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COMMISSION ON STRUCTURAL ALTERNATIVES 

FOR THE FEDERAL COURTS OF APPEALS

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NEW YORK, NEW YORK

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PUBLIC HEARING

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THURSDAY

APRIL 16, 1998

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This transcript was produced from tapes provided

by the Administrative Office of United States Courts.
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INDEX

OPENING REMARKS

 N. Lee Cooper, Vice Chair .......... 3

TESTIMONY

 Edwin G. Schallert .............. 5

 Attorney at Law, New York, New York

 On behalf of the Association of the Bar of the 

 City of New York

 Judge John Newman ............. 23

 U.S. Court of Appeals, 2nd Circuit

 Professor Judith Resnik .......... 57

 Yale Law School

 Judge Joseph Weis ............. 83

 Chairman, FCSC

 U.S. Court of Appeals, 3rd Circuit

 Judge William Schwarzer .......... 103

 Former Director FJC

 U.S. District Court, N.D. California

 Judge Diarmuid O'Scannlain ......... 126

 U.S. Court of Appeals, 9th Circuit

 Judge Edward Becker ............ 145

 Chief Judge

 U.S. Court of Appeals, 3rd Circuit

 Elena Ruth Sassower ............ 174

 White Plains, New York

 On behalf of Center for Judicial Accountability
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1 P-R-O-C-E-E-D-I-N-G-S

2 VICE CHAIR COOPER: The hearing will come

3 to order. First I would like to introduce -- we are

4 pleased to have Judge Pam Rymer joining us from the

5 9th Circuit Court of Appeals by way of technology and

6 voice mail. These hearings are being recorded for the

7 benefit of the Commissioners that are absent. I am

8 Lee Cooper, Vice Chair of the Commission, a lawyer in

9 Birmingham, Alabama with the Law Firm of Maynard,

10 Cooper, and Gayle. 

11 We are pleased to have with us this

12 morning, as I said, Judge Pam Rymer from the 9th

13 Circuit, who is here by way of teleconference. We

14 have Judge Gil Merritt, former Chief Judge of the 6th

15 Circuit Court of Appeals, and we have Professor Dan

16 Meador, who is James Monroe Professor Emeritus from

17 the University of Virginia Law School and is Executive

18 Director of the Commission.

19 This is a public hearing called by the

20 Commission on the structural alternatives for the

21 Federal Courts of Appeals. This Commission was

22 created by Congress and charged with the following
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1 functions: 1) study the present division of the

2 United States into several judicial circuits; 2) study

3 the structure and alignment of the Federal Court of

4 Appeal system with particular reference to the 9th

5 Circuit; and 3) report to the President and the

6 Congress its recommendations for such changes in the

7 circuit boundaries or structure as may be appropriate

8 for the expeditious and effective disposition of the

9 caseload of the Federal Courts of Appeals consistent

10 with fundamental concepts of fairness and due process.

11 The Commission thus has a broad mandate to

12 examine the entire Federal Appellate system and make

13 recommendations to strengthen and hopefully improve

14 it. As was stated in the announcement of public

15 hearings, the Commission is interested in obtaining

16 views on whether each Federal Appellate Court renders

17 decisions that are reasonably timely, are consistent

18 among the litigants appearing before it, are

19 nationally uniform in their interpretations of federal

20 law, and are reached through processes that afford

21 appeals adequate and deliberate attention of judges.

22 The Commission has really much to do within a
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1 relatively short period of time since our final report

2 under Congressional mandate is due in December. 

3 In undertaking this important mission

4 concerning the administration of Appellate justice in

5 this country, the Commission welcomes the views of all

6 interested persons and organizations either as

7 witnesses at the hearing or in writing, and we are

8 pleased to have some distinguished witnesses with us

9 this morning. On behalf of the Association of the

10 City Bar of New York, we would like for you to

11 identify yourself for purposes of the record.

12 MR. SCHALLERT: Edwin Schallert.

13 VICE CHAIR COOPER: Pam, can you hear him?

14 JUDGE RYMER: Yes, I think so.

15 VICE CHAIR COOPER: Okay. Why don't we

16 try to move the microphone to the table, Ed. It is

17 certainly fine to stay at the table. See if that cord

18 will reach. Either way. If you are more convenient

19 at the table, the microphone will stretch.

20 MR. SCHALLERT: Distinguished members of

21 the Commission, Professor Meador, I am a member of the

22 firm of Devilweiss and Plimpton here in New York City,
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1 and I Chair the Committee on Federal Courts of the

2 Association of the Bar of the City of New York. I

3 greatly appreciate the opportunity to present the

4 Association's views as part of the Commission's

5 important work.

6 My written testimony on behalf of the

7 Association, which was previously submitted, could be

8 distilled into four points. First, we do not believe

9 there is any need at this time for significant

10 structural changes in the Courts of Appeals. Other

11 than possible changes to the 9th Circuit, as to which

12 the Association takes no position, we are deeply

13 skeptical of any material changes to the structure of

14 the Appellate Courts.

15 Second, the most pressing problem in the

16 Court of Appeals for the 2nd Circuit is not

17 structural. Rather, it is the problem of judicial

18 vacancies. With 5 vacancies, the 2nd Circuit now has

19 only 8 active judges. 35 years ago, the Court had 9

20 active judges. The Court's caseload has grown almost

21 tenfold during this period. Continuing vacancies

22 threaten to compromise the high standards of justice
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1 that litigants in the 2nd Circuit have long expected.

2 Third, the fact that even with vacancies

3 the 2nd Circuit has functioned as well as it has

4 provides powerful evidence of the resiliency of the

5 current Appellate Court structure, we believe. With

6 a full complement of 13 judges, or with the 15

7 judgeships for which authorization has been sought, we

8 believe the 2nd Circuit could indefinitely maintain

9 its traditional high standards for disposing of cases.

10 Even with vacancies, the 2nd Circuit consistently

11 ranks as one of the fastest Circuits with a median

12 time of filing to disposition of approximately 8

13 months. The Court also continues to afford the

14 opportunity for oral argument in virtually every

15 appeal. While the Court uses summary orders rather

16 than published opinions in over 60 percent of its

17 cases, those orders typically provide several pages of

18 reasoned explanation, unlike the conclusory

19 disposition that some Appellate Courts sometimes

20 issue.

21 The case for structural changes in the

22 Courts of Appeals has traditionally been premised in
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1 part on the effect of the growth in Appellate

2 caseloads on the quality of adjudication. For

3 example, in 1975, the Forusca Commission asserted that

4 Courts had kept case with rising appeals mainly

5 through "fundamental changes in the process of

6 adjudication", including widespread curtailment of

7 oral argument and decision without any indication of

8 the reasoning impelling a result.

9 This assertion is not accurate in this

10 Circuit. The 2nd Circuit had handled a several

11 hundred percent in its caseload without --

12 JUDGE MERRITT: Mr. Schallert, could I

13 interrupt you? We have your statement -- my name is

14 Merritt -- we have your statement which outlines these

15 recommendations. Do you think the Commission should

16 make a recommendation to Congress on the point you

17 just previously made concerning reasoned decisions?

18 That is that you made the point that you think there

19 should not be sort of one-line firm type decisions.

20 As you know, not the 2nd Circuit, but some Circuits

21 are or have been doing that recently. Do you think

22 that this is something the Commission should address
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1 in its recommendations to Congress?

2 MR. SCHALLERT: Well, Judge, I believe

3 that the notion of having reasoned explanations for

4 decisions is something that should remain a criteria

5 for assessing any potential change. Indeed, in the

6 long range plan of the Judiciary Committee, the

7 Judicial Conference that was issued in 1995, I think

8 they recited what they considered the basic hallmarks

9 of reasoned decisions. I think my only point is that

10 at least in this Circuit, the Court has been able to

11 handle a very large expansion of its caseload and not

12 compromise the quality of decision making in the sense

13 that it is still able to give reasoned decisions. I

14 am not sure with regard to what your jurisdiction is

15 whether that is something within your bailiwick. But

16 certainly from a litigant's point of view, there is a

17 better feeling of the quality of justice when there is

18 reasoned explanation as part of the decision, even in

19 the form of a shorter summary order that leaves the

20 parties feeling as if they have got a better

21 explanation of what has happened and that leaves them

22 feeling better about the process whether they win or
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1 lose. And certainly I have been on the receiving end

2 of both types of decisions. But I think the

3 explanation is a helpful one.

4 JUDGE MERRITT: Do you think it is

5 important for this Commission to address the judicial

6 vacancy problem when we report to Congress?

7 MR. SCHALLERT: Well, again, not knowing

8 exactly what is within the Commissions bailiwick, as

9 I indicated, that is the most pressing problem in this

10 Circuit and I believe in several other Circuits too.

11 I know there are some proposals for structural change,

12 I suppose, that have been advanced. Senator Leahy,

13 for instance, has proposed legislation that if an

14 emergency has been declared in a Circuit, the Congress

15 cannot recess until it addresses that. I am not sure

16 that there frankly is the need for a structural change

17 as much as frankly political movement by both the

18 Senate and indeed the nomination process. It becomes

19 so protracted in some cases.

20 JUDGE MERRITT: Do you have any

21 suggestions for how we do that?

22 MR. SCHALLERT: Well, I think reminders to
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1 Congress about the effect of vacancies on the day-to2 day operations of the Court is something that can't

3 hurt. It is certainly rather striking, as I say, in

4 a Court like this one where you see a Court operating

5 with frankly the same -- one fewer active judge than

6 it had 35 years ago. When the Chief Judge was a clerk

7 on the 2nd Circuit for then Judge Marshall, the Court

8 had more judges than it has today. That its not an

9 acceptable result.

10 JUDGE MERRITT: The 2nd Circuit has been

11 doomed so by having quite a large number of visiting

12 judges. There are other Circuits that have the same

13 problem. That is a mixed sort of thing. It is a

14 matter of survival. But certainly we agree. I don't

15 know -- the question of judicial vacancies is one that

16 has been a problem for Appellate Courts now for some

17 years, actually since the size of the judiciary has

18 increased. The question would be how to deal with

19 that. One way to deal with it in a more principled

20 way would be perhaps for the President, once the

21 vacancy has been there for a while, to have the

22 authority to just fill the vacancy with confirmation
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1 until Congress acts upon the recommendation one way or

2 another. That would be one principled way to deal

3 with it. What do you think of that?

4 MR. SCHALLERT: Well, the Association, let

5 me make clear, I don't know has taken any particular

6 position on that. Having not studied, I would like to

7 frankly think about it a little bit. But the -- at

8 this point, almost anything to address the problem

9 would be a step in the right direction.

10 JUDGE MERRITT: Well, we need a way to get

11 these filled in that interim period of time after so

12 many months have gone by. Because otherwise, there is

13 no particular incentive once the Executive and

14 Legislative branches are at a loggerhead. So maybe

15 this is something we ought to try to address anyway.

16 We get your point. 

17 VICE CHAIR COOPER: Is it -- go ahead.

18 This is Executive Director Meador. Dan?

19 PROFESSOR MEADOR: You say the Court today

20 has about the same number of judges, and yet the

21 caseload is far larger. In your observation, what has

22 happened? Something must be done differently to
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1 enable the same number of judges to handle a much

2 larger caseload. What is your perception as to what

3 is different today about the way the Court functions?

4 MR. SCHALLERT: Well, Professor Meador,

5 that is something I address a little bit more at

6 length in my written statement. I think there are two

7 points. The first observation was that we believe

8 they have been able to keep up with the expanded

9 caseload without seriously compromising the standards

10 of justice that have been traditionally applied. I

11 think there are a number of factors that have

12 contributed to it. This Circuit was one of the first,

13 for example, to use a fairly vigorous settlement

14 conference approach and so-called CAMP Program, Civil

15 Appeals Management Program, in this Circuit, which

16 apparently has been quite effective in using staff

17 counsel with the parties to achieve a higher level of

18 settlements. I am told that 40 percent of counseled

19 civil appeals that go through that process end up

20 settling. That is just an example.

21 I think the Court obviously has judges who

22 are working longer hours, as are many attorneys. It
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1 has the prodigious efforts of senior judges that have

2 helped. Visiting judges have clearly contributed to

3 it. I think the assistance of law clerks and the use

4 of computer technology -- I mean, it is a whole array

5 of factors that I have tried to identify in the

6 written testimony to explain the ability to handle the

7 increased caseload.

8 PROFESSOR MEADOR: Let me ask you one

9 other question. As you know the caseloads in the

10 Courts of Appeals have more than doubled in just the

11 last couple of decades. In the memory of everybody in

12 this room, they have probably increased two or three

13 times. Suppose over the next 10 or 20 years that

14 Appellate caseloads double again? What do you think

15 this Commission ought to say about that or try to

16 address about that? Looking ahead in the future and

17 assuming or guessing that you may have substantial

18 growth yet to come, do you have any recommendations

19 about what we ought to do or the Commission ought to

20 recommend about that?

21 MR. SCHALLERT: Well, Professor Meador, it

22 is very interesting having had the opportunity to go
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1 back and read the Forusca Commission report and the

2 report of the Froyne Committee and the like. The

3 analysis of each of those commissions to some extent

4 was similar in terms of starting with the growth of

5 the caseload, projecting out the possibility of

6 continued growth of the caseload, and then reaching

7 recommendations in the case of both that committee and

8 the Forusca Commission of the National Court of

9 Appeals. My own sense is that -- and I think the

10 thrust of our testimony is that even a doubling or

11 tripling over the future is not necessarily cause for

12 those sorts of significant structural changes, each of

13 which we think comes with significant cost and

14 disadvantages. If there were a simple solution that

15 would not introduce more delay and more expense to the

16 litigation process it would be one thing, but each of

17 those solutions we think comes with a price.

18 JUDGE RYMER: May I follow up on that

19 question, please? I assume that your association

20 deals with a number of matters that aren't simply of

21 importance in New York City but rather across

22 institutional, city, and probably even national
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1 boundaries. To what extent do you think the legal

2 landscape in the next 10, 15, or 25 years is going to

3 effect the continuing viability of a small Appellate

4 Circuit dealing with federal appeals?

5 MR. SCHALLERT: Well, Judge, I have

6 several thoughts on that. I think that -- let me

7 start with the first part of your question. There are

8 certainly areas of practice where we at least like to

9 think in New York tend to attract really nationwide

10 issues and international litigation. The fact is

11 though that the mix of that caseload and the types of

12 challenges are always changing. For example, the 2nd

13 Circuit has long been a Court that has probably

14 received its disproportionate shares of securities

15 litigation. As a result of enactments like the

16 Private Securities Litigation Reform Act, it may be

17 that that caseload is changing and certainly the

18 standards that are being applied to cases are

19 changing. I think it is very hard to forecast.

20 Although this may be deemed a small Circuit, if I

21 understand your question correctly, the fact is that

22 the population within it and the range of cases within
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1 it is enormous.

2 JUDGE RYMER: To what extent do you

3 believe that the decision of where to file a case is

4 influenced now by (indiscernible) consideration.

5 MR. SCHALLERT: Well, that is a very

6 interesting question. The truth is that I don't

7 believe it is affected as much as some of the

8 literature would suggest, and let me give an example

9 of that. One of the concerns, I know, that has

10 prompted focus on structural changes is the problem of

11 inter-Circuit conflicts and the fact that there is

12 different law in different Circuits. It happens that

13 in my own practice I have encountered, up until the

14 Supreme Court decided the AMCAM case, rather different

15 standards, for example, that would apply to the

16 settlement of class actions. The 3rd Circuit had

17 different standards for judging the settlement of a

18 class action than other Circuits. The truth is that

19 although those standards as stated were quite

20 different, in the application to particular facts, I

21 do not believe the variation was all that material.

22 In other words, good settlements tended to be approved
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1 almost regardless of the legal standard and bad

2 settlements tended to be rejected by Courts almost

3 regardless of the different legal standards. And at

4 least when I counsel clients or advise clients, I hope

5 that I am not having them go so closely to the line

6 that frankly those shadings make any difference. If

7 you have a good case, I think it can be litigated in

8 many Federal Courts in the country. So I think it is

9 often less a function of where the relevant law is as

10 opposed to where the parties are and where it is most

11 convenient to litigate an issue.

12 VICE CHAIR COOPER: I think the sum of

13 your testimony is not what is wrong with the 2nd

14 Circuit but everything that is right with the 2nd

15 Circuit. Is that a fair summary?

16 MR. SCHALLERT: I think that is the gist

17 of it, Mr. Cooper. I know that that was one of the

18 questions that the Commission put in its public

19 hearings. I don't want to sound like a modern day pan

20 gloss, but I do believe if it isn't broke, don't fix

21 it is part of the theme of our testimony.

22 VICE CHAIR COOPER: Would you say that if
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1 we had to double the size of the 2nd Circuit? Would

2 it concern you if you had twice as many judges and a

3 full complement of judges in the 2nd Circuit?

4 MR. SCHALLERT: Well I believe the 2nd

5 Circuit, for example, has not advanced as a proposal

6 having as many judges as some of the formulas of the

7 Judicial Conference would have permitted. I mean, my

8 understanding is that even the 15 judgeships for which

9 authorization has now been sought falls short of the

10 numerical result that would come out of the Judicial

11 Conference study. And I believe the reason for that,

12 to answer your question, is that, yes, I do think that

13 there will be limits to how many judges that would be

14 the best size for the 2nd Circuit. I don't think 13

15 or 15 exceeds that limit, but it may be getting close

16 to it.

17 PROFESSOR MEADOR: What would you

18 recommend when that limit is reached or surpassed,

19 assuming caseloads grow and you get to the point,

20 wherever it is, that you would say that is too many

21 judges? Do you have suggestions as to what the

22 Commission might think about that?
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1 MR. SCHALLERT: Well, Professor, while it

2 is important to anticipate the issues, I guess the

3 thrust of my testimony is I would wait until those

4 issues are a little more ripe, at least in this

5 Circuit, because the structure we think with 13 or 15

6 judgeships that the Court should be able to handle for

7 some fairly indefinite period of time the caseload

8 that it has. I think that the pattern in the past

9 practice has been to wait until those issues, as

10 perhaps with the 5th and the 11th Circuit, reached

11 such a critical stage. Maybe that is not the best

12 solution, but it is the best solution that I can see

13 to the problem.

14 VICE CHAIR COOPER: As a representative of

15 the Association of the Bar of the City of New York, do

16 you have a committee or were you selected to be the

17 representative or tell us about that?

18 MR. SCHALLERT: Sure. The Committee on

19 Federal Courts which I chair has a traditional

20 jurisdiction over issues of the structure and

21 operation of the Federal Courts. It is a very broad22 based committee. We have within our committee
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1 everything from practitioners to professors to

2 Magistrate Judges and the like. The statement that

3 was submitted was circulated not only to all of them

4 and received their approval but also went to the 

5 Executive Committee and the President of the New York

6 Bar Association as that is the standard procedure for

7 getting approval of these statements. In fact, both

8 the outgoing President of the City Bar and the

9 incoming President of the City Bar both reviewed the

10 statement before it was submitted.

11 VICE CHAIR COOPER: So you are here truly

12 in a representative capacity.

13 MR. SCHALLERT: I like to believe so, at

14 least as to what is in the prepared statement.

15 Obviously some of the questions -- I want to

16 distinguish that some of those may be mine.

17 JUDGE MERRITT: And the thrust of your

18 testimony and your written statement is basically

19 don't change the structure. You can make

20 recommendations around the edges, but don't do

21 anything to change the basic territorial structure of

22 the Appellate Federal Judiciary?
22

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1 MR. SCHALLERT: Yes, Professor Merritt --

2 or Judge Merritt. And by the way, I take to heart

3 Professor Meador's comment in his University of

4 Chicago Law Review article that practitioners tend to

5 react instinctively negatively to any proposal for

6 structural change. I would only respond to that by

7 saying that litigators learn to trust their instincts,

8 and that is certainly our reaction, Judge Merritt.

9 VICE CHAIR COOPER: So your report can be

10 summed up as my gut tells me let's don't do anything?

11 MR. SCHALLERT: Yes, Mr. Cooper.

12 VICE CHAIR COOPER: All right. Thank you,

13 so much. Any other questions? We appreciate you

14 taking the time to be with us and preparing your

15 written statement.

16 MR. SCHALLERT: Thank you again for the

17 opportunity.

18 VICE CHAIR COOPER: We are pleased to have

19 as our next witness, Judge John Newman, former Chief

20 Judge of the Court of Appeals of the 2nd Circuit.

21 Judge, thank you so much for taking the time to be

22 with us this morning.
23

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1 JUDGE NEWMAN: Judge Merritt, Mr. Cooper,

2 Professor Meador, and Judge Rymer, if you can hear me

3 wherever you are. 

4 JUDGE RYMER: I can. My ear is there.

5 JUDGE NEWMAN: Thank you. I appreciate

6 the invitation to appear here today to discuss issues

7 concerning the Federal Appellate Courts. Let me make

8 clear that the views I express are entirely my own and

9 in no sense do I appear for the Court on which I

10 serve.

11 I realize your immediate focus is the 9th

12 Circuit and that your mandate also includes

13 consideration of various structural alternatives that

14 might merit consideration as the Federal Courts

15 endeavor to handle far more volume than we have ever

16 experienced in the past, and especially the likely

17 volume that we will receive in the future if current

18 trends in Appellate filings continue. 

19 But with all respect, my basic point to

20 you today is that it is entirely premature to consider

21 structural alternatives until substantial efforts have

22 been made to moderate the volume of Appellate
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1 caseloads. Having served as a Federal Judge for 26

2 years and as an Appellate Judge for 18 of those years

3 and as Chief Judge of my Circuit for 4 years ending

4 last July, I have become increasingly convinced that

5 unless the caseload volume of the Appellate Courts and

6 indeed all Federal Courts is moderated, the Federal

7 Court system will lose the distinctive characteristics

8 that have justified our existence for two centuries.

9 It might be possible for District Courts to handle

10 increased volume by simply adding judges without

11 suffering any fundamental loss of essential

12 characteristics. District Judges enjoy the luxury of

13 operating in relative isolation and their roles are

14 not significantly changed by the addition of increased

15 numbers of colleagues down the hall handling

16 additional volume.

17 The situation is entirely different in

18 Appellate Courts. We are group Courts, transacting

19 our business primarily in panels of three, and

20 responsible for maintaining the coherence of law

21 within our Circuits. Those two salient

22 characteristics place realistic limits on the size of
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1 any one Appellate Court. For judges to work

2 effectively in panels of three month after month and

3 year after year, they must sit with each other with

4 some frequency. We use the word collegiality, but

5 that term does not begin to capture the subtle

6 elements of respect, trust, cooperation, and

7 accommodation that characterize members of a group

8 Court at work. At some point, if volume continues to

9 grow and more and more judgeships are created, a Court

10 of Appeals expands beyond the size at which its judges

11 can work effectively. And for the Court of Appeals as

12 an entity, undue size poses an entirely unacceptable

13 threat to maintaining the coherence of Circuit law.

14 JUDGE MERRITT: Judge Newman, we have your

15 written statement, which is a very fine statement

16 indeed, of the difficulties of having Courts of

17 Appeals getting very larger, and you make the point

18 that the solution to this problem is to deal with the

19 numbers on the input side of the caseload. And of

20 course there are two ways to deal with those numbers,

21 one of which you are suggesting, which is a relatively

22 new idea. 
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1 The first way or another way is to talk

2 Congress into reducing Federal question jurisdiction

3 or reversing the jurisdiction. That is an idea that

4 has been unsuccessful in the past. But could you

5 explain to us the sort of new idea that you have

6 proposed here to use the State Courts in a somewhat

7 different way to take up the slack and to reduce the

8 input side of the equation?

