Proposals in the 109th Congress to Split the Ninth Circuit Court of Appeals
Released: 2006-11-22T00:00:00

Introduction

In 1891, Congress established the U.S. Courts of Appealsâoften called "circuit courts"âto hear appeals from federal district courts and, later, many agency regulations. The circuit courts remain the last avenue of judicial review for all but the relatively few cases the Supreme Court considers. Establishing the appeals courts organized federal judicial business into geographic divisions (circuits). Today, there are 11 numbered circuit courts, covering federal judicial districts housed in the 50 states and U.S. territories. In addition, the Court of Appeals for the D.C. Circuit has jurisdiction over appeals for the District of Columbia, including many agency appeals. Finally, the Court of Appeals for the Federal Circuit has national jurisdiction over specialized issues such as patents and trademarks. The Ninth Circuit, located in the western United States, is the nation's largest circuit court in geography, population, and appeals filings. ( Figure 1 shows the boundaries of the current Ninth Circuit.) On occasion, the Ninth Circuit has been noted for its controversial rulings. These factors, and others discussed below, surround recent proposals to split the Ninth Circuit into one or more new circuits. Opponents counter that the Ninth Circuit should remain intact, and that proposals to split the circuit threaten judicial independence.

This report provides information and analysis on the debate concerning splitting the Ninth Circuit and compares provisions of House and Senate bills introduced during the 109 th Congress that propose to split the circuit. The report also analyzes potential impacts of these proposed reorganizations. The current debate over the Ninth Circuit echoes themes present in the past and generally focuses on six areas: (1) geography and population, (2) judgeships and caseloads, (3) how quickly the circuit disposes of cases, (4) cost of splitting the circuit, (5) en banc procedures, and (6) the circuit's rulings. Analysis suggests that splitting the Ninth Circuit would have different effects on each of these six areas, as is summarized at the end of this report.

Splitting the Ninth Circuit: Recent Legislative Proposals

The debate over whether to split the current Ninth Circuit into two or more circuits has been before Congress for decades. Two major commissions on circuit reorganization have reached different conclusions concerning the Ninth Circuit. In 1973, the "Hruska Commission"âcharged by Congress with evaluating the federal circuit courtsârecommended that the Ninth Circuit be divided in two. In 1998, the "White Commission"âwhich Congress tasked with examining the Ninth Circuit in particularârecommended against dividing the Ninth Circuit (stating that doing so would be "impractical and is unnecessary"), but also proposed creating three somewhat autonomous divisions within the circuit to improve court management. Congress chose not to adopt the Hruska or White Commissions' recommendations to reorganize the Ninth Circuit.

Since the mid-1990s, several bills have been introduced that would split the Ninth Circuit. During the 108 th Congress, Representative Michael Simpson sponsored House Amendment 780 to S. 878 , which would have split the Ninth Circuit into three circuits. The House passed S. 878 with the amendment (by a vote of 205-194) in October 2004, but the measure did not win Senate approval. In the 109 th Congress, seven bills have been introduced in the House and Senate that, in whole or in part, propose to split the Ninth Circuit into two or more circuits. The Appendix (at the end of this report) provides an overview of each bill's major provisions relating to a Ninth Circuit split.

Late in 2005, the Federal Judgeship and Administrative Efficiency Act of 2005 ( H.R. 4093 , sponsored by Representative James Sensenbrenner, who chairs the House Judiciary Committee) became the focus of legislative and media attention when language from the bill was inserted into the Deficit Reduction Act of 2005 ( H.R. 4241 ), which the House passed on November 18, 2005. During conference negotiations, language splitting the Ninth Circuit into proposed new Ninth and Twelfth Circuits was dropped from the budget reconciliation bill. In the Senate, three bills ( S. 1296 , S. 1301 , and S. 1845 ) proposing to split the Ninth Circuit were the subject of an October 2005 Subcommittee on Administrative Oversight and the Courts hearing. H.R. 4093 in the House and S. 1845 in the Senate appeared to be the bills receiving the most legislative and media attention during the first session. Most recently in the House, on February 8, 2006, H.R. 4093 was reported by the Judiciary Committee and placed on the Union Calendar. On the Senate side, S. 1845 was originally scheduled for a June 29 Judiciary Committee markup. That markup was postponed after Chairman Arlen Specter, in response to a request from Senator Dianne Feinstein, agreed to schedule a future hearing on S. 1845 . The full Senate Judiciary Committee held a September 20, 2006, hearing on S. 1845 . The witnesses and contents of that hearing were largely reminiscent of other recent hearings on the topic. The status of that debate is discussed throughout this report.

Geographic Provisions of a Two-Way Split

The major difference among the seven bills introduced during the 109 th Congress to split the Ninth Circuit concerns whether the current Ninth Circuit would be divided into two or three newÂ circuits. Four of the seven billsâ H.R. 3125 (Representative Michael Simpson), H.R. 4093 Â (Representative James Sensenbrenner), S. 1296 (Senator Lisa Murkowski), and S. 1845 (SenatorÂ John Ensign)âwould split the Ninth Circuit into two circuits: the new Ninth and the Twelfth (all bills specify the same geographic boundaries), as shown in Figure 2 . Under these bills, the new Ninth Circuit would include California, Guam, Hawaii, and the Northern Mariana Islands. The Twelfth Circuit would include Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.

