    [Senate Hearing 106-681]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 106-681

     REVIEW OF THE REPORT BY THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR
    THE FEDERAL COURTS OF APPEALS REGARDING THE NINTH CIRCUIT AND THE NINTH
                           CIRCUIT REORGANIZATION ACT

    =======================================================================

                                    HEARING

                                   before the

            SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED SIXTH CONGRESS

                                 FIRST SESSION

                                       on

                                     S. 253

    A BILL TO PROVIDE FOR THE REORGANIZATION OF THE NINTH CIRCUIT COURT OF
                        APPEALS, AND FOR OTHER PURPOSES

                                   __________

                                 JULY 16, 1999

                                   __________

                              Serial No. J-106-37

                                   __________

             Printed for the use of the Committee on the Judiciary

                        U.S. GOVERNMENT PRINTING OFFICE
    66-528 CC                   WASHINGTON : 2000

                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman

    STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
    CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
    ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
    JON KYL, Arizona                     HERBERT KOHL, Wisconsin
    MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
    JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
    SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
    JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
    BOB SMITH, New Hampshire

                 Manus Cooney, Chief Counsel and Staff Director

                      Bruce Cohen, Minority Chief Counsel

                                     ______

            Subcommittee on Administrative Oversight and the Courts

                      CHARLES E. GRASSLEY, Iowa, Chairman

    JEFF SESSIONS, Alabama               ROBERT G. TORRICELLI, New Jersey
    STROM THURMOND, South Carolina       RUSSELL D. FEINGOLD, Wisconsin
    SPENCER ABRAHAM, Michigan            CHARLES E. SCHUMER, New York

                           Kolan Davis, Chief Counsel

                     Matt Tanielian, Minority Chief Counsel

                                      (ii)

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Charles E., U.S. Senator from the State of Iowa...     1
    Feinstein, Hon. Dianne, U.S. Senator from the State of California     5
    Kyl, Hon. Jon, U.S. Senator from the State of Arizona............    11
    Torricelli, Hon. Robert G., U.S. Senator from the State of New
      Jersey.........................................................    24

                        CHRONOLOGICAL LIST OF WITNESSES

    Statement of Hon. Frank Murkowski, U.S. Senator from the State of
      Alaska.........................................................     7
    Statement of Hon. Slade Gorton, U.S. Senator from the State of
      Washington.....................................................     9
    Statement of Hon. Richard Bryan, U.S. Senator from the State of
      Nevada.........................................................    20
    Statement of Hon. Harry Reid, U.S. Senator from the State of
      Nevada.........................................................    22
    Statement of Ronald L. Olson from Munger, Tolles & Olson LLP, Los
      Angeles, CA....................................................    28
    Statement of Hon. Procter Hug, Jr., chief judge, U.S. Court of
      Appeals for the Ninth Circuit; Hon. Pamela Ann Rymer, circuit
      judge, U.S. Court of Appeals for the Ninth Circuit, and member,
      Commission on Structural Alternatives for the Federal Courts of
      Appeals; Hon. Andrew J. Kleinfeld, circuit judge, U.S. Court of
      Appeals for the Ninth Circuit; Hon. Diarmuid F. O'Scannlain,
      circuit judge, U.S. Court of Appeals for the Ninth Circuit;
      Hon. Charles E. Wiggins, senior judge, U.S. Court of Appeals
      for the Ninth Circuit; and Hon. William Browning, judge, U.S.
      District Court for the District of Arizona.....................    41

                    ALPHABETICAL LIST AND MATERIAL SUBMITTED

    Browning, Hon. William: Testimony................................   126
    Bryan, Hon. Richard: Testimony...................................    20
    Gorton, Hon. Slade: Testimony....................................     9
    Grassley, Hon. Charles E.:
        Prepared statements of:
            Justice Byron White......................................     3
            Assistant Attorney General Eleanor D. Acheson............   118
    Hug, Hon. Procter, Jr.:
        Testimony....................................................    41
        Prepared statement...........................................    44
        ``Analysis of the Final Commission Report,'' by Chief Judge
          Procter Hug, Jr............................................    49
    Kleinfeld, Hon. Andrew J.:
        Testimony....................................................    79
        Prepared statement...........................................    82
    Kyl, Hon. Jon: Letter from Senator Kyl to Justice Byron White,
      dated Nov. 6, 1998.............................................    14
    Murkowski, Hon. Frank: Testimony.................................     7
    Olson, Ronald L.:
        Testimony....................................................    28
        Prepared statement...........................................    35
    O'Scannlain, Hon. Diarmuid F.:
        Testimony....................................................    87
        Prepared statement...........................................    91
            Attachments..............................................    98
    Reid, Hon. Harry: Testimony......................................    22
    Rymer, Pamela Ann:
        Testimony....................................................    59
        Prepared statement...........................................    63
            Exhibit A: Various letters...............................    70
    Wiggins, Hon. Charles E.:
        Testimony....................................................   113
        Prepared statement...........................................   114

                                    APPENDIX
                              Proposed Legislation

    S. 253, a bill to provide for the reorganization of the Ninth
      Circuit Court of Appeals and for other purposes................   135

                             Questions and Answers

    Responses of Ronald L. Olson to questions from Senator Grassley..   150
    Responses of Procter Hug, Jr. to questions from Senators:
        Grassley.....................................................   151
        Thurmond.....................................................   152
    Responses of Andrew J. Kleinfeld to questions from Senator
      Grassley.......................................................   152
    Responses of Diarmuid F. O'Scannlain to questions from Senator
      Grassley.......................................................   154
    Responses of Charles E. Wiggins to questions from Senator
      Grassley.......................................................   156
    Response of Jon P. Jennings, Acting Assistant Attorney General,
      to a question from Senator Grassley............................   156

                     Additional Submissions for the Record

    Letters submitted by Senator Feinstein from:
        Therese M. Stewart, Los Angeles County Bar Association, to
          Senator Feinstein, dated Apr. 14, 1999.....................   158
        Lee Smalley Edmon, Los Angeles County Bar Association, to
          Senator Feinstein, dated Apr. 16, 1999.....................   159
        Governor Pete Wilson to Senator Hatch, dated Apr. 15, 1999...   160
        Raymond C. Marshall, president, the State Bar of California,
          to Senator Feinstein, dated May 17, 1999...................   161
        Gray Davis, State capital, Sacramento, CA, to Senator
          Feinstein, dated July 7, 1999..............................   162
    Letters to Senator Grassley from:
        James R. Browning, U.S. Court of Appeals of the Ninth
          Circuit, dated July 21, 1999...............................   163
        Peter W. Davis from Crosby, Heafey, Roach & May, dated
          July 13, 1999..............................................   165
        Tony Knowles, Governor, State of Alaska, dated July 13, 1999.   166
        James A. Redden, U.S. District Court of Oregon, dated July
          13, 1999...................................................   167
        Bob Packwood, Sunrise Research, dated July 15, 1999..........   168
        Joseph F. Weis, Jr., U.S. Court of Appeals for the Third
          Circuit, dated July 30, 1999...............................   168
            ``Nine Divided by Three a Formula for Unification?'' by
              Joseph F. Weis, Jr.....................................   169
    Ronald L. Olson from Munger, Tolles & Olson LLP, dated Aug. 19,
      1999...........................................................   174
    Prepared statements of:
        Hon. Gordon H. Smith, U.S. Senator from the State of Oregon..   174
        Prof. Arthur D. Hellman......................................   175
        Daniel J. Meador, James Monroe Professor of Law Emeritus,
          University of Virginia.....................................   184
        Joseph T. Sneed, III.........................................   188
        Circuit Judge David R. Thompson..............................   192

     REVIEW OF THE REPORT BY THE COMMISSION ON STRUCTURAL ALTERNATIVES FOR
    THE FEDERAL COURTS OF APPEALS REGARDING THE NINTH CIRCUIT AND THE NINTH
                           CIRCUIT REORGANIZATION ACT

                                  ----------

                             FRIDAY, JULY 16, 1999

                               U.S. Senate,
           Subcommittee on Administrative Oversight
                                            and the Courts,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:31 a.m., in
    room SD-628, Dirksen Senate Office Building, Hon. Charles E.
    Grassley (chairman of the subcommittee) presiding.
        Also present: Senators Sessions, Torricelli, and Feinstein.

     OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR
                         FROM THE STATE OF IOWA

        Senator Grassley. I want to take this opportunity at the
    start of this meeting to welcome everybody to this meeting and
    take care of a few housekeeping matters to expedite everybody
    so that they can use their time allotment very expeditiously.
    All written statements will be entered into the record, so I
    would urge witnesses to summarize, especially since we have so
    many on this issue who want to speak.
        Normally, we would limit our witnesses to 5 minutes each,
    but I have expanded it to 10 minutes for our Senators and our
    judges. This is with an acknowledgment that more time would be
    necessary to discuss the White Commission Report and the year
    that it took to put together this report.
        Witnesses should also expect to receive written follow-up
    questions because I doubt if all the members of the committee
    are going to be able to be here, especially since we have a
    vote scheduled at 10:30 a.m. And I would expect responses to
    the written questions to be received by the committee 2 weeks
    after receipt by the panelists.
        In addition, the judges' panel was scheduled to be our
    second panel. However, because Ronald Olson from the fourth
    panel must attend a funeral of a close friend, we will hear
    from him after the panel of Senators is finished.
        I want to say that I am very happy to hold this hearing
    today to receive the final report of the Commission on
    Structural Alternatives for the Federal Courts of Appeals and
    the Federal Ninth Circuit Reorganization Act of 1999. The
    report, which was released by the Commission last December,
    proposes organizing the Ninth Circuit Court of Appeals into
    three regional divisions, while keeping the administration of
    the circuit intact.
        At the beginning of this Congress, Senators Murkowski and
    Gorton introduced S. 253, the Federal Ninth Circuit
    Reorganization Act of 1999, which is based upon the
    recommendations of the Commission's report. In addition to the
    reorganization of the Ninth Circuit, S. 253 also follows the
    Commission's proposals that would allow other circuits to adopt
    measures to deal with the growing caseloads.
        Circuits would have the option of reorganizing themselves
    into adjudicative regions in a similar manner, using two-judge
    panels instead of the current three-judge panels in deciding
    appeals, and establishing a district court appellate panel for
    hearing certain categories of appeals.
        I am not going to finish my statement at this point because
    it is very statistical and very factual, and so I am going to
    just put most of my statement in the record.
        [The prepared statement of Senator Grassley follows:]

               Prepared Statement of Senator Charles E. Grassley

        Good Morning and welcome to our hearing today on the final report
    of the Commission On Structural Alternatives for the Federal Courts of
    Appeals and the Federal Ninth Circuit Reorganization Act of 1999. The
    report, which was released by the Commission last December, proposes
    organizing the Ninth Circuit Court of Appeals into three regional
    divisions while keeping the administration of the circuit intact. At
    the beginning of this Congress, Senators Murkowski and Gorton
    introduced S. 253, ``The Federal Ninth Circuit Reorganization Act of
    1999,'' which is based upon the recommendations of the Commission
    report. In addition to reorganizing the Ninth Circuit, S. 253 also
    follows the Commission's proposals that would allow other circuits to
    adopt measures to deal with growing case loads.
        Circuits would have the option of reorganizing themselves into
    adjudicative regions in a similar manner, using two judge panels
    instead of the current three judge panels in deciding appeals, and
    establishing a district court appellate panel for hearing certain
    categories of appeals.
        Although the Commission looked at all of the circuits, the heart of
    both the Commission's report and S. 253 deals with the Ninth Circuit.
    Of the thirteen circuits in the federal judicial system, the Ninth
    Circuit is currently the largest in terms of geographic size, number of
    judgeships and caseload. The Ninth Circuit currently covers nine states
    and over 50 million people. In contrast, the east coast of the United
    States is divided up into five circuits. The Ninth Circuit is allocated
    28 judgeships, nine more judgeships than the Fifth Circuit, the next
    largest. Finally, the Ninth Circuit has a case load of over 8,500
    appeals, almost double the average number of appeals for all other
    circuits.
        Due to the Ninth Circuit's large size, bills advocating splitting
    the circuit have been introduced as early as the 1940s. In 1973, the
    Commission on Revision of the Federal Court Appellate System, known as
    the Hruska Commission, recommended that Congress split both the Fifth
    and Ninth Circuits. Though the Commission's proposals were not enacted,
    Congress did split the Fifth Circuit in 1981. However, it left the
    Ninth Circuit intact. But the issue has remained very much alive.
    Proposals to split the Ninth Circuit have been frequent throughout the
    late 1980s and early 1990s. At the same time, two reports, the 1990
    Report of the Federal Courts Study Committee and the 1995 Long Range
    Plan for the Federal Courts, have recommended against splitting the
    Ninth Circuit.
        In 1995 legislation was once again introduced to split the Ninth
    Circuit, and was taken up again in the 105th Congress. As part of a
    compromise that many of us here were involved with, Congress authorized
    a commission to study ``the structure and alignment of the Federal
    Court of Appeals system, with particular reference to the Ninth
    Circuit.'' In December 1998, the Commission released its final report
    recommending dividing the Ninth Circuit into regional divisions as an
    alternative to a circuit split.
        Deciding how to deal with the Ninth Circuit and the structure of
    the United States appellate system in general is a very difficult and
    delicate issue. Many people, including apparently a majority of the
    judges on the Ninth Circuit, feel that the circuit is doing an adequate
    job of adapting itself to the problems presented by its size and
    increasing case load. Others feel that the circuit is too large and
    unwieldy to function properly. They argue that the number of judges on
    the circuit prevents the court from deciding appeals in a timely
    manner, hinders judges from working together in a ``collegial'' manner,
    and prevents the court from performing its en banc function
    effectively. The 1996 Subcommittee Report on the Judicial Questionnaire
    I sent to the federal judges confirmed this split in opinion on whether
    or not the Ninth Circuit should be restructured.
        The Commission report and the legislation which we will discuss
    today offers a compromise in the debate over whether or not to split
    the Ninth Circuit. Instead of splitting the circuit, the suggestion is
    to divide it into smaller adjudicative divisions that would enable
    judges to function more effectively as a unit. This solution aims to
    keep the law of a significant part of the western region of United
    States both consistent and in one administrative unit, while solving
    the problems that size and caseload have presented.

        Senator Grassley. I will conclude by saying that I look
    forward to what our witnesses today have to say about the
    Commission's proposals. However, I am also interested in
    learning more about the proposed regional divisions and whether
    there are other alternatives to the current plan of dividing
    the State of California between two different regions.
        Before I turn to our witnesses today, I want to mention
    that although he is not here to testify, retired Supreme Court
    Justice White, who chaired the Commission, submitted written
    comments in support of this legislation. Those comments will be
    available for the record.
        [The prepared statement of Justice White follows:]

                   Prepared Statement of Justice Byron White

        My name is Byron White, safely until September in my home state of
    Colorado. I hope the Congressional representatives will welcome my
    written views about the subject matter that will be heard.
        Pamela Rymer, a very experienced Ninth Circuit Judge, is a member
    of the Commission, and will represent in person the Commission in a
    very competent way. Judge William Browning, also a Commission member
    and a district judge of the Ninth Circuit, will accompany Judge Rymer.
    Professor Daniel Meador, the Executive Director of the Commission, will
    present a written statement.
        In late 1997, Congress created the Commission on Structural
    Alternatives for the Federal Courts of Appeals. The statute specified
    that the Chief Justice should appoint its five members, and he promptly
    did so.\1\ The Commission began its work in early 1998, and it
    presented its recommendations in a final report to the Congress and the
    President, pursuant to its statutory mandate, on December 18, 1998.
    ---------------------------------------------------------------------------
        \1\ Commission members were Byron R. White, Chair; N. Lee Cooper,
    Vice-Chair; Gilbert S. Merritt; Pamela Ann Rymer; William D. Browning.
    The Commission was authorized to appoint an Executive Director. The
    Commission chose Professor Daniel J. Meador, a very competent
    selection. The statute also authorized the Federal Judicial Center and
    the Administrative Office of the United States Courts to serve the
    Commission, help that was essential.
    ---------------------------------------------------------------------------
        Although the creation of the Commission was prompted by
    Congressional difficulty in deciding how to resolve the long-standing
    debate over what, if anything, should be done about the Ninth Circuit,
    the Commission was also directed to study and make recommendations
    concerning the entire federal appellate system. In carrying out its
    charge, the Commission held public hearings in six cities, heard from
    dozens of witnesses, received dozens of written statements from others,
    and spent ten months of intensive study of the nationwide structure of
    our appellate courts, ``with particular reference,'' as the statute
    required, to the Ninth Circuit.
        This study led the Commission to two insights concerning the
    structure and functioning of the federal appellate courts, and those
    insights form the premises for the Commission's key recommendations.
    First, there is a significant distinction between a circuit and its
    court of appeals. Second, the magnitude and nature of future growth and
    changes in appellate business cannot be reliably predicted and will
    vary among circuits; therefore, the appellate courts should have a
    flexible authority to deal with such unforeseeable changes.
        The distinction between a circuit and a court of appeals is that a
    circuit is an administrative entity, whereas a court of appeals is an
    adjudicative body. Acting through its Judicial Council, each of the
    twelve regional circuits discharges a variety of administrative
    responsibilities concerning the federal courts and judges within its
    territory. A court of appeals, on the other hand, is concerned solely
    with deciding appeals from district courts within its circuit and from
    administrative agencies. In other words, problems of circuit
    administration are separable from problems of court of appeals'
    adjudication.
        Proceeding from that premise, the Commission found no
    administrative malfunctions in the Ninth Circuit sufficient to call for
    a division or realignment of the circuit. Thus, it recommended that the
    circuit be left intact as an administrative unit.
        But, the court of appeals in the Ninth Circuit presents a different
    picture. The court has 28 authorized judgeships and has requested more;
    it will undoubtedly need still more judges in the years ahead. From its
    study, the Commission concluded that an appellate court of that size,
    attempting to function as a single decisional entity, encounters
    special difficulties that will worsen with continued growth. These can
    be avoided by organizing the court into smaller decisional units (and
    without dividing the circuit). Thus the Commission recommended that the
    court be organized into three regionally based adjudicative divisions
    and that a court called the ``circuit division'' be established to
    resolve conflicting decisions among those divisions.
        The Ninth Circuit has been the subject of debate and intense
    controversy for many years. For that debate to continue year after year
    into the future is dysfunctional and damaging to the status of the
    federal judiciary in the public mind. If Congress does not accept the
    Commission's recommendations, it is left with two choices: do nothing
    or split the circuit. Under the circumstances, doing nothing would seem
    irresponsible. Splitting the circuit would have distinct disadvantages
    and is not necessary. The Commission's recommendations address the
    problems that many perceive in the court of appeals, while preserving
    the administrative advantages of leaving the circuit undivided.
        The Commission's other insight, leading to its second premise, is
    that the appellate system needs flexibility to deal effectively with
    future, unpredictable changes in the size and composition of the
    dockets. To this end, the Commission made three recommendations:

      (1) That Congress authorize each court of appeals with more than 15
        judgeships to organize itself into adjudicative divisions, with a
        ``circuit division'' to resolve inter-divisional conflicts;

      (2) That Congress authorize each court of appeals to decide appeals
        through two-judge panels in selected categories of cases;

      (3) That Congress authorize the Judicial Council of each circuit to
        establish district court appellate panels, each panel to consist of
        two district judges and one circuit judge, to decide appeals in
        designated categories of cases, with discretionary review
        thereafter in the court of appeals.

        If the courts exercise their discretionary authority to adopt any
    of these measures, the Federal Judicial Center would be required to
    evaluate the experience over a period of time and report to the
    Judicial Conference of the United States. Those arrangements that
    worked well could be models for other circuits; those that did not work
    could be discontinued. The ability of courts to experiment in this
    manner will be increasingly important in the future as dockets grow and
    circumstances change.
        History teaches that any recommendations for change in the courts
    are likely to encounter opposition from some members of the bench and
    bar. Some of that can be discounted as nothing more than instinctive
    reluctance to embrace change. No proposals for dealing with the
    judiciary's problems will achieve perfection, and there are advantages
    and disadvantages to any proposal. In arriving at its conclusions, the
    Commission weighed benefits and costs carefully, after receiving a wide
    assortment of ideas from judges, lawyers, law professors, and public
    officials. The Commission has carried out the most thorough study of
    the federal appellate courts since the Hruska Commission a quarter
    century ago.\2\ Therefore, it is to be hoped that Congress will give
    serious attention to the enactment of these recommendations and that
    they will have the support of a substantial segment of the bench and
    bar.
    ---------------------------------------------------------------------------
        \2\ Report of Commission on Revision of the Federal Court Appellate
    System (1973). That Commission's recommendation that the 5th Circuit be
    split was enacted by Congress. Its recommendation that the 9th Circuit
    likewise be split has never been acted on.

        Senator Grassley. I would like to thank our panels for
    being here and look forward to hearing their thoughts and
    suggestions about the report and this legislation.
        Even though you aren't the ranking minority member, if you
    would like to speak for the other side, I would be happy to
    receive that at this particular time.

      STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
                          STATE OF CALIFORNIA

        Senator Feinstein. Thank you very much, Mr. Chairman. Yes,
    I would like to speak for the other side. I would also like to
    thank you for holding this hearing.
        We are here today, in my opinion, largely because the
    Supreme Court reversed the ninth circuit in 26 out of 27 cases
    in its 1996-1997 term. Since this inauspicious session, the
    ninth circuit has faced incessant, unending charges that it
    lies outside the mainstream of appellate jurisprudence.
        As we move forward with this discussion of the ninth
    circuit's future, it is critical and crucial that we get the
    most up-to-date facts.
        The American Lawyer recently reported on the reversal rates
    of the ninth circuit in its 1998-1999 term. It reported that
    the Supreme Court reversed the ninth circuit in 14 out of 18
    cases where it issued definitive decisions, a reversal rate of
    78 percent. The ninth circuit's own calculation shows an even
    more favorable result: 11 out of 18 cases reversed.
        No matter how you keep score, the ninth circuit had a lower
    reversal rate last year than the fifth, 80 percent; the
    seventh, 80 percent; and the eleventh, 88 percent. In 1997,
    both the fifth and the eleventh circuits also had higher
    reversal rates than the ninth circuit. A study of ninth circuit
    reversal rates also reveals that if a problem exists on the
    circuit, Clinton judges are not causing it. Currently, 20
    percent of the judges in the ninth circuit are appointments of
    President Clinton, yet on only eight occasions in the past 3
    years has a Clinton appointee joined or authored a panel
    opinion that was later reversed. In comparison, judges
    appointed by President Reagan have been reversed on 30
    occasions.
        The fact is Clinton judges are fully in step with
    mainstream jurisprudence. I think these statistics show that
    the ninth circuit is operating more effectively than many would
    have us believe. However, the ninth circuit can and should be
    improved. Reversal rates should be lower, and the public needs
    to have confidence in the job the ninth circuit is doing.
        In testimony submitted to the White Commission, the Justice
    Department noted,

              We begin with the observation that all available
            means of nonstructural reforms should be attempted and
            assessed before structural changes are imposed on the
            Federal courts.

    I couldn't agree more.

        The Justice Department is the largest consumer and
    participator in ninth circuit decisions, and as such, I
    strongly recommend that everyone read the comments on the U.S.
    Department of Justice on the tentative draft report of the
    Commission on Structural Alternatives for the Federal Courts of
    Appeals. I have read it, and I agree with much of what the
    Justice Department has to say.
        I hope to introduce on Monday legislation that will enact
    targeted, nonstructural reforms to the ninth circuit. Entitled
    ``The Ninth Circuit Court of Appeals En Banc Procedures Act of
    1999,'' this legislation would institute three major changes to
    the ninth circuit procedures.
        First, it reduces the number of judges required to grant an
    en banc hearing.
        Second, it increases the size of en banc panels from 11
    judges to a majority of the circuit.
        And, third, it imposes a system of regional calendaring in
    which at least one judge from the geographic region where the
    case arises would be assigned to that case.
        Let me state categorically, as a Californian, as a member
    of this committee, I will forcefully do everything I can to
    prevent the division of the State of California. Nothing I can
    think of could have more strong and adverse impacts not only on
    the administration of justice but on the treatment of
    Californians on vital legislation before the ninth circuit.
        The criminal caseload of this circuit is a heavy one. The
    immigration caseload of this circuit is 50 percent of all of
    the cases in the Nation. To have people with the likelihood of
    being treated differently in one part of the State than in
    another is, frankly, something I could not stand by and watch
    happen.
        So I am anxious to hear the comments of my colleagues. I
    have a reasonably open mind, will introduce this legislation on
    Monday, hope it will have cosponsors from other Senators in
    this circuit, and look forward to hearing from my colleagues.
        Thank you, Mr. Chairman.
        Senator Grassley. Thank you.
        Normally, I wouldn't have other Senators give opening
    statements, but Senator Sessions, who is reasonable, asked for
    60 seconds. So I will give Senator Sessions 60 seconds.
        Senator Sessions. Well, I am pleased to have this great
    panel here. I know you are concerned about this issue. I have
    been a critic of the ninth circuit. I have numbers that
    demonstrate that from 1987 through 1992, every year the ninth
    circuit's reversal rate was substantially higher than the
    overall reversal rate for the rest of the country. In 1996,
    they were reversed 95 percent of the time; whereas, the
    nationwide reversal rate, excluding the ninth circuit, was 62
    percent. There are 10, 20, and 30 percent differences almost
    every year.
        So I do think there is a legitimate concern that the ninth
    circuit is not in the mainstream of American law.
        Senator Grassley. Thank you, Senator Sessions.
        Now I will go to the panel. Normally, I go left to right,
    but if my panelist colleagues don't object, I think it would be
    more appropriate for me to start with Senator Murkowski, then
    Senator Gorton, then go to Senators Kyl, Bryan, and Reid, if he
    shows up. Is that OK?

      STATEMENT OF HON. FRANK MURKOWSKI, A U.S. SENATOR FROM THE
                            STATE OF ALASKA

        Senator Murkowski. I very much appreciate that, Mr.
    Chairman. I am conducting a hearing on Chinese espionage as
    chairman of the Energy Committee.
        Thanks for the opportunity to testify on this Senate bill
    253 to reorganize the Ninth Circuit Court of Appeals. As you
    know, Congress has attempted to reorganize the ninth circuit
    since World War II. The time for action, in my opinion, is long
    overdue, and I think justice bears the price for Congress'
    inaction.
        In 1997, Congress mandated the White Commission to once and
    for all--which is seldom done around here, but it was the
    intent, at least, to resolve the severe problems of the ninth
    circuit court.
        Many of the members of the Senate strongly fought for such
    a conscientious and thorough study. Senator Boxer indicated
    that she was certainly very, very open to splitting the court.
    The problem is how we go about it, we ought to have a study.
    And Senator Feinstein, who is with us today, was quoted as
    stating, ``A study is the only practical approach to dealing
    with an issue as important as the structure of the U.S.
    court.''
        Now, this idea of dividing the State of California, I can
    understand the sensitivity. But please understand, you know, in
    my State of Alaska, we are not part of California. Yet the
    court is in California. So we are somewhat, you know,
    indifferent in that regard because we don't have the same
    affinity that you do as the court obviously makes a significant
    contribution to California as well.
        But putting that aside, I think what we have now is the
    results of the study. For the good of the people of the ninth
    circuit, I would hope we can act in a bipartisan manner to
    support what we all agreed we needed was a study. I don't think
    we need another study on another study. That is the traditional
    way of doing nothing around here.
        Mr. Chairman, the restructuring of the ninth circuit, as in
    Senate bill 253, as evidenced by chart 1, is warranted, if you
    will look at that chart, for three important reasons: one, its
    size and population; second, its caseload; and, third, its
    astounding reversal rate, which has been discussed this
    morning.
        The ninth circuit is gigantic by any means of the
    imagination, by far the largest of the 13 circuits, encompasses
    9 States stretching from the Arctic Circle--think about that--
    the Arctic Circle to the border of Mexico. You are looking at
    some 5,000 miles on the west coast.
        The population: Over 50 million people are served by the
    ninth circuit, almost 60 percent more than the next largest
    circuit--60 percent more. By the year 2010, the ninth circuit's
    population will be more than 63 million. That is a 43 percent
    increase in just 11 years. That is chart 3 which you can see
    over there.
        The caseload: The ninth circuit's docket is daunting, last
    year over 9,000 new filings, over 1,000 more than the next
    largest circuit. The result: Cases are decided more slowly,
    prompting many to forego the entire appellate process. In
    brief, the ninth circuit is a circuit where justice perhaps is
    not always as swift and not always served.
        And the reversal rate: The gigantic caseload means it is
    nearly impossible for judges to keep up with the legal
    developments, inevitably resulting in, one, inconsistent
    decisions and, two, a high reversal rate, which we have
    acknowledged.
        Now, chart 4, this tracks the ninth's reversal rate. Look
    at 1997 where the Supreme Court reversed an astounding 19 of 20
    ninth circuit court cases. That is a 95 percent reversal rate.
        And chart 5--we are keeping the chart lady busy here. Chart
    5, between 1997 and 1999, the ninth circuit was responsible for
    33 percent of all cases reversed by the Supreme Court--33
    percent.
        I don't mean any disrespect to the distinguished chief
    judge of the ninth circuit by citing these figures. I believe
    that he and the circuit are simply overworked and in need of
    some relief, and this is what the study proposed.
        Now, why is the reversal rate so high? Well, the circuit is
    simply too big. Ninth circuit judges are unable to keep up with
    the daunting 9,000 cases. As the report reflects, only about
    half of the ninth circuit judges are able to read all or most
    of the published opinions. And in reading the testimony of some
    of the witnesses today, that is the severest critic. They
    simply don't have time to read other judges' opinions. They
    don't really get a feel for the court.
        Of the four Supreme Court Justices who wrote to the
    Commission on the ninth circuit, all were of the opinion that
    the ninth circuit must be changed. And I submit their
    statements for the record.
        [The statements referred to are located in the appendix.]
        Senator Murkowski. Additionally, Chief Justice Rehnquist
    strongly endorsed the Commission's report:

              I share many of the concerns expressed by my
            colleagues. The proposal to create three divisions of
            the ninth circuit appears to me to address head-on most
            of the significant concerns raised about that court and
            would so with minimal to no disruption in the circuit
            administration's structure.

        On July 8, the Chief Justice wrote to me stating: ``One, I
    continue to support the recommendations of the Commission. I
    wish you well in your legislative effort.''
        But what about the critics, Mr. Chairman? More judges will
    resolve the problem, they say. Well, more is not better. In the
    words of my former colleague and our revered friend, former
    Alabama Supreme Court Justice Howell Heflin, ``The addition of
    judges decreases the effectiveness of the court and potentially
    diminishes the quality of justice.''
        Others say some judges will oppose the split. Well, one-
    third of the ninth circuit judges strongly favor Senate bill
    253, and with due respect to the judicial bench who oppose the
    division, the judges of the fifth circuit were not originally
    in favor of Congress dividing that court, either. They weren't
    in favor of it. But it was the right thing to do, as we have
    seen. Now, we in this timeframe have that opportunity to do the
    right thing.
        Finally, Mr. Chairman, remember that it is Congress'
    constitutional duty to restructure jurisdictions to ensure that
    justice is not hindered. We cannot forget that we have that
    duty and obligation. Indeed, there is nothing unconstitutional,
    antijudicial, or anti-ninth circuit about fixing the problems
    of the ninth circuit.
        Final points. Our bill is cost-effective by retaining one
    administrative office. No new courthouses are needed, and our
    bill is a blueprint for circuits to handle future caseload
    growth. Moreover, it goes far in strengthening consistency and
    predictability in law, and that, Mr. Chairman, is what the
    people of the ninth circuit deserve.
        Last, I want to personally thank the members of the
    Commission. Their sense of duty, diligence, and wisdom is
    reflected in their report. Here is the report, Mr. Chairman,
    and I only ask that Congress has the prudence to follow its
    thoughtful recommendations. That is our obligation.
        Thank you for the opportunity.
        Senator Grassley. Thank you, Senator Murkowski.
        Senator Gorton.

     STATEMENT OF HON. SLADE GORTON, A U.S. SENATOR FROM THE STATE
                             OF WASHINGTON

        Senator Gorton. Mr. Chairman, long before this Commission
    was created, long before the action by the Senate, in which I
    played a major part in creating new circuits out of the ninth
    circuit, I have dealt with this very distinct problem. Senator
    Feinstein to the contrary, it didn't come up in 1997 with a
    higher reversal rate.
        I began to feel seriously about the division of the circuit
    when I was Attorney General of the State of Washington in the
    early 1970's. My office was convinced that if we could get the
    Supreme Court to take certiorari of a ninth circuit case, we
    are going to win. And most of the time, you know, we did just
    that.
        We were convinced then that there was a lack of
    collegiality or consistency in ninth circuit decisions due to
    its size. So this isn't a new problem.
        In fact, in a Harvard Law Review published in 1969--now,
    Mr. Chairman, that is 30 years ago--a professor at the
    University of Michigan Law School commented:

              As the court has enlarged to meet the burgeoning
            caseload, however, there is a serious threat that the
            enterprise of maintaining the law of the circuit will
            gradually collapse because of the inherent weakness of
            its operation. Indeed, as the size of the court has
            increased, the likelihood of differences among judges
            has increased, and a wider variety of idiosyncrasies is
            likely to appear in their decisions. While there is a
            limit to the number of different viewpoints possible in
            a given case, nevertheless, the larger number of panel
            variations possible, the more likely it is that an
            aberrational view can command an occasional majority.
            The finding of the committee of the Judicial Conference
            that a court of more than nine judgeships is likely to
            be more unstable than a healthy legal system should
            tolerate seems reasonable.

        Now, that is 30 years ago, Mr. Chairman. The present 28-
    judge court and the lottery system of assigning three-judge
    panels, you can be appointed a judge of that court at the age
    of 40 and never serve with the same panel twice in an entire
    career. It is impossible to come up with the kind of
    collegiality that a good court of appeals ought to attain under
    circumstances like that.
        Four years after that Law Review article, the
    congressionally appointed Hruska Commission concluded that the
    ninth circuit was too big and contained too many judges to be
    effective. It recommended a split. Congress didn't act. Since
    then, the authorized number of judges has increased to 28, and,
    finally, 22 years after the Hruska Commission recommendation,
    the Senate voted to divide the circuit.
        Those who opposed the split, however, argued successfully
    in the House of Representatives that the Hruska Commission
    recommendations were stale and that there needed to be a more
    contemporary study. We agreed and we created the White
    Commission.
        Now, they were appointed by the Chief Justice of the United
    States, Mr. Chairman. They came up with the unanimous
    recommendation. It seems to me at this point it is simply time
    to accept the recommendations of that Commission.
        I may say not at all incidentally that I regard the
    Commission report as better than the creation of the new
    circuits, which the Senate passed in 1995. That did raise the
    question of how many circuits we might eventually have, but the
    generalized statement of the White Commission that when any
    court of appeals reaches a certain size it should have the
    opportunity to divide into divisions is, I think, extremely
    sound. And the recommendation means that we can stabilize the
    number of circuits and still create a degree of collegiality
    that is lacking at the present time.
        I am delighted that Senator Feinstein's proposal will at
    least guarantee that one judge in a three-judge panel comes
    from the general area from which the appeal arises. The White
    Commission simply requires that two do so, a majority. We may
    not be that far apart, at least as far as the way in which
    justice is to be administered is concerned.
        Nevertheless, Mr. Chairman, this kind of division, this
    kind of cure, it seems to me is absolutely necessary, and if
    the Congress can also come up with a way in which we don't have
    to deal with this in the future because these divisions can
    take place internally, we will have rendered, I think, a
    terrific service.
        Now, each of us is, of course, parochial. I am as well.
    Senator Kyl and I worked very hard on the previous iterations
    of this system. He is not completely--he is not satisfied with
    the particular division that is recommended by the White
    Commission. Senator Feinstein is not either. I don't have a dog
    in that fight. The division that is created here in the ninth
    circuit for the Pacific Northwest is perfectly satisfactory to
    me and to Senator Murkowski.
        I may say incidentally that when we passed the bill, the
    Senators from Hawaii determined through their bar that Hawaii
    would prefer to be in the new Northern Division than staying
    with California. I suppose it is perfectly possible to create a
    three-division structure with California as its own division in
    this connection if that is the preference of the people who
    represent those various States. But the problem exists and the
    problem isn't going to go away with more band-aids.
        The thoughtful criticism of the recommendation by the
    Commission on Structural Alternatives from Procter Hug, the
    chief judge of the ninth circuit, questions why we should opt
    for an untried proposal over, ``the time-tested procedures now
    in place.'' Well, I would turn the question around. Why not
    adopt the Commission recommendations from a former
    distinguished Justice of the Supreme Court of the United
    States? The procedures of the ninth circuit may, as Judge Hug
    asserts, be time-tested but they got an F on that test. It just
    simply doesn't work.
        The Commission, chaired by Justice White, has done an
    extraordinary job and has made a compelling case for an
    approach that differs from the status quo, differs from the
    status quo plus that the Senator from California talks about,
    and differs from the one that we came up with here several
    years ago, probably because they spent more time studying it
    than any of the rest of it does.
        I think the answer lies more in human nature than in the
    nature of the Federal court system. People are inherently
    conservative about their own institutions, not always in their
    political philosophy but at least with respect to their
    willingness to change. We generally don't like change. The
    status quo may be highly imperfect or seriously flawed, but it
    is familiar, comfortable, and so we cling to it.
        I ask you, Mr. Chairman, and the members of this
    subcommittee to keep this in mind as you listen to the
    testimony today and try to separate the substantive criticisms
    of the Commission's recommendations from those criticisms that
    are, in fact, based on a natural inclination to resist change.
    But change, Mr. Chairman, in this case is desperately needed.
    It has been needed for 30 years. We are never going to have a
    better opportunity to do it than right now.
        Senator Grassley. Thank you, Senator Gorton.
        Senator Kyl. Then, Senator Reid, you came in. I was going
    to do it in the order of the sponsors, Senator Kyl, Senator
    Bryan, Senator Reid. Is that OK?
        Senator Reid. Fine with me.
        Senator Grassley. Senator Kyl.

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

        Senator Kyl. Thank you, Mr. Chairman and members of the
    committee. First of all, I would like unanimous consent to put
    a written statement and a letter dated November 6, 1998, to
    Justice White from me into the record as part of my testimony.
        Senator Grassley. They will be received and included.
        Senator Kyl. Thank you, Mr. Chairman.
        As a member of this committee, a Senator from Arizona, the
    State generates more appeals in the ninth circuit than any
    other State except California, a member of the bar who
    practiced law in the ninth circuit for about 20 years, wrote a
    lot of briefs and argued several cases before the ninth
    circuit, and even took some on up to the U.S. Supreme Court
    from there--reversing ninth circuit decisions I had lost--I
    have a keen interest in how the ninth circuit is configured.
        I think it is clear that the ninth circuit has problems. I
    don't think that can any longer be disputed. And I agree with
    Justice White and the Commission that changes are warranted. In
    that regard, let me just cite two things, one of which is not
    in my statement.
        Justice O'Connor wrote a letter to the Commission. She came
    from the ninth circuit as a circuit judge in Arizona, which is
    part of the ninth circuit, as you know and she said that, ``The
    circuit is simply too large,'' that some division or
    restructuring of the ninth circuit seems appropriate and
    desirable.
        Justice Kennedy also, who was a ninth circuit judge before
    going to the U.S. Supreme Court, in a letter to the Commission
    said,

              A court which seeks to retain its authority to bind
            nearly one-fifth of the people of the United States by
            decisions of three-judge panels, many of which include
            visiting circuit or district judges, must meet a heavy
            burden of persuasion.

    And I believe that that is correct, and in that regard, I think
    the comments just made by Senator Gorton are very apropos.

        There are a lot of reasons relating to reversal rates,
    delays in deciding cases and so on why these comments are
    correct. I am going to move on--assuming that there is some
    degree of consensus that a change is warranted--to the
    recommendations of the Commission.
        I believe the Commission came up with the right concept
    that allowing the ninth circuit to maintain its administration
    as a circuit is appropriate while dividing the adjudicatory
    function of the court into divisions is the best way to solve
    the problems that almost everyone agrees exist. My principal
    concern is with the specific recommendation the Commission made
    with respect to those divisions.
        It all depends on what degree of priority you assign to
    different factors as to how you come out in the creation of
    divisions. How important do you think it is to assign roughly
    equal caseloads or have roughly equal division of population,
    to have contiguity, to keep California intact, to have
    geographic affinity, to have no more than three divisions,
    let's say? All of those are important considerations, and
    depending upon how much weight you give to any one of them, you
    come out differently.
        If, for example, you assign a very high priority to keeping
    California intact, then you need to come out with a division
    which has California as a separate division and then perhaps a
    couple of other divisions within the circuit. That leaves you,
    though, with about 60 percent of the caseload in the California
    division, and that is why the pressure to divide California.
        If, on the other hand, you assign a higher priority to
    caseload distribution, then there are ways to achieve that
    roughly equally if you divide the circuit into four divisions,
    for example. You could have roughly equal divisions if you did
    that, but that would require dividing California.
        Under the Commission's recommendation, there are three
    divisions, one of which is the Southern Division. The problem
    from day one with the recommendations of the Commission is the
    Southern Division already needs to be divided again. It would
    have almost 50 percent of the population and caseload all by
    itself. Now, that is of particular interest to me because it
    has the southern part of California and Arizona, and that group
    has 47 percent of the circuit's caseload, 46 percent of its
    population, and those are all of the fastest growing district
    court divisions and cities in the country.
        Los Angeles, San Diego, and Phoenix are the circuit's three
    most populous cities. They are respectively the 2d, 6th, and
    7th most populous cities in the country and among the very
    fastest growing. So under the Commission's recommendations, by
    the time you put this into place, you would already need, under
    its own criteria, to divide the circuits once again--or divide
    the divisions once again so that you could have a more equal
    distribution of caseload.
        As a matter of fact, I think it is instructive that the
    Commission itself said: ``The concentration of appeals in the
    southern part of the circuit makes it impossible to divide the
    court's workload equally among the three divisions.'' So they
    acknowledge under their recommendation that they failed to meet
    one of the most important tests, which is a roughly equal
    division of caseload.
        The only way to achieve that roughly equal division is,
    instead of having three divisions within the circuit, to have
    four. And one of the recommendations that I make in a letter
    that I have now made a part of the record is to consider
    dividing the circuit into four rather than three divisions,
    which would result in caseload distributions of 22, 23.9, 23.7,
    and 30.4 percent respectively, the 30.4 being the southern
    California division, but that would require a division of the
    rest of California.
        Mr. Chairman and members of the committee, the bottom line
    is this: There is a problem, there needs to be some division,
    but we are going to have a hard time agreeing on what that
    division is because of all of the different parochial interests
    we have. I urge the committee to continue this conversation, to
    have more hearings, to have a lot of informal meetings among
    all of those of us who are most interested, and try to come to
    some resolution as to how we can do this in a way that meets
    all of the needs that we have and meets the problems that have
    been identified by the Commission. Unless we are willing to
    engage in that kind of a conversation, frankly, nothing will
    happen because each one of us has the ability to stop any one
    particular plan from moving forward.
        So I commend the committee, and, Mr. Chairman, I commend
    you for holding this hearing. It is a very, very important
    subject matter for us, and I urge the committee to continue
    these conversations to try to come to some resolution that will
    be satisfactory to all of us.
        [The letter follows:]

                                                   U.S. Senate,
                                      Washington, DC, November 6, 1998.
    The Hon. Byron White,
    Chairman Commission on Structural Alternatives for the Federal Courts
            of Appeals,
    Thurgood Marshall Federal Judiciary Building, Washington, DC.
        Dear Justice White: As a Senator from Arizona (the state which
    generates more appeals than any other Ninth Circuit state except
    California),\1\ a member of the Senate Judiciary Committee and the
    Courts Subcommittee, and as someone who practiced law in the Ninth
    Circuit for nearly 20 years, I have a keen interest in matters
    affecting the Ninth Circuit. I would like to accept the invitation of
    the Commission on Structural Alternatives to offer comments on the
    draft report.
    ---------------------------------------------------------------------------
        \1\ Commission on Structural Alternatives for the Federal Court of
    Appeals (Draft Report) (Oct. 1998) (hereinafter ``Draft Report'') at
    48.
    ---------------------------------------------------------------------------
        Overall, I believe the draft report is responsive to Congress'
    request and will be helpful in our deliberation. I compliment the
    Commission for its thoughtful, constructive recommendations.
        My principal concern is that, while the Commission's proposal of
    organizing the Ninth Circuit Court of Appeals into regional
    adjudicative divisions is good in concept, the Commission should
    evaluate other options for the proposed configurations. It would be
    most helpful to Congress if the Commission examined in detail a variety
    of alternatives and provided a thorough analysis of the reasons for and
    against the alternatives. From the Commission's draft report, it is
    unclear why the Commission configured the divisions the way it did; the
    report contains no explanation.
        Ultimately, the question of reconfiguration depends on what factors
    are assigned the highest value--caseload, population, contiguity,
    consistency of maritime law, keeping California intact, geographic
    affinity, having no more than three divisions, adhering to a ``three-
    state'' rule, etc. The Circuit could be divided or split many ways
    depending on which factors are the driving considerations. In short,
    the report would be much more helpful to Congress if it discussed which
    factors should be given priority. I would like to illustrate the point
    of emphasizing different criteria by evaluating three plausible
    options.
                                possible options
    Keeping California intact: Separate division or circuit for California
        If it is important to keep California intact, then perhaps it would
    be best for California to constitute a separate division or a separate
    circuit. The Commission states that it would be ``undesirable'' to
    split California between circuits.\2\ But why not make California its
    own circuit? With 61.3 percent of the Circuit's caseload,\3\ a
    California circuit would still be one of the nation's largest circuits
    in terms of caseload and population--and the remainder of the circuit
    would be a reasonable size.\4\
    ---------------------------------------------------------------------------
        \2\ Draft Report at 46.
        \3\ Office of the Circuit Executive, United States Court of Appeals
    for the Ninth Circuit (based on filings for year ending December 31,
    1997) (updated November 1998).
        \4\ The Commission's desire to keep California as part of the Ninth
    Circuit in order to ensure that maritime laws remain consistent on the
    Pacific Rim could be seen as puzzling. Specifically, under the
    Commission's proposal, there would be three different divisions on the
    Pacific Rim (and California would be cut in half) and decisions made in
    one division would not bind any other division. But by making
    California its own circuit, the Pacific Rim would have two circuits--a
    manageable amount considering that the eastern seaboard and Gulf Coast
    have six circuits.
    ---------------------------------------------------------------------------
        Moreover, if it is undesirable to split California between
    circuits, then perhaps California should not be split into divisions.
    Why not make California its own division? The caseload split would be
    approximately 60-40, which many people would consider reasonable.
        I know that the Commission wants to maintain the court of appeals
    as presently aligned to respect the character of the West as a distinct
    region,\5\ but California is different enough from the other states
    that creating a California circuit or division would arguably not harm
    the West as a region.
    ---------------------------------------------------------------------------
        \5\ Draft Report at 45.
    ---------------------------------------------------------------------------
        Finally, I am aware of the oft-expressed view that a circuit should
    be comprised of at least three states to maintain a federalizing and
    regionalizing function. But it could be more prudent to have a state
    such as California its own circuit or division than to divide it into
    divisions containing other states. Indeed, if California were its own
    circuit or division, it would have a larger caseload than seven of the
    remaining eleven circuits.\6\ Perhaps concerns about bifurcation should
    outweigh fealty to a ``three-state'' rule. Having one state comprise a
    circuit or a division seems reasonable considering that in many
    circuits one state dominates. For example, five circuits (the Second,
    Third, Fifth, Seventh, and Eleventh) have just three states. In each of
    these circuits, one state dominates: New York has 64 percent of the
    Second Circuit's caseload; Pennsylvania has 66.5 percent of the Third
    Circuit's caseload; Texas has 73.6 percent of the Fifth Circuit's
    caseload; Illinois has 57.8 of the Seventh Circuit's caseload; Florida
    has 57.3 percent of the Eleventh Circuit's caseload.\7\ It is unclear
    why some take the view that having three states in a circuit or a
    division (even though two of the states have only a small portion of
    the caseload) is so important that it precludes creating a separate
    circuit or division for a large state.
    ---------------------------------------------------------------------------
        \6\ California would have a greater caseload than the First, Third,
    Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits. Judicial Business
    of the United States Courts, Annual Report of the Director (1997),
    Table B-3A (twelve-month period ended September 30, 1997).
        \7\ Judicial Business of the United States Courts, Annual Report of
    the Director (1997), Table B-3A (twelve-month period ended September
    30, 1997).
    ---------------------------------------------------------------------------
        It would be helpful to Congress if the Commission discussed the
    idea of creating a separate division or circuit for California.
    Caseload: Four-way division
        If dividing California is not a problem--and if caseload
    distribution is a priority--then it makes sense to consider a four-way
    division. Under such a division, caseload (and population) is most
    equitably distributed. In fact, each division would contain a higher
    percentage of cases than the 21 percent comprising the Commission's
    proposed Northern Division; yet the highest percentage of cases (30.4
    percent) would not come close to the 47 percent in the Commission's
    proposed Southern Division.
        The Commission notes that ``pressure continues, and there is little
    likelihood that caseloads and work burdens on the judges will lessen in
    the years ahead.'' \8\ This is particularly true in Arizona and
    Southern California. Southern California is the Circuit's fastest
    growing region in terms of caseload. From 1987 to 1997, the appeals
    from the Southern District of California increased 143.8 percent and
    from the Central District of California increased 74.5 percent.\9\
    Based on these increases, the caseloads in the Southern and Central
    Districts of California are apt to be, respectively, the third and
    first largest in the Circuit in 2007 \10\--comprising more than 43
    percent of the Circuit's caseload.\11\ Further, as I mentioned above,
    the Commission states that ``[n]ext to California, Arizona generates
    more appeals than any other state in the present Ninth Circuit'';\12\
    and Southern California (i.e., the Southern and Central Districts of
    California) produces the largest number of appeals in the Circuit--38
    percent of the Circuit's appeals.\13\
    ---------------------------------------------------------------------------
        \8\ Draft Report at vii.
        \9\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
    District of Origin (provided by Commission).
        \10\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
    District of Origin (provided by Commission).
        \11\ Ninth Circuit Appeals Filed by Fiscal Year of Filing and
    District of Origin (provided by Commission).
        \12\ Draft Report at 48.
        \13\ Office of the Circuit Executive, United States Court of
    Appeals for the Ninth Circuit (based on filings for year ending
    December 31, 1997) (updated November 1998).
    ---------------------------------------------------------------------------
        Additionally, Los Angeles, San Diego, and Phoenix are the Circuit's
    three most populous cities and are, respectively, the second, sixth,
    and seventh most populous cities in the nation, according to recent
    figures of the U.S. Bureau of the Census provided by the Library of
    Congress.\14\ Also, Arizona and Nevada contain seven of the nation's 22
    fastest growing cities: Chandler (2), Scottsdale (7), Glendale (14),
    Mesa (17), and Phoenix (22), Arizona; Henderson (1) and Las Vegas (6),
    Nevada.\15\
    ---------------------------------------------------------------------------
        \14\ Population Division, U.S. Bureau of the Census, SU-96-10.
        \15\ Population Division, U.S. Bureau of the Census, SU-96-14.
    ---------------------------------------------------------------------------
        In short, putting Arizona and Southern California--two of the most
    rapidly growing regions--in the same division may provide, at best, a
    temporary solution, and prove unworkable in the near future. Very soon,
    these components of the proposed Southern Division may have to be
    divided into two roughly equal parts. That seems impossible without a
    reconfiguration of all of the divisions.
        The Commission states that ``[t]he concentration of appeals in the
    southern part of the circuit makes it impossible to divide the court's
    workload equally among the three divisions * * *'' \16\ Given this
    difficulty, and the problem of having to re-divide the Southern
    Division, it might be preferable to have four divisions, structured as
    follows:
    ---------------------------------------------------------------------------
        \16\ Draft Report at 39 n.90 (emphasis added).

    ------------------------------------------------------------------------
                                               Caseload 1      Population 2
                4-Way Proposal                 (percent)        (percent)
    ------------------------------------------------------------------------
    Western Division:                                  22.0             17.5
    Arizona, Nevada, and Southern
     California
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest, Hawaii, Guam, NMI
    ------------------------------------------------------------------------
    Middle Division:                                   23.7             25.6
    Northern and Eastern California
    ------------------------------------------------------------------------
    Southern Division:                                 30.4             31.8
    Central California
    ------------------------------------------------------------------------
    1 Office of the Circuit Executive, United States Court of Appeals for
      the Ninth Circuit (based on filings for year ending December 31, 1997)
      (updated November 1998).
    2 Population Estimates Program, July 1996, U.S. Bureau of the Census.

        Under this scenario, the caseload (and population) distribution
    would be much less lopsided than under the Commission's tripartite
    division. Under the Commission's proposal (see chart below), the
    Northern Division would contain 21 percent of the Circuit's caseload,
    thereby apparently making 21 percent an acceptable threshold for
    caseload. Under the four-way proposal suggested above, every division
    would meet this threshold and no division would come close to the 47
    percent caseload in the Commission's proposed Southern Division. Thus,
    if caseload distribution is of paramount importance, then for a more
    enduring partition, it might be reasonable to place Arizona, Nevada,
    and the Southern District of California in one division, the Northern
    and Eastern Districts of California in another division, the Central
    District of California in another division, and the Northwest and the
    Pacific Islands in the Northern Division.
    Commission's proposal
        From the Commission's proposal, it is unclear which criteria were
    given priority--perhaps geographic affinity dominated. Although the
    divisions may have geographic affinity, the caseload and populations
    are unevenly distributed:

    ------------------------------------------------------------------------
                                               Caseload1       Population2
              Commission Proposal              (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 21.0             22.4
    Northwest
    ------------------------------------------------------------------------
    Middle Division:                                   32.0             31.5
    Northern and Eastern California,
     Hawaii, Guam, NMI, and Nevada
    ------------------------------------------------------------------------
    Southern Division:                                 47.0             46.1
    Central and Southern California and
     Arizona
    ------------------------------------------------------------------------
    1 Office of the Circuit Executive, United States Court of Appeals for
      the Ninith Circuit (based on filings for year ending Dec. 31, 1997)
      (updated November 1998).
    2 Population Estimates Program, July 1996, U.S. Bureau of the Census.

        Perhaps a factor other than geographic affinity was given priority;
    this seems likely in light of the recent recommendation that Arizona be
    placed in the Middle Division with Nevada and the Northern and Eastern
    Districts of California.\17\ Some have commented that there is a high
    volume of commercial dealings between Arizona and California and that
    Arizona relies on California caselaw. It is unclear (and would be
    helpful to know) to what extent such connections exist and how
    important such connections should be in determining division lines.
    ---------------------------------------------------------------------------
        \17\ Letter of Chief Judge Proctor Hug to Commission on Structural
    Alternatives for the Federal Courts of Appeals, October 29, 1998.
    ---------------------------------------------------------------------------
        Furthermore, many people seem to assume that the northwest states
    (Alaska, Idaho, Nevada, Oregon, and Washington) must be grouped
    together, but if one starts with that premise, then options are limited
    and dividing the circuit becomes very difficult, especially if a four-
    way division is not considered. Given the current size and the
    continued growth (in both caseload and population) in the Central and
    Southern California Districts, as well as Arizona and Nevada, it seems
    as though there will always be a problem if there is a three-way
    division. Assuming that a four-way division is acceptable, it might be
    reasonable (in terms of caseload, population, geography, among other
    factors) to modify the Commission's recommendation by placing Arizona
    and Nevada in a separate division:

    ------------------------------------------------------------------------
                                                Caseload        Population
                4-Way Proposal                 (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest, Hawaii, Guam, NMI
    ------------------------------------------------------------------------
    Middle Division:                                   23.7             25.6
    Northern and Eastern California
    ------------------------------------------------------------------------
    Southern Division:                                 38.0             37.0
    Central and Southern California
    ------------------------------------------------------------------------
    Western Division:                                  14.4             12.0
    Arizona and Nevada
    ------------------------------------------------------------------------

    Other proposals
        I have only discussed the Commission's proposal (as well as a
    modification of it) and two other plausible options. For the
    Commission's review, I am attaching several additional permutations,
    each with strengths and weaknesses in terms of caseload, population,
    geography, and other factors. (For ease of comparison, I am also
    including the charts contained in this letter.) It would be helpful to
    Congress to have the Commission's views on the relative strengths and
    weaknesses of various options.
                      moving arizona to the tenth circuit
        I am also interested in exploring the idea of moving Arizona to the
    Tenth Circuit, an idea that seems to have significant merit because it
    is one of only three proposals recognized by the Commission as having
    geographic integrity, serving both the federalizing and regionalizing
    functions of federal courts, and being consistent with the principle of
    state contiguity in the lower 48 states.\18\
    ---------------------------------------------------------------------------
        \18\ Draft Report at 46.
    ---------------------------------------------------------------------------
        The Commission states that disconnecting California from Arizona
    would be undesirable to the extent that ``Arizona follows California
    law in several areas, and has significant commercial ties.\19\ It may
    be more accurate to observe that, as some say, Arizona has more in
    common with the Rocky Mountain states than the Pacific coast
    states.\20\ I would appreciate an examination of these two lines of
    thought and would appreciate a more thorough examination of the
    feasibility of moving Arizona to the Tenth Circuit.
    ---------------------------------------------------------------------------
        \19\ Draft Report at 48.
        \20\ Draft Report at 48.
    ---------------------------------------------------------------------------
            court of appeals sitting in phoenix at regular interval
        No matter what Division that Arizona is placed in, I think that the
    Court of Appeals should sit in Phoenix at regular intervals.\21\ This
    seems reasonable because, as noted above, Phoenix is the seventh most
    populous city in the nation and one of the Circuit's most populous
    cities,\22\ as well as one of the nation's fastest growing cities.\23\
    ---------------------------------------------------------------------------
        \21\ Cf 28 U.S.C. 48.
        \22\ Population Division, U.S. Bureau of the Census, SU-96-10.
        \23\ Population Division, U.S. Bureau of the Census, SU-96-14.
    ---------------------------------------------------------------------------
                                circuit division
        I am also concerned about the size of the proposed circuit division
    which will resolve inter-divisional, intra-circuit inconsistencies.\24\
    I think that the Commission is right to note that it ``seem[s]
    paradoxical to respond to concerns about the present limited en banc by
    creating a conflict body that is even smaller.\25\ The Commission
    concludes that the Circuit Division's composition will ensure that the
    views of the majority of the court's judges will predominate in that
    resolution.\26\ But how will a body of seven judges (representing 28)
    do this? Currently, the limited en banc, which is comprised of 11
    judges, is often criticized for not being representative of the
    circuit. I am concerned that a body of seven judges would similarly
    produce decisions that are unrepresentative of the entire court. I
    believe that the Circuit Division should be expanded to 13 or 15
    members.
    ---------------------------------------------------------------------------
        \24\ Draft Report at 44.
        \25\ Draft Report at 44.
        \26\ Draft Report at 44.
    ---------------------------------------------------------------------------
        structural options for the courts of appeals and discussion of
                             appellate jurisdiction
        Finally, I was interested in the proposals discussed in parts 3 and
    4 of the report, such as authorizing the courts of appeals to decide
    selected cases with two-judge panels and authorizing the judicial
    council of any circuit to establish district court appellate panels to
    provide first-level review for designated categories of cases that
    involve error correction, with discretionary review by the courts of
    appeals.
        I was particularly interested in the statement of Judge Merritt and
    Justice White on ways to reduce the caseload presented by diversity
    cases. I do not believe that their plan suggesting changes in federal
    jurisdiction exceeds the Commission's mandate. As Judge Merritt points
    out, his plan recommends restructuring diversity jurisdiction by
    Congress and is aimed at reducing circuit court caseload substantially.
    This certainly seems to meet the statutory command to make
    ``recommendations for such changes in circuit boundaries or structure
    as may be appropriate for the expeditious and effective disposition of
    the caseload of the Federal Courts of Appeals.'' Congress can benefit
    from all of the Commission's recommendations. I hope that Judge
    Merritt's statement becomes part of the final report and that the
    Commission members consider including other proposals that will help
    with the ``expeditious and effective disposition of the caseload of the
    Federal Courts of Appeals.
        conclusion
        In closing, I would like to reiterate my appreciation for the
    Commission's diligent work and detailed draft report. I hope that my
    concerns can be addressed in the final report. The points I have raised
    are not meant to imply that reform should not move forward. In fact,
    lawyers frequently provide me with anecdotal evidence that it takes too
    long for cases to reach conclusion in the Ninth Circuit, although
    statistics may show otherwise. I believe firmly that the reasons the
    Commission cites for division warrant speedy action.
        Please do not hesitate to contact me if I can be of assistance.
    Thank you.
                Sincerely,
                                                       Jon Kyl,
                                                 United States Senator.

    ------------------------------------------------------------------------
                                                Caseload        Population
              Commission Proposal              (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 21.0             22.4
    Northwest
    ------------------------------------------------------------------------
    Middle Division:                                   32.0             31.5
    Northern and Eastern California,
     Nevada, and Hawaii
    ------------------------------------------------------------------------
    Southern Division:                                 47.0             46.1
    Central and Southern California and
     Arizona
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
             4-Way Proposal ``A''              (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division:                                   23.7             25.6
    Northern and Eastern California
    ------------------------------------------------------------------------
    Southern Division:                                 38.0             37.0
    Central and Southern California
    ------------------------------------------------------------------------
    Western Division:                                  14.4             12.0
    Arizona and Nevada
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
             4-Way Proposal ``B''              (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division:                                   23.7             25.6
    Northern and Eastern California
    ------------------------------------------------------------------------
    Southern Division:                                 30.4             31.8
    Central California
    ------------------------------------------------------------------------
    Western Division:                                  22.0             17.5
    Southern California, Arizona, and
     Nevada
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
                   Option #1                   (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division                                    53.3             50.9
    Northern, Central and Southern
     California
    ------------------------------------------------------------------------
    Southern Division:                                 22.8             24.0
    Eastern California, Arizona, and
     Nevada
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
                   Option #2                   (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division                                    54.1             57.4
    Northern, Central and Eastern
     California
    ------------------------------------------------------------------------
    Southern Division:                                 22.0             17.5
    Southern California, Arizona, and
     Nevada
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
                   Option #3                   (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division                                    38.1             37.6
    Northern, and Eastern California,
     Arizona, and Nevada
    ------------------------------------------------------------------------
    Southern Division:                                 38.0             37.3
    Central and Southern California
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
                   Option #4                   (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division                                    45.7             43.8
    Northern, Eastern, and Southern
     California, Arizona, and Nevada
    ------------------------------------------------------------------------
    Southern Division:                                 30.4             31.8
    Central California
    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
                                                Caseload        Population
                   Option #5                   (percent)        (percent)
    ------------------------------------------------------------------------
    Northern Division:                                 23.9             25.1
    Northwest and Hawaii
    ------------------------------------------------------------------------
    Middle Division                                    30.4             29.5
    Eastern, and Southern California,
     Arizona, and Nevada
    ------------------------------------------------------------------------
    Southern Division:                                 45.7             45.4
    Northern and Central California
    ------------------------------------------------------------------------

        Senator Grassley. Thank you, Senator Kyl.
        Now, Senator Bryan.
        Senator Kyl. Mr. Chairman, before Senator Bryan, might I
    add one other request? Judge Bill Browning from the Tucson
    District Court is here. He was a member of the Commission, and
    I am not certain whether he is on your panel to testify or not.
        Senator Grassley. He is not.
        Senator Kyl. I would urge the committee to consider at
    least permitting him to make a brief comment or be available
    for questions from the committee. He has much to offer.
        Thank you.
        Senator Grassley. Thank you.
        Senator Bryan.

    STATEMENT OF HON. RICHARD BRYAN, A U.S. SENATOR FROM THE STATE
                               OF NEVADA

        Senator Bryan. Thank you very much, Mr. Chairman and
    members of the subcommittee. I appreciate the opportunity to
    testify before you today on the issues raised by the White
    Commission and the Federal Ninth Circuit Reorganization Act
    sponsored by our colleague, Senators Murkowski and Gorton. My
    comments today will focus on the Commission's recommendations
    as they relate to the Ninth Circuit Court of Appeals.
        Let me observe at the outset that I am pleased that we are
    having this discussion today in the context of a hearing before
    the Judiciary Committee. As you know, there have been efforts
    in the past to divide the ninth circuit through legislative
    riders on appropriations bills. In my view, an issue of this
    magnitude, one that will have far-reaching implications not
    only for the West but for the entire Nation, deserves to be
    considered in a thoughtful, deliberative manner by this
    committee. The old saying, ``If it ain't broke, don't fix it,''
    summarizes my view about the proposals to divide the circuit,
    and I am pleased to see that the White Commission came to the
    same conclusion.
        I am concerned, however, with the Commission's proposal for
    other structural changes in the ninth circuit. The
    recommendations of the White Commission represent an attempt to
    develop a solution to a problem that in my view does not exist.
    I have great respect for the members of the Commission and for
    their hard work over the past year, especially given the
    relatively short timeframe in which they were instructed to
    complete their study. I do not feel, however, that they have
    cited any empirical evidence or other data that justifies the
    proposed divisional structure for the ninth circuit described
    in their report.
        One of the most frequent criticisms of the court by those
    who support the division is the 14 months on average it takes
    from the notice of appeal to the determination of the case,
    which is 4 months greater than the national average. There is a
    simple reason for this delay. Congress has refused to fill the
    vacancies that exist on the court. There are currently seven
    vacancies on the court which represent one-quarter of the
    authorized judgeships, and for the better part of the last 4
    years, the court has functioned with only 18 active judges. It
    is unfortunate that the Commission was not able to analyze the
    impact of these vacancies on the court's timetable for
    disposing of its caseload.
        It is also a bit ironic that some members of the Senate who
    have advocated splitting the ninth circuit have also played a
    leading role in blocking the effort to fill the vacancies on
    the court.
        Another criticism which has been perceived is a lack of
    consistency in maintaining a uniform body of Federal law in the
    Western States due to the size of the court and the large
    number of possible panel contributions. Although I do not
    believe there is any evidence to support this criticism, I also
    do not feel that the Commission's recommendation to create
    three new adjudicative divisions, including two within the
    State of California, will do anything to address this perceived
    problem. In fact, if implemented, it could have just the
    opposite effect, and I know that Judge Hug will address this
    issue in more detail.
        But I think it is important to note that the overwhelming
    majority of judges and attorneys in the ninth circuit are
    satisfied with its current structure.
        Underlying the many criticisms that have been leveled at
    the court is the real issue that some members have proposed
    splitting the ninth circuit from time to time. They simply do
    not like the decisions rendered by the court. Some sponsors
    have made clear their displeasure with many decisions issued by
    the court, particularly in the area of environmental law.
    Surely not all of the decisions of the ninth circuit--or, for
    that matter, any circuit--come down the way that all of us
    would favor. I myself have cosponsored legislation to reverse
    certain decisions of the ninth circuit in the past. But I do
    not believe that differences over the decisions rendered by the
    ninth circuit are adequate grounds either to split the court or
    to restructure it.
        One of the most telling aspects of the Commission's report,
    in my opinion, is contained in the additional views of Judge
    Merrit and Justice White where they state,

              We believe that no legislation extending Federal
            jurisdiction into areas that traditionally fall within
            the scope of State regulation or prosecution should be
            enacted without full and informed consideration of the
            appropriate balance of jurisdiction between State and
            Federal courts, as well as the effect that proposed
            legislation will have on the ability of the Federal
            courts, including the courts of appeal, to carry out
            their core functions.