9 JUDGE NEWMAN: Thank you, Judge Merritt.

10 Let me start to explain it by pointing out a premise

11 that you all understand. We run a dual-Court system

12 in this country and the State Courts have about 97 or

13 some say 98 percent of all the litigation and all the

14 appeals. So no matter what happens to caseload

15 volumes, the State Courts are going to bear the

16 essential brunt of increased volume. They are already

17 high volume courts and they will stay high volume

18 courts. There is no inevitable reason that the

19 Federal Courts must become higher volume courts than

20 they are now.

21 Now how can it be adjusted or how can it

22 reallocated? Judge Merritt, as you point out, some of
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1 the proposals up until now have simply said take whole

2 categories of Federal cases and put them in the State

3 Courts. The usual candidate is diversity or perhaps

4 more precisely in-state plaintiff diversity. 

5 My suggestion for the consideration of

6 this Commission and for the Congress before it ever

7 gets to the issue of structural alternatives is to

8 reallocate cases to the State Courts not by entire

9 categories but by a system of discretionary access so

10 that categories would be identified for mostly

11 reallocation, but within the category. Take in-state

12 plaintiff. Any particular case as to which the need

13 for a Federal forum could be demonstrated could be

14 brought into the Federal Court on a petition by either

15 party. Every time I suggest this to lawyers, they

16 give me some wonderful examples of cases where they

17 say it has got to be in the Federal forum. They give

18 me the air crash case, although that may be taken care

19 of with the new jurisdictional arrangement that

20 Congress is on the way to enacting. But they give me

21 that example, an air crash which involves the law of

22 many states. Or they tell me about the case against
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1 the largest single employer in a small county. And if

2 he is a popular employer, the plaintiff is prejudiced.

3 If he is an unpopular employer and there is a small

4 jury pool, he is prejudiced. So I say fine. If you

5 can identify a few cases like that, petition them into

6 the Federal Court. Just make a showing of need. But

7 don't bring thousands and thousands of cases into

8 Federal Court where there is no need just because

9 there is a handful of cases where there is a need.

10 My proposal is what I call discretionary

11 access. The Congress would say, all right, here are

12 some categories of diversity cases and some federal

13 question questions where by and large they don't have

14 a strong claim to a Federal forum. File them in State

15 Court. File a removal petition to Federal Court by

16 either party if you can show a need. Just a simple

17 little petition. You don't need a hearing. It is not

18 an elaborate procedure. You just identify

19 characteristics. If the Federal District Judge says,

20 yes, that is right. That really needs a Federal

21 forum. He says granted and it becomes a Federal case.

22 JUDGE MERRITT: For example, you might put
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1 ARISA cases.

2 JUDGE NEWMAN: I would put ARISA cases in

3 because the vast bulk of ARISA cases are simply state

4 law contract cases. If it is the rare ARISA case that

5 poses a very novel issue of the reach of the ARISA

6 statute, any Federal Judge in America would recognize

7 that on the face of the complaint and he would grant

8 the petition or he or she would grant the petition for

9 in effect removal to bring it into Federal Court,

10 sure.

11 JUDGE MERRITT: And your basic idea for

12 the categories of cases that would fit within this

13 arrangement would be cases that are heavily dependent

14 on state law, at least in the beginning?

15 JUDGE NEWMAN: That would certainly be the

16 prime category. If any case belongs in State Court,

17 it is a case where the decision turns on the meaning

18 of state law. If states rights means anything in this

19 country, it ought to mean that the State Courts are

20 the fundamental forums for telling us what the content

21 of state law is. I always feel awkward in a diversity

22 case trying to predict what New York or Connecticut or
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1 Vermont will do.

2 JUDGE MERRITT: If you would, explain in

3 a little more detail the mechanism that you would use

4 to accomplish this? You could have -- there are

5 several different ways to think about it. Some may be

6 more palatable and more efficient than others. What

7 is your suggestion?

8 VICE CHAIR COOPER: Let me ask a question

9 along that same line, Judge. Would the petition be

10 discretionary by the District Judge and what would be

11 the standard -- could you appeal from a denial of that

12 under your proposal? And would then that be an abuse

13 of discretion standard? I think that goes along with

14 Judge Merritt's question.

15 JUDGE NEWMAN: Let me try and deal with

16 both. There are various procedural ways to accomplish

17 discretionary access. The fundamental choice is

18 whether it is an entrance scenario or an exit

19 scenario. You could either say file in Federal Court

20 and let the District Judge remand if it is

21 inappropriate, or file in State Court and let the

22 parties remove if it is appropriate. I happen to
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1 think filing in State Court with removal is better.

2 I think if you filed in State Court -- because the

3 bulk of these cases will stay in State Court. So you

4 start there and you have prejudgment remedy practice

5 readily available and TRO's if that is needed. All of

6 the paraphernalia that surround the initiation of a

7 case would be immediately available.

8 JUDGE MERRITT: So, for example, if ARISA

9 were one of the categories of cases, those cases would

10 be filed first in the State Court?

11 JUDGE NEWMAN: Correct, subject to a

12 removal petition. Now how would the removal petition

13 work to answer Mr. Cooper's question. Again, there

14 are various ways. I have my preferences, but I am

15 more interested in the principle than the details.

16 But to respond to your question, my preference would

17 be it is the simplest possible procedure. There would

18 be no appeal. Now, that may seem a little startling.

19 Why should a District Judge's decision not be subject

20 to appeal? Well, several District Judge's decisions

21 today are not subject to appeal and one of them is the

22 vast bulk of removal rulings. Under the statute,
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1 there is only the tiniest leeway for appeal of a

2 remand decision on a removed case. There is a very

3 special case, but it is very rare. Most remand

4 decisions made by District Judges in America today on

5 remand of a removed case are not appealable. So there

6 is no natural law right to appeal one of these.

7 PROFESSOR MEADOR: Would you allow

8 mandamus by the Court of Appeals?

9 JUDGE NEWMAN: No, I wouldn't. If I was

10 doing it, I wouldn't, Professor Meador, and I will

11 tell you why. The reason we grant an appeal in the

12 general run of rulings made by a District Judge is

13 because that ruling either is the final ruling on

14 rights or a procedural ruling integral to the ultimate

15 ruling. If it is a Federal Court case and that judge

16 says claim dismissed, default judgment, summary

17 judgment or whatever, that judge is adjudicating

18 substantive rights. If under discretionary access a

19 District Judge is simply saying leave it in the State

20 Court, he is not determining a single substantive

21 right of anybody. He is simply saying leave it where

22 97 percent of all cases in America are tried anyway,
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1 and there is nothing wrong with that. And even if he

2 does what some might say is wrong -- he leaves it in

3 State Court where you or I might say bring it into

4 Federal Court, it is not terrible. He hasn't denied

5 anybody a day in Court. He hasn't extinguished a

6 right. He has simply said let it be in State Court.

7 Now what I might do, Professor Meador, is create this

8 much of a safety valve. Suppose he leaves it in State

9 Court and the case gets tried and somewhere along the

10 line an issue that didn't look like it was novel

11 bubbles up. Take your ARISA case. It looks like a

12 normal cut and dried contract case. What is the

13 meaning of the pension terms? But somewhere along the

14 line as they get to the end, the State Judge says what

15 I am really doing is construing ARISA, and he makes a

16 ruling and it is a very novel ruling, but you couldn't

17 tell that until you got pretty much into the case or

18 maybe at the end. I would let the fellow appeal the

19 federal question to the Circuit Court at that point.

20 So that if the issue really looms large in the case,

21 give him the Federal Appellate forum then. But again,

22 don't give them the forum for 100,000 cases because a
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1 handful need it.

2 JUDGE MERRITT: But then the appeal to the

3 Court of Appeals would be a discretionary Appeals

4 Court right 1292, and you would have to seek --

5 JUDGE NEWMAN: You could do that. You

6 could do a discretionary. I think that would be

7 sensible. Then some say well do you mean the whole

8 appeal comes and do you split it? And when I say

9 split it, people say that is unheard of. The fact is

10 it is not unheard of. We split appeals when we have

11 the temporary emergency Court of Appeals, and we sent

12 the Economic Stabilization Act issues to the TECA and

13 we sent the other issues to regional Court of Appeals,

14 and we lived with it very well.

15 JUDGE MERRITT: We split interlocutory

16 appeals now under 1292. I mean, you bring up a

17 particular issue.

18 JUDGE NEWMAN: That is right. You are

19 talking about bringing up one issue at a time. I am

20 talking about the possibility of splitting the appeal

21 so that the federal issue goes to the Federal forum

22 and the rest of it goes to the State forum. We did
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1 that with the Temporary Emergency Court of Appeals,

2 and both the regional courts and the TECA itself said

3 that is a good way to do it. Give us the specialized

4 issue and not the other. So we can do that. But

5 really that is a detail and there are different ways

6 to do it. If I saw a discretionary access enacted, I

7 would be happy with almost any arrangement. Because

8 I think the Congress needs to experiment with this.

9 Indeed, I wouldn't legislate it nationally. I think

10 if Congress was considering this and holding hearings,

11 they ought to perhaps designate a couple of Circuits

12 and try it out for a couple of years and learn from

13 it. 

14 Professor Meador, experience may show you

15 need mandamus. If experience shows you need it, then

16 have it. But I would rather experiment for a couple

17 of years in a couple of Circuits and learn from it and

18 refine it and improve it, and then see how we can go

19 about moderating bulk.

20 JUDGE MERRITT: But the bottom line theory

21 that you have here, which is relatively new, is a new

22 mechanism for use of the State Courts to take up some
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1 of the caseload, particularly in beginning those cases

2 that turn primarily on state law issues.

3 JUDGE NEWMAN: Exactly.

4 JUDGE MERRITT: That is the bottom line of

5 your suggestion that is relatively new and original.

6 JUDGE MERRITT: I think that is fair to

7 say, Judge Merritt. It is new in that it takes an

8 existing proposal of reallocating and refines it by

9 saying don't reallocate all of them. Leave open the

10 entry to the Federal Court for the few that need it.

11 Now a flavor of that proposal is contained in I think

12 either chapter 10 or 11 of the long range plan, which

13 is the chapter that reckons with the what-if scenario.

14 What if volume gets out of hand? What will we do

15 then? And in that chapter, there is some recognition

16 of the possibility of discretionary access. I would

17 try it out now or in the next two, three, four years,

18 before things get out of hand, and see if it works.

19 It may not work, but I think it is worth a try and I

20 see no downside risk to it.

21 VICE CHAIR COOPER: Let me go to another

22 interesting point you make in your written remarks.
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1 It is let's stop this three-judge panel on appeal and

2 go to a two-judge panel. Would you tell us about that

3 for a little bit?

4 JUDGE NEWMAN: Well, I did suggest that,

5 Mr. Cooper, but I also qualified it. Because it is a

6 somewhat deceptive proposal that has been made. The

7 literature includes it and says, well, you can go from

8 3 to 2. And people then say, well, let's see. If you

9 have a 12-judge court, 3 judges would mean 4 panels,

10 but 2 would mean 6 panels. That is a 50 percent

11 increase in panels. Maybe that would be a 50 percent

12 increase in disposition rate. And the qualification

13 is it won't because the judges still have to write the

14 opinions. So if they all sit in panels of 2 and they

15 all write no more than they wrote in panels of 3, you

16 don't get any increase at all. 

17 Now I think going to panels of 2 or even

18 1 in some cases would produce some increase in

19 productivity because a lot of cases are disposed of by

20 summary order. In our Court, it is up around 65

21 percent. Some Courts are down to say 12 percent of

22 published opinions. I think that is way too low. But
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1 the summary orders take relatively less time than the

2 full opinions. So if you went to panels of 2, you

3 would see some judges and some Circuits that use

4 central staff -- we don't have our central staff draft

5 summary orders, but I think some courts do -- the

6 judges could be a little more productive. 

7 I am not sure the 2 judge or the 1 judge,

8 again, is ideal. I think a 1 judge could handle --

9 for example, there are a lot of very easy sentencing

10 appeals. We have lived with the guidelines now a long

11 time and most of the issues are straightforward, but

12 we are seeing appeals because the fellow pleads guilty

13 and his only shot is to take a sentencing appeal. I

14 think one judge could rule on those and I think any

15 Federal Appellate Judge in America could be counted on

16 to say, no, this issue is really quite novel and I am

17 going to refer to a 3-judge panel. I make the

18 suggestion, I will be candid with you, not because I

19 think it is such a great idea, but because I think it

20 is a useful counter to the other suggestion of

21 discretionary appeals, cercariae practice. I am

22 opposed to cercariae practice in the Court of Appeals.
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1 I think every person who has his substantive rights

2 litigated and adjudicated in a District Court should

3 have a right of appeal before some Appellate forum,

4 even if it is only one judge. And if it was a

5 cercariae decision, that is different from a merits

6 decision. It is too easy on cercariae to say, well,

7 I don't know quite what I would do but I will deny

8 certain and then I won't have to worry about it. I

9 don't want to see any District Court litigant put in

10 that position if I can avoid it. So even the most

11 trivial case I would rather see come before one

12 Appellate Judge on the merits, with that Judge having

13 the opportunity to give it a 3-judge hearing if it

14 seemed of substance.

15 JUDGE RYMER: Judge Newman, one of the

16 suggestions that they made is for some variety of

17 system of Appellate jurisdiction in District Court, in

18 effect a cercariae type of view in the Appellate

19 Court. Do you have a view on that kind of proposal?

20 JUDGE MERRITT: Like the New York Supreme

21 Court Appellate Division, I suppose. I mean some

22 variation on that theme.
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1 PROFESSOR MEADOR: Yes, I think it would

2 be the creation of what some people call an Appellate

3 Division in the District Courts.

4 JUDGE NEWMAN: Within the District Court?

5 So in effect you would have a four-tier system. You

6 would have a Trial Court, a District Court, an

7 Appellate term of a District Court, and then

8 discretionary review up to the Court of Appeals.

9 VICE CHAIR COOPER: Discretionary review

10 to the Court of Appeals. 

11 JUDGE NEWMAN: I would resist four-tier

12 systems until it was the last resort. I think many

13 arrangements are better than that. The three-tier

14 system is cumbersome. It takes a long time to go from

15 the District Court, Court of Appeals cercariae, to the

16 Supreme Court and then the end. Four levels is that

17 much worse. I think it is far better to make it as

18 efficient as possible to get to the Court of Appeals

19 and let them handle it. And again, I would much rather

20 see efforts to reallocate jurisdiction become the

21 first priority before we ever set foot in this pond of

22 tinkering with structures that assume we are stuck
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1 forever with this volume. I don't think we are stuck

2 forever with this volume. The Supreme Court went for

3 years with mandatory Appellate jurisdiction and people

4 said this is terrible, terrible, terrible. There are

5 too many cases and we have to do something. They did

6 something. The Congress took away mandatory Appellate

7 jurisdiction and turned it to cercariae. We can do

8 the same with Circuit Court Appellate jurisdiction.

9 We can leave many of those cases in the State Courts,

10 where they will be well taken care of subject to a

11 safety valve entry into the Federal Courts. And my

12 point is don't rush to figure out all of these

13 structural rearrangements. I say that to you and I

14 say it to the Congress. I think the best service you

15 could render is to urge the Congress to get its

16 priorities straight and say the first order of

17 business in any hearings of the judiciary committees

18 of the Senate and House ought to be jurisdiction.

19 JUDGE MERRITT: Let me ask you -- 

20 JUDGE NEWMAN: Let me just finish the

21 sentence if I may. In fairness, if the Congress says,

22 look, we have had a hearing -- we will hold hearings
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1 on jurisdiction and we have tried and we just can't do

2 it. It is politically infeasible. Okay. Then maybe

3 you move on to structure.

4 JUDGE MERRITT: But they have never

5 considered this other discretionary access idea. 

6 JUDGE NEWMAN: Not at all. I think if the

7 Senate Judiciary Committee and the House or maybe a

8 joint committee of them took a hard look at

9 reallocating jurisdiction, they would find that either

10 my discretionary access proposal or some variant of it

11 or something like it new that they would think of

12 would provide a way of getting past this problem, at

13 least for the foreseeable future. 100 years from now,

14 that may be a different problem. But we don't have to

15 solve the problem forever. We have to solve it for

16 the realistically foreseeable future.

17 PROFESSOR MEADOR: You mentioned a moment

18 ago or a few minutes ago that in your mind there is

19 some limit to the number of judges on the Appellate

20 Court that make it feasible to act leisurely and

21 properly and so on. I have a two-part question. One,

22 do you have a number in mind? Is there some
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1 approximate number beyond which you think a Court of

2 Appeals should not go or cannot go? And secondly,

3 what would you do if the volume of appeals overran

4 that number?

5 JUDGE NEWMAN: Well, that sounds like a

6 9th Circuit question. 

7 JUDGE MERRITT: It may be an every Circuit

8 question in the next 10 years.

9 JUDGE NEWMAN: I am hesitant to presume to

10 tell the 9th Circuit what they should do. 

11 JUDGE MERRITT: I don't think it is

12 limited to the 9th Circuit.

13 JUDGE NEWMAN: Well, as to any Court, I

14 have said -- and I have written this before -- I think

15 a Federal Appellate Court is at risk of not

16 functioning well when it goes beyond 15 -- 15 actives.

17 Then there will be 5, 6, or 7 seniors. Even that is

18 a lot of people and you begin to sit with each other

19 less frequently. Would it be chaotic if we went from

20 15 to 17? No. But I remember being in a meeting of

21 our Court where they said, well, let's ask for two

22 more, and I said you know I can see our successors
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1 being here in the year 2020 and the Court is then 41

2 and they say, let's just two more and it will be only

3 43. Two more can be a dangerous route. I think 15 is

4 sensible. I think that is a useful thing. Can you --

5 you could operate a little better a little higher.

6 But that is about where I think you begin to see the

7 shortcomings. And if you look around the Circuits,

8 the Courts that are larger are the Courts that are

9 having less oral argument, greater use of summary

10 orders, more central staff bureaucracy. So the

11 shortcomings are there. They are still rendering high

12 quality justice I am willing to assume, but the

13 shortcoming -- from the bar -- if the bar doesn't get

14 oral argument, they consider that a shortcoming. If

15 they don't see a reasoned decision, that is a

16 shortcoming.

17 JUDGE MERRITT: Well, having suggested

18 that there is a limit, whether it is 15 or some larger

19 number, the question then comes what to do.

20 JUDGE NEWMAN: All right.

21 JUDGE MERRITT: There are several

22 possibilities. One is just a split of the Circuits
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1 legislatively. Another is a solution where you might

2 divide each Circuit into divisions, particularly if

3 there are a number of states in the Circuit or ways in

4 which you could create divisions. What is your

5 thought there?

6 JUDGE NEWMAN: Well, there are two broad

7 approaches. If you force me, as you are skillfully

8 doing to face up to the problem of what you do when

9 any one Appellate Court has more volume and more

10 judges than it can usefully handle. You either make

11 a structural arrangement of the sort Judge Merritt

12 just indicated, and I will come to my preferences in

13 a second. You either divide the Circuit completely.

14 You divide it administratively. Or you go the other

15 direction, as Professor Meador has suggested, and you

16 have larger Circuits or maybe one national, but you

17 make a structural arrangement. There is one whole set

18 of alternatives there. The other whole set of

19 alternatives is you leave the Circuits where they are

20 and you make procedural adjustments within the Circuit

21 to enable them to move more business but frankly at a

22 less satisfactory service to the bar and the
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1 litigants.

2 Now coming to the structural. If my

3 choice is between more Circuits or larger Circuits, I

4 would go for more Circuits. I appreciate the downside

5 risk is more conflicts between Circuits. I don't

6 think that is all that serious and I would be

7 perfectly willing to see an inter-Circuit tribunal as

8 an ad hoc tribunal. I would not create a permanent

9 Court. But I can envision an ad hoc inter-Circuit

10 tribunal where every Circuit designated one of its

11 number to be available to resolve an inter-Circuit

12 conflict, and then when they arose -- and they are

13 usually statutory -- the Chief Justice could either

14 designate or you could draw 7 names by lot. I don't

15 even think you would have to convene all 13 people.

16 Most of those questions, they need an answer. And if

17 the Congress doesn't like the answer, they can change

18 it by legislation. So I would rather split the

19 Circuits rather than combine them if we got to that.

20 As to how to split, I would rather go with

21 administrative splits before I chop them up

22 completely.
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1 JUDGE MERRITT: This divisional idea.

2 Divide them up and try that out.

3 JUDGE NEWMAN: A divisional idea.

4 Particularly if that is what the Circuit thought best

5 met its needs. I would at least authorize a Circuit

6 to do that and try it out.

7 JUDGE MERRITT: Would you -- I know this

8 is a detail, but we have got to think in details.

9 Would you authorize the Circuit to do it or would you

10 authorize the Judicial Conference to set some

11 criteria. For example, you could have a rule that

12 says when a Court has more than 15 active judgeships,

13 the Judicial Conference may provide for a divisional

14 arrangement. And when the Circuit has as many as 25

15 judgeships, the Judicial Conference shall provide for

16 a divisional arrangement. I mean, you could say that.

17 JUDGE NEWMAN: I think a two-tier

18 arrangement like that makes a lot of sense, Judge

19 Merritt. My inclination would be at the lower level

20 or at the first level of problem of number of judges

21 where the problem arises, I think I would let the

22 Circuit itself decide. And then as it got up to the
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1 higher number, whether that is 21, 25, 27 -- whatever

2 number is deemed to be a very serious problem, at that

3 point I might, if I was framing the legislation,

4 authorize the Judicial Conference to direct the use of

5 administrative divisions. But I think I would give

6 the first option to the Circuit itself, at least at

7 the first tier of problem and let them try it. 

8 But I think all those things ought to be

9 authorized for experimentation. We talked years ago

10 about the 50 state laboratories. Well, we have got 13

11 Circuit laboratories. We ought to use them. We ought

12 not to try to figure out in one fell swoop what is the

13 best national solution. We have got Circuits and we

14 ought to try them out and authorize these adjustments.

15 Sunset them after 3 years or something like that.

16 Congress is doing that frequently now. And learn from

17 experience. But I think the two-tier approach would

18 make a lot of sense -- the two-tier in numbers would

19 make a lot of sense.

20 VICE CHAIR COOPER: Assume hypothetically

21 that the 2nd Circuit got up to the number of judges

22 that you thought were in excess of what would make a
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1 workable Appellate Court. Would you then put New York

2 into two separate Circuits or would you prefer a one3 state Circuit, since they would have most of the

4 caseload.

5 JUDGE MERRITT: You can take the Fifth

6 Amendment.

7 JUDGE NEWMAN: That sounds suspiciously

8 like a 9th Circuit question too. But I will ignore

9 the 9th Circuit and try to answer it just in your

10 terms, Mr. Cooper. If Congress forced upon us, let's

11 say, 41 judges, and we as a Circuit thought this is

12 just not a way to run a Court of Appeals, we have got

13 to divide. And the question was how to divide. There

14 is no question in my mind that I would be for

15 splitting New York State rather than keeping New York

16 State as one Circuit and putting Connecticut and

17 Vermont off to the side for a couple of reasons.

18 In the first place, a Court of Appeals

19 benefits from having personnel drawn from more than

20 one state. We have seen that in our Circuit for

21 years. I saw this proposal of why don't you just cut

22 Vermont off and throw them in with the first because
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1 the numbers look a little better. That would be a

2 terrible mistake and it would do no good -- no good in

3 terms of volume. They contribute hardly any volume to

4 us, but they give us the input of a Vermont judge who

5 served us with distinction over the years for decades.