The four bills also specify where reorganized courts would meet and, in some cases, be headquartered. Currently, the Ninth Circuit is headquartered (including the offices of the clerk and circuit executive) in San Francisco and also meets in Los Angeles, Portland, and Seattle. Under H.R. 4093 and S. 1845 , the new Ninth Circuit would meet in Honolulu, Pasadena, and San Francisco; the Twelfth would meet in Las Vegas, Missoula, Phoenix, Portland, and Seattle. Two other bills ( H.R. 3125 and S. 1296 ) propose slightly different arrangements. Under S. 1296 , the New Ninth Circuit would meet in Honolulu and San Francisco; a Twelfth Circuit would meet in Phoenix, Portland, and Missoula. H.R. 3125 specifies that a new Ninth Circuit meet in Honolulu, Pasadena, and San Francisco (like H.R. 4093 and S. 1845 ); the Twelfth Circuit would meet in Phoenix and Seattle. None of the bills requires that a new Ninth Circuit's headquarters would remain in San Francisco, although it certainly could. S. 1845 and S. 1296 specify that the Twelfth Circuit headquarters be located in Phoenix. None of the other bills proposing a two-way split specify headquarters locations for a Twelfth Circuit.

A fifth billâ H.R. 212 (Representative Michael Simpson)âalso proposes a two-way split, but with different boundaries. (See Figure 3 .) H.R. 212 would create a new Ninth Circuit including Arizona, California, and Nevada. The Twelfth Circuit would include Alaska, Guam, Hawaii, Idaho, Montana, the Northern Mariana Islands, Oregon, and Washington. Under H.R. 212 , the new Ninth Circuit would meet in Pasadena, Phoenix, and San Francisco; the Twelfth Circuit would meet in Portland and Seattle. The bill does not specify headquarters locations.

Geographic Provisions of a Three-Way Split

Two other bills introduced in the 109 th Congress would take an alternate approach. Under H.R. 211 (Representative Michael Simpson), and S. 1301 (Senator John Ensign), the current Ninth Circuit would be divided into three circuits instead of two. (See Figure 4 .) Both bills would establish a new Ninth Circuit including California, Hawaii, Guam, and the Northern Mariana Islands. The Twelfth Circuit would include Arizona, Idaho, Montana, and Nevada. The Thirteenth Circuit would include Alaska, Oregon, and Washington. Under these bills, the new Ninth Circuit would meet in Los Angeles and San Francisco. The Twelfth and Thirteenth Circuits would meet in Las Vegas and Phoenix and Portland and Seattle, respectively. Neither bill specifies headquarters locations.

Proposals to split the Ninth Circuit into three appellate courts were also introduced during previous Congresses. During the 109 th Congress, the debate over splitting the circuit has generally focused on splitting the current Ninth Circuit into two circuits. Although Senator Ensign sponsored S. 1301 , which proposes a three-way split, Senators Murkowski ( S. 1845 ) and Ensign have also stated their support for S. 1845 , which proposes a two-way split. There was, however, some general discussion of a three-way split at the September 20, 2006, Senate Judiciary Committee hearing.

Splitting the Ninth Circuit: Current Debates and Analysis

The debate over splitting the Ninth Circuit generally focuses on six areas: (1) geography and population, (2) judgeships and caseloads, (3) how quickly the circuit disposes of cases, (4) cost of splitting the circuit, (5) en banc procedures, and (6) the circuit's rulings. Proponents of splitting the Ninth Circuit argue that the court is too big and covers too many people to operate effectively. Opponents of a split generally respond that although the Ninth Circuit is big, it still delivers effective justice and provides legal continuity for the western United States. Opponents of a split also often assert that dividing the court is a backdoor method of eliminating the current Ninth Circuit due to its reputation as the nation's most liberal appellate court. Proponents of a split deny that the Ninth Circuit is targeted for division based on its sometimes controversial rulings, saying instead that effective judicial administration is the prime concern.

Opponents of a split also say that the Ninth Circuit handles its large number of appeals well, and that professional case management helps facilitate circuit operations. For example, former Ninth Circuit Chief Judge James R. Browning has argued that the Ninth Circuit's innovations, such as computerized docketing and long-range planning, serve as models for other courts. Those against a split also contend that duplicating staff and administrative functions in a reorganized circuit would be costly and unnecessary. Opponents warn that existing Ninth Circuit staff expertiseâwhich they contend enhances the current circuit's functioningâcould not necessarily be replicated in proposed Twelfth or Thirteenth Circuits.

Those supporting a split counter that the Ninth Circuit is overworked. They contend that reducing the circuit's caseload by dividing the circuit falls within Congress's responsibility to manage the federal courts, and that failing to do so jeopardizes timely access to justice. Proponents fear that judges are too busy to effectively manage the court and say that dividing the circuit and adding new judgeships would allow judges to follow cases more closely. Finally, those who support a split maintain that the Ninth Circuit's administrative innovations are ultimately a short-term solution to a long-term problem.

The Ninth Circuit's efficiency is often discussed in the debate over whether Congress should split the circuit. Although "efficiency" is commonly cited on both sides of the debate, measurements for the term are rarely defined. Efficiency could be measured in a variety of ways, with varying results. Because there is no universally accepted definition of "efficiency" in the current debate over splitting the Ninth Circuit, this report discusses various Ninth Circuit outputs, such as caseloads and how quickly the circuit disposes of cases, but does not address the Ninth Circuit's efficiency per se.

Geography and Population

The Ninth Circuit's geography and population are controversial for two reasons: the large area the circuit encompasses, and a feeling among some observers that cases originating in California dominate the court's docket. In both land area and population, the Ninth Circuit surpasses all other federal circuits. In 2004, the area covered by the Ninth Circuit included more than 58 million people, almost 36 million of whom lived in California. Currently, the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) is the second-most-populous circuit, with a 2004 estimated population of more than 31 million. Proponents of a split contend that decreasing the current Ninth Circuit's population could improve judicial administration and suggest that rapid population growth in the West will exacerbate the Ninth Circuit's workload challenges.