        This admonition to Congress is well taken, and it is not a
    partisan issue. Members of Congress on both sides of the aisle
    have been increasingly guilty over the years of engaging in a
    game of one-upsmanship to show which party is tougher on crime,
    for example, and the result has been the federalization of a
    wide array of criminal conduct in this country.
        One of the results of this endeavor has been to increase
    the caseload of our Federal courts. I believe it is time for
    Congress to address this trend before we move to do serious
    damage to the administration of justice in our Federal court
    system.
        Mr. Chairman, I thank you and the members of the
    subcommittee for letting me share my thoughts with you today. I
    believe that the Ninth Circuit Court of Appeals is functioning
    as well today, if not better, than any other circuit throughout
    the country, and I would be extremely cautious to implement
    costly and untested structural changes.
        I thank you again, Mr. Chairman.
        Senator Grassley. Senator Bryan, thank you.
        Now, Senator Reid.

    STATEMENT OF HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
                                 NEVADA

        Senator Reid. Mr. Chairman, members of the committee, I am
    very grateful that you are holding this hearing. It is
    extremely important, as Senator Kyl and the other people who
    have testified this morning have said.
        Senator Kyl, it appears--and we have spoken personally on
    this on a number of occasions--favors a split of some kind.
    Senator Murkowski favors the Commission's divisional approach.
        Mr. Chairman, there is some concern as to how we are going
    to handle the alleged problems in the ninth circuit. As I have
    indicated, some of our colleagues have expressed reasons why
    they feel the ninth circuit should be either split entirely or
    into three intracircuit divisions recommended by the White
    Commission.
        While the ninth circuit undoubtedly faces challenges which
    must be addressed, I think that we should approach this very
    cautiously. I was involved with the establishment of the
    Commission, as a number of the Senators who are now testifying
    and have testified were. I recognize the efforts they have put
    forth. I commend the Commission for stating their
    recommendations are not based upon any disagreement of court
    decisions. I have always been concerned that some of the
    advocates of structural change within the ninth circuit have
    been driven by dissatisfaction with certain decisions handed
    down by the circuit, and I commend the Commission for
    distancing themselves from such motivations.
        Mr. Chairman, Congress last passed legislation which
    significantly changed the structural composition of the Federal
    Courts of Appeals back in 1981 when the States of Alabama,
    Georgia, and Florida were separated from the fifth circuit to
    create the eleventh circuit. I am sure we could identify some
    similarities and differences between the pre-1981 fifth circuit
    and the ninth circuit today.
        But, Mr. Chairman, there is one distinction that deserves
    particular attention this morning. In 1981, the overwhelming
    majority of the circuit judges of the fifth circuit and lawyers
    who practiced in the fifth circuit agreed that such a major
    overhaul was the best course of action to follow.
        As we consider structural changes in the ninth circuit here
    this morning, the exact opposite is here today as we had in
    1981. In January of this year, in a meeting of the ninth
    circuit's 35 active and senior circuit judges, 25 judges
    rejected an outright split or the Commission's recommendations
    for intracircuit divisions. Only 4 of the 35 voted to approve
    intracircuit divisions; also, only 4 voted to approve a circuit
    split; and 2 of the judges abstained completely.
        Furthermore, an overwhelming majority of attorneys who
    practice in the ninth circuit oppose these radical structural
    changes. This opposition is bipartisan, Mr. Chairman. Actually,
    it is nonpartisan. In fact, of the two judges from whom you
    will hear today who will argue against a circuit split or
    adoption of the Commission's recommendation, one is a
    registered Democrat, the other is a registered Republican.
        There is another area of opposition that should be of
    special significance to our colleagues, especially the chairman
    and the ranking member of this subcommittee, whose States are
    not within the ninth circuit. The chief judges of eight of our
    country's circuit courts of appeals have publicly opposed the
    intracircuit divisional approach as recommended by the White
    Commission.
        Mr. Chairman, I would also like to call the committee's
    attention to the statement written and submitted by Prof.
    Arthur Hellman of the University of Pittsburgh School of Law.
    He has actually spent most of his life, his academic life,
    dealing with the Federal courts of appeal, and he has devoted a
    significant amount of time to the ninth circuit. I think you
    will find his statement very useful.
        Mr. Chairman, I would like to say a few additional things.
    First, the State of Nevada is very proud of the chief judge of
    the ninth circuit. Procter Hug has rendered great service to
    the State of Nevada and to this country as a judge of the Ninth
    Circuit Court of Appeals. Senator Bryan and I had the distinct
    pleasure of serving with his father in the Nevada State
    Legislature. Procter Hug, Sr., was one of the finest men that I
    have ever dealt with. He was a wonderful member of the State
    legislature, a great educator, and now one of our high schools
    in Reno, NV, is named after Procter Hug, the chief judge's
    father. So we are very proud of Procter Hug, Jr., as well as
    Procter Hug, Sr.
        I would also like to direct your attention to the good work
    done on this committee by Senator Feinstein, the senior Senator
    from the State of California. She is going to introduce
    legislation sometime next week which I think is extremely
    important, and I am going to support her in her efforts. As I
    understand her legislation, she would recommend three basic
    changes:
        One, en banc panels would be required to be a majority of
    the active judges. Right now we have 28 judgeships, so that
    would mean 15 would be a majority.
        Two, Senator Feinstein would require that at least one
    judge on any panel be from the same region from where the case
    has originated.
        And, three, the decision to hear a case en banc currently
    requires the approval of 51 percent of the judges. She would
    drop that percentage to one-third of the judges.
        I think this is an important improvement of what we now
    have. I would hope that she will introduce that legislation
    next week with me as an original co-sponsor.
        Mr. Chairman, I think that what we do here today--what you
    do here today, I should say, is of extreme importance to the
    country. The ninth circuit is the largest circuit in terms of
    population, and when you add in Alaska, certainly in
    territory--you add Alaska to any circuit, and it will be the
    largest region, the largest circuit. But we feel that we don't
    need to radically change what is going on in the ninth circuit.
    I think the approach of Senator Feinstein is one that we should
    address very closely. I think it is one we could pass. I think
    we could do it very quickly. And if that does not work--which I
    think it would--then we could take another look down the road.
        Senator Grassley. Senator Reid, I thank you. I thank all of
    our colleagues. I have no questions of this panel. I would turn
    to Senator Torricelli if he does or anybody else that is on the
    committee that wants to ask our colleagues questions.
        Senator Torricelli. Thank you, Mr. Chairman.
        Mr. Chairman, I have a statement I would like to put in the
    record at the beginning of the hearing.
        Senator Grassley. It will be received and included in the
    record.
        [The prepared statement of Senator Torricelli follows:]

     Prepared Statement of Hon. Robert G. Torricelli, a U.S. Senator From
                            the State of New Jersey

        Thank you Senator Grassley for holding today's hearing. I would
    like to welcome Senators Feinstein, Kyl, Reid, Murkowski, Bryan, and
    Gorton, as well as the other distinguished witnesses.
        Article I of the Constitution grants Congress the power to
    structure the Federal Courts: ``The Congress shall have Power * * * To
    constitute tribunals inferior to the supreme court.''
        Article III reiterates that power: ``The judicial power of the
    United States shall be vested in one Supreme Court, and in such
    inferior courts as the Congress shall from time to time ordain and
    establish.''
        As with other exercises of our enumerated constitutional powers, I
    believe those advocating action carry a heavy burden. There must by
    necessity be a strong presumption that Congress retain the current
    court structure.
        Beginning with the Judiciary Act of 1789, in which we created the
    lower federal courts, Congress has exercised its constitutional power
    with great care.
        In 1891, we passed the Circuit Court of Appeals Act, which
    essentially created the modem federal court structure. Since 1891, we
    have acted only four times to structurally alter the circuit courts:
    creating the 10th Circuit in 1929, the D.C. Circuit in 1948, the 11th
    Circuit in 1981 and the Federal Circuit in 1982.
        Thus, history demonstrates that we have shown ample discretion in
    altering the structure of the circuit courts. We have done so only when
    a consensus existed that such change was warranted.
        As I reviewed the White Commission report, and the testimony to be
    given today, it became clear that there is no unanimity on the
    questions before us--other than that fact that the Ninth Circuit is
    geographically large.
        But there was never a question that the Ninth Circuit is large. It
    encompasses nine states, Guam, and the Commonwealth of the Northern
    Mariana Islands. The Ninth Circuit Court of Appeals is the largest
    circuit in the country with 28 authorized judgeships--although it
    should not go without noting that there are 7 current vacancies on the
    circuit, a full 25 percent of the seats.
        But clearly size is not the question. Instead, we must ask
    ourselves if the actions we take can make the administration of justice
    in those federal courts more efficient and effective. The White
    Commission found: ``There is no persuasive evidence that the Ninth
    Circuit is not working effectively.'' As we will hear today, the
    majority of the judges and attorney's who practice in the Ninth Circuit
    day in and day out do not think that a change is necessary.
        Finally, we must guard--perhaps as much as any other time in the
    legislative process--against the insertion of political or ideological
    purposes into this process.

        Senator Reid. Mr. Chairman, I know you may have some
    questions, but there are people here who could answer them. I
    know you have heard a lot of excuses, but I have got my wife
    waiting.
        Senator Torricelli. That is the best one possible.
        Senator Grassley. Anybody who needs to go obviously can go,
    but I want to make sure that my colleagues get a chance to ask
    questions.
        Senator Feinstein.
        Senator Feinstein. I have no questions.
        Senator Grassley. Senator Sessions.
        Senator Sessions. I guess my question would be: Do any of
    you want to go further than division and go to an actual split?
    I was present the day the eleventh circuit was created from the
    fifth circuit split. It worked marvelously and naturally, and I
    am almost stunned that people aren't unified at least in some
    sort of plan to divide this circuit.
        Senator Gorton. Well, if I could take that on, of course,
    from the early 1970's, I have been a devotee of the Hruska
    Commission recommendation that literally we have a division
    into new circuits. That was the proposal that I have introduced
    in the past, and I think Senator Kyl has, and it was what was
    passed by the Senate here.
        The division structure had not occurred to me at any time
    there. And as I said in my opening remarks, I am willing to
    admit from my perspective that the White Commission report is
    preferable to the bill that I was introducing previously. It
    seems to me that it met, for all practical purposes, all of the
    previous criticisms of the earlier bills, and because it is
    universal in nature, it removes the pressure for an increasing
    number of circuits in the United States as the population and
    caseload of the whole country grows.
        So I guess my conclusion is that I like this better than I
    did my earlier bills.
        Senator Sessions. Well, that is good.
        Senator Kyl. Mr. Chairman, might I make a comment on that?
        Senator Grassley. Senator Kyl.
        Senator Kyl. I think there are two reasons why the White
    Commission concept, if not the specific proposal, is warranted.
    The first is political. A circuit split is probably a bridge
    too far. You have seen the division among us even to have
    adjudicative divisions and leaving the circuit intact. That is
    going to be hard enough, let alone splitting the circuit.
        But there is a second substantive reason why I think the
    White Commission was ingenious. There is a point at which if
    you continue to split circuits, you are probably going to need
    to consider some kind of intermediate appellate court between
    the circuit court of appeals and the U.S. Supreme Court to
    resolve the ever-increasing number of conflicts among the
    circuits. That is something that I think would be very, very
    bad, and I know a lot of people agree. And this is one way to
    obviate that, to create a situation in which the number of
    circuits remain the same and you work out any disagreements
    within the circuit at the circuit level with a special division
    that would resolve any conflicts between the divisions or among
    the divisions so that you don't increase the number of
    conflicts among the circuits which the U.S. Supreme Court would
    have to resolve.
        So it is a way to deal with the future problem of
    increasing population in this country and the pressure to
    continue to divide circuits. I think it is pretty ingenious in
    that regard.
        Senator Sessions. Well, I am glad to hear you are favorably
    disposed to consider that. I don't have a strong feeling one
    way or the other, other than I do not believe it is an
    effective way to run a court to have one this large. We had
    testimony--Senator Grassley did--in this committee last year
    when at least two chief judges of other circuits said that 12
    or 14 judges was as large as a circuit should get. The ninth
    circuit is already twice that size, and its ratio of population
    to judges is even more than that.
        So I think addressing the problem is necessary, and I am
    open to your suggestions on how to do it.
        Senator Bryan. Mr. Chairman, may I respond? I won't repeat
    all of my reasons, but as Senator Sessions knows, I favor
    neither the split nor the administrative division. California
    is clearly the 800-pound gorilla in this scenario, but the
    majority, overwhelming majority of practitioners and members of
    the bar of my State, which, by contrast to California's 32
    million, is about 1,800,000, is very comfortable with the
    present situation. I, like my colleague and friend, Senator Kyl
    of Arizona, am a member of the bar. I have practiced before the
    ninth circuit, and I would simply say for those members of the
    bar in my State and the members of the judiciary, we favor
    retaining the present system.
        I just think the record needs to reflect that.
        Senator Torricelli. Mr. Chairman.
        Senator Grassley. Yes, Senator Torricelli.
        Senator Torricelli. Thank you, Mr. Chairman.
        For me, and perhaps for me alone, this is an argument of
    first impression. I have heard discussion of this problem, but
    the ninth circuit is a long way away from home. And I haven't
    been exposed to a great deal of this before.
        Let me simply just suggest the following impression: If
    indeed this is a problem of size and efficiency, I think all of
    us would be sympathetic. It is persuasive that the White report
    noted that it did not discover difficulties in the operation of
    the circuit. That bears some considerable weight.
        One is left wondering whether there is a concern for the
    operation of the circuit or whether this is a modern equivalent
    of FDR's court-packing attempt for ideological reasons.
        It is further suspect because there are seven vacancies in
    the circuit, and I trust the same enthusiasm with which people
    would change the circuit is now leading to pressure to assure
    that those vacancies are filled so that the circuit is
    operating properly.
        I come to no judgment on any of these, but they are
    questions in my mind.
        I am, though, left finally with this. For whatever the
    States involved should decide--and I believe the rest of us in
    the Senate should largely be guided by the States that are in
    the circuit and what you think is best for the operation of
    justice in your own region of the country--the one thing that
    goes to a national concern where I believe we have a legitimate
    interest is this issue of dividing a State into these
    divisions. To me it is somewhat of a contradiction of our
    concept of national union and how the courts have worked with
    the States. You can imagine a State administrative action or
    action of the California State Legislature or, indeed, an
    agency of the Federal Government in California being in these
    two divisions, what it will create in a temptation for forum-
    shopping, or if at any moment there are contradictory views in
    the two divisions, and the time in which it takes the circuit
    or the Supreme Court to resolve these conflicts, the State of
    California or Federal agencies or private citizens would be
    left in legal limbo.
        So I believe this is largely a judgment for all of you to
    reach, and I think much of the Senate will be guided by your
    wisdom. But there is in my mind that one national concern in
    that order in the courts, avoidance of conflict, and efficiency
    is a legitimate national concern. And at least because it is
    the first time that this plan of division has been raised, that
    will attract some attention no matter what you should all
    decide.
        Thank you, Mr. Chairman.
        Senator Grassley. Senator Torricelli, I thank--yes, Senator
    Gorton.
        Senator Gorton. Two points to Senator Torricelli. Whatever
    you think of the ideological predilections of your colleagues
    in the Senate, Senator, I doubt that they can be applied to
    Justice White. And, second, I think there is a distinct
    difference between dividing a State into two circuits and what
    is little more than an administrative division within the same
    circuit, which ultimately comes up with the same laws, but it
    is a consideration and it is one that not only Senator
    Feinstein raised but Senator Kyl as well.
        Senator Torricelli. If I could, Mr. Chairman, I think that
    is a good clarification. But because this is the first time
    this is done, it isn't entirely clear to me how this would
    function. Whether it is administrative or whether we are adding
    a new layer of appeal which will cause not only expense and
    delay, but conflict. And it is hard to know because it hasn't
    been done before. That is why I think it should be discussed.
        Senator Kyl. Mr. Chairman, Senator Torricelli, might I just
    make one clarification? The White Commission recommendation is
    that all of the administrative functions of the court be
    retained centrally. So all of the administration would remain
    as it is. The only thing that would change would be the
    adjudicatory panels, the way that the judges are assigned to
    actually hear cases and decide cases. That would be done by
    division.
        The points you raise I think are well made, and all of
    these are important considerations, not just for the ninth
    circuit but because they could theoretically form a precedent
    for dealing with other circuits as they become larger.
        Senator Torricelli. There is a central question that I
    generally don't understand, unlike most questions asked in this
    institution where people already have the answers in mind. If
    the California State Government takes some administrative
    action which someone believes is contrary to the U.S.
    Constitution, and they must decide whether or not to go and
    file this with a district court in San Francisco or Los
    Angeles, how do we avoid the fact that they are reviewing who
    the judges are and trying to predetermine a result by engaging
    in forum-shopping?
        Senator Gorton. Well, they are doing that now.
        Senator Kyl. Yes, Mr. Chairman, if I could, every good
    lawyer seeks to determine where the best forum would be, and
    when you have different district courts among which to choose
    from, obviously that is one of the considerations that you take
    into account before you file your lawsuit.
        The district courts are the court of first impression. That
    is where the lawsuit is filed, so that is done today. I think
    it is a bit of a stretch to say now let's see which one of the
    appellate divisions would decide this depending upon where we
    file it, and then you are going to have to figure out, well,
    which one of the judges are likely to sit on the panel. It
    becomes rather attenuated to use that as a criterion. It is
    theoretically possible, but I think the way the Commission
    resolved that was to say that the decisions of any division are
    not binding on the other divisions and that you have a conflict
    resolution mechanism for that. It is still theoretically
    possible, but I think a fairly small matter in the overall
    scheme of things.
        Senator Torricelli. Thank you.
        Senator Bryan. Mr. Chairman, if I might, Senator, before we
    embrace this divisional concept, I think we want to listen very
    carefully to the testimony of Judge Hug. He believes, that this
    concept will make it more difficult to develop a consistency in
    circuit law, and, I think this ought to concern every
    litigant--that by so doing, we add an additional level of
    potential appeal which will delay finality. He will make that
    argument far more persuasive than I, but I hope you will have a
    chance to hear from him and, if not, to read his testimony.
        I thank you, Mr. Chairman.
        Senator Grassley. I thank all my colleagues.
        Senator Grassley. I now call Ronald Olson. Mr. Olson is a
    partner with the Los Angeles-based law firm of Munger, Tolles &
    Olson. He is also a former member of the ABA Committee on the
    Federal Judiciary and the former chairman of the ABA Litigation
    Section.
        Mr. Olson, we offer you our condolences and understand why
    you asked to go early, and also, thank you for making it here
    today to testify under these circumstances. So would you please
    proceed?
        Oh, let me announce not only for you but anybody else,
    whenever we have this vote, I have worked out with Senator
    Sessions that I would go vote early and come back, and then he
    would go vote, so we will not have to call adjournment or
    temporary recess of the committee hearing.
        Would you proceed, Mr. Olson.

     STATEMENT OF RONALD L. OLSON FROM MUNGER, TOLLES & OLSON LLP,
                            LOS ANGELES, CA

        Mr. Olson. Thank you, Senator Grassley. Let me say it is a
    high honor to appear before your committee, a high honor to
    appear before my Senator, Senator Feinstein, and just in case
    it may add a wee bit of credibility to what I have to say, the
    first 22 years of my life were spent in the great city of
    Manilla, IA.
        Senator Grassley. Spelled with two L's.
        Mr. Olson. Two L's. We both know that.
        Senator Grassley. It is one of our 945 outstanding
    communities in Iowa. [Laughter.]
        Mr. Olson. As a starting premise, I presume that whether
    one looks from the perspective of a designer of Federal
    institutions, as each of you does, or from the perspective of a
    user of Federal institutions, as I do, I think we would all
    readily and quickly agree that our U.S. Courts of Appeals are
    among our most important Federal institutions.
        From my perspective as a user, a lawyer for 33 years,
    appearing in Federal courts from here to California, certainly
    including the courts in the eighth circuit, the fifth, the
    eleventh, and even in the second, and the great State of New
    Jersey, I can honestly say that I know of few Federal
    institutions that operates as effectively or as efficiently as
    the U.S. Court of Appeals for the Ninth Circuit.
        I think it is somewhat ironic that the very document that
    has served as the basis for the proposed legislation to
    fundamentally change and divide the ninth circuit does not
    disagree. The White Commission, whose individual members I have
    the highest regard for, found, ``There is no persuasive
    evidence that the ninth circuit is not working effectively.''
        It also wrote,

              Maintaining the Court of Appeals for the Ninth
            Circuit as currently aligned respects the character of
            the West as a distinct region. Having a single court
            interpret and apply Federal law in the western United
            States * * * is a strength of the circuit that should
            be maintained.

        These findings alone, in my opinion, and in the opinion of
    two different American Bar Association committees that have
    recently looked at it, the Litigation Section and the Standing
    Committee on Federal Court Improvements, as well as my own
    hometown bar association, the Los Angeles County Bar
    Association, believe that these findings alone should blunt any
    proposal to fundamentally change or divide the ninth circuit.
        With all due respect to Justice Kennedy, who was cited by
    Senator Kyl a moment ago, it seems to me he has it wrong. The
    heavy burden of persuasion should not be on those who are
    advocating the status quo but, rather, on those who are
    proposing to change a fundamental Federal institution that has
    served our country well. That is point one.
        Point two is the faulty notion that greater regionalism
    will somehow advance federalism. Each circuit court implements
    congressional policy and direction from the Supreme Court. I
    know of no jurisprudence or judicial philosophy or political
    philosophy that suggests that the national legal function, the
    interpretation of those laws that you Senators every day work
    to bring to the benefit of our public, nothing that suggests
    that national function is better attained through smaller and
    more sharply regional courts. But that is exactly what the
    White Commission has proposed.
        I would like to insert here, if I may, a comment that is
    responsive to what I have heard from the Senators thus far this
    morning, a huge emphasis on the number of reversals coming out
    of the ninth circuit, opinions coming out of the ninth circuit
    reversed by the Supreme Court.
        I want to say, first of all, that it seems to me the
    emphasis on numbers is misplaced, for a whole lot of reasons.
    In the first instance, for every case that is taken by the
    Supreme Court and reversed, there are hundreds--if you want to
    look at statistics--where the court must have gotten it right.
        But even if you look at the reversals, it seems to me
    inappropriate to take an aberrational year like 1997 and turn
    it into a reason to, again, fundamentally change a Federal
    institution. As Senator Feinstein pointed out, more recent
    experience is more even, and in the statistical sense,
    competitive and appropriate vis-a-vis the other circuits.
        Second, on that point, I know of absolutely no evidence to
    suggest that there is a correlation between size and getting it
    right. None. I don't think there is any that exists.
        So far as I know, most of those decisions that were
    reversed from the ninth circuit came out of three-judge panels,
    just like most of the decisions that get reversed elsewhere.
    Three judges, not 28, 24, or 18. But it is three judges who
    come together with their own independent minds and their own
    assessment of the legal issues involved.
        The Supreme Court takes--and I know this from personal
    experience of having briefed hundreds of cert petitions--takes
    only the most important and most difficult questions. And when
    there is a reversal, it is often by a split decision. And to
    condemn a court because they come up short on the 5-to-4 vote
    or the 6-to-3 vote seems to me to be a little wrong-headed.
        Third, the proposal that has been made would, in my
    opinion, only exacerbate the very problem that the Senators
    seemed to have focused most sharply on. One should understand
    that the Ninth Circuit Court of Appeals is served by one of the
    most sophisticated clerk's offices in the country. Among other
    things that they do is code every issue that comes before the
    court in every appeal, and by coding these issues, they are
    within minutes able to relate related cases to the panels
    deciding any particular case.
        The myth that because there are hundreds of opinions coming
    out of the ninth circuit and judges can't read all as a reason
    for the number of reversals is, as I suggest, a myth. The
    judges read those decisions that are most pertinent and
    relevant to the case before them, and they have many, many
    tools, including this coding technique, for accomplishing that.
        The panel decisions that exist today in the ninth circuit
    are binding throughout the circuit. Every judge must respect a
    panel decision that has been made. Under the proposal that will
    be made--that has been made, each of the three divisions will
    have decisional autonomy. They are to give substantial weight,
    whatever that means, to the decisions of the other divisions,
    but they have decisional autonomy. They can ignore it. In
    effect, there is an encouragement to differences of view rather
    than what we now have, a mandated consistency.
        All judges today participate in proposing and voting on
    whether a case should go en banc, every single judge, and when
    a case is rejected for en banc, every single judge has
    participated in that judgment that it does not deserve en banc
    consideration.
        When it does go to an en banc hearing, it is correct that
    it is heard by only 11 of the judges, and I applaud Senator
    Feinstein and her proposal for improving the current en banc
    process that we have. And I think it would go a long way toward
    adding some additional consistency to what we have in the ninth
    circuit. But I want to contrast that with what the proposal
    would do.
        The proposal would have three divisions, each, as I say,
    having decisional autonomy. There would be a separate en banc
    process in each of those divisions. Only the so-called resident
    judges would vote on whether or not something should go en
    banc. Those judges sitting out of division, a California judge
    sitting in the Northern Division, for instance, would not even
    have the right to vote. And, of course, all of the judges
    sitting in the other divisions would not have the right to
    vote. So there would be less not more participation by the
    court as a circuit in the en banc process.
        I would point out that one of the things that would occur
    in the en banc process as proposed is that after there has been
    a decision by one of the divisions that is in square conflict,
    as the White Commission puts it, with a decision in another
    division, then and only then would this circuit division, the
    overriding division, court, have the ability to take that
    conflict and resolve it. It would deny circuitwide en banc
    consideration of what we now have available to us in addition
    to conflicts, and that is cases of exceptional importance. And
    we all know that there are a number of cases of exceptional
    importance. That is not even a justification for getting to the
    circuit division consideration.
        So I suggest to those who are concerned about the reversal
    rate that the proposal that has been made will not be helpful,
    but harmful to what your objective seems to be.
        Seemingly, the premise of the White Commission report is
    the hunch--no analysis has been put forward, but the hunch that
    greater efficiency and effectiveness will be attained through a
    tripartite Ninth Circuit. But in practice, for us litigants and
    lawyers, as well as for the Government, the proposed imposition
    of regional divisions is sure to add, not subtract, to cost and
    complexities.
        From the Government perspective, staffing and offices of
    the separate divisions would surely be duplicative and
    expanded. This splitting to achieve efficiency is not only
    counterintuitive, but it is at odds with what we see going on
    every day in our private sector. Today what we have are
    mergers--mergers that are being justified to the public and to
    regulators by size, efficiencies, and by the elimination of
    overlapping employees and functions. This proposal goes the
    exact opposite direction.
        From the user perspective, the absurdity seems obvious.
    Conducting California statewide business under the jurisdiction
    of two different Federal court divisions, each with decisional
    autonomy but for those square conflicts I spoke of, and the
    notion that a litigant in the West now would have three levels
    of Federal decisionmaking--the district court, the regional
    division, and the circuit division--is sure to add to
    inefficiency, time delay, and expense for both business and
    litigation. And it would also for those same reasons place the
    Western United States at a disadvantage versus other parts of
    the country where States operate under a single Federal court
    system with only two levels of Federal decisionmaking.
        My clients, who regularly complain to me about too much
    litigation expense, time, and complexity, would not see this as
    a step in the right direction.
        The ninth circuit because of its size has, in fact, been
    one of the most innovative of the Federal circuits. Often it
    has been first with procedural innovations and automation to
    the benefit not only of the ninth circuit but all Federal
    circuits.
        Senator Sessions [presiding]. Mr. Olson, I believe your
    time has expired considerably, so----
        Mr. Olson. I thank you very much for the consideration you
    have given me, and I am delighted to submit my statement and
    respond to any questions that you would have.
        Senator Sessions. We would be delighted to. Senator
    Grassley and Senator Feinstein have gone to vote. I could at
    least get some of my questions out of the way while they are
    gone. I am not sure we would want to start the next panel until
    they return.
        Mr. Olson, I suppose my observation just as a person who
    spent 15 years full-time in Federal court practicing before
    Federal judges is that we ought to and the goal is to have one
    national law. Senator Biden made a speech on the floor one
    night, and I happened to be presiding, and he said he didn't
    like the idea that some of the members who wanted to split the
    circuit wanted to do so because they thought they could have
    home law as opposed to national law and there wasn't but one
    Constitution. It was one of his best, most eloquent efforts, I
    thought. That is the goal, to have a uniform national law.
        My observation would be that there is a consistently high
    reversal rate in the ninth circuit. I do not think that is
    necessarily the most critical issue as to whether it ought to
    be divided, but I think it is a factor. Would you disagree with
    me that the larger the court gets, the harder it is to have
    collegiality, to work out differences, and to speak with one
    voice?
        Mr. Olson. Let me split that up. With all due respect, I
    think I would disagree, Senator Sessions. With regard--at least
    in part, with regard to collegiality, certainly any institution
    that gets larger lacks some of the personal contact that one
    has in a smaller institution. But as our former Chief Judge
    Wallace pointed out, the Federal courts are there to serve not
    the judges and not their personal relationships, but the
    people. And I don't think that ought to be a controlling
    consideration.
        I will also point out, however, that the ninth circuit has
    been in the forefront of using all of the new means of
    communications to increase collegiality. They conduct
    conferences, for instance, by videoconference. They have for
    many, many years communicated through e-mail, which seems to be
    overtaking the rest of the world, although it hasn't caught up
    with me yet. So collegiality I think is a bit overrated.
        With regard to the reference to getting it right and the
    reversal rate, again, I want to underscore that by splitting
    into three divisions, it will only increase the likelihood of
    there being differences as opposed to increase the likelihood
    of there being a consistency and decrease the likelihood of
    reversals.
        Senator Sessions. Well, wouldn't that review system that
    they have set up work out the differences in a more effective
    way with a new system than with the present system?
        Mr. Olson. No; and let me try to hit that head-on.
        First of all, with regard to the review system, let's make
    sure we understand it. Each division would have decisional
    autonomy. That means it is, as the White Commission puts it,
    supposed to give substantial weight to the other divisions, but
    it is not bound by it. So they can make their own decisions.
        Once there is a decision made in a particular circuit, it
    gets reviewed in that division only if a vote of the resident
    judges in that division say it should be reviewed en banc in
    that division.
        The only decisions that get attention at the circuit
    division level, which I think the Senator is referring to
    mostly, are those where there is, as the White Commission puts
    it, a square conflict, whether it be by a panel decision or an
    en banc decisions, but a square conflict between decisions in
    two different divisions. That leaves a huge, huge room for
    disagreement.
        I will tell you one thing. I have spent time clerking for a
    Federal judge, and I have spent a lot of time advocating to
    Federal judges. And for those who want to avoid a square
    conflict in the way in which an opinion gets written, I suspect
    it would be fairly easy. I don't think you are going to get the
    kind of consistency out of this review system that is
    suggested.
        Senator Sessions. Well, I think fundamentally there are two
    problems with the ninth circuit's reversal rate. One of them is
    that philosophically they are not in tune with the rest of the
    country. I have read their criminal opinions for 15 years, and
    I have seen many criminal cases, and it was a well-known fact
    all over this country that when you don't find any other law to
    support a criminal defendant's case, you can find a case in the
    ninth circuit. And judges do not respect those opinions in
    other circuits as highly as they do opinions from other
    circuits.
        Now, that is a fact. I have been there. I know that. It
    just happens to be where I spent 15 years of my professional
    career. So they are out of sync, and dealing with that is part
    of our confirmation process and it is also the President's
    responsibility.
        I do think perhaps that is not all of it. I wonder maybe
    there is some way we could develop a closer collegiality.
    Certainly the judges we have heard testify from the other
    circuits indicate that they don't want their circuits to grow,
    that they would rather take on a heavier caseload than to
    divide or add more appellate judges. They would rather dispose
    of more cases per judge than add judges.
        Let me ask you one question as a practicing lawyer, the
    statement was made that the bar opposes the division. Has there
    been any formal survey of that? And what kind of numbers were
    returned?
        Mr. Olson. First of all, let me say that there has been a
    formal consideration of it in the Los Angeles County Bar
    Association, of which I am a member, and it has taken a formal
    position opposed to it, as has a large number of other bar
    associations within the circuit. I cannot cite to them with
    specificity.
        With regard to the American----
        Senator Sessions. To your knowledge, you are not aware of
    any circuitwide survey?
        Mr. Olson. Not a circuitwide survey, no.
        With regard to the American Bar Association, let me make
    plain that it has received, to my knowledge, the consideration
    of those two committees that I have just cited, the litigation
    section and the Standing Committee on Federal Court
    Improvements. Both have taken strong stands against the
    proposal that has been made. They have put before the House of
    Delegates of the ABA, I am told, for a decision this August, a
    resolution that would formally assert that position on behalf
    of the entire ABA. That has not been voted on. Let me make that
    clear. That at this point is in the form of a resolution.
        And if I may comment on what the Senator just said a moment
    ago about being out of step, I know the integrity with which
    that concern is expressed by Senator Sessions, and I have
    followed that point of view as expressed for many years.
    Whether I disagree or agree is irrelevant. I do think, however,
    that the Senator answered his own concern by saying that that
    is not a function of size or efficiency or effectiveness, but a
    function of who it is that is sitting on the court.
        More collegiality between those who, in the Senator's view,
    have it wrong isn't going to change anything. It seems to me
    this is an issue to be taken up at the time of confirmation or
    the time of appointment, and whether or not we are
    appropriately served in that regard is a wholly separate
    question than this very fundamental proposal that has been----
        Senator Sessions. Well, there are a lot of factors there. I
    think one of the arguments and concerns is that you have so
    many three-judge panels, the likelihood of an odd panel coming
    together that has a divergent view from the majority increases,
    and there is less of a sense that we are bound together and
    have an obligation to speak with one voice for the circuit,
    perhaps that is a factor here. Would you deny that, disagree?
        Mr. Olson. I would disagree, and I would, more importantly,
    argue that the proposal that has been made would only
    exacerbate the concern the Senator raises. Today, if there is
    an aberrational panel decision, any single judge on the ninth
    circuit has the right to propose an en banc reconsideration of
    that decision. And I am told that with regularity there is hot
    debate among the judges of the ninth circuit on whether to
    receive a case en banc. But each single judge can raise that if
    they think there has been an aberrational decision made. And
    each single judge gets to vote on whether or not it goes en
    banc.
        Under the new proposal, that would not be the case. Only
    for the en banc reviews in the divisions, only the resident
    judges would vote, not the nonresident judges, and none of the
    judges in the other divisions would vote. You would have less
    of a participation than you have now, and it would be less
    reflective of the entirety of the court, of the circuit.
        So I think, to my sense, anyway, this would only exacerbate
    rather than correct the concern that is expressed.
        Senator Sessions. Well, you make some good observations on
    that. I think it is a matter that ought to be studied. I think
    the circumstances requiring splitting of a circuit have
    occurred before, and we know how that works. This would be a
    rather novel and unusual approach for sure, and I do believe we
    should study it.
        There does appear to be a political lack of will here. It
    has been tried and debated, as I understand it, long before I
    came here to divide this great circuit. So maybe it would be a
    good thing now to get our next panel up and introduced. Thank
    you, Mr. Olson, for sharing your insight and the effort you
    have made to articulate these matters.
        Mr. Olson. Thank you, Senator.
        [The prepared statement of Mr. Olson follows:]

                   Prepared Statement of Ronald L. Olson \1\
    ---------------------------------------------------------------------------

        \1\ Ronald Olson is a partner in the Los Angeles-based law firm
    Munger, Tolles & Olson LLP. A copy of his curriculum vitae is attached
    hereto.
    ---------------------------------------------------------------------------
                                  introduction
        Thank you for the opportunity to add my views to the thoughtful
    debate regarding the workings of the Ninth Circuit, the findings and
    recommendations of the White Commission, and the Ninth Circuit
    Reorganization Act.
        By way of introduction, I am a Los Angeles lawyer who has for
    thirty-three years practiced before federal courts throughout the
    United States. I regularly argue cases before the Ninth Circuit and
    work with the judges to improve it. I believe the Ninth Circuit to be
    among the most vital, effective, and innovative courts in which I have
    practiced, and fear that the changes now proposed will take the Circuit
    in exactly the wrong direction. I previously submitted prepared
    testimony to the White Commission, and comments to the White
    Commission's draft report, and am pleased that the Commission has
    recognized the wisdom in retaining the Ninth Circuit as single federal
    Circuit Court for the Western states. I appreciate the invitation to
    testify again, this time before this Senate subcommittee, and offer the
    following testimony in opposition to the Commission's recommendation
    that the Court be reorganized into three semi-autonomous divisions.
    1. The White Commission itself acknowledged that the ninth circuit is
            functioning well and should not be split; therefore, there is
            no basis to impose the new, complex divisional structure on the
            well-functioning court
        As a lawyer, I place the burden of persuasion on those who seek to
    change the current structure and operation of the Circuit. Like the
    states that comprise individual circuits, the boundaries of each
    circuit are best explained by historical facts that may have less
    relevance today. However, subsequent history and tradition and the
    opportunity to share the collective experience of different circuit
    sizes and management tools are powerful reasons against redrawing
    circuit boundaries or meddling in their internal organization, absent a
    compelling reason to do so.
        I am not alone in placing the burden on those who ask Congress so
    fundamentally to alter the internal structure and operations of the
    Ninth Circuit. The Committee on Long Range Planning of the Judicial
    Conference of the United States, for instance, has concluded:

              Circuit restructuring should occur only if compelling
            empirical evidence demonstrates adjudicative or administrative
            dysfunction in a court so that it cannot continue to deliver
            quality justice and coherent, consistent circuit law in the
            face of an increasing caseload.

    Proposed Long Range Plan for the Federal Courts (1995).

        Here, the White Commission Report itself makes the case for keeping
    things as they are:

              Maintaining the court of appeals for the Ninth Circuit as
            currently aligned respects the character of the West as a
            distinct region. Having a single court interpret and apply
            federal law in the western United States, particularly the
            federal commercial and maritime laws that govern relations with
            the other nations on the Pacific Rim, is a strength of the
            circuit that should be maintained.

        The Commission also concluded that splitting the Circuit is
    unnecessary: ``We have reviewed all of the available objective data
    routinely used in court administration to measure the performance and
    efficacy of the federal appellate courts, but we cannot say that the
    statistical criteria tip decisively in one direction or the other.'' In
    other words, those seeking to change the current operation of the
    Circuit, according to the Commission itself, have failed to meet their
    burden to show that change is needed.
        The Commission has correctly concluded that the Circuit is neither
    inefficient nor dysfunctional. My experience as a litigator confirms
    this. Accordingly, there is no reason to tinker with this well-
    functioning Circuit.
    2. The proposed divisional structure improperly concedes that Federal
            court should be structured to secure regional representation
            and to reflect regional interests
        Despite the fact that the Commission finds no compelling data
    justifying splitting. the Circuit, it nevertheless proposes a
    ``divisional structure,'' which, for all intents and purposes, does
    just that. The proposal rests in part on the rather quaint notion that
    the Circuit is ``just too big,'' and that balkanizing the Circuit into
    divisions will foster ``collegiality'' of the judges, thereby
    increasing the quality of decisionmaking.\2\ Suffice it to say that
    this idea that Circuits have a natural size limit is unprincipled,
    sentimental, and fails to face the inevitable consequences of ever
    increasing caseloads and expanding federal jurisdiction. Like it or
    not, I predict that the Circuits of the future will look more and more
    like the Ninth Circuit of today, regardless of judges' and litigants'
    nostalgia for the smaller courts of years past.\3\
    ---------------------------------------------------------------------------
        \2\ The Commission presumably relied on testimony such as that
    submitted by the Honorable Edward Becker of the Third Circuit, whom I
    admire greatly, and who testified:

            [W]hen a circuit gets so large that an individual judge
          cannot truly know the law of his or her circuit * * * the
          circuit is too large and must be split. * * * I cannot
          imagine a judge in a circuit as large as the Ninth, with
          its staggering volume of opinions, being able to do what we
          in the Third Circuit do. * * * If this assumption is
          correct, the Ninth Circuit, according to my rough rule of
    ---------------------------------------------------------------------------
          thumb, needs to be split.

    Letter from Hon. Edward R. Becker to the Honorables Byron R. White,
    Gilbert S. Merrit, Pamela Ann Rymer, and William D. Browning, and N.
    Lee Cooper, Esq. of January 26, 1998.

        \3\ Hon. J. Clifford Wallace, former Chief Judge of the Ninth
    Circuit, wisely acknowledged in testimony submitted to the Commission
    that the life of a judge on a small court may well be more enjoyable
    than it is on a large court. However, ``my preference to live in a
    small town or to work in a smaller court is not relevant. Federal
    courts do not exist to serve the preference of federal judges. * * *
    The real question, then, is not what size of court judges prefer, but
    which size will work best for the future.''
    ---------------------------------------------------------------------------
        More troubling, however, is the concession implicit in the proposed
    ``regional'' divisions that litigants from certain regions or states
    are entitled to have their federal cases heard by local judges. It is
    no secret that the most recent efforts to restructure the Circuit have
    been launched by politicians who believe that Ninth Circuit judges have
    issued opinions detrimental to local interests. One Senator, for
    instance, has stated that the Ninth Circuit is ``dominated by
    California judges and California judicial philosophy. * * * [T]he
    interests of the Northwest cannot be fully appreciated or addressed
    from a California perspective.'' Putting aside the threshold question
    of, for example, what constitutes a ``California perspective,'' I am
    terribly concerned that these regionalist notions have insinuated
    themselves into the public debate about the working of the Circuit.
        The authority we collectively confer on federal judges rests
    largely upon the premise the judges are to be guided by the
    Constitution and federal law, not by the varying winds of regional
    interests. Indeed, the Constitution in its wisdom provides that Article
    Three judges be appointed for life, in significant part to protect
    against the pressures of local, state, or regional interests. The
    federal circuit courts are superimposed upon the fifty states and
    numerous territories in the face of their vastly differing economies,
    histories, and cultures. Despite these local differences, however, we
    expect that the Constitution, as well as the Securities and Exchange
    Act, the Endangered Species Act, ERISA, RICO, and even the Federal
    Rules of Civil Procedure and Federal Sentencing Guidelines, all mean
    the same, and will be enforced with equal vigor, whether the judge
    interpreting these authorities sits in Guam, Texas or Maine.
        Any argument premised on the assumption that judges will not limit
    the bases of their decisionmaking to the law and record before them,
    but instead will decide cases with an eye to local interests, should
    not be countenanced. I fear, however, that the proposed divisional
    structure, sub silentio, acknowledges the validity of these arguments.
    The majority of judges assigned to a division must be ``residents'' of
    the territory encompassed by that division, and their decisions would
    bind only the districts within that division. Similarly, membership in
    the Circuit Division, which resolves conflicts among the divisions, is
    to be determined by lot, with equal numbers of judges from each of the
    Division.
        In short, the proposal seems designed at every level to ensure
    regional representation in decisionmaking affecting litigants from that
    region. The result is not only cumbersome, it sets a sorry precedent,
    and by its very structure encourages judges of the Circuit to look out
    for their own when deciding issues of law. The judges of the federal
    circuits, however, are not, and are not intended to be, representative
    of their constituents in the same manner as are, for instance, members
    of the Senate. There is no reason to concede (to the contrary, we are
    bound to resist) any suggestion that litigants are entitled to be heard
    by a federal judges haling from the same region. Because the proposed
    divisional structure institutionalizes a norm--regionalism--that is
    anathema to our system of federal courts, I oppose it.
    3. The proposed divisional structure moves the court in the wrong
            direction by adding unnecessary layers of review, precluding
            circuit-wide review of published decisions, and encouraging
            intra-circuit conflicts
        Even if I were to assume for the sake of argument that the Ninth
    Circuit had problems that needed fixing, I cannot think of a worse fix
    than the one proposed by the White Commission. The divisional system
    will exacerbate the very problems it seeks to remedy. In short, it
    moves the Circuit in exactly the wrong direction.
        For instance, in the face of a perception that the Ninth Circuit is
    bad at preventing and resolving intracircuit conflicts, the divisional
    system explicitly permits the courts in one division to ignore the
    holdings of a sister division.

              Once a regional division has spoken on a matter of law, the
            trial courts over which it has jurisdiction will be bound by
            that decision, regardless of decisions issued in other
            divisions.

    The Commission makes this proposal in the face of its own conclusion
    that ``the circuit's court of appeals should continue to provide the
    West a single body of decisional law''! The system, on its face,
    institutionalizes complacency for, if not outright encourages, intra-
    circuit conflict.

        Nor does the Commission's proposed creation of the ``Circuit
    Division,'' solve the problem. The Circuit Division would not be
    empowered, either of its own accord or at the request of a litigant, to
    review division decisions that are plain wrong, or that raise unusually
    important questions. ``[I]ts only authority would be to resolve square
    interdivisional conflicts,'' whatever those are, and even then, its
    jurisdiction to resolve such conflicts is discretionary.
        Nor can a judge in one division request an en banc hearing of an
    opinion issued by a panel of another division. This aspect of the
    structure would create a terrible loss. Currently, all judges of the
    Circuit, including Senior judges, participate in what I am told are
    vigorous, frank, and detailed debates as to whether a particular case
    should be reheard en banc.\4\ The divisional structure would severely
    limit participation in this crucial process of policing panel decisions
    to maintain uniformity, and in the equally crucial process of providing
    en banc consideration of matters of great importance.\5\
    ---------------------------------------------------------------------------
        \4\ Twenty-four of the associates at my law firm served as law
    clerks to Ninth Circuit judges.
        \5\ I have witnessed in my own practice the value of en banc review
    in matters of great importance. I formerly represented the Republic of
    the Philippines in an action against the Marcos family. On appeal,
    after the three-judge panel issued its opinion, the case went en banc,
    not because of any ``square conflict,'' but, I presume, simply because
    the case raised important issues of law. I believe that Circuit judges
    throughout the Circuit, and litigants, should retain this important
    right to seek en banc review is such circumstances.
    ---------------------------------------------------------------------------
        Moreover, the Circuit Division adds a new layer of review, which is
    bound to delay the ultimate resolution of appeals. Not only will this
    new layer inevitably increase the average time from docketing to
    termination (one of the grounds on which ``efficiency'' is judged), it
    also will add to the cost of prosecuting an appeal in the Ninth
    Circuit. The Circuit Division will not ``resolve'' conflicts in a
    vacuum. Rather, as is the case with most other legal processes,
    litigants must pay their lawyers to act, to do additional research,
    draft additional briefs, file additional copies of the record, and
    request that the Circuit Division resolve the conflict. This is
    expensive. Prosecuting an appeal already is a remarkably expensive
    proposition for a great number of litigants who find themselves before
    the Ninth Circuit--Social Security claimants, persons prosecuting
    immigration appeals, criminal defendants, and even the typical small
    business owner in federal court on a contract claim. The creation of
    any additional hurdles necessarily limits access to justice for these
    litigants, at least incrementally, as they face the stark reality of
    the increasing cost of obtaining review. Absent a compelling reason to
    add additional procedures, layers of review, and the concomitant costs,
    I cannot support any proposal that does so.
        Finally, the divisional approach divides the state of California
    into separate adjudicative divisions. This is a singularly bad idea, as
    recognized by, among others Senator Dianne Feinstein, former Governor
    Pete Wilson, and current Governor Gray Davis. As former Governor Pete
    Wilson has aptly observed, dividing the state will exacerbate problems
    of forum shopping in any number of cases, including the numerous
    challenges to state initiatives that often find their way into federal
    court in my home state. And Governor Gray Davis has stated that the
    proposed division of California is at odds with the state's fundamental
    policy favoring integration and consistency between Northern and
    Southern California. Not even the Commission can assert that splitting
    the state will yield any benefits, only that it was the best division
    it could come up with given the demographics of the West and population
    of California. Again, this element of the proposed divisional structure
    simply takes the Court in the wrong direction.
    4. The ninth circuit has a long history of revitalizing itself and
            improving the quality of justice it delivers; Congress should
            permit it to continue to regulate itself without outside
            interference
        As the Commission itself recognizes, efforts to split the Circuit
    date back as far 1891. Despite the long history of criticism, even the
    Commission acknowledges that ``[t]here is no persuasive evidence that
    the Ninth Circuit (or any other circuit, for that matter) is not
    working effectively.'' The question, especially in light of the
    century-old criticism that the Circuit is too big, is: how has the
    Circuit done so well? The answer, I think, is that the Ninth Circuit is
    at the forefront of innovation in terms of Court management. The Ninth
    Circuit is a test case for the future, a sort of pilot program, and I
    fear that mandating the restrictive divisional approach will truncate
    creative management and innovation of which the Court has long shown
    itself capable.
        As I have testified previously, the Ninth Circuit can, and has,
    served as a testing ground for numerous techniques in court management.
    Applying the maxim that innovation follows need, we should allow the
    Ninth Circuit, including its large, and tremendously knowledgeable and
    professional clerk's office--to continue to operate without re-
    definition, and to encourage it to share its experiences and
    innovations with other circuit courts.
        The Ninth Circuit clerk's office, with its staff of research
    attorneys, is among the smartest and most advanced in the county. In
    order to handle the Circuit's burgeoning caseload, the clerk's office
    has developed a number of procedures aimed at preventing the very
    parade of horribles the proponents of the divisional approach fear
    (mistakenly) are already upon us. This phenomenon is not particularly
    remarkable: when an institution increases in size, it often develops
    management tools that increase efficiency and effectiveness. A few
    examples of these administrative innovations should suffice.
        The Ninth Circuit employs a staff of research attorneys who
    evaluate appeals as soon as they have been docketed. They read the
    briefs and assign the appeal a ``weight'' from one to ten, based on the
    apparent complexity of the issues and the record. This process assists
    the clerk's office in distributing roughly equal quantities of work to
    the various three judge panels sitting for hearings in any given month.
        The research attorneys also code the issues presented by a
    particular appeal, and track the cases raising the issues through a
    computerized tracking system. This allows the court to group appeals
    raising the same or similar issues and sends those grouped appeals to
    the same three judge panel. In this way, a single panel gains expertise
    in the particular issue and sees it in a variety of factual contexts,
    which can lead to better reasoned discussion of the implications of
    deciding the issue one way or another. When the clerk's office is
    unable to group cases with similar issues together, the office notifies
    panels that a different panel is also deciding a case that raises the
    same issue. This allows panels to communicate with one another so as to
    avoid the possibility that separate panels might simultaneously, or
    nearly simultaneously, decide the same issue differently.
        The Ninth Circuit is also a leader among courts in adopting and
    integrating advanced communication techniques.\6\ The judges' chambers,
    for example, have long been connected to one another through e-mail and
    other document sharing capabilities. The court even utilizes video
    conferencing. I, for one, have participated in a video conference with
    circuit executives. I was told video conferencing is used regularly
    among judges and among judges and the clerk's office. Finally,
    communication with the bar is also innovative and effective. Judges
    throughout the Circuit regularly make themselves available for attorney
    exchanges and education. As an example of innovative communication, the
    court produced a video for practitioners that is designed to guide them
    through the twists and turns of appellate procedure. This video, widely
    distributed at low cost, reaches an audience far beyond the typical
    educational program.
    ---------------------------------------------------------------------------
        \6\ These communication techniques take some wind out of the sails
    of those who presume that geographic breadth of the circuit prevents
    meaningful and frequent exchange between judges.
    ---------------------------------------------------------------------------
        Indeed, even today, the Court is engaged in an agressive self-
    evaluation, the purpose of which is to study and make recommendations
    relating to many of the same issues examined by the White Commission,
    including the en banc process, monitoring of panel opinions, regional
    considerations, and disposition times, among other issues. Senior Judge
    David Thompson of San Diego is heading up this ten-member Evaluation
    Committee, composed of district and circuit judges, and members of the
    bar and the academy. The Committee is expected to submit its final
    report within the next few months.
        The purpose of my mentioning this Evaluation Committee is not to
    suggest that Congress should delay action until it hears from that
    committee. Rather, it is to emphasize that the Ninth Circuit has shown
    itself time and time again to be adept at self-evaluation and self-
    criticism, even while laboring under the shadow of Congressional
    intervention. And, moreover, its efforts have borne fruit, yielding a
    modem, efficient, innovative, and responsive court that is well
    prepared to face the future.
                                   conclusion
        The Ninth Circuit works well and provides high quality justice to
    all the citizens of the West. The White Commission has acknowledged as
    much. To the extent that challenges remain, the Court has shown itself
    more than capable of meeting them head on, as it always has. The
    proposal to impose an unwieldy, untested, and unpopular divisional
    structure takes the Court in exactly the wrong direction, and
    exacerbates the very problems it purports to fix. I urge you to reject
    the proposals set forth in the White Commission as they relate to the
    Ninth Circuit, and to oppose The Federal Ninth Circuit Restructuring
    Act of 1999.
                                     ______

        Mr. Olson received his B.S. degree from Drake University in 1963,
    his J.D. degree from the University of Michigan in 1966, and a Diploma
    in Law from Oxford University, England, in 1967, at which time he was
    the recipient of a Ford Foundation fellowship.
        In 1967, Mr. Olson was an attorney for the Civil Rights Division of
    the Department of Justice and in 1968 clerked for Chief Judge David L.
    Bazelon, United States Court of Appeals for the D.C. Circuit. From 1968
    to the present, he has practiced law with the Los Angeles law firm now
    known as Munger, Tolles & Olson. Mr. Olson is a litigator who was
    formerly Chairman of the Standing Committee on Federal Judiciary (1991-
    92), Chairman of the Litigation Section (1981-82), and Chairman of the
    Alternative Dispute Resolution Committee (1976-86) of the American Bar
    Association, and was Vice President of the Board of Governors of the
    State Bar of California (1986-87). He was Chairman of the Board of
    Trustees of Claremont University Center and Graduate School from 1984-
    94. Mr. Olson currently chairs the RAND Corporation Executive Committee
    of its Board of Trustees and RAND's Institute for Civil Justice, as
    well as the Board of Councilors for the USC Annenberg School for
    Communication. He is a director of Berkshire Hathaway, Edison
    International, California Institute of Technology, Pacific American
    Income Shares, Western Asset Trust, Brennan Center for Justice, Jules
    Stein Eye Institute, Skid Row Housing Trust and the World Resources
    Institute. He is also a member of the Los Angeles Business Advisors and
    the California Citizens Commission on Higher Education. Mr. Olson is a
    member of the American Bar Association, the American College of Trial
    Lawyers, and the American Law Institute.
        Mr. Olson's field of specialization is commercial litigation,
    including antitrust, securities, commercial contracts, and business
    torts. Mr. Olson is a frequent speaker and panel member at law schools
    and professional associations in the United States and abroad. He has
    written for law publications and journals. He is both a leading
    business trial lawyer and spokesman for alternative dispute resolution.
        Among his representations are the following: lead counsel for
    Merrill Lynch in Orange County bankruptcy; co-lead counsel for
    Universal Studios in trial against Viacom/Paramount for the ownership
    of USA Network; lead counsel for Shell Oil Company in CARB gas
    antitrust case; for Salomon Inc. in connection with the Nasdaq
    antitrust litigation (DOJ and class actions) and the 1991-92 criminal
    investigation and governmental claims arising from its conduct of
    treasury security auctions; for the Republic of the Philippines against
    the Marcos family; for Alyeska and its oil company owners in the
    criminal investigation and civil litigation arising from the Exxon
    Valdez oil spill; and co-counsel for Southern California Edison Company
    in connection with the restructuring of the California utility industry
    and lead counsel for Edison in defense of a ``Texaco/Pennzoil'' claim
    arising from its attempted takeover of San Diego Gas and Electric. Mr.
    Olson also counsels individual executives and boards of directors in a
    range of matters, including corporate governance. Mr. Olson provides
    pro bono representation to various community organizations including
    the Skid Row service providers.

        Senator Sessions. Let's see. Our next panel would include
    Chief Judge Procter Hug of the ninth circuit, and also members
    of the circuit, Judge Pamela Ann Rymer, Judge Andrew Kleinfeld,
    Judge Diarmuid O'Scannlain, and Judge Charles Wiggins. So if
    you would step forward?
        Judge Hug has been a judge on the ninth circuit since
    1977--that is a good tenure--and he became chief judge in 1996.
        Judge Rymer has been a judge on the Ninth Circuit Court of
    Appeals since 1989, and in addition to her duties as judge on
    the ninth circuit, she has served as a member of the Commission
    whose report we are discussing today.
        Judge Kleinfeld served as a district judge for the District
    of Alaska from 1986 until 1991, when he was appointed to the
    Circuit Court of Appeals.
        Judge O'Scannlain sits on the ninth circuit in Portland,
    OR, and has served on the ninth circuit since 1986.
        Judge Wiggins was appointed to the ninth circuit in 1984.
    He also served as a member of the Hruska Commission which
    recommended splitting both the fifth and ninth circuits in
    1973.
        I would like to welcome all of you at this time, and, Judge
    Hug--there you are--thank you very much for your attendance and
    your leadership. I know you are carrying a heavy load in the
    circuit. And thank you for your service to your country.
        I am a little bit reluctant to start today. Maybe you would
    rather wait until we get more Senators here, Senator Feinstein
    and Senator Grassley, who chairs this committee. And they
    better get back quickly, or I am going to miss my vote.
        Judge O'Scannlain. Senator, may I just inquire?
        Senator Sessions. Yes.
        Judge O'Scannlain. We also have Judge William Browning from
    Arizona, who I understand was actually invited to testify, and
    I would hope that he could be part of this panel.
        Senator Sessions. There is Senator Grassley. I would be
    pleased to have him appear. Senator Grassley, the question is
    Judge Browning, who also was originally asked, I believe, to
    appear, has been able to attend. Would you have an objection--
    --
        Judge O'Scannlain. Judge William Browning of Arizona.
        Senator Grassley [presiding]. No, it won't be a problem.
    The only thing is 12:05 we are going to adjourn the meeting to
    another time because I have to get back to Iowa. And if some
    other members want to come and keep the committee going, that
    is a possibility. But I will have to leave at 12:05.
        Let's see. We will start out with you, Judge Hug.
        Judge Hug. Yes.
        Senator Grassley. So the individual can come.

    STATEMENTS OF HON. PROCTER HUG, JR., CHIEF JUDGE, U.S. COURT OF
     APPEALS FOR THE NINTH CIRCUIT; HON. PAMELA ANN RYMER, CIRCUIT
    JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, AND MEMBER,
    COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF
    APPEALS; HON. ANDREW J. KLEINFELD, CIRCUIT JUDGE, U.S. COURT OF
       APPEALS FOR THE NINTH CIRCUIT; HON. DIARMUID O'SCANNLAIN,
      CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT;
     HON. CHARLES E. WIGGINS, SENIOR JUDGE, U.S. COURT OF APPEALS
     FOR THE NINTH CIRCUIT; AND HON. WILLIAM BROWNING, JUDGE, U.S.
               DISTRICT COURT FOR THE DISTRICT OF ARIZONA

                   STATEMENT OF HON. PROCTER HUG, JR.

        Judge Hug. Thank you, Mr. Chairman and members of the
    committee. I appreciate the opportunity to be here to discuss
    the Final Report of the Commission on Structural Alternatives
    for the Federal Courts and Senate bill 253, which implements
    those suggestions.
        My name is Procter Hug, and I am the chief judge of the
    U.S. Courts for the Ninth Circuit. I have been a member of the
    Ninth Circuit Court of Appeals for 21 years.
        I think the Final Report the Commission rendered has made a
    valuable contribution to the understanding of the Federal
    appellate court system. The research placed the current
    appellate court structure in historical perspective and
    gathered important statistical information affecting the
    courts. It also compiled a thorough profile of the method of
    operations of each circuit court so that each of us in our own
    circuit courts can benefit from those creative ideas.
        The Commission developed several important conclusions that
    have been reflected in its Final Report, some of which have
    been commented on by other speakers. I think it is very
    important that the first conclusion is that, ``There is no
    persuasive evidence that the ninth circuit (or any other
    circuit, for that matter) is not working effectively, or that
    creating new circuits will improve the administration of
    justice in any circuit or overall.''
        ``Accordingly,'' the Commission stated, ``we do not
    recommend to Congress and the President that they consider
    legislation to split the circuit.''
        We consider that to be the most important conclusion of the
    Commission.
        Second, the Commission stated,

              There is one principle that we regard as undebatable:
            It is wrong to realign circuits * * * and to
            restructure courts * * * because of particular judicial
            decisions or particular judges. This rule must be
            faithfully honored, for the independence of the
            judiciary is of constitutional dimension and requires
            no less.

        Third, the statement by the Commission and the conclusion
    that I think is also important is,

              Maintaining the Court of Appeals for the Ninth
            Circuit as currently aligned, respects the character of
            the West as a distinct region. Having a single court
            interpret and apply federal law in the western United
            States, particularly the federal commercial and
            maritime laws that govern relations with the other
            nations on the Pacific Rim, is a strength of the
            circuit that should be maintained.

        The fourth conclusion:

              Any realignment of circuits would deprive the west
            coast of a mechanism for obtaining a consistent body of
            federal appellate law, and of the practical advantages
            of the ninth circuit administrative structure.

        The Commission concluded that the ninth circuit should not
    be split. That conclusion corresponds with the overwhelming
    opinion of the judges and lawyers in the ninth circuit, as well
    as the statements of others concerned with this issue who
    submitted written statements or gave oral testimony before the
    Commission. Twenty out of the 25 witnesses that testified in
    Seattle at that hearing agreed that the ninth circuit was
    operating effectively and were against splitting. Thirty-seven
    out of the 38 persons who testified in San Francisco reached
    the same conclusion. The past director of the Federal Judicial
    Center, William Schwartzer, agreed. The chairman of the Long-
    Range Planning Commission for the Federal Courts, Judge Otto
    Skopil, agreed, and a great majority of the judges that spoke
    did as well.
        Having strongly opposed the splitting of the ninth circuit,
    the Commission proceeded further to recommend legislation for a
    revised method of operation for the Ninth Circuit Court of
    Appeals through intracircuit adjudicative divisions that
    amounts to a de facto split of the court of appeals. The
    essential question then becomes whether the suggested revision
    of the operation of the court of appeals accomplishes the
    acknowledged goal of having a single court interpret and apply
    Federal law in the nine Western States and the Island
    Territories in an efficient and effective manner, better than
    the present method of operation. In my opinion, it clearly does
    not.
        The position of the ninth circuit expressed to the
    Commission is that it is working well and that a great majority
    of the judges and lawyers in the ninth circuit are satisfied
    with its current structure. This was confirmed by the survey of
    the Commission, in which over two-thirds of the judges in the
    ninth circuit expressed that opinion.
        In January 1999, I prepared an ``Analysis of the Final
    Commission Report,'' in which I expressed wholehearted
    agreement with the Commission's major conclusion that the ninth
    circuit should not be split, but serious disagreement with the
    divisions recommended for the Ninth Circuit Court of Appeals. I
    submitted this analysis to a meeting of our active and senior
    judges on January 11, 1999, and of the 35 active and senior
    judges voting, 25 voted to approve in principle that analysis,
    4 judges voted to approve the Commission's recommendation of
    the creation of divisions for the court of appeals, 4 judges
    voted for a circuit split, and 2 judges did not vote on that
    particular matter.
        I am drawing my remarks today from that analysis, and I am
    thus confident that I speak for the great majority of the
    judges of our circuit court. I have attached a copy of that
    analysis to my written statement, and it provides more detail
    than I am able to discuss in this oral presentation. I also
    provided a copy of that analysis to all of the Members of
    Congress in a letter that I submitted some time ago.
        In the draft report, the Commission recommended legislation
    to implement this divisional approach not only for the ninth
    circuit, but for the other circuits when the number of judges
    on their courts of appeals exceeded 17 judges. I think it is
    most significant that the chief judges of the first, second,
    third, fourth, seventh, eighth, and the District of Columbia
    circuits responded with a joint letter expressing strong
    opposition of their circuit courts to any such divisional
    restructuring for their circuits. They said, ``The whole
    concept of intracircuit divisions, replete with two levels of
    en banc review, has far more drawbacks than benefits.'' The
    chief judge of the fifth circuit sent in a separate letter,
    expressing the concern and reservations that that circuit had
    about the divisional approach. This, no doubt, resulted in the
    Commission's modifying its draft report and proposed
    legislation to eliminate the mandatory requirement for the
    creation of divisions in the other circuits. The requirement
    became strictly optional for the other circuits, leaving the
    ninth circuit conscripted as, in effect, the guinea pig to
    implement this untested drastic change in what we believe is a
    seriously flawed method. Senate bill 253 is essentially the
    same as the revised proposed legislation.
        There were many others who responded opposing the
    divisional structure, and I have detailed those in the
    analysis.
        The Commission acknowledged that there is no persuasive
    evidence that the ninth circuit is not working effectively. It
    emphasized the importance of maintaining consistent circuit law
    throughout the nine Western United States and the Island
    Territories. Yet it proposed structural changes that will
    impede that important objective, which neither the ninth
    circuit nor any other circuit believes is wise or necessary. It
    is thus very important to examine the reasons why this radical
    change in structure was necessary or desirable.
        The Commission acknowledges that the conclusion of a need
    for a major structural change in the Ninth Circuit Court of
    Appeals is not based upon any objective findings. The
    subjecting findings only identified rather minor differences
    expressed by the ninth circuit judges and lawyers, compared to
    the judges and lawyers of other circuits.
        Under the present structure of the court of appeals, we
    have a viable mechanism that maintains the consistency of law
    throughout the entire circuit. Panel decisions of all of the
    judges are binding throughout the entire circuit. The limited
    en banc procedure provides a mechanism whereby all judges
    participate in the en banc process by the ``stop clock''
    procedure, requests for en banc, memos circulated to other
    judges, to the entire court, arguing for and against en banc
    review, and by a vote of all of the active judges on whether to
    take a case en banc. There is a full participation of all our
    judges in resolving the circuit law.
        Our circuit court has the advantage of the diversity and
    background, experience, and geographical identity of a large
    number of judges. The disadvantages of the Commission report
    can be summarized as follows:
        There is no participation of all judges circuitwide in
    resolving the circuit law as at present. The only participation
    is within the division.
        Resident judges within a division that are assigned to
    another division would not participate in panels within the
    resident division for a 3-year period. For example, a judge
    from Alaska would not be assigned, for example, to the Southern
    Division, would not participate in any part of the en banc
    decisions or panel decisions for the Northern unit that is
    resident.
        The proposed circuit division would be an additional level
    of appeal before finality, involving additional expense and
    delay.
        The resolution of conflicts by the circuit division would
    be by 13 judges, not representative of the full court or
    proportionately representative of the divisions. For example,
    the Northwest Division, which only has 22 percent of the
    caseload and would have presumably 22 percent of the judges,
    would have four judges on that court of appeals--or on that
    circuit division; whereas, the Southern Division, which has 47
    percent of the appellate caseload would also have four judges
    on there, and they would all be serving for the 13 years--in
    effect, a super-court of judges for 3-year terms with greater
    power to determine the law of the circuit than any of the other
    judges in the rest of the circuit.
        There would be no participation of judges throughout the
    circuit in the decisions of the court, as to whether it should
    take a case en banc. That is only done by a party requesting
    it.
        The ninth circuit has always been willing to re-evaluate
    itself, its performance, and to experiment with innovations
    that would lead to greater efficiency and effectiveness. The
    annual evaluation of the ninth circuit's long-range plan is
    specifically designed to do just that.
        Senator Feinstein is introducing a bill which we are
    perfectly willing to work with. I think that the ideas that are
    contained in that of having a situation in which the majority
    of the court is always on the en banc panel, I think that would
    work well, and I think the perception would be good; the same
    way with having regional representation on every panel.
        In conclusion, with the Commission having acknowledged
    after extensive study that there is no persuasive evidence that
    the ninth circuit is not working effectively, there is no
    justification for mandating this drastic change in structure
    that will impede, and not enhance, the continued development of
    consistent circuit law throughout the nine Western States and
    the Island Territories.
        I thank you for the opportunity to appear before you.
        [The prepared statement of Judge Hug follows:]

                     Prepared Statement of Procter Hug, Jr.

