. We entice people up with fly fishing in Montana. 

Chairman SESSIONS. People go all over the country, I know that. 

They go to Miami. They line up sometimes to go try cases there. 

But my time is over. Senator Feinstein? 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

See, this has become so difficult because the feelings are so 

strong about it and it is very hard to ferret it out. I mean, I have 

two concerns. One is, anyway, let us say California ends up with 

Hawaii, Guam, and the Marianas. It still is essentially one big 

State with 72 percent of the circuit, and even with the new judges, 

60 percent of the resources. That is a problem that has to be 

worked on. That is unacceptable on its face. 

But the thought, Judge Thomas, that you would lose those appurtenances and technology and assets that you have as part of a 

split, I don’t quite—how would that happen? I mean, you could 

draft a bill so that you keep them. 

Judge THOMAS. Well, let me explain why, and that is because 

there is a formula that drives judiciary budgets and we know what 

circuits can afford and what they can’t afford and we know what 

they can afford based on their size, and you look at what other circuits have been able to afford and what they can’t. They have to 

fund essential services, clerks’ offices, circuit executive offices, 

human resources, procurement, so forth. 

We have been able to aggregate resources and economize because 

we don’t need to duplicate all of those positions. You look around 

the United States. No other circuit tracks cases in inventory. 

Senator FEINSTEIN. So no other circuit— 

Judge THOMAS. No other circuit tracks their cases with an inventory system. No other circuit has an appellate commissioner. No 

other circuit has the success of our mediator’s office because they 

have some critical mass. So we do have a model and— 

Senator FEINSTEIN. Could you put that in writing for me? 

Judge THOMAS. Yes. 

47

Senator FEINSTEIN. In other words, what the circuit believes they 

would lose that they have that is indispensable with respect to the 

72 percent of the cases they would have. 

Judge THOMAS. Well, sure. And then to go on, it is not just the 

caseload, too, it is the type of case, as you discussed before. The 

death penalty cases pose a significant resource problem for us and 

those would be inequitably distributed in any circuit split. 

Senator FEINSTEIN. How many death penalty cases do you have 

in a year? 

Judge THOMAS. Well, it varies from year to year, but I can talk 

in the aggregate because we can look in the future. Obviously, 

there are over 600 inmates on death row in California. There are 

about 125 in Arizona. There are perhaps 70 in Nevada. 

If you look at the division of the death penalty cases alone between the different circuit configurations, if you take the present 

cases that are in the Federal system, 50 percent of the load would 

be California, 50 percent in Arizona, probably 1 percent or so in the 

Northwest if you split it that way. Long-term, you have got 60 percent or more cases—65 percent, I think, is the figure that will come 

out of California, 35 percent or so in Arizona, and those cases by 

our weighting system are weighted 24. They are very complicated 

cases. 

So it is not just the caseload. There is a disparity in terms of 

case complexity and the resources needed to have that. We are fortunate enough to have death penalty law clerks and death penalty 

assistants. Judge McNamee and others, Judge Moskowitz out of 

your district, have monitored the budgets of those cases and they 

have saved us millions of dollars and that is on their own time, and 

those are the district judges who give of their time. Those are the 

kind of resources we lose because people just don’t have time anymore, and that has been a tremendous cost savings. 

So, yes, it is going to be imbalanced on the death penalty side 

and also, I think it is going to be a lot more poorly administered. 

Senator FEINSTEIN. So essentially, what you are saying is because of your size, you have built a system which is irreplaceable 

and on which you depend for any modicum of efficiency— 

Judge THOMAS. Precisely. 

Senator Feinstein [continuing]. So that becomes important. Let 

me ask you another question. In terms of community of interests, 

are the community of interests between California greater with Arizona and Nevada or Oregon and Washington? 

Judge THOMAS. I think it depends on the issue involved. Of 

course, California was the source of all of the law for the Ninth Circuit originally, so they started with the field code. But if you talk 

about, for example, the fisheries issue, the issues concerning—any 

of the coastal issues, California has more in common with those in 

the Northwest, going up to Alaska. If you are talking about Native 

American issues, those issues involve not only Nevada and Arizona, 

but in Montana. Alaska is, as Judge Kleinfeld said, somewhat different. 

Senator FEINSTEIN. How do you respond to Judge Kleinfeld’s argument that Alaska has issues that no one else shares? 