Those opposing a split contend that the Ninth Circuit's large geography is essential in maintaining one legal voice for the western United States. Senator Dianne Feinstein, a member of the Judiciary Committee who opposes a split, stated during an October 2005 committee hearing that:

[t]he uniformity of law in the West is a key advantage of the 9 th Circuit, providing consistency among western states that share many common concerns. For example, splitting the circuit could result in one interpretation of a law governing trade with Mexico in California and a different one in Arizona, or in the application of environmental regulations one way on the California side of Lake Tahoe, and another way on the Nevada side.

By contrast, Ninth Circuit Judge Diarmuid O'Scannlain, who supports a split, testified that the need for a unified legal voice for the West and Pacific Coast is "a red herring." He also argued that the Atlantic Coast has "five separate circuits," and that "[t]here is no corresponding 'Law of the South' nor 'Law of the East.'"

Judgeships and Caseloads in the Current Ninth Circuit and Other Circuits

For the 11 numbered circuits and the D.C. Circuit, there are currently 167 authorized judgeships, which are filled with full-time, active judges. In many circuit courts, temporary judges and senior judges also help handle the judiciary's business. Temporary judgeships are filled by additional appointments to the bench, which temporarily increase the number of judgeships for a particular circuit or district. The total number of judgeships authorized for the district or circuit reverts back to the number of permanently authorized judgeships at a future point specified by statute, in this case, when the next two vacancies among authorized Ninth Circuit judges occur at least 10 years after two temporary judges are appointed (see the Appendix ). Senior judges are those who have taken "senior status," a specialized form of judicial retirement. Although many senior judges carry large caseloads and contribute significantly to the court's workforce, specific duties and volume of work for senior judges can vary substantially. Therefore, senior judges are not included in caseload estimates presented later in this report.

As shown in Table 1 , the Ninth Circuit has 28 authorized circuit judgeships, although two seats on the court are currently vacant. The other circuits have between six (First Circuit) and 17 (Fifth Circuit) authorized judgeships. In addition to the Ninth Circuit's 26 filled, authorized circuit judgeships, 23 senior judges are assigned to the circuit. In total, 49 judges currently serve the Ninth Circuit.

In FY2005, the Ninth Circuit led the nation in appellate filings, with 16,037 of 68,473 nationwide, as shown in Table 2 . By contrast, the other circuits' appeals filings in FY2005 ranged from 1,912 for the First Circuit, to 9,052 for the Fifth Circuit. As Table 2 shows, data from the Administrative Office of the United States Courts (AO) indicate that the Ninth Circuit was responsible for 21-27% of the nation's appellate workload (in appeals filed, terminated, and pending) in FY2005. Table 2 also shows that the Ninth Circuit's appeals filings increased substantially (75.3%) between FY2000 and FY2005, from 9,147 to 16,037. During the same period, all other circuits' filings increased by a comparatively small 15.1%, from 45,550 to 52,436. As a result, the percentage of all filings assumed by the Ninth Circuit has increased in recent years. The same is generally true with regard to appeals terminated and appeals pending. The most recently available AO data suggest that the Ninth Circuit continues to experience a large workload. For the one-year period ending March 31, 2006, 15,953 appeals were filed in the Ninth Circuit; 13,590 appeals were terminated; and 17,262 appeals were pending. Those figures all represented increases over the previous year.

As Figure 5 shows, the appellate courts' FY2005 caseloadâmeasured in this report as filed appeals per authorized judgeshipâfalls into two groups: those circuits with fewer than 400 appeals filed per judge, and those with more than 500 appeals filed per judge. Four circuits have caseloads in the latter group. In FY2005, the Eleventh Circuit had the highest caseload in the nation: 644.3 filed appeals per authorized judgeship. The Ninth Circuit's caseload was the second-highest, with 572.8 appeals filed per authorized judgeship. Two other circuit courts trailed slightly behind the Ninth Circuit: the Second Circuit (541.2 appeals filed per authorized judgeship) and the Fifth Circuit (532.5 appeals filed per authorized judgeship). By contrast, eight other circuits' caseloads ranged from 114.9 appeals filed per authorized judgeship in the D.C. Circuit, to 353.8 cases per authorized judgeship for the Fourth Circuit.

Proposed Judgeships in a Reorganized Ninth Circuit

As is stated above, the Ninth Circuit currently has 28 authorized judgeships. In 2005 (the same year all the bills proposing to split the Ninth Circuit were introduced in the 109 th Congress), the Judicial Conferenceâthe judiciary's primary internal policymaking bodyârecommended that the Ninth Circuit receive five additional permanent judgeships (for a total of 33 authorized judgeships) and two temporary judgeships. As the Appendix shows, all the bills introduced during the 109 th Congress that propose to split the Ninth Circuit follow those recommendations. The bills differ in how those judgeships would be allocated to a new Ninth Circuit versus proposed Twelfth or Thirteenth Circuits after a split.

Of the 33 judgeships that would be authorized for the current Ninth Circuit, most bills that authorize a two-way split would place 19 of those judgeships in a new Ninth Circuit, and 14 in a Twelfth Circuit. The two temporary judgeships would go to the new Ninth Circuit and would generally be housed in California. Under a three-way split proposed by H.R. 211 and S. 1301 , the new Ninth Circuit would receive 19 authorized judgeships, compared with eight and six authorized judgeships, respectively, for the Twelfth and Thirteenth Circuits. Under all seven bills, senior judges would be allowed to choose the circuit to which they would be assigned.