                                    summary
        The Commission on Structural Alternatives for the Federal Courts of
    Appeals concluded that the Ninth Circuit should not be split. The great
    majority of the judges and lawyers in the Ninth Circuit agree.
        The Commission stated: ``There is no persuasive evidence that the
    Ninth Circuit (or any other circuit, for that matter) is not working
    effectively.'' It also stressed that maintaining a consistent body of
    federal appellate law in the Western States and Pacific Rim is a
    strength of the circuit that should be maintained.
        Yet, having indicated that the Ninth Circuit is working effectively
    and stressing the importance of continuing to maintain consistent law
    throughout the entire circuit, the Commission proposed legislation that
    would make a radical change in the structure of the Ninth Circuit Court
    of Appeals. Senate Bill 253 essentially embodies that proposed
    legislation. This structural change would undermine, rather than
    enhance, the important goal stressed by the Commission of maintaining
    consistent federal law throughout the Western States and Island
    Territories composing the Ninth Circuit.
        The proposed legislation would require a revised method of
    operation for the Ninth Circuit Court of Appeals through three semi-
    autonomous adjudicative divisions, with the State of California being
    split between two divisions. There would be an additional court of 13
    judges selected from the divisions to resolve only direct conflicts
    between divisions. This structure has serious disadvantages.

       Neither the panel decisions nor the en banc decisions of any
            division would bind the other divisions. A circuit-wide en banc
            hearing for any purpose other than resolving direct conflicts
            would be abolished. The maintenance and development of
            consistent circuit law would be seriously hampered.

       The proposed Circuit Division would add an additional level
            of appeal before finality, resulting in additional expense and
            delay for litigants.

       The proposal would eliminate the present participation of
            all judges circuit-wide in resolving circuit law, and would
            impose serious practical problems in randomly assigning judges
            among the divisions for three-year terms.

       The likelihood of inconsistent interpretations of federal
            law would, exist throughout the circuit and would not be
            adequately addressed by the proposed conflict resolution
            mechanism of the Circuit Division. Because California would be
            split between two divisions, there would be different
            interpretations and enforcement of the law in California.

        My view that the disadvantages far outweigh any advantages of the
    proposed restructuring is shared by a great majority of the judges on
    the Ninth Circuit Court of Appeals, the Ninth Circuit Judicial Council,
    the Association of District Judges of the Ninth Circuit, and the United
    States Department of Justice. The Chief Judges of eight other circuits
    state that their courts oppose a divisional structure for their
    circuits.
                                     ______

        Mr. Chairman, Members of the Subcommittee: Thank you for the
    opportunity to discuss with you the Final Report by the Commission on
    Structural Alternatives for the Federal Courts of Appeals and Senate
    Bill 253, The Ninth Circuit Reorganization Act. My name is Procter Hug,
    and I am the Chief Judge of the United States Courts for the Ninth
    Circuit. I have been a member of the Ninth Circuit Court of Appeals for
    21 years.
        The Commission was created in the wake of a bill to split the Ninth
    Circuit into two circuits. Its mission was to study not only the Ninth
    Circuit but the entire intermediate appellate court structure between
    the trial courts and the Supreme Court. In undertaking its task, the
    Commission was concerned with how the circuit courts of appeals were
    operating, whether the Ninth Circuit or any circuit, should be split,
    and formulating recommendations for other possible structural changes.
        I think that the Final Report the Commission rendered has made a
    valuable contribution to the understanding of the federal appellate
    court system. The research placed the current appellate court structure
    in historical perspective, and gathered important statistical
    information affecting the courts. It also compiled a thorough profile
    of the method of operation of each of the circuit courts of appeals, so
    that each of our circuit courts can benefit from the creative ideas
    from other circuits.
        The Commission developed several important conclusions that have
    been reflected in its Final Report.

              There is no persuasive evidence that the Ninth Circuit (or
            any other circuit, for that matter) is not working effectively,
            or that creating new circuits will improve the administration
            of justice in any circuit or overall. Furthermore, splitting
            the circuit would impose substantial costs of administrative
            disruption, not to mention the monetary costs of creating a new
            circuit. Accordingly, we do not recommend to Congress and the
            President that they consider legislation to split the circuit.
              * * * * *
              There is one principle that we regard as undebatable: It is
            wrong to realign circuits (or not realign them) and to
            restructure courts (or leave them alone) because of particular
            judicial decisions or particular judges. This rule must be
            faithfully honored, for the independence of the judiciary is of
            constitutional dimension and requires no less.
              * * * * *
              Maintaining the Court of Appeals for the Ninth Circuit as
            currently aligned, respects the character of the West as a
            distinct region. Having a single court interpret and apply
            federal law in the western United States, particularly the
            federal commercial and maritime laws that govern relations with
            the other nations on the Pacific Rim, is a strength of the
            circuit that should be maintained.
              * * * * *
              Any realignment of circuits would deprive the west coast of a
            mechanism for obtaining a consistent body of federal appellate
            law, and of the practical advantages of the Ninth Circuit
            administrative structure.

        The Commission concluded that the Ninth Circuit not be split. That
    conclusion corresponds with the overwhelming opinion of the judges and
    lawyers in the Ninth Circuit, as well as statements of others concerned
    with this issue who submitted written statements or gave oral testimony
    before the Commission. Among those opposing the division of the Ninth
    Circuit were the following:

       20 out of the 25 persons testifying at the Seattle Hearing
            of the Commission.

       37 out of 38 of the persons testifying at the San Francisco
            Hearing of the Commission.

       The Governors of the States of Washington, Oregon,
            California, and Nevada.

       The American Bar Association.

       The Federal Bar Association.

       The United States Department of Justice and the United
            States Attorneys within the Ninth Circuit.

       All of the Public Defenders within the Ninth Circuit.

       Respected scholars: Charles Alan Wright, Arthur Hellman,
            Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie
            Choper, and Margaret Johns.

       The past Director of the Federal Judicial Center, Judge
            William Schwartzer.

       The chairman of Long-Range Planning for the U.S. Federal
            Courts, Judge Otto Skopil.

       A great majority of the judges and lawyers in the Ninth
            Circuit.

        Having strongly opposed splitting the Ninth Circuit, the Commission
    proceeded further to recommend legislation for a revised method of
    operation for the Ninth Circuit Court of Appeals through intra-circuit
    adjudicative divisions that amounts to a defacto split of the court of
    appeals. The essential question then becomes whether the suggested
    revision of the operation of the court of appeals accomplishes the
    acknowledged goal of having a single court interpret and apply federal
    law in the nine Western United States and the Island Territories in an
    efficient and effective manner, better than its present method of
    operation. It clearly does not.
        When a whole new concept of operation of the courts of appeals is
    proposed, the burden should be upon those proposing the change to show
    that a particular proposal will operate more efficiently, effectively,
    and better advance the cause of justice than the time-tested procedures
    that have been in operation for many years. ``Circuit restructuring
    should occur only if compelling empirical evidence demonstrates
    adjudicative or administrative dysfunction in a court so that it cannot
    continue to deliver quality justice and coherent, consistent circuit
    law in the face of increasing workload.'' Long Range Plan of the
    Federal Courts (1995). That burden has not been carried.
        The position of the Ninth Circuit expressed to the Commission is
    that it is working well and that a great majority of the judges and
    lawyers in the Ninth Circuit are satisfied with its current structure.
    This was confirmed by the survey of the Commission, in which over two-
    thirds of the judges in the Ninth Circuit expressed that opinion.
        The Commission has proposed that the Ninth Circuit Court of Appeals
    be divided into three semi-autonomous adjudicative divisions, with the
    State of California being split into two separate divisions. Panel
    decisions decided in one division would not be binding precedent in
    either of the other divisions, and each division would have an
    independent en banc procedure that would have no precedential effect in
    the other two divisions. There would be an additional court of 13
    judges selected from the divisions to resolve only direct conflicts
    between the divisions. The likelihood of inconsistent interpretations
    of federal law would exist throughout the circuit and would not be
    adequately addressed by the proposed conflicts resolution mechanism.
    Because California would be split into two divisions, there would also
    be a substantial risk of different interpretations and enforcement of
    the same state law in California.
        In January of 1999, I prepared an Analysis of the Final Commission
    Report, in which I expressed wholehearted agreement with the
    Commission's major conclusion that the Ninth Circuit should not be
    split, but serious disagreement with the divisions recommended for the
    Ninth Circuit Court of Appeals. I submitted this Analysis to a meeting
    of our active and, senior judges on January 11, 1999. Of the 35 active
    and senior judges voting, 25 judges voted to approve the Analysis, 4
    judges voted to approve the Commission's recommendation of the creation
    of divisions for the court of appeals, 4 judges voted for a circuit
    split, and 2 judges abstained.
        I am drawing my remarks today from the Analysis, and I am thus
    confident that I speak for the great majority of the judges of our
    circuit court. I have attached a copy of that Analysis to my written
    statement and it provides more detail than I am able to discuss in this
    oral presentation. On March 31, 1999, I sent a letter to each member of
    Congress, in which I enclosed a copy of the Analysis. With your
    extremely busy schedules, you may or may not have had an opportunity to
    review it. What I point out in the Analysis is that this is a major
    change in the operation of the circuit court of appeals, it is not
    justified by the findings of the Commission, and is a de facto split of
    the Ninth Circuit Court of Appeals. It frustrates the very important
    goal acknowledged by the Commission, to maintain a consistent body of
    law throughout the nine Western United States and the Island
    Territories.
        In its draft report, the Commission recommended legislation to
    implement this divisional approach not only for the Ninth Circuit, but
    for the other circuits when the number of judges on their courts of
    appeals exceeded 17 active judges. I think it was most significant that
    the Chief Judges of the First, Second, Third, Fourth, Seventh, Eighth,
    and DC Circuits responded with a joint letter expressing strong
    opposition of their circuit courts to any such divisional
    restructuring. They said, ``The whole concept of intra-circuit
    divisions, replete with two levels of en banc review, has far more
    drawbacks than benefits.'' The Chief Judge of the Fifth Circuit sent in
    a separate letter, expressing the concern and reservations that circuit
    has about the divisional approach. The Chief Judge of the Second
    Circuit sent in an additional separate letter, emphasizing the strong
    opposition of that court. Thus, all of the other circuits that
    responded to the Commission expressed their opposition to the
    divisional approach. This, no doubt, resulted in the Commission's
    modifying its draft report and proposed legislation to eliminate the
    mandatory requirement for the creation of divisions in the other
    circuits. The requirement became strictly optional for the other
    circuits, leaving the Ninth Circuit conscripted as the guinea pig to
    implement this untested drastic change that we believe is seriously
    flawed. Senate bill 253 is essentially the same as the revised proposed
    legislation.
        There were many others who responded opposing the divisional
    structure, as I have detailed in the Analysis. Some of these were by:

        The United States Department of Justice; Senator Dianne Feinstein;
    Former California Governor Pete Wilson (present California Governor,
    Gray Davis, recently announced a similar view) The Ninth Circuit Court
    of Appeals; The Ninth Circuit Judicial Council; The Association of
    District Judges of the Ninth Circuit; The Federal Bar Association; The
    Sierra Club Legal Defense Fund; The Los Angeles County Bar Association;
    The Chief Judges of the First, Second, Third, Fourth, Fifth, Seventh,
    Eighth, and DC Circuits; The New York City Bar Association; The Federal
    Bar Council's Committee on the Second Circuit Courts; and The Chicago
    Council of Lawyers.

        The response of the United States Department of Justice, which
    participates in 40 percent of the litigation in the federal courts,
    bears particular note. It responded to the Commission, vigorously
    opposing the divisional restructuring of the Ninth Circuit or any
    circuit. It stated, ``That proposal would have potentially adverse
    repercussions for the administration of justice in the Ninth Circuit
    and, ultimately, across all federal courts of appeals.''
        The Commission acknowledged that there is no persuasive evidence
    that the Ninth Circuit is not working effectively. It emphasized the
    importance of maintaining consistent circuit law throughout the nine
    Western United States and the Island Territories. Yet, it proposed
    structural changes that will impede that important objective, which
    neither the Ninth Circuit nor any other circuit wants to adopt. It is
    thus very important to examine the reasons why this radical change in
    structure was necessary or desirable for the Ninth Circuit.
        The Commission stated that it had reviewed all of the available
    objective data routinely used in court administration and found that
    while there are differences among the courts of appeals, it is
    impossible to attribute them to any single factor, such as size. In
    considering the subjective data, the Commission noted that the district
    judges of the Ninth Circuit do not find the law any more unclear than
    the judges in other circuits. The Commission then noted that the
    lawyers of the Ninth Circuit found ``somewhat'' more difficulty in
    discerning circuit law and predicting outcomes of appeals than lawyers
    elsewhere. Thus, the Commission acknowledges that the conclusion of a
    need for a major structural change in the Ninth Circuit Court of
    Appeals is not based upon any objective findings. The subjective
    findings only identified rather minor differences expressed by the
    Ninth Circuit judges and lawyers, compared to the judges and lawyers of
    other circuits. This hardly justifies such a radical change.
        It is not realistic to believe that consistent law can be
    maintained in the Ninth Circuit under the divisional structure when
    panel decisions are not binding throughout the circuit, and when there
    are three separate en banc courts with no participation of judges
    throughout the circuit in those decisions. The 13-judge Circuit
    Division that resolves only direct conflicts between divisions cannot
    maintain consistent circuit law. Under the present structure, panels
    are bound to follow the precedent of other panels, and they try their
    best to do so. Under the proposed system, there is no obligation to
    follow the precedent of the panels of the other two-thirds of the
    court. This is certain to develop greater inconsistency in panel
    decisions. The law of the divisions will inevitably drift apart with
    little hope of keeping the consistent circuit law that we now enjoy in
    the Ninth Circuit or restoring it if the legislation is enacted and
    found to be a serious mistake.
        Under the present structure of the court of appeals, we have a
    viable mechanism that maintains the consistency of law throughout the
    entire circuit. Panel decisions of all of the judges are binding
    throughout the entire circuit . The limited en banc procedure provides
    a mechanism whereby all judges participate in the en banc process by
    the ``stop clock'' procedure, requests for en banc, memos circulated to
    the entire court arguing for and against en banc review, and by a vote
    of all of the active judges on whether to take a case en banc. There is
    full participation of all our judges in resolving circuit law.
        When a case is taken en banc, the en banc court reviews the full
    case for purposes of clarifying the circuit law, resolving conflicts,
    or considering questions of exceptional importance to establish the law
    of the circuit. There is no additional level of appeal, as there would
    be with the divisional approach, and there is no litigation upon
    whether an opinion reflects a direct conflict between divisions or
    merely distinguishes cases involved, as there would be with the
    divisional approach.
        Our circuit court has the advantage of the diversity and
    background, experience, and geographical identity of a large number of
    judges that provide important insights into the applications and
    development of the federal law throughout the nine Western United
    States and Island Territories. The stated advantages asserted for the
    divisional approach are heavily outweighed by the disadvantages.
        The disadvantages may be summarized as follows:

       There is no participation of all judges circuit-wide in
            resolving the circuit law as at present. The only participation
            is within the division.

       Resident judges within a division that are assigned to
            another division would not participate in panels within the
            resident division for a three-year period and would, for that
            period, have no say in the en banc consideration of panel
            decisions within the division of their residence.

       The proposed Circuit Division court would be an additional
            level of appeal before finality, involving additional expense
            and delay.

       The resolution of conflicts by the Circuit Division court
            would be by 13 judges, not representative of the full court or
            proportionately representative of the divisions. The Circuit
            Division would create a category of what, in effect, would be
            Super Court Judges, for three-year terms with greater power in
            determining the law of the circuit.

       There would be no participation of judges throughout the
            circuit in the decisions of the Circuit Division, as to whether
            it should take a case or not take a case or let a panel
            decision stand.

       There are statutory problems lurking in the new procedure,
            two of which I identify in the Analysis but others in an
            untested procedure could well surface in the future.

       The practical operation of the divisional approach becomes
            administratively complex in the manner in which the judges are
            designated to be assigned among divisions, and the manner in
            which the Circuit Division is to operate, as I have shown in
            the Analysis.

        It is gratifying that the Commission recommended that the Ninth
    Circuit not be split and recognized the importance of having a single
    court interpret and apply federal law in the Western United States.
    However, the evidence does not justify the recommended change to a
    divisional structure of the Ninth Circuit Court of Appeals. The
    disadvantages of such a structure far outweigh the claimed advantages
    and do not justify disrupting a court that the great majority of judges
    and lawyers within the circuit are convinced is operating efficiently
    and effectively. The Ninth Circuit has always been willing to re-
    evaluate itself, its performance, and to experiment with innovations
    that would lead to greater efficiency and effectiveness. The annual
    evaluation of the Ninth Circuit's long range plan is specifically
    designed to do so. Concerns that have surfaced in the Final Report of
    the Commission can be addressed with far less disruption than a whole
    new divisional structure. At the present, they are being addressed by a
    special Evaluation Committee that I appointed specifically for that
    purpose.
        The Committee, chaired by Senior Circuit Judge David Thompson, is
    composed of Ninth Circuit judges from different regions of the circuit,
    as well as a representative from the district, court bench, a prominent
    scholar of the federal appellate courts, and an experienced appellate
    practitioner. The Committee has met over the past several months on
    numerous occasions and has made a special effort to meet with
    representatives of the bench and bar throughout the Ninth Circuit in
    order to get a wide spectrum of participation in the evaluation
    process.
        In conclusion, with the Commission acknowledged, after extensive
    study, that there is no persuasive evidence that the Ninth Circuit is
    not working effectively. There is no justification for mandating this
    drastic change in structure that will impede, not enhance, the
    continued development of consistent circuit law throughout the nine
    Western United States and the Island Territories. The other, circuits
    have all opposed the divisional structure and it has been made optional
    for them. The Ninth Circuit should be treated the same as the other
    circuits and should be given the same option.
                                     ______

    Analysis of the Final Commission Report By Chief Judge Procter Hug, Jr.

        The Commission on Structural Alternatives for the Federal Courts of
    Appeals submitted its Final Report on December 18, 1998. I have had an
    opportunity to carefully analyze the report and to discuss it with
    judges and lawyers. I thought it would be helpful to give my evaluation
    of the Final Report, as I did with the Draft Report.
                                    summary
        The basic question resolved by the Commission is whether the Ninth
    Circuit should be split. The strong recommendation of the Commission is
    that it should not be split. It stated:

              Maintaining the court of appeals for the Ninth Circuit as
            currently aligned respects the character of the West as a
            distinct region. Having a single court interpret and apply
            federal law in the western United States, particularly the
            federal commercial and maritime laws that govern relations with
            the other nations on the Pacific Rim, is a strength of the
            circuit that should be maintained.

        The Commission recommended a structural change in the Court of
    Appeals. It proposed that the Ninth Circuit Court of Appeals be divided
    into three semi-autonomous adjudicative divisions, with the State of
    California being split into two separate divisions. Panel decisions
    decided in one division would not be binding precedent in either of the
    other divisions and each division would have an independent en banc
    procedure that would have no precedential effect in the other two
    divisions.
        The question then becomes whether the structural changes, as
    proposed by the Commission, better serve the prime objective of having
    consistent law throughout the Ninth Circuit.
        When a whole new concept of the operation of the Court of Appeals
    is proposed, the burden should be upon those proposing the change to
    show that a particular proposal will operate more efficiently,
    effectively, and better advance the cause of justice than the time-
    tested procedures that have been in operation for many years.
        The Commission stated that it had reviewed all of the available
    objective data routinely used in court administration to measure
    performance and efficiency of the federal courts of appeals but could
    not say that the statistical data tipped decisively in one direction or
    the other. It noted that while there are differences among the Courts
    of Appeals, it is impossible to attribute them to any single factor
    such as size.
        In considering the subjective data, the Commission noted that the
    district judges of the Ninth Circuit do not find the law insufficiently
    clear to give them guidance in their decisions any more often than
    their counterparts in other circuits, but they more frequently report
    inconsistencies between published and unpublished opinions. The
    Commission then noted that the lawyers of the Ninth Circuit found
    ``somewhat'' more difficulty in discerning circuit law and predicting
    outcomes of appeals than lawyers elsewhere, but they did report more
    often a large or grave problem in doing so.
        However, the Commission then stated ``[b]ut when all is said and
    done, neither we nor, we believe, anyone else, can reduce consistency
    and predictability to statistical analysis. These concepts are too
    subtle, the decline in quality too incremental, and the effects of size
    too difficult, to allow evaluation in a freeze-framed moment.''
        The Commission acknowledges that the conclusion of a need for a
    major structural change in the Ninth Circuit Court of Appeals is not
    based upon any objective findings. The subjective findings are based
    upon rather minor differences expressed by the Ninth Circuit judges and
    lawyers, and the belief of the Commission that a smaller decisional
    unit just works best. There were many responses to the Commission's
    Draft Report in opposition to the divisional structure. Some of these
    were by:

        The United States Department of Justice; Senator Dianne Feinstein;
    Governor Pete Wilson; The Ninth Circuit Court of Appeals; The Ninth
    Circuit Judicial Council; The Association of District Judges of the
    Ninth Circuit; The Federal Bar Association; The Sierra Club Legal
    Defense Fund; The Los Angeles County Bar Association; The Chief Judges
    of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and DC
    Circuits; The New York City Bar Association; The Federal Bar Council's
    Committee on the Second Circuit Courts; and The Chicago Council of
    Lawyers.

        Under the present structure of the Court of Appeals, we have a
    viable mechanism that maintains the consistency of law throughout the
    entire circuit. Panel decisions of all of the judges are binding
    throughout the entire circuit. The limited en banc procedure provides a
    mechanism whereby all judges participate in the en banc process by the
    ``stop clock'' procedure, requests for en banc, memos circulated to the
    entire court arguing for and against en banc review, and by a vote of
    all of the active judges on whether to take a case en banc.
        When a case is taken en banc, the en banc court reviews the full
    case for purposes of clarifying the circuit law, resolving conflicts,
    or considering questions of exceptional importance to establish the law
    of the circuit. There is no additional level of appeal, as there would
    be with the divisional approach, and there is no litigation upon
    whether an opinion reflects a direct conflict between divisions or
    merely distinguishes cases involved, as there would be with the
    divisional approach.
        Our circuit court has the advantage of the diversity and
    background, experience and geographical identity of a large number of
    judges that provide important insights into the applications and
    development of the federal law throughout the nine western United
    States and Island Territories. It is especially important to note that
    the judges of the nine other circuit courts of appeals who responded to
    the Commission's draft opposed the divisional approach. The stated
    advantages asserted for the divisional approach are heavily outweighed
    by the disadvantages.
        The disadvantages may be summarized as follows:

      1. There is no participation of all judges circuit-wide in resolving
        the circuit law as at present. The only participation is within the
        division.

      2. Resident judges within a division that are assigned to another
        division would not participate in panels within the resident
        division for a three-year period and would, for that period, have
        no say in the en banc consideration of panel decisions within the
        division of their residence.

      3. The proposed Circuit Division court would be an additional level
        of appeal before finality.

      4. The resolution of conflicts by the Circuit Division court would be
        by 13 judges, not representative of the full court or
        proportionately representative of the divisions. The Circuit
        Division would create a category of what, in effect, would be Super
        Court Judges, for three-year terms with greater power in
        determining the law of the circuit.

      5. There would be no participation of judges throughout the circuit
        in the decisions of the Circuit Division, as to whether it should
        take a case or not take a case or let a panel decision stand.

      6. There are statutory problems lurking in the new procedure, two of
        which I identify but others in an untested procedure could well
        surface in the future.

      7. The practical operation of the divisional approach becomes
        administratively complex in the manner in which the judges are
        designated to be assigned among divisions, and the manner in which
        the Circuit Division is to operate.

        The Ninth Circuit has always been willing to re-evaluate itself,
    its performance, and to experiment with innovations that would lead to
    greater efficiency and effectiveness. The annual evaluation of the
    Ninth Circuit's long range plan is specifically designed to do so.
    Concerns that have surfaced in the Final Report of the Commission could
    be addressed with far less disruption than a whole new divisional
    structure. A great majority of the judges and lawyers within the Ninth
    Circuit concluded that it is operating efficiently and effectively as a
    large court and should continue doing so. The case has not been made
    nor the burden of proof carried for a drastic change in the structure
    of the Ninth Circuit Court of Appeals.
                     detailed analysis of the final report
    Changes from the draft report
        The Final Report retains basically the same recommendations as in
    the Draft Report.

      1. Submitting the strong recommendation that the Ninth Circuit should
        not be split.

      2. Proposing legislation that the Ninth Circuit Court of Appeals be
        divided into adjudicative divisions, whose panel opinions and en
        banc; opinions would not be binding throughout the circuit, with a
        separate Circuit Division to resolve only conflicts between
        decisions in the three adjudicative divisions.

      3. Proposing legislation that would authorize (though no longer
        require) other circuits to utilize the adjudicative divisional
        approach once the number of judges in the Court of Appeals
        increases beyond 15.

      4. Proposing legislation to permit experiments with two-judge panels.

      5. Proposing legislation that would permit experimentation with
        district court appellate panels.

      6. Urging Congress to refrain from changing the Bankruptcy Appellate
        System until the Judicial Conference has had an adequate
        opportunity to study it and propose any necessary improvements.
        However, the specific recommended legislation concerning direct
        appeals with utilization of the Bankruptcy Appellate Panels was
        eliminated from the appendices.

        There are some changes from the Draft Report to the Final Report.

      1. The major change is that for circuits other than the Ninth
        Circuit, the proposed legislation no longer mandates that the Court
        of Appeals be divided into adjudicative divisions when the
        complement of judges exceeds 17. Thus for other circuits, the
        adjudicative divisional approach becomes entirely optional.

      2. The composition of the Circuit Division and method of selection is
        changed from the 7-judge court originally proposed, to a 13-judge
        court, composed of the chief judge and 12 other judges in active
        status chosen by lot in equal numbers from each regional division.
        The 12 judges would serve non-renewable three-year terms.

      3. The Final Report provides that each division would also include
        some judges not residing within the division, assigned randomly for
        specified terms of at least three years, instead of one year as
        provided in the Draft Report.

      4. The proposed statutory provision specifying the particular
        composition of the Judicial Council of the Ninth Circuit was
        eliminated, leaving that matter up to the discretion of the Ninth
        Circuit, as it does with the other circuits.

      5. The seven-year Sunset Provision was eliminated. Thus, the concept
        of the divisional approach being an ``experiment'' with a
        termination period is no longer the case.
             commission report as it pertains to the ninth circuit
    Major conclusion--no circuit split
        The major conclusion of the Commission is that the Ninth Circuit
    should not be split. The Commission made the following statements
    supporting that conclusion.
        There is no persuasive evidence that the Ninth Circuit (or any
    other circuit, for that matter) is not working effectively, or that
    creating new circuits will improve the administration of justice in any
    circuit or overall. Furthermore, splitting the circuit would impose
    substantial costs of administrative disruption, not to mention the
    monetary costs of creating a new circuit. Accordingly, we do not
    recommend to Congress and the President that they consider legislation
    to split the circuit.
        There is one principle that we regard as undebatable: It is wrong
    to realign circuits (or not realign them) and to restructure courts (or
    leave them alone) because of particular judicial decisions or
    particular judges. This rule must be faithfully honored, for the
    independence of the judiciary is of constitutional dimension and
    requires no less.
              * * * * *
              Maintaining the court of appeals for the Ninth Circuit as
            currently aligned respects the character of the West as a
            distinct region. Having a single court interpret and apply
            federal law in the western United States, particularly the
            federal commercial and maritime laws that govern relations with
            the other nations on the Pacific Rim, is a strength of the
            circuit that should be maintained.
              * * * * *
              Any realignment of circuits would deprive the west coast of a
            mechanism for obtaining a consistent body of federal appellate
            law, and of the practical advantages of the Ninth Circuit
            administrative structure.

        The conclusion that the Ninth Circuit should not be split
    corresponds with the overwhelming opinion of the judges and lawyers in
    the Ninth Circuit, as well as statements of others concerned with this
    issue who submitted written statements or gave oral testimony before
    the Commission. Among those opposing the division of the Ninth Circuit
    were the following:

       20 out of the 25 persons testifying at the Seattle Hearing
            of the Commission.

       37 out of 38 of the persons testifying at the San Francisco
            Hearing of the Commission.

       The Governors of the States of Washington, Oregon,
            California, and Nevada.

       The American Bar Association.

       The Federal Bar Association.

       The United States Department of Justice and the U.S.
            Attorneys within the Ninth Circuit.

       All of the Public Defenders within the Ninth Circuit.

       Respected scholars: Charles Alan Wright, Arthur Hellman,
            Anthony Amsterdam, Erwin Chemerinsky, Judy Resnik, Jessie
            Choper, and Margaret Johns.

       The past Director of the Federal Judicial Center, Judge
            William Schwartzer.

       The chairman of Long-Range Planning for the U.S. Federal
            Courts, Judge Otto Skopil.

       A great majority of the judges and lawyers in the Ninth
            Circuit.
    Adjudicative Divisions for the Ninth Circuit Court of Appeals
        Having strongly opposed the division of the Ninth Circuit, the
    Commission proceeds further to recommend a revised method of operation
    for the Ninth Circuit Court of Appeals through intra-circuit
    adjudicative divisions. The essential question then becomes whether the
    suggested revision of the operation of the Court of Appeals
    accomplishes the acknowledged goal of having a single court interpret
    and apply the federal law in the nine western United States and the
    Island Territories in an efficient and effective manner better than its
    present method of operation.
        When a whole new concept of the operation of courts of appeals is
    proposed, the burden should be upon those proposing the change to show
    that a particular proposal will operate more efficiently, effectively,
    and better advance the cause of justice than the time-tested procedures
    that have been in operation for many years.
        The position of the Ninth Circuit expressed to the Commission is
    that it is working well and that a great majority of the judges and
    lawyers in the Ninth Circuit are opposed to a split. This was confirmed
    by the survey of the Commission in which over two-thirds of the judges
    in the Ninth Circuit expressed that opinion.
        The Commission has proposed that the Ninth Circuit Court of Appeals
    be divided into three semi-autonomous adjudicative divisions, with the
    State of California being split into two separate divisions. Panel
    decisions decided in one division would not be binding precedent in
    either of the other divisions, and each division would have an
    independent en banc procedure that would have no precedential effect in
    the other two divisions. The Commission, in its Final Report, stated
    that this is essential to its conception of the operation of the
    divisions. Comments recommending changes to this aspect of the proposal
    were rejected as antithetical to the proposed divisional structure.
    Findings supporting the divisional structure
        It is important to assess the arguments the Commission believed
    required a change in the operation of the Ninth Circuit Court of
    Appeals. The Commission noted that the arguments had both objective and
    subjective components. With regard to the objective component, the
    Final Report states:

              We have reviewed all of the available objective data
            routinely used in court administration to measure the
            performance and efficiency of the federal appellate courts, but
            we cannot say that the statistical criteria tip decisively in
            one direction or the other. While there are differences among
            the courts of appeals, differences in judicial vacancy rates,
            caseload mix, and operating procedures make it impossible to
            attribute them to any single factor such as size.

        The Final Report then considered the subjective opinions of the
    district judges and lawyers in the Ninth Circuit. With regard to the
    district judges, the Final Report notes that the district judges in the
    Ninth Circuit do not find the law insufficiently clear to give them
    guidance in their decisions anymore often than their counterparts in
    other circuits, but they more frequently report that difficulties stem
    from inconsistencies between published and unpublished opinions.
        With regard to the lawyers in the Ninth Circuit, the Final Report
    indicates that Ninth Circuit lawyers found somewhat more difficulty
    discerning circuit law and predicting outcomes of appeals than lawyers
    elsewhere and more often than others reported a large or grave problem
    in doing so. However, the Commission stated, ``[b]ut when all is said
    and done, neither we nor, we believe, anyone else, can reduce
    consistency and predictability to statistical analysis. These concepts
    are too subtle, the decline in quality too incremental, and the effects
    of size too difficult to isolate, to allow evaluation in a freeze-
    framed moment.''
        The reaction of the lawyers would be a concern that the Ninth
    Circuit would wish to address to determine the source of any problem or
    whether there really is a problem and to consider reasonable steps that
    can be taken to remedy the problem if it is serious. However, the fact
    that there is just somewhat more difficulty than in other circuits does
    not seem to justify a major change in the structure of the Ninth
    Circuit Court of Appeals.
        Thus, it would appear that the conclusion of a need for the major
    structural change in the Ninth Circuit Court of Appeals is not based
    upon any objective findings. The subjective findings are based on
    rather minor differences expressed by the Ninth Circuit judges and
    lawyers, and the belief of the Commission that a smaller decisional
    unit just works best.
    Responses in opposition to divisional structure
        There were many responses to the Commission in opposition to this
    divisional structure, both as the idea pertained to the Ninth Circuit
    and as it pertained to other circuits in the future. Some of these
    responses were as follows:

       The United States Department of Justice submitted its
            response, noting that it approached its perspective from that
            of a litigant that participated in over 40 percent of the cases
            heard in the federal courts of appeals. In opposing the
            recommendation for the creation of intra-circuit divisions, the
            Justice Department stated, ``we agree with the draft report's
            recommendation that the Ninth Circuit should not be split at
            this time, and we concur generally in its view that `[t]here is
            no persuasive evidence that the Ninth Circuit (or any other
            circuit, for that matter) is not working effectively, or that
            creating new circuits will improve the administration of
            justice in any circuit or overall.' In our view, the lack of
            evidence supporting circuit splits also counsels against what
            we view as the principal recommendation contained in the draft
            report--the creation of divisions for the Ninth and other large
            circuits. That proposal would have potentially adverse
            repercussions for the administration of justice in the Ninth
            Circuit and ultimately across all federal courts of appeals.''

       Senator Dianne Feinstein wrote: ``Since your report was
            released on October 7, I have talked with federal judges,
            members of the Bar, and legal scholars in California to discuss
            the recommendations of the Commission. The overriding consensus
            among judicial and legal leaders is that it would be disastrous
            if California were split into Northern and Southern Divisions.
            Concerns expressed to me about the proposal to divide
            California focus on the following issues:

              The Middle Division (Northern California) and the Southern
            Division (Southern California) would not be bound
            precedentially by each other's decisions. Lawyers would engage
            in ``forum shopping'' within the same State for favorable
            rulings. California corporations subject to federal
            jurisdiction could be subject to varying interpretations of the
            same federal and state laws. This could compel businesses to
            build headquarters in other States where there is no conflict
            within the federal court system. The lack of uniformity and
            certainty in the law could create chaos in our state. Imagine
            if two California divisions disagreed on the constitutionality
            of any state-wide initiative or law. This could do
            extraordinary damage to Californians' faith in the integrity
            and fairness of the judicial system. Another layer of judicial
            review within the Ninth Circuit would have enormous costs and
            enlarge the federal bureaucracy.''

       Governor Pete Wilson, then Governor of the State of
            California, responded that ``the proposal to divide the Ninth
            Circuit Court of Appeals into three divisions-which would split
            California--would be counterproductive and not in the best
            interests of the people of California.'' He noted that the
            divisional arrangement proposed by the Commission would not
            only undermine the objective of having a single court interpret
            and apply the law in the western United States but would also
            raise new problems. He then listed five specific problems.

       The Ninth Circuit Court of Appeals, the Ninth Circuit
            Judicial Council, and the Association of District Judges of the
            Ninth Circuit all voiced opposition to the divisional approach.

       The Federal Bar Association pointed out that although there
            are regional issues ``the much larger portion of appellate
            issues and caseload are not so regionally unique.'' They
            expressed concern that the regional advantage might come at too
            high a price--``lack of inter-division stare decisis and of
            meaningful en banc review.''

       The Sierra Club Legal Defense Fund calls the proposed
            divisional structure ``a solution in search of a problem with
            little evidence to support the need for such changes.'' They
            cite the survey in the Commission Report, which showed that
            over two-thirds of the circuit judges and the district judges
            do not favor circuit reconfiguration.

       The Los Angeles County Bar Association stated, ``As a
            representative of many private and public consumers of judicial
            services in the Ninth Circuit, we * * * register our
            fundamental disagreement with the proposed restructuring of the
            Ninth Circuit into divisions. We believe this so-called
            `divisional arrangement' will present many, if not all, of the
            difficulties that the Commission acknowledges would accompany a
            split of the Circuit. Indeed, as we explain below, we see the
            proposed divisional structure as a de facto split of the
            Circuit that would, in effect, split California. Yet, the
            notion of splitting California is the very option that the
            Draft Report calls `undesirable.' Draft Report at 46. We
            believe this same concern applies with equal force to the
            proposed division of any state.'' They noted new problems that
            the divisional arrangement would create: inconvenience and
            cost; inconsistent interpretation of California state law;
            forum shopping and delay tactics; and increased confusion for
            litigants.

       The Chief Judges of the First, Second, Third, Fourth,
            Seventh, Eighth, and DC Circuits wrote a joint response to the
            divisional approach, stating that ``The whole concept of intra-
            circuit divisions, replete with its two levels of en banc
            review, has far more drawbacks than benefits.''

       Judge Winter, Chief Judge of the Second Circuit, wrote a
            separate letter on behalf of his court ``to indicate a strong
            and unanimous opposition to the Commission's recommendation of
            mandatory divisions in courts of appeals with authorized
            judgeships over a certain number.'' He listed several reasons.
            ``First because such divisions have never been tried, we have
            no experience with them. The present organization of the
            regional courts of appeals is hardly working so badly that
            mandatory resort to a very different and untested form of
            organization is called for.'' He then stated it would increase
            forum shopping and require more judges and concluded ``Finally,
            and most importantly, the major premise of the recommendation
            for mandatory divisions appears to be that appellate courts
            with 18 judges or more will inevitably lead to an unacceptably
            incoherent case law. We do not agree with that major premise.
            Moreover, we believe that the proposal for mandatory divisions
            will lead either to more incoherence in case law rather than
            less or to intolerable collateral consequences.''

       Judge Politz, the Chief Judge of the Fifth Circuit, wrote
            saying that the judges on his court are very concerned and
            voiced considerable reservations about the proposal for
            mandatory divisions for circuits with 18 or more active judges.
            Judge Edith Jones of that court expressed her opposition more
            colorfully, in that she believes this to be ``a dagger pointed
            at the heart of the Fifth Circuit, with our currently
            authorized 17 judgeships.''

       The New York City Bar Association opposes the recommendation
            that the federal courts of appeals are required to split
            themselves into divisions. They recognize that such division is
            ``very nearly the functional equivalent of splitting it into
            separate circuits.'' They conclude that this should only be
            done in extreme circumstances.

       The Federal Bar Council's Committee on the Second Circuit
            Courts opposes divisions and argues that this will cause
            greater disharmony in circuit law and an additional burden
            caused by another layer of review.

       The Chicago Council of Lawyers opposes divisional
            organization of the Court of Appeals. ``[T]his is another bad
            solution to a `not proven' problem.'' They state that the basis
            for the Commission's recommendation is that according to an
            unpublished survey, lawyers and district court judges in the
            Ninth Circuit are ``somewhat'' more likely ``to have trouble
            discerning circuit law, and that the court is too large for
            `collegiality' to work effectively.'' The Council does not
            concede that either of these are genuine concerns. It does
            point out, however, that the divisional approach will ``if
            anything increase uncertainty and hinder collegiality.''
    Comparison of circuit divisions as opposed to the current operation of
            the circuit court
        The essential question is whether the proposed divisional approach
    is so superior to the current method of operation as to justify
    changing the basic structure of the Ninth Circuit Court of Appeals.
    Present operation of the court
       Panel decisions are binding throughout the circuit and other
            panels are obligated to follow that precedent unless it is
            overruled en banc. The circuit has developed a sophisticated
            issue coding procedure and all panels are notified when the
            same issue is before two or more panels. The first panel to
            have the issue submitted to it has priority to resolve the
            issue. However, there is frequently contact between panels
            having the same issue for consideration of another panel's
            view.

       There is no empirical evidence that the conflict between
            panels of the Ninth Circuit is any greater than any other
            circuit.

       A limited en banc process operates effectively and involves
            the entire court.

              Any circuit judge, including senior judges, can call for a
            ``stop clock,'' which is usually done when a judge wants the
            panel to consider an objection to a part of the decision.
              Any judge, including senior judges, can call for en banc and
            write memos supporting the en banc call or comment on the en
            banc call of other judges. Generally, there are many insightful
            memos.
              All active judges vote on whether to take a case en banc. The
            limited en banc process is representative of the court as a
            whole because all of the circuit judges can submit memoranda
            for or against the en banc call, and all active circuit judges
            vote on whether to take the case en banc. If the case is not
            taken en banc, this is a decision of the full court that the
            panel opinion should stand.
              The limited en banc decisions are fully accepted by the court
            as being the final decision of the court as a whole. A majority
            of the active judges can have a limited en banc decision
            reviewed by the full court. Since 1980, there have been only
            five such requests, and the majority of the active judges have
            never voted to consider a limited en banc decision before a
            full court en banc. From 1980 to 1997, there have been 173
            cases heard by the limited en banc court. 33 percent of the
            decisions were unanimous and 75 percent of the decisions were
            rendered by a majority vote of 8-to-3 or greater. This is
            strong indication that a full court en banc would not have
            reached a different decision.
              In the calendar year 1996, there were 25 calls for en banc
            that were voted on by the full court and 12 of the cases were
            taken en banc. In calendar year 1997, there were 39 calls for
            en banc that were voted on by the full court and 19 of the
            cases were taken en banc. In calendar year 1998, there were 45
            calls for en banc that were voted on by the full court and 16
            of the cases were taken en banc. The full-court participation
            should be judged not only upon those cases that were taken en
            banc, but by those cases that were called for en banc, upon
            which the full court voted.
              There could well be changes in the limited en banc process
            that would further improve its operation, as suggested by the
            Justice Department and others. But, these are minor adjustments
            that could be made and still retain the function of resolving
            circuit-wide precedent both as to conflicts and as to questions
            of exceptional importance.
    Divisional operation
       Panel decisions in a division would have a binding
            precedential effect only in that division and no binding
            precedential effect in either of the other two divisions.

       The Circuit Division only resolves conflicts between panels
            in different divisions. Unless there is a conflict with a
            decision from another division, the law of each division is not
            reviewed within the circuit, which leaves questions of
            exceptional importance unreviewed in the Ninth Circuit.

       A very significant difference is the lack of participation
            in the development of circuit-wide law by all judges. A judge
            in one division cannot call for en banc in another division,
            but more important, does not participate in the development of
            circuit law through the stop clock or en banc procedure, or by
            circulating memos in support of or opposed to en banc
            consideration.

       The makeup of the Circuit Division is not proportionately
            representative of the court as a whole. The Circuit Division is
            composed of the chief judge and 4 judges from each division.
            The Northern Division has only 22 percent of the caseload and
            would be expected to have 22 percent of the judges, whereas the
            Southern Division has 47 percent of the caseload and would be
            expected to have 47 percent of the judges, yet the two
            divisions would be equally represented on the Circuit Division
            court.

       There is no input from any of the judges in any of the
            divisions to seek to have a case heard by the Circuit Division.
            The statute specifies that the application is to be made by a
            party to the case. Furthermore, the Circuit Division has
            discretion whether to take a case or not, regardless of what a
            majority of the judges of the circuit would consider to be a
            conflict.

       The Circuit Division presents an additional level of appeal
            for litigants before they achieve finality.
                   relative advantages of the two structures
    The present structure
       There is a circuit-wide mechanism that maintains the
            consistency of law throughout the circuit and is not dependent
            upon there merely being a conflict between divisions of the
            court.

       There is circuit-wide participation by the judges in the
            development of the circuit law. The panel decisions of all the
            judges are binding throughout the entire circuit. All of the
            judges participate in the en banc process for the entire
            circuit by the stop clock procedure, requests for en banc,
            memos circulated to the entire court arguing for and against an
            en banc review, and by a vote of all of the active judges on
            whether to take a case en banc.

       When a case is taken en banc, the en banc court reviews the
            full case for the purposes of clarifying the circuit law,
            resolving any conflicts, or considering questions of
            exceptional importance to establish the law of the circuit.

       There is no additional level of appeal as there would be
            with the divisional approach.

       There is no litigation on whether an opinion reflects a
            direct conflict between divisions or merely distinguishes the
            cases involved, as would be the case with the proposed Circuit
            Division.

       The circuit court has the advantage of diversity in the
            background, experience, and geographical identity of a large
            number of judges, which provide important insights into the
            application and development of federal law throughout the nine
            western United States and Island Territories.
    The divisional structure
        The asserted advantages for the divisional approach, as detailed in
    the Final Report, are as follows:

       Smaller decisional units will promote consistency and
            predictability because the judges in the smaller units will
            have a better opportunity to monitor the decisions of all the
            panels within that division.

       The judges within a division would sit together more
            frequently, contributing to greater collegiality among those
            judges, and more predictability as to the results of appeals.
            Judges in a division would become much more of a ``known
            bench,'' fostering judicial accountability and public
            confidence.

       Divisional en banc procedure would arguably operate more
            effectively.

       Each judge would arguably be relieved of having to keep
            current with the decisional output of the entire Ninth Circuit
            Court of Appeals. However, when decisions of other divisions
            are to be ``accorded substantial weight,'' there would still
            remain some responsibility on the part of the judges to keep
            current with the decisions of the other divisions.

        The question is whether these asserted advantages really exist and,
    if so, are out-weighed by the disadvantages of the divisional
    operation.
    Disadvantages of divisional operation
       There is no participation of all judges circuit-wide in
            resolving circuit law, as at present. The only participation is
            within the division.

       Resident judges within a division that are assigned to
            another division, as contemplated in the Final Report, would,
            for that three-year period, have no say in the en banc
            consideration of panel decisions within the division of their
            residence. For example, if a circuit judge who resides in
            Alaska is randomly assigned for three years to the Southern
            Division, he would have no say in the en banc process of the
            Northern Division.

       The resolution of conflict by the Circuit Division would be
            by judges, not representative of the full court or even
            proportionately representative of the divisions.

       The Circuit Division would create a category of what, in
            effect, would be Super Circuit Court Judges with three-year
            terms, to determine conflicts in circuit law without the
            participation of any other judges in the circuit.

       There would be no participation of judges throughout the
            circuit in the decisions of the Circuit Division. In fact, the
            Circuit Division procedure is only initiated by a party, not a
            judge, and the Circuit Division can, by a vote of those Super
            Judges, elect not to consider a case.

       There are statutory problems lurking in the new procedure,
            which we may not realize. I can identify two.

       There is a problem under the statute for the Circuit
            Division to resolve conflicts unless there are two
            contemporaneous conflicting decisions. If a case in the
            Northern Division conflicts with a case decided in the Middle
            Division two years prior, the Circuit Division can only affirm,
            reverse, or modify the Northern Division case. It cannot modify
            the Middle Division case. The statute does not provide for the
            Circuit Division decision to become the law of the circuit. It
            only affects the decision of the Northern Division.

              The Final Report states that existing circuit law will be in
            effect until overruled by a division. However, the statute does
            not say so. If this is not the case, it would create real
            problems of determining circuit law. Assuming, however, that
            existing law is intended to remain in effect, as the Final
            Report states, and the statute is so amended, this still
            creates a significant problem. If a division overrules an
            existing precedent, this would not be binding circuit-wide
            unless there is a case in another division that is in conflict
            and can be modified. The existing precedent would remain in
            effect in the other divisions.
    The practicality of how the divisional structure would work

        The Commission stated:

              By constituting divisions with both resident and nonresident
            judges, the divisional structure respects and heightens the
            regional character deemed a desirable feature of the federal
            intermediate appellate system, without losing the benefits of
            diversity inherent in a court drawn from a larger area. The
            divisional structure draws on the circuit's full complement of
            judges while restoring a sense of connection between the court
            and the regions within the circuit by assuring that a majority
            of the judges in each division come from the geographic area
            each division serves.

        The Commission also indicated that the divisions should be composed
    so as to equalize the perjudge caseload, with each division having a
    maximum of 11 judges and a minimum of 7. As I will demonstrate, an
    equal division of the caseload will dictate there being 6 judges in the
    Northern Division, 9 in the Middle Division, and 13 in the Southern
    Division.
        The caseload for the Ninth Circuit Court of Appeals for the fiscal
    year that ended September 30, 1998, was 9,070. The appeals originating
    from each of the divisions is as follows:

                                                                                       Percent

                          Northern Division                                   1,988         22
                          Middle Division                                     2,831         31
                          Southern Division                                   4,251         47

                              Total:                                          9,070        100

        The average caseload for the 28 judges authorized for the Ninth
    Circuit Court of Appeals would be: 9,070 divided by 28=324 appeals
    perjudge. The number of judges to be fairly allocated to each Division
    would be:

    Northern Division                    1,988 divided by 324=6
    Middle Division                      2,831 divided by 324=9
    Southern Division                    4,251 divided by 324=13

        Total:                                               281

        \1\ If the Northern Division were allocated an additional judge to
    come from either the Middle Division or the Southern Division, it would
    mean a substantial increase in caseload for the judges of that
    division. If the additional judge were to come from the Middle
    Division, the caseload per judge in the Middle Division would be 353
    cases per judge or 1,061 per panel, as opposed to 284 cases per judge
    or 852 per panel in the Northern Division. Since the judges sit in
    panels of 3, this would mean that a judge in the Northern Division
    would have 209 fewer cases per year than a judge in the Middle
    Division. A nearly identical result would be obtained if the additional
    judge were to be allocated from the Southern Division. Thus, a fair
    allocation of the caseload would be as shown with the Northern Division
    having 6 judges.
        Following the formulation provided by the Commission Report, that
    the majority of the judges be residents of the division, with other
    division judges being assigned to that division, the result would be as
    shown on the following chart:

    ----------------------------------------------------------------------------------------------------------------
                                                       Present       Judges                    To be        To Be
                                                      Authorized   Allocated   Majority of    Assigned   Assigned To
                        Division                      Judgeships       by       Allocated    From Other    Other in
                                                     in Division   Caseloads      Judges     Divisions    Divisions
    ----------------------------------------------------------------------------------------------------------------
    Northern.......................................            9            6            4            2            5
    Middle.........................................            7            9            5            4            2
    Southern.......................................           12           13            7            6            5
    ----------------------------------------------------------------------------------------------------------------

        Thus, for example, in the Northern Division, there would be better
    than a 50 percent chance that a resident judge would be assigned to
    another division for three years. During that time, the assigned judge
    would take no part in the panel decisions of the division in which the
    judge resides, and the judge could take no part in the en banc court in
    the judge's division. Furthermore, the judge is not expected to keep up
    on the decisions in the judge's resident division. The same is
    essentially true for the other divisions, with a somewhat lesser chance
    of being assigned to another division.
        The designation of the presiding judge of each division presents an
    interesting scenario. Under the statute, the age and time limitations
    are the same for a presiding judge as for a chief judge, then it goes
    by seniority, provided that only judges resident in and assigned to the
    division are eligible. The process would operate as follows:

        The presiding judge of the Northern Division would be Judge
    O'Scannlain, unless, of course, he was one of the five judges randomly
    assigned to another division. In that case, it would fall to the next
    judge in seniority that was not assigned to another division. If an
    assigned judge returns, and is senior and otherwise eligible, I presume
    that the returning judge would replace the presiding judge.
        In the Middle Division, Judge Willie Fletcher would be the
    presiding judge, unless, of course, he is assigned to another division.
    In that event, one of the new judges, yet to be appointed and
    confirmed, would take the position. (Judges Browning, Hug, and Brunetti
    would be ineligible).
        In the Southern Division, Judge Schroeder would be the presiding
    judge, unless, of course, she is assigned to another division, in which
    case the position would go to the next eligible judge in seniority that
    was not assigned to another division.
        All this is further complicated in the first three years by the
    fact that the initial terms of assignment out of division are staggered
    one-year, two-year, and three-year terms.
        The composition of the Circuit Division that resolves circuit
    conflicts also presents some interesting questions. The 13-judge court
    is composed of the chief judge and 4 active judges chosen by lot from
    each division. The Northern Division, which has less than 22 percent of
    the caseload, with 6 judges allocated, would have representation on the
    Circuit Division court equal to the Southern Division, with 47 percent
    the caseload and 13 judges allocated. The judges drawn from a division
    need not be residents of the division, but under the statute, can be
    one of the assigned judges.
        The point is that the Circuit Division court is much less
    representative of the full court then our present limited en banc
    court. The Circuit Division is skewed by non-proportional divisional
    representation. Also, with three-year terms it may be many years before
    a judge would serve on that court. Our present limited en banc court is
    drawn at random from the full court. If a judge has not been drawn to
    be on the en banc court for three successive times, he is automatically
    placed on the en banc court. Thus, a judge is guaranteed to be on the
    limited en banc court at least every fourth time the court is
    constituted.
                                   conclusion
        The work of the Commission has been valuable in placing in
    historical prospective the development of the Federal Appellate System,
    and conducting hearings and surveys, and in obtaining written comments
    from a wide spectrum of those concerned with the future of the Federal
    Appellate System. Many of the recommendations will be valuable in
    informing future developments.
        It is gratifying that the Commission recommended that the Ninth
    Circuit not be split and recognized the importance of having a single
    court interpret and apply federal law in the western United States.
    However, the evidence does not justify the recommended change to a
    divisional structure of the Ninth Circuit Court of Appeals. The
    disadvantages of such a structure far outweigh the claimed advantages
    and do not justify disrupting a court that the great majority of judges
    and lawyers within the circuit are convinced is operating efficiently
    and effectively. The Ninth Circuit has always been willing to re-
    evaluate itself, its performance, and to experiment with innovations
    that would lead to greater efficiency and effectiveness. The annual
    evaluation of the Ninth Circuit's long range plan is specifically
    designed to do so. Concerns that have surfaced in the Final Report of
    the Commission can be addressed with far less disruption than a whole
    new divisional structure.

        Senator Grassley. Thank you, Mr. Chief Judge.
        Now, Judge Rymer.

                   STATEMENT OF HON. PAMELA ANN RYMER

        Judge Rymer. Thank you very much, Chairman Grassley,
    members of the subcommittee, Senator Feinstein. I am Pam Rymer,
    and I very much appreciate the opportunity of testifying. But
    in view of Senator Sessions' introduction of me as a member of
    the Ninth Circuit Court of Appeals, I think I should make it
    very clear to you that I am here representing and speaking in
    behalf of the Commission on Structural Alternatives for the
    Federal Court of Appeals. Our recommendations with respect to
    the ninth circuit, are, of course, reflected in S. 253.
        Justice White, who chaired the Commission, of course,
    submitted a written statement to you. But he also asked me to
    convey directly to you his strong conviction that this
    legislation must be enacted.
        As you know, the Congress created the Commission in great
    measure at the urging of the ninth circuit to make an
    independent study of structural alternatives for the Federal
    Courts of Appeal, which we did, as instructed, with particular
    reference to the ninth circuit.
        The Commission conducted an extensive study and concluded
    two things that are of equal importance: The circuit, which is
    an administrative entity with no adjudicative functions,
    ``ain't broke,'' and it should not be fixed.
        But equally important, the Court of Appeals for the Ninth
    Circuit is broke and should be fixed, but cannot be fixed
    without structural change. The reason is the Court of Appeals
    is too large to function well as a single decisionmaking unit,
    yet the caseload will likely continue to grow, and with that,
    the need for even more judges to handle it. In the opinion of
    two-thirds of the Federal circuit judges throughout the
    country, an appellate court stops acting like an appellate
    court should act if it has more than 11 to 17 judges.
        The Ninth Circuit's Court of Appeals has 28 authorized and
    19 senior judges with another five requested. Unlike any other
    appellate court in the Nation, its judges do not sit together
    as a full court en banc to develop and maintain a coherent and
    consistent body of law. Instead, that critical function is
    consigned to a limited en banc court, which is randomly
    constituted on a case-by-case basis. Neither do its judges sit
    with each other regularly enough on panels to get a true
    understanding of their colleagues' jurisprudence or to polish
    off the rough edges, like any good partnership or marriage.
        And the court's output is too large to read, let alone for
    each judge personally to keep abreast of, think about, digest
    or influence. Inevitably, over time, there is a toll on
    coherence and consistency, predictability and accountability.
        For this reason, a majority of the justices of the U.S.
    Supreme Court unequivocally say that it is time for change.
    They review the work of all appellate courts in the country.
    And as you can see from their letters to the Commission, each
    of the five justices to comment on the ninth circuit thinks
    that the Ninth Circuit's Court of Appeals is too big to
    function well. The Commission unanimously agreed.
        It is important. The problem with the Ninth Circuit's Court
    of Appeals has nothing to do with good will or good
    administration. No amount of either, and the court has both
    good will and very good administration, no amount of either can
    make it possible for 30, 40, or 50 or more judges to decide
    cases together. It simply cannot be done, and that is the
    problem.
        The problem is not that the court does not work. If the
    problem were that the court does not work, then administration,
    and technology and ideas for operational improvement might make
    a difference, but it is not. Nor is the problem reversal rate.
    That is not a problem that the Commission identified or that
    the Commission believes should weigh into the consideration of
    structural alternatives one or another. We made that very clear
    in the report and in the language that Chief Judge Hug just
    quoted.
        The problem with the court of appeals is that it cannot
    work because there are too many judges for the court to be a
    court. Therefore, to position the court of appeals so that it
    can function well, requires restructuring to downsize the
    decisionmaking units. The divisional structure that the
    Commission recommends will reduce adjudicative units to
    manageable proportions, each with 7 to 11 judges, a doable
    caseload and a rational area of responsibility.
        In turn, divisional judges can sit together as a full bench
    when they need to. That will make the division a true and
    traditional en banc court that can correct panel errors and can
    develop and maintain a coherent and consistent body of law.
    Because divisional judges will serve with each other more
    frequently on panels and will participate in crafting
    proportionately more of the opinions that speak for the
    division, they can keep abreast of the output and the views of
    their colleagues.
        But in addition to size, there are two other values that
    are extremely important and should not be ignored: One is a
    regional connection because circuits, in the main, have
    regional roots, and the other is a Federal perspective because
    it is Federal law, not regional law, that a Federal court must
    apply. The divisional structure takes account of enhances both
    values.
        On the one hand, a majority of the judges on each division
    will reside in a district served by that division, and on the
    other hand, judges from elsewhere in the circuit will be
    assigned to different divisions for a term to provide judge
    power where needed and to cross-pollinate the divisions with
    diversity. In this way, the Federal appellate court in the
    ninth circuit will be less remote to those whose lives and
    fortunes depend on its decisions, yet still be a court that is
    capable of maintaining uniformity, where uniformity itself is a
    substantial interest to be served.
        Of course, the divisions may diverge in how they interpret
    Federal law over time. But--and this is very important--mostly
    this will not matter because lawyers and district judges in
    each division will only need to worry about the law of that
    division; unlike today, when even subtle differences between
    panels throughout the circuit does matter because district
    courts are bound to follow and, thus, to try to figure out the
    law of the entire circuit.
        However, there may well be issues where itself is the
    compelling interest. And in that circumstance, in that limited
    circumstance only, the circuit division can resolve a
    substantial and square conflict. Even so, the circuit division
    will not be a group of super judges. Indeed, circuit division
    judges will be far less super than limited en banc judges are
    today. For unlike limited en banc judges, the circuit division
    will have no power to rehear panel or divisional decisions to
    correct the result or to resolve issues of exceptional
    importance. These are true en banc functions that the
    Commission believes are too significant to be left to chance,
    as they are now, but should, instead, be entrusted only to
    divisions that sit as a full bench or to the U.S. Supreme
    Court. Nor will the circuit division be an extra level of
    appeal. That is expensive and cumbersome.
        There are three possible levels of review now: Panel
    rehearing, limited en banc rehearing and full court rehearing.
    And there will be three possible levels of review under the
    divisional structure: Panel rehearing, divisional en banc
    rehearing and circuit division review, if required to resolve
    squarely conflicting divisional decisions.
        As a practical matter, this will seldom happen because only
    10 percent of the cases reheard in the last 10 years have been
    deemed en banc worthy on account of conflict. There should be
    even less conflict under the divisional structure because the
    division creating the conflict will have to create it,
    advisedly and squarely. In any event, essentially no extra work
    will be involved, since the issue and the conflict will have
    been fully briefed and already the subject of two fully
    reasoned, albeit squarely conflicting, divisional decisions.
        In my mind, the only really tough call has to do with what
    to do about California. No solution is perfect, given how much
    California contributes to caseload. Personally, having been a
    lawyer in Los Angeles for nearly 20 years and a district judge
    in Los Angeles for 6 more years, I see no problem at all with
    putting California into different divisions.
        As Justice John Paul Stevens explains in his letter, which
    I attached to my written statement and quoted on page 18, and
    which I urge you to read carefully, as Justice Stevens
    explains,

              To do so creates no more potential for inconsistency
            or forum shopping than now exists. For under the
            California state system, decisions of one Court of
            Appeal do not bind others. And under the Federal
            system, there can always be different decisions by
            different district judges.

        So people who live and work throughout the State of
    California already face and already deal with inconsistent
    determinations of both State and Federal law. And under the
    structural arrangement, the circuit division will be there if a
    square conflict, in fact, occurs.
        Having said that, if, for other reasons, it seems
    preferable to postpone the inevitable, the Commission sees no
    magic to the particular divisional arrangement that the
    Commission recommended. California could be a division by
    itself, but the downside is that from day one, if it has enough
    judges to handle the caseload, it would start off being very
    close to the limit of not functioning effectively as an
    appellate tribunal.
        Therefore, to me, it makes the most sense to do now what
    will be best for the future, and that is to pass the bill in
    its present form. As the Chief Justice of the United States has
    told you, this structure will address head on most of the
    significant concerns raised about the court of appeals and
    would do so with minimal to no disruption in the circuit's
    administrative structure.
        Senator Grassley, thank you for your indulgence. I very
    much appreciate your consideration of the White Commission's
    proposals. We urge your favorable action on S. 253.
        [The prepared statement of Judge Rymer follows:]

                     Prepared Statement of Pamela Ann Rymer

                               executive summary
        The White Commission was created by Congress to recommend
    structural alternatives for the federal courts of appeal, with
    particular reference to the Ninth Circuit.
        Neither better case management, nor good administration, nor more
    judges can avoid the need for alternatives.
        The reason is: Beyond a range of 11-17 judges, an appellate court
    is too big to function well because it can no longer sit together as a
    full court to rehear cases en banc; read and keep up with the court's
    output; sit with each other regularly; take other steps (such as pre-
    filing circulation of opinions) to assure the coherent, consistent, and
    predictable development of the law; and hold each other accountable for
    decisions rendered in the name of the court.
        At 28 active and 19 senior judges (with 5 more requested), the
    Ninth Circuit's Court of Appeals has too many judges to function well.
    But instead of splitting the circuit--which is only an administrative
    entity with no adjudicative responsibilities and that ``ain't
    broke,''--fix the court of appeals, which is an adjudicative body, that
    is.
        Because of its size, the Ninth Circuit's Court of Appeals is the
    only court in the country that does not sit together as a full court to
    develop and maintain a coherent and consistent body of law. Instead, it
    delegates en banc functions to a limited en banc court of less than
    half of its authorized judgeships (11) that is randomly constituted on
    a case-by-case basis. Its members do not sit regularly with each other
    on panels. Also because of its size, the court's output is too great
    for all judges to read all of the court's decisions. Inevitably there
    is a toll on coherence and consistency, predictability and
    accountability.
        A majority of the Supreme Court and one-third of the judges on the
    Ninth Circuit's Court of Appeals believe these realities are serious
    enough to warrant change.
        The divisional concept responds to the principal concerns about the
    ``Ninth Circuit'' by producing a judicial unit that is small enough to
    function well yet also provides a mechanism for maintaining uniform law
    on issues where consistency throughout the west is important. It also
    respects the regional roots of the circuit system by assuring that a
    majority of the judges in each division reside in a district served by
    that division, but it retains an appropriate federalizing focus through
    assignment of judges from elsewhere in the circuit, a common set of
    rules and procedures, and the Circuit Division which may resolve
    squarely conflicting decisions on issues where uniformity matters to
    the circuit.
        The divisional structure prescribed in S. 253 is sensible and
    workable.
        Asserted ``disadvantages'' are not difficulties but strengths.
        A circuit-wide en banc process is not necessary as the divisions
    will sit as a full bench to decide issues of exceptional importance and
    to maintain coherent and consistent law in the division. Divisional
    decisions should not bind other divisions because that would put the
    court of appeals back to square one--a condition that ultimately cannot
    work.
        Replacing the circuit-wide limited en banc with a divisional full
    court en banc will increase--not decrease--judicial participation and
    accountability.
        The Circuit Division does not add a cumbersome new level of review,
    as there are no more levels than are presently available and both the
    parties' and the Circuit Division's work can largely be done on the
    existing record. Nor is the Circuit Division a collection of ``Super
    Circuit Court Judges,'' since its power (to resolve square conflicts
    only) is considerably less than a limited en banc court's, which may
    take a case in order to reconsider and then resolve cases of
    exceptional importance, cases that pose inter-circuit conflicts, and
    cases that create an intra-circuit conflict.
        Once up and running, the divisional structure should make it easier
    to organize calendars as assignments will be more stable, and it should
    not be more complicated to support or staff as the divisions will
    continue to be administered centrally.
        The problem of putting parts of California into different divisions
    is ``seriously exaggerated''; inconsistency and forum shopping
    opportunities exist already and will not be exacerbated by a divisional
    structure. That said, there is no magic to the particular divisional
    arrangement the Commission thinks is preferable, except that it will
    work now and for the foreseeable future. California could be a division
    by itself, but a ``California'' division with an adequate number of
    judges to handle the caseload would immediately be too large to
    function well.
        As the Chief Justice of the United States has said, the divisional
    proposal for the Ninth Circuit Court of Appeals ``addresses head-on
    most of the significant concerns raised about that court and would do
    so with minimal to no disruption in the circuit's administrative
    structure.''
        S. 253 should be enacted.
                                     ______

        I appreciate the opportunity of testifying in support of the
    recommendations of the Commission on Structural Alternatives for the
    Federal Courts of Appeals which, with respect to the Ninth Circuit, are
    reflected in S. 253, the ``Ninth Circuit Reorganization Act,'' that
    provides for restructuring the Court of Appeals for the Ninth Circuit
    into adjudicative divisions. I was privileged to serve on the
    Commission chaired by retired Supreme Court Justice Byron R. White, and
    to work with N. Lee Cooper, the immediate past President of the
    American Bar Association; Hon. Gilbert S. Merritt, former Chief Judge
    of the Sixth Circuit and Chair of the Executive Committee of the
    Judicial Conference of the United States; and Hon. William D. Browning,
    who was Chief Judge of the District of Arizona as well as a member of
    the Judicial Conference of the United States and the Judicial Council
    of the Ninth Circuit.\1\
    ---------------------------------------------------------------------------
        \1\ While I am testifying as a member of the White Commission, I am
    also a United States Circuit Judge for the Ninth Circuit and was a
    district judge for the Central District of California. I currently
    serve on the Executive Committee of the Court of Appeals and am
    Administrative Unit Judge for the Southern Unit as well as a member of
    the Judicial Council for the Ninth Circuit. I have previously been a
    member of the Executive Committee of the Ninth Circuit Judicial
    Conference and was its Chair.
    ---------------------------------------------------------------------------
        In the wake of decades of concern about the size of the Ninth
    Circuit and a rider to the Appropriations Bill in 1997 that would have
    split the circuit,\2\ the Commission was established to study
    structural alternatives for the federal courts of appeals--with
    particular reference to the Ninth Circuit. Although the Ninth Circuit
    was a special focus of the Commission's work, its charge was broader
    and our recommendations with reference to the Ninth Circuit grew out of
    the study we undertook of the federal appellate system as a whole, its
    present condition and future capacity.
    ---------------------------------------------------------------------------
        \2\ The rider, passed by the Senate, would have split the Circuit
    by establishing a new Twelfth Circuit of Alaska, Arizona, Hawaii,
    Idaho, Montana, Oregon, Washington, Guam and the Northern Mariana
    Islands, leaving California and Nevada in the ``old'' Ninth.
    ---------------------------------------------------------------------------
        The most significant fact that emerged is the growth in caseload
    that federal courts across the country have experienced in recent
    years. Appellate courts have been disproportionately affected because
    the number of circuit judges has not kept pace with the growth. To an
    extent, caseload pressures are exacerbated by unfilled vacancies, but
    the problem is more systemic than that.
        Better case management is a band-aid that helps alleviate, but does
    not cure, the problem. Appellate courts (including, in particular, the
    Ninth Circuit's) have responded to increased demand by adding staff
    support, tracking cases differently depending upon their difficulty,
    providing ADR, borrowing judges, and taking advantage of technology to
    coordinate consideration of related issues. At the same time, fewer
    appeals are orally argued and fewer result in fully reasoned, published
    dispositions. With all that has been accomplished, however, most courts
    appear close to the limit of their ability to manage the caseload more
    effectively and efficiently--yet still render decisions that are, and
    are perceived to be, fairly and fully considered by Article III judges.
        Curtailing jurisdiction could also relieve caseload pressure.
    Indeed, all members of the Commission believe that restoring and
    retaining a more appropriate balance of federal and state jurisdiction
    is critical to enabling the federal courts to perform their core
    constitutional functions in the future. That said, we cannot
    realistically count on changes in jurisdiction to solve the caseload
    problem.
        Another palliative is to increase the number of judges, but the
    problem with this solution is that at some point an appellate court
    becomes too large to function effectively as a single judicial
    decision-making unit. Unlike judges on a district court, appellate
    judges must work together to develop the law of the court's
    jurisdiction. Two-thirds of the circuit judges throughout the country
    (including one-third of my colleagues on the Court of Appeals for the
    Ninth Circuit) believe that the maximum number of judges for an
    appellate court to function well lies somewhere between eleven and
    seventeen. Beyond this range there are too many judges:

       To sit together as a full court en banc;

       To read the court's output;

       To sit with each other regularly;

       To take steps such as pre-filing circulation of proposed
            opinions to assure coherence and consistency, predictability
            and stability; and

       To hold each judge accountable for decisions that are
            rendered in the name of the court.