6 We want that input. We don't want to be a New York

7 Court or a New York and Connecticut Court. 

8 Now people say, well, if you have one big

9 state and you divide it, you create problems. I think

10 those problems are minimal frankly. You could take

11 two districts. Our state is a four district state.

12 You could divide it two and two. People say, well,

13 what would you do with diversity? What if the two

14 different Circuits of New York came out differently?

15 I think that would happen once every 10 years. And if

16 you wanted as you split it to create an inter-Circuit

17 embank -- three judges from each Circuit to settle

18 that great state law question -- of course, the

19 simpler way would be to certify it to the New York

20 Court of Appeals and let them tell us because they are

21 the only ones who know. So if there is certification,

22 the two Circuit dispute on state law is really a non-
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1 issue. But you could have an embank. I think you

2 would use it once in ten years. It wouldn't be a big

3 deal. And you could handle it. I would much rather

4 see that than keep -- again, if we had only a 41-judge

5 Court. I am not talking about now. I don't want to

6 read in the papers tomorrow that I was urging

7 splitting New York.

8 VICE CHAIR COOPER: Yes, let the record

9 reflect he is not authorizing splitting up the State

10 of New York today.

11 JUDGE NEWMAN: Thank you, Mr. Cooper. I

12 appreciate that. That won't stop some people, but I

13 do appreciate your protection.

14 JUDGE RYMER: Judge Newman, do you not see

15 any problem about splitting a Circuit -- excuse me,

16 splitting a state arising from different federal

17 constitutional law particularly in criminal areas.

18 JUDGE NEWMAN: No, I don't, Judge Rymer,

19 any more than if the 2nd Circuit and the 1st Circuit

20 both come out differently. They are adjacent.

21 Sometimes -- 

22 JUDGE RYMER: Yes, but they are not
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1 governed by one single Supreme Court that is trying to

2 guess what is going to happen on a collateral review.

3 JUDGE NEWMAN: You mean one U.S. Supreme

4 Court?

5 JUDGE RYMER: No, the state Supreme Court

6 -- I mean the State Supreme Court of New York, not the

7 New York Court of Appeals -- the highest Court in the

8 state presumably has got an eye towards what is going

9 to happen on habeas review in criminal cases.

10 JUDGE NEWMAN: Well, I can appreciate that

11 if you did split a state, each Court would on some

12 cases have to reckon with the state law of exhaustion

13 and matters of that sort. I think that probably could

14 happen even now if a prisoner was housed outside of a

15 state, as many of them are. They are incarcerated all

16 over the country on prisoner exchange programs.

17 JUDGE RYMER: So you don't have a capital

18 case situation as many states in the 9th Circuit do,

19 with which I am more familiar. But it strikes me that

20 it would be somewhat difficult for a single state to

21 face the possibility of inconsistent federal

22 constitutional applications of let's say capital
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1 (indiscernible).

2 JUDGE NEWMAN: Well, I guess -- you are

3 right, we have not yet gotten into the death penalty

4 cases, although we are heading there. These cases are

5 on their way and we have already developed rules to

6 anticipate that. I think the problem you identified

7 could arise. My guess is a) it will rise

8 infrequently; b) in the rare cases where it arose, if

9 there needs to be a uniform dual Circuit answer for

10 the State of New York -- again, I don't want to

11 mention California, an embank could handle it. You

12 would just simply designate three judges from each

13 Circuit and let them hold an embank and decide what

14 the uniform rule of the two Circuits who share that

15 state would be.

16 JUDGE MERRITT: Plus the fact that if

17 there is a split between a state Supreme Court and a

18 Court of Appeals division, the Supreme Court can

19 resolve the split. Sometimes you get a split now

20 between the Supreme Court and the State and a federal

21 question in the Circuit within the state exists and

22 the Supreme Court may not initially but after a while
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1 if it is an important split, the Supreme Court takes

2 the case and resolves the federal question.

3 JUDGE NEWMAN: Right. I took Judge Rymer

4 to focus not so much on the difference between the

5 Circuit Court and the state Supreme Court but as

6 between the two Circuit Courts that shared the state.

7 That if they were each coming out slightly differently

8 on an exhaustion point. And that is the case where I

9 suggested that you could have an embank between the

10 two Circuits.

11 JUDGE RYMER: That is where I was going.

12 JUDGE NEWMAN: Yes. But I think it would

13 be very rare and I think if it happened, you could do

14 it. But again, I would try it out. Judge Rymer, if

15 you are right, there are going to be a lot of those,

16 and I am wrong. But I might be right and there will

17 be few of those. Neither of us knows for sure. We

18 can make a reasoned prediction, and I would be willing

19 to concede that in your part of the country, your

20 prediction is more soundly based than mine. But the

21 best answer would be for Congress to try it out for a

22 two or three year period and learn by experience.
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1 Then we wouldn't have to guess.

2 JUDGE RYMER: That brings up something I

3 would like to -- it is a very difficult question to

4 ask. But it seems to me that none of us has a crystal

5 ball even at 10 years out let alone 25 years. And one

6 of the possibilities that this Commission could

7 recommend would be founded in flexibility. To point

8 out a number of possible -- say some of what you have

9 mentioned that could be -- that legislation could

10 authorization for experiments among the various

11 Circuits. Do I hear you to be saying that you think

12 that would be a good direction in which to go?

13 JUDGE NEWMAN: Absolutely. I think any

14 proposals that come out of this Commission and that

15 commend themselves to the Congress should be adopted

16 by the Congress in one or two Circuits and for a 2, 3,

17 or 4 year terminal period. I think we should learn by

18 experience. To try to restructure the whole system,

19 either on jurisdictional grounds or on structural

20 grounds and figure we know all the answers is a

21 mistake. We should try it out. My preference

22 obviously is try out jurisdictional arrangements
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1 before you try out structural arrangements, because I

2 think they will largely solve the problem. But any

3 solutions I think should be experimental, done in a

4 couple of Circuits, done for a short time period with

5 a sunset provision, and the Congress and the Judicial

6 Conference should monitor them very closely.

7 VICE CHAIR COOPER: Judge, I hate to call

8 time because I am enjoying it and it looks like you

9 are having a good time too. But we appreciate so much

10 your honoring us with your presence here today.

11 JUDGE NEWMAN: Thank you very much. If I

12 can be of any help as any of these matters unfold, I

13 would be delighted to do so. I appreciate the

14 opportunity.

15 VICE CHAIR COOPER: Thank you. Appreciate

16 it.

17 JUDGE MERRITT: Let me just say, Judge

18 Newman, as usual you have been your usual incisive

19 self and thoughtful self and we very much appreciate

20 the efforts you have made to think through these

21 problems.

22 VICE CHAIR COOPER: Thank you so much.
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1 Our next witness is Professor Judith Resnik of Yale

2 Law School. It is good to have you with us this

3 morning.

4 PROFESSOR RESNIK: Thank you. I am very

5 happy to be here. Hello, Judge Rymer, from afar.

6 JUDGE RYMER: Good morning, Professor

7 Resnik.

8 PROFESSOR RESNIK: Judge Merritt and

9 Professor Meador. And actually a Yale law student who

10 helped me prepare these materials, Eric Beaver, is

11 here, and I would like to thank him as well.

12 I am very glad to be here. As I came in,

13 Professor Meador, you were saying have us look into

14 the future. The first point of my comments is that I

15 think it is hard to look into the present and see

16 that the actual structure of the United States Courts

17 is not as we often describe it. I think we already

18 have a four-tier system, which is to say that at the

19 District Court level there are two sets of judges,

20 magistrate and bankruptcy, and District Court judges

21 that therefore our functional work force at the trial

22 level is in excess of 1,400 people, and that the
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1 functional Appellate Court is no longer 187 people,

2 but rather that we have the senior judges, so our

3 numbers are really 15 to 25 depending or above in the

4 Circuit level, and that these judges are in turn aided

5 by about 300 District Court Judges who sit by

6 designation, which is to say that I appeared in a very

7 small Circuit on the East Coast and walked in and

8 found one Judge from one Circuit and one from two

9 others.

10 So that as a consequence, the structure

11 that we are describing has actually already been

12 substantially transformed, and transformed I think, we

13 should be appreciative of the innovative efforts of a

14 judiciary struggling desperately to staff cases. So

15 on one level we have seen actually an internal

16 reformatting that has enlisted a work force of 1,600

17 people. And therefore I hope that the Commission will

18 help lead the way away from a conversation that acts

19 as if we are talking about the adding of one or two

20 people and that focuses this way and that states our

21 federal work is 1500+ and we need every person there

22 and even in light of that transformation we radically
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1 reformatted Appeal, which is to say that about a fifth

2 of the cases nationally get oral argument and there

3 are published opinions in about 6,000 out of 25,000

4 cases.

5 VICE CHAIR COOPER: Does that bother you

6 that you are having less and less oral argument and

7 less and less published opinions, since we are saving

8 a lot of trees?

9 PROFESSOR RESNIK: My suggestion is

10 actually that the insight to be celebrated from 1891

11 is that a single judge doesn't render final judgment.

12 So what I am really concerned about is that there be

13 serious Appellate review by at least two if not three

14 additional people. I a less concerned about the

15 production of vast bodies of thin precedent. And

16 maybe that is a thin precedent in the sense that with

17 a lot of litigation, there can be 800 variations on a

18 theme. But in fact as we who get to stand back from

19 the system a little bit and try to describe it more

20 generally as either because we move between Circuits

21 or we talk about it as a general system, there are

22 threads that can be pulled and there are two or three
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1 positions on major issues that the Appellate boards

2 develop.

3 Here I take a suggestion actually from the

4 Federal Judiciary Volume in 1989 about the Circuits.

5 Professor Carrington reminded us that Roscoe Pound

6 suggested less precedent or that we needed fewer

7 published opinions. I, however, think that we

8 definitely need written opinions. Litigants need to

9 know what the outcome is of their case. So my

10 suggestion would be an increase in written decision of

11 more than a sentence or two that explains why these

12 two or three Appellate Judges said either, yes, you

13 are right or, no, you are wrong.

14 JUDGE MERRITT: You know, this is the

15 product of a division in the Circuits themselves.

16 There is no uniform rule in the Circuits about one

17 word affirmances. Some Circuits -- the 7th Circuit

18 and the 6th Circuit and other Circuits -- I think the

19 1st Circuit -- don't engage at all in that. Other

20 Circuits do. This is not uniform.

21 PROFESSOR RESNIK: One of the facets of

22 this conversation is that on one hand we are talking
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1 in the aggregate about the Circuit Courts, and then we

2 all know as we get close to any one of them that they

3 have very different both processes and outputs.

4 JUDGE MERRITT: And some judges in some

5 Circuits over the years feel very strongly that there

6 should be reasoned decisions or at least an effort

7 made at reasoned decisions, and other Circuits don't

8 follow that principle.

9 PROFESSOR RESNIK: As an occasional

10 Appellate litigant, I have to say that I am very eager

11 to have an explanation of why something came out as it

12 did on behalf of my clients in the situation. As an

13 academic, I don't see the need for 8 million

14 descriptions of variations. So I think that the point

15 would be a serious communication to the parties. 

16 The conversation thus far has talked about

17 the diversity. One of the obvious insights of the

18 United States constitutional system is a commitment to

19 variation. Hence, my view is that when you insist

20 upon a uniform rule, be it a model that says 14 people

21 equal a Circuit Court or there has to be a written

22 decision, you have to be sure it is the right rule.
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1 I think from your question that I certainly share a

2 view that I would be for a written description that is

3 communicative. And whether there is a page -- I am

4 not talking about magic numbers of words, but

5 something that explains how come it came out like

6 this.

7 Several people have made the point and

8 from a variety of perspectives that there is actually

9 less Appellate review, less supervision of District

10 Courts. There is more cases, but from a variety of

11 doctrines of discretion and from the vast expanse of

12 the pre-trial process, the actual work of telling

13 District Judges that their outcomes should change has

14 diminished over time. There are comments from Judge

15 Schroeder, for example, on the 9th Circuit, from

16 academics, and from a variety of different

17 perspectives saying, yes, we have got an incredibly

18 busy Appellate Court. But are they actually

19 superintending? Less than they used to. Reversal

20 rates are down. Doctrines of discretion have

21 increased.

22 JUDGE MERRITT: I would doubt that in the
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1 case of orally argued cases, which are the cases that

2 are more traditional type cases -- they are not the

3 pro se cases, they are not the cases submitted on

4 briefs, they are not the -- well some of them are

5 sentencing guideline guilty cases. But in the

6 traditional case, I would doubt that there has been a

7 change in the relative reversal rate of the District

8 Courts. The problem is to carve out statistically

9 exactly the cases that we are talking about.

10 PROFESSOR RESNIK: And I agree completely.

11 I know your staff is working on inquiry in that

12 direction and obviously one empirical question is how

13 do you measure decline in substantive review. 

14 JUDGE MERRITT: What has happened is we

15 have had a change in the type of cases -- the mix of

16 cases that the Appellate Courts get. 10 or 15 years

17 ago, we had no appeals of guilty pleas (indiscernible)

18 for example. That creates a very different problem.

19 We had very few prisoner pro se cases. As you know,

20 some prisoners file several cases a year. So the mix

21 of cases has changed. 

22 PROFESSOR RESNIK: So the desegregation
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1 point comes back, which is the Appellate docket itself

2 needs to be disaggregated and empirical work needs to

3 be done. But if point one is you've got a four-tier

4 system, point two is you have a mobile work force.

5 Visiting and designated judges staff the Federal

6 Appellate Courts. So the idea that if you say, gee,

7 how many combinations of panels can I get if there are

8 24 judges as compared to 18 judges, look at the

9 numbers of combination of panels you get. Because the

10 Federal Appellate Courts have some 300 District Court

11 Judges sitting by designation.

12 VICE CHAIR COOPER: Is that good or bad?

13 PROFESSOR RESNIK: Well, the question

14 raised, I think, as one looks at the current structure

15 is what to think about the concept of the Circuit law.

16 If you think about 1891, the insight was we need

17 appeal and we need review. It wasn't so clear that

18 the answer was we need insular Circuit law. And as I

19 listen to the exchanges this morning, I am really

20 struck that I think a serious project for your

21 Commission is to say, okay, we have developed a

22 tradition that Circuit law is insular, but we are in
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1 the late 20th Century where Judge Rymer is listening

2 to us through electronics and many of the lawyers

3 practice across the United States and our

4 infrastructure is increasingly inter-jurisdictional.

5 Hence, the suggestion is to revisit the question about

6 whether or not insularity of Circuit law ought to be

7 the end game of this project as compared to serious

8 Appellate review of individual decision making.

9 JUDGE MERRITT: Well, let me emerge

10 slightly. We do have some designated visiting judges,

11 both District and Court of Appeals Judges sitting with

12 us, but I think practically all the Circuits have

13 tried to eliminate that to the point that the active

14 Judges of the Court together with the same Judges who

15 were previously active Judge and know each other

16 continue to maintain the law of the Circuit. And

17 speaking frankly as a Circuit Judge, it is much easier

18 to deal with one of your own Judges than it is with a

19 visited Judge. I just visited with the 2nd Circuit.

20 Judge Newman and I sat together and it was a great

21 pleasure. But he has to communicate with me in a

22 different way. I am not as aware of the customs of
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1 the Circuit. It is more difficult for us to

2 communicate in the same way that I communicate with my

3 own colleagues. So there is a substantial difference

4 over time in the efficiency it seems to me in having

5 Judges of a Court sitting together.

6 PROFESSOR RESNIK: You have the

7 possibility then of going in two directions. Step one

8 is we can't staff our cases with the numbers we have.

9 We rely on the system of roving judges. Option A,

10 figure out a way to try to bound it by saying we need

11 more judges -- be it by creating a fourth tier of

12 District Judges reviewing or some fashion. Option B

13 -- gee, roving judges suggest the possibility of less

14 insularity. Because the current problem for a

15 litigant frankly is that when I am faced with a Court

16 in which there is one Appellate Judge from that

17 Circuit, my view is that that Appellate Judge is

18 making that -- I either have a weak panel in which I

19 can't expect much to occur, or alternatively I assume

20 that the one Appellate Judge from that Circuit has a

21 disproportionate influence. And as a consequence, I

22 am not really getting at least two people reviewing.
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1 JUDGE MERRITT: There is some tendency on

2 the part of visiting judges who are sitting on a Court

3 with other judges from that Circuit to defer. To not

4 be quite as strenuous as they might be about a

5 question if they were sitting on their own Court. And

6 that is what you are talking about?

7 PROFESSOR RESNIK: Yes. And I am also

8 suggesting that one option is to say, look at this.

9 We just had a discussion about inter-Circuit

10 coordination here if you were sharing a state. Look

11 at this and think about this as either a vehicle for

12 inter-Circuit. Notice me as an Appellate advocate to

13 say, okay, you have got a 1st Circuit, a 2nd Circuit,

14 and a 5th Circuit judge. Come in knowing the law of

15 that Circuit because you are going to have to figure

16 out a rule that argues to that and then I will have

17 real Appellate review of that decision. 

18 These are different alternatives. Right

19 now we have in some sense the worst of both worlds.

20 We are mired in a conversation as if we were really

21 talking about a small federal judiciary when it has

22 changed.
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1 PROFESSOR MEADOR: Let me ask you this

2 question. What would you suggest that this Commission

3 recommend out of all of this picture you are

4 describing here. Do you have ideas or suggestions?

5 PROFESSOR RESNIK: Yes, I do. One

6 actually -- not in my written comments, because I

7 hadn't been focusing so much on the access hand. My

8 suggestion in terms of access to the Federal Courts is

9 that there is a volume of cases which are justified

10 because they involve people from two different states.

11 Diversity is one set of them. But actually the large

12 mass torte is another in which it seems to me that

13 what should be urged is a set of courts created by the

14 state systems to respond to the assumption that coming

15 from a single -- that out-of-staters are not as warmly

16 treated. And that is to say some set of national

17 courts based in the state system that deal exclusively

18 with inter-state disagreements or conflicts between

19 people from different states. So that would --

20 instead of this discretionary access to the Federal

21 Courts, I would urge the states -- and then there are

22 questions about commerce clause authority here -- to
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1 create a set of courts to deal with what we call

2 diversity cases and whose sole justification for being

3 in Federal Court is that they come from citizens from

4 different states. And I would include in that packet

5 the large cases as well as the small cases, because

6 the large mass torte or the small mass torte still has

7 this question of what is the rule of law and the

8 operative assumption remains state law.

9 JUDGE MERRITT: But having discretionary

10 access would be a significant (indiscernible) for the

11 states to do what you are talking about because now

12 they have very little incentive to do this. I have

13 seen no -- maybe you know of an instance where there

14 is some movement in this direction, but I have seen

15 very little movement here.

16 PROFESSOR RESNIK: Well, you could look at

17 the mass torte litigating committee, which is a

18 compilation of judges from different states and see

19 them as creating an ad hoc group to deal with inter20 state jurisdictional issues. My suggestion though --

21 I am not enthusiastic about this discretionary access

22 hinging on a District Judge. I think it is both
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1 cumbersome and I think we ought to carve out

2 categories of cases and say presumptively Federal

3 Court. But I think that there is a vast volume of

4 cases in which the role of the states is very

5 important. The state is the basis of the law. But it

6 is actually an inter-state conflict and I would like

7 to see Congress funding and enabling this capacity

8 because we know that our state systems are

9 terrifically vulnerable in their court structures and

10 very underfunded. So I think that at the moment in

11 the world in which State Courts already bear such

12 great burdens, that for the Federal judiciary to say

13 now let's give them some of ours is not as wise as for

14 the Federal judiciary to be recommending the creation

15 of auxiliary resources. 

16 And it also responds to this ability to

17 enhance the role of the Judge, which gets me to my

18 second recommendation. There is a genuine problem

19 around the role of the Judge. Here I think that we

20 have to face that the tradition of -- however

21 important and useful the 7-person working conference

22 of the Circuits used to be, it simply will not/is not
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1 currently, nor can it be in the future, the model. As

2 a consequence, I think we need to look at how to make

3 the task of judging good for litigants and good for

4 the people who engage in it and esteemed. There are

5 two prongs to this. One is for the life tenured

6 judiciary who feels besieged and underpaid. Looking,

7 for example, at the function of the designated judge.

8 Right now we have District Judges who sometimes sit on

9 Appellate Courts. Does this make the job more

10 interesting and better? Australia -- some of the

11 states within Australia organized their system so that

12 out of a 12-month year, for 3 months the judge who was

13 a trial level judge is an Appellate Judge. Looking at

14 the notion that makes this less utterly overwhelming

15 as a grind of a torrent of cases and alters the

16 activity to give one the energy to do the hard job of

17 judgment.

18 So one is to think about -- you already

19 have a rotating system in the back-ups to the

20 Appellate panels to some extent. Here we are back in

21 our conversation about experimentation and innovation.

22 Look hard and ask the people who participate in them,
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1 both from the Appellate point of view and the District

2 point of view, what is the utility of this mixed

3 system. 

4 Second, judicial sabbaticals. Judges are

5 exhausted. They should be. Many systems to which we

6 regularly compare ourselves give judges breaks.

7 Third, thinking about moving toward a

8 national Appellate system because we have got our

9 traveling judges in which they move via visiting

10 around. If this becomes unattractive, then I think

11 you have to look at your tier notion, which is to say

12 that you already have four tiers. Do you formalize

13 them into an Appellate division of the trial level

14 court, in which case you are giving your magistrate

15 and bankruptcy judges the vast amount of first tier

16 decision making and your District Judges are part-time

17 Appellate Judges and part time trial level judges.

18 And along that side, since you are turning a good deal

19 of first entry decision making over -- have turned to

20 bankruptcy and magistrate judges, pay attention to

21 them. Because they are the adjudicators for United

22 States citizens in a lot of cases and need to have
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1 some of the sense of authority and importance because

2 they are the people to whom litigants go.

3 That gets me actually to a suggestion

4 about the relationships with Congress. The concern

5 from a lot of people that look at this is of the

6 efforts from the judiciary to attempt to at some level

7 appease or placate a Congress that looks like it is

8 very overly engaged in the management of the Federal

9 Judiciary. And hopefully this Commission will take

10 the occasion upon which to consider how to embed the

11 notion of the Article III judiciary as not as

12 dependent on Congress's whim and not as engaged in

13 these sort of battles of an individual person. It is

14 terrifically important. We are living in a world

15 where the ABA Commission on the judiciary told us that

16 it is a very fragile world. And as a consequence, how

17 does this Commission use its suggestions or make its

18 suggestions to augment the independence of the

19 judiciary, which goes to some of the notions of

20 internal flexibility models. Perhaps a few uniform

21 rules created by the judiciary that says appeal in

22 this system requires two or three judges and it
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1 requires some statement of reasons to the litigants,

2 be it published or not. 

3 PROFESSOR MEADOR: Let me ask this

4 question. You mentioned the idea of Appellate review

5 at the District level and formalizing that, I gather,

6 a little bit more. Do you have any other suggestions

7 concerning structure or organization of the U.S.

8 Courts of Appeals themselves?

9 VICE CHAIR COOPER: And including in that

10 geography and size -- too big, too small, does it make

11 any difference? Could we have one state Circuit?