The 2005 AO Caseload Estimate for a Reorganized Ninth Circuit

To gauge a reorganized Ninth Circuit's caseload, a representative from the AO reports that, in October 2005, the office developed an approximation of how appeals would have been divided between proposed new Ninth and Twelfth Circuits for the year ending June 30, 2005. During that one-year period, the Ninth Circuit, as currently structured, received a total of 15,717 filed appeals. Of those, the AO estimated that a total of 11,275 appeals from district courts and federal agencies were filed in what would be the new Ninth Circuit (under H.R. 4093 and S. 1845 , with the same boundaries established in S. 1296 and H.R. 3125 ) compared with 4,442 cases filed in what would be the Twelfth Circuit. This suggests that a new Ninth would have carried 71.7% of cases of the current Ninth Circuit, compared with 28.3% for a new Twelfth Circuit. The following analysis extends the AO's estimates of how appeals would have been divided among circuits for the year ending June 30, 2005âthe latest available AO projectionsâto all seven bills introduced in the 109 th Congress that would split the Ninth Circuit.

Estimated Caseloads Among Bills Introduced During the 109th Congress

As Figure 6 shows, the seven bills introduced in the 109 th Congress to split the Ninth Circuit would produce somewhat different caseload results, both compared with caseloads for the current Ninth Circuit, and for a new Ninth Circuit compared with proposed Twelfth or Thirteenth Circuits. Five of the bills produce a new Ninth Circuit, for the year ending June 30, 2005, that is each somewhat higher (based on authorized judgeships) than the caseload of the current Ninth Circuit during the same period. However, when the two temporary judgeships the bills designate for a new Ninth Circuit are included, estimated caseloads fall below current levels. Specifically, as Figure 6 shows, the caseload in the current Ninth Circuit is 561.3 appeals filed per authorized judge, whereas H.R. 4093 , S. 1296 , H.R. 211 , and S. 1301 âall of which propose the same boundaries for a new Ninth Circuitâwould produce an estimated 593.4 appeals for 19 authorized judges. S. 1845 , with the same boundaries for a new Ninth Circuit but with 20 authorized judgeships, would produce an estimated caseload of 563.8 appeals filed per judge in the new circuitâslightly higher than the current Ninth Circuit's caseload.

On the other hand, one bill ( H.R. 212 ) is estimated to reduce a new Ninth Circuit's caseload somewhat (to 542 cases per authorized judge ) compared with the current Ninth Circuit's caseload for the same period. Another bill ( H.R. 3125 ) would have reduced the Ninth Circuit's caseload substantially, producing an estimated caseload for a new Ninth Circuit of 469.8 appeals filed per authorized judge for the year ending June 30, 2005. This caseload would be less than the estimated caseload for the Twelfth Circuit. By contrast, the data suggest that six of the seven bills (all except H.R. 3125 ) would yield higher caseloads for the new Ninth Circuit than the projected caseloads for proposed Twelfth or Thirteenth Circuits.

Caseload estimates from other sources, conducted at other times or employing different methodologies, can produce somewhat different results. In his September 20, 2006, Senate testimony, Ninth Circuit Judge Sidney R. Thomas, who opposes a split, testified "using calendar 2005 figures" that under S. 1845 , caseload for judges in a new Ninth Circuit would have been 526 cases per judgeship, compared with 316 cases per judgeship for the Twelfth Circuit. Judge Thomas also suggested that "allocation of cases per judgeship does not tell the real story" because new Ninth Circuit judgeships could initially be unfilled, dramatically increasing caseloads for judges who are serving immediately after a split. By contrast, at the same hearing, relying on data for the year ending March 31, 2006, Chief District Judge John Roll, who supports a split, testified that under a two-way split proposed in S. 1845 , a new Ninth Circuit would have yielded 518 cases per active judgeship, compared with 351 cases per active judgeship for a Twelfth Circuit. Ninth Circuit Judge Richard Tallman, who supports a split, found that a new Ninth Circuit would yield 495 cases per active judge, compared with 341 for those active judges in a Twelfth Circuit.

The Influence of Context on Caseloads

The quantitative data presented throughout this report provide information about how many cases each circuitâunder current proposals and assuming that all judgeships are filledâwould carry. Context (e.g., complexity, types of cases courts handle, and additional vacancies) could also play a role in caseload considerations. As the following section explains, immigration cases are particularly prominent in the Ninth Circuit.

Caseload and Immigration Cases . Opponents of a split say that the Ninth Circuit's backlog of cases has been temporarily increased by the large number of administrative petitions from Board of Immigration Appeals (BIA) cases, slowing the court's overall work. According to the AO, as of October 2005, 41% of Ninth Circuit filings were BIA appeals, and 88% of those were filed in California. In 2005, Ninth Circuit Judge Sidney R. Thomas, who opposes a split, testified that from 2001 to 2005 (through June 30), BIA appeals for the circuit had increased 570%, but added that, "while the courts can expect continued volume [of BIA appeals] for the next several years, the volume of immigration cases should decrease as the BIA becomes current in its case processing." Judge Thomas also said that centralized circuit staff resolve "well over 80 percent" of immigration petitions before they reach judges, and added that although many BIA appeals take time to resolve, much of the delay is due to what he sees as slow government filings, not the Ninth Circuit itself.