        Historically, when the number of circuit judges needed to deal with
    a circuit's increasing caseload has gone beyond a tolerable number, the
    circuit has been split and two new circuits have been created, each
    with an acceptable number of judges to handle the caseload of the newly
    aligned circuit (at least for a while). This happened with the ``old''
    Fifth and Eighth Circuits earlier in the century. Inevitably until now,
    splitting the circuit has been seen as the way to solve the conundrum
    of the Ninth Circuit, thought by many to be too large in terms of
    judges, caseload, and population.
        But there are downsides--and limits--to circuit splitting. For one
    thing, to make more, smaller circuits tends to Balkanize federal law
    and adversely to affect the federalizing function of a federal court of
    appeals. For another, everyone to look at the question has agreed that
    no regional circuit should have fewer than three states. This is so for
    reasons both of policy and practicality: a federal appellate court
    should be more than a single state court since it declares federal law
    that speaks beyond state boundaries; as such, its judges should come
    from, and be appointed by and with the consent of senators who are
    concerned about the interests of, more than one or two states. In
    addition, the only forum where inter-circuit conflict can be resolved
    is the United States Supreme Court. This makes splitting a single large
    state (California, for example) between two different circuits
    especially undesirable. Finally, there are obvious costs, both to the
    fiscal and legal order, in creating an entirely new, essentially
    duplicative, apparatus.
        Thus the question Congress posed to the Commission: Are there
    structural alternatives for the federal courts of appeals, in
    particular the Court of Appeals for the Ninth Circuit? The answer is
    yes. Instead of splitting a circuit that ``ain't broke,'' fix the
    appellate court that is.
        A court of appeals is different from the circuit, and the
    difference is critical to the White Commission's analysis. Even though
    an appellate judge is a ``circuit'' judge and the court of appeals is
    commonly called the ``circuit'' court, the circuit is not the court of
    appeals or vice versa. A circuit is an administrative entity that is
    the governance mechanism for all courts and judges within the
    geographic area it covers--district courts, bankruptcy courts, and
    magistrate judges as well as the court of appeals. A circuit has no
    adjudicative role; adjudication is entirely a court function.
    Therefore, to the extent there are perceived problems with a court of
    appeals on account of the fact that it has grown too large or would be
    too large if an adequate number of judges were appointed to handle the
    caseload, the court of appeals can be restructured without the circuit
    being split to achieve it.
        In the case of the Ninth Circuit, no one seriously questions how
    the circuit performs its administrative functions. The circuit's size
    allows for flexibility in assignment, economies of scale, and a common
    body of law for the Pacific Rim and the western part of the United
    States--all of which are positive values. But many circuit judges,
    lawyers who practice within the circuit, and a majority of justices on
    the United States Supreme Court question how the court of appeals
    performs its adjudicative functions.\3\ It is significantly larger than
    any other collegial court in this country,\4\ and there are serious
    concerns about creeping inconsistency, lack of predictability, and the
    absence of review of decisions by all judges on the court.
    ---------------------------------------------------------------------------
        \3\ Letters written by the Chief Justice and by Justices Stevens,
    O'Connor, Scalia, Kennedy and Breyer to the Commission are available on
    the Commission's web site but are attached for convenience as Exhibit A
    to this statement. Survey results are summarized in the Commission's
    Working Papers.
        \4\ ``Collegial'' in this context does not mean friendly or
    sociable or enjoying one another's company. Nor does it connote that
    judges get along personally or agree on the law. Rather, a
    ``collegial'' court is one that must work together, over time, to
    develop a consistent, coherent, and predictable body of law for the
    jurisdiction.
    ---------------------------------------------------------------------------
        Alone among the circuits, the Ninth Circuit's Court of Appeals does
    not sit together en banc, as a full court, to develop and maintain a
    coherent and consistent body of law. By statute, federal appellate
    courts may go en banc for three purposes: to decide issues of
    exceptional importance, to resolve intra-circuit conflict, and to avoid
    inter-circuit conflict. Instead of a full court en banc, the Ninth
    Circuit's appellate court has a ``limited en banc.'' The limited en
    banc court is constituted on a case-by-case basis, consisting of the
    Chief Judge and ten judges who are randomly drawn for the particular
    case. Whatever the limited en banc court decides is the law of the
    circuit, unless a majority of the full court votes for a rehearing by
    the full court--a possibility that exists in theory but has never
    happened in practice. In addition to limiting full court review of
    panel decisions to eleven judges, only 57 percent of the Ninth
    Circuit's appellate judges read all or most of the opinions of the
    court. This is a far lower percentage than in other circuits with
    smaller courts.
        I believe a smaller court that can sit together regularly in
    panels, that can convene as a full bench to correct panel error and to
    maintain a body of coherent and consistent law, and that can monitor
    all of its output, is better for the administration of justice than a
    bigger court that cannot. The benefits of a smaller tribunal can be
    obtained without splitting the circuit, but it will take structural
    change to make it happen. S. 253 appropriately requires the Court of
    Appeals for the Ninth Circuit to be restructured into adjudicative
    divisions, as the White Commission recommends.
        The proposed arrangement creates a Northern Division for the
    Districts of Alaska, Idaho, Montana, Oregon, and Eastern and Western
    Washington; a Middle Division for the Districts of Northern and Eastern
    California, Guam, Hawaii, Nevada, and the Northern Mariana Islands; and
    a Southern Division for the Districts of Arizona and Central and
    Southern California. Each division will consist of seven to eleven
    judges,\5\ a majority of whom are resident within the region served by
    the division. Judges can be drawn at random from outside the division
    to provide judge-power as needed, and to cross-pollinate the divisions
    with judges from around the circuit.\6\ Thus, each division will have a
    regional connection without losing a federal perspective. At the same
    time, each division is small enough for every judge to read every
    decision and for the division to sit comfortably together as a full
    bench en banc, thereby authoritatively declaring the law (and
    correcting errors) for districts within the division. Because this
    might eventually lead to divergence among divisions, the Commission
    recommends (and S. 253 provides for) a Circuit Division to maintain
    circuit-wide uniformity on issues where consistency is important to the
    circuit but on which the divisions have taken squarely conflicting
    positions.\7\ In this respect the Circuit Division has discretion only
    to break a ``tie'' in the interest of consistency. The Circuit Division
    has no discretion to rehear issues of exceptional importance or to
    avoid inter-circuit conflict; these functions repose solely in the
    divisions, sitting en banc, or in the United States Supreme Court where
    certiorari would be available (as it is now) from panel decisions, from
    divisional en banc; decisions, and from Circuit Division decisions.
    ---------------------------------------------------------------------------
        \5\ You may wish to consider whether a cap of 13 is preferable
    given the size of the caseload and its distribution within the circuit.
        \6\ Judges drawn for out-of-division service would not move to that
    division; they would simply travel to that division's place of holding
    court, as circuit judges do now when they are assigned to an argument
    calendar that convenes at a location where they do not live.
        \7\ The Circuit Division would be composed of the Chief Judge and
    six to twelve other judges drawn equally but randomly from each
    division. They would serve on the Circuit Division for a term of three
    years as well as their own division.
    ---------------------------------------------------------------------------
        I believe this structure responds to the principal concerns
    expressed about the ``Ninth Circuit.'' It reduces the size of the
    judicial decision-making unit, and replaces the circuit-wide limited en
    banc--which does not work like a true en banc works--with a full
    division en banc in which all division judges have a voice and a vote.
    With these changes, each judge will no longer be ``charged'' with the
    output of the whole court, but can concentrate on the output of the
    division. All circuit judges can again be expected to read all
    decisions that speak for them. In this way, inconsistency and lack of
    predictability will be less likely and coherent development of the law
    more likely.
        In addition, the divisional structure accomplishes three other
    objectives that the Commission believes are worthwhile. First, it
    preserves flexibility for the future. Unlike circuits, divisions and
    their composition can change up, down or sideways as changes in
    caseload require. Second, the divisional structure produces a judicial
    unit of suitable size yet provides a mechanism for maintaining uniform
    law on issues where consistency throughout the west is important.
    Finally, it makes the federal appellate court in the Ninth Circuit less
    remote to those whose lives and fortunes depend on its decisions. To
    some extent tension between the regional roots of circuit organization
    and the federalizing function of its court of appeals is inevitable,
    but the structure proscribed in S. 253 goes a long way toward
    reconciling the two.
        The divisional structure is sensible and workable. For sure, it has
    not been tried before in the form proposed and there is understandable
    reluctance on the part of bench and bar alike to experiment with any
    structural alternative.\8\ After all, we were brought up on stare
    decisis. However, the important thing is what furthers the
    administration of justice in the long run. The Commission's is not a
    perfect solution. Nor can there be one, with a state as large as
    California as part of the mix. However, it is a viable solution that is
    preferable to splitting the circuit or to letting the court of appeals
    grow to 40, 50, 60 or more judges. No one suggested during the course
    of our study how that many judges can decide cases as a court, for
    panels speak with authority for the court as a whole only so long as
    the full court is perceived to be capable of speaking for itself if it
    disagrees.
    ---------------------------------------------------------------------------
        \8\ As the Commission's Final Report explains, the Ninth Circuit's
    previous experiment with regional calendaring was so totally different
    that no pertinent conclusions can be drawn from it. Likewise, the
    ``old'' Fifth Circuit's experience is dissimilar in that it operated
    through divisions only in transition. But the step is nevertheless not
    radical in the Ninth Circuit, for it already has Administrative Units,
    Northern, Middle and Southern.
    ---------------------------------------------------------------------------
        I am, of course, familiar with the concerns that have been
    expressed about how the divisional concept would work. I understand
    where they are coming from, because a known quantity--even a flawed
    one--may seem safer than an unknown one, which surely is imperfect as
    well. However, I disagree that the ``disadvantages'' are genuine
    difficulties.\9\ In reality they are strengths of the divisional
    structure that correspond to weaknesses of the status quo. In my view,
    the ``disadvantages'' do not come close to outweighing the advantages
    of the divisional structure.
    ---------------------------------------------------------------------------
        \9\ Chief Judge Hug has succinctly summarized them in his Analysis
    of the Final Commission Report (January 11, 1999), which I believe has
    been circulated to your Committee and to other members of Congress.
    ---------------------------------------------------------------------------
        The perceived disadvantages are that divisional decisions would not
    bind other divisions and the circuit-wide en banc would no longer exist
    to maintain and develop circuit law; that the Circuit Division would be
    an additional and cumbersome level of appellate review, resulting in
    additional expense and delay; the present participation of all
    appellate judges circuit-wide in resolving circuit law would be
    eliminated, and practical problems of assignment would ensue; and
    ``splitting'' California would produce different interpretations and
    enforcement of the law within the state. However, as I see it:

      1. A circuit-wide en banc process is not effective and is not
        necessary to the divisional concept, since the divisions will sit
        as full courts to decide issues of exceptional importance and to
        maintain coherent and consistent law within the division.
        Divisional decisions should not bind other divisions because
        otherwise, the Court of Appeals for the Ninth Circuit is back to
        square one: All circuit judges would have to try to read and
        monitor all decisions of all divisions, and participate in the
        rehearing process for all of the court's output (at least up to the
        time a case goes to a limited en banc court).

      2. The divisional structure replaces the circuit-wide limited en banc
        for issues of exceptional importance with a full court divisional
        en banc in order to increase participation of judges in that
        function. The limited en banc process permits no participation in
        the outcome by judges who are not drawn for a limited en banc
        court. Because not all judges have a say in it, the limited en banc
        is too limited to result in a decision that truly speaks for all
        judges on the court. It is also a time-consuming process that is
        regarded by some judges as not worth the candle, particularly since
        the composition of the limited en banc court (unlike a true en
        banc) is not known when voting occurs. By contrast, under the
        divisional structure every divisional judge will both participate
        in the en banc process and be on the en banc court. In this way
        issues of exceptional importance will be resolved for the division
        by every judge on the division. This generates greater
        participation and closer attention to the outcome. While judges
        will presumably continue to review petitions for rehearing and be
        able to make sua sponte calls for en banc rehearing, circulate
        memoranda in support of or in opposition to going en banc, and (if
        active) vote on whether to take the case en banc, their
        participation will not stop at this point as it may do now. For
        under the divisional structure, if a matter does go en banc, each
        judge will be assured a place on the bench.\10\
    ---------------------------------------------------------------------------
        \10\ Chief Judge Hug's Analysis suggests a related disadvantage,
    that resolution of conflict by the Circuit Division would be by
    thirteen judges, not representative of the full court or even
    proportionately representative of the divisions. The short answer is
    that 13 out of 28 is more ``representative'' than 11 out of 28, which
    is how the limited en banc court is currently composed. But the real
    point is that the Circuit Division (unlike the present limited en banc
    court) will have limited power--its only authority will be to weigh in
    on one side or the other of a square conflict. That assignment could
    well be done by fewer even than 13 because two entire divisions will
    already have fully considered the issue.

      3. Although the Circuit Division may appear at first glance to add a
        new level of review, it really doesn't. Today in the Ninth Circuit,
        a panel decision may be reheard by the panel, by a limited en banc
        court, and by the full court (something which hasn't happened, but
        could). All of this can take place without the parties wishing it
        to, and they can be asked to file supplemental briefs and must show
        up for reargument--which adds expense, and the process can
        unfortunately take a long time--which means delay for the
        litigants. Under the divisional structure, a panel decision may be
        reheard by the panel, by the full division, and by the Circuit
        Division but only if the panel decision (left in place by the full
        division) or the en banc decision squarely conflicts with the
        settled law of another division. In other words, there are
        precisely the same number of possible layers of review under the
    ---------------------------------------------------------------------------
        divisional structure as under the present limited en banc system.

      In any event, if the Circuit Division takes a reasonable view of its
        mission--which we must assume that it will--then it is unlikely to
        have that much to do, for it will be the rare case that
        qualifies.\11\ Inconsistency alone is not sufficient for Circuit
        Division review. There must be square and significant conflict.
        Each division will take care of its own inconsistencies, and
        inconsistencies between divisions are inconsequential (because they
        are not precedential outside the division) unless they directly
        (and deliberately) occur with respect to issues on which uniformity
        throughout the circuit is important. Thus, the Circuit Division's
        jurisdiction will not be triggered unless some division creates a
        square conflict on an issue where consistency matters.\12\ Even
        then, additional work for the parties (and the Circuit Division)
        should be minimal because the petition for rehearing in the
        division will have raised the conflict and the Circuit Division
        will already have the benefit of a fully developed record and two
        reasoned (but conflicting) opinions.
    ---------------------------------------------------------------------------
        \11\ Only 10 percent of limited en bancs in the last ten years have
    been to correct a conflict.
        \12\ The Commission assumed that all divisions will be bound by
    current Ninth Circuit law even though S. 253 does not require
    continuation of Ninth Circuit precedent, because it is reasonable to
    suppose that the Ninth Circuit Court of Appeals would so provide by
    rule.
        The Chief Judge's Analysis suggests there may be two other, related
    glitches in the statutory scheme. One is the inability of the Circuit
    Division to modify the first conflicted case when it has become final.
    However, this is no different from an en banc court's power under the
    present regime. A limited en banc court may only decide the case in
    front of it, but once it does it overrules prior inconsistent
    authority. The same would be true of a Circuit Division decision that
    adopts the second inconsistent opinion; that rule would become the law
    circuit-wide and prior authority (including the first conflicted case)
    would be overruled. The second problem has to do with what happens if a
    division overrules an existing precedent, in that it would not be
    binding circuit-wide unless there is a case in another division that is
    in conflict and can be modified. However, the division that overruled
    existing Ninth Circuit precedent (that is binding elsewhere) would
    itself create a conflict that the Circuit Division could resolve.
    ---------------------------------------------------------------------------
      Accordingly, the Circuit Division is not at all a collection of
        ``Super Circuit Court Judges.'' \13\ While serving on it, judges
        may have to read more petitions for rehearing than their
        colleagues, and upon occasion will get to break a tie. But if
        anything, a judge serving on the Circuit Division will be far less
        of a ``super judge'' than a judge who serves on a limited en banc
        court at present. Unlike limited en banc judges, Circuit Division
        judges will have no power to reconsider issues that are
        exceptionally important, or to correct wrong decisions; that will
        be for the divisions to do, sitting together in a true en banc.
    ---------------------------------------------------------------------------
        \13\ See Analysis of the Final Commission Report by Chief Judge
    Procter Hug, Jr. (January 11, 1999), p. 22.
    ---------------------------------------------------------------------------
      4. At first, the divisional structure will no doubt be more
        complicated to staff because it is different. But there should be
        no more difficulty in randomly assigning a judge from Billings to
        Pasadena for eight panels per year for three years than in sending
        him randomly to Pasadena, or San Francisco, or Portland, or
        Seattle, or sometimes Anchorage or Honolulu during the same period.
        In either case that judge will have to be scheduled along with
        other members of the panel.\14\
    ---------------------------------------------------------------------------
        \14\ The Chief Judge's Analysis suggests two other problems. First,
    that resident judges within a division who are assigned to another
    division would have no say in the en banc consideration of panel
    decisions within the division of their residence. While true, this
    doesn't matter. Where a judge's chambers is located is irrelevant to
    the law of the division on which that judge serves. Each division will
    speak for every judge sitting on the division and every judge sitting
    on the division will have a say in its decisions. It will also be the
    case under the divisional structure that a majority of the judges on
    each division will always be a resident in the division, yet no
    individual judge is (or should be) guaranteed a spot on the division in
    which he or she lives. The second problem has to do with designation of
    the presiding divisional judge, which might turn out to be a brand new
    judge or a judge who is not a division resident. However,the senior
    active judge traditionally presides on all panels, no matter how
    recently confirmed. Since presiding at divisional en bancs is the
    divisional presiding judge's only role, it seems logical for the senior
    active judge within the division to be so designated.
    ---------------------------------------------------------------------------
      The same support the Clerk's office now provides to the Court of
        Appeals for the Ninth Circuit will sustain the new divisional
        structure as well. Some internal adjustments will no doubt have to
        be made, but they are minor and have no significant effect on the
        way the court of appeals does business. Rules will be the same
        circuit-wide. Motions, screening, and calendaring will also be
        essentially the same except for being reorganized by division. The
        clerk's ability to identify related issues will continue to be
        helpful to divisional panels, especially to the extent they try to
        avoid conflict--as they should. Divisions would sit (and hear
        argument) where the court now does and the Clerk would have offices
        where she has offices now.
      The particular divisional arrangement in S. 253 works logistically.
        It might work better with a 13 judge cap because the caseload could
        be more evenly apportioned, and of course it would be easier with
        33 judges than 28. But assignments are necessarily complicated at
        present, and making them more permanent should not add to the
        burden.

      5. As Justice Stevens points out, the problem of splitting California
        between two circuits is ``seriously exaggerated.'' It follows that
        the problem of putting parts of California into different divisions
        is also ``seriously exaggerated.'' Justice Stevens explains:

              It is, of course, true that occasionally there will be
            conflicting interpretations of both State and Federal issues
            that will require resolution either by use of the certification
            process for the former, or by our Court's review of the latter,
            but such temporary uncertainty is not new to the law. It would
            differ only in degree from the comparable uncertainty that
            attends conflicting rulings on state court questions in
            different California jurisdictions, conflicting rulings on
            federal questions in different federal districts within
            California and in different federal circuits today. In my
            considered opinion, the importance of this concern pales in
            comparison with the disadvantages associated with a circuit
            that is so large that even the most conscientious judge
            probably cannot keep abreast of her own court's output.

      In short, to put parts of California into different divisions does
        nothing to California that California does not do to itself.
        California's system allows for the same inconsistency and the same
        forum shopping that it is said the divisional arrangement would
        foster. One state court of appeal is not bound by the decisions of
        another state court of appeal. Therefore, state law (and state
        court determinations of federal law) can be different depending
        upon where in the state one lives or does business. By the same
        token, the federal system has itself long tolerated inconsistent
        determinations of federal law by different circuits. These
        inconsistencies survive until settled by the United States Supreme
        Court, but in the meantime persons who travel or do business in
        different circuits simply deal with the problem. The divisional
        concept is unremarkable in this respect. It would neither create a
        forum-shopping opportunity that does not currently exist, nor
        subject Californians to the possibility of disagreement on the law
        (including constitutionality of state-wide initiatives) that does
        not happen already.

        Even though it is possible that resolving an intra-state inter-
    divisional conflict might entail an extra step in the unusual situation
    where one of the California divisions refuses to defer to a prior
    divisional decision on point, the conflict would get resolved and, I
    believe, efficiently. Today, if a federal district court in Los Angeles
    decides an issue of state or federal law differently from a federal
    district court in San Francisco, and if the issue is appealed, it can
    be resolved by the Court of Appeals for the Ninth Circuit, although it
    may take a limited en banc court to do it. Under the divisional
    structure, if the same conflict were to persist after divisional
    review, it could be resolved by the Circuit Division.
        As seems clear, no alternative involving California is perfect
    because the ``big state'' problem is not easily solved.\15\ Ultimately
    I do not believe that it can be solved without structural change, for
    it is unlikely that California's contribution to caseload will greatly
    change. The options are at least equally, if not more unattractive. To
    split California between two circuits leaves the United States Supreme
    Court as the only forum for resolving inconsistency, whereas to put the
    state in different divisions of the same circuit allows for the
    conflict to be resolved within the circuit. Similarly, to make
    California its own division is problematic because the caseload and
    number of judges required to handle it would start the ``California''
    division off at (or over) the top of the maximum number of judges a
    decisional unit should have to function well. However, recognizing the
    disparate caseload impact that would follow, in the short run it would
    be possible to make California a single division, with Arizona and
    Nevada in another, and the remaining states and territories a third.
    ---------------------------------------------------------------------------
        \15\ California produces approximately 4,000 appeals annually, or
    60 percent of the circuit's appellate work. Thirteen of the authorized
    judgeships are held (or may be held if present nominees are appointed)
    by California residents.
    ---------------------------------------------------------------------------
        No matter how configured, the divisional proposal resolves the
    debate about the Ninth Circuit. As the Chief Justice says of the
    divisional proposal for the Ninth Circuit Court of Appeals, it is
    ``better than merely a compromise between those who have advocated a
    split of the circuit and those who argue for the status quo. It appears
    to me to address head-on most of the significant concerns raised about
    that court and would do so with minimal to no disruption in the
    circuit's administrative structure.''
        I therefore urge your favorable action on S. 253.
                                     ______

                                   Exhibit A

                            Supreme Court of the United States,
                                      Washington, DC, October 22, 1998.
        Dear Byron,
        Thank you for providing me with a copy of the October 7, 1998 Draft
    Report of the Commission on Structural Alternatives for the Federal
    Courts of Appeals. I write to commend you and the Commission for your
    efforts. The thorough analysis of historical and contemporary
    information about the federal circuit system in the United States is
    all the more impressive in that it was accomplished in only nine months
    since the appointment of the Commission. And while I believe that the
    entire draft report contains useful guidance for the circuit system as
    a whole, I write in particular support of the proposal to organize the
    Court of Appeals for the Ninth Circuit into three regionally based
    adjudicative divisions.
        I share many of the concerns expressed by my colleagues, on the
    Court who previously corresponded with the Commission and advocated
    that some change in the structure of the Court of Appeals for the Ninth
    Circuit is needed. The challenges to stay abreast of the law within a
    circuit With 28 authorized judges--already a near impossibility--will
    continue to grow as the circuit's caseload increases. Similarly, the en
    banc review process in a court so large is problematic. As to
    complaints that the Ninth Circuit is slow to dispose of its cases, I
    would add to the anecdotal evidence in that regard by referring to the
    fact that our Court will hear oral argument in, our November session in
    Hughes Aircraft Company v. Jacobson, et al., a case that was argued and
    submitted to the Court of Appeals for the Ninth Circuit on November 4,
    1993. The circuit opinion deciding the case, however, was not filed
    until January 23, 1997, and a petition for rehearing was not denied
    until October 23, 1997, nearly four years after oral argument. The
    effect of such delays on public confidence in our system of justice is
    obvious.
        The proposal to create three divisions in the Court of Appeals for
    the Ninth Circuit with a Circuit Division for conflict correction
    strikes me as better than merely a compromise between those who have
    advocated a split of the circuit and those who argue for the status
    quo. It appears to me to address head-on most of the significant
    concerns raised about that court and would do so with minimal to no
    disruption in the circuit's administrative structure. As to the
    caseload problem facing not only the Ninth Circuit, but all, federal
    courts, I agree with the Commission's statement that significant
    changes need to be made in the jurisdiction of the federal courts. I
    also agree with the separate statement filed by Judge Merritt and you
    that changes in diversity jurisdiction are needed. In particular, I
    agree with the proposed elimination of in-state plaintiffs' diversity
    jurisdiction.
        Congratulations again on a well-written report.
                Sincerely,
                                     William Rehnquist.
                                     ______

                            Supreme Court of the United States,
                                         Washington, DC, June 23, 1998.
    Justice Byron R. White,
    Chair, Commission on Structured Alternatives for the Federal Courts of
            Appeals,
    Thurgood Marshall Building, Washington, DC.
        Dear Byron: You have written to invite me to offer any thoughts or
    suggestions I might have regarding the Commission's work. My comments
    will doubtlessly echo those of others who have addressed the
    Commission, but I am pleased to offer some general observations.
        Our nation has long been proud of its federal court system. The
    federal courts have traditionally been perceived as of the highest
    quality. The ability of the federal circuits to continue to perform
    work of the highest caliber, however, has recently been placed under
    the strain of a large number of unfilled vacancies. I serve as the
    Circuit Justice for the Ninth Circuit and, as you know, there are today
    seven unfilled vacancies on the Ninth Circuit Court of Appeals, and ten
    on its District Courts. These vacancies obviously have a negative
    effect on the ability of the Ninth Circuit to carry out its work in a
    timely manner. The Chief Justice has already spoken to this issue, and
    I share his concerns.
        The pressures on the federal courts have been escalating rapidly
    because Congress has been enacting broad provisions under federal law
    criminalizing conduct historically regulated under state and local
    police powers. The result has been a significant expansion of federal
    court jurisdiction. All of this makes the work of your Commission very
    important indeed.
        With respect to the Ninth Circuit in particular, in my view the
    circuit is simply too large. It embraces nearly one-fifth of our
    nation's population. It handles roughly one out of every five appeals
    in the federal system. With 28 appellate judges, it is nearly twice the
    size of the next largest circuit. Because of its cumbersome size, the
    Ninth Circuit alone among the federal circuits is currently forced to
    use en banc panels comprised of eleven selected judges. See 92 Stat.
    1663, Rule 35-3 (CA9 1994).
        Such panels, representing less than one-half of the authorized
    number of judges, cannot serve the purposes of en banc hearings as
    effectively as do the en banc panels consisting of all active judges
    that are used in the other circuits. It is important to the federal
    system as a whole that the Courts of Appeals utilize en banc review to
    correct panel errors within the circuit that are likely to otherwise
    come before the Supreme Court. It is also important that every circuit
    review en banc its rules that are in conflict with other circuits in
    order to examine the wisdom of perpetuating the conflict. The Ninth
    Circuit resolved only eight out of 4,841 cases en banc in the twelve
    months ending September 30, 1997. During that same period, this court
    granted hearing on 25 cases from CA9, and summarily decided 20 more.
    These numbers suggest that the present system in CA9 is not meeting the
    goals of en banc review.
        In my view, some division or restructuring of the Ninth Circuit
    seems appropriate and desirable. I have no particular suggestion
    regarding how that division should be drawn, but I hope that the
    Commission will take a fresh and independent look at the alternatives.
    It is human nature that no circuit is readily amenable to changes in
    boundary or personnel. We are always most comfortable with what we
    know, and it is unrealistic to expect much sentiment for change from
    within any circuit. The main difficulty I expect that the Commission
    may encounter when weighing the alternatives is the size in population
    of California, which, even if all alone, would continue to be the
    largest of the federal circuits. In some proposals I have seen it
    suggested that Arizona be placed with non-contiguous areas in the
    Pacific Northwest. I find that proposal troublesome. Perhaps Arizona
    could be placed in the Tenth Circuit, although I am aware that judges
    in the Tenth Circuit are opposed to such a change. Or perhaps
    California itself could be divided and placed within two different
    circuits.
        There are also other proposals for setting up separate divisions
    within CA9, or for setting up some district court appellate panels to
    handle most of the error correction part of the appellate review
    process. These approaches are untried but should be weighed along with
    the other options.
        If you believe I can be of any more specific assistance, I will be
    pleased to respond. You have an unenviable task.
                Sincerely,
                                   Sandra Day O'Connor.
                                     ______

                            Supreme Court of the United States,
                                       Washington, DC, August 24, 1998.
    Hon. Byron R. White,
    Chairman, Commission on Structural Alternatives for the Federal Courts
            of Appeals,
    Thurgood Marshall Building, Washington, DC.
        Dear Byron: Please forgive me for being so slow in responding to
    your invitation to comment on the Ninth Circuit issue. I would like to
    make just one point. In my opinion the arguments in favor of dividing
    the circuit into either two or three smaller circuits overwhelmingly
    outweigh the single serious objection to such a change. That objection,
    of course, is the concern about placing some California districts in
    one circuit and the remainder in another.
        I realize that members of the California Bar regard this
    possibility as unacceptable, but I have long believed that their
    concerns are seriously exaggerated. It is, of course, true that
    occasionally there will be conflicting interpretations of both State
    and Federal issues that will require resolution either by use of the
    certification process for the former, or by our Court's review of the
    latter, but such temporary uncertainty is not new to the law. It would
    differ only in degree from the comparable uncertainty that attends
    conflicting rulings on state court questions in different California
    jurisdictions, conflicting rulings on federal questions in different
    federal circuits today. In my considered opinion, the importance of
    this concern pales in comparison with the disadvantages associated with
    a circuit that is so large that even the most conscientious judge
    probably cannot keep abreast of her own court's output.
        Having some notion of the time and effort that you have devoted to
    this assignment, I want to express my special thanks for what you have
    done and are continuing to do. It is characteristic of someone who
    never pauses to ask what his country can do for him because he has
    answered the more important question so often and so consistently.
                Sincerely,
                             Justice John Paul Stevens.
                                     ______

                            Supreme Court of the United States,
                                       Washington, DC, August 21, 1998.
    The Honorable Byron R. White,
    Chairman, Commission on Structural Alternatives for the Federal Courts
            of Appeals,
    Thurgood Marshall Building, Washington, DC.
        Dear Byron: I have refrained from conveying to you my views
    concerning realignment of the Ninth Circuit, since I think it unlikely
    that I can contribute any fact or consideration that you and the
    distinguished members of your commission are not already aware of.
    However, after reading the thoughtful letter of Justice Kennedy--who
    does have special expertise on the subject--I find myself so thoroughly
    in agreement with his analysis that I must send along a seconding
    statement.
        I will add to what he has said only two points: First, the function
    of en banc hearings--which the current size of the Circuit discourages,
    and the incomplete and random nature of its en banc panel deprives of
    predictability--is not only to eliminate intra-circuit conflicts, but
    also to correct and deter panel opinions that are pretty clearly wrong
    (which occasionally occur, of course, in any Circuit). The
    disproportionate segment of this Court's discretionary docket that is
    consistently devoted to reviewing Ninth Circuit judgments, and to
    reversing them by lop-sided margins, suggests that this error-reduction
    function is not being performed effectively. The following figures are
    compiled from the statistics maintained by the Clerk's Office:

    ----------------------------------------------------------------------------------------------------------------
                                         Total SCt                                             Two or      Unargued
               October Term                Cases     Argued From  Reversed or   Unanimous      Fewer       Summary
                                          Argued1        CA9        Vacated                   Dissents    Reversals
    ----------------------------------------------------------------------------------------------------------------
    1997                                        94           17           14           10           13            0
    1996                                        88           21           20           12           12            6
    1995                                        90           12           10            4           10            2
    1994                                        94           17           12            5           10            1
    1993                                        95           14           12            9           10            0
    1992                                       113           22           15            6           11            1
    ----------------------------------------------------------------------------------------------------------------
    \1\ Excludes cases where writ of certiorari was dismissed as improvidently granted.

        My second point is that, in my judgment, this Court will have no
    difficulty sustaining whatever additional caseload will be created by
    the addition of a Circuit, and by the necessity of being especially
    prompt in resolving conflicts between the two Circuits containing
    California, (The latter necessity could be reduced by requiring an en
    banc heading when either of the two Circuits wishes to depart from a
    holding of the other.) Indeed, it may well be that the new Circuits'
    greater ability to perform what I have called the error-reduction
    function will result in a net decrease in our business from that part
    of the country. But if an increase does occur, our docket has been such
    in recent years that I am confident we can manage it. For all the very
    good reasons described by Justice Kennedy, the additional effort will
    be well spent.
        I wish you and your colleagues success in your difficult task.
                Sincerely,
                                Justice Antonin Scalia.
                                     ______

                            Supreme Court of the United States,
                                     Washington, DC, September 9, 1998.
    The Honorable Byron R. White,
    Chairman, Commission on Structural Alternatives for the Federal Courts
            of Appeals, Washington, DC.
        Dear Byron: Chief Judge Hug was kind enough to send me a copy of
    the letter to you of August 29, written on behalf of past, present and
    yet-to-be Chief Judges of the Ninth Circuit, which challenges my
    assertion that a disproportionate number of cases from the Ninth
    Circuit are regularly taken by this Court for review, and a
    disproportionate number reversed.
        The letter contends--without citing any data--that the percentage
    of this Court's discretionary docket devoted to reviewing CA9 judgments
    (18 percent over the past six terms combined) ``corresponds very
    closely to the percentage of cases decided in the Ninth Circuit, as
    compared to the total in the country.'' Letter at 4. As far as I can
    discern, this latter percentage represents a fraction, the numerator of
    which is all cases decided on the merits in CA9, and the denominator of
    which is all cases decided on the merits in all Federal Circuits--a
    figure that averages 17.2 percent over the five terms ending with OT
    1996 (the figures for OT 1997 are not yet available). It is
    meaningless, however, to compare that percentage (CA9's share of the
    United States Circuit Court docket) with CA9's share of this Court's
    entire docket--which includes, of course, many cases taken from state
    courts. A proper evaluation would compare CA9's share of Circuit Court
    business with CA9's share of this Court's docket devoted to Circuit
    Court cases. That comparison shows that during the five-year period in
    which CA9 disposed of an average of 17.2 percent of all Circuit
    business, CA9's cases occupied an average of 25.3 percent of this
    Court's Circuit docket--a share that is larger by almost half.

    ------------------------------------------------------------------------
                                                   CA9's Share of SCt Docket
       October Term     CA9's Share of US Circuit   Devoted to Reveiwing US
                         Court Docket1 (percent)   Circuit Courts2 (percent)
    ------------------------------------------------------------------------
    1997                Not available              21.5
    1996                18.7                       32.3
    1995                16.2                       20.3
    1994                15.9                       26.2
    1993                17.1                       23.7
    1992                18.1                       24.2
    ------------------------------------------------------------------------
    \1\ These numbers are compiled from the annual reports of the Director
      of the Administrative Office of the United States Courts. The
      percentages refer to the Ninth Circuit's share of the total number of
      appeals decided on the merits during the twelve-month period ending
      September 30 that corresponds roughly to the indicated Supreme Court
      Term. The Director's statistics do not include cases from the Federal
      and Armed Forces Circuits.
    \2\ To facilitate comparisons, these numbers exclude cases from the
      Federal and Armed Forces Circuits.

        The Chief Judges also assert--again, without citing any data--that
    the Ninth Circuit's record during OT 1997 of being reversed 82.4
    percent of the time falls within the ``historical norm for the Court's
    reversals nationwide.'' Id. During the last six terms, however, this
    Court's nationwide reversal rate has never exceeded 71.1 percent. For
    every term within that period, CA9's reversal rate has appreciably--
    sometimes drastically--exceeded the national average. And the gap is
    even more pronounced when one compares CA9's reversal rate, not with
    the combined reversal rate for all courts, but with the more relevant
    figure of the combined reversal rate for all courts other than CA9:
    Averaging the figures for the last six terms, CA9's reversal rate is 81
    percent, and the average for all other courts 57 percent.

    ------------------------------------------------------------------------
                                          Nationwide          Nationwide
      October    CA9's Reversal Rate     Reversal Rate       Reversal Rate
        Term          (percent)          Including CA9       Excluding CA9
                                           (percent)           (percent)
    ------------------------------------------------------------------------
    1997         82.3                 58.9                53.3
    1996         95.2                 71.1                62.7
    1995         83.3                 61.0                56.9
    1994         70.6                 66.3                65.2
    1993         85.7                 52.9                42.5
    1992         68.2                 64.2                63.1
    ------------------------------------------------------------------------

        There must be added to the inordinate frequency of reversal, of
    course, the likewise inordinate frequency with which reversal has been
    by a unanimous or near-unanimous Supreme Court, as described in my
    earlier letter.
        There is, in short, no doubt that the Ninth Circuit has a
    singularly (and, I had thought, notoriously) poor record on appeal.
    That this is unknown to its Chief Judges may be yet another sign of an
    unmanageably oversized Circuit.
                Sincerely,
                                Justice Antonin Scalia.
                                     ______

                            Supreme Court of the United States,
                                       Washington, DC, August 17, 1998.
    The Honorable Byron R. White,
    Chairman, Commission on Structural Alternatives for the Federal Courts
            of Appeals, Washington, DC.
        Dear Byron: In response to your invitation, I am pleased to comment
    on the question of the geographic boundaries of the United States Court
    of Appeals for the Ninth Circuit. Based on my observations and
    perspective as a former judge of that court and as a member of this
    Court, I submit the reasons for dividing the Ninth Judicial Circuit
    outweigh the reasons for retaining it as now constituted.
                                   background
        In 1975, the Court of Appeals for the Ninth Circuit, anticipating
    an increase in its thirteen authorized judgeships, began informal
    discussions to decide whether to recommend division of the Circuit.
    There was a difference of opinion; but a majority of the judges, myself
    among them, concluded the Circuit should maintain its geographic
    boundaries at least until it could operate for a time with a full
    complement of judges. We wanted to experiment, to determine the
    advantages and disadvantages of a large Court of Appeals. So the court
    did not recommend changes in its geographic jurisdiction. A 1978
    statute, Pub.L. 95-486 (92 Stat. 1633), authorized ten new judges for
    the court. In response, and as permitted by the new statute, the court
    implemented a limited en banc panel composed of fewer than all the
    court's judges. Some of us wanted nine judges on the panel, others
    thirteen. The resulting compromise was eleven.
        In part, I think, because some of us did recognize that the large
    circuit was an experiment, we devoted tremendous time and energy to
    make it a success. We hoped the opportunity to decide a large number of
    cases might yield principles of decision which would bring more clarity
    and cohesion to the law than if the Circuit were smaller. We thought
    the bar would benefit if nine states were to have a single resolution
    of any common issue. More ambitious suggestions, such as assigning
    judges to discrete subject areas for a period of time, were thought
    problematic and were not pursued.
        As the Federal Courts Study Committee observed, the Courts of
    Appeals have been faced for more than a decade with a ``crisis of
    volume.'' Report of the Federal Courts Study Committee 109 (April 2,
    1990). Like all of its sister circuits, the Ninth Circuit confronted
    the problem by innovations and changes, not the least important of
    which was the successful use of Bankruptcy Appellate Panels. The
    Committee was also correct to note, however, that increases in
    productivity ``seem to be approaching their limit.'' Ibid.
        Few members of the public, indeed all too few members of the Bar,
    appreciate the scholarship and dedication of the individual judges on
    our courts of appeals. I retain the greatest admiration and respect for
    all of my former colleagues. Since I have left the Court of Appeals,
    their workload has again increased in dramatic proportions. It is
    remarkable that they have been able to manage the case load, though it
    seems to me unfair to ask them to continue to process such a high
    number of cases per judge. This heavy case load makes it all the more
    urgent to ensure that the size of the circuit is not an additional and
    systemic problem.
                     reasons for concern about present size
        I have not had the opportunity to study all the submissions made to
    your Commission, but my present view is that the large Circuit has
    yielded no discernible advantages over smaller ones. From my
    discussions with the judges of the court and my review of some of the
    material submitted in support of retaining the Circuit with its present
    boundaries, what is striking is the relative absence of persuasive,
    specific justifications for retaining its vast size. A court which
    seeks to retain its authority to bind nearly one fifth of the people of
    the United States by decisions of its three-judge panels, many of which
    include visiting Circuit or District Judges, must meet a heavy burden
    of persuasion. In my view this burden has not been met. The size of the
    Ninth Circuit has a number of disadvantages, a few of which I shall
    mention.
        First, a laudable desire to respect the views and prerogatives of
    other judges on the court tends, I think, to encourage judges to avoid
    general principles so that other members of the court can write on the
    same subject. The result is a certain lack of clarity and cohesion in
    the case law of the Circuit.
        Second, there is an unacceptable risk of intra-circuit conflicts,
    or, at the least, unnecessary ambiguities. A large number of
    dispositions tends to make it difficult for judges to keep abreast of
    the jurisprudence of the court. Soon after the 10 judges were added in
    1978, not to mention the five additional judges in 1984, see Pub.L. 98-
    353 (98 Stat. 346), I found I could not read all of the published
    dispositions of my own court. This in turn causes inadvertent intra-
    circuit conflicts. Further, even when judges in good faith attempt to
    follow stare decisis, a certain potential for error exists. The risk
    and uncertainty increase exponentially with the number of cases decided
    and the number of judges deciding those cases. Thus, if Circuit A is
    three times the size of Circuit B, one would expect the probability of
    an intra-circuit conflict in the former to be far more than three times
    as great as in the latter. The number of en banc decisions should be
    correspondingly higher, yet the Ninth Circuit, which is the largest
    circuit by far, does not use its en banc process more often than other
    circuits. In some years the Ninth Circuit has had fewer en banc
    hearings than other circuits even in terms of absolute numbers. True,
    en banc hearings are such a small percentage of the total number of
    dispositions system-wide that no clear comparative pattern of
    utilization emerges, even on a ten-year study. It is quite apparent,
    however, that the Ninth Circuit does not come close to the number of en
    banc hearings necessary to resolve intra-circuit conflicts, much less
    to address questions ``of exceptional importance.'' Fed. R. App. Proc.
    35(a). Uncertainty and lack of cohesion in the law are antithetical to
    the ends of our judicial system.
        A decision in an en banc case, as a general rule, requires more
    time, more deliberation, and more writing than go into the ordinary
    three-judge panel opinion. The result, however, is beneficial. Products
    of en banc consideration, majority opinions and separate writings,
    reflect extra efforts invested in the process and represent appellate
    judging in one of its most instructive forms. En banc opinions assist
    other courts, including the Supreme Court, in resolving difficult legal
    issues. And where circuit precedent has been ``overtaken by the tide''
    of authority from other Courts of Appeals, Critical Mass Energy Project
    v. Nuclear Regulatory Comm'n, 975 F. 2d 871, 876 (CADC 1992) (en banc),
    rehearing en banc allows a circuit the opportunity to assess the
    soundness of its earlier views and, if need be, to put its house in
    order before the Supreme Court must do so. If the Ninth Circuit were
    divided, then the necessity for more en banc hearings, and the harm
    from the failure to use the device often enough, would be reduced.
        Third, even if the Court of Appeals does have a consistent internal
    law in a number of subject areas, its size prevents the multiple panel
    opinions that sometimes produce inter-circuit conflicts. In other
    words, if the Ninth Circuit were to be divided into two or more
    circuits, then we would be more likely to have the benefit of more than
    one panel opinion on a given issue and would have the advantage of the
    views of more judges. While intra-circuit conflicts or ambiguities and
    the instability they create are harmful to the system, inter-circuit
    conflicts, where there is reasoned and deliberate disagreement, are
    instructive to the system as a whole and in particular to the Supreme
    Court.
        Fourth, although I deplore the tendency to increase the number of
    Article III judges and to expand the jurisdiction of the federal
    courts, past experience would seem to show that, even if federal
    jurisdiction is not increased, a certain number of additional judges
    will be needed in the future. The Commission's report will be
    influential in considering the size of the Circuit not just at present
    but for perhaps two decades. The Commission, therefore, may wish to
    consider what recommendation it would make if the Ninth Circuit were to
    have 40 or more judges. The likelihood of the addition of some judges
    is a further reason to divide the Circuit now, so that the problems I
    note are not exacerbated.
        Fifth, the recruitment of judges is a relevant consideration. A
    talented lawyer or jurist who contemplates the prospect of service on a
    court which should be designed to offer the benefits and rewards of a
    collegial relationship might well hesitate before agreeing to serve on
    a court where some 3000 different combinations of judges will make up
    the panels, and where he or she will be the junior judge on a court of
    28 active judges, in addition to valued senior members.
        This brings me to a sixth observation about the Ninth Circuit even
    in its present size. Our constitutional tradition has been one of broad
    community participation in the judicial selection process. When a court
    is seen as an integral part of a community, then persons and groups
    from the community as a whole, and not just the bar, can insist that
    the political branches consider nominees who are distinguished by their
    fairness, detachment, and impartiality. The sense of shared identity
    and responsibility dissipates, however, when a circuit is so large that
    the makeup of a panel is a luck-of-the-draw proposition, with a strong
    likelihood of drawing judges having no previous attachment to the
    affected community. In these circumstances there is less incentive for
    groups other than political ones to become involved in the judicial
    appointment process. If the selection and nomination process is
    accessible and meaningful only to those with partisan interests, there
    will be a tendency to give less consideration to those qualities of
    judicial temperament and demeanor that are essential to a fine
    judiciary. I am concerned, then, that in the future the large size of
    the Circuit will have an adverse effect on the judicial selection
    process. Justice must be detached but should not be remote; judges must
    be impartial but ought not to be faceless. When an appellate court
    becomes as large as the Ninth Circuit, there is a greater risk that
    unfortunate influences--will predominate in the appointment process.
    Special interests work best when simple lines of responsibility are
    blurred.
        This is related to my seventh concern, which is that the present
    size of the Ninth Circuit is not sensitive to the vital necessity of
    preserving the values of federalism. As noted by the Judicial
    Conference's most recent study of the federal courts, those values are
    reflected in our long tradition of appointing judges to serve a
    specific region. See Judicial Conference of the United States, Long
    Range Plait for the Federal Courts 43 (December 1995). For this reason,
    and because of the undesirability of any of the contemplated structural
    alternatives for the federal appellate system, see Report of the
    Federal Courts Study Committee 116-124 (April 2, 1990), our present
    system should be preserved and strengthened. The legal communities and
    other constituencies in the separate states ought to have a real
    interest in the judges of their respective circuits, and the judges,
    conversely, ought to have historic and professional ties to the regions
    they serve. The experiment accepted in 1978 represents a notable
    departure from the design which has served us so well. What began as an
    experiment should not become the status quo when it has not yielded
    real success. In my view the judicial system would be better served if
    the states of the present Ninth Circuit were to comprise more circuits
    than one.
                      possible ways to divide the circuit
        It is one thing to identify a problem, another to solve it. How to
    split the Ninth Circuit is a difficult, sensitive question. In an
    attempt to offer some assistance, I make these brief observations.
        The States of Alaska, Washington, Oregon, Idaho and Montana have a
    community of interest and a geography that justify assigning them to
    their own circuit. There is no reason to hold these Northwest states
    hostage to the difficulty of determining a proper circuit for
    California, Arizona, Hawaii, and Nevada. If the solution for the latter
    states is not at hand, that could be studied and debated while the
    Northwest states concentrate their energies on at once forming a
    cohesive and effective circuit.
        The problem with the remaining states, of course, is the vast
    population of the State of California. California's population today is
    the rough equivalent of the entire population of the United States at
    the time of the Civil War. The problem, however, suggests its own
    solution. Serious consideration should be given to assigning California
    to two different circuits. The Districts of Northern and Eastern
    California could be in one circuit, with, say, Hawaii and Nevada. The
    Districts of Central and Southern California could form another, with
    Arizona, Guam, and Saipan. These are just illustrative possibilities,
    for I have not studied projected case loads or population figures.
        The described alignment would give Senators from California a
    special interest in two circuits, not just one. The attendant
    advantages of manageable size and sensible administration, however,
    seem to me to overcome that objection, if indeed it be one. If
    California were not divided, moreover, the number of judges required
    for California alone would constitute a circuit so large that the
    deficiencies already present in the Ninth Circuit might persist.
        If California were assigned to two circuits, it would, of course,
    be imperative to ensure prompt resolution of any conflict between these
    circuits with respect to issues affecting California. I have seen no
    proposal for an inter-circuit en banc procedure that makes sense or is
    fair to the bar and litigants of the State. To take just one example, a
    bill in the House of Representatives in the 103d Congress provided
    that, in the event of a conflict between the two circuits, the
    ``California'' judges from each Circuit would constitute in inter-
    circuit en banc. See H.R. 3055, 103d Cong. Sec. 3 (1993). This is
    contrary to our tradition and to sound judicial principles. After being
    appointed some judges find it necessary or convenient either to move to
    California or to move away from it, depending on their individual
    situations, Does mere residence while serving on the court determine
    who is a ``California'' judge? In addition, an inter-circuit en banc
    should bind both circuits, but it would be inappropriate and
    destructive of collegiality to require ``non- California'' judges to be
    bound by their ``California'' colleagues on important questions of law.
    Yet this would be the necessary result, for even if the cases prompting
    an inter-circuit en banc arose from California, the en banc, decision
    would bind both circuits in cases arising from all other states.
        At one time, I thought the absence of a fair and workable proposal
    for an inter-circuit en banc mechanism was an all but insurmountable
    objection to allowing two circuits to operate within a single state. I
    have begun to think this is not an obstacle. The judicial system could
    function well without an inter-circuit en banc, leaving to the Supreme
    Court the responsibility to resolve any inconsistent decisions
    affecting the single state. After all, the government of the United
    States functions well despite the possibility of having to litigate a
    question in multiple circuits and the concomitant possibility of
    conflicting decisions in those courts. Furthermore, duplicative
    litigation and potential conflict between two circuits in the same
    state would hardly be unfamiliar to California, which like every state
    already faces the possibility of litigating the same question in both
    state and federal court. Where such litigation results in a conflict
    between a state's highest court and a federal court in that state on a
    question of federal law, our Court resolves the conflict. See, e.g.,
    South Dakota v. Yankton Sioux Tribe, ____ U.S. ____, 118 S.Ct. 789
    (1998) (conflict between the Supreme Court of South Dakota and the
    Eighth Circuit). No one has suggested that such conflicts are the
    result of some serious dysfunction of judicial structures. If
    duplicative litigation, in practice, should result in an excessive
    burden on the State of California, the statutes and rules governing
    transfer and consolidation of cases could no doubt be adapted to
    mitigate the problem. Thus, although not insensitive to the potential
    burden to California of having to defend its laws in two different
    circuits, I believe the advantages attendant to California in having
    concise, orderly, predictable case law in two circuits would outweigh
    the temporary problems of a few conflicting decisions, decisions which
    can have prompt resolution in this Court. The advantages to all of the
    other states of the present Ninth Circuit have been enumerated.
                                   conclusion
        My present view is that if the Ninth Circuit were divided, the new
    alignment could better serve the orderly and efficient administration
    of justice. My further conclusion is that the State of California could
    be assigned to two different circuits and the Supreme Court could act
    with the necessary speed and determination to resolve any conflicts
    that create difficulty or uncertainty in administering and enforcing
    the laws and policies of that State.
        I extend to you and your Commission my greetings and special thanks
    for undertaking this study, which will be of vital importance to the
    federal courts and to our judges, who remain devoted to preserving the
    integrity of the justice system.
                Sincerely,
                            Justice Anthony M. Kennedy.
                                     ______

                            Supreme Court of the United States,
                                    Washington, DC, September 11, 1998.
    The Honorable Byron R. White,
    Chairman, Commission on Structural Alternatives for the Federal Courts
            of Appeals,
    Thurgood Marshall Building, Washington, DC.
        Dear Byron,
        You have asked three questions: What major problems do the Courts
    of Appeals face? What measures would I recommend to resolve them? What
    works well in the federal appellate system? I shall address those
    questions in order, drawing upon my former experience (1990-1994) as
    Chief Judge of the First Circuit--our smallest Circuit Court of
    Appeals. I have not worked in the Ninth Circuit, and I shall not
    express a view about whether that Circuit has special problems that
    warrant its division. I suspect, however, that, at least to some
    extent, the Ninth Circuit's experience reflects the more general
    problems that every circuit faces.
        My conclusion is that your Commission should, among other things,
    examine the various forms of restructuring the appellate system
    suggested in Chapter 10 of the Long Range Plan for the Federal Courts.
    The States, when faced with serious problems of congestion, have had to
    consider restructuring--including the use of additional ``tiers'' of
    review. And the federal courts eventually may have to do the same. In
    the meantime, we should continue our efforts to maintain efficiency in
    the face of increasing caseload--through, for example, ``tracking'' and
    ``alternative dispute resolution.'' Your Commission might also explore
    ways of preventing unnecessary caseload increases, say through
    institutionalizing efforts to inform Congress about the practical
    impacts of proposed legislation upon the federal courts (which, of
    course, affects the practical implementation, and hence the ultimate
    effect, of any new statute).

      1. The major problem, in my view, is one of congestion. That
        congestion grows out of the fact that growth in appellate caseload
        cannot, or should not, simply be matched through a corresponding
        increase in the size of the federal appellate system.
      On the one hand, the number of federal appellate cases now
        approximates 50,000 per year, having multiplied by a factor of ten
        to fifteen over the past half century. The caseload of the First
        Circuit, a court of six active, and five senior, judges, for
        example, now approximates 1500, or, say, 250 cases per active judge
        per year. (The First Circuit had about 1200 cases per year when I
        was a member of that court.) Of course, many cases disappear from a
        docket through settlement or some obvious procedural failing.
        Others contain only a simple fact-related issue that may require
        little of a judge's time for resolution. Senior judges provide
        considerable assistance. Nonetheless, in my experience, about one-
        third or so of the total docket contained cases raising serious
        legal issues--those that would each call for a significant amount
        of a judge's time leading to a full judicial opinion. The result
        (if I extrapolate from the 1200-case-per-year First Circuit docket
        of a few years ago and assume considerable help from senior judges)
        is that each active judge might sit on three-judge panels
        considering, say, 150 to 160 such cases per year and might write,
        say, fifty to sixty full opinions. Given the various other demands
        on a judge's time, including brief reading, hearing argument, and
        considering simpler cases and motions, this means that a judge must
        write a full opinion in two to four days on average. Obviously, the
        growing caseload means that, at some point, time available on
        average is inadequate.
      On the other hand, creating more judicial time by increasing the size
        of the federal appellate system itself creates serious problems. It
        makes conflicts of various sorts (including ``intangible''
        conflicts) more likely. It makes it ever more difficult for the
        appellate system to speak with an authoritative legal voice. It
        means too many equally authoritative circuit court opinions for the
        bar or the academy readily to absorb (and to criticize). It ever
        more significantly favors those who have the resources to ``keep
        up'' with an evolving state of the law. I do not know the ``right''
        number of federal appellate judges, but I do believe that, for
        reasons such as these, the appellate system is not infinitely
        expandable.

      2. To ameliorate this kind of problem, one must either cut back the
        intake or improve the system's efficiency. Cutting back intake is
        difficult because of the risk that closing federal court doors will
        significantly disadvantage one, or another, class of litigants. In
        theory, one might work out a system that would assure each such
        class adequate legal remedies elsewhere and without, for example,
        imposing new burdens upon state courts. But the practical
        difficulties involved in providing the necessary assurances are
        great. It may prove easier to prevent an unnecessary increase in
        federal caseload through careful attention to the likely practical
        impact of proposed new federal legislation. But that will require
        more than federal judges simply pointing out to Congress that a
        proposed new federal law will mean more federal cases. It requires
        analysis of how the congestive impact of a proposal might inhibit
        achieving the proposal's own objectives (or those of other,
        existing laws) as well as suggestions as to how the proposal's
        specific objectives can better be achieved in less congestive ways.
        Although judges understand the practical impact of additional
        caseload, I believe that the Department of Justice is
        institutionally better equipped to factor such-matters into the
        drafting of particular bills, to bring them to Congress's
        attention, and to shape the laws that emerge from the legislative
        process accordingly. Those ``separation of powers'' considerations
        that make it inappropriate for the Department of Justice to
        administer the federal judicial system do not prevent the
        Department and the Judiciary from working together, and with
        Congress, in respect to this kind of matter. And I believe your
        Commission might usefully explore better ways of their doing so.
      Improving the system's efficiency (enabling the system to process
        more cases without adding a commensurate number of new judges)
        involves a variety of approaches that are not mutually exclusive.
        The appellate courts are currently trying many of them. They
        include greater reliance upon alternative dispute resolution
        (including mediation at the appellate level), case management
        systems, and certain incentive-based systems. Most circuits,
        including the First and the Ninth, have developed informal
        ``tracking'' systems, which rely upon staff attorneys to prepare
        simple matters for decisions that are embodied in something less
        than full opinions. The First Circuit's system worked well. Studies
        of the Ninth Circuit's system also have reached favorable
        conclusions. Unless the system is to be changed radically, this
        kind of staff resource should receive necessary funding, and you
        may wish to say so.
      I recognize that congestion, at some point, may require radical
        change. In my view, the kind of structural change that would be
        easiest for the federal system to absorb would amount to additional
        ``tiering.'' States have typically created additional tiers to deal
        with congestion. In the Nineteenth Century, Congress established
        the federal courts of appeals in part for similar reasons. And, if
        one counts the federal Supreme Court, many state systems involve
        four tiers.
      I do not advocate the creation of a new federal ``fourth tier''
        between the present courts of appeals and the Supreme Court. I do
        believe, however, that it is worth considering the possibility of
        other forms of ``tiering.'' For example, one might add between
        district and appellate courts three-judge panels, made up in part
        of district judges, to consider fact-intensive ``error correction''
        appeals, say, with further appellate review discretionary.
        Appointment of additional district judges to such panels would
        avoid some (though not all) of the ``more judges'' problems I
        discussed earlier. To repeat, I am saying only that this, or
        related, proposals maybe worth exploration in some detail.
      Regardless, I believe that the congestion problem is serious, that it
        will get worse, that its solution will involve a choice of lesser
        evils, and that an eventual solution that involves some form of
        tiering may prove more practical and less problematic than various
        other restructuring suggestions that have been made. For that
        reason, I suggest that the Commission further explore the
        structural suggestions made in Chapter Ten of the Long Range Plan,
        and in particular those related to tiers.

      3. You conclude by asking what ``is working well in the federal
        appellate courts.'' I am not an alarmist. The appellate courts
        normally work well--particularly when federal appellate judges
        focus upon, and decide, particular significant questions of law.
        The federal judge is meant to be independent and conscientious,
        devoting the time and attention that a particular litigant's
        individual legal problem requires for proper decision, irrespective
        of the litigant's wealth, position, or power. That, in my
        experience, is roughly how the federal appellate courts have
        worked, do work, and will continue to work. Still, the need for a
        guarantee about the future may help explain why I am glad your
        Commission has begun to tackle the congestion problem.
                Yours sincerely,
                                        Stephen Breyer.

        Senator Grassley. Thank you.
        Senator Kleinfeld. Or, I mean, Judge Kleinfeld.