12 Should we split states or not?

13 PROFESSOR RESNIK: I take it we have now

14 entered the world of what has been termed this morning

15 the 9th Circuit question here?

16 VICE CHAIR COOPER: Not necessarily. If

17 you look at the 11th and the 5th, a lot of

18 commentators say that they are the size that we need

19 to be taking a look at also.

20 PROFESSOR RESNIK: As a person who has

21 practiced in both the 9th, 2nd, and several of the

22 other Circuits, I do not believe that the size of the
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1 Circuit has any kind of talismatic number to it, and

2 I am not of -- I share the view of what I take to be

3 the majority of people in the 9th Circuit who are

4 judges and lawyers that there is no pressing need to

5 split it at this point, and further that the focus on

6 it has, I think, actually distracted from this much

7 harder conversation about what to do now with the

8 transformed federal judiciary in terms of numbers and

9 use of visitors and the like.

10 VICE CHAIR COOPER: Do you have any

11 explanation of why there was a need to split the old

12 5th and there is no need to split the 9th? They look

13 like mirror images of each other if you took a time

14 capsule and compressed it together.

15 PROFESSOR RESNIK: As I understand, first

16 from the few books that have been written about the

17 split of the 5th, including some reviews from one of

18 my colleagues, that like the current conversation

19 occurs in a political and social context and is not --

20 unfortunately not done from the point of view of how

21 do we maximize the best of all possibilities for U.S.

22 citizenry in terms of access. But in these
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1 conversations, Congress's attention is drawn by

2 political and social factors and not by the lower

3 administrative ones.

4 PROFESSOR MEADOR: Excuse me, if I can get

5 you back up to my question. Forget the 9th and 2nd.

6 PROFESSOR RESNIK: Fine.

7 PROFESSOR MEADOR: Take the Courts of

8 Appeal. Assuming -- imagine the continued growth in

9 the volume of appeals and you had more judges and so

10 on, somewhere out there down the line -- 10 years from

11 now or more -- do you have any suggestions about what

12 might be done among the U.S. Courts of Appeals to meet

13 the problem? Would you just let them go on and on and

14 on? Do you have any suggestions at all about what

15 this Commission might think about looking ahead?

16 PROFESSOR RESNIK: Well, I think my

17 suggestion is that we are down that line and what has

18 occurred is a four-tier system. And one of the tasks

19 of this Commission is to figure out whether to

20 formalize that fourth tier and create a tier between

21 the current Federal Appellate Courts and the trial

22 level courts. And in the population of that fourth
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1 tier whether to use District Judges exclusively or

2 whether to have some of your current Circuit Judges

3 share in that -- using judges from two sets of courts.

4 I think that is the question. I think it already

5 exists that there is this fourth tier, and the

6 question is how do you frame it. Because currently --

7 JUDGE MERRITT: I am having a little

8 trouble following the fourth tier. I had originally

9 thought you said there were now four tiers, one of

10 which is the bankruptcy/magistrate tier. The second

11 is the District Judge tier and the third is the Court

12 of Appeals and the fourth is the Supreme Court. Now

13 are you using the four tiers in a different sense?

14 PROFESSOR RESNIK: Thank you. That is

15 very helpful. Yes. There is a way in which -- you

16 always want to have these sort of moving diagrams for

17 this possibility. In some ways, the magistrate and

18 bankruptcy judges are below the District Courts and

19 you appeal to them. But in some districts, for

20 example, the magistrate judge is actually on the wheel

21 and you go directly to that person with much less

22 review. So there are moments when you have got four.
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1 Sometimes they collapse into three. Meanwhile, the

2 bankruptcy judges sometimes create their own little

3 Appellate Court, and then you have got some District

4 Judges who sit by designation on the Court of Appeals.

5 That is our current -- I don't have a mobile or some

6 other moving diagram to do it, but they actually

7 change places, which is hard to capture and which

8 requires that use of the word four tiers in different

9 ways.

10 Then the question is, okay, what do we do?

11 One version is leave it as it is. I am a little leery

12 about that, to try to be directly responsive, because

13 I think it is both haphazard and we have this kind of

14 odd reliance on outsiders and this sort of thinner

15 Appellate process. My suggestion would be, therefore,

16 that you need to acknowledge it and then build upon

17 it, and here I think I share both what I take to be

18 Judge Rymer and Judge Newman's exchange about

19 experimentation and flexibility. Since we don't have

20 a magic bullet at the moment, we can't only say here

21 is the answer. But let us now say, okay, expand the

22 use of bankruptcy Appellate panels, for example, or
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1 track that record and see about that as a model. Look

2 at our District Courts. Look at who should sit by

3 designation on the Courts of Appeals. Are we looking

4 for judges five years out? Senior Judges? How to use

5 them as part-time Appellate Judges? Or should we

6 reject this part-time system and go as has been more

7 the U.S. tradition to single job opportunities. I

8 think that is the agenda, informed I hope by some of

9 your peerism, and then also with a series of proposals

10 that say here are the 7 options of how we can do it

11 and here are at least three or four that ought to

12 begin.

13 What are our goals? Getting decisions

14 reviewed. So that you really have -- the real

15 potential risk is that we have not a vigorous

16 Appellate system and we have these single judge

17 decisions that are not truly subject to review. And

18 here this great reliance on staff and the minimal

19 opinion that is written is the haunting feature of the

20 current story. 

21 So my sense is sort of applaud a judiciary

22 trying to manufacture a judicial power and then look
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1 at the process of that manufacture. Reject the parts

2 of it you don't like, like this potential bringing law

3 back and forth, and formalize those that you do or at

4 least authorize their formalization. 

5 VICE CHAIR COOPER: So what you are really

6 saying is that we really have a three and/or four tier

7 system now depending on whether you are stretching the

8 accordion or squeezing it and where you are in the

9 country?

10 PROFESSOR RESNIK: Yes. And actually

11 varying it sometimes from district to district. We

12 currently have discretionary Appellate review now

13 because the staff system screens out and only a fifth

14 of the cases get to the sort of full process. So that

15 the debate about should we have it -- 

16 JUDGE MERRITT: But that is a vast

17 overstatement of the situation -- an

18 oversimplification because of the change in the mix of

19 the cases. There is no particular change in the old

20 types of cases -- the private law cases and public law

21 cases that have come into the Court. The staffing

22 that I know about is to be a shortcut in certain
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1 particular kinds of cases that are new in the mix. So

2 I read (indiscernible) articles all the time and they

3 say just what you said as though that describes the

4 system, but it is much more complex than that. 

5 PROFESSOR RESNIK: Judge Merritt, part of

6 the impulse to overstate is to try to move the

7 conversations away from should we have two more

8 judges. But the second concern is that your statement

9 does reflect that there is a category of cases in

10 which there is not really appeal as a right. It is

11 not all the cases in the United States, but there is

12 a category of cases that go presumptively to staff for

13 screening. That means that the model that said every

14 aggrieved litigant has appeal as a right, some set of

15 them -- some which you may believe shouldn't have

16 appeal as a right -- do not currently get life tenure

17 judges of three reviewing the merits. So this sense

18 of discretion is that which we used to call appeal,

19 a packet of things -- that written decision, three

20 judges, briefing, oral argument - doesn't exist for a

21 whole lot of litigants. Now there are different

22 versions of what could be appealed, but some segment
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1 of these cases are presumptively in many Circuits

2 looked at by staff on the assumption --

3 JUDGE MERRITT: They are not decided by

4 the staff. There is not any case in the 6th Circuit

5 that is decided by the staff. None.

6 PROFESSOR RESNIK: It is not a sense in

7 which it is decided by the staff, but that sense of

8 direct access to life-tenured judge is no longer

9 available. Now one visions is that that should no

10 longer be available, and in some sense I take that to

11 be the --

12 JUDGE MERRITT: You say that the screening

13 process by staff is a process of bureaucratization by

14 which the staff denies the case?

15 PROFESSOR RESNIK: I am not making the

16 argument of decision. I know that in some Circuits,

17 and I hardly would presume to talk about the 6th --

18 that in some Circuits, at least as described to me by

19 other Appellate Judges, staff provides a single

20 opinion which is then circulated to the others for

21 signing off on, and that at least some Appellate

22 Judges, and I believe some who have testified before
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1 this panel in other venues, have suggested that what

2 they understood appeal to be 20 or 30 years ago is not

3 what their Court is routinely doing in all of their

4 cases. And then the question is do we strive to try

5 to return to that system or do we say this segmented

6 system is all right, and I take it the suggestion of

7 using a formalized 4th Appellate tier, this District

8 Court review, is a means of giving more specific

9 review to all litigants at least once along the way.

10 VICE CHAIR COOPER: Professor, it is

11 always good to talk with you.

12 PROFESSOR RESNIK: Thank you kindly.

13 VICE CHAIR COOPER: We appreciate your

14 time and effort and your written statement here. 

15 PROFESSOR RESNIK: Thank you.

16 VICE CHAIR COOPER: And thank you for

17 being with us today. Our next witness is Judge Joseph

18 Weis for the United States Court of Appeals for the

19 3rd Circuit. Judge, it is good to have you with us

20 today.

21 JUDGE WEIS: Good morning. As I see it,

22 the role of the Courts of Appeals is to provide
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1 uniform coherent enforcement and application of

2 federal law. I don't think the Courts are following

3 that goal now as well as they could. The primary

4 reason is that the structure of the Courts of Appeals

5 is wedded to a concept of regionalism and not

6 nationalism.

7 Regionalism had its beginnings, of course,

8 200 years ago with the first judiciary act. At that

9 time, the speed of transportation was measured by a

10 schooner, a river flatboat, or a horse and wagon.

11 Communication had exactly the same speed. 100 years

12 later, when we got around to the Everts Act, we had

13 made some improvements. The steam locomotive and

14 steamships set the pace for transportation. The

15 telegraph was available, but certainly only for very

16 brief messages and not suitable for voluminous

17 communication. The telephone was in its infancy. So

18 there wasn't enough dramatic change to inspire

19 Congress to look at the whole structure of

20 regionalism, and instead it opted to a band-aid

21 solution at that point. Adopt a decentralized

22 Appellate intermediate system. 
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1 I think that today we ought to look into

2 the future and realize that the radical changes in

3 communication -- today we have instantaneous e-mail,

4 fax, interactive video, computerized legal research.

5 The speed of transportation is measured by the speed

6 of jet planes. So our whole outlook should change.

7 Should we really remain cramped and constricted by the

8 idea of regionalism? I think the answer should be no.

9 Industry has not felt that need, and I think the new

10 concepts should come into court planning as well.

11 So what I propose is we get back to the

12 whole idea of a unified Federal Appellate system, and

13 I would propose that that be accomplished by having a

14 unified Court of Appeals, one United States Court of

15 Appeals to cover the whole country. I know as soon as

16 I raise that concept, there are those of my brethren

17 who would stone me and dismember me on the spot. 

18 VICE CHAIR COOPER: Is that because there

19 would only be one Chief Judge, Your Honor?

20 JUDGE WEIS: Well, the beauty of my

21 proposal is that there would be more chiefs. And

22 since I propose that there would be no increase in
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1 salary for any of the chiefs or any member of the

2 unified court, it should appeal to those who long for

3 the chiefship. So I don't see that as a real obstacle

4 to it, although there are others. Incredulity seems

5 to be another effect it has on people.

6 VICE CHAIR COOPER: Professor Meador has

7 a question.

8 PROFESSOR MEADOR: One question about your

9 proposal that I am not sure that I have ever seen you

10 address is that. And that is in administering the

11 system, one aspect of what we have right now is a kind

12 of decentralized administrative structure. Forget the

13 law of the Circuit and all that, which is very much a

14 part of it I know, but along with it is this

15 administrative decentralization in which you have

16 these 12 geographical units administering the system.

17 Now what do you do about administration? If you end

18 up with 20 or more 9-judge Courts of Appeals, all

19 divisions of the one United States Court of Appeals,

20 still in all don't you have to have some

21 administration in that and can you fill out how that

22 would work?
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1 JUDGE WEIS: I think that we ought to

2 separate the ideas of administration and the judicial

3 review. I think that has been another restraint that

4 we shouldn't have. What is the virtue, for example --

5 and again, I am not guilty of heresy -- in saying that

6 a Court of Appeals within a certain region has greater

7 competence in administration than would an

8 organization composed of District Judges and Circuit

9 Judges? I would separate completely the ideas of the

10 Court functioning clock-court as an administrative

11 agency, and I would put that to the side. If we get

12 into a discussion of the administration of the

13 judicial system, we could go to other models. Perhaps

14 regional or perhaps four regions of the country or

15 maybe two regions and something of that nature. But

16 that should not interfere as I see it with the role of

17 the Appellate Courts. We don't want the tail wagging

18 the dog in that respect. That is why I haven't

19 bothered to go too much into the administrative end,

20 because I think that is a separate problem.

21 JUDGE MERRITT: What advantage exactly --

22 what value are you enhancing by abolishing the
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1 regional Courts of Appeal and creating a one Court of

2 Appeals that would be presumably assigned to sit in

3 different regions of the country? Different judges

4 would be assigned to sit in different places. You

5 still are going to hear appeals by oral argument in

6 San Francisco and New York and New Orleans or wherever

7 it may be. My question is what are you gaining by

8 abolishing the regional Courts of Appeals and in lieu

9 of that reassigning judges to sit in basically the

10 same locations and hear the same cases?

11 JUDGE WEIS: First of all, it is a

12 complete change of mindset. We no longer have a

13 bulkinization of federal law and no longer a

14 regionalization of federal law. Each judge in the

15 unified Court of Appeals speaks on a national basis.

16 An opinion from a division in California is binding

17 national law. It is not simply confined to a few

18 states. The judges no longer think in terms of

19 Circuit law. They think in terms of federal national

20 law. 

21 JUDGE MERRITT: What exactly does that

22 enhance?
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1 JUDGE WEIS: First of all, it eliminates

2 the -- 

3 JUDGE MERRITT: Uniformity of law you

4 think?

5 JUDGE WEIS: Yes.

6 JUDGE MERRITT: You don't think that you

7 are going to have a lot of infra-panel conflicts when

8 you have -- now within a Circuit -- 6th Circuit or 9th

9 Circuit or whatever -- there are serious problems of

10 intra-Circuit conflict. We have got the mechanisms to

11 try to straighten it out in the worst cases, but as

12 you know different panels do things differently. In

13 the case of a national Court of Appeals, you are going

14 to multiply very substantially the possibility of

15 conflict.

16 JUDGE WEIS: I don't think so for this

17 reason. There should be a distinction between

18 deliberate creation of conflicts, which goes on every

19 day now, and the inadvertent creation of a conflict.

20 It is the deliberate conflict that I think is contrary

21 to the basic idea of uniform federal law. The 9th

22 Circuit will disagree with the 5th Circuit which will
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1 disagree with the 6th which will disagree with the

2 3rd. In a uniformed Court, you have no deliberate

3 creation of conflicts. I think that you would have

4 fewer inadvertent conflicts because the national

5 precedent has been set. When the lawyers brief the

6 case, they wouldn't be briefing the different versions

7 of one Circuit versus another.

8 JUDGE MERRITT: So what you are enhancing

9 in your view of a centralized national Court of

10 Appeals is the lack of intra-Circuit conflicts or the

11 lack of conflicts within the national law.

12 JUDGE WEIS: Right.

13 JUDGE MERRITT: That is really the bottom

14 line.

15 JUDGE WEIS: The deliberate creation of

16 them, yes. The inadvertent problem would, of course,

17 have to be addressed.

18 JUDGE MERRITT: Any other value that you

19 are enhancing other than the reduction of conflicts in

20 the application -- the declaration and the application

21 of the national law?

22 JUDGE WEIS: I think so. I think I could
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1 hope for a better product, if you will. My idea is

2 that the judges would be consolidated or would work in

3 divisions of 9. 9 has always seemed to me to be a

4 workable group for collegiality purposes. And again

5 I am speaking of collegiality in the sense of

6 efficient committee work, not congeniality. They are

7 so often confused. If you have an entity of 9 judges,

8 the pace of the work would be such that you could have

9 pre-filing circulation of opinions which would reduce

10 the opportunity for intra-divisional conflicts to

11 begin with. It would also give a panel of 3 the back12 up of the thinking of the 6 other judges. So I think

13 that that would be a better work setup than the one we

14 have today where you have 28 judges in the 9th Circuit

15 and 6 in the first.

16 We would also spread the work of the

17 divisions out not primarily on the basis of geography

18 or state lines, but rather on the basis of workload.

19 It would give a whole set of flexibility to the system

20 that it lacks today. And the workload of each

21 division could be adjusted as the workload of the

22 Court itself changes too. If they fall off in one
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1 area, then the lines, if you will, or the division

2 could be readjusted to take care of the change in

3 workload.

4 VICE CHAIR COOPER: As I understand it,

5 you are going to use the 9th Circuit as a model for

6 this plan. Explain how that works. I have read your

7 paper about that, but I think -- and your paper is in

8 the record about how you would recommend setting up

9 the 9th Circuit in divisions as sort of a model to see

10 how it works, and then try to expand it nationally.

11 JUDGE WEIS: Yes. I think the 9th Circuit

12 is the ideal laboratory in this country. I know of no

13 other unit of the Courts of Appeals that is large

14 enough to really try out this idea of a unified

15 Court. So my proposal is that the 9th Circuit not be

16 split, but that it be set up in more or less permanent

17 divisions of 9 judges. Having set the 9 judge units

18 as a -- 

19 JUDGE MERRITT: Would it be territorial?

20 JUDGE WEIS: To some extent, but it

21 wouldn't be bound necessarily by territory. Again, we

22 would look to the volume of the appeals to be handled
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1 by each division.

2 PROFESSOR MEADOR: But you would have to

3 have some mechanism or rule about routing what appeals

4 to what division, wouldn't you?

5 JUDGE WEIS: Oh, yes. Certainly.

6 PROFESSOR MEADOR: Would that be

7 territorial?

8 JUDGE WEIS: It would be territorial in

9 the sense that it would focus on districts. In other

10 words, if it should develop that the total load is

11 let's say 9,000 appeals -- I know it is more than

12 that. So we would look to a model where 3,000 appeals

13 would go to each division. Now to get to the 3,000,

14 perhaps we would have to have one division which would

15 do nothing but cases coming from the districts in

16 California. Let's say the central district of

17 California would have 3,000 appeals. Then the other

18 two divisions you would split up between the other

19 districts of the 9th Circuit.

20 JUDGE MERRITT: Would you do anything on

21 subject matter jurisdiction? Another way to do this

22 if you are going to have divisions of a Circuit or
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1 divisions of a centralized national Appellate entity

2 is to have some territorial jurisdiction and some

3 subject matter jurisdiction. Would you consider

4 anything -- most judges are against subject matter

5 jurisdiction courts. Most judges, I would say 90

6 percent are. But that doesn't necessarily mean it is

7 a bad idea. What would you say about that?

8 JUDGE WEIS: There is enough flexibility

9 in the idea of a unified national court to allow for

10 specialized divisions. It is quite possible that

11 something could be modeled on the Federal Circuit, for

12 example, where a division would handle taxes, patents,

13 trademarks, and so forth. But I wouldn't see any real

14 likelihood of doing that in the 9th Circuit because

15 there wouldn't be enough cases in the specialized

16 area, I think, to make it work.

17 JUDGE MERRITT: Well, for example, in the

18 9th Circuit you -- I am not familiar with their

19 caseload, but you might very well have an Immigration

20 Court that would handle all immigration cases that

21 come to the Appellate level or Social Security

22 specialized. But I mean there are lots of different
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1 variations.

2 JUDGE WEIS: It could be done. I 

3 don't -- 

4 JUDGE MERRITT: Do you think that is a

5 good idea?

6 VICE CHAIR COOPER: And why is the

7 division better than a split? Explain that to us.

8 JUDGE WEIS: Because you still retain one

9 court. You have the Court of Appeals for the 9th

10 Circuit, which would act as the parent body. It

11 supervises the three divisions and it keeps them in

12 line and it acts as a court of final resort to resolve

13 any interdivisional conflicts. One of the things I

14 envision on the national basis is that the unified

15 court would have within itself a body to enforce

16 uniformity. I call that simply a central division,

17 which could be a permanent thing or temporary. Judges

18 could float in and out of it or be assigned to it for

19 a period of years. But its function would be to

20 resolve not only intra-divisional splits, but the

21 occasional opinion of a panel that simply just doesn't

22 fly. And instead of dumping all of those cases on the
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1 Supreme Court, this central division would be

2 available to overrule a division as it were.

3 JUDGE RYMER: Judge Weis, if you were

4 using the existing 9th Circuit for laboratory purposes

5 in this regard, I assume what you would envision is

6 some mechanism to trigger a probably limited embank

7 that would go Circuit-wide to resolve intra-Circuit

8 conflict on matters of total Circuit importance?

9 JUDGE WEIS: Yes. I would envision two

10 types of embanks. One an interdivisional court

11 embank, and the other would be the 9th Circuit's

12 present 11-judge embank.

13 JUDGE RYMER: Why two? I don't understand

14 that exactly.

15 JUDGE WEIS: Well, suppose that we had

16 conflicts between division 1 and division 2.

17 JUDGE RYMER: Yes.

18 JUDGE WEIS: Then the 11-judge embank

19 would come into play.

20 JUDGE RYMER: Right.

21 JUDGE WEIS: And those judges could be

22 selected either as you do now by some lottery
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1 proposition or perhaps allocated so many to each

2 division or whatever. The mechanics I don't think at

3 this point are important. It is the concept that I am

4 trying to get across.

5 JUDGE RYMER: Well, sometimes the concept

6 is proved by the details. But you would envision just

7 that for an umbrella embank proceeding to resolve

8 inconsistencies between the divisions, but you would

9 also envision an embank process consisting of the

10 whole number of judges on each division for divisional

11 purposes?

12 JUDGE WEIS: Yes.

13 JUDGE RYMER: Okay. Thank you.

14 VICE CHAIR COOPER: Judge, I am not sure

15 you were here earlier when I said that -- that is

16 Judge Pam Rymer from the 9th Circuit who is joining

17 us.

18 JUDGE WEIS: I gathered that. It sounded

19 like a voice from heaven becoming involved in the

20 proceedings here. 

21 VICE CHAIR COOPER: I think that is a

22 compliment, Judge Rymer.
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1 JUDGE WEIS: Intended to be so.

2 VICE CHAIR COOPER: And you think that

3 your concept for a national Court of Appeals would

4 follow the same general format, without getting into

5 the details, that you are recommending for the 9th

6 Circuit? 

7 JUDGE WEIS: Yes. But I prefer not to use

8 the word national Court of Appeals because of past

9 problems. So that is why I used the word unified

10 Court of Appeals.

11 VICE CHAIR COOPER: All right. 

12 JUDGE WEIS: The national court was a

13 fourth layer, and I think that we should try to stick

14 to the traditional three layer.

15 VICE CHAIR COOPER: Did your Federal Court

16 Study Committee take a look at this concept when you

17 -- as you were chair of the Federal Court Study

18 Committee?

19 JUDGE WEIS: Yes, it did. And it took a

20 look at three other models and decided not to adopt

21 any one of the four. We had the time constraints, and

22 I am sure you are very familiar with that with your
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1 work on this committee, and we had limited resources

2 as well. So that we did recommend for further study

3 the structure of the Courts of Appeals because we

4 thought that the Courts of Appeals presented the

5 biggest problem in the Federal Court system.