On a related note, during the spring of 2006, Congress considered proposals to transfer immigration appeals from the regional circuit courts to the Court of Appeals for the Federal Circuit or another entity. On April 3, 2006, the Senate Judiciary Committee held hearings on immigration litigation reform, which briefly addressed a proposed Ninth Circuit split. In response to a question from Senator Jeff Sessions, Ninth Circuit district judge John M. Roll stated his opinion that centralizing immigration appeals outside the regional circuits would not, on its own, alleviate the need to split the Ninth Circuit. Writing in The National Law Journal before the hearing, Judge Roll called for centralizing immigration appeals and splitting the Ninth Circuit to reduce the circuit's caseload. According to Judge Roll, if S. 1845 or H.R. 4093 were adopted, and all BIA appeals were transferred to the Federal Circuit, "the new 9 th Circuit would keep 60% of the current 9 th Circuit caseload and have 61% of the judges allotted to the new 9 th and 12 th circuits. The new 12 th Circuit would have 40% of the current caseload and 39% of the allotted judges." The Judicial Conference reportedly opposed centralizing immigration appeals, and some observers opposed to centralizing immigration litigation reportedly believed that the move, in part, was an attempt to reduce the Ninth Circuit's influence on immigration law.

How Quickly the Circuit Disposes of Cases

In FY2005, the Ninth Circuit disposed of cases in a median of 16.1 months after filing, ranking it last among the 12 circuits (see Table 3 ). Those favoring a split contend that this length of time is another indicator that the Ninth Circuit is too big and has too much work. Opponents of a split argue that the current Ninth Circuit functions well given its heavy caseload, and that its judges and large, experienced staff are essential in doing so. Potential mitigating factors, such as the type or complexity of cases filed, or the contention by many Ninth Circuit judges that the court reaches decisions quickly once judges hear cases, could also affect caseload considerations. Writing jointly in the March 2006 edition of Engage (a journal published by the Federalist Society), more than 30 Ninth Circuit judges argued that, although backlogs delay consideration of cases in the Ninth Circuit, "once the cases are submitted to the judges, we are the second- fastest among the circuits in disposing of them."

Cost of Splitting the Circuit

Opponents of a split say that administrative costs associated with splitting the Ninth Circuit and establishing new headquarters, staff support, and related administrative expenses in the proposed Twelfth Circuit (or Twelfth and Thirteenth Circuits) are unnecessary and would strain limited financial resources. Those who favor a split generally concede that there will be short-term costs associated with dividing the circuit, but suggest that long-term savings and improved judicial administration will outweigh those costs.

Cost estimates for splitting the Ninth Circuit vary depending on the source and level of detail. In October 2005, the AO estimated that if a Twelfth Circuit's headquarters were located in Phoenix (as specified in S. 1296 and S. 1845 ), the startup cost would be more than $94 million, and annual recurring costs would be more than $10 million. If the Twelfth's headquarters were in Seattle (another site discussed as a possible headquarters), the AO estimated that the expense would be substantially lessâmore than $12 million in startup costs, with $7 million in annual recurring costs. The Phoenix-versus-Seattle estimates reportedly vary largely because of costs associated with constructing a new headquarters facility versus renovating an existing one.

In another estimate, the Congressional Budget Office (CBO) stated that establishing a headquarters for a Twelfth Circuit "could range from about $20 million to over $80 million over the 2006-2010 period," depending on the location of the new headquarters and whether an existing facility would be renovated or a new facility constructed. CBO estimated that staff expenses for the Twelfth Circuit, such as relocation costs, severance pay for staff who did not relocate, and equipment, could require "$6 million in fiscal year 2006 and $28 million over the 2006-2010 period." Research conducted for this report reveals no publicly available cost estimates for a Thirteenth Circuit.

En Banc Procedures

Proponents of a split generally argue that the Ninth Circuit is too large to hold effective en banc hearings. En banc hearings in other circuits typically involve all a court's active judges, and are normally reserved for cases in which the full court wishes to reconsider the opinion of a three-judge appellate panel. Unlike other circuits, though, the Ninth Circuit employs a "limited en banc " procedure, which, until January 2006, allowed 11 judges (rather than the entire court) to serve as a full en banc panel. Proponents of a split contend the Ninth Circuit's reliance on limited en banc procedures allows a minority of judges to speak for the entire court. According to Ninth Circuit judge Andrew Kleinfeld (testifying in October 2005), who supports a split, "When the full court purports to speak, it doesn't.... A majority of an en banc panelâsix judgesâis not even one-fourth of the full court when fully staffed." Although noting that the limited en banc procedure "has a number of virtues," Ninth Circuit Judge Pamela Ann Rymer wrote in March 2006 that "[T]here is a systematic flaw in the limited en banc concept that is not without consequence. The limited en banc is premised at least in part on the notion that some number of judges smaller than the whole can represent the entire court. However, the premise is in inapposite to the judiciary." Some supporting a split also contend that limited en banc Â decisions might have changed if different judges had been assigned to en banc panels, therefore potentially producing inconsistent circuit rulings.

Ninth Circuit Chief Judge Mary M. Schroeder announced on October 1, 2005, that beginning on January 1, 2006, the circuit would increase the size of en banc panels from 11 to 15 judges. According to Chief Judge Schroeder, although she has been satisfied with the 11-judge panels, the decision to increase panel size was "intended to respond to criticism that we should have a majority of our judges sit on each en banc [panel]." According to a court staff member, the first enlarged en banc panels began hearing cases in March 2006.

Opponents of a split contend that the en banc issue is not a major concern because so few of the court's cases are appealed for rehearing en banc . According to Judge Sidney R. Thomas, who serves as the Ninth Circuit's en banc coordinator and opposes a split, "Out of 5,783 cases decided in the Ninth Circuit between September 2003 and September 2004, only 13 (or .2%) were reheard en banc. This experience is consistent with the practices of other circuits." Judge Thomas challenged claims that the views of en banc panels are unrepresentative of the entire circuit, saying that "very few decisions made by the en banc panels involved close votes," and that the circuit's Evaluation Committee has been satisfied that en banc opinions are representative of the entire circuit. Judge Thomas also stated that, although en banc panels currently do not include the entire court, voting on whether a matter should be granted an en banc hearing is still open to all active judges on the circuit, and that any active or senior judge may request an en banc hearing.

