Filling the Federal Appellate Openings on the 9th Circuit

I. Introduction The United States Court of Appeals for the 9th Circuit has been the biggest federal appellate court in terms of numerous significant parameters for nearly two decades. The 9th Circuit encompasses the largest geographic expanse, extending from the Arctic Circle to the border of Mexico and from Montana to Guam. The appeals court includes 15 federal districts that are located in eight western states, as well as Hawaii and two island territories. The 9th Circuit addresses the most substantial and most complex docket, consisting of approximately 9,000 cases annually. Congress has authorized 28 active appellate judges for the court. Moreover, the enormous number and complicated character of 9th Circuit filings has prompted the Judicial Conference of the United States, the policy-making arm of the federal courts, to suggest that senators and representatives approve nine additional judgeships for the 9th Circuit. The court presently has six openings, five of which the Judicial Conference designates as "judicial emergencies" because the seats have remained empty for at least 18 months, even as the magnitude and complexity of civil and criminal caseloads in the 9th Circuit continue to increase. President Bill Clinton nominated candidates for all five of these vacancies in 1999; however, the United States Senate had confirmed no one for the empty seats when the initial session of the 106th Congress recessed. Throughout much of the 1990s, the 9th Circuit has operated with fewer than the court's complete complement of 28 active judges. Since 1995, when Republican senators representing states of the Pacific Northwest instituted a serious campaign to divide the 9th Circuit, the court has essentially functioned absent one-fourth of its membership.1 The large number of openings and their protracted nature, as well as a steadily expanding docket, have demanded that the 9th Circuit depend on many appellate and district court judges who are not active members of the 9th Circuit when staffing threejudge panels to hear cases. In fact, the Commission on Structural Alternatives for the Federal Courts of Appeals ("The Commission"), which recently completed a thorough study of the appellate courts, determined that 43% of panels that resolved cases after oral argument in the 9th Circuit during the 1997 fiscal year included at least one participant who was not an active judge of the court.2 This Commission apparently premised its major recommendation that Congress and the President require three regionally-based adjudicatory divisions for the 9th Circuit on the perception that the court may decide appeals too slowly, that circuit case law might lack consistency and coherence, that the court's judges could be insufficiently collegial, and that circuit links with the regions served seem inadequate. Insofar as the deficiencies that the commissioners perceived actually exist, however, they may be ascribed more appropriately to the significant number and prolonged character of the vacancies that the court has experienced over the last half decade. Indeed, the expeditious appointment of judges to the six empty seats might obviate the necessity for implementing an untested divisional approach, which could well disrupt many efficacious aspects of 9th Circuit administration. These considerations mean that the judicial openings on the court deserve assessment. This Article undertakes that effort. Section II evaluates the national judicial vacancies problem, focusing on how circumstances in the 9th Circuit became so problematic. Section III analyzes recent developments that have permitted nearly one-quarter of the 28 active judgeships that senators and representatives have authorized for the court to remain unfilled. Finding that the burgeoning number and increasing complexity of civil and criminal appeals and the substantial difficulty of promptly appointing judges to the empty positions is seriously threatening appellate justice, Section IV offers recommendations for addressing this situation. …