Judge THOMAS. We all have issues that are unique to our States 

and we take time and a lot of study to make sure that we underVerDate 0ct 09 2002 11:30 Nov 30, 2005 Jkt 024710 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\24710.TXT SJUD4 PsN: CMORC
48

stand it because we are administering national law as it affects 

those issues. There are acts particular to Alaska, to be sure, but 

we are administering and interpreting national statutes. 

Senator FEINSTEIN. How about water in terms of the community 

of interest? 

Judge THOMAS. Well, there are water issues in Montana all the 

way down through. The water is a critical issue that unifies the 

States. Grazing issues, forestry issues, we have a lot of issues in 

common among the States in the West that aren’t shared perhaps 

in the East but are common to all of our States. And so the resolution of those issues in California or Arizona or Nevada or Montana 

are very important and needs to be consistently applied. 

Senator FEINSTEIN. My time is up. Thank you. Thank you very 

much. Thanks, Mr. Chairman. 

Chairman SESSIONS. Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

I want to continue along the line of questioning in terms of the 

resources and the concern that if we were to split, there would be 

a loss of resources. Under the legislation that I am proposing, the 

new Ninth, which California would stay, would still be the largest 

circuit in terms of caseload, in terms of population area, and in 

terms of judges. So we are going from a situation of being really, 

really, really big to just being really big. 

But you still have access, and I appreciate how the formula 

works. It is complex and we are not going to try to explain it here 

other than to acknowledge that there is a formulaic equation that 

is out there and the authorization of the judges is very critical in 

terms of the funding. But you would still be the court or the circuit 

with the highest authorized number of judges, and from what I 

have heard, Mr. Chairman, I think if there is one thing that both 

the proponents of a split and the opponents of a split can agree to 

is that more judges in the areas of the country where we are growing the fastest would be helpful and it is something that we should 

work to do. 

I appreciate what you are saying about the complexity of the 

cases and it goes to my point to the first panel that we really just 

can’t count the number of cases in looking at a caseload, that there 

is a weighting that would be appropriate depending on complexity. 

I think it again goes to the issues that we have before us. We can’t 

just look at the pie charts and the graphs and say, well, this is 

what we need to do. It is complicated. It is complex. 

But I guess I will be leaving this hearing today with three kind 

of findings that I have written down, and I think you articulated 

this, Judge Roll. Is it broke? I think that there are enough people 

in the Ninth Circuit and across the country that are looking at this 

and saying, yes, it is broke. I do not feel good telling my constituents that it is an accepted fact that, on average, you will have to 

wait 15-plus months for disposition of your case and that is just the 

way it is because we happen to live in the West. I don’t think we 

should accept that as a given. I think we should try to do better. 

So how do we do better? 

And then the second thing I am walking away with is, how big 

is too big, because I did hear Chief Judge Schroeder say, maybe we 

are not there yet, but that she would retain an open mind that we 

49

might 1 day get to that point in her opinion where it was too big, 

too unwieldy. But when we are at a circuit that is at 58 million 

and growing, and if we were to split that circuit, you still have a 

circuit that has close to 38—it is 37.5 million in the new Ninth and 

20 million in the 12th. The numbers, I think, are staggering, in my 

opinion. 

And then the third point that I am leaving with, Mr. Chairman, 

is certainly the recognition and the need to do more to assist to get 

additional judges out in the West. 

I am talking rather than asking a question and I think we are 

probably at that point in the evening where we are ready to call 

it a day, but I thank you for the hearing this afternoon, and to each 

and every one of you that has traveled so far and who gives so 

much, who gives so much to your State, to your circuit, to this 

country, I really appreciate what you do. I do hope that we are able 

to sit down and really evaluate what the options are. If this split 

doesn’t work, doesn’t make things better, then let us look at other 

options, but let us not just close the door and say, no further discussion. I think that this has been very productive and I appreciate 

the testimony that we have heard. 

Thank you, Mr. Chairman. 

Chairman SESSIONS. Thank you, Senator Murkowski. 

I would just like to ask a couple of quick things before we wrap 

up. Judge Roll, you studied, I know, carefully the Hruska and the 

White Commission reports. Would you share with us your comments, particularly as they relate to Judge Thomas’ evaluation of 

those reports? Do you have a different perspective on them? 