                 STATEMENT OF HON. ANDREW J. KLEINFELD

        Judge Kleinfeld. I am only a judge. I do not get a vote.
    [Laughter.]
        Thank you, Chairman Grassley, Senator Feinstein, members of
    the committee. I appreciate the honor of being allowed to
    testify before you. I testify on behalf of myself in order to
    give you the benefit of my experience as a judge on the U.S.
    Court of Appeals for the Ninth Circuit.
        My feeling has been, for a long time, that the court should
    be split. The fifth circuit was split into the fifth and
    eleventh circuits. The eighth circuit was split into the eighth
    and the tenth circuits. Those splits worked out fine. There
    were no great complexities. It was a simple way of dealing with
    the problem of growth of the circuits.
        However, I also think that the Commission has done a very
    fine job, and nobody in a political system gets everything they
    want. Why, even if I were a Senator, I would only have one
    vote, and I am not. And I think the Commission is a very fine
    solution to the problem of the ninth circuit as a decisional
    body.
        The Commission has said that, as a decisional body, the
    ninth circuit should be divided. Although as an administrative
    body, it should not be divided. The Commission has done a fine
    job, and I urge you to adopt it.
        The problem that you are dealing with is one of the oldest
    problems that has been a political issue in the United States.
    When the Founding Fathers were trying to put together the
    Constitution, they had to deal with the problem that some
    states were a lot bigger than other states. Then the chief
    problem was Virginia. California did not exist. But it was the
    same kind of problem. Virginia was much bigger, much more
    powerful, controlled much more wealth, as well as having much
    more population, than other States. Somehow they had to
    organize the Republic so that Virginia would not so dominate
    the other States as to prevent them from expressing their own
    autonomy, but that there would be a Federal union in which
    Virginia would be adequately represented. They did it. The
    problems never go away. The problems of the ninth circuit
    continues.
        This problem of the ninth circuit has continued for quite a
    while. I read in the Commission report that the first proposals
    to split the ninth circuit were in the 1930's. It made me think
    of the case of Jarndis v. Jarndis in Charles Dickens' novel
    ``Bleak House,'' where people were born into the case and died
    out of the case.
        I have been born into this. I am not even all that young a
    judge, though I like to think of myself that way, but I was not
    born until 1945, and splitting the ninth circuit was already an
    old chestnut by then. And unless you take action, I am going to
    die out of it, even though I am a pretty young judge, and I
    think I will be serving for quite a while yet. There is an
    enormous cost in money and in time of this process, and I do
    not think the process can be ended until you adopt the
    Commission report, or something like it, to divide the
    adjudicative responsibilities of the ninth circuit.
        Part of the cost is money. I have been able to chat with
    the panel that I am on this morning while I am here because all
    three of us happen to be here. You have a lot of judges who
    have been flying back and forth. I flew on a free ticket that I
    got with mileage because I just hate to spend Government money
    when I am not making decisions and cases, but you cannot always
    do that, not everybody does it.
        The money cost is nothing compared to the time cost. The
    time we have spent since I have been on the ninth circuit, in
    my 8 years, we have had so many court meetings devoted to the
    issue of a split, the staff of the ninth circuit has been doing
    so much work on whether we should split. This has been going on
    for decades, remember. We have been generating staff reports
    with statistics and memoranda advocating issues on why we
    should not split. People go back and forth to Washington, DC,
    and I am sure that with your political experience, you
    recognize that bar resolutions, and newspaper editorials and
    magazine articles do not happen by themselves. They all take
    judicial time, too. At the least, it takes time for the judges
    to be interviewed. Frequently, it takes more than that.
        Once, when I was on the Board of Governors of our State bar
    association about 20 years ago, the chief judge of our
    district, I believe at the behest of the chief judge of the
    circuit, came to us for a resolution. He wanted a resolution
    against splitting the ninth circuit. We retired into executive
    session, agreed that none of us much cared whether the ninth
    circuit was split, but we all cared a lot about keeping the
    chief judge with the organized bar, so we adopted the
    resolution opposing the split.
        Now, that involved a phone call, maybe a few phone calls,
    it involved the chief judge of the district court spending his
    morning with us at the Board of Governors of the bar
    association. There is a lot of time that goes into this. It
    ought to be spent deciding cases, but it will not be until the
    split issue is resolved, and it is not going to be resolved
    until you split the decisional function of the ninth circuit.
    It will just be a ``Bleak House'' that goes on and on and
    people are born into and die out of.
        The reason that the issue arises, I believe is exactly what
    Judge Rymer has said. A decisional unit as large as ours cannot
    function in the traditional effective way that a court of
    appeals does. Now, that has nothing to do, and it cannot be
    solved by, the quality of the judges. The quality of the judges
    and the diligence of the judges on my court overwhelms me. I
    have never dealt with any group of people as intelligent and as
    diligent to serve the public interest, as devoted to the law,
    as the judges of my court. The quality is simply overwhelming.
        But the job cannot be done by this large a unit. There are
    no economies of scale to the appellate process. We do not
    manufacture goods, we do not run a railroad. It is a job that
    is done with much greater facility by a smaller than a larger
    unit. The reason for that is the necessity of communication
    within the unit.
        The kinds of quality differences or quality problems that
    the size of the unit causes were very well explained to me by a
    friend recently. I was at the local bar picnic, and the
    assistant general counsel of the university and I--we're
    friends--and we were chatting, and he was complaining that he
    cannot guarantee his clients even qualified immunity because he
    cannot tell what the law is.
        He says that we are frequently inconsistent with the trend
    of the law in the rest of the country and what he knows the
    Supreme Court is going to do. So he has to tell his clients to
    follow ninth circuit law because the district court will be
    bound by it, but he also has to tell them that the result may
    depend on the panel and that if the ninth circuit grants cert,
    it will reverse. As a result, he cannot confidently bring about
    compliance with the law by his client, whose only interest is
    compliance so that they can avoid litigation and judgments
    against them.
        The two reasons are simple, the reasons why we cannot
    function as a decisional unit, considering how large we are.
    One is that we cannot read or effectively communicate orally to
    each other the contents of our decisions. The problem is not
    getting information on our desk through some staff statistical
    report or tip that a decision may affect our decision, it is
    getting it from our desks into our heads. There are too many
    decisions to do that with.
        The second problem is that we are, so far as I know, the
    only court in the English-speaking world, that does not sit en
    banc, the only appellate court that does not sit en banc. Our
    en bancs consist of less than half the judges, and the
    majority, six judges, is less than a quarter of the judges on
    our court. So they cannot effectively speak for the court. It
    is a roll of the dice. Appellate decision making should not be
    that way.
        Two-thirds of the judges in the country say that the
    largest size that is feasible for an appellate court is
    somewhere between 11 and 17. Sounds right to me.
        Finally, I would like to remind you that it is entirely an
    accident that the Ninth Circuit Court of Appeals is as big as
    it is. The court was created for a jurisdiction that consisted
    of California, San Francisco mainly, and empty space. The space
    is filled in. We are now 20 percent of the population of the
    country. If we make a mistake, and we do make mistakes, the
    consequences affect far too much of the country. We have too
    much power because we affect too much of the country.
        The issue before you is serious. It is not as manageable
    perhaps as dividing up a regional office of the Veterans
    Administration, but neither is it like cessation of states from
    the Union. It is not that serious. The fifth circuit and the
    eighth circuit divided without any problems. Dividing the
    decisional unit of the ninth circuit strikes me as somewhere
    closer on the spectrum to dividing up a regional office of the
    Veterans Administration than to cessation of States from the
    Union. It is manageable. You have got an excellent report. Many
    Senators called for it, and I urge you to do it so we can get
    back to deciding cases full time.
        [The prepared statement of Judge Kleinfeld follows:]

                   Prepared Statement of Andrew J. Kleinfeld

        Mr. Chairman and Senators: Since the beginning of the Republic, one
    of our more intricate political problems has been the great difference
    in the populations of the states. The Founding Fathers struggled with
    the tremendous size of Virginia relative to the other states at the
    Constitutional Convention. Today you struggle with the problems of
    judicial administration caused by the immense population of California,
    compared to all the other states in its judicial circuit. A single
    group of judges cannot hear all the federal appeals from a state as
    large as California, and also hear all the federal appeals from the
    eight smaller states in the circuit, without sacrificing reckonability
    and coherence of the law.
        The last time the issue of dividing the Ninth Circuit came under
    consideration in the Senate, many who were wary of change called for
    study by a commission of experts prior to taking any action. A very
    distinguished commission was appointed, chaired by the Honorable Byron
    R. White, Associate Justice of the Supreme Court. The White Commission
    has recommended, basically, that you split the Ninth Circuit into three
    separate decisional units to decide cases, but keep it together as an
    administrative unit. While a traditional split, as Congress did with
    the Eighth Circuit and the Fifth Circuit in past decades, would be
    simpler and in my view better because of the simplicity, the White
    Commission's proposal would be a great improvement over the status quo.
        The Commission concluded, after extensive study, that an appellate
    court with as many judges as the Ninth Circuit is too big. The Fifth
    Circuit reached the same conclusion when it approached our size and
    recommended to you that it should be divided, in 1970. It was,
    resulting in the present very successful arrangement of the Fifth and
    Eleventh Circuits. The White Commission said ``in our opinion,
    apparently shared by more than two-thirds of all federal appellate
    judges, the maximum number of judges for an effective appellate court
    functioning as a single decisional unit is somewhere between eleven and
    seventeen.'' The Commission explains that in a court bigger than that,
    the judges cannot read each others' opinions and correct errors en
    banc.
        I believe that a simple split of the Ninth Circuit, like the
    previous splits of the Fifth Circuit into the Fifth and Eleventh, and
    the Eighth Circuit into the Eighth and Tenth, would be better for the
    law than the White Commission proposal insofar as it relates to the
    Ninth Circuit. Senator Murkowski's earlier bill had proposed a simple
    split of the Ninth Circuit into the Ninth and Twelfth. The complexity
    and novelty of the Commission approach are worrisome, because they will
    generate unpredictability and complexity for lawyers and novel
    administrative burdens for quite some time. But they would largely
    solve the problems we now have in monitoring and achieving consistency
    and coherence in the law of our circuit. The White Commission proposal
    would be much better than taking no action, and allowing the problems
    for the public of a gargantuan circuit to continue unremedied.
        If you adopt the bill recommended by the White Commission, I
    recommend that you eliminate the provision that some judges shall be
    drawn to sit with divisions other than their own. The values to be
    promoted by this innovation are slight, relative to the losses to those
    judges' divisions. The smaller states, as in the northwest, are
    unlikely to have more than one judge on the Ninth Circuit. If the only
    judge from a state were drawn to sit with another division for several
    years, as the bill now provides, that judge's division would lose the
    benefit of that judge's particularized knowledge. That would leave the
    people of that judge's state subject to the adjudication of a unit,
    none of whose judges knew as much about it.
        My remarks are addressed only to the portions of the bill affecting
    the United States Court of Appeals for the Ninth Circuit. My remarks
    are not addressed to the provisions that would affect other circuits,
    district court appellate panels, or any other provisions. You are
    doubtless hearing from judges on those other courts about those
    provisions. Of course the complexity of the issues raised by these
    other provisions can be avoided if you simply split the Ninth Circuit
    like the old Eighth and the old Fifth.
        Before addressing the problems of size, I'd like to say something
    about the costs of the process itself. This issue of whether to split
    the Ninth Circuit has been the subject of legislative attention since
    before I was born. Unless you split the Ninth Circuit, I am sure that
    the debate will continue after I die. The people suffer when their
    judges spend so much of their time as this process takes on a matter
    other than adjudicating cases. We have had numerous court meetings
    devoted to the issue of the split since I was elevated to the Ninth
    Circuit eight years ago. The staff of the Ninth Circuit assists the
    circuit leadership, as it has for decades, in preparing and circulating
    statistics and memoranda addressing whether the circuit should be
    split. Several of our judges, and all of our chief judges for many
    years, have spent a great deal of time in going to Washington to
    address the issue. And here we are again, today.
        And I am sure that with your political experience, you recognize
    that bar resolutions, newspaper editorials, magazine articles, and
    contributions to the debate also take judicial time. When I was on the
    board of governors of the Alaska Bar Association almost twenty years
    ago, the chief judge of the district court came to our meeting, and
    asked us for a resolution opposing a Ninth Circuit split. As I recall,
    the chief judge had asked him to solicit it. When he left the room so
    that we could deliberate privately, we agreed that none of us much
    cared whether the Ninth Circuit was split, but we all cared whether the
    chief judge was happy with the organized bar, so we gave him a
    unanimous resolution. He had spent the better part of a morning getting
    it. Judicial attention to whether the Ninth Circuit should be split,
    including testimony in Congress, phone calls, letters, contacts,
    interviews, meetings with newspaper editorial boards, faxing, mailing,
    clipping, and compiling, has been extensive for decades. All this
    judicial attention to the split issue takes a lot of time away from
    deciding cases. And it will not stop until Congress splits the Ninth
    Circuit.
        Our existing Ninth Circuit has many of the best appellate judges in
    the United States. We have had a succession of superb chief judges. In
    my appellate experience as a practicing lawyer, I never saw panels of
    more capable judges, or better prepared judges, than those of the Ninth
    Circuit. Yet our reputation does not reflect this high quality. I was
    sent a clipping from a small town newspaper in Kentucky, about one of
    our many Supreme Court reversals, characterizing us with such phrases
    as ``sharply rebuked,'' ``grave abuse of discretion,'' ``stinging
    lecture,'' ``scolded the lower court,'' ``procedural legerdemain,'' and
    ``negligence.'' Despite the high quality of our judges, our Supreme
    Court reversal rate is notorious.
        A friend of mine who is assistant General counsel to a university
    told me he cannot reliably keep his client in compliance with the law,
    because on important issues it is impossible to comply with Ninth
    Circuit law and Supreme Court law simultaneously. Even though district
    courts must follow Ninth Circuit law, he must warn his client that
    Ninth Circuit law in some critical areas is inherently unstable because
    the Supreme Court will reverse it when they grant certiorari. He may
    think that the Ninth Circuit approaches to some of these issues are
    preferable to the Supreme Court's, but that does not solve the
    university's problem of knowing what law to follow. We owe people
    better than this.
        Why are judges so good making so many errors? That is a serious
    question, and I do not think, in view of our Supreme Court record, that
    it can be avoided. The reason, I suggest, is our size. We have so many
    judges that we cannot read each others' opinions, and we cannot correct
    errors by effectively rehearing cases en banc.
        In every organization, there has to be some size limit, at the
    bottom end and the top end; such that if the organization was smaller
    or bigger, it would be less efficient. That is probably why dentists'
    offices do not grow to the size of General Motors, and General Motors
    is not operated out of a small garage. Justice Brandeis wrote, in The
    Curse of Bigness, ``In every business concern there must be a size
    limit of greatest efficiency. What the limit is will differ in
    different businesses and under varying conditions in the same business.
    But whatever the business or organization, there is a point where it
    would become too large for efficiency and economic management, just as
    there is a point where it would be too small to be an efficient
    instrument. The limit of efficient size occurs when the disadvantages
    attendant on the size outweigh the advantages, and for large size, when
    the centrifugal force exceeds the centripetal.'' There are no economies
    of scale for appellate courts. In our particular activity, we become
    less efficient rather than more efficient beyond a certain size.
                         reading each others' decisions
        Judges on the same court should read each others' decisions. We are
    so big that we cannot and do not. That has the practical effect that we
    do not know what judges on other panels are deciding. It is odd word
    usage to call a public body a ``court,'' in the singular, if its judges
    neither sit together as one body, nor read each others' opinions.
        The Ninth Circuit issues too many decisions for anyone to read. We
    learn of decisions of our own court, affecting our own cases, when they
    are cited to us by lawyers or by our law clerks. This deprives the
    people we serve of two important services a court should provide. We
    cannot give them consistent, reliable applications of law to the facts
    of their cases. And we cannot spot and correct errors by other panels.
        The White Commission said ``[t1he volume of opinions produced by
    the Ninth Circuit's Court of Appeals and the judges' overall workload
    combine to make it impossible for all the court's judges to read all
    the court's published opinions when they are issued.''
        Note that the Commission spoke only about the published opinions.
    There are around nine times as many unpublished opinions that we cannot
    even attempt to monitor. One of my law clerks collected a year's worth
    of dispositions, and weighed them at the end of the year. They weighed
    forty pounds. Most of what we do that is important is not statements of
    rules, because you, not we, legislate. Our job is application of law to
    the facts of particular cases. Where there is nothing novel about the
    issues of law, we usually do that in unpublished dispositions, but
    those who must live with the results say that although we state the
    rules of law fairly consistently, our applications of it in unpublished
    dispositions are quite inconsistent.
        This problem of not knowing what other panels are deciding is
    purely a function of size. It has nothing to do with the rate at which
    judges produce opinions. If each judge generates the same number of
    published decisions per year on a small court or a large one, there
    will be four times as many decisions to read if the court is four times
    as large. Even if everything else about a large court and a small one
    is the same, the judges on the court can read their own, court's
    decisions only if it is a small court.
        Thus judges on a large court, though of the highest quality, will
    do a less capable job than judges on a smaller court of maintaining
    coherent, consistent law. They simply cannot maintain the same level of
    knowledge of what their own court is doing. Technology cannot repair
    this problem. We already have excellent systems for getting decisions
    into the hands of all the judges. The problem is not getting the
    information from the writing panel to the other judge's desks. It is
    getting the contents of a decision from the judge's desk into the
    judge's head.
        The fastest, easiest way of letting one panel know what another is
    doing is usually for judges to talk about it. Sometimes one of the
    judges on a panel mentions that another recently decided a related
    question, or has it pending. On a small court, the ordinary discussion
    at conference probably does much of the job of maintaining consistency
    in the law. But a Court of 28 judges has more than 3,000 possible
    combinations in which panels sit. Add to that all the visiting judges,
    and we are not likely, in so large a court, to learn what we need to
    know by easy oral interchange in conference. We just do not overlap
    enough in our sittings. The White Commission said that a much smaller
    decisional unit than the Ninth Circuit ``would become much more a
    `known bench,' fostering judicial accountability and public
    confidence.'' But as the White Commission pointed out, on a court as
    large as ours, ``it would be rare for a judge to sit with every other
    judge of the court more than once or twice in a three-year period.''
    There is one judge on our court with whom I have never sat on a three
    judge panel, even though that judge was active rather than senior for
    four years during my tenure.
        The problem I have been discussing harms the consumers of our
    decisions, not the producers. If we render inconsistent decisions, the
    district courts, practicing lawyers, and, most important, the general
    public cannot effectively comply with the law. The great scholar of the
    common law tradition, Karl Llewellyn, characterized the chief virtue of
    appellate opinions as providing ``reckonability of result.'' Professor
    Llewellyn said ``spend a single thoughtful weekend with a couple of
    recent volumes of reports from your own supreme court, * * * and you
    can never again, with fervor or despair, make that remark about never
    knowing where an appellate court will hang its hat. Spend five such
    weekends, and you will be getting a workable idea of the local
    geography of hat racks.'' Karl N. Llewellyn, The Common Law Tradition:
    Deciding Appeals, 179 (1960).
        When I was a practicing lawyer, I was generally able to predict
    with great accuracy what the Supreme Court of my state would do, even
    where there was no case in point. I read its decisions as they came
    down, and as Llewellyn suggests, I knew what the thinking process of
    each of the five justices would be when faced with a new problem. Of
    course, there were occasional surprises, but not very many, to me or to
    other lawyers. Our clients benefited from advice based on this high
    degree of reckonability. They could learn from their lawyers what the
    law was, comply with it, and avoid the expense and misery of
    litigation.
        The Ninth Circuit, because of its size, is not and cannot be a
    reckonable court. No district judge and no lawyer can, by reading even
    a few hundred of our decisions, predict what our court will do in the
    next case. Even if the decisions could be read, there are over 3,000
    combinations of judges who may wind up on panels, so the exercise would
    not be worth the time. At best, the bar can predict that we will
    restate our clear holdings as controlling law. But different panels may
    apply the same holdings to similar facts in different ways. The
    disparateness will naturally be higher in unpublished dispositions.
    When a circuit crows to a size such that its judges cannot read and
    correct other panels' decisions, district judges and lawyers trying to
    figure out what the law is are compelled to say that it depends on who
    is on the panel.
        A court that is not reckonable is of far less use to the general
    public, the lawyers who represent them, and the trial judges who must
    adjudicate their cases, than one whose outcomes can be predicted. There
    is no expense caused by the law that can be so great as the expense to
    the public of not knowing what it is. That expense to the public is
    much greater than all the salaries, courthouses, air fares, and other
    government budget expenses, as large as those are. If people cannot,
    with the assistance of good lawyers, say what the law is, the
    unpredictability generates lawsuits. Courts should settle disputes, not
    create them.
                                    en banc
        The other fundamental problem of an overly large court such as ours
    is with its en banc process. Traditionally on a court that decides
    cases in panels consisting, of fewer than all the judges, there is a
    process, called en banc, by which all the judges on the court sit
    together to rehear a case about which importance, inconsistency, or
    possible error makes them especially concerned.
        On a small court, the en banc process often works so well as a
    possibility that few en banc rehearings are needed. Judges know, from
    frequent sittings together, what outcomes will be viewed as erroneous
    by majorities of their colleagues. On a large court like ours, it is a
    formal, very time consuming, device.
        The practical upper limit on the size of an efficient appellate
    court is the number of judges who can effectively sit together en banc.
    Sitting together effectively requires three things: (1) an oral
    argument in which the unstructured give and take between counsel and
    the judges can accommodate the practical needs of all the judges to air
    difficult issues; (2) a conference in which reasoned deliberation
    rather than mere voting can take place; (3) an opinion writing process
    that can work the views of those judges in the majority into a majority
    opinion. Other circuits sit together en banc with as many as 17 judges.
    The Fifth Circuit, before it split, as it approached the size of the
    present Ninth Circuit, decided that it could not effectively sit en
    banc.
        The Ninth Circuit has by circuit rule limited its en banc panel to
    11 judges. Traditionally ``en banc'' has meant the entire court. To the
    best of my knowledge, we are the only appellate court in English common
    law tradition that calls less than the entire court ``en banc.'' But we
    do not sit en banc in the traditional sense of the word. That means we
    have no mechanism for assuring that our decisions are collegial.
        The word ``collegiality'' in its traditional meaning is critical to
    the en banc process. The word is sometimes used in contemporary speech
    to mean some combination of civility and bonhomie. That is not its
    dictionary definition. The traditional definition is ``shared authority
    among colleagues.'' The word is derived from ``the doctrine that
    bishops collectively share collegiate authority.'' Because we do not
    rehear cases as a full court, we cannot assure that our decisions
    represent shared authority among all our colleagues.
        The people are entitled to have us act with shared authority. We
    were not put in office to be 28 individuals each imposing our
    idiosyncratic individual will on the 50 million people of our circuit.
    The en banc process is what an appellate court uses to rein in those
    judges who may mistakenly canter off the trail of established
    principles of law. But our en banc process does not work, as the
    frequent Supreme Court reversals of our en banc dispositions show.
        The White Commission points out that ``the entire body of judges
    for whom an en banc opinion speaks should have a voice in that
    opinion.'' Yet we cannot. On other courts, en bancs can assure that
    mistaken decisions are repaired in accord with the views of the court
    as a whole. But not on ours. We have no true en banc. Our en banc
    rehearings are before 11 judges. Eleven is just another panel, not even
    40 percent of our 28 judge court. When an en banc panel is divided 6 to
    5 on a case or an issue, the majority of the en banc panel is not even
    a quarter of the full court.
        There is no reason to think that an en banc panel of eleven is
    representative of the court. For one thing, no Judge really represents
    another. We are not organized by party and we are not representatives.
    We decide things individually.
        It is not especially likely that any particular en banc will be
    representative of the court as a whole in any sense. An en banc panel
    is like a random draw of ten (the number of judges drawn for an en
    banc, in addition to the chief judge who sits automatically) cards from
    a deck. It will rarely come out as a straight or flush. Even though a
    coin tossed enough times will come out heads half the time, a single
    series of ten tosses will not usually come out five heads, five tails.
    For example, consider two judges on our court who are philosophically
    quite distinct, Judge Betty Fletcher and Judge O'Scannlain. From 1987
    to 1997, ten full years in which they were both active on the court,
    Judge Fletcher served on 62 en bancs, Judge O'Scannlain on only 34.
    Despite a random draw, one served almost twice as often as the other on
    en banc panels! If you run a judicial process as a crap shoot, then
    crap shooters' principles will affect the outcomes. The principle here
    seems to be, ``when you're hot, you're hot.''
                         benefits of a smaller circuit
        The serious concerns addressed above would be alleviated by
    adopting the White Commission proposal or splitting the Ninth Circuit.
    Both changes would also afford positive benefits. Particularly for the
    less populated states, the judges deciding the cases would have much
    more familiarity with the law, procedure, customs of the bar, and
    social and economic conditions on which their decisions would be
    superimposed.
        Much federal law is not national in scope. Quite a lot of federal
    litigation arises out of federal laws of only local applicability, such
    as the Bonneville Power Administration laws, the laws regarding Hopi
    and Navaho relations, the Alaska National Interest Lands Conservation
    Act, and the Alaska Native Claims Settlement Act. It is easy to make a
    mistake construing these laws when unfamiliar with them. Yet it is a
    rare law clerk who has ever heard of any of these complex federal laws.
    For example, a judge who sits once in ten years in Alaska, as we do now
    on the Ninth Circuit, is unlikely to have a working, knowledge of the
    two tremendously important Alaska laws mentioned, which come up in
    Alaska federal litigation all the time. This unfamiliarity leads to
    errors, as in a recent 9-0 reversal by the Supreme Court, after more
    than a year of intense political turmoil in Alaska.
        Much federal procedure mirrors state procedure in the particular
    district. For example, Federal Rule of Civil Procedure 4 imports state
    procedure. Where law is not specified, bar and bench customs in the
    different localities often fill it in. It is very helpful for judges to
    know how releases, attorney's fees contracts, and other documents for
    common transactions, are typically written in a state, so that they
    know when something is suspicious and when it is ordinary. In diversity
    cases, we are required to apply state law in federal court. Yet on our
    court, ordinarily no judge on the panel has intimate familiarity with
    the law and practices of the state in which the case arose, except for
    California.
        Social conditions also vary, in ways that can color judges'
    reactions to facts, and disable them from understanding the factual
    settings of cases not arising in California. For example, Judges from
    Los Angeles tend to have different assumptions about who possesses guns
    and what for, than do judges from Idaho, Montana, and Alaska, who tend
    to associate gun ownership with longtime law-abiding residents of the
    state. Native Americans have reservations in most states in our
    circuit, but in Alaska reservations have generally been abolished. It
    is quite possible for Alaska lawyers not to point this out in a brief
    because it is so obvious and well known, and for Ninth Circuit judges
    on a panel and their law clerks, who have never been to Alaska, not to
    know it.
        A critically important virtue of smaller circuits or decisional
    units is that it limits the impact of our mistakes. Sometimes we are
    going to be wrong. When we are wrong in a way that affects one American
    out of five, as we do now, that is very wrong indeed. Because error is
    inevitable, limiting its consequences is a good idea.
        Those who advocate more jumbo circuits like the Ninth Circuit
    overlook these costs. The logic of those who argue in favor of keeping
    the Ninth Circuit as it is implies that all of the circuit courts in
    the United States should be consolidated into a single giant circuit
    court, which would function as a pool from which panels of judges would
    be drawn for the whole country. If you can imagine the problems of
    maintaining coherence and predictability of the law in such a circuit,
    you need only apply some discount to see what the problems are in the
    Ninth Circuit.
        There has been a lot of political debate about whether a split
    would favor liberals or conservatives, or one interest or another, that
    strikes me as a red herring. The political motives of the advocates for
    both sides do not have much bearing on which position would be better
    as a matter of judicial administration. People can seek good things for
    bad reasons, and bad things for good reasons. The regional distribution
    of judicial philosophies among members of the Ninth Circuit is entirely
    fortuitous. The president, with the advice and consent of the senate,
    picks judges, and can find lawyers of whatever philosophy the president
    wants in any state. It is perfectly legitimate for the political
    branches of our government, not the judiciary, to decide which states
    should be in which circuits. That is where the Constitution places the
    responsibility. In the White Commission's view and mine, non-political
    concerns of judicial administration require smaller decisional units
    than we now have in the Ninth Circuit.
        The Ninth Circuit now decides cases for about twenty percent of the
    nation's population and forty percent of its territory. It is too big.
    I urge you to split it, preferably simply as with the Fifth and Eighth
    Circuits, or else as a decisional unit, in accord with the White
    Commission recommendation.
        Thank you.

        Senator Grassley. I have 28 minutes left. I hope I can hear
    all three of you. Normally, judges enforce time. I did not want
    to enforce time, but you are cognizant of the time limits.
        And I am going to ask Senator Feinstein if she would ask
    her questions. I am going to submit mine for answer in writing,
    and then you would adjourn the meeting. And I want to make it
    clear to all of you that we will ensure--my questions may not
    cover all of the issues that you want to bring up. I will take
    additional written testimony from any of you to supplement
    anything that you may have wanted to say to other members in
    rebuttal to the questions that Senator Feinstein would ask.
        Judge O'Scannlain.

               STATEMENT OF HON. DIARMUID F. O'SCANNLAIN

        Judge O'Scannlain. Thank you very much, Mr. Chairman and
    Senator Feinstein.
        I would like to begin by stating that as a sitting active
    circuit judge, I support the White Commission's findings, and I
    am in general agreement with Judge Rymer's comments, but will
    emphasize certain points. I will not repeat my written remarks,
    but I would request that you have the appendix to my remarks
    handy because I do want to refer to a couple of items.
        First and foremost, this neverending judicial saga of what
    to do about that judicial Goliath, the ninth circuit, an epic
    that, as we have heard dates back to before World War II, must
    be brought to closure, and decisively.
        The White Commission of 1998 and the Hruska Commission of
    1973 both came to the same conclusion. Regardless of which
    party controlled the Congress when these separate Commission
    were appointed, they both concluded that the ninth circuit
    needs restructuring.
        S. 253 is the most carefully crafted and sophisticated
    legislative solution thus far, and hopefully should be the
    vehicle to resolve the ninth circuit's future, hopefully, for a
    long time. And there is nothing sinister, immoral, fattening,
    politically incorrect or unconstitutional about the
    restructuring of judicial circuits. This is simply the natural
    evolution of the Federal appellate court structure. As courts
    grow too big, they evolve into more manageable judicial units.
        When the circuit courts of appeals were created in 1891,
    there were only nine regional circuits. Since then, the
    District of Columbia circuit was created, the tenth circuit was
    split off from the eighth, the eleventh circuit was split off
    from the fifth, and in due course, I have absolutely no doubt
    either the ninth circuit will be restructured along the lines
    of S. 253 or a new twelfth circuit will be created.
        No circuit, not even mine, Mr. Chairman, has a God-given
    right to an exemption from the laws of nature. There is nothing
    sacred about the ninth circuit keeping essentially the same
    boundaries for over 100 years. And frankly, I am mystified by
    the relentless refusal of some of my colleagues, including my
    beloved chief and my brother, Wiggins, to contemplate the
    inevitable.
        The problem, as we have heard, with the ninth circuit can
    be summarized quite simply. We are too big now and getting
    bigger every day. Although we are officially allocated 28
    judges, we currently have 21 active judges, but 19 senior
    judges. In other words, there are 40 U.S. circuit judges on our
    court today. And when the seven existing vacancies are filled,
    our court will have 47 judges.
        Now, I have compiled a roster of the ninth circuit judges,
    which is on exhibit A of my prepared remarks. And I think you
    may find it quite revealing when you turn to it. It is a
    remarkable array of judge power, more judges on one court than
    the entire Federal judiciary when the circuit courts of appeals
    were created.
        And in the chart you will see the composition going back to
    appointees of President Kennedy, President Nixon, President
    Carter, all of the way down to the appointees and the nominees
    of President Clinton. And knowing that with the possible
    exception of three of the nineteen, these judges are doing 100
    percent down to 25 percent, depending on each individual, of
    the work of a sitting active judge.
        Chart 2 reveals that the ninth circuit has almost double
    the number of judges as the next largest circuit and more than
    quadruple that of the smallest when the senior judges are taken
    into account.
        Chart 3 gives a sense of the enormity of the circuit's
    population relative to other circuits and the caseload tracks
    population quite closely.
        Together, these charts reveal that the ninth circuit has
    double the average of number of judgeships, handles double the
    average number of appeals and has double the average population
    of all courts of appeals in the country. As we can see, the
    ninth circuit is already two circuits in one.
        Now, is the extraordinarily large size of our court and of
    our population a cause for concern? Well, the White Commission,
    and before it the Hruska Commission, thought so, and so do I.
    As Judge Rhymer explained, any court with more than 11 to 17
    judges lacks the ability to render clear, circuit-consistent
    and timely decisions. And I, as a member of this court, would
    agree with that.
        In addition to handling his or her own share of the 9,000
    appeals filed last year, each judge is faced with the Sisyphean
    task of keeping up with all of us, his colleagues' opinions.
    And as Judge Rymer reported in her report, only about half of
    the ninth circuit judges read all or most published opinions,
    which, frankly, is as embarrassing as it is intolerable.
        And furthermore, because of the circuit's geographical
    reach, judges must travel on a regular basis from far-away
    places throughout the circuit to attend hearings and court
    meetings. I am very much relieved that I only have to travel
    from Portland to San Francisco in circuit, and I am just in awe
    of the fact that my colleague from Fairbanks, AK, has to make
    that trip as often as I do. It is tough enough for me when the
    flight is only less than 2 hours. But if you are coming all of
    the way from Fairbanks on a regular basis, that is probably one
    day each direction. Much of this time and expense could be
    avoided if the divisional restructuring plan or an outright
    circuit split were implemented.
        At 52 million people and counting, we are faced with a
    fundamental choice: Either do nothing and let the court of
    appeals become more unwieldy, or restructure the circuit into
    more manageable regional entities. The White Commission
    recognized that the first option is not responsible, and the
    latter option is inevitable. And I agree.
        But on this point, my chief judge and I appear to disagree,
    although with the greatest respect. In his report vigorously
    opposing reform, my chief emphasizes that the White Commission
    recommended that the ninth circuit not be split.
        Well, with respect, this misses the point, and frankly
    obfuscates the real defects of the Court of Appeals. Rather,
    the Commission's principal findings are:
        No. 1, that a Federal appellate court cannot function
    effectively with more than 11 to 17 judges;
        No. 2, that the consistent, predictable and coherent
    development of the law over time is best fostered in a
    decisionmaking unit smaller than what we have;
        No. 3, that a disproportionately large proportion of
    lawyers practicing before the circuit deemed the lack of
    consistency in the case law to be a grave or large problem;
        No. 4, that the outcome of cases is more difficult to
    predict in the ninth circuit than in other circuits; and
        No. 5, that our limited en banc process has not worked
    effectively.
        Those are the principal recommendations of the Commission
    report. The Commission's main finding was that the Ninth
    Circuit Court of Appeals--and I am glad Judge Rymer emphasized
    that point. We are not saying that the circuit is not operating
    effectively, but the court of appeals has its limitations, and
    the result being that the Commission is not saying that
    creating new circuits is inherently bad.
        My chief also characterizes the fact that the chief judges
    of eight other circuits have expressed opposition to the
    Commission's divisional restructuring plan as evidence of
    strong disapproval of restructuring among the Federal
    judiciary. Again, however, with respect, my brother, misreads
    the actual details. What these chief judges are opposed to is
    the creation of intracircuit divisions with respect to the heir
    own circuits, none of whom have our problems. And, frankly,
    they are right.
        As a judge on the ninth circuit, I must also take issue
    with my colleague's assertion that an overwhelming majority of
    ninth circuit judges oppose reform. A large proportion of judge
    in our court; that is, yet a minority, do favor restructuring,
    many strongly so.
        As Judge Rymer reported and as my chief has indicated in
    his testimony today, one-third of our judges have said so in a
    Commission survey. And with respect to that court meeting on
    January 21, I will leave it up to my chief to decide if he may
    wish to make public the minutes which would disclose the exact
    vote tally and the identity of those voting and the specific
    questions that were presented.
        In any event, I am authorized to tender the letter which
    you find at exhibit B, bearing today's date, which is written
    on behalf of six of us, including a Californian, who are
    willing to go public in support of reorganization. Now, since
    sending that letter to the printer so I could make your
    deadline for submitting the testimony, I made a few telephone
    calls, and I can now represent for the record that three more
    California members of my court wish to be shown as joining in
    that letter; Judge Rymer, of course, Judge Hall of Pasadena,
    and Judge Fernandez of San Bernadino.
        And I have reason to believe there are many ninth circuit
    judges, including other Californians, who, if given the
    opportunity, would vote today for an outright split-off of the
    five Northwest States into their own circuit.
        And while I am at it, many district trial court judges
    agree that this is also necessary. After denying that anything
    is wrong, our official court position straddles the fence by
    arguing that we can alleviate any problem simply by making
    changes at the margin. In response to the Commission report,
    our chief has appointed an Evaluation Committee, which has
    since suggested various quick fixes. But I must respectfully
    disagree, once again, that any problems with our court can be
    solved by tinkering at the edges. The time has come when
    cosmetic changes will no longer suffice and a significant
    restructuring is necessary.
        As you may recall, Mr. Chairman, from my testimony before
    the full committee, and I remember that Senator Feinstein was
    an active participant back in September 1995, I have become a
    public proponent of the Hruska Commission's recommended
    structuring plan, but after starting out upon my appointment to
    this court in 1986 opposed to any change whatsoever.
        And as Senator Hatfield and Senator Gorton would recall, I
    refused to support their efforts throughout the eighties to
    split the court because they appeared to be motivated by
    dissatisfaction with some environmental law decisions of our
    court.
        Mr. Chairman, we have moved past those inappropriate
    concerns. The more I consider the issue from the judicial
    administration perspective today, the more I appreciate the
    benefits of the White Commission's restructuring proposal. Not
    only will the creation of smaller judicial decisionmaking units
    in the form of divisions promote consistency, predictability
    and improved decisionmaking, these divisions will be more
    connected to the various regions involved.
        Now, I am not here to defend S. 253 in minute detail, but I
    do urge the committee to give serious consideration to doing
    something to address the problems, which not only I have
    outlined, but the Commission report outlines, and frankly, all
    of the witnesses so far have indicated there are problems. And
    I presume that is the basis upon which Senator Feinstein wishes
    to offer some legislation to address a perception of problems.
        If we go with the Commission's plan, of course, we can make
    adjustments to the divisional structure to cope with political
    realities; for example, placing California in its own division
    and making other adjustments, if that is what it takes, to make
    the legislation acceptable.
        But in the event that Congress receives too much resistance
    to the Commission's divisional approach, then it should
    specifically consider an outright split along the lines of the
    three alternative reorganization plans. They are listed as A,
    B, C in the report. All three are meritorious.
        Finally, Mr. Chairman, please do not be deterred by
    nitpicking criticisms of the Commission's proposal. Men and
    women of good will can fashion modifications to the plan to
    satisfy the greatest number. The ninth circuit's problems are
    not going to go away, and they will only get worse. We have
    been engaged in gorilla warfare on this circuit split issue for
    much too long. You must force us to restructure now one way or
    another so that we can end the distractions caused by this
    neverending controversy and get back to doing the job of
    judging, which is why the President appointed us, and you
    confirmed us.
        Thank you, Mr. Chairman, for allowing me to make these
    remarks. I would be happy to accept any questions that you wish
    to ask.
        Thank you.
        [The prepared statement of Judge O'Scannlain follows:]

                 Prepared Statement of Diarmuid F. O'Scannlain

                               executive summary
        The strains from the size and ever-increasing caseload of the Ninth
    Circuit present us with a fundamental choice: do nothing and let the
    circuit become even more unwieldy, or restructure the circuit into more
    manageable regional entities. The White Commission, recognizing the
    need for smaller decisional units to promote consistency and
    predictability in adjudication, concluded that the first option is not
    feasible and that the latter option is inevitable. I agree. The
    Commission was prescient in its recognition of the Ninth Circuit's
    problems, and its creative recommendations, now in the form of S. 253,
    deserve careful consideration.
        The natural evolution of the federal appellate court system entails
    the restructuring of circuits in response to changes in population and
    workload. As courts grow too big, they are restructured into more
    manageable judicial units. No circuit has a God-given right to an
    exemption from inevitable restructuring. The only legitimate
    consideration is the optimal size and structure for judges to perform
    their duties. Although it has been suggested that we can fix the
    problems plaguing the Ninth Circuit by tinkering at the edges, I agree
    with the Commission's implicit finding that a more significant overhaul
    is needed. I commend the Commission's divisional restructuring
    approach. With fewer judges in each division, collegiality of
    adjudication within divisions will rise, and consistency of law will be
    improved.
        The same phenomena that counsels for the divisional restructuring
    approach also counsels for a split. I think that we should implement S.
    253, which is a step in the right direction. If it does not work or if
    the obstructionists prevent the passage of S. 253, however, then there
    should be an outright split of the circuit, which is probably
    inevitable anyway. Most of all, we should end the guerilla warfare and
    let us get back to judging.
        Good morning, Chairman Grassley and Members of the Subcommittee. My
    name is Diarmuid O'Scannlain, and I am a judge on the United States
    Court of Appeals for the Ninth Circuit with chambers in the Pioneer
    Courthouse in Portland, Oregon. Thank you for inviting me to appear
    before you today to discuss the future of the Ninth Circuit, an issue
    of great significance to the federal judiciary as a whole.
                                       i
        Having served as a federal appellate judge for over a dozen years
    on what has long been the largest court of appeals \1\ in the federal
    system and having written repeatedly on issues of judicial
    administration,\2\ welcome the chance to offer my perspectives as a
    member of the court in this never-ending saga of ``what to do about
    that judicial monster,'' the Ninth Circuit. I have heard my colleague
    Judge Rymer's persuasive presentation, and I have read the Commission's
    report and most of its accumulated testimony. I support the
    Commission's findings and am in general agreement with Judge Rymer's
    comments, but I will emphasize certain points in particular. But this
    judicial epic which has been going on since at least World War II must
    be brought to closure, and decisively. S. 253 is the most carefully
    crafted legislative solution thus far and should be the vehicle to
    resolve the Ninth Circuit's future once and for all. Your choice is
    either to implement S. 253, probably with some adjustments in details,
    or to order an outright split. Congress can no longer afford to
    luxuriate in passivity over the future of this lumbering judicial
    entity.
    ---------------------------------------------------------------------------
        \1\ I have previously served as Administrative Judge for the
    Northern Unit of our court and two terms as a member of our court's
    Executive Committee.
        \2\ See Statement of Diarmuid F. O'Scannlain, Hearing Before the
    Committee on the Judiciary, United States Senate, S. Hrg. 104-810, at
    69-77 (Sept. 13, 1995); Diarmuid F. O'Scannlain, A Ninth Circuit Split
    Commission: Now What?, 57 Montana L. Rev. 313 (1996); Diarmuid F.
    O'Scannlain, A Ninth Circuit Split is Inevitable, But Not Imminent, 56
    Ohio St. L.J. 947 (1995).
    ---------------------------------------------------------------------------
        When the circuit courts of appeals were created over one hundred
    years ago by the Evarts Act of 1891, there were only nine regional
    circuits. Today, there are twelve. For a long time, each court of
    appeals had at most three judges each; indeed, the First Circuit was
    still a three-judge court when I was still in law school. Over time,
    courts grew to six, seven, seventeen, and eventually, to a high of
    twenty-eight judges for my court. The District of Columbia Circuit can
    trace its origin as a separate circuit to a few years after the Evarts
    Act was passed.\3\ The Tenth Circuit was split off from the Eighth in
    1929. The Eleventh Circuit was split off from the Fifth Circuit in
    1981.\4\ And, in due course, I have absolutely no doubt, either the
    Ninth Circuit will be restructured along the lines of S. 253 or a new
    Twelfth Circuit will be created out of the Ninth.
    ---------------------------------------------------------------------------
        \3\ The original name of this court was the Court of Appeals for
    the District of Columbia. In 1934, this court was renamed the United
    States Court of Appeals for the District of Columbia.
        \4\ This is not to mention the Federal Circuit, which was created
    in 1982.
    ---------------------------------------------------------------------------
        And there is nothing sinister, immoral, fattening, or
    unconstitutional about the restructuring of circuits. This is simply
    the natural evolution of the federal appellate court structure
    responding to population changes. As courts grow too big, they are
    restructured into more manageable judicial units. No circuit, not even
    mine, has a God-given right to an exemption from the laws of nature.
    There is nothing sacred about the Ninth Circuit's keeping essentially
    the same boundaries since 1855. The only legitimate consideration is
    the optimal size and structure for judges to perform their duties. We
    certainly have no vested interest in retaining a structure that may not
    function effectively, and Congress has a responsibility through its
    oversight to prod the judiciary to keep up with the changing times.
        The White Commission was prescient in its recognition of the Ninth
    Circuit's problems, and its creative recommendations, now in the form
    of S. 253, deserve careful consideration and sensible adjustments
    towards the ideal. Judge Rymer has well articulated the real problems
    and a sound solution which will either be the model for all large
    circuits or an interim step toward eventual split into two or three
    circuits. Frankly, I am mystified by the relentless refusal of some of
    my colleagues to contemplate the inevitable; as loyal as I am to my own
    circuit, I cannot oppose the logical evolution of our judicial
    structure as we grow to colossus size.
        The problem with the Ninth Circuit can be stated quite simply: we
    are too big now, and getting bigger every day. This is so whether you
    measure size in terms of number of judges, caseload, or population.
    Even though we are officially allocated 28 judges, we currently have 21
    active judges and 19 senior judges. In other words, regardless of our
    allocation, there are forty judges on the Ninth Circuit today. And when
    the seven existing vacancies are filled, we will have 47 judges.\5\ I
    have compiled a roster of Ninth Circuit judges in Exhibit A, which you
    may find quite revealing. To put the figure of 47 in perspective,
    consider the fact that this is almost double the number of total
    judgeships as the next largest circuit (the Sixth Circuit) and more
    than quadruple that of the smallest (the First Circuit).\6\ The
    exceptional size of the Ninth Circuit is illustrated in Charts 1 and 2.
    With every additional judge that takes senior status, we grow even
    larger. Indeed, if we get the five new judgeships that Judge Rymer
    mentioned we have asked for, there will be 52 judges on the circuit,
    while the average size of all other circuits today is 14 active
    judges.\7\
    ---------------------------------------------------------------------------
        \5\ See Exhibit A; Table 1. With the exception of three judges--one
    of whom is no longer accepting calendar assignments, one of whom is
    recuperating from cancer surgery, and one who is temporarily sitting
    only on screening calendars, all of our senior judges carry a
    substantial load ranging from 100 percent to 25 percent of a regular
    active judge's load.
        \6\ See Table 2; Chart 2.
        \7\ If senior judges on other circuits are factored in, the average
    is 21 total judges per circuit.
    ---------------------------------------------------------------------------
        Table 3 and Chart 3 give a sense of the enormity of the Ninth
    Circuit's caseload and population relative to other circuit. Last year,
    we handled 9,070 appeals--over double the average (4,484) and almost
    1,000 more than the next busiest court (the Fifth Circuit).\8\ Looking
    at population, the Ninth Circuit's nine states and two territories,
    which range from the Rocky Mountains to the Sea of Japan and from the
    Mexican Border to the Arctic Circle, contain over 52 million people, or
    21 million more than the next largest circuit (the Fifth).\9\
    Tellingly, the Ninth Circuit has double the average number of
    judgeships (28 vs. 14), handles double the average number of appeals
    (9,070 vs. 4,484), and has double the average population (52 million
    vs. 23 million).\10\ In essence, the Ninth Circuit already is two
    circuits in one.
    ---------------------------------------------------------------------------
        \8\ See Table 3. There may be slight variations in terms of the
    summary statistics reported here and those reported elsewhere as a
    result of differences in sources. I use caseload statistics provided by
    the Administrative Office of the United States Courts in a report
    entitled Judicial Business of the United States Courts: Annual Report
    of the Director and population statistics compiled by the United States
    Census Bureau.
        \9\ See Table 3.
        \10\ See Tables 2 and 3.
    ---------------------------------------------------------------------------
        Is the extraordinarily large size of the Ninth Circuit a cause for
    concern? The Commission thought so. And so do I. After careful
    analysis, the Commission concluded that any court with more than eleven
    to seventeen judges lacks the ability to render clear, circuit-
    consistent, and timely decisions. I agree that a court with as many
    judges as the Ninth cannot continue to function well. Courts of appeals
    have two principal functions: correcting errors on appeal and declaring
    the law of the circuit. Having more judges helps us keep up with our
    error-correcting duties, but, as Judge Rymer has outlined, it hampers
    our law-declaring role by making it more difficult to render clear and
    consistent decisions.
        The White Commission found that what an appellate court needs for
    consistency and predictability in adjudication--values fundamental to
    the effective administration of justice--is small decision-making
    units. Consistency of law in the appellate context requires an
    environment in which a reasonably small body of judges has the
    opportunity to sit together frequently. Such interaction enhances
    understanding of one another's reasoning and decreases the possibility
    of misinformation and misunderstandings. Because the Ninth Circuit has
    so many judges, the frequency with which any pair of judges hears cases
    together is quite low, thus making it difficult to establish effective
    working relationships in developing the law.
        In addition, as several Supreme Court Justices have commented, the
    risk of intracircuit conflicts is heightened in a court which publishes
    as many opinions as the Ninth.\11\ In addition to handling his or her
    own share of the 9,000 appeals filed last year, each judge is faced
    with the Sisyphean task of keeping up with all his colleagues'
    opinions. Frankly, we are losing the ability to keep track of our own
    precedents. As Judge Rymer reported, only about half the Ninth Circuit
    judges read all or most published opinions, which is as embarrassing as
    it is intolerable. It is imperative that judges read opinions as they
    are published, since this is the only way to stay abreast of circuit
    developments as well as to ensure that no intra-circuit conflicts
    develop and that, when they do (which, alas, is inevitable as we
    continue to grow), they be reconsidered en banc. This task is too
    important to delegate to staff attorneys.
    ---------------------------------------------------------------------------
        \11\ See Commission on Structural Alternatives for the Federal
    Courts of Appeals, Final Report 38 (Dec. 18, 1998) [hereafter ``White
    Commission Report''].
    ---------------------------------------------------------------------------
        As consistency of law falters, predictability erodes as well. The
    Commission pointed out that a disproportionately large number of
    lawyers indicated that the difficulty of discerning circuit law due to
    conflicting precedents was a ``large'' or ``grave'' problem in the
    Ninth Circuit. From my own experience since 1986, I can tell you that
    this problem has worsened notably as the court has grown in size.
    Predictability is difficult enough with 28 active judgeships. But this
    figure understates the problem because it does not count either the
    senior judges who participate in the court's work (most very actively)
    or the large numbers of visiting district and out-of-circuit judges who
    are not counted in our present 40-judge roster.
        The White Commission recommended a restructuring of the circuit in
    part because of its finding that the circuit's en banc process is not
    working correctly. As a member of the court, I can tell you that,
    although the en banc process, in theory, promotes consistency in
    adjudication by resolving intra-circuit conflicts once and for all,
    this has not been the case in the Ninth Circuit. All courts of appeals
    other than the Ninth Circuit convene en banc panels consisting of all
    active judges. The Ninth, however, uses limited en banc panels
    comprised of eleven of the twenty-eight active judgeships. This limited
    en banc system appears to work less well than other circuits' en banc
    systems; because each en banc panel contains fewer than half of the
    circuit's judges and consists of a different set of judges, en banc
    decisions do not incorporate the views of all judges and thus may not
    be as effective in settling conflicts or promoting consistency.
    Relatedly, several Supreme Court Justices have commented that the Ninth
    Circuit fails to hear cases en banc often enough to settle intra-
    circuit conflicts or to correct wrongly decided opinions.\12\
    ---------------------------------------------------------------------------
        \12\ See Letter from Justice Sandra Day O'Connor to Justice Byron
    R. White, Chair, Commission on Structural Alternatives for the Federal
    Court of Appeals 2 (June 23, 1998); Letter from Justice Anthony M.
    Kennedy to Justice Byron R. White, Chair, Commission on Structural
    Alternatives for the Federal Court of Appeals 3 (August 17, 1998).
    ---------------------------------------------------------------------------
        The Ninth Circuit's problems do not just hinder judicial decision-
    making, but also create administrative difficulties and waste. Because
    of the circuit's geographical expansiveness, judges must travel, on a
    regular basis, from faraway places throughout the circuit to attend
    court meetings and hearings. For example, in order to hear cases, my
    colleague Judge Kleinfeld must, many times a year, fly from Fairbanks,
    Alaska to distant cities including San Francisco and Pasadena. In
    addition, he must travel on a quarterly basis to attend court meetings
    generally held in San Francisco. Obviously, all this travel entails not
    only time, but a considerable amount of cost. Either the divisional
    restructuring plan or an outright circuit split would do much to
    curtail this extensive travel and expense.
                                       ii
        At 52 million people and counting, we are faced with a fundamental
    choice: either do nothing and let the circuit become even more
    unwieldy, or restructure the circuit into more manageable regional
    entities. The White Commission recognized that the first option is not
    feasible, and the latter option is inevitable. I agree. However, some
    say: If it ain't broke, don't fix it. This is the position of our Chief
    Judge of the Ninth Circuit, who has circulated a report vigorously
    opposing any restructuring of the circuit.
        In his report, Chief Judge Hug emphasizes that the White Commission
    recommended that the Ninth Circuit not be split. With respect, this
    misses the point and obfuscates the real defects of the court of
    appeals. Rather, the Commission's principal findings are:

      1. That a federal appellate court cannot function effectively with
        more than eleven to seventeen judges;

      2. That decision-making collegiality and the consistent, predictable,
        and coherent development of the law over time is best fostered in a
        decision-making unit smaller than what we now have;

      3. That a disproportionately large proportion of lawyers practicing
        before the Ninth Circuit deemed the lack of consistency in the case
        law to be a ``grave'' or ``large'' problem;

      4. That the outcome of cases is more difficult to predict in the
        Ninth Circuit than in other circuits; and

      5. That our limited en banc process has not worked effectively. In
        light of these many problems--and notwithstanding the Ninth
        Circuit's longstanding official position that everything is working
        just fine--the White Commission unequivocally recommended a
        substantial restructuring of the circuit's adjudicative operations.
        The Commission's main finding was that the Ninth Circuit Court of
        Appeals is not functioning effectively, not that creating divisions
        is better than creating new circuits. The Report's principal
        finding relates to the Court of Appeals's adjudicative functions
        which can only be cured by smaller decision-making units.

        Chief Judge Hug reports that there is strong opposition to
    restructuring among the federal judiciary. Specifically, he
    characterizes the fact that the chief judges of eight other circuits
    have expressed opposition to the Commission's divisional restructuring
    plan as evidence of their opposition to reforming the circuit. Again,
    however, with respect, Chief Judge Hug misreads the actual details.
    What these chief judges are opposed to is the creation of intra-circuit
    divisions with respect to their own circuits, none of whom have our
    problems.
        As a judge on the Ninth Circuit, I must also take issue with my
    chiefs assertion that ``[t]he view that the serious disadvantages of
    the restructuring proposal outweigh any possible advantages is shared
    by an overwhelming majority of the judges on the Ninth Circuit Court of
    Appeals.'' Again, with respect, this is simply untrue. A large
    proportion of judges on our circuit favor restructuring, many strongly
    so. As Judge Rymer reported, approximately one third of judges said so
    in response to a survey by the Commission. In addition, I am authorized
    to tender the attached letter (Exhibit B) bearing today's date on
    behalf of six Ninth Circuit judges including another Californian who
    are willing to ``go public'' in support of reorganization. In my
    personal opinion, there are many judges, including Californians, who,
    if given the opportunity, would vote for an outright split off of the
    Northern Division into its own circuit. We had a court meeting on
    January 21 in which an actual vote on the White Commission Report was
    taken, and I leave it to my chief to decide if he wishes to disclose
    the exact vote tally and identities of those voting. Suffice it to say
    that nothing has transpired since the actual survey which would lead me
    to doubt that the roughly one-third/two-thirds alignment with respect
    to the Commission's findings is still accurate. As a final comment on
    this point, I would note that conspicuously absent from Chief Judge
    Hug's report is the fact that, of the five Supreme Court Justices who
    commented on the Ninth Circuit in letters to the Commission, ``all were
    of the opinion that it is time for a change.'' \13\ The Commission
    itself reported that, ``[i]n general, the Justices expressed concern
    about the ability of judges on the Ninth Circuit Court of Appeals to
    keep abreast of the court's jurisprudence and about the risk of
    intracircuit conflicts in a court with an output as large of that
    court's.'' \14\
    ---------------------------------------------------------------------------
        \13\ White Commission Report at 38.
        \14\ Id.
    ---------------------------------------------------------------------------
        After denying that anything is wrong, our official court position
    straddles the fence by arguing that we can alleviate any problems
    simply by making changes at the margin. In response to the Commission
    Report, the Chief Judge appointed an Evaluation Committee, which has
    since suggested various quick fixes. I must respectfully disagree that
    any problems with our circuit can be solved by tinkering at the edges.
    The time has come when cosmetic changes will no longer suffice and a
    significant restructuring is necessary. I am not, however, saying that
    our circuit as a whole is already broke. I would emphasize that Chief
    Judge Hug and the Clerk of the Court are presently doing a marvelous
    job of administering this fifteen-court circuit as a whole, but my
    instant focus is on where we go from here. If the Ninth Circuit Court
    of Appeals is not yet broke, it's certainly on the verge.
                                      iii
        How, then, should the Ninth Circuit be restructured? Frankly, I
    think that the toughest issue facing the long-term planner is what to
    do with California, which is, in itself, larger than any existing
    multi-state circuit in terms of population. What are the options? One
    option is to make California a circuit by itself. A second is to align
    it with other states. A third is to place California within two or more
    circuits or divisions. I would like to emphasize what is perhaps the
    most significant of the White Commission's well-considered findings
    with respect to exactly how the Circuit should be reorganized: that
    decisions of the district courts within the same state may indeed be
    reviewed by different divisions without difficulty. This finding
    comports with the conclusion of the Hruska Commission over 25 years
    ago, which recommended that two of California's four district courts be
    included in a newly created Twelfth Circuit. California now represents
    over 60 percent of the total workload of our nine-state and two-
    territory circuit.\15\ Whatever Congress decides to do--be it an
    outright circuit split or the creation of divisions--it should no
    longer be deterred from entertaining the possibility that appeals from
    the four districts within California be allocated to different
    appellate courts.
    ---------------------------------------------------------------------------
        \15\ See Tables 4, 5.
    ---------------------------------------------------------------------------
        Critics argue that placing California within two different
    divisions would encourage forum shopping and subject Californians to
    diverging lines of federal authority. I specifically agree with Judge
    Rymer and the White Commission that the potential for forum shopping
    would increase only marginally because California litigants already can
    choose in which district to file and because any ``division conflicts''
    could be quickly and expeditiously resolved. Like Judge Rymer, I was
    struck by the comments of Justice Stevens, Justice Scalia, and Justice
    Kennedy that the consequences of splitting California between two
    circuits have been seriously exaggerated.\16\
    ---------------------------------------------------------------------------
        \16\ See Letter from Justice John Paul Stevens to Justice Byron R.
    White, Chairman, Commission on Structural Alternatives for the Federal
    Court of Appeals 1 (August 24, 1998); Letter from Justice Antonin
    Scalia to Justice Byron R. White, Chairman, Commission on Structural
    Alternatives for the Federal Court of Appeals 1-2 (August 21, 1998);
    Kennedy, supra note 14, at 3.
    ---------------------------------------------------------------------------
        I think that the Commission has crafted a well-considered, detailed
    proposal for restructuring the circuit that will help to alleviate many
    of the problems that the Commission identified and that I outlined
    earlier. I have become a public proponent of the Hruska Commission's
    recommended restructuring plan over the last four years after starting
    out in 1986 opposed to any change whatsoever. The more I consider the
    issue, however, the more I appreciate the benefits of the White
    Commission's restructuring alternative. By creating smaller judicial-
    decision making units in the form of divisions, the Commission's
    proposal will promote consistency in law, predictability, and
    collegiality. These divisions will certainly be more connected to the
    regions involved. This is exactly what we need. If we go with the
    Commission's plan, we can, of course, make adjustments to the
    divisional structure as necessary to cope with political realities,
    perhaps for example, placing California within its own division and
    making other adjustments as necessary.
        I am not here to defend S. 253 in minute detail, but I do urge the
    Committee to give serious consideration to doing something to address
    the many problems I have outlined. The divisional restructuring
    embodied in the present bill is most certainly worthy of consideration.
    In the event that Congress receives too much resistance to the
    divisional approach, in particular, then, as the only other
    alternative, it should specifically consider an outright split along
    the lines of the the three alternative reorganization plans--Options A,
    B, and C--outlined by the Commission on pages 54-57 of the Report.
    These are, of course, the ``Variation on the `classical split,''' the
    ```Classical split' plus realignment of Tenth Circuit to reduce size of
    new Ninth,'' and the ``Division of California between two circuits to
    reduce size of new Ninth,'' respectively. My personal preference is
    Option C, which approximates the reorganization plan recommended by the
    Hruska Commission. This plan has a number of concrete benefits,
    resulting principally from the fact that it would create an even
    sharing of the Ninth Circuit's current caseload.
        At the same time, I am also sensitive to political concerns which
    may cause delay before putting part of the same state in two separate
    circuits for the first time. But this simply counsels in favor of
    trying the Commission's divisional approach. Let's give S. 253 a chance
    to work first time. But this simply counsels in favor of trying the
    Commission's divisional approach. Let's give S. 253 a chance to work
    first.
                                       iv
        Mr. Chairman, do not be deterred by nit-picking criticism of
    details of the Commission's proposal. Men and women of good will can
    fashion modifications to the plan to satisfy the greatest number. And
    if the obstructionists wear you down, then go ahead and split us--
    permanently into two or more circuits as the alternative. The Ninth
    Circuit's problems won't go away, they will only get worse.
        We've been engaged in guerilla warfare on this circuit split issue
    for quite some time now. What we need to do is get back to judging. You
    must force us to restructure now, one way or another, so that we can
    concentrate on our sworn duties and end the distractions caused by this
    long-running controversy.
                                       v
        Thank you, Mr. Chairman, for allowing me to appear before you
    today. I would be happy to answer any questions you may have.
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        Senator Grassley. My former colleague, Judge Wiggins.

                  STATEMENT OF HON. CHARLES E. WIGGINS

        Judge Wiggins. Thank you, Mr. Chairman. I am delighted to
    have the opportunity to appear before you in your present
    status. You have come a long way since we were colleagues in
    the House of Representatives.
        Senator Grassley. There are a lot of people in the House
    that say coming to the Senate is not very far. [Laughter.]
        Judge Wiggins. Well, I commend you, and I am proud of you.
        I appear as a senior judge from the ninth circuit. I have
    been on the ninth circuit for 15 years; prior to that, I
    practiced law for 16 years; and prior to that I served for 12
    years in the House of Representatives, a colleague of our
    chairman.
        I have a problem with my sight. I cannot see any more, and
    so I am not going to testify consistent with my submitted
    statement. But I urge you to read it and to consider what is
    there. I am just going to extemporize for about 5 minutes and
    say something that I feel very deeply about.
        The ninth circuit is a fine institution. We have an example
    of the quality of judges right here at this table, and I am
    proud to say that they are colleagues of mine. There is not a
    case that is submitted to Judge Andy Kleinfeld, who resides in
    Alaska, that originates in Southern California, that I would
    not be proud to have him sit on because he would provide
    judgment and a fair decision. And I think the other side is
    true; that he would not find that I am unqualified to sit on
    cases that intimately affect Alaska because I try to be fair as
    well.
        The whole notion of dividing the circuit has to consider
    the present personnel and the fact that they are going to
    remain. We have some judges who are characterized as liberals,
    some characterized as conservatives, and a great many in the
    middle. They are all going to remain deciding cases in the
    future, how many divisions, subdivisions we ever make of the
    ninth circuit.
        The second problem, and maybe the fundamental problem is
    size, but it is the fact that population is increasing. The
    population of the ninth circuit is increasing about 5 percent a
    year, and it is going to continue in the future, whatever the
    subdivisions of the circuit may be. One of these days the
    Congress is going to have to address that problem. It is a
    tough political problem, and I do not want to speak to it now.
        The other problem is subject matter jurisdiction. The
    circuit has to hear cases that you assign, the Senate and House
    of Representatives assign to us. We do not have any choice in
    the matter. The selection of judges is a political decision as
    well. But the personnel, the subject matter jurisdiction is a
    problem that you must one of these days come to grips with. You
    could appoint a Commission truly to make revisions in the
    subject matter jurisdiction of the circuit courts of appeal,
    and you would be doing something constructive. The present
    proposal has nothing to add to its constructive result in the
    circuit. It is addressing a problem that is not a problem.
        I am proud to serve on the circuit. I think my colleagues
    up here are fine members of the circuit, and they should be
    permitted to decide cases wherever the circuit. We need more
    judges, of course. But because we need more judges, we should
    not sidetrack the fundamental problem that we have too many
    cases. We have 9,000, approximately, arising in the circuit
    now; 55,000, approximately, across the country.
        The problem that people have addressed here is not confined
    to the ninth circuit. We have Senator--a Senator that has a
    southern accent. I cannot see him up there. But he may be
    affiliated with the fifth circuit. That is presently a problem
    that they are up about 17 judges. The eleventh circuit is
    presently a problem, and those are the next two areas that are
    going to be addressed if you establish the precedent of
    subdividing the ninth circuit.
        Now, we are doing a good job. We are truly doing a good
    job. There is a lot of political interest in subdividing the
    circuit, but those are not meritorious, and I urge you,
    strongly urge, to leave well enough alone. You should put this
    divisive issue behind us. I would recommend that you just file
    the White Commission report and take no action with respect to
    it.
        I served as a member, as you know, on the Hruska
    Commission. I am getting to be the last surviving member of the
    Hruska Commission. We made some mistakes. We made some mistakes
    in dividing California, but we made some fundamental findings
    that there is one law existing across the country. It is the
    same law in New York City as it is in Fairbanks, AK, and as it
    is in Los Angeles. We should not encourage regionalism. That is
    fundamentally wrong.
        Now, you are a national officer, and I am too, to some
    extent. We are applying national law. To the extent that we are
    citizens of our State and our interests may be at odds with the
    national law, the national law should prevail. This fosters
    regionalism, and that is wrong. We are not going to survive as
    a court with 40 courts that the magic formula of 17 or 11
    mandate.
        Now, you have got to study the issue of concentrating in
    larger circuits because it is inevitable. The population is
    growing up, and the caseload that you have assigned to this is
    going up as well. The only answer is larger circuits.
        Let me urge you, and I will conclude, that this is a
    terribly important subject. It is a national issue, and I urge
    you, as national officers, to foster one law for the Nation. It
    is the way the Constitution was founded.
        Thank you very much, Mr. Chairman.
        [The prepared statement of Judge Wiggins follows:]

                    Prepared Statement of Charles E. Wiggins

                                    summary
        The Ninth Circuit operates well with its present structure and
    boundaries. The drive to split the circuit is animated by political
    concerns, not by a desire to improve the federal appellate courts.
    Therefore, I oppose the White Commission's restructuring of the circuit
    as well as any other plan that would divide the circuit.
        The argument that the circuit is just ``too big'' collapses under
    scrutiny. As the White Commission made clear, there is no reason to
    believe that the circuit is too large to administer justice fairly and
    effectively. In addition, modem technology has shrunk the circuit.
    Modem jets cover large distances in minutes or hours. We also can
    communicate instantaneously across vast distances, rendering face-to-
    face meetings less important. Finally, splitting the circuit would do
    little to case the travel burden that remains.
        One of the prime factors motivating proponents of a split is
    provincialism--the belief that judges from a state should decide cases
    that originate in that state. Provincialism is inconsistent with the
    purpose of the federal court system, which strives to interpret and
    apply national law uniformly. Federal law should not mutate to satisfy
    local constituents; federal law is the same nationwide.
        Political philosophy is another factor motivating proponents of a
    split. This is an illegitimate motive. Tampering with the federal
    courts because of the political or judicial philosophies of particular
    judges is inconsistent with the separation of powers doctrine and the
    independence of the judiciary.
                                     ______

        My name is Charles Wiggins, and I'm a Senior Judge on the Ninth
    Circuit, where I have served for the last fifteen years. Prior to that,
    I served twelve years in the House of Representatives. My primary
    committee assignment was the Judiciary Committee, where I served for a
    number of years as the ranking Republican member on the Courts and
    Intellectual Property subcommittee. As a member of the Judiciary
    Committee, I was given the privilege of serving on a variety of
    important, special commissions; most relevant to this hearing, I served
    25 years ago as a member of the Hruska Commission. Thus, I have devoted
    a quarter of a century to the careful study of the jurisdiction and
    boundaries of the several circuits. Over this time, with the benefit of
    subsequent study and experience, I have concluded that some of the
    conclusions of the Hruska Commission were erroneous, and I can no
    longer support them.
        I have concluded, as a result of extensive study of the subject,
    that the overall functioning of our appellate system will not be
    improved by adding further circuits to the present structure, but that
    the problems with the present structure are traceable to the growth in
    population and the expansion of subject matter jurisdiction for the
    circuits.
        Accordingly, we must direct our efforts to narrowing the subject
    matter jurisdiction of the circuits, and we should attempt to reduce
    the number of circuits, making them larger, not smaller. Therefore, I
    oppose the recommendations of the White Commission, as well as any
    other proposals that would further subdivide the existing circuits, and
    I urge this body to file the White Commission's recommendations without
    taking action.
        I will not analyze the particular shortcomings of the Commission's
    recommendations. Other witnesses will adequately engage in that
    analysis. Instead, I am going to undertake an explanation of why this
    Commission's recommendations are before you at all. I am satisfied that
    there are no cogent reasons to tamper with the physical size of the
    Ninth Circuit, except that it is perceived to be in the political
    interests of its sponsors.
    I. Is the circuit too big?
        As a starting point, let me confront the foremost argument for a
    Division, namely that the Ninth Circuit is just ``too big.'' Proponents
    of a Ninth Circuit split frequently justify their position by asserting
    that the circuit is just that--``too big.'' This, of course, begs the
    question: too big for what? The key question should be whether the
    Ninth Circuit is too large to administer justice fairly and
    effectively. The answer to this question is easy--it is not. As the
    White Commission proclaimed ``there is no persuasive evidence that the
    Ninth Circuit is not working effectively or that creating new circuits
    will improve the administration of justice in any circuit or overall.''
        The other potential argument is that the Ninth Circuit is ``too
    large,'' not because it is unable to carry out its mission, but because
    administering justice over such a large territory is burdensome on both
    judges and litigants. I disagree with this assessment as well. Over the
    past century the circuit has operated effectively despite its massive
    boundaries, and, today, the circuit's large territory imposes fewer
    hardships on judges and litigants than ever before. We live in a
    shrunken world. As technology continues its giant leaps forward, our
    old way of looking at large distances becomes increasingly obsolete.
    Our judges no longer traverse the circuit's large distances via
    horseback. In the early years of this century, travel was a significant
    burden. For example, it took about three days to travel from Los
    Angeles to San Diego, yet this is a minor distance in comparison to the
    circuit as a whole. Likewise, a trip from San Francisco to Sacramento
    was itself a journey of a couple of days. But at that time there was,
    no outcry against the size of the circuit. Only now, after we have
    managed to shrink, practically speaking, the distances that separate
    one part of our country from another, do we hear that the circuit is
    ``too big.'' But this argument cannot coexist with the high technology
    world around us. Not only has our modem system of air travel made it
    easier to cover large distances, but the importance of travel itself
    diminishes as technology advances. Judges in San Diego or Los Angeles
    can communicate easily and instantaneously with judges in Boise and
    Fairbanks via electronic mail, fax machines, conference calls and
    videoconferencing. With time, many of our traditional ways of
    conducting court business, relying as they do on face-to-face
    communication, will become obsolete.
        It is also important to understand that splitting the circuit does
    very little to reduce what travel burden remains. Clearly, lawyers and
    judges in rural parts of Alaska, Montana or Idaho bear a more
    significant travel burden than do judges or lawyers in San Francisco or
    Los Angeles. Nevertheless, the travel burden on these parties will
    remain significant even after the unveiling of a circuit split. It is
    difficult to travel to court meetings or oral arguments from rural
    Alaska. But it is only marginally more difficult to travel from rural
    Alaska to San Francisco than it is to travel from rural Alaska to
    Portland, Oregon. The relatively minor additional travel time is
    grossly insufficient to justify a fundamental transformation of the
    federal appellate system.
        For these reasons, I believe the cry that the circuit is ``too
    big'' collapses under close scrutiny.
    II. The problem of provincialism
        Another primary motive animating many proponents of a split I label
    provincialism. This is the belief that Judges from State X should
    decide cases from State X. Some of the key proponents of a split argue
    that California judges should not be deciding cases from Alaska, or
    Montana, or other Northwestern states. Under scrutiny, this argument
    shows itself, not only flawed, but even illegitimate. The United States
    Court of Appeals is charged primarily with interpreting and applying
    national law, not regional law, not state law. There is only one
    national law, enacted in D.C., under authority derived from the U.S.
    Constitution. The proponents' theory only makes sense if we believe
    that judges in Alaska should interpret the Constitution or federal
    statutes in an Alaska-friendly manner, and that California judges
    should interpret the same law in a California-friendly manner. But this
    is not the purpose of the federal judiciary. The U.S. Constitution is
    the same in California as it is in Alaska, it's the same in New York as
    in Florida. This is equally true of federal statutory law. For example,
    Congress did not pass, and the President did not sign, separate
    Americans with Disabilities Acts for Alaska and California. Thus,
    federal law is the same, region to region, and state to state. The goal
    of the federal judiciary is to achieve uniformity in interpretation,
    without splintered interpretations designed to favor the local
    constituency. National law is not an appropriate forum for regional
    experimentation; this is the proper exercise of state law. Where the
    Constitution entrusts matters to the federal government, the law
    applies to all and should apply uniformly to all. The uniform
    application of national law is harmed, not helped, when the courts of
    appeals are splintered into smaller adjudicative bodies in order to
    tailor their views to local constituencies.
        Splitting a circuit to appease regional interests deprives a
    circuit of the diversity of background that circuits need in order to
    interpret and apply national law in a uniform manner. Proponents of a
    Ninth Circuit split often argue that judges from other parts of the
    circuit, particularly California, are insufficiently familiar with life
    in the Pacific Northwest to decide cases arising in the northwest. I
    disagree, first, with the claim that California judges lack sufficient
    familiarity with their northern neighbors to adjudicate disputes from
    the northern states. It is true that no judge can be intimately
    familiar with the culture, background, and lifestyle of every party
    that comes before his or her court. Some judges that have an intimate
    understanding of logging or fishing in the rugged northwest may be
    unfamiliar with the lives of inner-city Los Angelinos. The reverse is
    often true as well. But let us remember, federal law is not designed to
    appeal to a small segment of the nation, it is written to apply to all
    Americans. Thus, we have long recognized that more diversity, not less,
    is necessary for a healthy circuit. A political generation ago, the
    Hruska Commission was given the task of exploring the state of the
    circuit courts, including their boundaries. In laying out the general
    principles through which decisions on the circuit courts should be
    made, the Hruska Commission articulated a truth that we must not lose
    sight of today: provincialism is a danger, not a benefit, to the courts
    of appeals. The Hruska Commission warned that we must avoid circuit
    courts that ``lack the diversity of background and attitude brought to
    a court by judges who have lived and practiced in different states.''
    62 F.R.D. 223, 237. The Commission rightly noted that ``such diversity
    is a highly desirable, and perhaps essential, condition in the
    constitution of the federal courts.'' Id. As the White Commission
    report makes clear, this Hruska Commission finding still rings true.
    See White Commission Report at 49. The federal appellate courts cannot
    cater to local tastes or interests if they are to satisfy their
    function of applying a uniform body of law uniformly. That being the
    case, the circuit courts should be composed in a way that best
    accomplishes that goal, by having judges from different parts of the
    country and different backgrounds working together to create truly
    national interpretations of our national law.
        The key, then, is not to break the circuit courts into small bodies
    that cater to local tastes. The key is to ensure that the circuit
    courts are comprised of judges that represent the full diversity of the
    circuit. The proper question is whether the different regions of the
    circuit are adequately represented on the court by judges from the
    different regions. I would argue that the present Ninth satisfies this
    goal. But if it does not, the remedy is to appoint and confirm judges
    that ensure that all regions of the circuit are adequately represented,
    the remedy is not to splinter the circuit into smaller bodies that
    cannot effectively represent broad viewpoints.
        It is also important to remember that the Ninth Circuit is not the
    only circuit that is growing rapidly. The Judicial Conference of the
    United States projects that the number of filed appeals will multiply
    by a factor of seven in the next twenty years. See Lloyd D. George, The
    Split of the Ninth Circuit: Is It Really Our Best Option?, 6-Jun Nev.
    Law. 5. Thus, to maintain smaller 12-15 judge circuits, while still
    maintaining viable caseloads per judge, would require up to 40 circuits
    by the year 2020. Id. Maintaining uniformity in the federal law would
    be an almost-impossible task with such a large number of circuits.
    Thus, it is necessary to readjust our thinking about the federal
    circuit courts. The circuit courts of the future, whether we like it or
    not, will be large circuits. Our only hope for an effective court of
    appeals system lies in finding ways to make large circuits work better;
    the answer is not to ignore the clear growth trends and stubbornly
    demand the small circuits that are, more and more, becoming a relic of
    the past.
        Furthermore, smaller circuits cannot allay the concerns expressed
    by many proponents of a split. Many split proponents, particularly
    those from the Northwest, claim that their states are dominated by
    California. Again, I disagree with this assertion. But even if they are
    right, splitting the Ninth Circuit sets a bad precedent for those
    smaller states that are concerned with the dominance of a larger
    neighbor. Splitting the Ninth may remove Alaska from under California's
    real or imagined dominance, but only at the expense of those smaller
    states left in the Ninth. Whatever states remain tied to California,
    most likely Nevada, Arizona, maybe Hawaii, will be more dominated by
    California than Alaska or Montana ever were, because the other smaller
    states that once comprised the circuit have left, taking their judges
    with them. The only answer to large state dominance in the circuits is
    larger circuits, where many smaller states can balance one large one.
        The Ninth is not the only rapidly growing circuit. Soon Congress
    will have to decide whether to divide a number of others. If Congress
    is concerned with the dominance of large states, it must set an
    important precedent by keeping the Ninth Circuit together. Otherwise,
    many other small states may soon find themselves in splintered circuits
    of their own, joined with a large and dominant neighbor and without any
    other small states that can provide balance to their circuit.
    III. Political philosophy
        The final motivation behind a circuit split is even more
    troublesome than provincialism. There is a perception among many
    conservatives that our circuit is a ``liberal'' circuit that is out-of-
    touch with the Supreme Court, and the other circuits. I strongly
    believe that this characterization is unfair. As one intimately
    familiar with the judges on the Ninth Circuit, I can say with
    confidence that our circuit is diverse, with a few liberals, a few
    conservatives, and many moderates. But however you view the philosophy
    of the Ninth, splitting the circuit for political reasons is
    illegitimate and would, in any case, be ineffectual in promoting the
    political philosophies of its proponents.
        Let me first address illegitimacy of a political restructuring of
    the circuit. We have long recognized, ever since President Roosevelt's
    attempt to pack the Supreme Court with favorable justices, if not
    before, that it is illegitimate for the political branches to alter
    fundamentally the character of the federal judiciary for political
    reasons. The Constitution is clear; the federal judiciary is an
    apolitical body, separate and equal to the political branches and
    unaccountable to them. Article III serves as a constant reminder that
    the federal judiciary cannot be played with to accomplish political
    whims, it cannot be punished because of a judge's political views.
    Elected officials have come and gone. As the old were replaced by the
    new, the prevailing political views on Capitol Hill often changed. Time
    has had the same effect on the federal judiciary. As old judicial
    personalities were replaced by new judges, prevailing judicial
    philosophies have often changed. What has remained constant throughout
    the century is the, effectiveness with which the Ninth Circuit has
    administered justice. To alter significantly the structure of the
    federal judiciary because of disagreements with some judges' political
    views cuts to the heart of judicial independence, and fundamentally
    strains the separation of powers that animates our Constitution. Under
    our constitutional system, it is the interplay between the President
    and the Senate that places federal judges on the bench and,
    consequently, gives a district, a circuit, or the Supreme Court a
    liberal, conservative, or moderate character. These elected officials
    must then live with the results of the political process until they can
    alter the character of the courts through this political process. Over
    the long term, this process serves the country well.
        Second, speaking practically, and setting aside the illegitimacy of
    restructuring the federal judiciary for political reasons, splitting
    the Ninth Circuit because of its perceived ``liberal'' character will
    not achieve the goals of its conservative proponents. Splitting the
    circuit does not replace ``liberal'' judges with ``conservative''
    judges. The same judges will still occupy the appellate bench, and they
    will still produce decisions consistent with their judicial views.
    Thus, a split for political reasons cannot reduce the number of
    ``liberal'' decisions, nor can it increase the number of
    ``conservative'' ones. The theory, then, must be that a split will
    create a new circuit with a more conservative bent in the Northwest,
    while leaving California to its liberal judges. This theory is
    fundamentally flawed. Speaking as one intimately familiar with the
    court and its judges, I can say with a great deal of certainty that a
    Northwestern circuit will have a character very similar to that of the
    Ninth Circuit as it presently stands. There is no Mason-Dixon line in
    this circuit. Chopping California off from the Northwest will create
    two circuits, but it will not create a conservative circuit and a
    liberal circuit.
    IV. Conclusion
        In conclusion, the White Commission's recommendations, and any
    other plan to split the Ninth Circuit, are inherently flawed. First,
    because of a rapidly increasing population, the demand for circuit
    judges will continue to rise dramatically. If we are to maintain
    uniformity in our federal appellate system, the circuit courts of the
    future will be large circuits; splintering our appellate system into a
    multitude of small circuits can only increase conflict, not uniformity.
    Thus, we must search for ways to make large circuits work better,
    primarily by reducing the subject matter jurisdiction of the circuit
    courts to make case loads more manageable. Second, the reasons given
    for a Ninth Circuit split collapse under scrutiny. The circuit is not
    ``too big.'' Though large, it allows for the fair and effective
    administration of justice. And practically speaking, the circuit gets
    smaller every day with every technological leap forward. Finally, the
    motives animating circuit split proposals are illegitimate.
    Provincialism is a misguided motive because it jeopardizes the federal
    courts' duty to administer national law uniformly. Likewise, splitting
    a circuit because of the political philosophies of some federal judges
    threatens the separation of powers upon which our governmental system
    is based. I therefore urge the Committee to maintain the circuit's
    present structure.