The Circuit's Rulings

Some of the Ninth Circuit's rulings have, on occasion, been controversial. Recently, the circuit's rulings on social issues (e.g., holding in 2002 that the phrase "under God" in the Pledge of Allegiance violated the Constitution) have reportedly fueled opposition to the circuit. Some proponents of a split also say that some Ninth Circuit rulings do not represent the conservative political culture of much of the western United States, reflecting what some observers perceive as a division between California and much of the rest of the circuit.

Proponents of splitting the Ninth Circuit also contend that the Supreme Court reverses the Ninth Circuit, often unanimously, more frequently than any other circuit court. For the 2004 term (which ended in 2005), of 43 Supreme Court reversals for the circuit courts, 12 reversed the Ninth Circuitâmore than any other circuit. Opponents of a split respond that only a small fraction of the circuit's rulings are granted review by the Supreme Court, and that Ninth Circuit reversals are not dramatically different than reversal rates for other circuits in recent years. Similarly, some opposed to splitting the Ninth Circuit also suggest that efforts to divide the circuit threaten judicial independence. Supporters of splitting the circuit deny that position. For example, Ninth Circuit Judge Diarmuid O'Scannlain testified in October 2005 that "the case for the split stands on the grounds of effective judicial administration, supported by the statistics which show the ongoing caseload explosion."

At the September 2006 Senate Judiciary Committee hearing, former Senator and California Governor Pete Wilson suggested that a split would not necessarily create a conservative Twelfth Circuit any time in the near future, since the new circuit would presumably adopt precedents of the current Ninth Circuit. According to Governor Wilson, "[A]ny change will be so gradual and time-consuming as to not likely be noticed much in our own lifetimes." Governor Wilson also noted his continued opposition to splitting the Ninth Circuit.

Judges' Opinions on a Split

Although a few Ninth Circuit judges vocally support a split, the majority of the court's active judges reportedly do not. Since late 2005, however, public statements from some judges suggested possible divisions on the split issue between most active circuit judges on one hand, and some retired circuit judges and district judges on the other. According to Ninth Circuit Chief Judge Mary Schroeder, in April 2004, Ninth Circuit judges held a retreat to discuss splitting the circuit, followed by "a mail ballot" to the judges on the court. Judges were asked to select from three options: "(1) oppose a division of the Ninth Circuit; or (2) favor a division of the Ninth Circuit; or (3) abstain from voting." In a May 5, 2004, letter to members of the Senate Judiciary Committee, Judge Schroeder reported the results:

The Court currently has a total of 47 judges serving on the court, 26 active judges and 21 senior judges, plus two vacancies. The vote concluded on April 30, 2004. Of the 47 judges, 30 judges voted in opposition to circuit division, nine voted in favor of circuit division and eight judges abstained from voting. Of the 26 active judges, only four active judges favor division, fifteen active judges oppose division, and six active judges abstained from voting. Of the 21 senior judges, fifteen senior judges oppose circuit division, five senior judges favor division, and two senior judges abstained.

As was noted previously, more than 30 Ninth Circuit judges wrote a joint Engage article in March 2006 arguing against a split. Chief Judge Schroeder also reiterated many of her objections to a split during remarks at the July 2006 Ninth Circuit Judicial Conferenceâa gathering of the circuit's judges, court employees, agency representatives, and attorneys. According to Judge Schroeder, "If the United States Senate Judiciary Committee is seriously considering the subject [of a split], we deserve a full, fair and adequately noticed opportunity to explain why so many of us think it is a bad idea, to look at its real costs, the imbalance in caseload it would produce, as well as its implications for law enforcement at the border."

Ninth Circuit judge Carlos Bea has also reportedly raised concerns about a split shifting all sitting Latino judges to a new Ninth Circuit. According to an Arizona Republic Â columnist who wrote in October 2006 that Judge Bea contacted him about the split, the judge was concerned "that Arizona would no longer have any Latino judges on its new court. All six Latinos on the current court would probably end up in the reconfigured 9 th Circuit." If the President chose to do so, factors such as race, ethnicity, or gender could be used in filling the additional five seats most bills propose for a new Ninth Circuit, or for future Twelfth Circuit appointments.

Those against a split say that opposition from the majority of the circuit's judges is one of the most compelling arguments in favor of keeping the circuit intact. In addition, several state and local bar associations housed in the Ninth Circuit reportedly oppose a split. The same is true for a group of more than 350 law professors, a coalition of environmental organizations, coordinated by Earthjustice, and other groups. (By contrast, the U.S. Chamber of Commerce is supporting S. 1845 , which would split the circuit.) In October 2005, the U.S. Judicial Conference "agreed not to take a position" on bills proposing to split the Ninth, but also stated that "consideration of splitting the Ninth Circuit should be independently based on the circuit split issue alone and not driven by possible linkage of that issue to a judgeship bill," an apparent reference to the judgeship provisions contained in H.R. 4093 .

Some who support a split suggest that district judges within the Ninth Circuit would not necessarily oppose a split. District Judge John M. Roll, who maintains chambers in Arizona, testified in 2005 that "Notwithstanding statements to the contrary, I am aware of no overwhelming opposition to a circuit split among Ninth Circuit district judges.... My perception is that there is much support for a split of the circuit among district judges, particularly among the judges of the proposed new Twelfth Circuit." On June 29, 2006, a group of 24 Ninth Circuit judgesâmany of whom are retired circuit judges or active district judgesâwrote to Senate Judiciary Committee chairman Arlen Specter urging hearings and "ultimate passage" of S.Â 1845 .