Judge ROLL. I do, Mr. Chairman, and I believe that it was also 

referred to in one of the other written statements in opposition to 

the split. Senator Hruska’s commission recommended a split of the 

Ninth Circuit. This was previously recommended. This was in 

1973. They recommended two splits, the Fifth Circuit and the 

Ninth Circuit. Only the Fifth Circuit ended up being split. 

The White Commission recommended three semi-autonomous divisions. I think it is important to recognize that Chief Judge Hugg, 

who was the chief at the time that the White Commission’s report 

was issued, said this is a de facto split of the Ninth Circuit and 

there is no reason, there is no need to do this. The White Commission, in fact, Judge Hugg wrote, and I think it was the University 

of California-Davis Law Review article that was published in the 

winter of 2000, said the White Commission didn’t meet its burden 

in showing that we needed to make these changes. 

I think it shows two things. First of all, I think it shows that the 

White Commission was not a clean bill of health for the Ninth Circuit and, in fact, recognized there were serious problems. I think 

it also represents the attitude of some of the people who oppose the 

split, which is we will tell you when it is time for a split of the circuit. 

Chairman SESSIONS. It is interesting, and I believe it was Judge 

Kleinfeld or one of the other witnesses—the day is long—that indicated that the Judicial Conference has moved from opposing the 

split to being neutral on the split, is that correct? 

Judge ROLL. That is correct. 

Judge SCHROEDER. No, it has never opposed the split. 

50

Chairman SESSIONS. Oh, it has not opposed it? 

Judge SCHROEDER. It didn’t take a position. 

Judge ROLL. I am sorry, Senator. My recollection is, and I believe 

that it is cited in the materials, the Judicial Conference previously 

did oppose a split. It is in the White Commission report. If you look 

in the White Commission report, it indicates that the Judicial Conference opposes a split. That is my recollection. 

Judge KLEINFELD. I think they said no court should be split without its consent, but this time, they said— 

Chairman SESSIONS. They read the connotation subsequent to 

that? 

Judge ROLL. Yes. 

Chairman SESSIONS. Let me ask you, Judge Roll, about a housing plan in Phoenix. Your Appendix E is very helpful on that subject. It lays out four alternatives that could be pursued at very little cost. You also include your letter from Judge Broomfield, which 

agrees with the findings of the housing plan alternatives report. 

Why would Judge Broomfield’s report be worthy of particular 

weight? 

Judge ROLL. Well, Judge Broomfield was the Chair of the Space 

and Facilities Committee at the time that the U.S. Courthouse Design Guide was actually formulated and he is intimately familiar 

with it. As the presiding judge in Maricopa County on the Superior 

Court and also the Chief Judge in the District of Arizona, he has 

been involved in courthouse construction projects, including in the 

Sandra Day O’Connor Courthouse. And, of course, he has gained 

great familiarity with courthouse construction projects and courthouse needs through his work as the Chair of the Space and Facilities Committee. 

I can’t imagine anyone deserving of more weight when he says, 

first of all, that there is available space in either 230 or 401 in 

Phoenix, and secondly, that the estimates that were previously 

given about how much space was required are about 20,000-plus 

square feet high. 

Judge KLEINFELD. Senator Sessions, could I add just a word to 

that? 

Chairman SESSIONS. Yes, and would you, if you would like to 

share a thought about the AOC’s report— 

Judge KLEINFELD. I do. 

Chairman Sessions [continuing]. Which I thought breathtakingly 

tilted. 

Judge KLEINFELD. I do. I— 

Chairman SESSIONS. Would you agree with that? 

Judge KLEINFELD. Well, here is the thing. You have got a unique 

opportunity right now for an odd, coincidental reason. Three district courts in critical places—Seattle, Portland, and Arizona—have 

just moved into new courthouses. What that leaves you with is 

three empty or nearly empty courthouses in the critical places to 

put circuit headquarters, whether you split it two ways or three 

ways. You can do it basically for free, or close to it by Federal Government standards. 

[Laughter.] 

Chairman SESSIONS. Well stated. 

51

Judge KLEINFELD. If you look at page six of the AO’s report, of 

the exhibits attached to it, here is the gem. Bottom line, 

$94,698,936. Line if you go up a ways, new courthouse construction, $84,394,500. You will need to do that if you split the Ninth 

Circuit in 5 years because those abandoned courthouses, either 

they are going to be filled up or they are going to be excessed. My 

chambers is in a former Federal district courthouse that was 

excessed. It is now commercial space. But if you do it now, you 

don’t need to spend $95 million. You can spend $5 or $10 million. 