        Senator Grassley. Thank you, Judge Wiggins.
        Before I call on Judge Browning, who will finish the panel,
    I want to say that Assistant Attorney General Acheson also had
    another commitment and will be submitting her testimony for the
    record. I appreciate her willingness to testify.
        [The prepared statement of Ms. Acheson follows:]

                    Prepared Statement of Eleanor D. Acheson

        Good morning. I appreciate the opportunity to appear before the
    Subcommittee on Administrative Oversight and the Courts to express the
    views of the United States Department of Justice on the final report of
    the Commission on Structural Alternatives for the Federal Courts of
    Appeals and on S. 253, the Ninth Circuit Reorganization Act. The
    Department opposes enactment of S. 253.
                                  introduction
        In 1997, Congress created the Commission on Structural Alternatives
    for the Federal Courts of Appeals to study, for one year, ``the present
    division of the United States into the several judicial circuits'' and
    ``study the structure and alignment of the Federal Court of Appeals
    system, with particular reference to the Ninth Circuit.'' \1\ The five-
    member Commission, chaired by retired Supreme Court Justice Byron
    White, provided the Justice Department and other interested parties two
    opportunities to submit ideas concerning these subjects, once at the
    beginning of the Commission's work and again in response to the
    Commission's draft report. The Department appreciated the opportunity
    to contribute to the Commission's work. A copy of the Department's
    official comments to the Commission on Structural Alternatives have
    been submitted for the record and are incorporated as part of the
    Department's testimony.
    ---------------------------------------------------------------------------
        \1\ Sec. 305(a)(1)(B)(i, ii), Pub. L. No. 105-119, 111 Stat. 2491
    (1997).
    ---------------------------------------------------------------------------
        In its final report, the Commission made recommendations in four
    general areas regarding the structural reorganization of the courts of
    appeals: First, the Commission specifically rejected the suggestion
    that the Ninth Circuit be split, noting that there was ``no persuasive
    evidence'' supporting a realignment of the circuit.\2\ Instead, the
    Commission recommended that the Ninth Circuit be divided into three
    semi-autonomous decisional regions. Under this novel arrangement, none
    of these regional divisions would be obligated to follow the others'
    precedents and any ``square conflicts'' in their decisions could be
    resolved by a Circuit-wide division called the Circuit Division.
    Second, the Commission recommended that each other federal Court of
    Appeals be granted the statutory authority to divide into regional
    divisions and to establish a Circuit Division once its bench reached 15
    or more active judges. Third, the Commission urged that the Courts of
    Appeals be granted the authority to experiment with appellate panels
    consisting of two judges, instead of the three-judge panel that is the
    norm. Fourth, the Commission recommended that the Courts of Appeals be
    permitted to use panels consisting of two federal District Court judges
    and one federal Circuit Court judge when resolving cases that involve
    the routine application of well-settled law or that involve certain
    subject matter areas. S. 253, the Ninth Circuit Reorganization Act, was
    introduced in response to the White Commission's report and
    incorporates all four of the Commission's recommendations.
    ---------------------------------------------------------------------------
        \2\ White Commission Final Report (hereafter ``Final Report'') at
    29.
    ---------------------------------------------------------------------------
        Because S. 253 so closely tracks the White Commission's
    recommendations, our written testimony before this Subcommittee draws
    from the comments submitted to the Commission by the Department.
                   general views of the department of justice
        The structural reforms contained in S. 253 have serious, far-
    reaching implications for the structure and functioning of the federal
    courts. The Justice Department approaches these issues from our
    perspective as a frequent litigant in the federal system--a participant
    in over 40 percent of the cases heard in the federal courts of
    appeals--which must reconcile tensions in the results and reasoning of
    decisions in order to assess how to proceed in federal investigations
    and prosecutions, to give advice to client agencies, and to consider
    whether to seek review of decisions adverse to the government.
        We begin with the observation that all available means of non-
    structural reform should be attempted and assessed before structural
    changes are imposed on the federal courts. In our comments to the White
    Commission, we expressed the view that structural changes should be
    undertaken only if a pervasive and well-documented problem exists, that
    problem cannot be addressed within the existing structure, and a
    workable solution can be devised whose advantages outweigh its
    immediate and potential detriments. Guided by those principles, we
    agree with the White Commission's recommendation--and the sponsors of
    S. 253--that there is no basis for a split of the Ninth Circuit.\3\ In
    our view, the lack of any compelling evidence supporting a circuit
    split also counsels against what we view as the principal
    recommendation contained in S. 253--the mandated creation of divisions
    for the Ninth Circuit and the recommended extension of this proposal to
    other large circuits. That proposal would have potentially adverse
    repercussions for the administration of justice in the Ninth Circuit,
    and ultimately across all federal courts of appeals.
    ---------------------------------------------------------------------------
        \3\ Final Report at 29.
    ---------------------------------------------------------------------------
        We believe that mechanisms short of a split (divisional or
    otherwise) should be tried first--particularly since the provisions in
    S. 253 would likely exacerbate, rather than ameliorate, the main
    problem we perceive: the Ninth Circuit should employ adequate
    mechanisms to review and reconcile panel decisions that conflict or are
    in tension with one another, or that require correction by the court as
    a whole. Therefore, before recommendations such as those contained in
    S. 253 are enacted, we urge the adoption of the non-structural reforms
    suggested in this testimony and our earlier submissions to the White
    Commission.
        In this vein, we note and applaud the Ninth Circuit's current
    efforts to evaluate its own processes to determine how it can enhance
    more consistent decision-making and reduce docket backlog. We
    understand that the Chief Judge recently created a Ninth Circuit
    Evaluation Committee to consider these issues, solicit public comment,
    and make recommendations to the Court. We believe that the Circuit
    should be afforded an opportunity to consider and implement changes
    proposed as a result of these processes before Congress acts.
        We now provide our views on S. 253.
                section 2: regional division of the 9th circuit
        Section 2 of S. 253 would divide the Ninth Circuit into Northern,
    Middle and Southern Divisions, with California split between the Middle
    and Southern Divisions. Between seven and eleven active judges would
    serve in each division, with the presiding judge of each division
    chosen in the manner that currently exists for the selection of a
    circuit's chief judge. A majority of judges serving on each division
    would be residents of the districts over which that division has
    jurisdiction, but each division would also include some judges not
    residing within the division, assigned randomly or by lot for terms of
    at least three years. Judges from each division would hear appeals
    arising from district courts within the division's geographic
    boundaries. Each division would use an en banc procedure to rehear
    cases from within the division. One division's decisions, whether panel
    or en banc, would not ``be regarded as binding precedents in the other
    regional divisions.'' \4\ Finally, a non-regional ``Circuit Division''
    consisting of thirteen judges would be formed. The Circuit Division
    panel would include the Chief Judge of the Circuit, plus four randomly
    selected judges from each of the three regional divisions. The 13-judge
    Circuit Division would have discretionary jurisdiction to review ``any
    final decision rendered in any of the court's divisions that conflicts
    on an issue of law with a decision in another division,'' but only
    after a panel decision had been reviewed by the division en banc or had
    been denied divisional en banc review.\5\ The Circuit Division would
    not have the jurisdiction to review decisions for error, decisions that
    conflict with another circuit's decision, or decisions involving issues
    of exceptional importance.
    ---------------------------------------------------------------------------
        \4\ Sec. 2(b)(5).
        \5\ Sec. 2(c)(2).
    ---------------------------------------------------------------------------
        In our view, this proposal is not likely to significantly advance,
    and instead is likely to detract from, the goals the Ninth Circuit
    Court of Appeals strives to achieve--consistency of decisions,
    efficiency in resolving cases, and the appearance that all of its
    decisions reflect the views of the Court as a whole. Indeed, section 2
    of S. 253 is likely to create greater confusion in Ninth Circuit law,
    further delay the resolution of appeals, and undermine the
    representativeness (and thus, the legitimacy) of the Court's decision-
    making process. We outline our specific concerns below.
                    uniformity and consistency of decisions
        A basic tenet of American jurisprudence is that federal law should
    be applied as uniformly as possible within and across circuits.
    National uniformity and predictability are particularly important to
    the Department of Justice, which must enforce federal law and advise
    federal agencies about the meaning of that law throughout the country.
    The Department also plays a special role in the process of unifying the
    meaning of federal law: as the most frequent litigant in the federal
    courts, the Department, through the Solicitor General, exercises
    considerable restraint in choosing which cases the United States brings
    to the courts of appeals.
        It is of paramount importance that federal law be interpreted
    consistently regardless of the location of the court or the composition
    of the judicial panel. Rather than reduce the amount of intra- and
    inter-circuit conflicts created by Ninth Circuit decisions, we believe
    that S. 253's divisional structure would effectively validate, and even
    encourage, the development of such conflicts. Indeed, S. 253 is
    explicit that ``the decisions of 1 regional division shall not be
    regarded as binding precedents in the other regional divisions.'' \6\
    ---------------------------------------------------------------------------
        \6\ Sec. 2(b)(5).
    ---------------------------------------------------------------------------
        S. 253 purports to delineate a way of resolving conflicts among
    divisions through the mechanism of a ``Circuit Division.'' The Circuit
    Division's only role, however, would be to resolve ``conflicts on * * *
    issue[s] of law'' between the regional divisions. It is unclear from
    the legislation what a ``conflict'' is and how a conflict is different
    from the existence of other decisions that are difficult to reconcile
    but which nonetheless point the law in different directions. Often, the
    creation of a conflict is not clear, much less immediately clear. And
    because the decisions of other divisions are not binding precedents,
    judges would be less likely to distinguish, discuss, or even cite
    decisions from outside their division. Overall, the Circuit Division
    mechanism, as proposed, does not provide an effective mechanism for the
    resolution of the many intra-circuit inconsistencies that the semi-
    autonomous division system would produce.
        The inability of the Circuit Division to review cases not involving
    inter-divisional conflicts on issues of law may have a further
    pernicious effect--insulating many decisions from Supreme Court review.
    The Circuit Division's narrow jurisdictional mandate would effectively
    preclude Circuit-wide review of matters of exceptional importance,
    cases that conflict with decisions of other circuits, and cases in
    which the intra-circuit disagreement is significant but does not rise
    to the level of a ``conflict.'' Such cases would be decided solely at
    the divisional level, and those decisions would not be binding circuit-
    wide. That structure would inevitably multiply the number of decisions
    within the Ninth Circuit that conflict with decisions of other
    circuits, while simultaneously creating a possible impediment to
    Supreme Court review. It is uncertain whether Supreme Court Justices
    would vote to grant certiorari in cases that present conflicts between
    only one division of the Ninth Circuit (rather than the Circuit as
    whole) and another circuit. The discretionary nature of certiorari
    jurisdiction suggests that parties opposing review will argue that the
    Supreme Court should give the Ninth Circuit as a whole an opportunity
    to overturn a divisional decision so as to bring the division into
    harmony with the other circuit's decision. The proposed divisional
    structure therefore might serve to insulate decisions of the Ninth
    Circuit from further review, effectively isolating it from the rest of
    the federal court system.\7\
    ---------------------------------------------------------------------------
        \7\ That concern is not theoretical. In the area of criminal law,
    the Supreme Court in recent Terms has reversed decisions of the Ninth
    Circuit in which that Circuit alone has held the particular view of the
    issue presented and been in conflict with every other circuit to have
    considered that issue. See United States v. Ramirez, 118 S.Ct. 992
    (1998), rev'g, 91 F.3d 1297 (9th Cir. 1996); United States v. Hyde, 520
    U.S. 670 (1997), rev'g, 92 F.3d 779 (9th Cir. 1996); United States v.
    Watts, 519 U.S. 148 (1997), rev'g, 78 F.3d 1386 (9th Cir. 1996) and 67
    F.3d 790 (9th Cir. 1995); United States v. Armstrong, 517 U.S. 456
    (1996), rev'g, 48 F.3d 1508 (9th Cir. 1995) (en banc); United States v.
    Mezzanato, 513 U.S. 196 (1995), rev'g, 998 F.2d 1452 (9th Cir. 1993);
    United States v. Shabani, 513 U.S. 10 (1994), rev'g, 993 F.2d 1419 (9th
    Cir. 1993); United States v. X-Citement Video, 513 U.S. 64 (1994),
    rev'g, 982 F.2d 1285 (9th Cir. 1992); United States v. Padilla, 508
    U.S. 77 (1993), rev'g, 960 F.2d 854 (9th Cir. 1992); see also
    Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998) (overruling
    United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir. 1992)); Neal
    v. United States, 516 U.S. 284 (1996) (overruling United States v.
    Muschik, 49 F.3d 512 (9th Cir. 1995)). A process that insulated from
    Supreme Court review those types of erroneous division panel decisions
    that conflicted with other circuit decisions would be unfortunate. In
    our view, rather than creating a structure that might insulate such
    decisions from Supreme Court review, the Ninth Circuit should employ a
    more vigorous en banc procedure to address those types of conflicts and
    erroneous decisions.
    ---------------------------------------------------------------------------
        The probability that S. 253's divisional structure could spawn
    greater inconsistency in Circuit law would be particularly problematic
    in California. Under S. 253, the State of California would be split
    between the Middle and Southern Divisions of the Ninth Circuit, neither
    of which would be required to follow the precedent of the other. We do
    not support dividing any State in this manner, because, as much as
    possible, federal rights and responsibilities should be the same for
    all citizens within a State. Splitting California between two divisions
    that are not bound by each other's precedent would yield different
    interpretations of federal and state law, and could result in
    inconsistent federal court rulings regarding the constitutionality of
    the same California law.\8\ For the reasons discussed above, Supreme
    Court review and resolution of these inconsistencies might be rare and,
    at a minimum, protracted, particularly with the requisite added layer
    of Circuit Division (following divisional en banc) review. In addition,
    the existence of different divisions within one State could encourage
    forum shopping among those seeking to assure a more favorable audience
    to adjudicate questions of federal and state law, as well as delays in
    the reconciliation of conflicting decisions.\9\
    ---------------------------------------------------------------------------
        \8\ We have not had an opportunity to assess completely to what
    extent the proposed geographical divisions, including dividing
    California, would create the possibility of conflicting jurisprudence
    on a range of substantive areas of law of particular interest to the
    United States. However, the federal government's unique docket, which
    includes issues involving public lands and ecosystem management,
    wildlife and marine resource issues, and Native American rights and
    interests. Those issues do not neatly fit into, but transcend, the
    boundaries of the proposed geographic divisional structure and may be
    adversely impacted by any inconsistent interpretation of federal law
    that would result from the proposed division of the Ninth Circuit into
    geographic divisions.
        \9\ Although splitting California between two regional divisions
    makes S. 253 all the more objectionable, keeping California in the same
    division does not remedy our general concerns that the proposed
    restructuring of the Circuit would increase the number of inconsistent
    decisions, delay the appellate process, and decrease the
    representativeness of the Circuit's decisions. Placing California in
    one division would, moreover, implicate several other problems
    including, most notably, the size of any division with sufficient
    judges to handle California's immense appellate volume (which currently
    accounts for 60 percent of the cases within the Ninth Circuit). It is
    difficult to see how any ``California division'' that would decide
    4,000 or more cases with 18 or more judges would offer significant
    advantages in terms of size as compared to the existing Ninth Circuit.
    Indeed, such a division would probably have to employ some form of
    limited en banc review and would undercut the Circuit Division's
    representativeness (at least if its membership was comprised of equal
    numbers of judges from each regional division).
    ---------------------------------------------------------------------------
                         efficient resolution of cases
        The interest in achieving an expeditious appellate process is
    important for all kinds of cases, but it is particularly acute in two
    areas in which the Ninth Circuit has large caseloads: criminal cases,
    in which the defendant's liberty, as well as the victim's and public's
    interest in finality, are at stake; and immigration cases, in which the
    Ninth Circuit currently reviews as much as 50 percent of the nationwide
    caseload and in which delay defers a determination of the alien's
    status and can encourage new case filings. A swifter and less
    cumbersome process in such matters is in the interest of both the
    government, which must enforce the law, and the individual, whose
    resources typically cannot sustain vigorous multi-tier litigation.
        By adding another layer of review, the Ninth Circuit restructuring
    contained in S. 253 would delay the completion of the judicial process
    for litigants. Following an adverse panel decision, an aggrieved
    litigant could seek en banc review by the Division en banc court, as
    would now be true of the Circuit as a whole. A denial of such a
    petition would, in many cases, precipitate a further request for
    rehearing at the Circuit Division level.\10\ The evaluation of a case
    for alleged conflicts with a decision of another panel would only add
    to what is already a protracted period for finally resolving cases.
    ---------------------------------------------------------------------------
        \10\ Although it is difficult to demonstrate a ``conflict'' between
    two or more judicial decisions, our experience opposing petitions for a
    writ of certiorari in the Supreme Court suggests that a large number of
    litigants nonetheless will try. It seems likely that the Circuit
    Division will forgo review in several cases while awaiting for inter-
    division conflicts to become sufficiently clear to warrant Circuit
    division review and resolution. This may further delay the time for
    consistent Circuit precedent to be established.
    ---------------------------------------------------------------------------
        The White Commission justified this divisional structure partly on
    the grounds that smaller decisional units might increase efficiency by
    reducing the volume of precedent judges would be required to consult
    and monitor (thereby saving these judges time). We doubt that the
    creation of smaller decisional units would save much time or that
    Circuit judges will deem it advisable to disregard the development of
    law in the other divisions of the Circuit. Because S. 253 contemplates
    that a number of judges would be assigned outside their division of
    residence for substantial periods of time, it is unlikely that judges
    would benefit substantially over the long run by ostensibly being
    relieved of the burden of monitoring other divisions' opinions. While
    serving outside their division of residence, they would presumably be
    expected to keep abreast of the decisions of at least two divisions--
    their division of permanent residence and their division of temporary
    assignment. And if, over a three-to-five year period, they might be
    assigned to all three divisions, that monitoring responsibility would
    be hindered by a failure to have kept up with the output of all three
    divisions. Whatever benefit might accrue to individual judges with
    respect to the burden of monitoring opinions, therefore, is likely to
    be only modest and incomplete, at best.
        Indeed, the use of smaller decisional units may not only be
    ineffective as a means of reducing delay, but may also have undesirable
    collateral effects. By creating a smaller pool of judges from which
    panels would be selected, litigants would be able to better predict the
    identity of a panel's judges. But it is precisely to discourage
    litigants from attempting to tailor their arguments for particular
    judges that many circuits do not publicly announce the judges on the
    panel until shortly before argument. And under the proposed divisional
    plan, predictability may encourage forum shopping (especially within
    California) or tactics to delay pursuit of an appeal to await either
    the periodic change in judicial composition within a division or the
    resolution of a pending case raising the same issue in a different
    division. A unified circuit avoids those anomalies.\11\
    ---------------------------------------------------------------------------
        \11\ Filling existing vacancies on the Circuit, or creating new
    judgeships, as S. 1145, the Federal Judgeship Act of 1999, would do,
    would be preferable ways to reduce judicial workload and thereby
    increase the speed with which appeals are decided.
    ---------------------------------------------------------------------------
                            appearance of legitimacy
        As the Supreme Court has recognized time and again, the authority
    of the judicial branch is tied to its legitimacy. One important aspect
    of a court's legitimacy is the perception of the public and the bar
    that when a judge or a panel of judges speak, they speak for the entire
    court of which they are members. More to the point, the views of a
    panel of judges on the Court of Appeals should represent the views of
    the entire Circuit Court. In all other Circuits but the Ninth, this is
    always the case because all of the judges on the Circuit have either
    implicitly approved of the decisions of the three-judge panels (by
    opting not to rehear the case en banc) or have reheard the case en banc
    with all of the non-recused, active judges on the Circuit
    participating. The Ninth Circuit, however, employs a limited en banc
    procedure under which the Circuit's en banc panel is comprised of 11
    judges--the Chief Judge and 10 other judges selected at random. As a
    result, the Ninth Circuit's en banc; panel involves fewer than a
    majority of the Circuit's 28 active judgeships. Thus, the Ninth Circuit
    has been criticized on the ground that its en banc decisions are not
    representative of even a majority of the judges on its court.
        Instead of making the court more representative, S. 253 is likely
    to reduce the representativeness of the Ninth Circuit's decisions. Once
    a three-judge panel issues an opinion, each regional division would
    have the opportunity to rehear the case en banc. This en banc process
    would involve every active judge on the regional court. However, given
    that the divisional court would consist of only 7 to 11 judges, at
    least two of whom joined the majority decision being challenged, a
    litigant would likely face an uphill battle in obtaining divisional en
    banc review. In those rare instances where en banc review were granted,
    the decisions issued within any regional division would be
    representative of the views of the judges in that region. This
    representativeness at the regional division level does not reach the
    Circuit level, however. At the Circuit level, S. 253 would create the
    Circuit Division to replace the limited en banc structure currently
    employed by the Ninth Circuit. While the Circuit Division is slightly
    more representative than the limited en banc because it increases the
    number of judges from 11 to 13, the 13 Circuit Division judges still do
    not consistent a majority of the 28 judges on the Ninth Circuit and are
    not selected randomly for each en banc; case (they are instead assigned
    by lot for three year terms). The Circuit Division would only operate
    where there is a ``conflict'' on a legal issue, however. In every other
    case, the decision of the regional en banc court (of 7 to 11 judges)
    would be the final word of the 28-judge Circuit. As a result, S. 253
    would appear to undermine the representativeness, and hence the
    legitimacy, of the Ninth Circuit's decisions.
              * * * * *
        Our serious reservations about implementing S. 253 are magnified by
    the recognition that the move to any divisional structure would likely
    be irreversible.\12\ Once regional divisions are created--and
    differences in divisional law are permitted to flourish--the Ninth
    Circuit would have little ability to reunify. Instead, the
    restructuring compelled by S. 253 would lead in only one direction--to
    an eventual split of the Circuit. But this result is precisely what the
    White Commission found to be unwarranted and unworkable. Rather than
    proceed down this inevitable path to split of a Circuit viewed by its
    users (and its evaluators) as operating reasonably well, we
    respectfully suggest that Congress should instead, at least as a first
    effort, direct the Ninth Circuit to study and implement constructive
    changes in relation to the specific areas of concern identified by the
    White Commission and the Department.
    ---------------------------------------------------------------------------
        \12\ Creating regional divisions on an experimental basis would,
    for the reasons described in the text, be equally irreversible. Thus, a
    ``sunset'' provision would not remedy our concerns.
    ---------------------------------------------------------------------------
                   alternatives to divisional re-structuring
        From our perspective as litigants, the Ninth Circuit's primary
    shortcoming is traceable not principally to its large number of judges
    or geographical size, but rather to its failure effectively to address
    erroneous panel decisions in important cases and to review cases in
    which a meritorious claim of conflict is presented. This problem is
    already being mitigated in the light of the recent upswing in the
    number of cases that the Ninth Circuit has voted to hear en banc. The
    problems that continue to persist, while admittedly difficult to
    quantify, nonetheless appear susceptible to amelioration by
    nonstructural means, as suggested in our submissions to the White
    Commission. Indeed, the Circuit's en banc mechanism, if modified, is
    particularly well suited to solving many of these problems. If that
    course is followed, structural changes might ultimately prove to be
    unnecessary and their attendant difficulties and dislocations avoided.
    After a period of experience with non-structural alternatives and an
    assessment of legal and demographic trends, the need for any structural
    reforms might become clearer.
        Improving the opportunity for en banc review. There are a number of
    discrete but effective ways to increase the opportunities for en banc
    review of panel decisions. In particular, Congress might consider
    granting the courts of appeals a dispensation to lower the statutory
    requirement that a majority of the Circuit's active-service judges must
    vote affirmatively to rehear a case en banc. The success of the Supreme
    Court in exercising its discretionary review based on the votes of less
    than a majority is a model that should be studied for application in
    the courts of appeals' en banc process. A similar ``4/9s'' rule might
    well work at the Circuit level.
        Other actions could better alert Circuit judges to the need for en
    banc review. For example, the recently amended Federal Rule of
    Appellate Procedure 35(b)(1) now requires litigants to set forth at the
    outset of any petition requesting en banc rehearing a summary statement
    regarding why the case creates an inter-Circuit or intra-Circuit split
    or involves a question of exceptional importance. In addition, opinions
    to be published that distinguish or disagree with existing precedent
    should be circulated among the judges of the Circuit for review before
    publication. Staff personnel could be deployed to act as an additional
    check in the review of panel decisions for potential conflict with
    other circuit decisions.
        Although a system of increased availability of rehearing en banc
    would require some investment of judicial resources, it seems likely
    that time expended en banc in clarifying the law of the circuit and
    resolving issues of exceptional importance would in the long run be
    repaid by a corresponding reduction in litigation and an enhanced
    ability of the Ninth Circuit as a whole to speak through the en banc
    procedure. The short-term costs of increased en banc review may well
    pay substantial long-term dividends.
        Improving the representativeness of the en banc panel. The Ninth
    Circuit should also consider methods of enhancing the
    representativeness of its en banc panel. The most direct way to do so
    is to increase the number of judges who sit on the en banc panel from
    13 judges to 15. With 15 judges, the Circuit's en banc decisions would
    properly represent the views of a majority of the Circuit's active
    membership. Except for the Chief Judge, these judges should be selected
    at random. Judges who call for en banc rehearing or who authored the
    three-judge panel's opinion should not automatically be placed on the
    en banc panel, for that might skew the representativeness of the panel,
    and the legitimacy of the resulting en banc opinion.
              * * * * *
        In the long term, we recognize that demographic changes in the
    Nation's population may well necessitate structural changes in the
    court of appeals system. If and when that occurs, the analysis
    contained in the White Commission's final report will provide valuable
    insight on the potential options to be considered. At this time,
    however, we believe that these non-structural alternatives should be
    explored first and that any structural reforms should be reserved for a
    time when these other alternatives are no longer workable.
              section 2a: regional division of other circuits \13\
    ---------------------------------------------------------------------------
        \13\ The version of S. 253 provided to us contains two section 2s.
    For ease of reference, we refer to the second section 2, which is
    entitled ``Assignment of Judges; Panels; En Banc Proceedings;
    Divisions; Quorum'' as section 2A.
    ---------------------------------------------------------------------------
        Section 2A of S. 253 would give all appellate courts with more than
    15 authorized judgeships discretion to adopt a divisional arrangement
    such as the one set out for the Ninth Circuit.\14\ These courts would
    be permitted to organize themselves into two or more adjudicative
    divisions, each capable of rehearing cases en banc. Each judge would be
    assigned to a specific division for a substantial period of time, and
    each division would exercise exclusive jurisdiction over the appeals
    assigned to it. Any Circuit that opted to reorganize itself would be
    required to create a Circuit Division modeled on the one set out for
    the Ninth Circuit, involving no more than 13 judges and convened solely
    to resolve ``conflict[s] [regarding issues of law] in the decisions or
    2 or more divisions.''
    ---------------------------------------------------------------------------
        \14\ Sec. 2A(a) (creating new 28 U.S.C. Sec. 46(d)).
    ---------------------------------------------------------------------------
        The Department of Justice does not support the recommendation that
    the remaining circuits be permitted to split themselves into semi-
    autonomous adjudicative divisions when they reach a certain number of
    judgeships. We do not believe such a significant change in the federal
    appellate structure is justified, particularly before non-structural
    alternatives of the type we have suggested are implemented and their
    effects evaluated.
        The implementation of a nationwide adjudicatory divisions plan
    would create for each circuit the types of problems we have identified
    in our discussion of the proposed changes to the Ninth Circuit.
    Moreover, widespread enactment ultimately would result in a completely
    restructured system overall, adding a fourth layer of review throughout
    much of the federal judicial system, creating differing paths of access
    to the Supreme Court depending on geography, and allowing varying
    bodies of law to be developed by numerous mini-courts of appeals in
    relative isolation from one another.\15\
    ---------------------------------------------------------------------------
        \15\ In addition, section 2A's proposal to create divisions in the
    courts of appeals may result in the development, over time, of even
    more complex and varied local rules of procedure. The Department has
    worked extensively with the Advisory Committee on Appellate Rules to
    develop simplified, centralized rules of appellate procedure and to
    reduce the number and range of local appellate rules. Section 2A gives
    considerable flexibility to the courts of appeals in creating
    independent divisional systems. Thus, we remain concerned that the
    proposed structural rearrangement could derail efforts to develop
    nationally uniform procedural rules.
        Moreover, the considerable leeway afforded to circuits other than
    the Ninth to develop divisions does not foreclose the possibility that
    circuits might create special subject-matter divisions. For the reasons
    the Department set forth in its submissions to the White Commission, we
    would be concerned about the creation of subject-matter divisions. Such
    a possibility would add an element of potentially great variability in
    practice and procedure among different areas of practice.
    ---------------------------------------------------------------------------
        As an alternative to section 2A, we recommend implementing
    experimental non-structural changes of the type described above with
    regard to the Ninth Circuit. At a minimum, we suggest that section 2A
    be deleted from S. 253 until such time as the existence of systemic
    problems in other circuits sufficient to warrant such a change has been
    found and to allow litigants and judges an opportunity to assess
    whether the proposed structural changes would improve the quality of
    justice.
                          section 2a: two-judge panels
        Section 2A of S. 253 would authorize federal appellate courts to
    use two-judge panels, and to allow the courts to designate by rule
    those case types suitable for such disposition. The legislation leaves
    it entirely to the court to determine when a case assigned to a two-
    judge panel should be referred to a three-judge panel for hearing or
    decision.
        The Department's experience with various screening procedures
    employed by the courts of appeals, including summary affirmance, leads
    us to question whether it is necessary for Congress to authorize two-
    judge panels and whether such panels would actually conserve judicial
    resources. We have further questions regarding whether this provision
    ensures both adequate procedures for assessing how cases are selected
    for decision by such panels and necessary safeguards for determining
    how a third judge is to be brought into the process when the two-judge
    panel reaches an impasse. We are also concerned about how this
    provision would affect the public's perception of the administration of
    justice by the courts. If the two-judge panel provision is to be
    adopted at all, we believe it would best be implemented as an
    experiment for a limited duration in a few courts to allow Congress,
    courts, and litigants an opportunity to assess the change.
               section 3: district court appellate panels (dcap)
        Section 3 of S. 253 would authorize judicial councils to create a
    ``district court appellate panel service'' with district and circuit
    judges from the circuit. The judicial council would specify categories
    of cases appropriate for DCAP jurisdiction and the panel would have
    exclusive jurisdiction over those cases. Although S. 253 is silent on
    this point, the White Commission opined that diversity cases would be
    likely prospects for DCAP jurisdiction, as well as sentencing appeals
    and cases that ``generally require the reviewer to apply well-settled
    legal rules to varying fact patterns.'' \16\ Panels created from the
    DCAP service would consist of two district judges and one circuit judge
    designated by the chief judge of the circuit. District judges would not
    review judgments from the courts on which they serve. Further review of
    decisions by a DCAP would be discretionary in the court of appeals. In
    addition, the panel itself could transfer a case to the court of
    appeals if disposition involved a determination of a question of law it
    deemed appropriate for the court of appeals.
    ---------------------------------------------------------------------------
        \16\ Final Report at 64.
    ---------------------------------------------------------------------------
        In our view, the use of DCAP services in the Courts of Appeals
    would likely result in a net cost to litigants and to the judicial
    system as a whole, even if it produced an incidental reduction in the
    burdens on the courts of appeals. Accordingly, we are not persuaded
    that the creation of DCAPs is warranted or desirable.
        First, the use of DCAPs would not reduce the overall judicial
    workload--instead, it would simply divert much of the workload for some
    appeals from busy appellate judges to busy district court judges.
    Although the factual justification underlying this legislative proposal
    is unstated, it may be a response to the statistical trends recorded in
    Table 2-3 of the White Commission's final report, which suggest that in
    the past century the per-judge caseload for circuit judges has
    increased five-fold while that for district judges has only
    doubled.\17\ Without a more careful analysis of the workload of
    district judges, however, it would be premature to base conclusions on
    those numbers alone. The statistics do not capture the increasing
    complexity of time-consuming pre-trial practice, trials, and sentencing
    proceedings, as well as district judge assignments to court of appeals
    cases. Absent more definitive data, it seems unwarranted to conclude
    that district judges are sufficiently underutilized that they may
    absorb the extra work contemplated by this provision. Indeed, overall
    the proposal may require even more judicial resources than are now
    required at both the district court and court of appeals level, because
    in at least some instances the court of appeals would grant permission
    to take a further appeal after a DCAP decision and would in any event
    have to consider requests for the exercise of discretionary review.
    Thus, the courts (as well as the parties) could incur the expense of
    conducting two appeals instead of just one before seeking Supreme Court
    review.
    ---------------------------------------------------------------------------
        \17\ Final Report at 14.
    ---------------------------------------------------------------------------
        Second, section 3 calls for judicial councils, rather than
    Congress, to determine the class of cases to be adjudicated by DCAPs.
    That assessment, however, involves policy decisions about the nature of
    the underlying legal disputes, including a substantive evaluation of
    the applicable law. Such significant policy decisions, such as whether
    diversity cases should be handled in a distinctive manner, should be
    made by Congress, rather than by the judicial councils.\18\
    ---------------------------------------------------------------------------
        \18\ Section 3 does not contain any formal recommendation
    concerning how diversity cases should be treated, so we have not
    included an analysis of that issue in this testimony.
    ---------------------------------------------------------------------------
        Moreover, we question whether the administration of justice would
    be served by creating a class of appellate courts inferior to circuit
    courts of appeals and assigning cases deemed to be less significant to
    them. Certainly service on such courts is not made to seem attractive
    as described in the White Commission's reports, since it seems unlikely
    that a circuit judicial council would assign the most interesting
    classes of cases to any court other than its own court of appeals.
    Finally, section 3 states that ``[f]inal decisions of district court
    appellate panels may be reviewed by the court of appeals, in its
    discretion.'' Such discretionary review raises the possibility that a
    litigant might be foreclosed from having the right to seek Supreme
    Court review of a decision that the court of appeals declined to
    review.
        For the foregoing reasons, the Department opposes section 3 and the
    creation of District Court Appellate Panels. At a minimum, this
    provision should be adopted only as a temporary pilot project that
    would operate in a single court, in carefully and explicitly designated
    categories of cases selected by Congress, and only for a limited period
    of time.
                               concluding remarks
        I have outlined the more important of the concerns of the Justice
    Department based upon its review of the Federal Ninth Circuit
    Reorganization Act of 1999. The White Commission has performed a
    valuable service in studying the United States court of appeals system
    and proposing ideas for its future organization. We are not, however,
    convinced that either its conclusions or any other data evidence a need
    for the structural reforms contained in S. 253. As we noted above, the
    provisions contained in S. 253 themselves risk creating greater
    inconsistencies in the law, greater delay in the resolution of cases,
    and greater challenges to the representativeness and legitimacy of the
    courts of appeals. Accordingly, while circumstances may one day warrant
    the adoption of structural changes, other measures should be tried
    first. We are committed to working with this Subcommittee and the Ninth
    Circuit to develop and, where appropriate, implement such proposals.
        I thank you for the opportunity to submit the views of the
    Department of Justice to this Subcommittee.

        Senator Grassley. For the record, my own absence, after
    12:05, is because I have other commitments in my State.
        I now call on Judge Browning.

                   STATEMENT OF HON. WILLIAM BROWNING

        Judge Browning. Senator, thank you.
        Senator Grassley. Would you take the microphone, please.
        Judge Browning. I am sorry. Thank you very much. I, too,
    appreciate the opportunity to appear before the committee and
    speak on behalf of the Commission, of which I was a member.
        Obviously, I join in the written remarks of Justice White
    and Justice Merit, Professor Meador, who was the executive
    director of our Commission, and Judge Rymer's remarks here
    today. I join in those without qualification.
        I think it needs to be said, not that I take any particular
    offense, that there was never, during the course of this
    Commission, almost a year's work, 10 months, and I made every
    meeting, save one when I was ill, a discussion about the
    political ideology of judges on the ninth circuit. Not once did
    that subject come up. Not once, even in jest, was there any
    reference to who appointed that judge. The review was
    dispassionate, it had to do not with ideological outcome of
    cases, but with the effectiveness of the court of appeals as an
    adjudicative body.
        I think Judge Wiggins has framed the disagreement that the
    Commission has with the current status quo very well, and that
    is they do not believe, those who support the current ninth
    circuit, that there is such a thing as it being too big. If in
    addition to the numbers Judge O'Scannlain set forth a moment
    ago, the court had a full complement of judges, senior judges,
    it would also have visiting judges in increasing numbers from
    other circuits who have no way to keep up with what the ninth
    circuit law is. They have a law clerk who tells them the
    highlighted cases that come to their attention, but they do not
    understand what the collegial approach to adjudication in the
    ninth circuit is.
        The same is true of my fellow district judges. I sit here
    with some trepidation with the court of appeals, but let me
    quickly distinguish myself. I am not a member of that court,
    and they are happier about that, I am sure, than I am. But I
    have sat with that court on many occasions, and I have sat with
    some of the judges testifying here today. I have never been
    treated with anything other than the utmost respect. I have
    never been subject to any criticism or comment, other than a
    disagreement honestly felt about my views, if that were the
    case. So that was never anything we discussed.
        We held six public hearings throughout this country, from
    New York to San Francisco. The two on the Pacific coast were
    the most, obviously, highly attended by ninth circuit judges. I
    posed the question at both of those hearings: How big is too
    big? I asked the leadership of the ninth circuit, I asked other
    members of the ninth circuit, and, ladies and gentlemen,
    Senators, I never got a response, which I take to mean, and
    which I think Judge Wiggins has reiterated, is that it cannot
    be too big.
        In 1954, the Ninth Circuit Court of Appeals voted among
    itself, with no prodding from this body or anyone else, to
    divide the ninth circuit. They were a much smaller court then,
    but they felt that the ninth circuit was unmanageably large,
    not in terms of the number of judges, but in terms of the
    geography and the difficulty in getting together to decide
    cases. Those problems have been resolved, in large part, by
    modern transportation. But it is interesting to note that the
    court voted internally to divide or recommend to Congress that
    it divide itself. That recommendation was forwarded to the
    judicial conference who joined in the recommendation and sent
    it on to the Congress.
        Six months later, the ninth circuit reversed itself and
    said we do not want to split or divide. The judicial conference
    also advised the Congress that the ninth circuit had done that
    and withdrew the proposed legislation.
        The next meaningful event was the 1973 Hruska report, of
    which Judge Wiggins was a member. That report identified
    virtually all of the problems we speak about here today, over
    20 years ago, over 25 years ago, and it is interesting that the
    ninth circuit now, since the issuance of the final draft of the
    White Commission report, has formed a committee to study these
    problems. And I can integrate them, but they are all problems
    that have existed for over 25 years. And respectfully, Senator
    Feinstein, I have not seen the legislation you propose to
    introduce, but it deals with problems that have existed for 25
    years. And one wonders why those problems are just now being
    addressed.
        In order to flesh out that observation, I would refer the
    committee to Justice Kennedy's letter to the Commission, which
    is attached to Judge Rymer's written remarks. He was a member
    of the Ninth Circuit Court of Appeals. He talks about personal
    experience, as well as his observations as a member of the U.S.
    Supreme Court. He notes that over 20 years ago the subject of
    division of the ninth circuit came up in court meetings, and
    people who advocated it, among them himself, were dissuaded by
    the ninth circuit's promise and effort, which was a good-faith
    and sincere effort, and no one has ever doubted that, to find
    procedural, administrative and other ways to alleviate the
    problems that have been identified here today.
        As Justice Kennedy says in his letter, that was a failed
    experiment. He went along with it as one of the detractors
    saying, ``All right. We should experiment. But after 25 years,
    we * * *'' in his words ``* * * have come no further.'' And I
    think that that is a particular telling letter, and I commend
    it to all of you.
        The next meaningful event was in 1984, when the fifth
    circuit split, and it split as a result of the recommendation
    in 1973 of the Hruska report. Reference has been made, I think
    by Senator Sessions and perhaps by panelists, about the split
    of that circuit.
        There is an interesting book, which I commend to all of
    you. The name of it is, ``A Court Divided,'' talking about the
    split of the fifth into the fifth and eleventh, as we know them
    today. That was not done, as Mr. Olson suggests, with a light
    heart and realization of problems superficially. That was done,
    grown men, experienced judges, who were in tears, as they voted
    to split that court.
        There was no less emotion in keeping that court together
    than today exists in the ninth circuit. What there was was a
    realization that they can no longer function as a unified
    court. That is what led to the split. I think that as one looks
    at that, one sees that the time has come for the ninth circuit
    to be divided.
        Opponents claim there is no objective evidence that the
    circuit needs to be split, yet a committee has been formed by
    the circuit leadership, by Chief Judge Hug, to look into the
    very matters we cite as objective evidence that it does need to
    be split: dispositional times, the inability of judges to keep
    abreast of the ninth circuit's output, things of that nature.
        I also commend, because it has been talked about today, the
    opinions of the U.S. Supreme Court Justices who responded to
    our inquiry; Justice Rehnquist, Justice Scalia, Justice
    Stevens, Justice Kennedy and Justice O'Connor, and Justice
    Breyer, who did not make a specific recommendation regarding
    the ninth circuit, but all of the others did. The remaining
    three; Justice Thomas, Justice Ginsburg and Justice Souter,
    declined to make any comment at all. But of those who commented
    and made recommendations, they unanimously recommend a circuit
    division or split. I think that is important not because of the
    reversal rate of the ninth circuit, though I will address that
    just briefly, but because these are the people who judge the
    work product of the ninth circuit. These are the people who see
    it and the results of it as judges, viewing judges, on a
    regular basis.
        With regard to the reversal rate, everything that is said
    about its minimal importance is true, but it is also true that
    the ninth circuit is the most reviewed circuit in the country.
    The U.S. Supreme Court takes more of its cases than anyone
    else's; it is the most reversed circuit in the country,
    according to Judge Justice Scalia, whose letter is also in the
    file, and I commend those figures to you in response to I
    believe Justice Hug's comments about that; it is the circuit
    reversed unanimously by the U.S. Supreme Court the most; and it
    is the circuit, when reversed, which draws the fewest dissents
    in the U.S. Supreme Court. There is some message there. The
    message has been out there for all to read and hear for years.
        I see, Senator, that my time has expired, and I do not want
    to impose upon you. It has been a long morning. I have more to
    say, and I will answer any questions. But if you wish me to,
    and you will allow me to, I will supplement these remarks in
    writing to shorten the hearing this morning.
        Senator Feinstein [presiding]. I thank you, Judge Browning,
    and I thank you for your comments.
        Let me just commend this panel. And it is wonderful for me
    to listen to each of you because your logic is crisp and your
    conclusions are definitive. And the precision with which you
    spoke was very much appreciated. So it was really a great treat
    for me, who listens to a lot of panels, to listen to all of
    you.
        I would like to proceed by making a few comments. And then
    asking each one of you to quickly reflect on these comments in
    any way you choose.
        I represent California. I do have that parochial interest.
    Although the State is so big it is hard to think of it
    sometimes as parochial. But the people of California whose
    legal concerns come before the Federal bar must be served by a
    unity of law within the State. To me, this proposal is
    powerfully flawed in that regard because in the urging of these
    three divisions, it balkanizes that unity of law, in my view.
        I would like to enter into the record some letters, two
    letters from the Los Angeles County Bar Association, dated
    April 14, and April 16, specifically on the proposal; a letter
    from Governor Wilson, dated April 15 of this year. And if I
    might quote one point: Governor Wilson--since we began
    discussing this 5 years ago--he has very eloquently made the
    argument of judicial gerrymandering. In his letter here, he
    says, ``This bill does the same, and it is worse because it
    would divide the West Coast into not two, but three segments,
    each with its own precedents not binding on the other regions
    and would add another layer of judicial review to appellate
    proceedings, adding delay and expense to adjudications.''
        [The information referred to is located in the appendix.]
        Senator Feinstein. I would then like to enter into the
    record a letter from the State Bar of California, dated May 17,
    1999, speaking about the proposal on behalf of virtually every
    large and major bar association in the State of California.
    They specifically cite L.A. County, San Francisco, San Diego,
    Beverly Hills, Alameda County, the Federal Bar, Northern
    District, Los Angeles and Orange County Chapters, the John
    Langston Bar, the Black Women Lawyers' Association and the
    Women Lawyers of Los Angeles, and the Lesbian and Gay Bar
    Association as well.
        So you have got a picture from the very diverse bars of the
    State of California.
        [The information referred to is located in the appendix.]
        Senator Feinstein. I would then like to offer a letter to
    me from Governor Gray Davis, dated July 7 of this year, and I
    would like to quote from it as well.

              The legislation would subdivide the appellate
            function of the ninth circuit into three semi-
            autonomous regional divisions and split the State of
            California in half. The northern part of the State
            would be placed in one division and the southern part
            of the State in another. The court's rulings in one
            division would not be binding on the other. I find this
            proposal to split the State alarming. Not only is the
            proposal untried and unproven, it creates a separation
            between north and south that is inimical to what I am
            attempting to accomplish as governor.
              We need to bring our people together and de-emphasize
            our differences. The Senate Bill 253 does just the
            opposite. Furthermore, splitting California between two
            divisions would likely result in inconsistent Federal
            rulings on important California laws; one ruling
            covering the north and a different ruling covering the
            south. As a result, businesses operating in California
            would be subject the conflicting State law, making it
            more costly to do business in California.
              The proposed legislation is also likely to foster
            more disputes and more litigation. For example, if a
            State law were found unconstitutional in the division
            covering Northern California, the decision would be
            binding only in that part of the State, leaving us with
            a law that is valid in the south and invalid in the
            north.
              While SB 253 creates a circuit division to resolve
            conflicts between divisions, that body is powerless to
            do anything until such time as an inconsistent decision
            is rendered by the division covering Southern
            California. Thus, it will be necessary to file a second
            suit in the second division to achieve uniformity in
            the law.
        [The information referred to is located in the appendix.]
        Senator Feinstein. Now, let me quote from comments of the
    U.S. Department of Justice on the draft report, in three
    places. On page 4 out of 15 pages, the Justice Department
    states that the proposal would unnecessarily delay the
    administration of justice. I am just quoting from a part of it.

              By adding another layer of review, the suggested
            ninth circuit restructuring would delay the completion
            of the judicial process for litigants. Following an
            adverse panel decision, an aggrieved litigant would
            seek en banc review by the division en banc court, as
            would now be true of the circuit as a whole. A denial
            of such a petition would, in many cases, precipitate a
            further request for rehearing at the circuit division
            level. Evaluation of a case for alleged conflicts with
            a decision of another panel would only add to what is
            already a protracted period for finally resolving
            cases.

        They go on to say, as I just stated from both governors'
    letters, that dividing California is undesirable, for
    essentially the same reasons. So it is in a more legalistic
    form, but I will not read that.
        So, why do I not just stop there and ask each of you to
    quickly, with your views, respond as directly as you can to
    these individual comments, and I will begin with the presiding
    Judge, Judge Hug.
        Judge Hug. Thank you, Senator Feinstein.
        I think one thing that is very important to recognize and I
    think Judge Rymer brought it out very well. These really are
    very separate courts. The divisions of the circuit court of
    appeals are very separate and as she indicated the circuit
    division, that 13-Judge one, really is going to, and as she
    envisions it operating, not have much to do with straightening
    out the law of the circuit.
        So, we really have three separate courts of appeals
    operating. And, as you mentioned, it does present a very real
    situation, a real problem with the State of California being in
    two separate divisions. And I can see, say, for example, one of
    the controversial propositions, having been interpreted by,
    say, the middle division, and in the meantime, say, for
    example, it is held unconstitutional, we do not have a
    resolution of it in the Southern Division, where California is
    involved. So, we have two with no binding precedent. If the
    Supreme Court does not take it up, we have got two situations
    between the two divisions in California. It is a very serious
    problem.
        It is a serious problem for the whole circuit for that same
    reason. I think that there are more subtle differences also
    that, for example, a search and seizure resolution of how
    appropriately to search a house. If you are going to have
    different resolutions to that in these different divisional
    courts, that is going to present real serious problems and is
    going to be contrary to keeping a development of a total
    circuitwide law.
        Senator Feinstein. Judge Hug, in the interest of fairness I
    do not want to cut you off but I have to. I have a 1 o'clock
    plane.
        Judge Hug. OK.
        Senator Feinstein. So, we need to go rather rapidly and I
    want to give everyone a chance to respond.
        Judge Hug. That is all I had to say.
        Senator Feinstein. Thank you very much.
        Judge Rymer.
        Judge Rymer. The short answer to your question is then do
    not divide California between two divisions. There is no magic
    to that. It is sensible, in my judgment, because I think
    eventually that is going to have to happen because in order to
    service the people of California more judges will be required
    than can function effectively together as a single
    decisionmaking unit. But that is the short answer.
        The long answer is also short and that is that putting
    parts of the State of California into different divisions will
    exactly mirror what the State of California has done for
    itself. Because it is precisely the same structure that the
    California Court of Appeals has got, precisely. So, it will
    create no new problem that California does not already have,
    does not live with, has not adjusted to, very, very well.
        Finally, with respect to things like Constitutionality of
    State propositions, it is something I simply do not understand.
    If, as Judge Hug suggests, one division says that a ballot
    proposition is unconstitutional that is going to win and the
    Governor of the State is going to be enjoined, period. He
    cannot enforce that ballot proposition. So, I do not understand
    the problem. It exists in the State of California now. And one
    final note.
        California----
        Senator Feinstein. Would you comment on the search and
    seizure argument, which is a little different than a ballot
    measure?
        Judge Rymer. Sure.
        Sure. It is a difference. If there comes to be a difference
    between what the northern division says about search and
    seizure and the southern division, it is a difference that does
    not matter to anyone. Because only the lawyers in the district
    courts within each division will be bound by that division's
    law. They only have to be concerned that the divisional law is
    consistent.
        It just does not matter if the law is the same throughout
    the West. If it does matter and if there is a square conflict,
    then the circuit division can, in fact, step up to the plate
    and resolve it if uniformity of the law throughout the Western
    part of the United States is, in fact, crucial.
        Senator Feinstein. Thank you.
        Judge Kleinfeld.
        Judge Kleinfeld. Thank you, Senator.
        Your concern about dividing California strikes me as
    serious and well-taken. I do not think it affects the
    Northwest. It seems too bad to saddle the Northwest and the
    other parts of the circuit with a decisional body that is too
    big to work effectively because of concerns about dividing
    California.
        It may be that simply changing the divisions around so that
    California is not divided would be to reconcile these
    interests. California could be its own division or it could be
    a division with one or two other States, instead of being
    divided as the Commission says and you could still keep the
    commission structure.
        The second thing that occurs to me is you already have
    incoherence of Federal appellate law in California. Right now,
    it is not because of a difference between North and South, it
    is because we are too big to work effectively as a decisional
    body.
        We have decisions in death penalty cases out of California
    that I cannot reconcile. And the only way that I can make any
    sense of them is that different panels decided them. We are too
    big to work effectively and create coherent law for California
    as it is.
        Senator Feinstein. Thank you very much.
        Judge Scannlain.
        Judge Scannlain. Senator Feinstein, I tend to be pretty
    pragmatic. And if the California member of the Senate Committee
    on the Judiciary has expressed profound concerns about putting
    California into two separate divisions or two separate
    circuits, then it is not going to happen, and I would not want
    to force that issue in any possible way.
        It seems to me what that counsels is that S. 253 is going
    to have to go through some modification and either California
    becomes its own separate division or that California, perhaps
    some day if not sooner, becomes its own separate circuit.
    Something will occur with respect to California which will
    respond to the underlying problem and I gather there is a fair
    amount of agreement, Senator. I see no reason at all why some
    of your suggestions could not be taken into account in the
    legislation that you are proposing which I have not yet seen
    but which has been described so far.
        But I wish, on the other point, I wish Senator Torricelli
    were here because he might be rather mystified by the curious
    argument from people on the west coast that somehow they are
    sacred and they cannot have separate circuits compared to the
    east coast.
        Senator Feinstein. You do not believe we are sacred?
    [Laughter.]
        Judge Scannlain. On some things, absolutely.
        But the whole idea that you cannot have separate circuits
    in the west coast is really frankly just not worth pursuing.
    You have got the first, second, third, fourth and the eleventh
    on the Atlantic Coast and as far as I know those freighters are
    not colliding any more frequently because they do not know what
    the law is than the freighters going from the west coast to the
    Far East.
        So, those are my responses.
        Thank you, Senator.
        Senator Feinstein. Thank you, Judge.
        Judge Wiggins.
        Judge Wiggins. There is not a problem, do not fix it. I
    would not address these problems by creating a new circuit.
    Leave well enough alone. That is my answer, do not address it.
        Senator Feinstein. Thank you very much.
        Judge Browning.
        Judge Browning. Senator, my remarks would not be remembered
    so much for what they are as for the fact that they made you
    miss your plane, so, I will be brief. [Laughter.]
        Senator Feinstein. That is a good adaptation, actually.
        Judge Browning. Let me just comment. All of the comments
    that have been made to the point you raised, I would agree to.
    I want to comment only on the layer of review. There is exactly
    the same review today as this Commission report proposes. They
    are called by different names, but they have the same number of
    appeals.
        What has not been said and what this committee, I think,
    should study and look into is that since the limited en banc
    procedure has gone into effect in the ninth circuit, which I
    believe was 1973 or 1974, there has also been a procedure where
    the ninth circuit can set en banc, meaning entire judicial
    panel would sit. That has never in the history of the ninth
    circuit been used. That does not mean it is not available. It
    just means that ninth circuit judges, for whatever reason--and
    I suspect their workload is a big part of it--have not seen fit
    to go en banc with a full panel.
        So, the Governor's comment about an additional layer of
    review, I think, omits that simply because it has never
    happened but it exists. It is there. And I am sure my friends
    on the ninth circuit will tell you they receive petitions every
    month of lawyers who ask them to convene that huge 28-judge
    panel. But the lairs have been so far unsuccessful.
        With regard to the admiralty question it is not a big
    concern in Arizona so I will leave it to others. [Laughter.]
        Senator Feinstein. Thank you very much.
        Thank all of you very, very much. I think it has been a
    very interesting hearing. Clearly the issues have been joined
    and the dialog will continue. And I want to thank you on behalf
    of our Chairman, Senator Grassley, as well, and this hearing is
    adjourned.
        [Whereupon, at 12:32 p.m., the committee was adjourned.]
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                             Questions and Answers

                                  ----------

                                   Munger, Tolles, & Olson LLP,
                                      Los Angeles, CA, August 19, 1999.
    The Honorable Charles E. Grassley,
    U.S. Senate Committee on the Judiciary, Subcommittee on Administrative
            Oversight and the Courts, Washington, DC.
        Dear Senator Grassley: I am writing in response to your letter of
    July 29, which arrived while I was out of the office on business and
    vacation. I apologize for the tardiness in responding.
        Taking your questions as presented, I have the following responses:

        Responses of Ronald L. Olson to Questions From Senator Grassley

                           i. destroyed collegiality
        Answer 1. Certainly there is some correlation between the size of
    an institution and the intimacy of its members.\1\ However, in my
    opinion, as an active advocate and court watcher, the size of the Ninth
    Circuit has not interfered with the collegiality needed for sound
    judicial decision-making. Well-over 90 percent of the judicial
    decision-making occurs within 3-judge panels. Hence, the overall size
    of the circuit is secondary to how well these 3-judge panels relate.
    Here, my experience suggests that individuals on 3-judge panels are not
    only cordial with each other but genuinely interested in sharing views
    and analysis in a way that leads to a prompt and fair decision. At
    least 3 factors bear on this experience:
    ---------------------------------------------------------------------------
        \1\ Nonetheless, this point should not be overstated, either with
    respect to better decision-making or intimacy itself. Some 32 years
    ago, I clerked on the United States Court of Appeals for the D.C.
    Circuit, then a very small court sitting together on a single floor of
    the Courthouse. Despite its small size and physical intimacy, two of
    the more prominent judges not only disagreed philosophically and in
    judicial decisions but refused to speak to each other and communicated
    only by formal memoranda.

      (a) Typically, each panel comes together for a full-week of argument,
        shared analysis and tentative decision-making. This intense shared
        professional relationship may well promote more ``collegiality'' in
        decision-making than one would have in an environment of fewer
        circuit-wide judges sitting more randomly with each other and for
    ---------------------------------------------------------------------------
        shorter time periods.

      (b) Second, it is obvious that, because of its size, the Ninth
        Circuit makes an extra effort to maintain professional collegiality
        through in-person and tele-picture conferences and through its
        existing administrative offices in San Francisco and Pasadena.

      (c) Third, the important collegiality is that which stimulates
        communication related to decision-making. With the help of a
        sophisticated clerk's office that codes issues in each case, judges
        are prompted to have timely communications with other judges who
        have expressed themselves on related matters. Further, I would
        argue that important professional collegiality, such as that which
        occurs at the annual circuit conferences, is enriched by the
        presence and participation of a greater number of judges. Indeed,
        my personal experience in other professional settings is that the
        smaller the group, the more personal and social the experience, and
        the larger the group, the more professional the experience.
                          2. quality of court opinions
        Answer 2. I know of no meaningful analysis of the comparative
    quality of federal court appellate opinions. I would argue that in the
    Ninth Circuit the depth and accuracy of legal analysis, the integrity
    of the process and the results, and the timeliness of opinions
    (especially if adjusted to account for the Ninth Circuit's work for so
    long without a full complement of authorized judges) is equal to that
    of any other circuit in the country. I would further argue that the
    1997 Supreme Court reversal rate for the Ninth Circuit is a meaningless
    indicator of the ``quality of opinions.'' I am personally familiar with
    many of those Ninth Circuit opinions and know them to present very
    difficult policy questions on which the Supreme Court itself was
    divided and know that the alternative result of the Ninth Circuit was
    generally supported by sound analysis and judicial integrity. I would
    further note that Justice Scalia's reliance on reversal rates to
    support the view that the Ninth Circuit is consistently out-of-step
    with the Supreme Court is not borne out in more current years, not
    borne out by a longer-term analysis than years referenced by Justice
    Scalia, and, in any event, is essentially meaningless. Different views
    are not dishonest views and may well be constructive as part of the
    national debate on difficult policy questions. Nor does a different
    result indicate that the decision is less well-reasoned or less well-
    expressed or have less integrity. In any event, there is no known
    correlation between the size of the circuit and ``getting it right''
    with the Supreme Court.
                         3. timely disposition of cases
        Answer 3. The experience of our law firm suggests that the Ninth
    Circuit is timely in reporting its decisions. However, I know that your
    committee and the Ninth Circuit have access to complete statistics for
    the Ninth Circuit and for other circuits, and I would, therefore, defer
    to those statistics. However, the speed of decision-making is not, in
    my opinion, meaningfully related to the size of the circuit. As noted
    before, most decisions are made by 3-Judge panels and most opinions are
    written by a single judge. The diligence of the individual judges on
    the panels and writing the opinions overwhelms any other factor in
    determining timeliness. Finally, it must be noted that the Ninth
    Circuit has long labored with less than a full complement of authorized
    judges. In my opinion, filling judicial vacancies would have a far more
    positive effect on timeliness than reorganizing the existing circuit.
    Indeed, the proposed tripartite division would seem likely to slow the
    disposition of those cases that received the additional review by the
    circuit division.
                 4. what evidence would support reorganization?
        Answer 4. My answer to this question is articulated best by the
    ``Proposed Long Range Plan for Federal Courts,'' adopted by the
    Judicial Conference of the United States in December 1995, and the
    resolution adopted by the House of Delegates of the American Bar
    Association in August 1999. Both of these policy-making bodies agree
    that restructuring should not occur without ``compelling empirical
    evidence to demonstrate adjudicative dysfunction.'' An aberrational
    case such as Hughes Aircraft Company vs. Jacobson occurs from time to
    time in most circuits. An occasional aberrational case does not equal
    ``compelling empirical evidence'' of adjudicative dysfunction. Nor is
    there any indication that the unacceptable delay associated with Hughes
    Aircraft was attributed to the size of the Ninth Circuit.
        In conclusion, I again thank you, Senator Grassley, and the
    Judiciary Subcommittee on Administrative Oversight and the Courts for
    your attention to this important matter and for giving me the
    opportunity to participate in the hearing. If I can be of any further
    assistance, please let me know.
                Sincerely yours,
                                       Ronald L. Olson.
                                   __________

        Responses of Procter Hug, Jr. to Questions From Senator Grassley

        Question 1. The commission has suggested allowing appellate courts
    to use panels of two judges--instead of the traditional 3 judge
    panels--to hear appeals. However, the legislation does not offer a
    solution where there is a split between the judges on a two judge
    panel. How should such a disagreement be handled?
        Answer 1. The two judges assigned to such panels will rarely
    disagree because the panels would ``primarily'' decide ``cases in which
    the outcome is clearly controlled by well-settled precedent.'' (Report
    at 63.) If disagreement or doubt does arise, the Commission recommends
    the two judges ``enlist a third judge to participate in the decision,
    or refer the case to a regular three judge panel for hearing.'' (Id.)
    Either alternative would provide an efficient and effective mechanism
    for resolving the few disagreements that might occur. We have
    successfully employed similar procedures in the screening program
    maintained by our Court.