6 Following our suggestion, the Federal

7 Judicial Center did commission a study of the

8 Appellate structure. And unfortunately it didn't do

9 what we had intended. What we wanted the Federal

10 Judicial Center to do was take at least the four

11 models that we submitted and any others that might

12 come to mind and then analyze the pluses and minuses

13 of the various structural proposals. Instead, the

14 Commission ended up saying that it didn't think at the

15 present time that there should be any alteration in

16 the system. Well, that is not what we wanted to know.

17 We wanted to know whether some of the schemes that we

18 had come up with simply were not workable at all and

19 should be completely discarded or whether any of them

20 were worth further study and so forth. So as far as

21 I am concerned, we are back at square one from the

22 study committee's recommendations that the problem
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1 needs to be addressed and that we should look far into

2 the future rather than simply looking at today's

3 problems and a band-aid solution once again.

4 VICE CHAIR COOPER: That was your

5 favorite. What were the other three -- I hate to use

6 the word schemes, like you hate to use the word

7 national. But what were your other three

8 alternatives?

9 JUDGE WEIS: One was a model toward

10 inserting another entity into the system. Another was

11 to create a number of what is called jumbo courts, as

12 I recall. Judge Lee Campbell was much in favor of

13 that, of having perhaps four large courts. And then

14 another proposal was that we have a three-judge panel

15 composed of District Judges. And supposedly they

16 would be able to filter out the cases that required

17 only error correction and not law promulgation.

18 PROFESSOR MEADOR: Let me ask you this

19 question. Your committee also found the problem of

20 inter-Circuit conflicts to be of sufficient concern to

21 recommend a device for dealing with those. Laying

22 aside the specific recommendation that you had in your
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1 report -- laying that aside, is it your view -- do you

2 continue to hold the view that there is a significant

3 inter-Circuit conflict problem that ought to be

4 addressed in some fashion?

5 JUDGE WEIS: Very much so. And I think

6 that the problem is getting worse all the time. It is

7 interesting that I believe in the last two months the

8 Law Week publication has devoted a page or two to

9 existing conflicts that occurred during that past

10 month. Every Appellate Judge I am sure has the

11 experience of almost on a daily basis of encountering

12 Circuit conflicts. The studies that have been done so

13 far on that bother me a bit too because they focus on

14 the petitions for cercariae that are filed in the

15 Supreme Court and then make certain conclusions from

16 that data. What those studies do not do is analyze

17 the many inter-Circuit conflicts in which counsel

18 decide that it is simply not worth the time to ask for

19 cercariae because it will not be granted. They aren't

20 the type of issues that would appeal to the Supreme

21 Court in its policy making role. So I think that a

22 more detailed study to develop some of the hundreds of
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1 conflicts that are still in effect would be very

2 helpful.

3 The other point that maybe I could just

4 talk about briefly is the percolation theory, which is

5 that the Supreme Court benefits from the development

6 of a point of law by decisions in various Circuits.

7 I just can't buy that idea. I think it is too

8 expensive for the litigants. It is too expensive for

9 the country. It is time wasting and it doesn't make

10 sense from a policy standpoint. Many of these

11 conflicts that exist there are searching, as it were,

12 for the right answer. But we know in law many times

13 it is more important to get a answer rather than the

14 "right" answer. And interpretation of a statute, once

15 the wording is made clear, will furnish guidance for

16 office counsel and the business world. It is far more

17 important that they get an answer soon than the

18 "right" answer five or ten years later. So again I

19 think that the unification of a Court of Appeals would

20 do away with this percolation theory, which is simply

21 trying to put a good face on the inter-Circuit

22 conflicts.
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1 VICE CHAIR COOPER: Judge, thank you so

2 much for being with us today. We appreciate your

3 thoughtful consideration. 

4 JUDGE WEIS: You aren't going to stone me

5 the way some of my colleagues do?

6 VICE CHAIR COOPER: No, sir, we don't st

7 one. Because certainly speaking for myself, I may be

8 where you are one day and you may be where I am. 

9 JUDGE MERRITT: I thought you had already

10 had enough of that in the past.

11 VICE CHAIR COOPER: You are probably

12 right. As chair of the committee, I would suspect you

13 have had enough stones coming in your direction.

14 JUDGE WEIS: Yes, indeed. 

15 VICE CHAIR COOPER: We are going to take

16 a 10-minute break, and we will reconvene at about

17 11:05.

18 (Whereupon, off the record.)

19 JUDGE SCHWARZER: Thank you for fitting me

20 in on relatively short notice, which helps me since I

21 happen to be here and will not be in San Francisco

22 when you are there. My comments are limited to the
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1 9th Circuit alignment, although if you wish to ask me

2 any other questions, I will try to answer. They will

3 be brief because I have given you a statement and I

4 don't plan to go through that statement in any length.

5 I will just hit some of the high points.

6 Of course, this is an issue that has been

7 debated and discussed and argued about in the 9th

8 Circuit for well over 20 years. But I come to taking

9 a position on this rather late in the day. I have

10 never signed on to the position of the leadership. I

11 have listened and I have considered it. But it really

12 wasn't until I spent some time at the FJC on the FJC

13 study and workshops held for Appellate Judges and also

14 in my recent experience in having sat by designation

15 on some eight Circuits around the country that I began

16 to think through the problem and tried to sort out my

17 own ideas and come up with an answer to this issue

18 based on the merits as opposed to politics.

19 I see that there are two questions for the

20 Commission on this subject. The first one is whether

21 there is a crisis that requires any immediate action

22 to realign or restructure the 9th Circuit. And the
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1 second question is putting aside the problem of any

2 immediacy, is there any evidence to show that the

3 administration of justice will be improved in the 9th

4 Circuit by realignment or restructuring.

5 I would answer the first question, no. I

6 see no evidence of any emergency that requires

7 immediate action. The 9th Circuit, of course, has a

8 heavy workload and a shortage of active judges as a

9 result of a number of vacancies, but it is getting its

10 work done and it is getting it done efficiently. So

11 I know of no way that a realignment or restructuring

12 would help the 9th Circuit with its heavy workload.

13 The second question has more

14 ramifications. It is true that if the pressure of the

15 workload could be lessened, that would be desirable

16 from the point of view of the administration of

17 justice. But as I said, neither realignment nor

18 restructuring would seem to be bring that result

19 about.

20 It is true that the Circuit is large, but

21 there is no indication that reducing its size will

22 ease the pressure of the workload. The question is
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1 whether it will be more efficient as a result of being

2 smaller. I spent a lot of time on the statistics. I

3 am sure you have spent a lot more time on it and also

4 in observing the Circuits, but I don't see any

5 correlation between Circuit size and efficiency. A

6 lot of attention is focused on time to disposition,

7 but it seems to me that that is an imperfect measure

8 of efficiency. And even if it were used, it doesn't

9 correlate to Circuit size. 

10 JUDGE RYMER: Judge Schwarzer?

11 JUDGE SCHWARZER: Yes, Judge Rymer.

12 JUDGE RYMER: You have just mentioned a

13 criteria, which is efficiency, by which I assume you

14 are measuring whether a Circuit and/or a Court of

15 Appeals works well in your judgment. What criteria do

16 you think that the Commission ought to apply across

17 the board in deciding whether Circuit alignment or

18 Court of Appeals structure works?

19 JUDGE SCHWARZER: Well, in my statement,

20 I have identified two criteria. One of those is

21 efficiency and there are a number of factors that you

22 could look at that are not related to Circuit size.
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1 The other one is coherence -- intellectual coherence,

2 which covers a range of matters such as intra-Circuit

3 conflicts, the abstract notion of collegiality, that

4 is not friendliness, but how often judges are able to

5 sit with each other so that they have an understanding

6 of how each other thinks. I mean there is obviously

7 quite a difference. I have sat on the 1st Circuit

8 where everybody knows exactly how everybody else

9 thinks. It is a very out-of-body experience coming

10 from the 9th Circuit. 

11 JUDGE MERRITT: Is that good or bad?

12 VICE CHAIR COOPER: We have got an out-of13 body person speaking to an angel now, so we want to

14 figure this out.

15 JUDGE MERRITT: Well, what did you think

16 about that 1st Circuit experience?

17 JUDGE SCHWARZER: What did I think of

18 that? Well, it is interesting, but not as interesting

19 as sitting on the 9th where you have obviously

20 considerably more intellectual input. Not just

21 because there are 28 active judges but because there

22 are innumerable senior judges and visiting judges who
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1 sit there. I think the size is not an impediment to

2 sufficient intellectual coherence. It is just

3 interesting to see how a structure like the 1st, which

4 almost seems like it comes out of the 19th Century

5 given the size of the Court -- how that works. But I

6 don't see that it is even anything that is open for

7 consideration. It is not feasible.

8 PROFESSOR MEADOR: You didn't -- I think

9 you didn't sense -- or did you sense in the 1st

10 Circuit a greater coherence in the law there? A

11 greater degree of collegiality which in turn made for

12 a smoother decision making? Did you get any sense of

13 that in the 1st Circuit compared with the 9th?

14 JUDGE SCHWARZER: Well, there is a little

15 more to it in the 1st Circuit than numbers. There is

16 a tradition in the 1st Circuit of avoiding dissent.

17 And that goes back at least to Steve Briar and maybe

18 before that. He was quite remarkable in having the

19 Court reach a consensus on issues. And actually that

20 is a controversial issue because it does to a degree

21 stifle independent thinking and originality and

22 creativity and finding new ways for the law to move.
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1 But that is part of the tradition in the 1st Circuit.

2 So, yes, there is a lot more coherence and in that

3 sense collegiality. People go out of their way to

4 avoid dissent, whereas in the 9th Circuit I think at

5 times there is some sense of I wouldn't say urgency,

6 but there is more impetus to dissent because there are

7 some issues that people feel are important but where

8 new thinking needs to be developed. But I think that

9 a five judge court is out of the question. So it is

10 merely a kind of an artifact that is interesting to

11 observe, but I don't think we can learn a lot from it.

12 JUDGE MERRITT: So at least empirically,

13 the smaller court has in this instance produced fewer

14 dissents and a more coherent body of law? 

15 JUDGE SCHWARZER: Certainly fewer dissents

16 -- few, if any, dissents. Now you might say it is

17 more coherent. I suppose it is possible also that by

18 reaching consensus differences are -- well, I won't

19 say swept under the rug, but obscured by the way

20 decisions are written so as to eliminate differences.

21 I can't say authoritatively that that happens.

22 JUDGE MERRITT: You wouldn't say, for
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1 example, that the Marshall Court -- I am talking about

2 Chief Justice Marshall -- where for many years there

3 were almost no dissents or few -- produced a more

4 coherent body of law to shape the beginning of the

5 nation than the current Supreme Court does where there

6 are frequent plurality decisions? You would say that

7 the current Supreme Court is -- the body of law that

8 we have is just as coherent on the subjects that it

9 speaks upon as the Marshall Court was?

10 JUDGE SCHWARZER: I can answer that one

11 categorically no, but I don't think the conditions are

12 comparable. I mean, the Marshall Court didn't have to

13 deal with sexual harassment, for example, in which the

14 Supreme Court is having a terrible time.

15 JUDGE MERRITT: It had to deal with

16 subjects much more difficult than sexual harassment in

17 Marbury v. Madison, for example, or Osgood. I mean,

18 you know it had for its time -- anyway, it had to deal

19 with very difficult questions where coherence was

20 thought to be important and where speaking with

21 unanimity was thought to be important. But you don't

22 place any value on that?
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1 JUDGE SCHWARZER: To coherence? Yes, of

2 course it is desirable. But I don't know that the

3 situation that confronted the Marshall Court is

4 analogous to the situations we confront today. But

5 coherence is desirable. But coherence at the cost of

6 writing opinions that are capable of being interpreted

7 in different ways isn't necessarily true coherence.

8 I am not suggesting anybody is doing that. And of

9 course the Marshall Court also was operating under the

10 English tradition, which also didn't recognize

11 dissent. That was still an experience that was utmost

12 in their mind.

13 JUDGE MERRITT: The English tradition was

14 the oral statement of the various opinions of the

15 individual justices of the House of Lords.

16 JUDGE SCHWARZER: Right.

17 JUDGE MERRITT: So there was -- the

18 innovation that the Marshall Court provided was the

19 innovation of the written opinion to speak as one for

20 the Court.

21 VICE CHAIR COOPER: Judge, I have got a

22 series of questions in no particular order. How big
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1 is too big if we keep going. Focus on that. And

2 number two, in your written paper you say that you are

3 against splitting the 9th Circuit and you say that if

4 you were to split it, splitting California would be a

5 terrible mistake. I think you say egregious. So if

6 you were to split it, then should California be a

7 Circuit unto itself? And number three, I would like

8 you to focus on Judge Weis's recommendation of

9 divisions and how would that work. Do you like that

10 idea or you don't like that idea?

11 JUDGE SCHWARZER: All right. Let's -- I

12 will try to take them one at a time. How big is too

13 big? That is a hard question to answer. But I think

14 if we look in history, history suggests that when the

15 time comes to split a Circuit, everybody knows it. It

16 comes up from the bottom and not from the top down.

17 The 8th Circuit when it was split into the 8th and

18 10th in 1928 is an example. That was a subject that

19 was discussed for a long time, but eventually the

20 request came from the judges and the people that were

21 practicing in the courts, and there was general

22 popular support. In the 5th Circuit, the same thing.
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1 I believe every judge in the old 5th Circuit except

2 one was in favor of that division. It took quite some

3 time to work its way through, but it was supported by

4 the judges and by the bar and the public. 

5 I am not suggesting that the size of the

6 9th Circuit is cast in concrete and that the Court

7 should never be split. But I think the evidence is

8 that on the whole, the judges in the Circuit and the

9 lawyers that practice before the Circuit and others

10 who have an interest in it are supportive of the

11 present structure. I think we will know when the time

12 comes that we will need another Everts Act and that

13 will be the time to act on it. But the impetus for a

14 split now comes from outside of the judiciary and

15 outside of the practicing bar and it is essentially a

16 political impetus. Now your second question?

17 JUDGE MERRITT: You are saying there is

18 uniformity you think within the 9th Circuit that there

19 should be no division of the 9th Circuit?

20 JUDGE SCHWARZER: I didn't use the word

21 uniformity. I think there is overwhelming support for

22 the present structure. I think there are some people
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1 that might have some questions about it, but there is

2 not a ground swell that supports a realignment or a

3 geographical change. 

4 Now about California, I never took that

5 issue too seriously. But as I thought about it

6 recently, I think that the notion of splitting the

7 State of California and having potentially diverging

8 federal rules of law in the north and the south -- I

9 don't think you are going to split it east and west --

10 is undesirable. Now Judge Becker this morning said

11 that is not a problem because the California Supreme

12 Court has just decided to accept certifications. But

13 they are not going to accept certifications of federal

14 law. So I think that would be very disruptive and

15 undesirable. 

16 Of course, unless you split California,

17 you don't get any significant reduction in filings. 

18 VICE CHAIR COOPER: Yes. I think

19 California has over 60 percent of the caseload now.

20 JUDGE SCHWARZER: Yes. And it is probably

21 growing relatively more rapidly. 

22 JUDGE MERRITT: Suppose you have a
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1 divisional structure within the 9th Circuit where any

2 conflicts could be resolved by a Court embank or some

3 type of arrangement for resolving any California

4 conflicts that might be depending on state law? A

5 divisional structure. You wouldn't abolish the 9th

6 Circuit, but you could divide it into divisions.

7 JUDGE SCHWARZER: Is this a Judge Weis

8 type of divisional structure or some other one.

9 VICE CHAIR COOPER: That would be one way

10 or the other way. What are your thoughts on that?

11 JUDGE SCHWARZER: Well, one thing that had

12 been proposed back in the 1970's, I think, was a super

13 embank. If you split California, you can have one

14 level of embank for each of the Circuits, and then if

15 necessary they would get together in another embank,

16 which adds another tier. Which I don't think that is

17 desirable. I don't know what a divisional structure

18 would add.

19 JUDGE MERRITT: Well, the 5th Circuit

20 before it actually split divided itself into division

21 A and division B. And the divisions were, as I

22 remember, pretty much what the Circuit split in the
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1 end turned out to be. The 5th Circuit went along

2 there for I have forgotten how long, but for a while,

3 and decided cases on an individual basis. But they

4 retained the embank during that period of time.

5 JUDGE SCHWARZER: Well, that would be a

6 geographical division. And I take it that that was in

7 anticipation of an ultimate geographical division into

8 two Circuits. I don't know what a division of the 9th

9 Circuit would add to what we have today unless it were

10 in anticipation of an ultimate split of the Circuit,

11 which gets -- I am sorry?

12 JUDGE RYMER: Judge Schwarzer, rather than

13 conceding of it as in anticipation of an ultimate

14 split, the argument would be that the division would

15 have more of the attributes of collegiality that would

16 characterize a small Court of Appeals. But you would

17 retain the administrative convenience of the large

18 Circuit as well as the ultimate possibility of

19 coherence in the law of the Circuit along the coast

20 and along the lines that your paper reflects.

21 JUDGE SCHWARZER: The problem with that

22 argument, it seems to me -- it has a theoretical
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1 appeal. If you had three divisions of 9 judges each,

2 that would be appealing. But that is not the way it

3 is going to play out in reality because the volume of

4 the work would require you to have a considerable

5 number of visiting and senior judges continue to sit.

6 So each division will still end up with a functional

7 equivalent of maybe 20 judges because of the

8 constant -- 

9 PROFESSOR MEADOR: Let me ask, that is not

10 necessarily so, is it? You could have as many

11 divisions as you need to keep the Court down to some

12 reasonable size -- whatever you think it is, 9 or 12.

13 If you need three divisions to do that or four

14 divisions. And each division would have -- under the

15 idea as I understand it, each division would have

16 jurisdiction over appeals of certain designated

17 districts within the state with an embank available to

18 iron out any conflicts among these divisions. What do

19 you think of that idea?

20 JUDGE SCHWARZER: Yes, but that doesn't

21 really -- Professor Meador, that doesn't really answer

22 the point that I just made. If you reduce the size --
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1 the number of active judges in each division, you will

2 still have a large number of visiting and senior

3 judges sitting with them. So you are not going to

4 achieve the goal of a small collegial court because

5 the volume of the work will not get any less. It will

6 continue to increase and you will need a large number

7 of judges. Now dividing that large number of judges

8 into three divisions may result in some marginal

9 increase in collegiality, but not significantly. And

10 the downside of it is I think it will be conducive of

11 splits among the divisions. Because the advantage now

12 of having judges from the whole Circuit sitting with

13 each other is that it does provide cohesion and

14 coherence. True, large numbers. But if there are no

15 contacts between the northwest division, the judges

16 there, and the judges in the southern division, they

17 are much more likely to diverge in the way they deal

18 with issues that Judge Rymer points out, common issues

19 that effect our whole region than the way it is now

20 where you have judges from all parts of the Circuit

21 sitting with each other and cross-pollinating. I

22 think that is a valuable part of this institution. 
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1 Did I answer all your questions?

2 VICE CHAIR COOPER: I think that is right.

3 If, in fact, this Commission were to recommend -- this

4 is a hypothetical question -- and Congress agreed to

5 split the Circuit, how would you do it? I realize you

6 are opposed to it. 

7 JUDGE SCHWARZER: How would I do it?

8 Well, without conceding any part of my position, I

9 think I would create a Circuit that has some

10 significant component besides California. I think

11 that at the very least you would have to have Arizona,

12 Nevada, California, Hawaii, and the Pacific

13 territories. That would be sufficiently sizeable, but

14 it would reduce the number of filings. And there is

15 a certain geographical coherence to that Circuit. But

16 I had thought for a long time that that would be an

17 entirely workable compromise. But I don't think it

18 would result in any benefits. It isn't going to make

19 it more efficient. It is not going to make it more

20 collegial. I think you would lose some of the

21 benefits of the regional structure. And one other

22 point that I made in the paper was the fact that the
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1 large number of judges that is available to help each

2 other has always been a valuable resource when you

3 have had uneven growth and decline in the filings of

4 various districts. I am sorry, Professor Meador.

5 PROFESSOR MEADOR: Let me go back to a

6 question that Judge Rymer asked earlier on that had to

7 do with criteria. If you think about factors that

8 ought to be taken into account in determining Circuit

9 boundaries or Circuit alignment, the (indiscernible)

10 Commission identified several of those. For example,

11 each Circuit ought to be at least three contiguous

12 states. And one of the factors enunciated there was

13 that appeals should be decided by judges drawn from

14 the region from which the appeals come. Now one of

15 the arguments that one hears is that there is a

16 certain sense say in Alaska or Montana that the

17 appeals from those regions are not being decided by

18 judges drawn from the regions. How much importance,

19 if any, would you place on the regional character of

20 a Circuit?

21 JUDGE SCHWARZER: Well, the

22 (indiscernible) Commission didn't define what they
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1 meant by region. And it is obvious in the political

2 argument that the definition is in the beholder's eye,

3 and it is somewhat result oriented. I think the

4 argument in favor of a regional Circuit is the

5 argument against a national Circuit such as you have

6 just heard about. I think that is the justification

7 for arguing in favor of a regional Circuit. You don't

8 want a national Court. You want some contact between

9 the judges and the region generally where they come

10 from. But there is much to be said for treating a 9th

11 Circuit territory as a region because of a large

12 common interest that cuts across the states. In

13 resource law, for example, and environmental

14 protection, water law, fisheries, Indian law, and

15 various other kinds of issues that are common although

16 they appear in somewhat different context in different

17 states, but they are common to the region. So I think

18 it makes sense to treat the 9th Circuit as a region.

19 So I think that qualifies under the criteria of the

20 (indiscernible) Commission.

21 JUDGE MERRITT: Do you think there is any

22 value for a Court of Appeals Judge to be knowledgeable
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1 about the role of a state or two or three or four

2 states? Is there any value in having knowledge on the

3 part of a Federal Court of Appeals Judge on local law?

4 JUDGE SCHWARZER: Local law?

5 JUDGE MERRITT: I am talking about state

6 law. That is coming from an environment of practicing

7 law or teaching law in a particular place normally

8 gives you some additional understanding of the law

9 including the customs and the way a state is divided

10 for judicial purposes and the practice of law. Do you

11 think there is a value in having that knowledge

12 present?

13 JUDGE SCHWARZER: That is certainly of

14 value of having that knowledge on the part of District

15 Judges. Judges from the Court of Appeals hear appeals

16 from a number of states. So it doesn't seem to me

17 that there is any great value to be attached to the

18 fact that the judge is familiar with the law of one

19 state, and of course it only applies to diversity

20 cases anyway. Now one could argue, I suppose, that

21 judges should be familiar with the circumstances in

22 the area out of which cases come that they decide.
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1 But again the question is where do you draw the line.

2 Their work isn't limited to a single state. It isn't

3 limited to two states. 

4 JUDGE MERRITT: But it is a matter of

5 degree. If you have a National Court of Appeals, then

6 it would be difficult for a Court of Appeals judge to

7 -- like it is for a member of the Supreme Court to be

8 knowledgeable about the law and mores of a particular

9 set of states or state. But if you divide the

10 Circuits in a way where say a judge has one, two, or

11 three states, a judge can be very familiar with the

12 conditions that exist in that one, two, or three

13 states.