On a related note, at the September 20, 2006, Senate Judiciary Committee hearing, Rachel L. Brand, Assistant Attorney General for Legal Policy, testified that the U.S. Justice Department "supports legislation providing for additional federal judgeships and for a split of the [Ninth Circuit]." According to Brand, DOJ supports a split because of concerns regarding "the efficient administration of justice generally" and sometimes long delays in cases in which the federal government is a party. During hearing questioning, Senator Dianne Feinstein noted that the Justice Department has previously opposed splitting the circuit, and requested additional information about DOJ's current position.

Analysis: Potential Impacts of Splitting the Ninth Circuit

Congress has, thus far, chosen to leave the Ninth Circuit intact. The impact of splitting the Ninth Circuit would likely vary depending on the final boundaries of a split and related provisions, such as changes in the number of authorized judges, or other day-to-day realities encountered by judges, staff, and litigants operating in a reorganized Ninth Circuit, that cannot be anticipated. As noted previously, the debate over splitting the Ninth Circuit generally focuses on six areas: (1) geography and population, (2) judgeships and caseloads, (3) how quickly the circuit disposes of cases, (4) cost of splitting the circuit, (5) en banc procedures, and (6) the circuit's rulings. Analysis suggests that splitting the Ninth Circuit would have different effects on each of these sixÂ areas.

Geography and Population

History suggests that the Ninth Circuit's population is likely to continue increasing. All seven bills introduced during the 109 th Congress would reduce the number of states, geographic area, and population in proposed new Ninth, Twelfth, or Thirteenth Circuits compared with the current Ninth Circuit. As explained above, six of seven bills introduced in the 109 th Congress (all except H.R. 212 ) would create a new Ninth Circuit including California, Guam, Hawaii, and the Northern Mariana Islands, which, in 2004, included an estimated 37 million people. Currently, the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) is the second-most-populous circuit, with a 2004 estimated population of more than 31 million. By contrast, the current Ninth Circuit includes approximately 58 million people.

Therefore, creating a new Ninth Circuit that included only California, Guam, Hawaii, and the Northern Mariana Islands would remove approximately 20 million people in the Mountain West and Pacific Northwest from the current Ninth Circuit and place them in proposed Twelfth or Thirteenth Circuits. A new Ninth Circuit would still be the nation's most populous circuit, although its population would be closer to other circuits than is the current Ninth Circuit's population. A new Ninth Circuit including only California, Guam, Hawaii, and the Northern Mariana Islands would be the only circuit including just two states (California and Hawaii), although it would house more total jurisdictions (states and territories) than some other circuits.

Judgeships and Caseloads

Those who oppose splitting the circuit generally believe that a caseload disparity between reorganized circuits would unfairly increase work for judges remaining in a new Ninth Circuit, while creating smaller caseloads for judges in proposed Twelfth or Thirteenth Circuits. Proponents of a split point out that California would receive additional permanent and temporary judgeships to aid the new Ninth's caseload, and contend that states located in the rest of the circuit should not be bogged down by the large number of cases originating in California.

Analysis of the latest available estimates (for the year ending June 30, 2005) suggests that under six of seven bills introduced during the 109 th Congress, caseloads (i.e., filed appeals per authorized judgeship) in proposed Twelfth or Thirteenth Circuits would have been lower than caseloads in a new Ninth Circuit (as shown in Figure 6 ), although two bills ( H.R. 212 and H.R. 3125 ) would have also produced lower caseload estimates (based on authorized judgeships) for a new Ninth Circuit than for the current Ninth Circuit. If two temporary judgeships designated for a new Ninth Circuit are included, all seven bills would have yielded caseload estimates below current levels. One bill ( H.R. 3125 ) would have produced a higher estimated caseload in a Twelfth Circuit than in a new Ninth Circuit. Unlike the other six bills introduced during the 109 th Congress to split the Ninth Circuit, H.R. 3125 would provide rough caseload parity between proposed new Ninth and Twelfth Circuits. Qualitative factors, such as the complexity of cases circuits handle, types of cases, and other factors, could also affect caseloads and, as the next section discusses, how quickly circuits dispose of cases.

How Quickly the Circuits Would Dispose of Cases

Although the Ninth Circuit took a median of more than 16 months to dispose of cases in FY2005, it also faced the second-highest per-judge caseload in the nation. By contrast, the Sixth Circuit in FY2005 carried a comparatively small 325.7 filed appeals for each of its 16 authorized judges, but took almost as long as the Ninth Circuitâa median of 14.5 monthsâto dispose of those cases. At the same time, the Eleventh and Fifth Circuitsâcreated in 1981 from the old Fifth Circuitâboth had high caseloads in FY2005, but disposed of those cases faster than virtually any other circuit court (see Table 3 ). These findings suggest that there is not necessarily a uniform relationship between the number of filed appeals per authorized judgeship and the speed with which those cases are resolved. It is unclear whether a new Ninth, Twelfth, or Thirteenth Circuit would necessarily dispose of cases faster than the current Ninth Circuit.

Cost of Splitting the Circuit

As explained previously, depending on source and level of detail, estimated costs for splitting the Ninth Circuit vary widely. AO and CBO cost estimates suggest that start-up costs for a split could range between $20 million and $94 million, plus annual recurring costs and costs related to additional judgeships. Those estimates also suggest that renovating existing courthouses, rather than constructing new facilities, could be a way to limit costs. In addition to facilities, administrative expenses are likely to influence cost estimates.