        Question 2. The Commission states that the Circuit Division should
    only hear ``square conflicts'' between the regional divisions. Critics
    argue that this will cause the law of the different regions to drift
    apart over time and erode the uniformity of circuit law to the point
    where the law of the circuit is insignificant. On the other hand, if
    the circuit division takes more than ``square conflicts'' in order to
    provide more uniformity in the circuit, it will be operating like
    another full layer of appeal. What is likely to be the practical way in
    which the circuit division operates and what consequences will this
    have on the circuit as a whole?
        Answer 2. The dilemma exposed by Senator Grassley's question
    provides yet another persuasive reason for rejecting the divisional
    structure proposed by the Commission. At a minimum, the circuit
    division will create an additional layer of appeal before finality,
    compounding the delay, cost, and administrative burdens of the
    appellate process. Limiting the jurisdiction of the circuit division to
    resolving ``square interdivisional conflicts,'' (Report at 45), will
    generate additional litigation and leave questions of exceptional
    importance unresolved in the Ninth Circuit. Three autonomous,
    adjudicative divisions will erode the uniformity of circuit law, and
    ultimately create more work for the Supreme Court.
                                     ______

        Responses of Procter Hug, Jr. to Questions From Senator Thurmond

        Question 1. Judge Hug, as you know the size and number of the
    Federal Circuits has changed over time as the country has grown. In
    1929, the Tenth Circuit was created, in 1981, the Eleventh, and in 1982
    the Federal Circuit was created. Indeed, Judge O'Scannlain testified
    that ``There is nothing sacred about the Ninth Circuit's keeping
    essentially the same boundaries since 1855. The only legitimate
    consideration is the optimal size and structure for judges to perform
    their duties.'' Do you disagree with this statement of Judge
    O'Scannlain, and is it your belief that the Ninth Circuit should never
    be split no matter how large it gets?
        Answer 1. I do not disagree with Judge O'Scannlain's statement that
    optimal size and structure for the court of appeals to perform its
    duties should be the primary consideration. However, no one knows what
    the optimal size of the Ninth Circuit (or any other circuit, for that
    matter) may be. The Commission conceded that the size of a circuit, and
    its resulting effects on the consistency and predictability of its
    decisional law, are ``too subtle * * * to allow evaluation in a freeze-
    framed moment.'' (Report at 40.) We do know, however, based on our
    experience over the last fifteen years, that twenty-eight judgeships
    are not too many to enable the court of appeals to operate effectively.
    I agree with the Long Range Plan of the Federal Courts, adopted by the
    Judicial Conference of the United States, that no circuit should be
    split unless or until there is ``compelling empirical evidence'' that
    it is not functioning effectively. (Judicial Conference of the United
    States, Long Range Plan for the Federal Courts, at 44 (1995).) The
    Commission failed to meet that burden.

        Question 2. Judge Hug, the Commission's report recognizes a
    consensus among appellate judges that in order to function effectively
    a court of appeals should be made up of no more than seventeen judges.
    Of course, the Ninth Circuit is beyond that number with 28 judges. Do
    you disagree with this consensus of the Appellate judges? Please
    explain.
        Answer 2. Yes, I disagree. If you look closely at the Commission's
    working papers you will see that the Commission's ``consensus''
    includes views of judges on courts that have never had more than 17
    judges. The response from the judges on the only federal appellate
    court that has exceeded that number--the Ninth Circuit--are quite
    different: \2/3\ of the judges (and lawyers) of the Ninth Circuit are
    satisfied that the present court of appeals is functioning well with 28
    judges, and should not be restructured. When our court of appeals grew
    from 3 to 7, 7 to 9, 9 to 13, 13 to 23, and 23 to 28, critics
    proclaimed that the court had exceeded its maximum practicable size
    before the new judges arrived. They were wrong. As I testified, I
    believe we have effectively demonstrated that a large court of appeals
    can function well, delivering quality justice and coherent, consistent
    circuit law in the face of an increasing workload.
                                   __________
                          U.S. Court of Appeals, Ninth Circuit,
                                        Fairbanks, AL, August 11, 1999.
    The Honorable Charles E. Grassley,
    Chairman, Subcommittee on Administrative Oversight and the Courts,
            Committee on the Judiciary, U.S. Senate Washington, DC.
        Dear Senator Grassley: Thank you for your perceptive questions
    about the White Commission Report. Below I restate the questions and
    Then give my answer.

      Responses of Andrew J. Kleinfeld to Questions From Senator Grassley

        Question 1. Many have expressed a concern about splitting the State
    of California, into two regions. I am interested in any drawbacks there
    would be to a plan that would arrange The divisions differently by
    keeping California intact in one region. What drawbacks would there be
    to such a plan? On the other hand, what advantages does splitting
    California between divisions offer that outweigh the potential problems
    of forum shopping?
        Answer 1. I also have doubts about the desirability of splitting
    California into two federal appellate divisions. As the While
    Commission points out, California already has multiple appellate
    divisions in its state court system and the inter-divisional, en banc
    could reconcile conflicts. Nevertheless, a simple split of The Ninth
    Circuit as Congress did with the Eighth and the Fifth, with all of
    California left in the remaining Ninth Circuit, seems like a better
    idea to me. The White Commission report's general scheme could be kept,
    with the divisions altered somewhat, to avoid splitting California. For
    example, California could be one division, Alaska, Washington, Oregon,
    Idaho, and Montana another, and Arizona, Nevada, and Hawaii a third.
    But even if The White Commission Report is adopted as is, I think it is
    better for California than the status quo. Because the Ninth Circuit is
    too big for us to read each other's decisions, or maintain an effective
    en banc procedure, California already lacks coherent federal law.
    Instead of one coherent body of law for Northern California, and
    another coherent body of law for Southern California, federal appellate
    law for California now depends much too much on the composition of the
    particular panel.

        Question 2. What extra costs, if any, would be involved with
    implementing S. 253? Would you see any increase in any personnel
    positions, including judgeships?
        Answer 2. My guess is that splitting the Ninth Circuit would save
    money, not cost money. It would have no effect on the number of
    judgeships necessary. However the circuit is split, judges could be
    allocated according to the percentages of the caseload going to the new
    circuits or new divisions. It is possible that the complexity of The
    White Commission plan would require some additional administrative
    assistance, but I am not at all sure that this is true. If we had a
    simple split of the Ninth Circuit, probably administration would cost
    less, because it is always simpler to administer a smaller unit. I do
    not see any difference in needs for buildings according to whether we
    are one circuit, two, or three, or one, two, or three divisions. If we
    were to split the circuit and require 21 Northern headquarters, there
    is a substantially vacant federal court building in Portland, the Gas
    Solomon Courthouse, which could be used for this immediately. Once a
    new district court facility is constructed in Seattle, the now shared
    federal courthouse in Seattle would also be an entirely appropriate and
    adequate headquarters.

        Question 3. The commission has suggested allowing appellate courts
    to use panels of two judges--instead of the traditional 3 judge
    panels--to hear appeals. However, the legislation does not offer a
    solution where there is a split between the judges an a two judge
    panel. How should such a disagreement be handled?
        Answer 3. There are several possibilities for handling
    disagreements between two judges on a two judge panel. The one that
    commends itself to me is for the two judge panel to refer the case back
    to the clerk's office for reassignment to a three judge panel. The
    court could decide by general order or a circuit rule whether the same
    two judges should be on the three judge panel automatically, if they
    volunteer, or only if they are drawn according to the random process.
    We do something like this in our screening process for simple cases. A
    three judge panel either adopts a staff recommendation after a quick
    look at the case, or asks the clerk's office to assign it to a regular
    three judge panel for fuller consideration.

        Question 4. Opponents of the Commission's proposal say that there
    is no evidence that justifies reorganizing the Ninth Circuit. In your
    opinion, is there evidence that would justify such a reorganization?
    Specifically, what is it (please give examples if possible)? And if
    such evidence does not exist at this time, what sort of evidence would
    justify a reorganization?
        Answer 4. The clearest evidence that reorganization is necessary is
    that a majority of Supreme Court Justices have said that it is. They
    review what we do, and they think repair is needed.
        A clear example of the kind of distortion that can occur when fewer
    than all the judges on a court serve on an en banc panel is in Thompson
    v. Caldero, 120 F.3d 1045 (9th Cir. 1997) (en banc). In this case, as
    the dissents make clear, a majority of the en banc panel, but a
    minority of the court, made a surprising decision in a death penalty
    case, which the dissenters believed was outside the scope of the en
    banc call. In any other court, the scope of the en banc call would be
    of little importance, but where fewer than all the judges serve on the
    en banc panel, the scope of the call is critical, because it represents
    the only time that the entire court votes. The Supreme Court later
    characterized what the majority of our en banc panel (but a majority of
    our court) did as ``a grave abuse of discretion.'' Calderon v.
    Tbompson, 523 U.S. 538, 542 (1998). Whether a man lives or dies should
    not depend on who happens to be drawn for a panel.

        Question 5. The Commission states that the Circuit Division should
    only hear ``square conflicts'' between the regional divisions. Critics
    argue that this will cause the law of the different regions to drift
    apart over time and erode the uniformity of circuit law to the point
    where the law of the circuit is insignificant. On the other hand, if
    the circuit division takes more than ``square conflict'' in order to
    provide more uniformity in the circuit, it will be operating like
    another full layer of appeal. What is likely to be the practical way in
    which the circuit division operates and what consequences will this
    have on the circuit as a whole?
        Answer 5. It is hard to predict just how the circuit division will
    develop, because the idea is new. My hope would be that the circuit
    division would take very few cases, so that it would not turn into an
    expensive additional layer of appeal for the parties. I see no harm in
    having the different regions of the circuit drift apart with regard to
    substantive law, especially if California is left as one division,
    perhaps with Arizona, Nevada, and Hawaii as the Southern division.
        There is no more of an intrinsic problem with California, Idaho,
    and Arizona taking different views than in New York, Illinois, and
    Texas taking different views on issues of federal law, New York,
    Illinois, and Texas are in different circuits and do exactly that.
    Likewise, Massachusetts, New York, Virginia, and Florida, though all
    East Coast states, are all in different circuits. It simply is not a
    problem. Supreme Court Justices have frequently characterized the
    differing views of the circuit as a public benefit, because the Supreme
    Court can then see how the issue develops as it ``perculates'' in the
    circuits.
                Sincerely yours,
                                       Andrew J. Kleinfeld/bgf,
                                                         Circuit Judge.
                                   __________

    Responses of Diarmuid F. O'Scannlain to Questions From Senator Grassley

        Question 1. Many have expressed a concern about splitting the State
    of California into two regions. I am interested in any drawbacks there
    would be to a plan that would arrange the divisions differently by
    keeping California intact in one region. What drawbacks would there be
    to such a plan? On the other hand, what advantages does splitting
    California between divisions offer that outweigh potential problems of
    forum shopping?
        Answer 1. The most serious drawback of keeping California intact in
    one region is that the resulting division would be disproportionately
    large, whether measured in size of population or caseload. California
    now has 63 percent of the Ninth Circuit's total workload and about the
    same proportion of population. If California were kept intact by itself
    and the remainder of the states divided between two other divisions,
    the California division would have more than triple the workload of
    each of the other two divisions (enough, incidentally, to justify being
    a stand alone circuit by itself, which wouldn't be a bad idea
    alternative, by the way).
        I have never been impressed by the ``forum shopping'' charge. As
    the White Commission recognized, litigants in California are already
    free to choose the district court in which they file. Any ``division
    splits'' could be quickly and expeditiously resolved whether by the
    Circuit Division in the proposed legislation or by an intercircuit
    panel if Option C were adopted.
        In any event, I would not object to an all-California division as a
    consensus compromise to accommodate the regional interests involved.

        Question 2. What extra costs, if any, would be involved with
    implementing S. 253? Would you see any increase in any personnel
    positions, including judgeships?
        Answer 2. New courthouses would not be required in either the
    Southern or Middle Divisions, because the current spacious Pasadena and
    San Francisco courthouses would presumably serve as the headquarters of
    those divisions, respectively. There is an empty federal courthouse in
    Portland, Oregon, the ``Gus J. Solomon Federal Courthouse,'' which
    would be available at no cost (except minimal remodeling) as the
    Northern Division headquarters if Congress agrees so to designate.
        I do not believe that the implementation of S. 253 would require an
    increase in the number of judgeships. Further, the existing court
    personnel both the staff attorneys and the administrative personnel
    would simply be reallocated among the three divisions.
        The geographical expansiveness of our present circuit requires
    judges to expend considerable time and resources traveling from distant
    cities to panel hearings and court hearings, which are primarily in
    California. S. 253 would do much to curtail extensive travel expense.

        Question 3. The commission has suggested allowing appellate courts
    to use panels of two judges--instead of the traditional 3 judge
    panels--to hear appeals. However, the legislation does not offer a
    solution where there is a split between the judges on a two judge
    panel. How should such a disagreement be handled?
        Answer 3. I agree with the White Commission that federal appellate
    courts would benefit from having the flexibility to adjudicate some
    cases using two-judge panels, because this proposal would conserve
    resources without any loss in fairness. If the judges on a two-judge
    panel disagree over how to resolve the case, a third judge, drawn at
    random, would be enlisted (as we do now on two-judge motions matters)
    or the case would be calendared for consideration by a regular three-
    judge panel.

        Question 4. Opponents of the Commission's proposal say that there
    is no evidence that justifies reorganizing the Ninth Circuit. In your
    opinion, is there evidence that would justify such a reorganization?
    Specifically, what is it (please give examples if possible)? And if
    such evidence does not exist at this time, what sort of evidence would
    justify a reorganization?
        Answer 4. There is much evidence that justifies reorganizing the
    Ninth Circuit. First, after careful analysis, the White Commission
    concluded that any court with more than eleven to seventeen judges
    lacks the ability to render clear, circuit-consistent, and timely
    decisions, and I agree. In light of this finding, the Ninth Circuit,
    with 28 authorized judgeships (not to mention our 19 senior judges),
    has far more than the maximum number of judges with which a circuit can
    function effectively.
        Second, as several Supreme Court Justices have commented, the risk
    of intracircuit conflicts is heightened where a circuit publishes as
    many opinions as the Ninth Circuit does. Frankly, we are losing the
    ability to keep track of our own precedents. As Judge Rymer reported,
    only about half the Ninth Circuit judges read all or most published
    opinions. It is imperative that judges read opinions as they are
    published, since this is the only way to stay abreast of circuit
    developments as well as to ensure that no intra-circuit conflicts
    develop and that, when they do, they be reconsidered en banc.
        Third, as the Commission reported, a disproportionately large
    number of lawyers indicated that the difficulty of discerning circuit
    law due to conflicting precedents was a ``large'' or ``grave'' problem
    in the Ninth Circuit. From my own experience since 1986, I can tell you
    that this problem has worsened notably as the work of the court has
    grown.
        Fourth, the Ninth Circuit's limited en banc system has not worked
    well to promote consistency of law, which can only be guaranteed by
    regular full court en banc rehearings. Several Supreme Court Justices
    have criticized the court for failing to rehear a sufficient number of
    cases en banc.

        Question 5. The Commission states that the Circuit Division should
    only hear square conflicts'' between the regional divisions. Critics
    argue that this will cause the law of the different regions to drift
    apart over time and erode the uniformity of circuit law to the point
    where the law of the circuit is insignificant. On the other hand, if
    the circuit division takes more than ``square conflicts'' in order to
    promote more uniformity in the circuit, it will be operating like
    another full layer of appeal. What is likely to be the practical way in
    which the circuit division operates and what consequences will this
    have on the circuit as a whole?
        Answer 5. The jurisdiction of the Circuit Division appropriately
    balances the two competing needs identified by Senator Grassley. By
    having Jurisdiction only over ``square conflicts,'' S. 253 will promote
    uniformity of the law of the circuit, but avoids creating a full
    additional layer of appeal. I must concede, however, that it is
    difficult to predict exactly how the Circuit Division will operate in
    practice.

        Question 6. The report states that one concern in dealing with the
    Ninth Circuit is the need to ``respect the character of the West as a
    distinct region.'' However, this region of the country is by no means
    homogeneous. Why are states on the west coast so similar to other
    states that they need to remain in the same circuit?
        Answer 6. The notion that the West has a distinct character which
    immunizes it from the normal evolution of federal judicial institutions
    is, quite frankly, a joke on Congress. If any American region has a
    distinct character, it would be the South which now spans three
    circuits, the most recent split having occurred in 1980 by carving out
    Alabama, Florida, and Georgia from Louisiana, Mississippi, and Texas
    into the Eleventh Circuit. And while we're at it, what about the law of
    the Midwest? The Sixth, Seventh, and Eighth Circuits all include states
    in the Midwest, yet no one seriously contends that having three
    circuits has been deleterious to the development of the law of that
    region.
        The argument that we need to keep the circuit together so that we
    can retain a consistent law for the west coast is also absurd. The
    states along the eastern seaboard are divided among five different
    circuits. I challenge critics of S. 253 to produce evidence that the
    failure to keep all the states on the east coast in the same circuit
    has produced deleterious effects. Are freighters colliding more
    frequently off Cape Hatteras or Long Island than the Pacific Coast
    because of the uncertainties of maritime law on the East Coast? Of
    course not.
                                   __________
                           U.S. Court of Appeals Ninth Circuit,
                                         Las Vegas, NV, August 3, 1999.
    Hon. Charles E. Grassley,
    Chairman, Subcommittee on Administrative Oversights and the Courts,
            Committee on the Judiciary Washington, DC.
        Dear Chuck: I was pleased to appear before your committee and am
    willing to respond to the questions you asked in subsequent
    correspondence.
        First, you should appreciate that I do not support the proposed
    legislation now pending in the Senate. I would recommend that you avoid
    the problem entirely by rejecting the legislation. Nevertheless, I am
    willing to respond further to your inquiries.

       Responses of Charles E. Wiggins to Questions From Senator Grassley

        Answer 1. The first suggestion is to substitute in certain classes
    of cases appellate panels of two judges instead of three. You have
    asked me to comment on the possibility of a split between the appellate
    panels of two. The legislation is silent on this possibility. I would
    recommend that if the appellate panels of two are provided for in
    legislation, the possibility of splits must be resolved by referring
    the split panel to a third judge who should participate in the
    proceedings. I have observed that the Commission has proposed a
    reduction in size of panels for the handling of routine cases but
    insists on enlarging the en banc court to provide a full review of the
    two judge panel decision. I think that this is an inconsistent proposal
    which should be rejected by the Senate. Nevertheless, circuits should
    be permitted to examine options to the traditional three judge panels
    in certain categories of cases. I see no disability in their doing so
    now.

        Answer 2. The second question raises the issue of the resolution of
    ``clear conflict'' by regional divisions. The proposal is not worthy of
    further consideration by the Senate. It is a product of the divisional
    concept recommended by the White Commission. I reject that proposal in
    its entirety. I would predict that the resolution of square conflicts
    between the divisions will unsettle the law of the circuit.
        I doubt that you will accept my recommendations, Chuck, but I have
    given a great deal of thought to this issue and have concluded that the
    Ninth Circuit is not too large and does not need correcting. The Courts
    of Appeal of other circuits should be restructured and should be
    combined to promote larger and fewer circuits. The growth in population
    and the evident inability of Congress to limit the subject matter
    jurisdiction of the Courts of Appeal make the consideration of
    consolidation an inevitable solution.
                Warmest personal regards,
                                            Charles E. Wiggins.
                                   __________

     Response of Jon P. Jennings, Acting Assistant Attorney General, to a
                         Question From Senator Grassley

        Question 1. Those who support the Commission's proposals cite a
    lack of collegiality and the current en banc procedure as major
    problems with the Ninth Circuit. Since you do not support the
    Commission's proposals, what, if anything, would you propose to
    alleviate these problems?
        Answer 1. As we observed in our written testimony, the Justice
    Department believes that the three primary goals that the Ninth Circuit
    Court of Appeals strives to achieve are consistency of its decisions,
    efficiency in resolving cases, and the appearance that all of its
    decisions reflect the views of the Court as a whole. While collegiality
    may contribute to these primary goals, we do not see it as an end in
    itself, nor do we see that the size of a court has an impact on the
    general collegiality of the court's membership. By the same token, we
    do not believe that the Ninth Circuit's size is the cause of any lack
    of consistency in its decisions. Instead, we think that the
    inconsistencies may stem from a failure of the Circuit to correct
    erroneous or conflicting panel decisions in an effective manner. As you
    are aware, the Ninth Circuit already has an en banc procedure in place
    to address such panel decisions. That procedure could nevertheless be
    improved by making slight modifications aimed at serving two goals:
    increasing the availability of en banc review and increasing the
    representativeness of the en banc panel itself.
        Three modifications in particular might accomplish these ends.
    First, reducing the number of active judges who must vote to rehear a
    case en banc from the current requirement (a majority) to some lesser
    number would increase the opportunities for en banc reconsideration of
    panel decisions. We suggested a ``4/9s'' threshold in our testimony,
    but understand that Senator Feinstein has proposed a 40 percent
    threshold in the Ninth Circuit Court of Appeals En Banc Procedures Act
    of 1999 (S. 1403). Either proposal would be an improvement over the
    existing requirement. Second, circulating opinions that distinguish or
    disagree with existing precedent to the Circuit judges before those
    opinions are published may avert the creation of conflicting precedent
    or, at the very least, better alert the judges to the need for en banc
    review of particular decisions. Third, increasing the number of judges
    who sit on the Ninth Circuit's en banc panel from 11 to 15 would make
    the Circuit's en banc decisions more representative because those
    decisions would then be more likely to reflect the views of a majority
    of the Circuit's 28 active judges. As the most frequent litigator in
    the federal courts of appeals, the Justice Department is committed to
    working with this Subcommittee and the Ninth Circuit to improve the
    quality and consistency of decisions in that Circuit.

                     Additional Submissions for the Record

                                  ----------

                            Los Angeles County Bar Association,
                                       Los Angeles, CA, April 14, 1999.
    Re: Senate Bill 253--Federal Ninth Circuit Reorganization Act of 1999

    Hon. Dianne Feinstein,
    U.S. Senate, Hart Senate Office Bldg., Washington, DC.
        Dear Senator Feinstein: We are writing to express our concerns over
    and opposition to the restructuring of the Ninth Circuit, as proposed
    in Senate Bill 253 (``S. 253''). As set forth below and in the enclosed
    analysis, we have seen no reliable evidence or data justifying the
    unprecedented and problematic structural changes proposed by the
    pending legislation.
        Some twenty-five years ago, the Hruska Commission cautioned that
    any realignment of courts of appeal should proceed with me: ``[T]he
    present [circuit] boundaries * * * have stood since the nineteenth
    century. * * * Except for the most compelling reasons, we are reluctant
    to disturb institutions which have acquired not only the respect but
    also the loyalty of their constituents.'' Commission on Revision of the
    Federal Court Appellate System, The Geographic Boundaries of the
    Several Judicial Circuits: Recommendations for Change (Dec. 1973),
    reprinted in, 62 F.R.D. 223, 228 (1973). These sentiments were echoed
    more recently in the United States Judicial Council's Long Range Plan
    for Federal Courts (1995): ``'Circuit restructuring should occur only
    if compelling empirical evidence demonstrates adjudicative or
    administrative dysfunction in a court so that it cannot continue to
    deliver quality justice and coherent, consistent circuit law in the
    face of increasing workload.'' Id. at 44.
        Proponents of the reorganization of this Circuit have identified no
    compelling evidence that the current structure and performance of the
    Ninth Circuit satisfies the requisite high standards justifying change.
    We thus were heartened to see that the report of the Commission on
    Structural Alternatives (the ``White Commission'') embraced these
    conclusions and that the pending legislation does not seek a division
    of this Circuit. Indeed, the White Commission's analysis of the more
    frequently proposed options for splitting the Ninth Circuit amply
    demonstrates the problems associated with any attempt to disturb an
    appellate court that is operating reasonably well.
        While S. 253 does not propose, a split of the Ninth Circuit, it
    does adopt the White Commission's recommendation that the Circuit be
    reorganized into three ``divisions'' staffed by judges located both
    within and outside that division, that the state of California be split
    among two divisions (thereby subjecting litigants in the state to
    potentially conflicting interpretations of state law and encouraging
    problematic forum shopping), and that significant cases raising far
    reaching issues of law be resolved by newly created ``division en banc
    courts,'' with Circuit wide en banc adjudication limited to cases.
    involving inter-divisional conflicts. It is our firm belief that this
    proposed restructuring of the Circuit is ill advised and would create a
    great many more problems than it solves. Our view is premised on the
    conclusions and concerns set forth in the attached analysis.
        Practitioners have been well served over the years by the existence
    of an independent and high caliber federal appellate system that has
    worked to minimize the incidence of unwarranted, disparate
    interpretations of law. Any determination that the Ninth Circuit, or
    any other court of appeal, requires restructuring should result from
    the presentation of data and evidence establishing compelling reasons
    to change the status quo, and riot from any particular political or
    ideological agenda.
        While we applaud the White Commission's opposition to the split of
    the Ninth Circuit and its willingness to consider creative vehicles for
    improving the operation of our courts of appeals, we question the
    wisdom of the proposed statutorily mandated creation or divisions. This
    de facto split of the Ninth Circuit will require the Circuit to
    implement an unprecedented structure that has grave implications for
    businesses and litigants in California and throughout the Circuit. In
    lieu of this unworkable proposal, we urge Congress to allow the Circuit
    the flexibility and opportunity to continue to experiment with
    innovative reforms designed to improve the operations of this and other
    federal appellate courts in the coming years.
        We greatly appreciate your consideration of our views on this
    important issue and welcome the opportunity to provide any further
    information that may be of assistance.
                Very truly yours,

    Lee Smalley Edmon,                  Therese M. Stewart,
    President, Los Angeles County Bar
    Association.

                                        President, Bar Association of San
                                        Francisco.

    Todd F. Stevens,                    Linda Wight Mazur,
    President, San Diego County Bar
    Association.

                                        President, Beverly Hills Bar
                                        Association.

    James I. Fisher,                    George M. Duff, III,
    President, Alameda County Bar
    Association.

                                        President, Federal Bar Association,
                                        Northern District of California
                                        Chapter.

    Thomas E. Holliday,                 Julie McCoy Akins,
    President, Federal Bar Association,
    Los Angeles Chapter.

                                        President-Elect, Federal Bar
                                        Association, Orange County Chapter.

    Jonathan R. Ivy,                    Kateesa Charles Davis,
    President, John M. Langston Bar
    Association.

                                        President, Women Lawyers
                                        Association of Los Angeles, Inc.

    Linda S. Peterson,                  Paula Teske,
    President, Women Lawyers
    Association of Los Angeles,         Co-President, LHR: The Lesbian Gay
                                        Bar Association.

    Hugh Biele,
    Co-President, LHR: The Lesbian and
    Gay Bar Association.
                                     ______

                            Los Angeles County Bar Association,
                                       Los Angeles, CA, April 16, 1999.
    Re: Senate Bill 253

    Hon. Dianne Feinstein,
    U.S. Senate, Hart Senate Office Bldg., Washington DC.
        Dear Senator Feinstein: I am writing in response to your letter of
    March 10, 1999, soliciting input from the Los Angeles County Bar
    Association on pending legislation that seeks to restructure the Ninth
    Circuit Court of Appeals. As the largest voluntary bar organization in
    the Circuit; our Association has, followed this issue with great
    interest and, based on the views and experiences, of our members, has
    grave concerns about the unprecedented proposed divisional
    reorganization of the Ninth Circuit. Our view that a divisional
    arrangement would create a great many more problems than it solves is
    shared by over a dozen other bar associations located throughout
    California.
        This Association and the many other bar organizations joining in
    the enclosed analysis wholeheartedly agree with your observation that
    the proposed split of California among divisions would be troublesome,
    especially for practitioners and businesses who practice in this state.
    Our opposition to the suggested split of the Circuit into divisions
    does not, however, stem solely from the proposed placement of
    California in two different divisions. Rather, the attached analysis
    reflects our fundamental disagreement with the notion that the Circuit
    would benefit from a divisional structure.
        Even if California were placed in a single division, the proposed
    divisional structure would create a cumbersome, inefficient, and
    problematic system for the handling of appeals that would adversely
    impact the administration of justice in this Circuit. Isolating
    California in a single division not only would fail to address the many
    problems posed by a divisional structure (as discussed in greater
    detail in the attached analysis), but also would implicate other
    concerns. Indeed, we question what benefits would be gained from the
    formation within the Circuit of a division of the size that would be
    needed to handle the immense appellate caseload arising from
    California's appeals. Moreover, we worry that this divisional
    arrangement could serve as a precursor for a California-only Circuit--a
    structure that would deprive the state of the advantage associated with
    decisionmaking by geographically diverse Courts of Appeal.
    Additionally, the isolation of our state over time could lead to
    difficulties in obtaining the funding and support needed to staff the
    increasing appellate load associated with the heavy volume of
    litigation arising in
              * * * * * * *
        In sum, this Association, as well as the other bar groups who join
    in the attached analysis, view a divisional arrangement for this or any
    other Circuit as generally unacceptable, whether or not California is
    split among divisions. As such, we would not favor the proposed
    alternative divisional configuration set forth in your March 10 letter.
        We greatly appreciate your willingness to consider the views of the
    organized bar on the pending legislation and would be happy to discuss
    this issue of tremendous import to attorneys in our Circuit with you
    further should you have any additional questions.
                Sincerely yours,
                                             Lee Smalley Edmon,
                         President, Los Angeles County Bar Association.
        [Editor's note: The completed material was not available at
    presstime.]
                                     ______

                           Governor of the State of California,
                                                        April 15, 1999.
    Re: Senate Bill 253

    The Honorable Orrin Hatch,
    U.S. Senate, Russell Building, Washington, DC.
        Dear Orrin: I wish to register my opposition to Senate Bill 253,
    which would divide the Ninth Circuit into three regional divisions and
    split California in half. Unfortunately, I believe that the bill would
    promote forum shopping and foster confusion over the application of
    federal law in California, impacting litigation ranging from admiralty
    to the decennial redistricting of California.
        I have written to you previously regarding my concerns over
    proposals to split the Ninth Circuit. In my view, these proposals did
    nothing to address the rising caseload per judge (but would merely
    divide the existing judges between two circuits) and amounted to no
    more than judicial gerrymandering: Limiting the judges from other
    western states who would hear California cases and vice-versa. This
    bill does the same, and is worse because it would divide the West Coast
    into not two but three segments, each with its own precedents not
    binding on the other regions, and would add another layer of judicial
    review to appellate proceedings, adding delay and expense to
    adjudications.
        My principal objections are as follows:
      1. increased unpredictability of the law in california and the west
                                     coast
        The bill would split the Ninth Circuit into three regional
    divisions, splitting California in the process. Under the bill, ``[t]he
    decisions of 1 regional division [would] not be regarded as binding
    precedents in the other regional divisions.'' (S. 253, sec. 2(b)(5).)
        Thus, these three divisions--each with their separate
    jurisprudence--would subject the West Coast--and California--to
    differing interpretations of the law. For instance, a regional
    division's determination that a California law was unconstitutional
    would not bind another region that covered another part of California.
    This would make the law on the West Coast inconsistent and
    unpredictable.
                       2. encouragement of forum shopping
        The regional spilt would also encourage forum shopping,
    particularly in connection with constitutional challenges to state laws
    and statewide initiatives, as litigants searched for the appellate
    division that most favored their case.
        3. parochialism
        While the new northern division of the Ninth Circuit would be
    composed of five states (Alaska, Idaho, Montana, Oregon, and
    Washington), the new southern division would be composed of only one
    and one-half states (Arizona and half of California), which would lack
    the balance and objectivity that geographical diversity in a multi-
    state circuit fosters. The Hruska Commission in 1973 concluded that a
    judicial circuit should be ``composed of at least three states'' and
    that ``circuits should contain states with a diversity of population,
    legal, business and socioeconomic interests.'' For this reason, making
    California a part of a region composed of one and one-half states--or
    making California a single regional division--would deprive California
    of the objectivity that a multi-state federal circuit is designed to
    foster. (And amending the bill to make California a single regional
    division would achieve none of the purported objectives of the bill,
    since California accounts for over 60 percent of the Ninth Circuit's
    caseload.)
                            4. more delays and costs
        The bill would create another appellate layer: a new Circuit
    Division composed of 13 judges, which could review any final decision
    rendered in any of the circuit's divisions that ``conflict on an issue
    of law with a decision in another division of the circuit'' (S. 253,
    sec. 2(c)), but only if ``en banc review of the decision has been
    sought and denied by the division.''
        This adds a fifth layer to the current four levels of trial and
    appellate proceedings: (a) the district court adjudication; (b) the
    appeal before a three-judge panel; (c) the request for hearing en banc;
    (d) the request for review by the Circuit Division; and (e) the request
    for review by the United States Supreme Court.
        Moreover, not only does the Circuit Division add another layer of
    review but its jurisdiction over ``conflicting'' decisions is too
    narrow to promote a coherent jurisprudence within Ninth Circuit: It
    would only review decisions which conflict another division of the
    court, but would not review decisions that were merely erroneous or
    which conflict with another circuit's decision. And since the judicial
    composition of the Circuit Division will change at regular intervals,
    even the resolution of conflicting cases will not be given consistent
    treatment.
        I submit that reform of the appellate courts' en banc procedures
    (e.g., amending them to police errant decisions by permitting, but not
    requiring, en banc review of any erroneous decision) would better
    promote more consistent decisions within a circuit. At present, an
    appellate court is authorized to grant en banc review only to secure
    uniformity of its decisions or where ``the proceeding involves a
    question of exceptional importance.'' (Fed. R. App. Pro. 35)
        I recognize, Orrin, that this bill seeks to implement the
    recommendations of the Commission of Structural Alternatives for the
    Federal Court of Appeals, but I note that the Commission's
    recommendations is itself inconsistent with its primary conclusions,
    including the following:

      1. The Commission states: ``Having a single court interpret and apply
        federal law in the western United States, particularly in federal
        commercial and maritime laws that govern relations with the other
        nations on the Pacific Rim, is a strength of the circuit that
        should be maintained.'' Yet, under the bill, the Ninth Circuit is
        divided into three regions, and each region's decisions do not bind
        the other regions.

      2. The Commission found: ``Any realignment of circuits would deprive
        the west coast of a mechanism for obtaining a consistent body of
        federal appellate law, and of the practical advantages of the Ninth
        Circuit administrative structure.'' Yet, this bill deprives the
        west coast of a consistent body of federal appellate law. A
        transaction in San Francisco will not be governed by the Appellate
        law in Los Angeles, and neither will be bound by the appellate law
        applicable to Oregon and Washington.

      3. The Commission observed: ``There is no persuasive evidence that
        the Ninth Circuit * * * is not working effectively, or that
        creating new circuits will improve the administration of justice in
        any circuit or overall.'' Does this absence of evidence not argue
        against dividing the Ninth Circuit into three autonomous regions?''

      4. The Commission exclaims: There is one principle that we regard as
        undebatable: It is wrong to realign circuits * * * because of
        particular federal decisions or particular judges.'' But judicial
        gerrymandering is what the bill would achieve.

        Indeed, the bill is in direct conflict with each of these
    conclusions. While this bill may be motivated, in part, by concerns
    over certain Ninth Circuit decisions, gerrymandering the circuit to
    cordon off certain judges will only deprive the west coast of the
    benefit of the objectivity that a broader geographical diversity
    necessarily engenders.
        It will confuse the law, harm the interest of California, and
    promote forum shopping. I urge you to defeat this bill.
                Very truly yours,
                                  Governor Pete Wilson.
                                     ______

                                   The State Bar of California,
                                       San Francisco, CA, May 17, 1999.
    Re: Senate Bill 253--Federal Ninth Circuit Reorganization Act of 1999

    The Honorable Dianne Feinstein,
    Hart Senate Office Building, Washington, DC.
        Dear Senator Feinstein: On behalf of the State Bar of California, I
    am writing to reaffirm our opposition to the proposed restructuring of
    the United States Court of Appeals for the Ninth Circuit. The creation
    of three autonomous regional adjudicative divisions would not only
    divide California, it would impair the development of consistent
    circuit law, add an additional level of appeal and provoke attendant
    delay and expense, eliminate the present participation of all judges
    circuit-wide in resolving circuit law, and preclude the Ninth Circuit
    from effectively conducting its ongoing reevaluation and
    experimentation with innovations leading to greater efficiency and
    effectiveness.
        The Commission on Structural Alternatives for the Federal Courts of
    Appeals rightly and strongly recommended that the Ninth Circuit not be
    split. However, it undermined that recommendation with an unfounded
    proposal for three adjudicative divisions. That proposal is opposed by
    lawyers throughout California, as evidenced, for example, by the letter
    of April 14, 1999 to you, and accompanying analysis, on behalf of the
    Los Angeles County Bar Association, the Bar Association of San
    Francisco, the San Diego County Bar Association, the Beverly Hills Bar
    Association, the Alameda County Bar Association, the Federal Bar
    Association (Northern District of California, Los Angeles, and Orange
    County chapters), the John M. Langston Bar Association, the Black Women
    Lawyers Association of Los Angeles, Inc., the Women Lawyers of Los
    Angeles, and The Lesbian and Gay Bar Association.
        The United States Department of Justice vigorously opposed
    divisional restructuring and stated ``that proposal would have
    potentially adverse repercussions for the administration of justice in
    the Ninth Circuit and, ultimately, across all federal courts of
    appeal.'' Similar opposition was expressed by the Federal Bar
    Association, the Association of the Bar of the City of New York, and
    the Chicago Council of Lawyers and many other organizations and
    individuals.
        We urge your continued opposition to the Commission's misguided
    proposal and S. 253 and any similar rider or bill.
                Sincerely,
                                           Raymond C. Marshall,
                                                             President.
                                     ______

                                                 State Capital,
                                          Sacramento, CA, July 7, 1999.
    Re: S. 253 (Federal Ninth Circuit Reorganization Act of 1999)

    The Honorable Dianne Feinstein,
    U.S. Senate, New Senate Office Building, Washington, DC.
        Dear Senator Feinstein: I urge you to oppose Senate Bill 253. This
    proposed legislation to drastically reorganize the United States Court
    of Appeals for the Ninth Circuit is unwarranted, unwise and detrimental
    to the interest of California.
        The legislation would subdivide the appellate function of the Ninth
    Circuit into three semi-autonomous regional divisions and split the
    State of California in half. The northern part of the State would be
    placed in one division and the southern part of the State, in another
    division. The courts rulings in one division would not be binding in
    the other division.
        I find this proposal to split the State alarming. Not only is the
    proposal untried and unproven, it creates a separation between Northern
    and Southern California that is inimical to what I am attempting to
    accomplish as Governor. We need to bring our people together and de-
    emphasize our differences. Senate Bill 253 does just the opposite.
        Furthermore, splitting California between two divisions would
    likely result in inconsistent federal ruling's on important California
    laws--one ruling covering the north and a different ruling covering the
    south. As a result, businesses operating in California would be subject
    to conflicting state laws, making it more costly to do business in
    California.
        The proposed legislation is also likely to foster more disputes and
    more litigation. For example, if a state law were found
    unconstitutional in the division covering Northern California, the
    decision would be binding only in that part of the State, leaving us
    with a law that is valid in the south and invalid in the north. While
    Senate Bill 253 creates a Circuit Division to resolve conflicts between
    divisions, that body is powerless to do anything until such time as an
    inconsistent decision is rendered by the division covering Southern
    California. Thus, it will be necessary to file a second suit in the
    Southern Division to achieve uniformity in the law.
        The legislation will also promote forum shopping in the State. We
    can expect a litigant who operates throughout the State to bring its
    lawsuit in a division that is perceived to be more friendly to the
    litigant's Interest. Similarly, if a party gets a bad result in one
    division, we can also foresee that the party will bring a lawsuit in
    the other division in an effort to get a better result.
        In addition, the method proposed in the legislation to resolve
    conflicting rulings among the divisions is costly and burdensome and
    will delay the administration of justice. A litigant who is
    dissatisfied with a division's ruling and who believes that the ruling
    conflicts with a ruling in another division is required to take two
    additional steps. First, the litigant must request an en banc
    determination of the ruling by the judges in the division. Following
    such determination (or denial of the request for en banc hearing), the
    litigant must then seek a determination by the Circuit Division.
    Whether or not to grant a hearing is within the discretion of the
    Circuit Division.
        At a time when litigation is altogether too expensive and time
    consuming for California residents and businesses, we should be seeking
    ways to simplify the resolution of conflicts, not add to the complexity
    of the process. The proposed legislation would add a burden to
    Californians and citizens of other states within the Ninth Circuit that
    is not borne by litigants in the rest of the country.
        We should also be extremely cautious in changing the structure of
    government without compelling reasons for doing so, particularly when
    the structure has endured for many years. Here, the case for splitting
    California has not been made. Indeed, the White Commission acknowledged
    in its report that there is no persuasive evidence that the Ninth
    Circuit (or any other circuit, for that matter) is not working
    effectively * * *.''
        I must emphasize that this is not a partisan issue. Former Governor
    Pete Wilson recently sent a letter to Senator Orrin Hatch registering
    his opposition to Senate Bill 253 because ``the bill would promote
    forum shopping and foster confusion over the application of federal law
    in California, impacting litigation ranging from admiralty to the
    decennial redistricting of California.''
        Uniformity, stability and predictability of federal and state law
    are the foundation blocks of an orderly and healthy government and
    economy. The new and untested proposed structure for the Ninth Circuit
    would by its very design, undermine those key values and jeopardize our
    citizens' faith and confidence in the judicial process. I urge you to
    reject this legislation as not being in the best interests of the
    citizens of California.
                Sincerely.
                                            Gray Davis.
                                   __________
                           U.S. Court of Appeals Ninth Circuit,
                                      San Francisco, CA, July 21, 1999.
    The Honorable Charles E. Grassley,
    Chair, Subcommittee on Administration Oversight and the Courts, U.S.
            Senate, Hart Senate Office Building, Washington, DC.
        Dear Senator Grassley: I submit this letter with the request that
    it be included in the record of the hearing scheduled for July 16, 1999
    before the Subcommittee on Administrative Oversight and the Courts on
    the ``Review of the Report by the Commission on Structural Alternatives
    for the Federal Courts of Appeals regarding the Ninth Circuit and S.
    253, the Ninth Circuit Reorganization Act.''
        Chief Judge Hug will testify at the hearing and has submitted a
    written statement which incorporates a full and careful analysis of the
    White Commission Report, and hence of the problems raised by S. 253. I
    agree with Chief Judge Hug's analysis.
        As Chief Judge Hug points out, the Commission Report strongly
    recommends that the Ninth Circuit not be split because there is no
    persuasive evidence that the Ninth Circuit is not working effectively,
    and restructuring the Ninth Circuit would entail substantial costs.
        The Commission's second major recommendation (that the adjudicative
    functions of the Ninth Circuit Court of Appeals be divided among three
    essentially independent divisions) offers a solution to a problem that
    does not exist. The Commission Report repeatedly states that there is
    no empirical evidence and no substantial basis for a subjective
    opinion, that the Ninth Circuit and its Court of Appeals are not
    functioning effectively. The Commission nonetheless recommends the
    immediate and radical alteration of time-tested adjudicative procedures
    of the Court of Appeals with no evidence that the court is not
    operating effectively. The Commission's position is directly contrary
    to the conclusion reached in three prior surveys of the federal court
    system and, perhaps more significantly, to the policy adopted by the
    Judicial Conference of the United States only a few years ago that
    major restructuring should not be considered unless compelling
    empirical evidence demonstrates the inability of a court to operate
    efficiently. That policy is based upon good common sense.
        The Court of Appeals for the Ninth Circuit decides approximately
    \1/6\th of all federal appellate litigation in our country. The
    Commission acknowledges that there is no evidence that the size of the
    court or the load it carries justifies the major restructuring the
    Commission proposes. If nothing else is clear, it is absolutely certain
    that the proposed restructuring is radical, inevitably disruptive, and
    permanent. If the proposed, untested system does not work, the circuit
    will divide along the lines underlying the Commission's proposed
    adjudicatory divisions.
        The Commission looks not to the present situation but to the
    future, and rests its case upon the major premise that the Court of
    Appeals for the Ninth Circuit will become too large and its inevitable
    growth will prevent it from handling efficiently the workload that will
    develop. The Commission sets out a pattern it hopes will provide the
    model for the new federal court system.
        There is no evidence, none, to support the Commission's thesis.
        The Commission concedes that there is no evidence that the Court of
    Appeals for the Ninth Circuit is not operating effectively, except in a
    few minor and easily corrected respects. There is no evidence that it
    will become ``too big'' to continue to do so. The truth is that no one
    knows the optimal number of judges for a Court of Appeals. When our
    court grew from 3 to 7 in 1937, critics worried ``that a court of seven
    members with a wide range of ideological and jurisprudential viewpoints
    could not provide justice across the circuit's massive geographical
    jurisdiction.'' As the circuit grew from 7 to 9, 9 to 13, 13 to 23, and
    23 to 28, critics assured the world that the court had exceeded its
    maximum practicable size before the new judges arrived. They were
    always wrong.
        Professor Charles Allen Wright has written that when he clerked in
    the Second Circuit in 1949 and 1950 , ``it seemed perfectly clear that
    the maximum number of judges a court of appeals could have without
    impairing its efficiency was six'' the number of judges then on the
    Second Circuit. As Professor Wright said later ``in 1950 when we made
    these comments we were illustrating in striking fashion deToqueville's
    admonition against confusing the familiar with the necessary.''
        The predictions of the Judicial Conference have been no better. In
    1964 the Conferees adopted the position that the maximum number of
    judges on a court of appeals was 9. Eight years later it drew the line
    at 15. In 1977 Chief Justice Burger suggested, as the Conference had,
    that the magic number was 9--the size of his District of Columbia Court
    of Appeals. He stated ``by any measurement of logic, reason, or
    standards of judicial administration, the Ninth Circuit cannot function
    effectively as one unit with 13 circuit judges.'' Today every circuit
    other than the First Circuit has a court of appeals of 11 or more. I
    predict that the Commission will turn out to be just another in this
    long line of unreliable prophets.
        Unless and until those who propose splitting this or any other
    court are required to demonstrate that in fact, not simply in theory,
    the court has exceeded the number of judges that will permit it to
    operate effectively, unsound predictions of calamity and the senseless
    destruction of valuable institutions will persist.
        It is significant but a little frightening to realize that by the
    Commission's own admission, one of the principal bases for its
    conclusion that the Court of Appeals for the Ninth Circuit is or soon
    will be too large is a survey of circuit judges across the country in
    which the majority expressed the opinion that the optimal size of a
    court of appeals was between 11 and 17. Nowhere does the Commission
    mention the fact that \2/3\ of the judges and lawyers of the Ninth
    Circuit are satisfied that the present court of appeals is functioning
    well with 28 judges, and ought to be left alone.
        One of the many problems with the Commission's report and the
    statute that would implement it, is that they impose their preferred
    procedure draconianly. The system they propose must be in place within
    6 months of enactment, and is to be permanent--a provision to terminate
    the divisional system after seven years was eliminated in the final
    report.
        The possible minor problems the Commission saw in the way in which
    the Court of Appeals for the Ninth Circuit is presently operating can
    be, should be, and are being corrected by the Court itself, in
    accordance with its long continued practice of periodic reexamination
    and improvement of its own procedures. Chief Judge Hug has appointed a
    committee of judges, lawyers and academics which, with our Rules
    committee of experienced practicing lawyers, is charged with examining
    possible problems and dealing with them. The first proposal, already
    implemented, is to recognize at least some legitimacy in the argument
    for regionalization by providing that an appeal to any of the three
    divisions of the Court will be heard by a panel that includes at least
    one judge from that division--if there is something in the local air or
    local mores that really affects the case, the panel will have the
    benefit of it. I will admit to some misgivings based upon my own notion
    that federalism is a difficult concept to maintain at best and we must
    be rareful of any move in the direction of substituting local points of
    view for national law. In any event, the committee is examining
    regional calendaring, monitoring opinions to assure consistency with
    circuit law, changes in the present en banc process, reducing our
    backlog, and what we can do, if anything, to further reduce our
    reversal rate in the Supreme Court.
        Finally, I would like to comment on a recent proposal to avoid the
    conflicts that will inevitably arise if California is divided between
    two or more divisions as proposed by the Commission. The new proposal
    is that California be made the sole state in one of the three
    adjudicative divisions. There is no empirical evidence justifying this
    suggestion, just as there is none supporting the other restructuring
    proposals advanced by the Commission. Virtually all of the objections
    to the Commission's restructuring proposals generally apply to this one
    as well. All the arguments previously discussed regarding the cost and
    disruption that would inevitably result from the Commission's plan are
    equally applicable. Appeals, for example, would be just as complicated,
    costly, time-consuming and ineffective. Even the problem of conflicts
    within the circuit over questions of federal law would remain. The
    problems are well summarized in the Los Angeles County Bar
    Association's letter to Senator Feinstein dated April 16, 1999, which
    has been submitted for inclusion in this record.
        The proposed California division would also suffer from a serious
    imbalance between judges and cases. California as a separate unit would
    have half of the federal judgeships in the circuit to deal with \2/3\
    of the circuit's appeals. In a very real sense, California is the root
    of the whole controversy. Much of the pressure for circuit division
    arises from animosity toward California based upon its size and
    dominance. A ``bash California'' attitude is common in other states--no
    state wants to be alone with a giant. Isolating California in a single
    adjudicatory division would tend to focus this negative feeling with
    its negative consequences on California itself. The remainder of the
    circuit would suffer as well; losing the perspective of California's
    unique position within the western region would diminish the circuit's
    capacity to develop and maintain national law--the federalizing
    function that is central to the concept of regional courts of appeals.
    As presently constituted, the Ninth Circuit serves that function well.
    Virtually all of the conflicts that tend to pull our nation apart are
    represented in one part of the Ninth Circuit or another. Judges drawn
    from all parts, sitting on common panels in the decision of cases,
    provide a powerful instrument for finding the accommodations that keep
    the national law alive and well. Moreover, I think everyone, especially
    the proponents, realize the suggested arrangement is almost inevitably
    a precursor to a division of the circuit, a result strongly opposed by
    the Commission itself.
        I respectfully suggest S. 253 should be rejected.
                Sincerely,
                                     James R. Browning.
                                   __________
                                   Crosby, Heafey, Roach & May,
                                      San Francisco, CA, July 13, 1999.
    Re: S. 253 (Ninth Circuit Reorganization Act)

    Hon. Charles E. Grassley,
    Chair, Subcommittee on Administrative Oversight and the Courts, U.S.
            Congress, Hart Senate Office Bldg., Washington, DC.
        Dear Senator Grassley: I would like to register my opposition to S.
    253 (The Ninth Circuit Reorganization Act), and urge you not to
    restructure the Ninth Circuit Court of Appeals. I am an appellate
    lawyer who has handled appeals almost exclusively for the last 25 years
    and thus have appeared in many appellate courts, including the Ninth
    Circuit. I was recently elected as President-Elect of the American
    Academy of Appellate Lawyers and am a Past President of the California
    Academy of Appellate lawyers--both of these organizations are composed
    of experienced appellate lawyers. I am past chair of the Ninth Circuit
    Advisory Committee on Rules and Internal Operating Procedures, which is
    responsible for recommending revisions and drafting Ninth Circuit rules
    and internal operating practices. I have also been a consultant to the
    National Center on State Courts on appellate court issues, where I
    looked at the procedures and performances of many states appellate
    courts. I am also a member of the California Appellate Process Task
    Force which is studying all aspects of California's intermediate
    appellate courts. I do not speak here for any of these organizations,
    and the views I am expressing below are entirely my own. However, I
    thought that, as you consider my opinions, you should know a little
    about my background.
        S. 253 tracks the final report of the Commission on Structural
    Alternatives for the Federal Courts of Appeals. My comments therefore
    address that report. Perhaps the most significant of the Commission's
    conclusions is that there is no basis to split the Ninth or any other
    circuit. It is essential that Congress recognize that splitting
    circuits is not a viable way to deal with circuit court growth or help
    the circuits move forward into the next century. I applaud the
    Commission's conclusion on that point. On the other hand, it is
    disappointing that the Commission accepted the notion, by recommending
    the creation of autonomous divisions within the Ninth Circuit, that
    federal circuit courts should be perceived as local tribunals, where
    primarily judges who reside in that geographical area hear cases in
    that region.
        We should be striving to make federal courts, including appellate
    courts, faster, cheaper and more uniform in their decisions. This bill
    creating semi-autonomous local courts goes in the wrong direction on
    all counts. The added layers of en banc review are likely to add delay
    and cost to the appellate process. And splintering the circuit into
    three rigid divisions with none of them (as well as the district courts
    in them) bound by the decisions of either of the other two, virtually
    guarantees less uniformity and greater conflict than we have now.
        Why create drastic and permanent structural changes in the Court?
    In my view, neither the Commission nor anyone else has demonstrated
    serious deficiencies in the Ninth Circuit that would require the unique
    structural changes that S. 253 would mandate. It appears that the
    proposed structural changes are based on the perceptions of a few
    rather than on hard data that show serious problems in the current
    structure.
        There is always room for improving any of the federal courts. My
    own experience, however, is that the Ninth Circuit operates about as
    well on all levels as any other appellate court that I have appeared
    before or whose operations I know about. In fact, one of the
    distinguishing features of this Court is its willingness to listen to
    constructive suggestions and make procedural changes to improve its
    processes. It is far and away the best appellate court I know of in
    that regard. I urge Congress not to mandate structural changes based on
    the skimpy perceptional and anecdotal feelings of a few. Those feelings
    are not a sufficient basis to make fundamental changes, particularly
    when those changes threaten to take us in the wrong direction on the
    important issues of delay, cost uniformity of decisions.
                Sincerely,
                                        Peter W. Davis.
                                   __________
                                       State of Alaska,
                                        Office of the Governor,
                                             Juneau, AK, July 13, 1999.
    The Honorable Charles Grassley,
    Chairman, Senate Judiciary Subcommittee on Administrative Oversight and
            the Courts, U.S. Senate, Hart Senate Office Building,
            Washington, DC.
        Dear Senator Grassley: I write this letter to voice strong support
    and urge approval of S. 253. I appreciate your consideration of S. 253
    to adopt the recommendations of the Commission on Structural
    Alternatives for the Federal Courts as they affect the Ninth Circuit
    Court of Appeals. I also would like to reiterate the state's
    suggestions to modify the commission's recommendations that we
    submitted to the commission last year.
        Alaskans have long observed that the Ninth Circuit is the largest
    in the nation, both in territory and population. It spans nine states
    and two territories, serving a population of more than 45 million
    Americans and spanning a land area larger in size than Western Europe.
    It serves 15 million more people than the next largest circuit and
    about 20 million more people than the average population served by
    other courts of appeals.
        The Ninth Circuit has told the Senate Judiciary Committee it takes
    four months longer to complete an appeal in the Ninth Circuit as
    compared to the median length of time nationally. Its annual caseload
    has grown from 2,300 filings to more than 8,000 filings since 1973.
    However, Alaska's caseloads constituted only two percent of the court's
    caseload in 1997. Only 12 circuit judges were assigned to all the
    Alaska cases published in 1997.
        Given the relatively few Alaska cases compared to the whole,
    litigants in Alaska are far less likely than litigants in the heavily
    populated states to draw panels with judges who are familiar with
    Alaska. This is aggravated by the fact that Alaska cases often involve
    complex federal statutes the judges do not encounter in the other 98
    percent of the court's caseload, the Alaska Native Claims Settlement
    Act (ANCSA), and the Alaska National Interest Lands Conservation Act
    (ANILCA).
        These statutes apply only to Alaska, so the issues they generate--
    which have totaled more than 100 cases in the Ninth Circuit over the
    past 20 years--arise only in Alaska cases. The issues these cases
    address have varied tremendously, from the interpretation of revenue-
    sharing provisions to the question of extinguishment of Indian country.
    Each case required an understanding of the history, purposes, and
    context of complex legislation. Despite the court's myriad decisions
    involving ANCSA and ANILCA, Alaska litigants raising claims under these
    statutes are highly unlikely to be assigned a panel of judges with a
    depth of understanding of these federal laws because of the large
    number of circuit, senior, and visiting judges.
        The Commission on Structural Alternatives agreed that there are
    problems regarding the Ninth Circuit's operations and recommended that
    the Circuit be split into three adjudicative divisions. S. 253
    implements this and other pertinent commission recommendations. We ask
    that the following amendments which would be beneficial to Alaska be
    made prior to passage of S. 253:

       The provision for a circuit division should be eliminated.
            The proposed circuit division permits non-regional judges to
            preponderate the northern perspective. Judges lacking adequate
            knowledge about an enormous area like Alaska do a disservice to
            the citizens of the state in applying federal law here. In
            general, appellate courts are regional courts, and for the
            overwhelming majority of cases, are the courts of last resort.
            For those cases from Alaska that conflict with cases from the
            central or southern division of the Ninth Circuit, however, the
            northern division will not be permitted to act as the regional
            court of last resort. The circuit division will step in and
            essentially act as a quasi-Supreme Court, with a southwestern
            rather than a national viewpoint. The effect would be as though
            one circuit stepped in to clarify the law for another. This is
            the job of the Supreme Court, not that of a different regional
            court. For the few cases that conflict with cases from another
            division, litigants should be able to petition the Supreme
            Court directly without going through the extra layer that the
            circuit division would create. The existence of a circuit
            division also seems likely to prompt forum shopping among the
            divisions. Litigants unhappy with the holding of a particular
            case will be motivated to bring subsequent cases raising the
            same issue in a different division, thus creating the
            opportunity to convince the circuit division to overrule the
            undesirable precedent.

       S. 253 should require that judges reside within the division
            they serve. The residency requirement for only a ``majority of
            judges'' would continue to produce some panels with a minority
            of the judges residing in the northern division. Therefore
            judges from the southwest United States still could determine
            the outcome of cases in the northern district. The current
            residential distribution of the court might necessitate that
            some judges sit outside the division of their residence
            initially, but new appointments to the circuit should be
            required to reside in the division with the opening.
            Alternatively, the bill could simply proclaim a ten-year
            transitional period before all judges would be required to live
            within their division of assignment. Presumably the non-
            residential judges could be reassigned to their own districts
            within this time, as vacancies open.

        Thank you for your consideration of our views. Should you need
    further information, please contact John Katz in my Washington, D.C.,
    office.
                Sincerely,
                                                  Tony Knowles,
                                                              Governor.
                                   __________
                                   U.S. District Court,
                                            District of Oregon,
                                           Portland, OR, July 13, 1999.
    Re: S. 253 Hearing--July 16, 1999

    Senator Charles E. Grassley,
    Senate Hart Office Building, Washington, DC.
        Dear Senator Grassley: I am authorized to represent to you that a
    strong majority of the District Court Judges in the District of Oregon
    are in favor of an actual split of the Ninth Circuit.
        We do agree with our Chief Procter Hug, whom we greatly admire,
    that the bill before you, S. 253, is flawed. As you know, it would
    create three ``adjudicative divisions'' rather than create one or more
    additional circuits.
        The Commission's detailed report certainly justifies the creation
    of new circuits while the adjudicative division appears to be an
    interim costly compromise.
        The adjudicative divisions suggested by the Commission are logical
    divisions for what has long been discussed as the ``three way split.''
    That is, the creation of two additional circuits.
        It seems to us to be far more logical to create two additional
    circuits rather than ``adjudicative divisions'' which have drawn such
    criticism.
                Very truly yours,
                                               James A. Redden.
                                   __________
                                              Sunrise Research,
                                         Washington, DC, July 15, 1999.
    The Honorable Charles E. Grassley,
    Judiciary Subcommittee on Administrative Oversight and the Courts, U.S.
            Senate, Senate Hart Office Building, Washington, DC.
        Dear Mr. Chairman: Based upon almost a half century of public
    service, both in the State of Oregon and in the United States Senate, I
    have become more and more aware of the need to bring problems down to a
    manageable size so that we might best serve our areas.
        The current Ninth Circuit Court of Appeals is too big to perform
    that function. You are well aware of the population in the Ninth
    Circuit, its caseload, and other easily accessible details involving
    the demographics of that circuit. By any measure, it is too big.
    Because of its very bigness, it is unwieldy and inconsistent.
        I, therefore, strongly support S. 253 that would divide the Ninth
    Circuit into three regional divisions. While I might prefer actually
    separate circuits, I am well aware of the opposition to that option.
    The divisions, therefore, that Senator Murkowski has proposed in S. 253
    is a ``happy compromise.''
        Over the years I have known many of the judges on the Ninth
    Circuit. Some of them I had a modest hand in appointing. Without
    exception, those that I have known personally have indicated to me that
    the current court, because of its size, simply doesn't function as well
    as a court should function.
        I, therefore, hope that you will not only give serious
    consideration to S. 253, but will report it out from your subcommittee
    with a favorable recommendation.
                Sincerely,
                                          Bob Packwood.
                                   __________
                   U.S. Court of Appeals for the Third Circuit,
                                         Pittsburgh, PA, July 30, 1999.
    Senator Charles E. Grassley,
    U.S. Senate, Chairman, Senate Judiciary Subcommittee on Administrative
            Oversight and the Courts, Senate Hart Office Building
            Washington, DC.
        Dear Senator Grassley: I have noted in news reports that the
    Subcommittee on Administrative Oversight and the Courts, which you
    chair, has begun consideration of the proposed reorganization of the
    Ninth Circuit. As you may recall from our meetings of the Federal
    Courts Study Committee, some ideas on restructuring the courts of
    appeals were discussed then.
        The Report of the Commission on Structural Alternatives for the
    Federal Courts of Appeals contains some novel recommendations that are
    worthy of serious consideration. The suggestions for establishing
    divisions within the Ninth Circuit offer an unusual opportunity to test
    the feasibility of reorganization on a national basis.
        I thought you might have some interest in comments of mine which I
    am submitting to the Journal of Law & Politics (University of Virginia
    School of Law) for their forthcoming issue devoted to the subject. I
    have enclosed an advance copy for your perusal.
        I often think back to the interesting days when the Federal Courts
    Study Committee was engaged in its work. I particularly recall with
    pleasure associating with you and your staff members at that time. I
    hope you are in good health and enjoying your productive work on the
    Judiciary Committee. Best personal wishes.
                Sincerely,
                                    Joseph F. Weis, Jr.
                                     ______

               Nine Divided by Three: A Formula for Unification?

    Joseph F. Weis, Jr. \1\
    ---------------------------------------------------------------------------
        \1\ United States Circuit Judge, United States Court of Appeals for
    the Third Circuit; former Chairman, Federal Courts Study Committee;
    former Chairman, Advisory Committee on Civil Rules; former Chairman,
    Federal Judicial Conference Standing Committee on Rules of Practice and
    Procedure. This essay is based in part on a Statement by Judge Weis
    before the Commission on Structural Alternatives for the Federal Courts
    of Appeals on April 24, 1998.