14 JUDGE SCHWARZER: Well, there is a trade15 off here. I think you want judges to think in terms

16 of the region from which they come. There is merit in

17 that. And you want them to have a sense also that

18 they are administering the national law. If they were

19 sitting on a national court and they had no contact

20 with the region -- they were like people -- like

21 judges of the Tax Court, for example, whose only

22 contact is with tax law -- I think that would
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1 undermine some of the values of Courts of Appeals. On

2 the other hand, if you cut it too narrowly and say a

3 Judge for the Court of Appeals should be limited to

4 one or two states, I think then you narrow their

5 national vision. So I think the truth lies somewhere

6 in-between, but I don't think that there is any magic.

7 JUDGE MERRITT: Let me ask you this. You

8 know Judges and lawyers are often called upon to make

9 distinctions, and the discussion of all this is

10 plagued with certain distinctions that are alleged or

11 have to be made. You have on the West Coast, from

12 Alaska to the Mexican border one Circuit. On the East

13 Coast from Maine to Florida, we have five Circuits.

14 Now where does that bring you out? I am not aware of

15 any perceived great problems on the East Coast about

16 having five Circuits, any more than you are nationwide

17 with 12. Why is the argument made that somehow it

18 would be more deleterious to have more than one

19 Circuit on the West Coast?

20 JUDGE SCHWARZER: Well, I didn't make that

21 argument. My argument -- 

22 JUDGE MERRITT: No, I am not attributing
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1 it to you. I am trying to get a distinction, though,

2 if you can make it.

3 JUDGE SCHWARZER: Well, everybody knows

4 the structure of the Circuits is an historical

5 accident that evolved. There is no rhyme or reason to

6 it. It is not symmetrical and it is certainly not

7 elegant. The question is are we going to be any

8 better off by moving states around like chess pieces.

9 Saying this state ought to go here and this state

10 ought to go there and that is going to look a lot more

11 neat and clean. Are we going to be any better off?

12 My approach to this is I see no evidence that tends to

13 show there will be any improvement in the

14 administration of justice by tinkering with the

15 borders of Circuits. That is the bottom line of my

16 position.

17 VICE CHAIR COOPER: Judge Rymer, do you

18 have a question?

19 JUDGE RYMER: No thank you. They have

20 been answered.

21 VICE CHAIR COOPER: All right. Judge,

22 thank you so much. We appreciate your being with us
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1 and we particularly appreciate your service as

2 Director of FJC. Thanks so much for being here today.

3 JUDGE SCHWARZER: Thank you very much. 

4 VICE CHAIR COOPER: As our last witness

5 this morning, we have another 9th Circuit colleague,

6 Judge O'Scannlain of the United States Court of

7 Appeals 9th Circuit. Judge, it is good to have you

8 with us. 

9 JUDGE O'SCANNLAIN: Thank you very much,

10 Mr. Chairman. Judge Merritt, my colleague Judge

11 Rymer, Executive Director Meador, my name is Diarmuid

12 O'Scannlain, and I am a Judge at the United States

13 Court of Appeals for the 9th Circuit with chambers in

14 Portland, Oregon.

15 I want to touch on four topics briefly.

16 First, what are the practical constraints for

17 structural change given the two fundamental functions

18 of the federal judicial system, trial and appeal of

19 cases. 

20 Second, how best to allocate the law

21 declaring and error-correcting duties within the

22 Appellate function by pursuing opportunities for
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1 synergy between the existing Circuit and District

2 structures. 

3 Third, how discretionary jurisdiction,

4 already established at the Supreme Court level, might

5 be phased in at the Court of Appeals level.

6 And then finally what to do about

7 realignment of my own Circuit, the 9th Judicial

8 Circuit, although I intend to submit part 4 of my

9 remarks on the tables for the record only unless

10 various members of the panel wish to go into it.

11 JUDGE MERRITT: Well let me -- this

12 Commission is prompted by the intensely political

13 question of splitting the 9th Circuit, without which

14 we wouldn't be here, that is, if that question had not

15 been raised. The politics of the situation is that

16 because there was a difference of opinion between the

17 Senate and the House, we created a Commission. What

18 is your view of splitting the 9th Circuit? Should it

19 be left as it is? Should we consider some divisional

20 approach, leaving the 9th Circuit as the

21 administrative entity but providing for a judicial

22 conference? Should we divide the 9th Circuit into
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1 divisions? What is your view of that?

2 JUDGE O'SCANNLAIN: Well, in my view, a

3 split of the 9th Circuit is inevitable. I don't

4 necessarily suggest it has to be today or in the next

5 5 or 10 years, but I cannot understand how a Circuit

6 of our size can continue to expand. That is the

7 fundamental focus of my remarks. My point is that

8 because of the functions of a Court of Appeals, they

9 are two-fold. One is error correcting and the other

10 is law declaring. Now you can extend the 9th Circuit

11 from 28 to 38 to 58 or 108 for that matter if all you

12 are concerned about is error correcting because all

13 you are doing is generating three-judge panels.

14 The problem is how can the Circuit speak

15 as a law-defining, law-giving, law-declaring body when

16 you get into such a large group of people.

17 JUDGE MERRITT: Our common law system is

18 that the application of the law to the facts is the

19 way law is made. In other words, the dispute

20 resolution part of the judicial function is the way we

21 decide what precedent is. That is, the law in action

22 speaks louder often than the exact words on a page of
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1 the written opinion. The holding of the case becomes

2 what is important. So it is hard for me to see how we

3 are going to divide error correction from precedent

4 creation.

5 JUDGE O'SCANNLAIN: Well, in an ideal

6 world, you wouldn't need the Court ever to sit embank.

7 That is the fundamental problem you've got. Obviously

8 every three-judge panel honestly and sincerely

9 believes that the decision that is made by that three10 judge panel is the law of the Circuit. But the

11 problem is we get 400 suggestions for rehearing cases

12 out of the 9th Circuit every year, and a judge on my

13 Court will call for a vote on probably about 40+ or

14 maybe 50 cases a year, and we will actually sit embank

15 probably 20 to 30 times a year. The problem that --

16 I mean, the ideal that the three-judge panel will

17 speak for the Circuit is wonderful, except that I can

18 tell you that in at least 25 cases every year, we

19 disagree.

20 JUDGE MERRITT: But a lot of that

21 disagreement is the application of the law to the

22 facts, isn't it?
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1 JUDGE O'SCANNLAIN: Well, I don't know how

2 refined you can be between an application of law to

3 fact or an elaboration or interpretation of law. That

4 gets into a very, very rarified distinction. The

5 problem is a practical matter, which I think is what

6 you need to be focusing on. It is does a three-judge

7 panel always speak for the Court? And if you can say

8 yes, then it doesn't matter how many judges you have.

9 In fact, that is I think part of the theory behind the

10 idea of a national unified -- or at least a unified,

11 I don't want to say national -- court such as Judge

12 Weis has presumed. In other words, the first in time

13 speaks for the country.

14 In theory that is what we apply within the

15 9th Circuit. But the first in time does not always

16 speak for the 9th Circuit because there is so often a

17 necessity to rehear cases embank.

18 VICE CHAIR COOPER: Do you think -- I know

19 in your paper you point out of the embank decisions of

20 the 9th Circuit, you have approximately an 84 percent

21 reversal rate by the Supreme Court of the United

22 States. Would splitting the 9th Circuit change that
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1 or not change that? Or is 11 embank not enough

2 because of the size of the Court? What would redoing

3 the structure have to do with this high 84 percent

4 reversal rate by the U.S. Supreme Court?

5 JUDGE O'SCANNLAIN: Well, to be specific,

6 the 84 percent figure that I gave in my remarks

7 relates within the context of reversals of the 11-

8 judge embank court in the last 18 years. It is not

9 advanced as a reason for a split. The only

10 fundamental reason for an eventual split of the 9th

11 Circuit is a recognition that a Court of Appeals

12 cannot expand infinitely. There is at some point a

13 recognition that the Court is too unwieldy as a law14 declaring Court. Now who knows what that number is?

15 I agree with Judge Schwarzer that I think

16 our Court is doing a magnificent job. We put our

17 heart and soul and energy into making sure that this

18 works. But as I understand your charge, it is not

19 merely to say aye or nay should the 9th Circuit be

20 split today. Your charge is to look at the structural

21 alternatives of the entire system, looking out

22 hopefully perhaps at another 100-year dimension.
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1 After all, in the first 100 years, we have only had

2 two Circuits to split. So bulkinization isn't really

3 that much of an evil. And what we need to do is

4 focus, it seems to me, on what can be done to reduce

5 the volume of cases coming to the Court of Appeals

6 that require additional judge-manpower. 

7 It seems to me that you can only do that

8 two ways. I did not at all speak to the very

9 important issue that Judge Newman spoke to this

10 morning, which is hopefully a redesign of

11 jurisdiction. Now that is a real political can of

12 worms and I am not sure whether your Commission wants

13 to take that on or not, but he is absolutely right. 

14 VICE CHAIR COOPER: Only if we were king,

15 I think, could we get that to happen.

16 JUDGE O'SCANNLAIN: Okay. All right. But

17 at least he is absolutely right in recognizing that

18 that is the problem. There is a wonderful chart in

19 one of the studies that shows -- 

20 JUDGE MERRITT: You would think that we

21 would deal with the problem then, wouldn't you? We

22 are not going to sit here and not deal with what most
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1 judges perceive to be the key problem, I assume.

2 JUDGE O'SCANNLAIN: Well, I say more power

3 to you. I just don't know what you feel your

4 jurisdictional limits are. But what was fascinating

5 is there is a wonderful chart in one of the studies

6 that shows the history of the volume of cases before

7 the Courts of Appeals since 1891. And it follows a

8 very, very flat trajectory from 1891 to about 1963 or

9 1964, and then a skyrocketing rise to our present

10 level. Inside our Court, our volume has increased 7

11 percent per year until about the last year or so. So

12 we don't know how good the trend is. It has dropped

13 to only a 3 percent increase. But the fact of the

14 matter is that that spike occurred because Congress

15 has decided to give more and more private rights of

16 action enforceable through the Federal Courts and more

17 and more jurisdiction over various kinds of issues,

18 transferring a lot of state crimes into the Federal

19 domain and that kind of thing. 

20 Now who knows what Congress's intentions

21 will be over time. I just sort of approached this

22 subject on the assumption that, number one, we have no
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1 power over Congress. We assume that Congress will

2 either continue to give more jurisdiction to the

3 Federal Courts or less, we don't know. But what we

4 can do is to highlight the structural limits of what

5 you can do by adding judges. And the fundamental

6 conclusion I have reached is you can add judges

7 infinitely at the District Court level, but you can't

8 add judges forever at the Court of Appeals level.

9 PROFESSOR MEADOR: Let me ask you this

10 question. You say you see down the line that the

11 split of the 9th Circuit is inevitable. What do you

12 think about as an alternative to that the proposal

13 that you heard discussed earlier when Judge Weis was

14 up here of leaving the Circuit intact but creating

15 divisions within the Court of Appeals and thereby

16 bringing about Appellate Courts of a workable,

17 reasonable size.

18 JUDGE O'SCANNLAIN: Well, as an

19 experimental idea, I think it makes a lot of sense.

20 You have got several issues to concern yourselves

21 with. Number one, if it is experimental, fine.

22 Because otherwise you would have to ask the question
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1 of will that really take care of the problem of the

2 5th Circuit let's say in the next 20 years or the 11th

3 Circuit in the next 20 years. Secondly, I think you

4 need to determine before you adopt that

5 recommendation, are we assuming that there will be no

6 further growth in the Court of Appeals? Right now we

7 are at 28 judges, but we are understaffed in terms of

8 the formula that the Judicial Conference has used over

9 the years. We are supposed to have 38 to 40 judges if

10 you apply the formula. And as a matter of fact -- 

11 JUDGE MERRITT: No Court of Appeals --

12 maybe the 1st Circuit does, but no Court of Appeals

13 actually has the formula.

14 JUDGE O'SCANNLAIN: Well, whatever. I

15 mean the point is that relatively speaking we are way

16 under and you can point to other Circuits that are

17 over. But the point is that at some point you have to

18 decide are you looking at splitting into divisions

19 today based on a constant number of 28? Because we do

20 have a pending request. It was in for 10 new judges

21 which has now been reduced to five new judges. You

22 have got to decide, are we going to look at the
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1 divisional arrangement on the assumption of 33 judges

2 or larger or 28. That is step number one.

3 Step number two, I think you need to take

4 into account what about the Judicial Conference. Now

5 this gets to be a very, very touchy intra-judicial

6 political issue because there has been quite a drum

7 beat lately about the idea that the 9th Circuit is

8 underrepresented on the U.S. Judicial Conference.

9 Every Circuit has one Chief Judge and one District

10 Judge. And if in effect you are going to have mini11 Circuits within the 9th Circuit, does that mean then

12 that we should have an additional two members on the

13 Judicial Conference, presumably at the Court of

14 Appeals level as well as at the District Court level?

15 Somebody needs to sort of test that because that is

16 going to surface.

17 And then lastly, I think you have got --

18 pardon?

19 VICE CHAIR COOPER: Given only two

20 choices, which I realize the Commission doesn't have

21 and you don't either -- if you only had the choice of

22 setting up a division concept or splitting the 9th
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1 Circuit geographically, which would you choose?

2 JUDGE O'SCANNLAIN: Well, it depends on

3 whether we are talking long term or short term. If

4 you are talking about a permanent resolution of the

5 overall structural problem, I think you have to assume

6 that you are going to have to split Circuits, or at

7 least recognize that to keep the Circuits more or less

8 as they are today, you have to control in-flow or

9 allow some level of cercariae. My recommendation

10 there, which is in my remarks, is that we ought to be

11 experimenting with the notion of an Appellate division

12 at the District Court. 

13 VICE CHAIR COOPER: But how would you

14 split it then, if that is your choice?

15 JUDGE O'SCANNLAIN: Well, part 4 of my

16 remarks goes into 7 or 8 different alternatives. The

17 one I prefer is the one that was recommended by the

18 (indiscernible) Commission. I share Judge Newman's

19 view. He is absolutely right. There is no -- he

20 pointed out that there wouldn't be any particular

21 problem within his own Circuit. I think he identified

22 all the issues, and I said just about the same thing.
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1 The last thing I want to say, though --

2 getting back to I guess Judge Merritt's question on

3 the divisional issue -- and that is in addition to,

4 number one, whether we are staying at 28 or not, and

5 secondly, the Judicial Conference issue. The third,

6 of course, is how do you deal with the embank Circuit

7 law resolution with divisions? I think we haven't

8 touched upon that. I haven't heard much discussion

9 about that yet, but you need to think that through

10 very carefully. I sense within our own Court a kind

11 of unrest at the moment about the viability of the 11-

12 judge limited embank to speak for 28 judges or for 33

13 judges for that matter.

14 JUDGE MERRITT: And that is not permanent.

15 It is made up for each case -- the 11 judges?

16 JUDGE O'SCANNLAIN: Yes.

17 JUDGE MERRITT: That is not a stable group

18 of judges.

19 JUDGE O'SCANNLAIN: No, no. So if you

20 were to go divisions, would you still keep the 11-

21 judge arrangement? Would you have to ensure, for

22 example, that you would have to have certain
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1 representation from each of the three divisions? How

2 would all of that work? I think you need to kind of

3 think through that problem as well. Because as you

4 can appreciate, and I think even Judge Schwarzer would

5 agree that 9th Circuit Judges are not reluctant to

6 view their responsibilities as members of the three7 judge panel to decide the case in a manner in which

8 they see they are applying Circuit law, yet that

9 hasn't avoided the problem of embanks.

10 JUDGE MERRITT: So you have a lot of

11 inter-Circuit conflicts, I take it? Or nuances of

12 white there?

13 JUDGE O'SCANNLAIN: Well, that is a very,

14 very hot -- red hot issue within our own Court, Judge

15 Merritt. I guess I am of the school within our Court

16 that suggest that there are many more intra-Circuit

17 conflicts than perhaps we are willing to admit.

18 PROFESSOR MEADOR: Let me ask another

19 question you may not want to answer.

20 VICE CHAIR COOPER: Of course you don't

21 have to answer anything we ask you, you understand.

22 But I would worry about one that was prefaced with
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1 that preamble.

2 PROFESSOR MEADOR: This one may be

3 particularly one you don't care to address. But it is

4 said -- you may have heard it said that -- it is

5 phrased in many ways, but the upshot of it is that the

6 overwhelming sentiment among the judges of the 9th

7 Circuit and the practicing bar is opposed to a split.

8 How do you read the sentiment among the judges of your

9 Court on that question?

10 JUDGE O'SCANNLAIN: Well, I think it is

11 subtly, slowly, but resolutely shifting. That would

12 be certainly a correct statement let's say 5 years

13 ago. But in the last five years, there is certainly

14 a sense that there is some merit to examining a split.

15 I don't think I am at liberty publicly to disclose

16 conversations that we had as a Court in a symposium

17 about two months ago, but I think it is fair to say

18 that it can no longer be said that the Court of

19 Appeals unanimously or near unanimously opposes a

20 split. 

21 VICE CHAIR COOPER: In fact, you would

22 propose the split that the (indiscernible) Commission
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1 came up with as the best alternative?

2 JUDGE O'SCANNLAIN: It is the best

3 alternative. I have gone through quite a few options.

4 VICE CHAIR COOPER: Right. And you put

5 that in your paper.

6 JUDGE O'SCANNLAIN: Yes, I did.

7 VICE CHAIR COOPER: The problem is it

8 doesn't have as catchy a name as the stringbean or the

9 horseshoe. 

10 JUDGE O'SCANNLAIN: Oh, okay. 

11 VICE CHAIR COOPER: And you like that

12 better than the divisional concept if you are looking

13 out 10 or 20 years?

14 JUDGE O'SCANNLAIN: Yes. If it -- ideally

15 what I would like would be a serious consideration of

16 to what extent the Court of Appeals workload can be

17 shared with the District Court. Some level of

18 Appellate jurisdiction at the District Court. Certain

19 cases go straight to the Court of Appeals and some go

20 to an Appellate division. Out of the Appellate

21 division, we would then apply cercariae. Obviously

22 there would be direct appeal and others. My
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1 suggestions are not cast in stone. All I hope I have

2 been able to do in my paper is to suggest concepts

3 that you can start to work with.

4 JUDGE MERRITT: Well, what did you think

5 of Judge Newman's suggestion of a set of cases in

6 which you petition the Federal Courts for access, that

7 is, the diversity situation and the other example that

8 we discussed was ARISA. Were you here when he -- 

9 JUDGE O'SCANNLAIN: Yes, yes. 

10 JUDGE MERRITT: What did you think of

11 that?

12 JUDGE O'SCANNLAIN: Well, I guess I

13 haven't sensed that there is that huge a source that

14 would be effected by that. To the extent it can be

15 identified in any given Circuit that there is an

16 enormous number of cases that are strictly diversity

17 or strictly state law or even ARISA, I would have no

18 objection to that because I fundamentally do agree

19 with Judge Newman that the federal system is from day

20 one identified and designed to be a system of limited

21 jurisdiction courts as opposed to the state system.

22 And while the trend has been ever so slightly to
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1 increase the amount of state litigation at the expense

2 of -- excuse me, increase the percentage of federal

3 litigation at the expense of the state system, there

4 are limits as to how far that is going to go and no

5 one is proposing any kind of a radical shift there.

6 To the extent that this would help with the in-flow

7 problem, I would say that it is worth exploring.

8 Absolutely.

9 VICE CHAIR COOPER: Does anyone have any

10 other questions? Judge, thank you so much.

11 JUDGE O'SCANNLAIN: Thank you.

12 VICE CHAIR COOPER: We appreciate you

13 being here and giving us an insider's view of the 9th

14 Circuit, I guess would be the way I would put it. The

15 hearing will be adjourned until 2:00 this afternoon.

16 (Whereupon, off the record until 2:00

17 p.m.)

18

19

20

21

22
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1 A-F-T-E-R-N-O-O-N S-E-S-S-I-O-N

2 VICE CHAIR COOPER: Judge Edward Becker,

3 Chief Judge of the United States Court of Appeals for

4 the 3rd Circuit. Judge, thank you so much for being

5 with us today.

6 JUDGE BECKER: Thank you, Mr. Vice

7 Chairman and Judge Rymer, Executive Director Meador.

8 For the record, let me first identify myself. My name

9 is Edward R. Becker. I have been a Federal Judge for

10 approximately 27 and a half years. I was a U.S.

11 District Judge in the Eastern District of Pennsylvania

12 for 11 years. I have been a Judge for the United

13 States Court of Appeals for the 3rd Circuit for over

14 16 years. I enter on duty as Chief Judge of the 3rd

15 Circuit Court of Appeals on February 1. I have been

16 a member and chairman of the Judicial Conference of

17 the United States Committee on Criminal Law, a member

18 of the board of the Federal Judicial Center, and a

19 member of the Judicial Conference Committee on Long

20 Range Planning. It is that latter role that prompted

21 me on January 26 to write to the Commission in some

22 detail expressing my thought on the Commission's
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1 charter. I felt that because I was so heavily

2 involved in the drafting of the provisions of the long

3 range plan dealing with the structure of the Appellate

4 Courts that I had a duty to give the Commission, for

5 whatever it might be worth, the benefit of my views.

6 I deliberately sent that letter on January 26, that is

7 before February 1, so that it would not come on the

8 stationary of the Chief Judge of the 3rd Circuit.

9 Because in connection with the proposals therein, I

10 speak only for myself and I do not purport to speak

11 for my Court. I will, however, speak for my Court on

12 a number of other matters in which I know that the

13 Commission is interested, namely the manner in which

14 the 3rd Circuit does its business. I will not talk in

15 detail about my letter, which is part of the record,

16 although I will review salient points made.

17 I would like to begin with a brief

18 description of how Appellate Judges do their work. I

19 do so against the background of much fanfare about how

20 Courts of Appeals can be more efficient and of the

21 need to increase productive capacity in order to meet

22 the workload of the Courts of Appeals.
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1 Now while the work of a Federal Appellate

2 Judge is extremely demanding -- I mean, for me it is

3 and has been for 16 years a 7-day-a-week job -- the

4 process of doing it is very simple. You get the

5 briefs and the motion papers or what have you and you

6 read them. Then you think about them and you talk to

7 your law clerks about them and you read their bench

8 memos. But you read the briefs and you read the

9 motion papers and then, obviously after the rest of

10 the process is through, you write and you rewrite and

11 you rewrite and of course it is the duty of every

12 Circuit Judge to contribute to keeping up the

13 consistency and coherency of the Circuit law and you

14 read the opinions of the other judges. 

15 But there is one very interesting thing I

16 want to tell you about briefs. I found out long ago

17 that they don't read themselves. You have got to read

18 them yourself. So what are the efficiencies? How can

19 we to cope with this be so much more efficient?

20 Facts? E-mail? The Internet? They don't help you

21 read the briefs. The only efficiency I know of is if

22 you have somebody else read the briefs and tell you
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1 what is in them. And that would be, in my view, an

2 abdication of our duties. It is reported that in

3 certain Circuits, at least within certain kinds of

4 cases, where they have the so-called screening

5 function, the briefs in many cases are reviewed by

6 staff attorneys who then come and report to the

7 judges. We don't do that in the 3rd Circuit. We do

8 not use staff -- staff attorneys never look at a

9 counseling case in the 3rd Circuit. They do pro se

10 cases and they play a very important role in pro se

11 cases. But pro se cases are decidedly different from

12 counseling cases. Not that we give them any less

13 attention. We don't. But many of them -- the vast

14 majority of them, the statistics show, really have no

15 merit at all. We probably reverse maybe 10 or 15

16 percent of them, but you really need an interpreter.