Chairman SESSIONS. I also was frankly troubled by the fact they 

threw in the proposal of seven new judges, which are probably 

needed for the circuit anyway, as a cost of the split. I mean, I don’t 

think you—so there are several things that made those costs look 

high. 

Judge Kleinfeld, tell me, as I understand it mathematically, 

there are 15,000 possible combinations of judges on the Ninth Circuit today who might become a panel to hear a given case. Would 

you share with us your thoughts about why that makes uniformity 

and coherence in the circuit more difficult? 

Judge KLEINFELD. Well, the greatest scholar of the common law 

process was Carl Lewellen, a professor at the University of Chicago. What he explained in his treatise and his many other 

writings was that the key to it is reckonability. All the law cannot 

be made by a court for any jurisdiction. 

Now, when I was a practicing lawyer in Alaska, I could predict 

what our Supreme Court would do, not just on the basis of its 

precedents, but because by reading its opinions, I knew the minds 

of each of the justices and I knew what they were going to do when 

they didn’t have a precedent and I knew when they were going to 

abandon a precedent. So it means that my clients could avoid paying me a lot of money to litigate things because the outcomes were 

very predictable. Good lawyers were not surprised much. 

When you have got these tens of thousands of possible combinations of judges and a gigantic, philosophically disparate court, 

when you basically just have a data base from which judges are 

drawn randomly, until you know your panel, you don’t know the 

outcome. 

As far as consistency and coherence goes, if we can’t even read 

each other’s decisions, how can we be consistent and coherent, and 

for the unpublished ones, it wouldn’t matter if we did read them 

because they are so terse. We don’t put in the explanations and the 

facts. You wouldn’t know if they were consistent or not. 

Chairman SESSIONS. But you publish 670 a year. Is it realistically practical for a practicing attorney who wants to keep up with 

the circuit to read those advance sheets, read those opinions? 

Judge KLEINFELD. Justice Kennedy said that when he was then 

Judge Kennedy on the Ninth Circuit, it was impossible, and that 

was back when we were a lot smaller. The other justices who wrote 

letters said they didn’t see how it was possible. 

Chairman SESSIONS. Well— 

Judge THOMAS. If I might add one thing, Senator, though, the 

Eighth Circuit has more published opinions than we do total and 

only 11 judges, and the Seventh Circuit just has about the same 

number. So size isn’t necessarily related to number of opinions. The 

52

attorneys and the judges on both the Eighth and the Seventh Circuit have to read the same number of opinions we do. 

Chairman SESSIONS. But it would be rather obvious that they are 

publishing more opinions than you are— 

Judge THOMAS. On a percentage basis. 

Chairman Sessions [continuing]. Which I salute you for not overpublishing. I think it is a bane on the law to have too many cases 

published. I really do. But I assume you pare that number down 

pretty close to as low as you can get. Maybe you could reduce the 

number of public opinions, but a published opinion does have 

value, and as big as you are, you are going to have to have a lot. 

Thank you for all of your interest. I absolutely believe that the 

American rule of law is the basis for our liberty and our economic 

prosperity, our freedom, and it sets us apart from the rest of the 

world. We can have international corporations come into Alabama 

or California and feel like they will get a fair day in court, that nobody is going to be able to demand a bribe, nobody is going to be 

able to confiscate their property or take their profits without due 

process of law. They feel comfortable investing here, coming to this 

country. American citizens feel like if they get in trouble with the 

law, they will have a fair day in court. We need to protect that heritage. 

I believe personally that we could probably reach those goals 

with smaller circuits, but we obviously have a different opinion on 

it. I have enjoyed the hearing very much. I thank each of you for 

the hard work you have gone to to give us the best information 

that you can. 

Senators Murkowski and Ensign and Kyl have all said that they 

want to be open to how to do this. I think they are pretty firmly 

convinced we need to do something, but they are open-minded 

about how to do it. I will be looking to the Senators from the circuit 

to give us leadership, but at some point, we just need to do the 

right thing for the American people and that is about all we can 

do. 

Thank you very much. Have a good day. The Subcommittee is 

adjourned. 

[Whereupon, at 7:01 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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