En Banc Procedures

None of the legislation currently before Congress proposing to split the Ninth Circuit would alter en banc procedures. Under P.L. 95-486 , any circuit with more than 15 active judges may devise rules to sit en banc without all the circuit's active judges. A Twelfth Circuit (and Thirteenth Circuit under H.R. 211 and S. 1301 ) would presumably sit en banc with all authorized judges because none of the bills splitting the Ninth Circuit authorizes more than 14 judges for the Twelfth Circuit (or Thirteenth Circuit). By contrast, all bills introduced during the 109 th Congress that would split the Ninth Circuit authorize at least 19 judges for a new Ninth Circuit, meaning that a new Ninth would still be allowed to employ a limited en banc procedure if the court chose to do so. If Congress wanted to curtail the use of limited en banc procedures, or require minimum numbers of judges to sit on en banc panels, legislative action would be necessary. On March 2, 2005, Representative Michael Simpson introduced H.R. 1064 , which would prohibit the Ninth Circuit from employing the limited en banc procedure. The bill was referred to committee on April 4, 2005, but has not been acted upon since.

The Circuit's Rulings

The degree to which the current Ninth Circuit's rulings motivate calls for a split is hotly debated. Those opposed to a split generally contend that attempts to divide the circuit threaten judicial independence by separating conservative areas of the Mountain West or Pacific Northwest into their own circuit or circuits. Supporters of a split reject that argument, saying that their efforts to split the circuit are based on administrative concerns.

If the current Ninth Circuit were split, three-judge appellate panels, whose members would be drawn from around the circuit, would still hear most cases (all except those heard en banc ). If the circuit were split before January 2009, President George W. Bush would be authorized to make nominations for the additional judgeships each bill specifies, although the appointing president is not necessarily an indication of how particular judges might rule. Some observers caution that a new Ninth would be more "liberal" than the current court allegedly is, because there would be little geographic diversity in a reorganized Ninth Circuit compared with the current Ninth Circuit. Overall, it is unclear how splitting the Ninth Circuit would impact rulings in a new Ninth, Twelfth, or Thirteenth Circuits.

Concluding Comments

Proposals to split the Ninth Circuit introduced during the 109 th Congress are the latest in a decades-long debate over the circuit's future. Recent events suggest that the debate continues today, making the future of current legislative proposals uncertain. During the first session of the 109 th Congress, language splitting the circuit (incorporated into H.R. 4241 from H.R. 4093 ) passed the House as part of the budget reconciliation process, but was dropped in the Senate. Senate Judiciary Committee Chairman Arlen Specter and Ranking Member Patrick Leahy objected to first-session attempts to split the circuit as part of the budget reconciliation process. Senator Dianne Feinstein also stated prior to December 2005 conference negotiations on the Deficit Reduction Actâwhich, as passed by the House, would have split the Ninth Circuitâthat she would object to the language by invoking the Senate's "Byrd rule," which can be used to strike "extraneous matter in reconciliation matters." During the second session, there has been no official legislative action on H.R. 4093 in the House beyond reporting the bill from committee, and placing it on the Union Calendar. The FY2007 budget resolution agreed to by the House ( H.Con.Res. 376 ) reportedly "assumes the 9 th U.S. Circuit Court of Appeals will be reorganized and additional judgeships createdâreviving a battle from last year's budget." The Senate Judiciary Committee held a hearing on S. 1845 on September 20, 2006. That hearing echoed many of the same themes, and featured some of the same witnesses, as other recent hearings on splitting the Ninth Circuit. As of this writing, there has been no additional legislative action on proposals to split the Ninth Circuit.

In the 109 th Congress, these two billsâ H.R. 4093 in the House, and S. 1845 in the Senateâhave received the most legislative and media attention. H.R. 4093 was the focus of first-session attention, while Senate action on S. 1845 has commanded more attention during the second session. As Table 1 shows, both bills offer substantially similar revisions of the Ninth Circuit. The major difference between the bills is that H.R. 4093 does more than simply reorganize the Ninth Circuit. The bill also authorizes more than 60 additional judgeships throughout the nation, and creates an Article III court in the U.S. Virgin Islands (a topic not addressed in this report). By contrast, S. 1845 concentrates solely on splitting the Ninth Circuit, adding judgeships only in a new Ninth Circuit.

History suggests that if Congress maintains the status quo for the Ninth Circuit, the issue will likely remain active. Several Members of Congress reportedly remain interested in splitting the circuit, and proponents of a split argue that rapid population growth in the current Ninth Circuit will only exacerbate the court's alleged management challenges. Many proponents of a split view dividing the circuit as "inevitable," with only the timing of a division and some details remaining uncertain. Others are equally determined to oppose dividing the circuit, asserting that a split is not a solution to perceived problems, and that the Ninth Circuit continues to function effectively.

The data and analysis presented throughout this report suggest that splitting the Ninth Circuit would have different impacts in different areas common to the debate over the circuit's future, such as caseload, cost, and en banc procedures. In some cases, the impact of splitting the circuit is unclear. In every case, the impact of splitting the Ninth Circuit would vary with context. Each dimension of the debate over splitting the Ninth Circuit offers Congress potential benchmarks to consider in deciding whether to split the Ninth Circuit or maintain the status quo. Different measures of the concepts discussed here, or different variables altogether, might produce alternative findings to the analysis presented in this report.

Appendix. Major Provisions of Legislation Introduced During the 109th Congress That Would Split the Ninth Circuit Court of Appeals