17 They are written in longhand and sometimes it is

18 gibberish. And the staff attorneys perform a very

19 important role in presenting them to us in an

20 efficient way so that we can read them. That is not

21 a problem that we have in counseled briefs.

22 In my view, the efficiency of delegating
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1 to staff attorneys or Appellate magistrates or what

2 have you work on counseled cases and having them

3 report to the judges in my view is highly undesirable.

4 Professor Hazard wrote in 1965, "It is not difficult

5 to imagine ways in which the Appellate system could be

6 reshaped to handle the present volume of appeals at a

7 much higher rate of speed or to handle a much greater

8 volume of appeals at the present rate of speed. But

9 it is difficult to imagine how one could organize a

10 judicial establishment that would have this kind of

11 productive capacity and at the same time retain the

12 intimate personal responsibility that is

13 characteristic of the Appellate judicial process

14 today." That was true in 1965 and even though

15 caseload has vastly increased, it is true -- I know it

16 is true in my Circuit and I believe in most Circuits

17 today. But I just do not know how we can, in terms of

18 the most critically important duty of Federal

19 Appellate Judges, that is, to listen and read the

20 briefs and read the papers, how we can be more

21 efficient and how we can delegate that. 

22 In so far as responsibility for the
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1 maintenance of the consistency and coherency of

2 Circuit law, I don't see how you can delegate that.

3 I am going to talk about that a little bit more.

4 Lately, one of the judges from another Circuit said,

5 well, they have the staff attorneys check this, that,

6 and the other and we have it all on computer. There

7 is no substitute for a judge having in his or her head

8 knowledge of the law of his or her Circuit, and I will

9 tell you how we do that in the 3rd Circuit in a few

10 minutes.

11 VICE CHAIR COOPER: Judge, let me ask you

12 one question that you have raised really for the first

13 time we have seen in these public hearings. I take

14 from your written paper that you say that maybe the

15 D.C., Federal, and 1st Circuits are too small from an

16 economic point of view looking toward the future.

17 That they don't have the caseload to justify the money

18 that Congress has to put into them. Would you amplify

19 on that a little bit? I mean, what should we do about

20 it since we are supposed to look at everything?

21 JUDGE BECKER: Well, I think what you have

22 to do is to look at it within the framework -- let me
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1 -- if I can bridge into that, Mr. Vice Chairman.

2 VICE CHAIR COOPER: That is fine. Go

3 ahead. Just keep that in mind.

4 JUDGE BECKER: Yes. I intend to get to

5 that. I just wanted to finish this thought. The only

6 other delegation would be if you relied more heavily

7 on law clerk drafts of opinions, which judges don't

8 want to do. The critically important thing in terms

9 of this delegation is while Appellate commissioners

10 and Appellate magistrates and staff attorneys are

11 capable people, and while mass produced justice would

12 probably be correct 95 percent of the time, these

13 folks are not judges. They are not Article III

14 judges. And if you miss, things fall between the

15 cracks. If you miss 2 or 3 or 5 percent of the cases,

16 that is in my view a very serious matter.

17 Now to turn directly, Mr. Cooper, to your

18 question, but with some back-up. And I would like to

19 reference the letter that I wrote to the Commission.

20 I basically said that the seminal document with which

21 this Commission should begin is the long range plan of

22 the Federal Courts. The message I draw from that is
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1 that this Commission should not do its work only with

2 its eye on 1998 and what we need now, but with its eye

3 on the future, and the year most recently cited is

4 2020. If you are familiar with Professor Baker's

5 article, he makes 2020 the judicial equivalent of

6 1984. 

7 Now I asked, and you have them now -- a

8 month or more ago, knowing that I was coming here, I

9 asked the administrative office to update the

10 projections as to the Federal Appellate caseload.

11 Because 2020 looks through the roof -- what we in the

12 Long Range Planning Committee call the nightmare

13 scenario. You have, I take it, this document that

14 they produced to me.

15 VICE CHAIR COOPER: Yes, sir. Yes, sir,

16 I do.

17 JUDGE BECKER: And although the number of

18 Appellate filings in 1997 exceeded those reported in

19 the previous year by less than 1 percent, and the

20 total Appellate filings projected for 2020 have

21 decreased by approximately 13.4 percent -- that is due

22 largely to a decrease in projected prisoner appeals --
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1 the fact of the business is that they still project a

2 threefold increase in filings by 2020. That is a

3 matter of concern. Now my point is that this may

4 counsel certain realignments and the basic principle

5 that I would apply is to have in mind that the Everts

6 Act, which created the Courts of Appeals, was passed

7 in 1891. So leaving aside the split of the 5th

8 Circuit, it has been 106 years since there has been

9 any significant change in the structure of the U.S.

10 Courts of Appeals. And if you make a change every 100

11 years, I think the Republic will survive.

12 The Long Range Planning Committee -- and

13 your staff aid sitting with you, Dr. Judith McKenna,

14 played a very important role in this enterprise --

15 really thought long and hard about the basic structure

16 of the Federal Appellate Courts. We did not get into

17 Circuit alignment. We didn't deal with that. But we

18 thought about the question of whether there should be

19 specialized courts and we unanimously rejected that.

20 We said that generalists courts where you bring a

21 broad-based view are the best kinds of Appellate

22 Courts. We considered the matter of intermediate
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1 panels. We thought about the idea of an Appellate

2 division of the District Court. We unanimously

3 rejected that. We had retreats. I was the

4 facilitator in retreats that we had all around the

5 country. And by and large, there was no support for

6 an Appellate division of the District Court. The

7 District Judges said they are too busy. And if I may

8 borrow a phrase from Professor Carrington's work,

9 "Appellate Judges should have a reviewer's frame of

10 mind." And District Judges sitting on an Appellate

11 division are not likely to have a reviewer's train of

12 mind.

13 VICE CHAIR COOPER: Do you think that

14 could be summed up as there would be a fear of the

15 sneer of the peer? It is if you had a fellow District

16 Judge -- 

17 JUDGE BECKER: I could not have done that

18 well, Mr. Cooper, and I thought about it for 24 hours.

19 PROFESSOR MEADOR: Let me ask for a

20 clarification about that. District Judges now

21 constantly review trials through new trial motions,

22 correct?
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1 JUDGE BECKER: Correct.

2 PROFESSOR MEADOR: So what is the

3 difference between that and what we are talking about,

4 that is, the Appellate division?

5 JUDGE BECKER: Well, they are reviewing

6 their own work. That is partly what Mr. Cooper said.

7 Here they would be reviewing everybody else's work.

8 I want to say that I think the principle problem is

9 workload. They are just too busy.

10 PROFESSOR MEADOR: Well, suppose you added

11 District Judges to cover that additional workload?

12 JUDGE BECKER: Well, if you are going to

13 add -- in my view, it doesn't make any sense to add

14 District Judges to do Appellate work. If you need

15 more Appellate Judges, then add more Appellate Judges.

16 Don't add District Judges.

17 PROFESSOR MEADOR: I am not trying to sell

18 this. I am just trying to give you the arguments that

19 are made that it is easier to add District Judges than

20 Appellate Judges because at the Appellate Court you

21 have all of the problems of collegiality and so on and

22 so on, and it is just easier to do it at the District
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1 level.

2 JUDGE BECKER: Well, then I think you

3 defeat the purpose of having an Appellate Court and

4 having more coherence and consistency in Circuit law.

5 I mean I think if we had no other alternative, Mr.

6 Meador, and if the nightmare scenario of 2020 should

7 eventuate, I think it is a possibility. We also

8 rejected the notion of an inter-Circuit tribunal. The

9 Supreme Court's caseload is down. We met with the --

10 I was one of the members of the Committee who met with

11 the Chief Justice. There does not appear to be any

12 need in the foreseeable future, even if there would be

13 a few more Circuit splits or a few more Circuits

14 created, for that. We also thought about and rejected

15 the matter of discretionary review. Speaking for

16 myself, if I have got to review a file to decide --

17 the so-called easy case, to decide whether to take it

18 -- if it turns out to be an easy case, I would rather

19 decide it. We are better off if we decide it in

20 summary fashion. 

21 Now in terms of the matter of Circuit

22 size, I believe that the most important text is the
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1 Commentary to Recommendation 17, "The principle of

2 each Court of Appeals should consist of a number of

3 judges sufficient to maintain traditional access to

4 and excellence of Federal Appellate justice but

5 preserve judicial collegiality and consistency,

6 coherence, and quality of Circuit precedent to

7 facilitate effect Court administration and

8 governance." And there is some other language about

9 a court being a cohesive group of individuals who are

10 familiar with ways of thinking, reacting, persuading,

11 and being persuaded. Others have stressed that

12 language more. The language that I stress is not so

13 much the collegiality part, but that "the Court

14 becomes an institution, an incorporeal body of

15 precedent tradition, of shared experiences, and

16 collegial feelings in which members possess a common

17 devotion to mastering Circuit law, maintaining its

18 coherence and consistency, thus assuring its

19 predictability and adjudicating cases in like manner."

20 Now in the 3rd Circuit, we have pre-filing

21 circulation. We read every opinion before it is

22 filed. We comment and we catch a lot of problems and
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1 flag time and again cases which create a problem with

2 existing Circuit law. One matter of 3rd Circuit

3 practice that I know the Commission is interested in

4 and I do want to note is that our judgment order or

5 unreasoned disposition practice. I am pleased to say

6 that we have all but abolished that practice. When I

7 became Chief Judge, we had a retreat and I took it up

8 with my colleagues and judgment orders are for the

9 most part a thing of the past in the 3rd Circuit. But

10 in terms of being able to master Circuit law, I

11 respectfully submit that there is no way that the

12 judges of the 9th Circuit can do what we do. It is

13 just too large and there are too many opinions. I

14 just don't see how any judge of the 9th Circuit,

15 unless he or she has a superhuman brain, can master

16 Circuit law the way we in the 3rd Circuit or judges in

17 other Circuits can master Circuit law. And in my

18 view, whatever else happens, the 9th Circuit

19 consistent with that -- I mean, to me that is the

20 hallmark. And if the judges are not in a position to

21 master Circuit law, and I don't mean having a staff

22 attorney or law clerk look it up when the occasion
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1 occurs, then I think that Circuit has to be split.

2 And I think when that principle, which in my view is

3 the cardinal principle governing the size of Courts of

4 Appeals -- I submit that the 9th Circuit ought to be

5 split and I suggested in my letter that apparently the

6 only way to do it -- unless you -- I understand there

7 have been some proposals to create three divisions in

8 the 9th Circuit. To me that doesn't make any sense.

9 If you are going to create three divisions, then

10 create three courts or create two courts. I don't see

11 what the sense of a division is. A court doesn't

12 exist for administrative purposes. To be sure, the

13 Courts of Appeals are also the administrative unit for

14 the District Court, but there are a lot of different

15 ways. I mean, so you administer space and you

16 administer personnel. That doesn't have to be by

17 Circuit. That could be by region. It could be

18 northeast region and southeast region. You can do

19 that. You can do that in a different way.

20 JUDGE RYMER: Judge Becker, if I may, how

21 do you objectify? What kind of objective measure do

22 you suggest that the Commission consider in deciding
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1 whether a Circuit -- a Court of Appeals is too large

2 to master the law of the Circuit or whatever other

3 measure you would like to suggest?

4 JUDGE BECKER: Well, Judge Rymer, I have

5 used Justice Stuart's I know it when I see it with

6 respect to the 9th Circuit. I think I would be hard7 pressed to come up with objective calipers, but I

8 guess you could do it in terms of basically the

9 numbers -- and I haven't tried to do any math, but I

10 guess you could do it in terms of the number of

11 opinions or at least the number of published or

12 precedential opinions that a Circuit has.

13 JUDGE RYMER: Excuse me, Judge, but by

14 those measures, there are several other Circuit Courts

15 of Appeals that are not far behind. 

16 JUDGE BECKER: Well -- 

17 JUDGE RYMER: If that is the pacing item,

18 that is sort of the total number of opinions, then we

19 may be in for a splitting on a fairly large scale

20 basis (indiscernible).

21 JUDGE BECKER: Let me say that I was not

22 under the impression that that was true, and I have
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1 not made a study of it. I certainly haven't focused

2 on it. I did look in terms of the number of opinions

3 that came out of the 9th Circuit. I have not looked

4 in terms of the number of opinions that have come out

5 of other Circuits. But -- 

6 JUDGE RYMER: Well, the 11th and the 5th

7 and the 6th are not massively far behind. 

8 JUDGE BECKER: Are we talking about

9 precedential opinions?

10 JUDGE RYMER: Well, but isn't that just

11 sort of hail chasing because you can opt yourself for

12 how many published opinions one does and it is perhaps

13 not necessarily good administration of justice

14 (indiscernible).

15 JUDGE BECKER: Well, the only -- I mean,

16 in terms of our practice, and I am not familiar with

17 the practice of other Circuits, the only opinions that

18 we circulate are published opinions -- precedential

19 opinions.

20 JUDGE RYMER: Yes.

21 JUDGE BECKER: And I would limit it to

22 that. Non-precedential opinions in my view -- I mean,
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1 they may be subject to petition for rehearing, and

2 obviously they are the responsibility of the panel,

3 but they are not the responsibility of the full court.

4 So I would measure it by the volume of precedential

5 opinions. And obviously there has got to be some

6 flexibility or leeway.

7 JUDGE RYMER: Right. If the 9th Circuit

8 were essentially the same number of public opinions as

9 say the 7th Circuit, would you say therefore that the

10 7th Circuit is too large? Or would you say no because

11 it is divided by fewer judges who sit on the panels

12 more frequently?

13 JUDGE BECKER: Well, I don't think you

14 divide it by the number of judges because

15 theoretically all the judges are supposed to be

16 familiar with Circuit law -- with published opinions.

17 The 7th Circuit, as I am aware, I think publishes a

18 far greater percentage of their opinions, I mean by an

19 awful lot than other Circuits. And I question whether

20 they have to publish everything they publish. Now it

21 is also a much smaller, more cohesive Circuit in terms

22 of geography and personnel, and therefore more of the
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1 judges -- it is so much smaller that more of the

2 judges are involved as panel members in more of the

3 cases. And that, I think, dilutes the problem in some

4 respect. 

5 VICE CHAIR COOPER: Do you have an

6 opinion, Judge, as to -- I think it was 1980 -- why

7 the 5th Circuit Judges felt that it was desirable to

8 split in the 5th and the 11th? I think this morning

9 someone said all but one of the judges supported that,

10 and I think that is historically accurate. Whereas it

11 seems that certainly the majority, and maybe an

12 overwhelming majority, of the 9th Circuit Judges feel

13 differently with a Court that is as large or larger

14 than the 5th Circuit. Do you have any insight into

15 that that you can give us?

16 JUDGE BECKER: Well, I know there is a

17 tremendous amount of ESPRI and ESPRI and Circuit

18 pride. But I just wonder if they are not letting that

19 get the better of things. The 5th Circuit now -- I

20 mean, I know there are a couple of Circuits who don't

21 want their size increased and some of the courts are

22 divided. I do understand the 9th Circuit is not
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1 monolithic on this point.

2 PROFESSOR MEADOR: Let me go back to back

3 to idea that you mentioned a moment ago that was

4 discussed this morning, and that is the idea of

5 distinguishing between the Circuit and the Court of

6 Appeals and the proposal would be to leave the Circuit

7 intact but have the Court of Appeals sit and function

8 through divisions. I thought I heard you say

9 something to the effect that you didn't know what that

10 would accomplish. The argument made in that

11 direction, as I understand it, is that true you have

12 -- when you say three divisions, you have in effect

13 three different Courts of Appeals, but they would all

14 be part of the same Circuit, permitting the Circuit

15 then to maintain uniformity Circuit-wide. Whereas if

16 you split the Circuit, you create separate Circuits

17 with the potential for adding inter-Circuit conflict

18 and the only way to resolve it would be the Supreme

19 Court. So it gives the idea of a regional control

20 over uniformity in the law while permitting the Court

21 to function through smaller units. Do you have any

22 observations about this?
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1 JUDGE BECKER: Well, I mean I think it

2 sort of sounds good, but I still don't see how that is

3 any different -- I mean, what you are basically saying

4 is you've still got -- you've still got one mega or

5 one jumbo Circuit. Now it could be that there is some

6 improvement by the fact that X number of judges will

7 always sit together and therefore you don't have so

8 many permutations and combinations of panel members,

9 who in Judge Newman's universe would be strangers to

10 each other. There might be an advantage to that. But

11 nonetheless, you still have, from the point of

12 uniformity, a jumbo Circuit. 

13 I mean, I don't know if anybody has got

14 the absolute solution for the 9th. I know it may seem

15 somewhat radical, but on the basis of the figures I

16 have seen, the only way you can do it is to split

17 California. I think that the Republic would survive.

18 The California Supreme Court now has a certification

19 procedure. If the problem is the northern and

20 southern Circuit predicting what California state law

21 is, you can certify it through the California Supreme

22 Court. There could be an embank of the two Circuits.
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1 We believe one of the cardinal principles of long

2 range planning was to have regional Circuits. I don't

3 see that a Circuit that has Alaska and Arizona can in

4 any sense be considered a regional Circuit. Idaho and

5 Montana certainly are much more part of a region of

6 the 10th Circuit. You are looking now at the

7 whipping boy of the Federal Judiciary. I mean, I have

8 managed to get everybody mad at me. I have

9 demonstrated the value of -- 

10 VICE CHAIR COOPER: The First Amendment is

11 a great thing, though, Judge. 

12 JUDGE BECKER: Well, not even -- what is

13 better is life tenure. 

14 VICE CHAIR COOPER: I see. 

15 JUDGE BECKER: Life tenure is better. I

16 have got my friends in the 1st Circuit mad. My son is

17 a law clerk on the 1st Circuit, so I hear it. I got

18 the 2nd Circuit mad. The D.C. Circuit, I have

19 divided, and I have got them mad and I got the 4th

20 Circuit mad. I don't have any agenda, I assure you.

21 I am just saying if this nightmare scenario eventuates

22 -- and that is why I was careful to ask before I came
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1 here to see what the projections are. Then I say the

2 D.C. Circuit is too small, the 1st Circuit is too

3 small. The 1st Circuit arguably should be a New

4 England Circuit.

5 JUDGE RYMER: Judge Becker, given the

6 nightmare scenario that was projected, do you see, as

7 some have suggested, that there is a real difference

8 in the type of cases that may comprise those numbers?

9 In other words, a good percentage of the nightmare are

10 prisoner pro se cases, for example, which arguably

11 should be handled in a different way from other cases.

12 Do you have any views on that?

13 JUDGE BECKER: Well, I think -- first of

14 all, let me just say that one kind of case that I do

15 not believe shows up in those statistics at all and it

16 is in many respects the most onerous kind of case are

17 the habeas corpus cases which are disposed of, most of

18 them, by denying a certificate of appealability. That

19 is a whole full-dressed habeas corpus case and review

20 of a state record. So I don't think the statistics

21 begin to show how onerous some of the pro se caseload

22 can be. But with respect to most of the civil rights
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1 cases, Judge Rymer, I agree with you. They are much

2 more expeditiously handled. And I do think that you

3 have to discount them and give them a much lower

4 weight. But the projections are frankly a little scary

5 and it is only for that reason that I have said that

6 the D.C. Circuit's caseload is so much smaller. The

7 Federal Circuit to me never made any sense from -- I

8 mean, if you want to talk about a political

9 compromise. You have a court that does patents and

10 they do appeals from the Court of Veterans Appeals and

11 then they do federal personnel appeals. The D.C.

12 Circuit does marvelous work, but -- and let me just

13 say that notwithstanding my every 100 years comment,

14 I want to make perfectly clear that I am not

15 suggesting that the Commission engage in a redrawing

16 exercise willy nilly. As I said in my letter, I

17 acknowledge the value of long-working institutional

18 arrangements and the importance of the ability of

19 lawyers and judges to rely on precedent. So a strong

20 case has to be made for disrupting Circuit alignment.

21 I say you've got a strong case now in the 9th, as I

22 understand it, and you have a strong case if we are
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1 looking ahead to the kind of hydraulic pressures that

2 we will have in 2020 if those projections come true.

3 Nobody wants to change. Everybody is

4 happy with -- you know, everybody wants to leave it

5 the way they've got it. But the Commission's charter

6 is what is in the nation's interest and the interest

7 of the administration of justice.

8 PROFESSOR MEADOR: Let me ask a question

9 about that. A few minutes ago, you ticked off all of

10 the ideas about Appellate Courts that the Long Range

11 Planning Committee rejected. It seems to me that of

12 interest is to know what you would affirmatively

13 recommend that the Commission recommend now. We know

14 what the Committee rejected. Is there anything left

15 over that you, yourself, would recommend that this

16 Commission now recommend?

17 JUDGE BECKER: Well, let me go to the

18 tail-end of that question and then come back to the

19 middle. I mean, the Commission -- if we were directly

20 confronted with the kind of caseload that might happen

21 in 2020, the current Appellate structures can't handle

22 it. I have to concede that. Now Chapter 10 of the
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1 long range plan addresses that. There are a whole

2 bunch of ideas there, none of which are palatable

3 except the one idea that would do more to solve it

4 than any other, namely cutting back on the

5 jurisdiction of the Federal Courts -- cutting out

6 diversity and doing things the American Bar

7 Association would never let us get away with, namely

8 getting rid of diversity jurisdiction, cutting back on

9 the federalization of crime. The judges are all for

10 that. Whether the Congress or the lawyers are for

11 that, I don't know. If we got to that point, we would

12 have to cut back on jurisdiction. Two judge panels --

13 I mean you have got to make your manpower or your

14 personpower go further. You have cases heard by two15 judge panels and then you bring in the third judge

16 only if they divide. You would have to put on more

17 judges. We can tolerate -- even under Judge Newman's

18 scenario, we can tolerate some more judges and we

19 could split up into evenly divided Circuits. We could

20 have fewer written opinions. We could eliminate

21 review in certain kinds of cases. There certainly

22 would have to be much stronger administrative control.
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1 I will tell you another issue that the

2 Long Range Planning Committee considered was whether

3 or not there should be a chancellor of the Federal

4 Courts. Chief Justice Berger was big on the idea of

5 having a chancellor of the Federal Courts. The judges

6 were very much opposed to that. They like the current

7 decentralized governance. But if we got into that

8 kind of scenario, then I think you would have to have

9 a chancellor of the Federal Courts. You would have to

10 have a very strong central administrator who could

11 tell a judge from Detroit that you have got to go to

12 Pasadena next month and so forth. We certainly could

13 do more to maximize the utilization of our judicial

14 personpower than we do under our existing structures.

15 Those kinds of things are not palatable. 

16 You asked the question of what should we

17 do now. I would say in terms of what we do now, I

18 would say with an eye on the future -- I talked about

19 splitting the 9th. We ought to even out the Circuits.

20 We ought to take a look at the overall Circuit

21 structure and consider realignments. Now I put my

22 suggestions in a footnote. I knew I was going to get
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1 shot at and I didn't --

2 PROFESSOR MEADOR: Did you think a

3 footnote would protect you? 

4 JUDGE BECKER: Well, it hasn't up to now.

5 I say the Federal Judiciary is a national treasure,

6 but Federal Judges don't like change. They like --

7 they think that we have got a good system and they

8 want to keep it as it is. But I simply suggest that

9 what we could do now is to take a look at the caseload

10 in the projection and even out the Circuits. Even out

11 in terms of size and workload and personnel. I am not

12 suggesting that there wouldn't be certain disruptions.

13 There are certain disruptions in terms of personnel

14 and precedent and who is the next Chief Judge and that

15 kind of thing. To me that stuff is not important --

16 who is the next Chief Judge. Precedent is important.

17 But those kinds, if they were managed -- the precedent

18 problems were managed when they split the 11th

19 Circuit, and they certainly can be managed here. I

20 know -- I mean, when I look -- I mean, I thought about

21 whether to write this letter, and then I looked at the

22 Commission's charge, which was "to report to the
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1 President and the Congress recommendations for such

2 changes in certain boundary structures that may be

3 appropriate for the expeditious and effective

4 disposition of the caseload of the Federal Courts of

5 Appeals consistent with fundamental concepts of

6 fairness and due process." I mean, it strikes me that

7 these kinds of realignments are at least fairly within

8 the charter of the Commission.

9 VICE CHAIR COOPER: It is a pretty tough

10 charge. 

11 JUDGE BECKER: It is a tough charge.

12 VICE CHAIR COOPER: Judge, we appreciate

13 you taking the time to be with us. Anybody have any

14 other questions? Judge Rymer?

15 JUDGE RYMER: No. Thank you, Judge

16 Becker. We appreciate it. 

17 VICE CHAIR COOPER: Thank you so much. We

18 appreciate you being with us and giving us your

19 insightful comments. Our next witness is Elena Ruth

20 Sassower. Is that the correct pronunciation?

21 MS. SASSOWER: Sassower.

22 VICE CHAIR COOPER: Sassower, okay. With
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1 my southern accent, it sounds good either way. So,

2 Ms. Sassower is from White Plains, New York, and she

3 is here on behalf of the Center for Judicial

4 Accountability.

5 MS. SASSOWER: With all respect, I need

6 just a moment or so to set up.

7 VICE CHAIR COOPER: Sure, that is fine.

8 You have 15 minutes once you start, but I have not

9 started the clock on you.

10 MS. SASSOWER: The first order of business

11 will be the amount of time I have for this

12 presentation. But just one moment, please. 

13 VICE CHAIR COOPER: All right? Are you

14 ready?

15 MS. SASSOWER: Mr. Cooper, Judge Rymer,

16 Executive Director Meador, at the outset I would like

17 to say that I have been accorded only 15 minutes time

18 for a presentation which is no less significant and

19 important than any of the other presentations today or

20 at past hearings. I have the schedule for today's

21 hearing and every witness received a half hour. Judge

22 Becker, who just concluded his presentation had far
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1 more than a half an hour for his prepared statement

2 and of course the questions. In looking back over the

3 past hearings which are posted on the Web, I see the

4 same. The standard time allotment is one half hour.

5 I did not request less than what was the usual and

6 customary time allotment, and I would request to be

7 given the same equal treatment as has been accorded to

8 everyone else.

9 I would additionally note that when I

10 testified before the Long Range Planning Committee,

11 which of course included Judge Becker, I was given 20

12 minutes, which was the equivalent amount of time to

13 every other witness. So as a first order of business,

14 I would request equivalent time.

15 VICE CHAIR COOPER: Go ahead. Your time

16 has started running, so go ahead and start.

17 MS. SASSOWER: Well, you have not answered

18 my question. 

19 VICE CHAIR COOPER: No. I haven't

20 answered your question because we wouldn't count

21 questions against you. That is the reason Judge

22 Becker -- we interrupted him a lot. If we don't
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1 interrupt you, that might be different.

2 MS. SASSOWER: Be that as it may, he was

3 given a half an hour for his presentation and every

4 other presenter was given a half hour. I would

5 request the same. Your hearings are scheduled to run

6 until 4:30. You have no other scheduled witness and

7 it is now 3:00.

8 VICE CHAIR COOPER: If you will proceed

9 with your presentation, the Chair will tell you when

10 your time is up.

11 MS. SASSOWER: Yes, sir. I would just

12 like it noted that although my remarks are essentially

13 identical to the written statement that you have,

14 there have been some corrections and amendations.

15 They are of a minor nature. It was not my intention

16 to read the entirety of the statement. I would

17 happily dispense with the statement. If there are

18 questions, I will go to those questions directly.

19 Otherwise, I will begin, and you can feel free to

20 interrupt me at any time. I would say, however, that

21 the remarks of Judge Becker today represent precisely

22 the kind of non-probative presentations that are
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1 passing for evidence.

2 The proof of the pudding is in the eating.

3 He is in the 3rd Circuit. The issue as to how the 9th

4 Circuit operates is one which should concern the

5 judges of the 9th Circuit. I think that there is a

6 standing issue here. For him to say that he doesn't

7 see how it can be done, well he is not in the Circuit.

8 We should hear from the judges of those Circuits. Of

9 course, my presentation focuses on the need for this

10 Commission to concentrate on evidence and not accept

11 the standard premises or assumptions and claims that

12 have been advanced by the judiciary and those who are

13 part of the legal establishment, but which upon

14 examination of evidentiary proof would not necessarily

15 hold up.

16 My name is Elena Sassower, and I am the

17 coordinator and co-founder of the Center for Judicial

18 Accountability known as CJA. CJA is a national, non19 partisan, non-profit citizens organization with

20 members in 30 states. Our purpose is to safeguard the

21 public interest in meaningful and effective processes

22 of judicial selection and discipline so as to ensure
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1 the integrity of the judicial process. We do this by

2 gathering and analyzing empirical evidence. Where the

3 evidence shows dysfunction and corruption, we provide

4 that evidence to those in leadership positions so that

5 they can independently verify it and take remedial

6 action to protect the public.

7 It is to provide this Commission with such

8 evidentiary proof that I am here today. At the outset

9 an observation must be made about this Commission. It

10 is unclear to us and to everyone else we have asked at

11 the Commission, the administrative office, and the

12 House and Senate Judiciary Committees, how the

13 Commission came to be constituted as it has consisting

14 of five members, all of whom have been appointed by

15 the Chief Justice of the Supreme Court. The several

16 bills introduced in the House of Representatives last

17 year and the one ultimately passed called for a

18 Commission with members designated by appointing

19 authorities from the three branches of government.

20 The same is true of the bills that were introduced in

21 the Senate. In each of these bills, the Chief

22 Justice's designation -- 
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1 (Testimony cut off and starts again on

2 another tape in mid-sentence.)

3 MS. SASSOWER: ... then you surely know

4 what our position is. That you have to conduct your

5 evaluation of the situation in the Federal Judiciary

6 by examining evidence. And that consists of examining

7 how cases are being handled through the Circuit Courts

8 of Appeals. You can only do that not by relying on

9 the feelings of judges who want to put forward their

10 view of what should be done without any evidence to

11 support it per se. But actually look at the cases

12 themselves.

13 Professor Helman, who of course is one the

14 preeminent experts in this area, has recognized that

15 statistics alone count for very little. This is a

16 position likewise shared by some of the other

17 authorities in this field. Professor Richman, who has

18 testified before you, who has stated that there is no

19 evidentiary support for the claims that you have to

20 keep the judiciary small because otherwise you are not

21 going to have consistency of opinions and you are

22 going to have discordant adjudications and you won't
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1 have the high quality supposedly that exists today.

2 These claims are bunk, and there is ample evidence

3 from which you can examine that and verify that, and

4 that is the point of the testimony that I provided

5 today, testimony which is supported by files.

6 Judge Rymer, I am delighted that you are

7 here, albeit not present. But if you had a video

8 screen, what you would see are what I have brought,

9 which consist of two appeals of this 2nd Circuit, the

10 2nd Circuit which is Judge Newman's Circuit. Judge

11 Newman is the great proponent of keeping the Federal

12 Judiciary small and making all sorts of claims about

13 why you have to keep it small and why you have to keep

14 the numbers down based upon the supposed quality and

15 based upon the uniformity of decisions that can only

16 be accomplished when there is a limit to the size of

17 the judiciary. In fact, judges of this Circuit,

18 including Judge Newman himself, engage in Appellate

19 practice which can only be viewed as corrupt and

20 impeachable. Judge Newman, in one of the cases that

21 I have presented, wrote a decision which didn't refer

22 to the record once, didn't rely on any cognizable law,
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1 except reached out to inherent power to sustain a

2 $100,000.00 award against civil rights plaintiffs

3 where the record showed absolutely no factual support

4 for such an award. Such award was the product of the

5 virulent bias of the District Judge, which was one of

6 the issues presented on the appeal before you.

7 This was a decision written by Judge

8 Newman himself, which on its face, even without

9 examination of the files, was abhorrent and repugnant.

10 And yet this was a decision which none of the judges

11 of this 2nd Circuit saw fit to grant a petition for

12 rehearing or suggestion for rehearing embank, which

13 particularized how utterly unfounded, violative of

14 bedrock law of this Circuit and of the Supreme Court.

15 Now that is only one case. The second

16 case -- 

17 VICE CHAIR COOPER: What does that have to

18 do with the charge of this Commission?

19 MS. SASSOWER: The charge of this

20 Commission is whether or not to meet the Appellate

21 needs of this country by expanding the size of the

22 Federal Judiciary.
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1 VICE CHAIR COOPER: Right. And making

2 structural changes. Are you recommending we file a

3 bill of impeachment against Judge Newman?

4 MS. SASSOWER: I certainly believe that

5 after you review these two files that you meet your

6 ethical duty to take action to ensure that there is

7 some remedy here and that Judge Newman's knowingly

8 corrupt conduct and that of his brethren be the

9 subject of proceedings.

10 VICE CHAIR COOPER: I don't think that is

11 anywhere within the realm of the universe of the

12 charge of this Commission.

13 MS. SASSOWER: Look, these cases are being

14 presented to explode the myths about a small

15 judiciary. Okay? Supposedly we have a small quality

16 judiciary now. The cases that you see in front of you

17 are of such a frightening and heinous nature, where

18 the rule of law has been completely obliterated.

19 There is nothing left. There is no process here.

20 VICE CHAIR COOPER: Let Professor Meador

21 ask a question.

22 PROFESSOR MEADOR: How would a larger
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1 judiciary meet your problem? I mean, if there were

2 more judges, how would that cure the problem you are

3 complaining about?

4 MS. SASSOWER: What I am saying is that it

5 is no argument -- there is no argument here to oppose

6 an expansion in the size of the Federal Judiciary --

7 excuse me, let me back up. I agree with the

8 statements of Professor Richman in his extremely

9 careful and masterful Law Review article in which he

10 points out that the claims for restricting the size of

11 the Federal Judiciary do not have empirical support

12 except that he does not -- I mean, he says that there

13 is an appearance problem with so many cases being

14 decided without oral argument and so many cases being

15 decided without written decision or published

16 decision. It looks bad. It doesn't satisfy the

17 appearance of justice. There is now developing, as he

18 points out, a two-track system. But he accepts the

19 premise that is advanced I think by many of the judges

20 who have been testifying that the cases that are being

21 routed to this second track are truly the

22 insignificant, the unimportant, the unprecedential
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1 cases, the open and shut cases not worthy of the time

2 of the Court. The fact of the matter is, as

3 represented by these two files here, cases which are

4 getting the bum's rush are cases of profound

5 significance, not just to the litigants but to the

6 system of justice. The second appeal is a civil

7 rights action where the defendants were state judges

8 and state attorney generals sued for corruption, and

9 that case was torpedoed by a biased District Judge and

10 then dumped by the Circuit, which had a duty to insure

11 the integrity. Forgetting about the underlying civil

12 rights action, what it had before it was a record

13 which was so appalling and so reprehensible that it

14 had to take some immediate steps if there was any

15 concern about the quality and integrity of justice.

16 Because what it had before them was a non-process.

17 Let me just say with all respect that the

18 last time I was in this very courtroom, 506, was on

19 August 29, 1997, in the context of that second appeal,

20 where I witnessed a five-minute oral argument. This

21 is what passes for oral argument I suppose in

22 statistics, because obviously it is a case where there
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1 has been oral argument. You are not making any

2 breakdown between cases that have real oral argument

3 and cases that are given this kind of superficial oral

4 argument. But what took place there, and it is all

5 recorded not only in an audio transcript but in a

6 stenographic transcript that is part of the record, is

7 just appalling. You had Circuit Court Judges that

8 contempted. They interrupted a 5-minute presentation

9 of the Appellant with questions which were not only

10 harassing but evidenced at best that they had no

11 knowledge of the record at all. Now what kind of

12 quality judiciary is this where at best you are saying

13 judges coming to oral argument, where they have denied

14 full oral argument and they have abridged it to 5

15 minutes, then mock the integrity of the proceedings by

16 thwarting a presentation by the Appellant designed to

17 bring the Court's attention to the issues, which they

18 don't -- it is not that they didn't know, they didn't

19 want to know about it. 

20 PROFESSOR MEADOR: I understand your

21 views. I understand what you are saying. You are

22 saying the Appellate Judges are not doing their job
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1 adequately or correctly and so on and so on. 

2 MS. SASSOWER: Yes.

3 PROFESSOR MEADOR: What can this

4 Commission recommend to Congress to do about it?

5 MS. SASSOWER: Well, as Professor Richman

6 pointed out, this nation has real Appellate needs.

7 People come to court to vindicate rights. 

8 VICE CHAIR COOPER: But give us some

9 specific recommendations. 

10 MS. SASSOWER: Well, I certainly would

11 agree that you have to meet those needs. And if that

12 means increasing -- 

13 VICE CHAIR COOPER: So recommendation 1 is

14 that the Courts need to meet the public needs?

15 MS. SASSOWER: The recommendation would be

16 that you increase the number of Federal Judges to meet

17 the Appellate needs and lower court needs of the

18 nation, which is the point that is made by Professor

19 Richman. But in doing so, obviously, you have to

20 insure the integrity of the process of judicial

21 selection, which as we pointed out and is the subject

22 of evidentiary proof that I have also brought along
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1 today, you have an appointment process and a

2 confirmation process which is a hoax, which is

3 despicable in every respect beyond anything that

4 anyone has published that we have seen. And we have

5 documented what goes on. Professor Meador, you know

6 the Miller Report came out in May of 1996, and at the

7 very time we were chronicling the abusive conduct of

8 the Senate Judiciary Committee, which refused to even

9 investigate in any respect -- interview opposition of

10 which they were notified. They were notified of

11 opposition to a nominee and they did not interview

12 those who were presenting that opposition and who had

13 been notified of that opposition. They didn't

14 investigate it. And they were on notice more

15 significantly. The American Bar Association had

16 rejected that information and had rejected that

17 information knowing that it bore adversely on a

18 nominee that they passed on to the President for

19 appointment and that had then come before them in the

20 Senate. We have selection --

21 VICE CHAIR COOPER: So your second

22 recommendation would be to get the politics out of
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1 nominating judges?

2 MS. SASSOWER: You need to do a true

3 investigation of what is going on because it is worse

4 than has been appreciated up until now.

5 VICE CHAIR COOPER: So we need to

6 investigate the White House and the Senate Judiciary

7 Committee and the Senate and the American Bar?

8 MS. SASSOWER: I am not saying you need to

9 investigate the White House. I am not talking about

10 conspiracies here. I am saying that we have documented

11 how the American Bar Association, which is utilized by

12 the Justice Department, in two specific instances did

13 not do its job. And in the second instance, it not

14 only did not do its job of investigation, but it

15 rejected and it screened out information. 

16 PROFESSOR MEADOR: Let me see if I can

17 summarize what you are saying and see if you have

18 anything to add to it. As I understand you, you are

19 saying number one that maybe some Appellate Judges are

20 not behaving properly and doing their job. Number

21 two, we need more judges in order to get the job done

22 and serve the public. Number three, the nominating
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1 and confirming process is not functioning properly as

2 it should. The ABA Committee is not functioning

3 properly.

4 MS. SASSOWER: And the Senate Judiciary

5 Committee isn't.

6 PROFESSOR MEADOR: Is all of that a fair

7 summary of what you are saying?

8 MS. SASSOWER: It is a small beginning. I

9 certainly would want it emphasized that all my

10 testimony and my statements here are based upon

11 independently verifiable proof, which I am providing

12 this Commission, from which it can see how dire the

13 situation is and draw its own recommendations. They

14 certainly would necessarily have to include -- I mean

15 at some point we are talking about expanding the size

16 of the Judiciary, and we don't see where there is a

17 legitimate argument against it. We need a selection

18 process which will give us the best judges and we need

19 disciplinary remedies that will insure that we have

20 mechanisms in place to deal with errant judges. And

21 what we have documented in these two cases, and they

22 are only representative of the much larger body of
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1 materials that the members of CJA would be happy to

2 provide, of a serious problem within the Judiciary of

3 its knowing and deliberate disregard of law, its

4 decisions which certainly in cases where it has an

5 interest, decisions will be written that falsify the

6 facts and that omit the facts. What is being produced

7 is not an Appellate process worthy of our Federal

8 Courts. And it is for you to take this important

9 evidence. 

10 Let me just say that this evidence -- what

11 is so shocking here is that this evidence has been

12 presented to the Judicial Conference, which of course

13 has the ultimate oversight over the Federal Judiciary

14 with all respect to the independence of the Judiciary

15 to police itself. It has done nothing to it. It has

16 been presented to the House Judiciary now. It has

17 been presented to the American Bar Association. We

18 are talking about evidence which shows a complete

19 breakdown of anything resembling a legal judicial

20 process. Now it certainly includes reinforcing the

21 statutes regarding disqualification, 28 U.S.C. 144 and

22 455, which have been recognized to be all but
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1 worthless.

2 VICE CHAIR COOPER: That would be another

3 recommendation other than the summary Professor Meador

4 made is to enforce the disqualification statutes?

5 MS. SASSOWER: Absolutely.

6 VICE CHAIR COOPER: Okay. Do you have any

7 other recommendations?

8 MS. SASSOWER: To -- look, you are a

9 Commission paid for by the taxpayers with resources.

10 You can hire consultants to do an examination of this

11 kind of case. It is our recommendation that you look

12 -- if you want to know about the quality of justice in

13 the Circuit Courts of Appeals and what is going on

14 with decisions in the Circuit Courts of Appeals, that

15 what you do is begin empirically by examining cases

16 and appeals which have been the subject of rehearing

17 petitions, petitions for rehearing embank. Take a

18 look at what the lawyers are saying. Take a look at

19 what the litigants are saying in those petitions.

20 Take a look at 372C complaints filed against Circuit

21 Judges. See what is being said about the quality of

22 justice being rendered. I have to emphasize that it
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1 was -- as I have in my statement -- that Mr. Medis

2 from the Chicago Council of Lawyers -- I believe that

3 is his name -- brought to your attention the survey

4 done by the Chicago Council of Lawyers relative to the

5 7th Circuit. And what is said about the quality of

6 decisions -- disregard of the facts in the record by

7 judges. Well, how else do you decide a case if not

8 based upon the facts?

9 VICE CHAIR COOPER: So another

10 recommendation is we are to make sure that the Judge

11 follows the record? I am just -- we have got to make

12 specific concrete recommendations to Congress and we

13 can't -- 

14 MS. SASSOWER: What I am saying is you've

15 got to look at decisions. You can't look at

16 statistics, which is what Professor Helman said. And

17 what Professor Richman, I believe, would concur with.

18 You've got to look at what is actually happening.

19 Methodologically, the best way I believe for you to do

20 that and to get a real read of what is happening on

21 the ground is by looking at the records of cases on

22 appeal that have been decided in all of a variety of
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1 different ways, whether not for publication decisions

2 or published decisions, and look and see whether in

3 fact they were properly routed, whether proper

4 determinations were made. I mean that is a question

5 that others have raised. I am not the first to raise

6 it. Except I am raising more serious issues, which is

7 to say that not only are they not being routed right,

8 cases are being thrown.

9 JUDGE MERRITT: I think there is a

10 distinction here. The Commission may want to examine

11 the process in that it may be related to structure,

12 but I am quite dubious as to whether the Commission

13 wants to get into exactly the merits of each case

14 decision.

15 MS. SASSOWER: Nobody is asking you to do

16 that.

17 JUDGE MERRITT: To review decisions being

18 made on the merits.

19 MS. SASSOWER: You are making -- this

20 Commission will potentially block expansion of the

21 size of the Federal Judiciary based upon the

22 traditional claims that we have a quality Judiciary
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1 now that respects precedent and that decides according

2 to the facts and the law. Well, I am telling you that

3 that ain't so. And the only way that you can verify

4 that that ain't so and that those claims are not

5 necessarily true is by looking at cases and seeing how

6 Circuits are knowingly disregarding all the law -- all

7 the bedrock law of their Circuit, as was done by Judge

8 Newman in his decision, to which this Circuit gave its

9 (indiscernible), as well as in the subsequent case,

10 which was also thrown by a sui sponte decision of a

11 Circuit panel that never referred to the record once.

12 JUDGE MERRITT: Assume just hypothetically

13 that this Commission looked into lots of cases and

14 decided that they were decided erroneously by the

15 Appellate Judges.

16 MS. SASSOWER: No. We are not talking

17 about erroneously. We are talking about corruption.

18 Excuse me.

19 JUDGE MERRITT: But suppose we found that?

20 MS. SASSOWER: I know the difference.

21 JUDGE MERRITT: Then what do we recommend

22 to Congress?
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1 MS. SASSOWER: What you would need to

2 recommend is a structure which would insure that such

3 corruption of the Appellate process was rooted out.

4 As I have already presented -- as I presented five

5 years ago or four years ago almost to the Long Range

6 Planning Committee, and as is reflected in my

7 published article,"Without merit--" I forgot what the

8 name of it is -- "Without Merit, the Empty Promise of

9 Judicial Business." 

10 VICE CHAIR COOPER: Well, we appreciate

11 your being with us here. 

12 MS. SASSOWER: You have a --

13 VICE CHAIR COOPER: Hold on one second.

14 Don't interrupt the Chair when he is speaking.

15 MS. SASSOWER: I am sorry.

16 VICE CHAIR COOPER: We will let you make

17 a short closing statement. But if you will notice, we

18 have given you your 30 minutes. So go ahead and

19 conclude.

20 MS. SASSOWER: Yes. I appreciate that.

21 Look, the arguments against expanding the Judiciary is

22 that this small Judiciary respects precedent and
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1 respects uniformity and advances quality. What I am

2 saying to you is that those claims can be repudiated

3 by examination of appeals which show not error --

4 error is good faith conduct. We are talking about bad

5 faith conduct. We are talking about corruption. All

6 right? Once you verify that, yes, even in Judge

7 Newman's 2nd Circuit, in decisions he himself has

8 authored, there is no respect for precedent. It goes

9 out the window -- precedent of the Circuit -- 

10 VICE CHAIR COOPER: I think you are being

11 repetitive now and we appreciate -- 

12 MS. SASSOWER: Then you can recognize --

13 VICE CHAIR COOPER: Excuse me. Excuse me.

14 MS. SASSOWER: That there is no argument

15 against expanding the Federal Judiciary.

16 VICE CHAIR COOPER: Excuse me. I think

17 your time is up. Thank you so much.

18 MS. SASSOWER: Thank you very much.

19 VICE CHAIR COOPER: We appreciate you

20 taking time to be here and submitting a written

21 statement.

22 MS. SASSOWER: Thank you.
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1 VICE CHAIR COOPER: I think there were no

2 witnesses who signed up. This meeting is adjourned.

3 Thank you for joining us, Judge Rymer.

4 JUDGE RYMER: Thank you.

5 (Whereupon, the hearing was concluded.)

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