        The mission of the United States Courts of Appeals should be to
    interpret and apply federal law in a uniform and coherent manner. The
    present structure of the appellate system does not enhance that goal.
    The recommendations contained in the Final Report of the Commission on
    Structural Alternatives for the Federal Courts of Appeals are solid
    steps towards improvement. Yet, they too could be improved by placing
    more emphasis on reducing conflicting decisions.
        This essay briefly traces the development of particular problems
    that plague the appellate system and then outlines a workable
    alternative--a unified court system. Further discussion touches on the
    most noteworthy aspects of the Commission's recommendations, as well as
    their shortcomings in the area of decisional conflicts. Ultimately, the
    recommendations, subject to continuing study, are worthy of
    experimentation in the search for an appellate system equipped for the
    future.
                                       i
        In 1789, the speed of transportation and communication was measured
    in terms of horses and sailing vessels. These two factors heavily
    influenced the structure of the newly created federal judiciary and the
    circuit system that exists today.
        By the time the Evarts Act was enacted in 1891, transportation and
    communication had improved. Railroads and steam ships supplanted
    buggies and schooners. The telegraph had speed but extremely limited
    capacity for extensive communications. The telephone was in its
    infancy. Despite these advances, the federal circuit system and the
    newly created courts of appeals could not escape the grasp of
    regionalization and associated problems of fragmentation.
        The past 100 years, however, have witnessed dramatic technological
    growth. Transportation is now measured by the hour rather than by days
    or weeks. Electronic communications are instantaneous and, unlike the
    telegraph, suitable for voluminous transmissions. The constraints on
    transportation and communication so influential in 1789 and 1891 simply
    do not exist in this era of jet air travel, e- mail, fax, interactive-
    video transmission, electronic document filing, and automated legal
    research.
        These profound changes should liberate thinking about the proper
    structure of the federal intermediate appellate courts. Today, most
    lawyers do not restrict their practices to geographical boundaries and
    are accustomed to presenting cases in courts all over the country.
    Similarly, it matters little whether judges fly from their home
    chambers in, say, Chicago for arguments in Denver, New York, New
    Orleans, or Jacksonville. The speed at which their draft opinions are
    transmitted via e-mail is the same no matter what the destination.
    Consequently, the regionalization that is so characteristic of, and so
    ingrained in, the current thinking on court structure should be
    drastically minimized, if not abandoned altogether.
        There is another, more corrosive agent eating away at the current
    system that requires attention--one that cannot be overcome simply by
    technological improvements. Soon after the Evarts Act was enacted, the
    Circuit Courts of Appeals began to consider themselves separate
    entities maintaining what might be called ``diplomatic relationships''
    with their counterparts. This approach was encouraged by the Supreme
    Court's unfortunate decision in Mast Foos & Co. v. Stover Manufacturing
    Company, in which the Court refused to apply issue preclusion when
    presented with two different circuit court of appeals' decisions
    involving the same patent.\2\ Considering the two courts independent of
    one another, the Supreme Court concluded that comity between the two
    forums, rather than the compulsion of stare decisis, was the overriding
    factor. In retrospect, it is clear that the Mast Foos Court missed the
    opportunity to adopt the principle that the various Circuit Courts of
    Appeals were part of a national system and, as such, required to apply
    federal law on a uniform basis.
    ---------------------------------------------------------------------------
        \2\ 177 U.S. 485 (1900).
    ---------------------------------------------------------------------------
        Thus began the balkanization of federal law and the establishment
    of the regional judicial fiefdoms that prevail in the Courts of Appeals
    today. The drafters of the Evarts Act envisioned the Supreme Court as
    the arbiter of intercircuit conflicts. At the time, that was neither an
    unreasonable nor unrealistic expectation. Congress, however, failed to
    anticipate the explosion of federal court litigation.\3\ At present,
    only a small number of the ever-increasing disparate decisions by the
    Courts of Appeals are reconciled by the Supreme Court. Practically
    speaking, this means that litigants in various parts of the country are
    governed by federal case law that differs from circuit to circuit.
    ---------------------------------------------------------------------------
        \3\ See e.g., Administrative Office of the United States Courts,
    ``Federal Judicial Caseload: A Five-Year Retrospective'' (1998).
    ---------------------------------------------------------------------------
        The ``law of the circuit'' concept took root some years ago to
    combat intracircuit conflicts. This practice, in full bloom today,
    requires appellate panels within a particular court of appeals to
    follow the precedent set by earlier panels of the same court.\4\ A
    similar obligation is imposed on the district courts within the
    circuit. This ``law of the circuit'' approach was a step in the right
    direction, but paradoxically, seems to have strengthened and perhaps
    even legitimatized the precedential independence of the various courts
    of appeals.\5\ The goal of national uniformity in the interpretation of
    federal law has unfortunately been lost in the process of encouraging
    circuit uniformity.
    ---------------------------------------------------------------------------
        \4\ See e.g., United States Court of Appeals for the Third Circuit,
    Internal Operating Procedure 9.1 (1994).
        \5\ The Court of Appeals are adamant in their adherence to this
    concept. See e.g., Taylor v. Charter Medical Corp., 162 F.3d 827, 832
    (5th Cir. 1998); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993) (per
    curiam) (``until the Supreme Court speaks, the federal circuit courts
    are under duties to arrive at their own determination of the merits of
    federal questions presented to them * * * [i]f a federal court simply
    accepts the interpretation of another circuit without [independently]
    addressing the merits, it is not doing its job); In re Korean Air Lines
    Disaster, 829 F.2d 1171, 1175 (D.C. Cir. 1987).
    ---------------------------------------------------------------------------
        Litigants and practitioners are understandably distressed by the
    resulting uncertainties. Worse yet, this balkanization has fostered the
    birth of administrative agency non-acquiescence. Executive agencies
    complain that their efforts to apply policy on a national level are
    frustrated by inconsistent rulings among the various courts of appeals.
    Agencies cope by simply refusing to follow decisions with which they
    disagree. Thus, there exists the unseemly spectacle of government
    agencies openly defying the Courts of Appeals. In one notable instance,
    the United States Postal Service presented the same issue to twenty
    different courts and eight courts of appeals, losing in every instance
    until the Supreme Court finally ended the travesty by handing the
    agency the ultimate defeat.\6\
    ---------------------------------------------------------------------------
        \6\ Franchise Tax Board of California v. United States Postal
    Service, 467 U.S. 512, 519 n. 12 (1984). See generally A. Leo Levin &
    Susan M. Leeson, ``Issue Preclusion Against the United States
    Government,'' 70 Iowa L. Rev. 113, 127-29 (1984).
    ---------------------------------------------------------------------------
        Intercircuit conflicts are a continuing and vexing problem.\7\
    Despite efforts to give it an attractive face by invoking the
    questionable benefits of a ``percolation'' process, its pernicious
    drawbacks have not diminished. There have been some scholarly
    suggestions that intercircuit conflicts are actually not all that
    numerous. Most of those studies, however, focused on the Supreme
    Court's docket, a method that fails to account for the many cases in
    which, for a variety of reasons, the parties cannot or opt not to seek
    certiorari. Much more realistic are the estimates given by Thomas C.
    Goldstein, Esq., author of the monthly compilation ``Circuit Split
    Roundup,'' appearing in the Legal News section of The United States Law
    Weekly. Mr. Goldstein estimates that two to three thousand such
    conflicts exist.\8\ They are a natural outgrowth of the hodge-podge
    circuit system.
    ---------------------------------------------------------------------------
        \7\ The evils of intercircuit conflicts are discussed in Joseph F.
    Weis, Jr., ``Disconnecting the Overloaded Circuits: A Plug for a
    Unified Court of Appeals,'' 39 St. Louis U.L.J. 455 (1995).
        \8\ Telephone Interview with Thomas C. Goldstein, Esq., author of
    ``Circuit Split Roundup,'' and Associate at Boies & Schiller, LLP (July
    9, 1999). Mr. Goldstein cautions readers that ``[i]t is not possible to
    collect each and every `circuit split' because there are varying
    degrees of disagreements between courts, and some opinions are written
    so as to minimize the appearance of conflicts.''
    ---------------------------------------------------------------------------
        In addition to their often varying articulations of federal law,
    the various courts of appeals also differ in terms of size. This has
    long been a concern. Unfortunately, the modus operandi of reformers has
    been to tinker with the system, applying band-aid solutions that merely
    perpetuate the size disparities and promote further balkanization. What
    is needed, and that need is ever-increasing in urgency, is a
    comprehensive plan for the entire system of intermediate courts.
                                       ii
        The following five basic concepts may serve as guideposts to
    prepare a plan for the future of the federal intermediate court system:

        First, the Supreme Court should retain the ultimate power to
    declare law in the federal system.
        Second, the intermediate court structure should provide uniform
    national interpretation and application of federal law. Construction of
    state law should be a secondary consideration, one that is not
    permitted to impair the primary goal of federal law uniformity.
        Third, deliberate creation of conflicts among the federal appellate
    courts should be discouraged. Inadvertent conflicts should be resolved
    by an internal unit of the intermediate court. Aberrant rulings of
    various components should be subject to review, not only by the Supreme
    Court, but by an internal body within the intermediate appellate court
    itself.
        Fourth, while three-judge panels are a reasonably sized unit for
    initial appellate review, they should operate within a larger unit. In
    such a system, pre-filing circulation of precedential opinions within
    the larger unit would reduce the likelihood of aberrant decisions while
    securing the benefits of broader consideration. Experience suggests
    that nine is a desirable size for such a unit, which for clarity's
    sake, will be referred to as a ``division.''
        Judges should be appointed to a specific division and expected to
    serve on it during their tenure. Each division, having its own chief
    judge and clerk, would be assigned appeals from designated districts
    and administrative agencies. In some instances, a division could have
    its cases assigned based on subject matter jurisdiction--an approach
    similar to that used in the present Court of Appeals for the Federal
    Circuit.
        Because travel and communications no longer pose burdensome
    limitations, the various divisions would be assigned appeals with an
    eye towards equalizing the workload. Although geographical contiguity
    or state borders could be considered, workload would become the
    dominant concern. Because state law issues and diversity cases should
    be subordinate to achieving uniformity and coherency in federal
    decisional law, the allocation of appeals from existing districts to a
    particular division need not be shackled by state boundaries. Thus, for
    example, depending on the case load, one division could be allocated
    appeals from the Middle and Eastern Districts of Pennsylvania, while
    another could be assigned appeals from the Western District of
    Pennsylvania, the Southern District of Ohio, and the Northern District
    of West Virginia.
        Fifth, the unified Court of Appeals would be presided over by a
    chief .judge, having general administrative supervision of the unified
    court. He or she would also preside over an entity we could label the
    Central Division. That body would resolve divisional conflicts and
    review asserted aberrant decisions of the various divisions.
        Judges of the Central Division would be drawn from the various
    divisions. Seniority and experience would be considered. Central
    Division Judges could be selected by the chief judge of the unified
    court in consultation with the various divisions. Central Division
    members could serve in that capacity for short or lengthy terms. All
    judges of the unified court would receive the same salary and hold the
    same rank.
        This, of course, is only a general outline of what would be an
    improved and more efficient structure designed to cope not only with
    today's caseload but the larger ones anticipated for the future. This
    is not the occasion to elaborate fully because my intent is only to
    offer the generalized concept of a unified court of appeals for
    consideration.\9\ Although the idea tends to elicit gasps of
    incredulity from most circuit judges, empirical evidence that such a
    court structure would function efficiently would temper that
    skepticism.
    ---------------------------------------------------------------------------
        \9\ For a more in-depth discussion, see ``Disconnecting the
    Overloaded Circuits,'' supra.
    ---------------------------------------------------------------------------
                                      iii
        In December 1998, the Commission submitted a report to Congress and
    the President recommending that existing Court of Appeals for the Ninth
    Circuit be organized into ``three regionally based adjudicative
    divisions.'' \10\ Because of its size, the Ninth Circuit, \11\ unlike
    other Courts of Appeals, offers a laboratory for innovation and
    improvisation. The organizational concept described in the Commission's
    Report offers a splendid opportunity to test the practicalities of a
    unified court.
    ---------------------------------------------------------------------------
        \10\ Final Report of the Commission on Structural Alternatives for
    the Federal Courts of Appeals 40 (Dec. 18, 1998) (``Final Report'').
        \11\ I will use ``Ninth Circuit'' to refer to the Court of Appeals
    although I recognize that the Commission recommends that the Ninth
    Circuit as a geographic entity not be split. See id. at 29-30.
    ---------------------------------------------------------------------------
        The Commission has boldly departed from the straight-jacket of
    conventional wisdom in several respects. Foremost is its recognition
    that the court system's adjudicative and administrative functions are
    separable and that the organizations performing these distinct tasks
    need not be coterminous.\12\
    ---------------------------------------------------------------------------
        \12\ Id. at 46.
    ---------------------------------------------------------------------------
        Also noteworthy is the proposal that appeals from the federal
    district courts within California be assigned to different
    divisions.\13\ In taking this step, the Commission has implicitly
    recognized that the primary concern of the United States Courts of
    Appeals is federal law. Too often in the past, the concept of routing
    appeals from district courts in the same state to different appeals
    courts has been denounced as unthinkable. That attitude, however, had
    its origins in a by-gone era when federal law was far less pervasive
    and diversity jurisdiction had an importance beyond that of today.
    ---------------------------------------------------------------------------
        \13\ Id. at 43-44.
    ---------------------------------------------------------------------------
        The Commission's plan is based mainly on geographic contiguity.
    Because that configuration will result in some workload inequality, the
    size of each division's judicial component is to be flexible, falling
    between seven and eleven judges.\14\ Although there is much to be said
    for equality of dockets, the Commission's decision to emphasize
    geographical contiguity is a reasonable choice worthy of
    experimentation.
    ---------------------------------------------------------------------------
        \14\ Id. at 43. This is an appropriate size which should do much to
    enhance coherence and consistency, one of the primary goals of the
    proposed restructuring. See id. at 47-48.
    ---------------------------------------------------------------------------
        The Commission seeks to promote collegiality between the judges of
    the Court of Appeals by requiring that they periodically sit with other
    divisions.\15\ This should reduce the effect of provincialism. Notably,
    the Federal Courts Study Committee recommended that judges of the
    courts of appeals sit, on an exchange basis, on other courts as a means
    to promote experience in court administration.\16\ The current
    proposal, however, envisages longer exchange periods--an even better
    opportunity to enhance uniform adjudication as well as collegiality.
    ---------------------------------------------------------------------------
        \15\ Final Report, at 43.
        \16\ Report of the Federal Courts Study Committee, 155 (April 2,
    1990) (``Study Committee Report'').
    ---------------------------------------------------------------------------
        Worthy of special commendation is the retention of the
    administrative arms of the Ninth Circuit as they now exist.\17\ It is
    but common sense that the library, clerk's office and central staff
    attorneys office remain intact to serve each and every division. For
    the convenience of the Bar, regional sub-offices can be established
    without impairing the efficiency of the circuit offices. Apparently, in
    view of the Ninth Circuit's present practice of hearing arguments in
    various cities within its jurisdiction, there will be no need for
    additional physical structures.
    ---------------------------------------------------------------------------
        \17\ Final Report, at 46.
    ---------------------------------------------------------------------------
        For all its practical vision, however, there is one central
    weakness in the Commission's proposal that threatens its effectiveness.
    The Commission recommends that ``each division would function as a
    semi-autonomous decisional unit'' and that ``decisions made in one
    division would not bind any other division.'' \18\ By including this
    principle in its plan, the Commission neglects to take advantage of one
    of the greatest opportunities offered in the laboratory setting of the
    Ninth Circuit--the chance to promote uniformity in the interpretation
    of federal law.
    ---------------------------------------------------------------------------
        \18\ Id. at 43.
    ---------------------------------------------------------------------------
        According to the Commission, ``[h]aving a single court interpret
    and apply federal law in the western United States, particularly the
    federal commercial and maritime laws that govern relations with other
    nations on the Pacific Rim, is a strength of the circuit that should be
    maintained.'' \19\ It explains this ``strength'' by highlighting that
    ``the Atlantic seaboard and Gulf Coast are governed by law determined
    by courts of appeals in six separate circuits, which gives rise to
    complaints about intercircuit conflicts from practitioners in the
    maritime bar, who regularly bemoan the differences in interpretation of
    federal law in circuits from Maine to Texas.'' \20\Somewhat
    inconsistently, the Commission acknowledges that ``the specter of
    inconsistent interpretations of federal law may be unattractive'' but
    concludes that this evil ``is one that exists throughout the federal
    system, and one that circuit splitting would not ameliorate.'' \21\
    ---------------------------------------------------------------------------
        \19\ Id. at 49-50.
        \20\ Id. at 50.
        \21\ Id. at 44.
    ---------------------------------------------------------------------------
        These statements are undoubtedly correct, but instead of
    resignation to an undesirable situation, one can aim for improvement.
    The Commission did recognize that it would be ``highly undesirable if
    the Northern and Southern Divisions established different rules in an
    admiralty issue.'' \22\ Indeed, the Middle Division should have been
    included in that statement, and the subject matter not confined to
    admiralty. Federal law should be uniform throughout the country, not
    just in the ``western United States.''\23\
    ---------------------------------------------------------------------------
        \22\ Final Report, at 44 n.99.
        \23\ Particularly bothersome is the Commission's suggestion that it
    ``would not appear to matter whether all divisions had the same rule of
    law with respect to factors to be considered in granting an adjustment
    for abuse of trust under the Sentencing Guidelines'' when the very
    purpose behind the Guidelines was to promote uniformity. See id.
    ---------------------------------------------------------------------------
        That is not to say, however, that the Commission ignored the
    conflicts issue. First, in a commendable step, it proposed the creation
    of a ``Circuit Division'' to resolve inter-divisional conflicts.\24\
    Second, the Report urged continuation of the staff attorneys office in
    its present form. With circuit-wide jurisdiction, this office would
    operate as an aid to maintaining doctrinal coherence. Third, the
    assignment of judges to serve intermittently on different divisions
    would also tend to encourage consistency in decisional law.
    ---------------------------------------------------------------------------
        \24\ Id. at 45-46.
    ---------------------------------------------------------------------------
        Any discussion of conflicts must recognize that they fall into two
    general categories--inadvertent and deliberate. The former will occur
    despite the best efforts of all concerned and consequently, a body akin
    to the proposed Circuit Division must exist even if deliberate
    conflicts are eliminated. One method of avoiding inadvertent conflicts
    is pre-filing circulation of all precedential opinions within a
    division. The relatively small size of the Commission's recommended
    divisions makes this desirable practice feasible. As a further aid to
    consistency, the Court might consider designating one of its senior
    staff attorneys to be included in the pre-filing circulation of all
    divisions. That person could alert the opinion writer to existing
    precedents inside or outside the division that might present a
    conflict.
        An expanded pre-filing circulation in some situations would also
    assuage the fear that different divisions would yield inconsistent
    interpretations of California law--a point raised by some opponents of
    splitting the Ninth Circuit. Should the proposed Middle District, for
    example, intend to file an opinion with significant pronouncements on
    California law, a draft could be circulated among the judges of the
    Southern Division as well. Thus, all of the judges concerned with
    California law would be kept abreast and given an opportunity to
    comment. Together, these steps could help avoid inadvertent conflicts
    while simultaneously minimizing some of the work in each division.
        Human errors are understandable, unavoidable causes of inadvertent
    conflicts and, to that extent, are excusable. However, the maintenance
    of uniformity in federal law is a powerful--and to some, an
    unanswerable--argument against the creation of deliberate, inter-
    divisional conflicts. It is particularly unfortunate that the
    Commission did not recommend a prohibition against that practice.
        Yet, a ban against creating deliberate conflicts need not--and
    probably should not--require legislative authorization. Such a
    practice, as was the ``law of the circuit'' doctrine, may be developed
    by the courts. Thus, the Commission's recommendations do not preclude
    the divisions themselves from implementing a policy against the
    creation of deliberate conflicts. While an argument is often made that
    creating a deliberate conflict is necessary, even desirable when the
    pre-existing precedent is aberrant or, for substantial reasons, should
    no longer be followed, the remedy in such situations lies in the
    framework proposed by the Commission--i.e., referral to the Circuit
    Division.
        Deliberate conflicts, whether between circuits or divisions,
    threaten federal law uniformity. In considering the Commission's
    proposal, Congress should reassess the recommendation that the
    divisions not be bound by each others' case law. Failing that, the
    divisions themselves should act promptly to halt this pernicious
    practice, as it remains a formidable obstacle impeding improvement in
    the national appellate system.
                                       iv
        If the proposed reorganization of the Ninth Circuit takes effect
    and proves as workable as its advocates--including myself--expect it to
    be, it will open up some intriguing prospects. One would be the
    formation on a nationwide basis of a unified United States Court of
    Appeals. Another possibility, as Professor John B. Oakley mentioned in
    his report to the Commission, of a more incremental nature, would be
    the consolidation of a number of the existing circuits into larger,
    ``jumbo circuits'' with similar divisional structures.\25\
    ---------------------------------------------------------------------------
        \25\ John B. Oakley, ``Memorandum on Divisional Organization of the
    United States Court of Appeals for the Ninth Circuit'' (July 18, 1998),
    reproduced in Working Papers of the Commission on Structural
    Alternatives for the Federal Courts of Appeals, at 145-66.
    ---------------------------------------------------------------------------
        None of these structural proposals will remove a single case from
    the appellate dockets. Yet, the elimination of conflicting opinions
    would reduce, to some extent, the task of resolving appeals. It would
    also have the more important result of improving public confidence in
    the work of the appellate courts.
        The Commission's recommendation to reorganize the Ninth Circuit
    into three adjudicative divisions is a progressive move that would
    improve the administration of justice in the federal intermediate
    appellate courts. Congress should adopt these recommendations as they
    pertain to the Ninth Circuit, and let the experimentation continue.\26\
    ---------------------------------------------------------------------------
        \26\ The creation of larger circuits by consolidation was one of
    the possibilities discussed by the Federal Courts Study Committee in
    addition to a ``unified'' court, and other alternative. See Study
    Committee Report, supra. at 122-23.
        The potential for mergers itself raises some interesting questions.
    For example, would the Fifth and the Eleventh Circuits decide that
    their amicable divorce a few years ago was a mistake and decide to live
    together once again? Having been created by a merger not long ago,
    would the Federal Circuit now join with the D.C. Circuit, a resident of
    the same city and thus, a partner with no geographical disincentives?
    ---------------------------------------------------------------------------
                                   __________
                                    Munger, Tolles & Olson LLP,
                                      Los Angeles, CA, August 19, 1999.
    Re: July 16th Hearing on Ninth Circuit Reorganization

    The Honorable Charles E. Grassley,
    U.S. Senate Committee on the Judiciary, Subcommittee on Administrative
            Oversight and the Courts, Hart Senate Office Building,
            Washington, DC.
        Dear Senator Grassley: I have recently reviewed my testimony and
    found it to be inaccurate in one particular. In making the point that
    fewer judges of the Ninth Circuit would participate in the en banc
    process for individual cases under the proposed reorganization, which
    is the case, I unintentionally overstated my argument and wish to
    correct it.
        While it is true that under existing procedures every active judge
    on the Court has the opportunity to participate in the decision as to
    whether an individual case receives en banc review and under the
    proposed reorganization only the active judges assigned to one of the 3
    divisions would participate, it is not true, as I stated, that only the
    ``resident judges'' (those residing in the division) would vote on the
    en banc decision. Rather, all active division judges, but not all
    active circuit judges, as is now the case, would participate.
        i very much regret this unintentional, inaccurate overstatement
    found on page 55 of the transcript, from the last 3 words of line 17 to
    the first word on line 22.
        Thank you for allowing me to correct the record.
                Sincerely yours,
                                       Ronald L. Olson.
                                   __________

      Prepared Statement of Hon. Gordon H. Smith, a U.S. Senator From the
                                State of Oregon

        Mr. Chairman, and members of the Committee, I thank you for this
    opportunity to provide testimony in support of S. 253, the Federal
    Ninth Circuit Reorganization Act of 1999. I would also like to extend
    my appreciation to the Honorable Judge Diarmuid F. Scannlain, United
    States Circuit Judge for the Ninth Circuit for his forthrightness, and
    willingness to provide his professional perspective on this important
    issue facing the Ninth Circuit.
        Mr. Chairman, the Ninth Circuit, encompassing about 1.4 million
    square miles, faces an uncertain future in terms of its ability to
    serve a growing population, and ever-growing caseload. Serving more
    than 50 million people, the Ninth Circuit Court of Appeals handles over
    8,500 filings per year--with a reversal rate of about 95 percent. By
    the year 2010, the Ninth Circuit population will increase in size by 43
    percent--which under the current conditions, could only result in a
    significant increase in caseload and reversal rate. While I understand
    that Judge O'Scannlian and I face similar opposition from our
    respective colleagues with respect to our position on this issue, I
    believe that S. 253 is an equitable solution that will ultimately
    result in a more consistent and predictable Ninth Circuit Court of
    Appeals.
        In 1997, Congress charged the Commission on Structural Alternatives
    for the Federal Courts of Appeals to study and make recommendations to
    Congress with respect to changes in the boundaries and structure of the
    Ninth Circuit Court of Appeals. The Commission recommended that
    ``Congress enact a statute organizing the Ninth Circuit Court of
    Appeals into three regionally based adjudicative divisions--the
    Northern, Middle and Southern--each division with a majority of its
    judges resident in its region, and each having exclusive jurisdiction
    over appeals from the judicial districts within its region.'' The
    legislation you have before today, adopts those recommendations, and
    does so without sacrificing the efficacy of the court.
        S. 253 is a rational approach that would divide the Ninth Circuit
    into three regional divisions of the Northern, Middle and Southern,
    each having exclusive jurisdiction over cases within its region.
    However, the court will continue to have one administrative office, and
    judges will primarily remain within their regions. Importantly,
    Northwest cases would be decided by Northwest judges.
        As my predecessor, Senator Mark O. Hatfield stated, ``The Ninth
    Circuit's size has created serious problems: too many judges spending
    more time and money traveling than hearing cases, a growing backlog of
    cases which threaten to bury each judge, a dangerous inability to keep
    up with current case law, a breakdown in judicial collegiality and,
    most importantly, a failure to provide uniformity, stability and
    predictability in the development of federal law throughout the Western
    region. It is increasingly clear that these problems cannot be solved
    by the reforms already implemented by the Court.''
        Mr. Chairman, I commend you for your timely consideration of this
    important legislation and for this opportunity to testify in support of
    S. 253, the Ninth Circuit Reorganization Act of 1999.
                                   __________

                 Prepared Statement of Prof. Arthur D. Hellman

                                    Summary

      1. Although the Commission states that the Ninth Circuit Court of
        Appeals ``should continue to provide the West a single body of
        federal decisional law,'' its plan subverts that goal by abandoning
        circuit-wide stare decisis. This radical step would authorize, if
        not encourage, the creation of intracircuit conflicts.

      2. The proposed ``Circuit Division'' would do little to preserve
        uniformity. The Commission's plan places substantial constraints on
        the Division's authority. In all likelihood, decisions of the
        Circuit Division would be so infrequent, and their effect on the
        law of the division so limited, that ``the law of the circuit''
        would shrink to near-insignificance.

      3. The Commission plan is thus not a compromise. Those who want to
        divide ``the Ninth Circuit'' have never cared about the circuit as
        such; what they have sought is a division of the court of appeals.
        And that, for all but a handful of cases, is what the Commission
        plan would give them.

      4. The rationale for the Commission plan is that ``the law-declaring
        function of appellate courts requires groups of judges smaller than
        the present Ninth Circuit Court of Appeals.'' But the arguments
        offered in support of the rationale do not stand up under scrutiny.

      5. The Commission insists that judges on a large appellate court
        cannot adequately monitor other judges' decisions. The flaw is that
        the Commission lumps together two very different activities:
        keeping up with circuit law, which is something done by individual
        judges, and monitoring panel opinions, which is done by the court
        as an institution. Judges today need not keep up with circuit law
        in order to make use of opinions when they are relevant. Effective
        monitoring does not require that all judges keep up with all
        opinions. The evidence indicates that Ninth Circuit judges can and
        do monitor the opinions rendered by their colleagues.

      6. The Commission argues that ``large appellate units have difficulty
        developing and maintaining consistent and coherent law.'' But it
        disdains empirical research and relies instead on ``perceptions''
        and its own (unspecified) experience. That is far too little to
        justify the radical restructuring that it proposes.
                                     ______

        Mr. Chairman and Members of the Subcommittee: I appreciate this
    opportunity to express my views on S. 253 and the Final Report of the
    Commission on Structural Alternatives for the Federal Courts of Appeals
    (White Commission). S. 253, the Ninth Circuit Reorganization Act, would
    implement the Commission's recommendation regarding the Ninth Circuit.
    The Commission's proposal would keep the Ninth Circuit intact but
    divide the court of appeals into three ``semi-autonomous'' adjudicative
    units.
        The Commission's plan gives the appearance of compromise and
    moderation. But appearances are deceiving. The Commission plan is not a
    compromise; it gives one side almost everything it wants. And far from
    being moderate, it embodies a novel approach to ``the law-declaring
    function of appellate courts'' that is flawed both in conception and in
    execution.
        This leap into the unknown might be justified if the Commission had
    demonstrated the existence of a problem of serious dimensions that
    could not be dealt with in any other way. On the contrary, in
    explaining its key conclusion--that ``the law-declaring function of
    appellate courts requires group of judges smaller than the present
    Ninth Circuit Court of Appeals''--the Commission offers remarkably
    little in the way of proof. The Commission simply does not make the
    case for the radical restructuring that it proposes.

                                  Introduction

        Five experiences have shaped my views on S. 253 and the White
    Commission report. First, from 1973 through 1975 I served as deputy
    executive director of the Commission on Revision of the Federal Court
    Appellate System (Hruska Commission). In that capacity I drafted the
    report that recommended that the Ninth Circuit be divided into two new
    circuits. (For a discussion of why that recommendation is no longer
    persuasive, see Hellman, Dividing the Ninth Circuit: An Idea Whose Time
    Has Not Yet Come, 57 Mont. L. Rev. 261, 264-74 (1996).)
        Second, in 1978-79 I was the director of the central legal staff of
    the Ninth Circuit Court of Appeals. My responsibilities included
    devising and implementing procedures that would assist the court to do
    its work more effectively, and in particular to meet the new needs
    created by the expansion of the court from thirteen to twenty-three
    active judges.
        Third, in the late 1980s I directed a study by fourteen legal
    scholars and political scientists of the structural and procedural
    innovations implemented by the Ninth Circuit during the period 1976-
    1988. The fruits of that study were published by Cornell University
    Press in 1990; the title of the book is ``Restructuring Justice: The
    Innovations of the Ninth Circuit and the Future of the Federal
    Courts.''
        Fourth, as stated by the Federal Judicial Center in the report
    submitted to Congress on Structural and Other Alternatives for the
    Federal Courts of Appeals, I have conducted ``the only systematic study
    of the operation of precedent in a large circuit.'' This research has
    been published in several articles, including Jumboism and
    Jurisprudence: The Theory and Practice of Precedent in the Large
    Appellate Court, 56 U. Chi. L. Rev. 541 (1989).
        Finally, earlier this year, Chief Judge Hug appointed me to a 10-
    member Evaluation Committee whose mission is ``to examine the existing
    policies, practices and administrative structure of the Ninth Circuit
    Court of Appeals, in order to make recommendations to its judges to
    improve the delivery of justice in the region it serves.''
        It is an honor to serve on the Evaluation Committee and to work
    with the Ninth Circuit Court of Appeals in seeking better ways of
    carrying out the processes of appellate adjudication. However, I do not
    speak for the court or any other institution; the views expressed here
    are my own.
            i. the commission's plan: contradictions and conundrums
        The Commission offers a plan that would retain the Ninth Circuit
    but divide its court of appeals into three ``semi-autonomous''
    divisions. The plan contains four elements:

      1. Regional jurisdiction over appeals. The present Ninth Circuit
        Court of Appeals would be reorganized into three ``regionally based
        adjudicative divisions.'' Each division would hear the appeals
        filed from that geographical area.

      2. Regional assignment of judges. Each division would include seven
        to eleven court of appeals judges in active status. ``A majority of
        [the] judges serving on each division would be residents of the
        districts over which that division has jurisdiction, but each
        division would also include some judges not residing within the
        division, assigned randomly or by lot for specified terms of at
        least three years.''

      3. Regional performance of the law-declaring function. ``Each
        regional division would function as a semi-autonomous decisional
        unit.'' This entails two changes from the current arrangement. The
        circuit-wide en banc process would be abolished; the functions now
        performed by the Ninth Circuit's en banc court would be performed
        by en banc courts for each division. More important, divisional
        decisions--whether by panels or by the en banc court--would be
        binding only within the division.

      4. Conflict resolution by a ``Circuit Division.'' In addition to the
        three regional divisions, the Commission plan would establish a
        ``Circuit Division * * * whose sole mission would be to resolve
        conflicting decisions between the regional divisions.'' The Circuit
        Division would be composed of the chief judge of the circuit and
        twelve active judges--four from each of the regional divisions--who
        would be selected by lot and who would serve for staggered three-
        year terms.

        The Commission argues that its plan ``is the most principled and
    effective way to resolve the debate about the Ninth Circuit and its
    court of appeals.'' (Final Report at 57.) However, analysis of the
    various elements leads to a very different conclusion. The Commission
    may be correct in saying that its proposal ``addresses the adjudicative
    concerns that have animated calls to split the circuit.'' But its
    confidence that the plan ``will achieve the legitimate ends of * * *
    those who seek to preserve [the circuit]'' is sorely misplaced.

                  A. Abandonment of circuit-wide stare decisis

        The most radical aspect of the Commission's proposal is the
    abandonment of circuit-wide stare decisis. Today, the Ninth Circuit,
    like all of the other federal courts of appeals, follows the rule that
    panel decisions are binding on all subsequent panels unless overruled
    by the Supreme Court or by the court of appeals en banc. Under the
    Commission's plan, decisions handed down in one division would be
    binding only within that division.
        If there was any doubt about the Commission's commitment to this
    element of its plan, it is eliminated by the Commission's response to
    the comments by Chief Judge Hug on the preliminary draft of the
    Commission report. Judge Hug, speaking for a majority of the judges of
    his court, urged the Commission to modify its plan by making panel
    decisions binding throughout the circuit ``unless * * * overruled by a
    circuit-wide en banc court.'' The Commission emphatically rejected this
    suggestion, stating that this modification ``would leave the court of
    appeals essentially unchanged as an adjudicative body, and would defeat
    the purpose of the divisional structure that we recommend.''
        Abandonment of circuit-wide stare decisis would be a logical step
    if the Commission were recommending that the Ninth Circuit be kept
    intact solely for administrative purposes and that three separate
    courts be created within the circuit for adjudication. But that is not
    the Commission's plan, nor does the Commission reject the premise that
    the law within the Ninth Circuit should be uniform. On the contrary,
    the Commission states at the outset that the Ninth Circuit Court of
    Appeals ``should continue to provide the West a single body of federal
    decisional law.'' (Final Report at iii.)
        How, then, can the Commission propose a regime under which
    ``[d]ecisions made in one division would not bind any other division''?
    The Commission gives two answers, perhaps three (with the third buried
    in a footnote).
        First, the report contemplates that decisions of other divisions
    would ``be accorded substantial weight as the judges endeavor to keep
    circuit law consistent.'' As a prediction of judicial behavior, this is
    well grounded in experience. Circuit judges today generally respect the
    decisions of other circuits, and there is no reason to think that
    judges in a restructured Ninth Circuit would not accord similar weight
    to decisions of other divisions.
        On the other hand, there is a difference between respecting
    precedent and being obliged to follow it. I have no doubt that judges
    today often follow precedents they do not like, simply because it is
    their obligation to do so. If stare decisis did not operate circuit-
    wide, judges would be free simply to reject precedent from another
    division. The Commission plan would thus authorize, if not encourage,
    the creation of intracircuit conflicts.
        This brings us to the Commission's second and more important
    response: the creation of a ``Circuit Division.'' The Commission
    insists that the Circuit Division--``a small, stable, but still
    representative subset of the court's judges * * * focused on conflict
    resolution''--can insure the maintenance of ``desirable circuit-wide
    uniformity.'' (Final Report at 5 1.) This response raises two
    questions. What does the Commission mean by ``desirable circuit-wide
    uniformity''? And how much uniformity would the Circuit Division bring?
    To those questions I now turn.

             B. Jurisdiction and authority of the circuit division

        The keystone of the Commission plan is the Circuit Division.
    Without the Circuit Division, there could be no pretense that the Ninth
    Circuit Court of Appeals remained intact in anything but name. Each of
    the regional divisions would be totally autonomous except for the
    cumbersome process of rotating judges among the regions. Thus, it is
    essential to understand how the Circuit Division would operate.
        The first thing that stands out is the extraordinary constraints
    the Commission's plan places on the authority of the Circuit Division.
    The jurisdiction of the Division would be limited to resolving
    ``square'' conflicts between the regionally organized divisions.
    Further, the Circuit Division could not take any case on its own
    motion; it could act only in response to an application for review
    filed by a party.
    1. Only ``square'' conflicts
        What does the Commission mean by ``square'' conflicts? One
    plausible interpretation is that the Commission refers to situations in
    which one division explicitly refuses to follow a decision handed down
    in another division. Explicit rejection is the only treatment of
    circuit precedent now forbidden to court of appeals panels. It would be
    logical to say that when a panel does take advantage of the freedom
    conferred by the divisional arrangement, the decision would be subject
    to review by the Circuit Division to eliminate the disagreement.
        Suppose, though, that the panel (or the regional en banc court)
    distinguishes a decision from another division that reached a contrary
    result in a similar case. The losing litigant argues that,
    notwithstanding the purported grounds of distinction, the panel's
    resolution conflicts with the other division's ruling. Could the
    Circuit Division find that a square conflict exists and accept the
    application for review.
        If the answer is ``yes,'' that is an invitation to tiresome
    wrangling over whether two decisions really are in conflict. In this
    regard, it is instructive to consider the experience of the Florida
    Supreme Court. That court is vested with jurisdiction to review ``any
    decision of a district court of appeal * * * that expressly and
    directly conflicts with a decision of another district court of appeal
    * * * on the same question of law.'' Commentators describe the
    jurisdiction as ``disputatious'' and note that ``the existence of
    conflict often is not so certain, meaning that a brief [seeking review]
    must engage in a lengthier and more convoluted argument to establish
    the Court's discretion to hear the case.'' See Gerald Kogan & Robert
    Craig Waters, The Operation and Jurisdiction of the Florida Supreme
    Court, 18 Nova L. Rev. 1151, 1225, 1238 (1994). That is hardly a model
    to be emulated.
        What makes the arrangement even more problematic in the Ninth
    Circuit context is that the judges of the Circuit Division would be
    questioning the good faith or competence of their own colleagues. If
    the Circuit Division agrees to review a decision that has distinguished
    an opinion handed down by another regional division, that would be
    tantamount to saying that the later panel has failed to recognize that
    the earlier opinion involved the same issue and required the same
    result. I suspect that the Circuit Division judges, taking into account
    the effect of such a declaration on collegiality within the circuit and
    on the legitimacy of the system, would be reluctant to take that step.
        These considerations suggest that the jurisdiction of the Circuit
    Division would be limited to acknowledged conflicts--conflicts created
    by the explicit refusal of one regional division to follow the
    precedent established by another division. That limitation, however,
    would substantially undercut the effectiveness of the mechanism.
    Indeed, the Circuit Division would be far less able than the existing
    limited en banc court to maintain uniformity within the circuit--a
    mechanism that the White Commission finds wanting.
        Under the existing arrangement, Ninth Circuit judges can and do
    grant rehearing en banc to resolve tensions in circuit law caused by
    inconsistencies in doctrines or outcomes less blatant than explicit
    rejection. See, e.g., Hale v. Arizona, 993 F.2d 1387, 1389 (9th Cir.
    1993) (en banc) (``We consider these questions en banc to resolve the
    tension between [two panel decisions].''); Townsend v. Holman
    Consulting Corp., 929 F.2d 1358, 1365 (9th Cir. 1990) (en banc)
    (overruling panel decision, thus obviating need to maintain ``unstable
    and awkward'' distinction drawn by later case).
        When the Commission issued its draft report in October 1998, it was
    unclear whether the narrower or broader interpretation of the Circuit
    Division's jurisdiction was intended. The Final Report appears to
    endorse the narrower reading. In explaining how the arrangement it
    proposes ``will ensure clearer, more consistent circuit law,'' the
    Commission states that ``conflicts * * * between divisions will be more
    sharply highlighted,'' and that the Circuit Division will ``choose
    between articulated conflicting points of view.'' (Final Report at 49;
    emphasis added.) This language implies that the Circuit Division would
    be limited to cases in which a panel explicitly rejected the ``point of
    view'' adopted by one of the other divisions. As long as the panel
    found grounds of distinction--even ``unstable and awkward'' grounds--
    the Circuit Division would stay its hand.
    2. Only upon litigant request
        The authority of the Circuit Division would be further constrained
    by the Commission's insistence that the jurisdiction of the Division
    could be invoked only by a party to a case--and ``only after the panel
    decision had been reviewed by the division en banc or a divisional en
    banc had been sought and denied.'' Here, too, the Commission plan casts
    aside one of the mechanisms used by the Ninth Circuit today to maintain
    uniformity: the sua sponte panel-initiated en banc call.
        Recent decisions illustrate the utility of this procedure. In 1998,
    the court took a group of cases en banc sua sponte ``to rethink our
    previous decisions'' on the preemption of state tort claims by the
    Airline Deregulation Act. Charas v. Trans World Airlines, Inc., 160
    F.3d 1259 (9th Cir. 1998). The en banc opinion explained, ``Because of
    the need to clarify the law in this area, these cases were taken en
    banc after they were assigned to a three-judge panel, but prior to the
    panel's rendering a decision.'' The en banc court issued a unanimous
    opinion overruling two panel decisions and establishing the law for the
    entire circuit. This process would not have been possible under the
    Commission's plan. More recently, the court accepted a panel's sua
    sponte en banc call to resolve ``an irreconcilable conflict in this
    circuit's case law regarding the standard of review for rulings on the
    prosecution's use of peremptory challenges.'' Tolbert v. Gomez,--F.3d--
    (9th Cir. 1999) (No. 97-55004). The court eliminated the inconsistency
    without waiting for a litigant's request and without waiting for the
    panel to issue an opinion.

                C. The commission's narrow vision of uniformity

        Supporters of the Commission plan are caught on the horns of a
    dilemma. If the Circuit Division can review decisions even when the
    regional panel insists that the other division's ruling is
    distinguishable, it opens the door to time-consuming and uncollegial
    disputation over whether the new case creates a ``square'' conflict.
    But if the Circuit Division is limited to hearing cases in which one
    division has explicitly rejected another division's precedent, it will
    be powerless to eliminate less blatant inconsistencies of the kind that
    arouse concern today.
        Is there any escape from this quandary? The White Commission gives
    what it may regard as a partial answer. In a little-noticed footnote--
    not included in the October 1998 draft report--the Commission reveals
    that its vision of ``uniformity'' is a narrow one. The Commission's
    text refers to ``conflicts on issues for which circuit-wide (or state-
    wide) uniformity is important.'' (Emphasis added.) The footnote
    explains:

              [W]e envision that [the function of the Circuit Division]
            will be focused on maintaining uniformity on issues of law that
            matter to the entire circuit or to a state (such as California)
            that is in more than one division. For example, it would be
            highly undesirable if the Northern and Southern Divisions
            established different rules on an admiralty issue. On the other
            hand, it would not appear to matter whether all divisions had
            the same rule of law with respect to the factors to be
            considered in granting an adjustment for abuse of trust under
            the Sentencing Guidelines. (Final Report at 44 n.99.)

    Although the Commission does not generalize from its two examples, this
    passage implicitly draws a distinction emphasized by the Federal Courts
    Study Committee in its analysis of conflicts between circuits. The
    Study Committee recognized that not all intercircuit conflicts are
    ``intolerable,'' and it posited that one criterion for identifying
    ``intolerable'' conflicts is that they ``impose economic costs or other
    harm to multi-circuit actors.'' The White Commission's examples suggest
    that it draws the line in the same way.
        In the aftermath of the Study Committee report (and at the request
    of Congress), I conducted a study of unresolved conflicts between
    federal judicial circuits. The study concluded that, more often than
    not, unresolved conflicts do not pose a serious threat to the
    activities of multi-circuit actors. Indeed, on many issues the subject
    matter alone virtually forecloses any effect on multi-circuit actors.
    This is true of sentencing issues, as suggested by the White
    Commission; it is also true of most civil rights issues and most issues
    involving the elements of federal crimes. In disclaiming the importance
    of circuit-wide uniformity on these issues, the Commission is
    implicitly telling us that the Circuit Division need not resolve even
    ``square'' conflicts in large and important areas of federal law.
        Two other aspects of the distinction also warrant mention. First,
    ``square'' conflicts on issues affecting multi-circuit actors are
    probably less common than ``square'' conflicts on issues such as the
    interpretation of federal criminal statutes or sentencing guidelines.
    Second, the concerns that underlie the desire for uniformity between
    divisions on matters of admiralty law and other issues affecting multi-
    circuit actors apply equally to uniformity between circuits. For that
    reason, these concerns often guide the Supreme Court in the exercise of
    its certiorari jurisdiction. If the Circuit Division is confined to
    resolving ``square'' conflicts on issues affecting multi-circuit
    actors, it will have little to do, and that little may well be
    overtaken in short order by Supreme Court decisions.

                    D. The shriveled ``law of the circuit''

        In sum, there is less to the Circuit Division than meets the eye.
    The Circuit Division would resolve only ``square'' conflicts--a
    category apparently limited to cases in which one division has
    explicitly rejected another's precedent. It would act only upon the
    request of a party, and it would probably limit itself to issues that
    affect the operations of multi-circuit actors--a circumstance that is
    the exception rather than the rule. In all other respects, the law in
    each division would be left to develop separately.
        One other element of the Commission plan comes into play here. The
    Commission contemplates that after granting review, ``the Circuit
    Division will simply resolve the issue in conflict, and return the case
    to the regional division for such other proceedings as are necessary.''
    (Final Report at 46; emphasis added.) This too suggests a narrow view
    of the Circuit Division's field of operation, and it reinforces the
    supposition that the Circuit Division would confine itself to discrete
    issues on which there is an explicit disagreement.
        What would the consequences of this arrangement be? I believe that,
    before very long, the three divisions would be carrying out their law-
    declaring functions almost as separate courts. Decisions of the Circuit
    Division would be so infrequent, and their effect on the law of the
    division so limited, that ``the law of the circuit'' would shrink to
    near-insignificance.

                         E. Isolation of the divisions

        The scenario I have described is made even more likely by the
    probable fate of another element of the Commission's plan, the long-
    term random rotation of judges among the divisions. Here is what the
    Commission has to say about the rotation feature in its report:

              A majority of judges serving on each division would be
            residents of the districts over which that division has
            jurisdiction, but each division would also include some judges
            not residing within the division, assigned randomly or by lot
            for specified terms of at least three years. (Final Report at
            43.)

    The draft statute is somewhat more open-ended:

              A majority of the judges assigned to each division shall
            reside within the judicial districts that are within the
            division's jurisdiction * * *; provided, however, that judges
            may be assigned to serve for specified, staggered terms of
            three years or more, in a division in which they do not reside.
            Such judges shall be assigned at random, by means determined by
            the court, in such numbers as necessary to enable the divisions
            to function effectively. (Final Report at 94.)

        Even here, there is some ambivalence about long-term cross-division
    assignment of judges. (Compare ``would'' in the report text with
    ``may'' in the draft statute.) And when Senator Murkowski (joined by
    Senator Gorton) introduced the legislation implementing the Commission
    proposal, he offered the ``strong suggestion'' that the Senate
    Judiciary Committee eliminate the rotation requirement altogether.
        I believe that if the Commission plan were to be enacted into law,
    the Murkowski view would prevail. I say this because there is simply no
    constituency for the long-term random rotation of judges among
    divisions. The northwestern senators--who until now have been the most
    ardent advocates of splitting the circuit--have already made clear
    their opposition to this feature. And the circuit judges, most of whom
    do not want any division of the circuit or the court, would be equally
    opposed to long-term cross-division assignment. A judge living in
    Alaska would hardly relish the prospect of flying to Pasadena or
    Phoenix for every argument calendar for three long years. A judge from
    Los Angeles would not want to hear all of his or her cases in the
    northwest.
        I am not suggesting that judges would hear cases only in their own
    region. On the contrary, short-term cross-division assignment of judges
    would certainly be a feature of the arrangement, if only because
    caseloads will seldom be proportional to the number of judges residing
    in each of the regions. But that is little different from current use
    of, for example, district judges and senior judges from other circuits.
    The judges regularly sitting in each division would be the judges who
    reside there.

                    F. Conclusion: the compromise that isn't

        What happens when you put all of this together? In all likelihood,
    the result would be something like this. In each division, cases would
    be adjudicated largely by a self-contained group of judges bound only
    by the precedents they themselves have handed down. The Circuit
    Division would intervene to provide circuit-wide law only on the rare
    occasions when a panel or en banc court in one division has explicitly
    rejected another division's precedent on an issue that affects multi-
    circuit actors. In many--perhaps most--areas of the law, each division
    would develop its own line of precedent. The ``law of the circuit''
    would become almost an irrelevance.
        This analysis explains why the Commission plan is not a compromise.
    Those who want to divide ``the Ninth Circuit'' have never cared about
    the circuit as such. It is a matter of indifference to them whether the
    circuit council, the Bankruptcy Appellate Panel, the circuit
    conference, and other circuit institutions remain as they are. What
    they have sought is a division of the court of appeals. And that, for
    all but a handful of cases, is what the Commission plan would give
    them.
                     ii. the commission's faulty diagnosis
        Notwithstanding its flaws and limitations, the divisional structure
    plan might be worth pursuing if the Commission had identified a serious
    problem in the Ninth Circuit Court of Appeals that could be solved only
    through reliance on smaller adjudicative units. But on the evidence of
    the Commission report, no such problem exists.
        The rationale for the Commission plan is that ``the law-declaring
    function of appellate courts requires groups of judges smaller than the
    present Ninth Circuit Court of Appeals.'' This rationale rests in turn
    on two overlapping arguments. First, judges in a large appellate court
    are unable ``to monitor all the decisions the entire court of appeals
    renders.'' Second, ``large appellate units have difficulty developing
    and maintaining consistent and coherent law.'' Neither argument stands
    up under scrutiny.

                        A. Monitoring of panel opinions

        Central to the Commission's vision of effective appellate
    adjudication is the ``monitoring'' of panel opinions by other judges of
    the court. The Commission puts it this way:

              Courts of appeals rely on their judges to monitor the
            decisions of all panels of the court so that their own
            decisions are consistent with earlier decisions of the court
            and so that the court can identify and correct any
            misapplication or misstatements of the law. * * * The volume of
            opinions produced by the Ninth Circuit's Court of Appeals and
            the judges' overall workload combine to make it impossible for
            all the court's judges to read all the court's published
            opinions when they are issued. (Final Report at 47.)

    For several reasons, the Commission's reliance on this theory is
    misplaced.

        First, as Chief Judge Hug and his colleagues have aptly stated, the
    assumption that judges cannot keep sufficiently abreast of circuit law
    without reviewing opinions as they come out ``is a relic of the pre-
    computer era.'' Before computers, opinions would not appear in the
    advance sheets for weeks or months; digests, citators, and other
    research tools lagged even further behind. On a large court, the only
    way a judge could avoid an inadvertent conflict with another panel's
    decision was to read opinions as they came out, sort them into piles by
    subject matter, and perhaps keep a personal index of important rulings.
        Today, conditions are very different. If a judge is considering a
    case involving NEPA or FOIA or Miranda or Noerr or any other issue, all
    of the court's decisions on point, no matter how recent, can be
    accessed in seconds through Westlaw and Lexis. In addition, the Ninth
    Circuit has its own computerized case inventory tools. A judge may scan
    newly filed opinions simply to get a sense of what is going on in the
    court, but to collect cases in an effort to replicate the computerized
    databases would be a waste of time.
        Second, the Commission lumps together two very different
    activities: keeping up with circuit law and monitoring panel opinions.
    Keeping up with circuit law is something done by individual judges. As
    already indicated, with all circuit law now easily retrievable by
    computer when it is needed, there is no particular reason for
    individual judges to acquire familiarity with decisions that have no
    relevance for any of their current cases.
        Monitoring panel opinions, in contrast, is something that the court
    does as an institution. The purpose of monitoring, as the Commission
    suggests, is to identify panel decisions that conflict with earlier
    decisions of the court or that misstate the law. But effective
    monitoring does not require that all judges keep up with all opinions.
    As long as each opinion receives some scrutiny by off-panel judges, the
    objectives can be met.
        Third, the Commission goes off track by referring to ``[t]he volume
    of opinions produced by the Ninth Circuit's Court of Appeals.''
    (Emphasis added.) What the Commission fails to mention is that the
    volume of published opinions does not correlate with circuit size. In
    1998, three other circuits produced a larger number of published
    opinions than did the Ninth Circuit.
        (The analysis is limited to published opinions because only
    published opinions contribute to the law of the circuit. Also, I
    recognize that 1998 may have been aberrational for the Ninth Circuit,
    in that the court's output of published opinions was probably reduced
    by its high vacancy rate. However, it is not uncommon for other
    circuits to approach or exceed the output of the Ninth Circuit.)
        One would think that, other things being equal, an annual output of
    800 opinions could be monitored more easily by 28 judges than by 14.
    Opinions are not fungible, and neither are judges. The larger the
    number of judges engaged in the monitoring process, the greater the
    likelihood that a particular error or inconsistency will catch the eye
    of at least one member of the court.
        Finally, the evidence leaves no doubt that the judges of the Ninth
    Circuit Court of Appeals engage in a substantial amount of opinion
    monitoring. In the four-year period ending in 1997, there were more
    than 300 cases in which an off-panel judge initiated en banc activity.
    (This figure includes only cases in which the off-panel judge formally
    invoked the en banc procedures of the court's General Orders. It does
    not include cases--perhaps quite numerous--in which the off-panel judge
    communicated only with the panel members.) Even when the court did not
    vote on an en banc call, the off-panel judge's comments often resulted
    in modification of the panel opinion and sometimes in a modification of
    the disposition.
        In this light, the Commission's concerns about the supposed
    difficulties of opinion monitoring in the ``large appellate unit'' ring
    hollow. Judges today need not read opinions as they come out in order
    to make use of them when they are relevant. As for monitoring, the
    evidence indicates that the judges of the Ninth Circuit can and do
    monitor the opinions rendered by their colleagues.

                   B. Maintaining coherent and consistent law

        Monitoring, of course, is not an end in itself, but a means to an
    end. The Commission's principal argument is that ``large appellate
    units have difficulty developing and maintaining consistent and
    coherent law.'' (Final Report at 47.) The Commission thus aligns itself
    with those who believe that inconsistencies in panel decisions are more
    common in the Ninth Circuit than in other circuits.
        What is the basis for this conclusion, so critical to the
    Commission's recommendation? The Commission refers to ``perceptions''
    of inconsistency and to its own ``judgment, based on experience.'' The
    ``experience'' is not specified or described. This is a remarkably weak
    foundation on which to build so substantial a structure.
        The Commission acknowledges ``the literature on [the] subject,''
    including my own empirical studies of inconsistency in the Ninth
    Circuit. The Commission's only response is to say that consistency and
    predictability cannot be ``reduce[d] * * * to statistical analysis''
    because the ``concepts are too subtle, the decline in quality too
    incremental, and the effects of size too difficult to isolate, to allow
    evaluation in a freeze-framed moment.'' (Final Report at 39-40 & n.39.)
        It is the Commission's prerogative to reject the methods or
    conclusions of empirical research, but it is regrettable that the
    Commission simply gives up and declares that the concepts are too
    subtle to warrant analysis. For example, what does the Commission mean
    by ``evaluation in a freeze-framed moment''? The research I conducted,
    and which the Commission cites, embraced two distinct years of the
    Ninth Circuit's work, and the evaluation involved decisions rendered
    over a much longer period of time.
        Although the Commission is not willing to credit systematic
    empirical research, it is willing to rely on ``perceptions.'' The
    reference to ``perceptions'' apparently incorporates the brief account
    earlier in the report of the Commission's survey of district judges and
    lawyers in the Ninth Circuit and nationwide. The survey is a valuable--
    indeed unique--source of information, and happily the Commission has
    made available a complete account of the findings in its Working
    Papers. Those findings raise some doubts about the conclusions drawn by
    the Commission.
        Consider one of the specific points cited by the Commission in its
    report:

              Ninth Circuit lawyers, more often than others, reported as a
            ``large'' or ``grave'' problem the difficulty of discerning
            circuit law due to conflicting precedents, and the
            unpredictability of appellate results until the panel's
            identity is known. (Final Report at 40.)

        When we look at the corresponding table in the Working Papers, we
    find that, indeed, Ninth Circuit lawyers were more likely than lawyers
    in other regional circuits to have experienced problems in ``discerning
    circuit law due to conflicting precedents.'' (Working Papers at 86,
    Item 20g.) But two other points also stand out:

       The Ninth Circuit lawyers who viewed the problem as
            ``large'' or ``grave'' constituted only one-quarter of the
            respondents.

       The highest proportion of lawyers giving this response came
            not from the Ninth Circuit, but from the Federal Circuit--a
            court of 12 judges, all of whom sit in the same city.

        A similar pattern can be seen in the responses to the question
    ``how big a problem is the unpredictability of results until the
    panel's identity is known?'' (Working Papers at 87, Item 20j.) Ninth
    Circuit lawyers were more likely to have experienced problems than
    lawyers in other regional circuits, but so were lawyers practicing
    before the Federal Circuit. Interestingly, one out of seven lawyers
    experienced a ``large'' or ``grave'' problem of unpredictability in the
    First Circuit, which has only six judgeships and enjoys a reputation
    for collegiality. (The Commission, in explaining what it means by
    ``collegiality,'' quotes at length from a book by the former chief
    judge of the First Circuit.)
        These findings point to the need for caution in interpreting the
    survey results. The question is not whether particular phenomena are
    associated with the Ninth Circuit Court of Appeals, but whether those
    phenomena are causally linked to circuit size. On this score, a recent
    news story about the Court of Appeals for the Federal Circuit provides
    a useful perspective. (National Law Journal, Aug. 3, 1998, at A-1.) The
    story notes that some members of the intellectual property bar ``accuse
    the specialized court of unpredictability, claiming that judges are
    deeply divided on basic patent doctrine, [and] that results are often
    panel-dependent.'' The story elaborates:

              This factionalism leads to a crap-shoot mentality among
            lawyers who say the outcome of their cases depends too heavily
            on who sits on a particular panel. Because the U.S. Supreme
            Court rarely reviews patent cases, the panels' inconsistent
            rulings remain unresolved. * * * Some say the court should take
            more cases en banc.

        To anyone who has followed the debate over dividing the Ninth
    Circuit, these comments will sound uncannily familiar. They are
    precisely the kinds of comments that give rise to the ``perceptions''
    that the Commission relies on. Yet no one would argue that the Court of
    Appeals for the Federal Circuit is too large and should be divided into
    smaller adjudicative units.
        I do not know whether the criticisms of the Federal Circuit are
    justified. Nor would I want the Ninth Circuit to view the survey
    findings with complacency. I do suggest that the ``perception''
    evidence drawn from the survey offers little support for the
    Commission's conclusion that ``large appellate units have difficulty
    developing and maintaining consistent and coherent law.''
        Finally, there is (to borrow a favorite allusion of Chief Justice
    Rehnquist) the evidence of the dog that did not bark in the night-time.
    If inconsistency is as much of a problem as the Commission believes it
    is, examples should be easy to find. The Commission compiled a
    voluminous record of testimony and statements dealing with the Ninth
    Circuit, yet not a single witness came forward with examples--
    systematic or even anecdotal--of conflicts between Ninth Circuit panel
    decisions. It is not even clear what kinds of conflicts the Commission
    has in mind--whether it believes that panels are ignoring relevant
    precedents, or that panels are drawing unpersuasive distinctions, or
    some combination of the two.
        The absence of examples and the lack of specificity are emblematic
    of the flimsy evidentiary support that underlies the Commission's plan.
    At most, the Commission has shown that there is some dissatisfaction
    with the Ninth Circuit Court of Appeals' performance of its law-
    declaring function. The Commission has not demonstrated the existence
    of problems that would be cured by dividing the court into three
    largely autonomous decisional units.
                                iii. conclusion
        The Commission's proposal for regionally based adjudicative
    divisions reflects a conscientious attempt to respond to criticisms of
    the Ninth Circuit Court of Appeals ``while preserving [an]
    administrative structure that no one has seriously challenged.''
    Unfortunately, the plan is flawed both in conception and in execution.
    It is unlikely to accomplish its goals, and it has the capacity to
    produce much mischief. I urge the Committee to reject the proposal and
    to allow the Ninth Circuit Court of Appeals to continue its course of
    productive experimentation ``to improve the delivery of justice in the
    region it serves.''
                                   __________

     Prepared Statement of Daniel J. Meador, James Monroe Professor of Law
                        Emeritus, university of Virginia

        Mr. Chairman and Members of the Subcommittee: This subcommittee is
    to be highly commended for setting in motion a process that will lead,
    I fervently hope, to enactment of the essential provisions of S. 253.
    That bill embodies the recommendations contained in the Final Report of
    the Commission on Structural Alternatives for the Federal Courts of
    Appeals (the Commission), submitted to the Congress and the President
    on December 18, 1998. It was my privilege to serve as Executive
    Director of the Commission, and I am pleased to respond to the
    invitation to submit a statement to the subcommittee.
        Before my work with the commission this past year, I had spent more
    than a quarter-century studying federal and state appellate courts and
    working with judges, the Department of Justice, other organizations,
    and Congressional committees to improve those courts. So I present this
    statement not solely from the standpoint of my service as the
    Commisssion's Executive Director--indeed I do not speak here for the
    Commission--but as one who has labored long in the appellate vineyards,
    always, to borrow from Lord Macaulay, to reform them in order to
    preserve them--to preserve them as vital organs of government under law
    in the face of continued docket growth and changing circumstances.
        Pursuant to its Congressional mandate, the Commission spent ten
    months of intensive study of the courts of appeals, resulting in the
    most thorough and in-depth examination of the federal appellate system
    since the Hruska Commission report of 1973 (Commission on Revision of
    the Federal Court Appellate System). While no proposals for structuring
    the courts and adjusting their processes is perfect--there are always
    advantages and disadvantages to be weighed--it is doubtful that any
    other body can or will devote the time and resources to developing a
    better set of proposals. Having looked to this Commission for
    guidance--and the Commission having done what it was directed to do--
    Congress would do well, after hearings and due deliberation, to enact
    into law its recommendations. If this opportunity to 'fix'' the
    federal' appellate courts for the next century is not taken, the
    thirty-five year old controversy over the Ninth Circuit will continue
    to fester, with its dysfunctional and debilitating consequences and
    with its damage to the status of the federal courts in the public mind.
    Moreover, an opportunity will have been lost to equip all the courts of
    appeals with the means of coping with future growth.
        Inasmuch as the Commission's report gives particular attention, as
    the statute directed, to the Ninth Circuit, I devote the bulk of my
    statement to that subject.
                   the ninth circuit and its court of appeals
        The commission's report provides an important insight that has not
    heretofore been appreciated, namely, that there is a significant
    distinction between a judicial circuit and a court of appeals. A
    circuit is purely an administrative entity, organized on a territorial
    basis, and should be evaluated as such. A court of appeals, by
    contrast, is an adjudicative body, charged solely with deciding
    appeals. Informal discourse among lawyers and judges tends to equate
    the two. For example, when one hears that ``Judge X is on the Ninth
    Circuit,'' it is understood as meaning that Judge X is a member of the
    court of appeals for the Ninth Circuit. The statement that ``the Ninth
    Circuit held that * * *'' is understood to mean that the Ninth Circuit
    Court of Appeals made such a holding. While this may be useful as
    shorthand, it has the unfortunate consequence of leading persons to
    think that the circuit and its court of appeals are indistinguishable.
    This leads to the assumption that the only way to address problems of
    an overgrown court of appeals and to create more manageable appellate
    units is to split the circuit. The Commission's report rejects that
    premise and makes it plain that circuit splitting is not the only way
    to deal with problems of growth in a court of appeals.
        The commission's enunciation of this distinction between circuit
    and court provides a valuable premise not only for dealing with the
    Ninth Circuit, but also for the consideration of the nationwide circuit
    structure for many years to come. It is hoped that Congress will accept
    and act upon this premise.
        After close examination of the Ninth Circuit, the Commission
    concluded that the problems agitating much of the bench, bar, and
    public officialdom relate only to the court of appeals and not to the
    circuit. Believing that the remedy should be tailored to the problems,
    the Commission recommended that the circuit be left to function intact
    administratively, but that the difficulties of the huge, 28-judge court
    of appeals--a court certain to grow larger in the years ahead--which
    purports to function as a single decisional unit, be addressed by
    restructuring the court into regional adjudicative divisions, thereby
    creating smaller, more manageable appellate forums.
        The benefits and advantages of the recommended divisional structure
    are these:
    1. Heightened uniformity in circuit court law
        An argument that has been heard against the divisional structure is
    that it will increase intra-circuit conflicts, as the decisions
    rendered in one division need not be regarded as binding precedents in
    other divisions. But the opposite is true; uniformity will be increased
    by a divisional structure. Currently, the court of appeals functions
    through dozens and dozens of ever-shifting panels. In practice, the
    court uses more than 40 judges annually (district judges and visiting
    circuit judges, in addition to its own judges). Those panels decide
    thousands of cases annually. In theory, a decision by any one of those
    panels is considered to be a precedent binding on all judges and panels
    of the court. But according to many participants and observers, the
    vast body of case law generated by this multitude of panels is in many
    instances unharmonious, ranging from direct conflicts to near-conflicts
    to divergences in tone and reasoning. Those who assert that this is not
    the situation appear not to acknowledge the realities as seen by many
    others. In theory, the court's existing en banc process irons out all
    conflicts. But again, theory does not accord with reality. According to
    many participants and observors, the court's limited en banc procedure
    is inadequate and ineffective to monitor and conform those thousands of
    decisions.
        By contrast, the divisional structure would provide an effective
    means for maintaining uniformity within each division because its seven
    to 11 judges could monitor all divisional decisions and could sit in a
    true en banc whenever necessary to resolve conflicting panel decisions.
    There would thus be only three decisional units (the three regional
    divisions) among which conflict could arise instead of the many dozens
    or hundreds of panels, as at present. When an interdivisional conflict
    did arise, it could be resolved far more-quickly and inexpensively
    through the Circuit Division than is possible with the current en banc
    process.
    2. Reduced judicial burdens, increased coherence in settling circuit
            law
        A key here is the recommended Circuit Division. It would be a
    continuously functioning body, with a stable, though gradually
    rotating, membership, drawn from throughout the circuit, available at
    all times to resolve inter-divisional conflicts quickly. There would be
    no administrative hassle in having to assemble a fresh group of judges
    for each case, as is done in present practice. The Circuit Division's
    resolution of such conflicts would require no elaborate additional
    process, such as en banc rehearings presently involve. It would resolve
    the conflict on the papers filed in the regional division, without any
    additional briefing or oral argument. Its sole mission would be to
    decide whether position A or position B should be adopted. It would be,
    as some have said, a ``tie-breaker.'' Because it would be a stable, on-
    going body, its judges would become accustomed to working together and
    could thus dispose of business more efficiently. The present Ninth
    Circuit limited en banc functions through judges who are unlikely to
    have worked together before in deciding cases and will never do so
    again--hardly the picture of an appellate court, as such is understood
    in the Anglo-American legal world.
        The Circuit Division should not be confused with the en banc
    procedure long familiar in the federal courts of appeals. It would be a
    quite different entity. In addition to being a stable on-going body, a
    key difference is that it would not be involved in the difficult and
    controversial business of deciding important or unsettled legal issues,
    where there is no inter-divisional conflict. It would act only when
    such a conflict is presented. The Circuit Division would, of course,
    need to decide when a conflict existed so as to act, but this would not
    involve any additional litigation. The judges would examine the
    assertion of a conflict and decide for themselves, as a matter of
    unreviewable discretion, whether there is indeed the kind of conflict
    that needs circuit-wide resolution.
        The divisional plan would make each judge a more effective monitor
    of the court's output and would enable each to play a meaningful role
    in shaping uniform case law. Presently, no Ninth Circuit appellate
    judge can possibly read or even cursorily glance at all of the
    thousands of decisions the court as a whole produces annually. As a
    member of a division of from 7 to 11 judges, he or she could do so. Now
    each judge must consider and respond to en banc calls from each of the
    other judges--27 when the court is at full strength. That takes time
    away from the routine business of deciding appeals and writing
    opinions. Under the divisional plan, each judge would need to consider
    en banc calls from only six to ten other judges. Moreover, when an en
    banc is held, every judge of the decisional unit--the division--can
    fully participate, something that is impossible on the court of appeals
    as it is presently organized.
        The Circuit Division is, of course, another tier in the judicial
    system, but it is a minimal tier, not, as just explained, one that
    involves the full panoply of briefing and argument. It could act
    expeditiously on existing papers with minimal expense to litigants.
    Moreover, some additional tiers in the system are probably inevitable,
    as the volume of appeals and number of judges grow. Indeed, Justice
    Bryer, in a letter to the Commission, suggested ``tiering'' in the
    judicial hierarchy as a promising approach to anticipated growth.
    3. Restored relationship between the appellate forum and the people and
            territory it serves; appropriate accommodation of Federal and
            regional interests
        The federal appellate structure nationwide is built on the concept
    of regionalism, balanced with concern for the federalizing function of
    the appellate courts--a concept endorsed by the Judicial Conference in
    its Long Range Plan. The larger the circuit's territory, the more
    attenuated the regional relationship becomes. The Ninth Circuit is the
    extreme, and it is the sense of many judges, lawyers, and observers
    that this relationship is there stretched too thin. Compare the Ninth
    Circuit, embracing nine large states, with most of the other circuits:
    1st (four states), 2nd (three states), 3rd (three states), 4th (five
    states), 5th (three states), 6th (four states), 7th (three states),
    l1th (three states). To assert that the entire Ninth Circuit,
    stretching from Arizona to Alaska and from Montana to Hawaii, is a
    single region, in the sense relevant here, taxes credulity. One can
    reasonably ask why the lawyers, litigants, and citizens in the
    territory of the Ninth Circuit should be denied the benefits of
    regionalism enjoyed in those other circuits.
        Regionally based divisions would bring the regional interest back
    into balance in the Ninth Circuit, and would do so without splitting
    the circuit. The federalizing function would continue to be served
    because each division would include the territory of more than one
    state, and judges from more than one state would sit on each division.
        In my view, this consideration alone is sufficient to call for
    enactment of the divisional plan, even if one does not accept the other
    arguments that support it.
    4. An appellate court preserved
        The commission's report embodies a traditional conception of
    appellate courts derived from two centuries of experience. This
    traditional conception is that of a relatively small group of judges
    working regularly together in considering and deciding appeals,
    collaborating in arriving at commonly agreed reasoning and result in
    each case. Whether one agrees with the recommendations for a divisional
    plan for a court as large as the Ninth Circuit Court of Appeals depends
    to a considerable extent on whether one shares that view of an
    appellate court. Those who oppose the divisional plan appear not to do
    so; acceptance of their view would work a radical alteration in the
    nature of appellate courts. Thus, the federal appellate courts are at a
    crossroads, presenting Congress with the necessity of deciding the
    nature of those judicial bodies for generations to come. This decision
    involves a fundamental matter of value judgment, one not determined by
    empirical studies or statistics or conflicting factual assertions over
    whether there is this or that degree of inter-circuit conflict. Rather,
    it involves belief rooted in experience about the nature of an
    institution.
        Appellate judges do not act alone, as trial judges do. They must
    function as a team, a team whose members are constantly interacting in
    the decisional process. This conception is often summed up in the word
    ``collegiality.'' One of the best statements of this quality in an
    appellate court--what he called 'judiciality''--comes from Judge Frank
    Coffin, former chief judge of the U.S. Court of Appeals for the First
    Circuit. He says that it involves ``the deliberately cultivated
    attitude among judges of equal status working in intimate, continuing,
    open, and noncompetitive relationship with each other * * *''
        It takes little imagination to understand that 28 judges, or any
    very large number, cannot work in an ``intimate, continuing''
    relationship. In the Ninth Circuit, each judge is unlikely to serve on
    a panel with any other judge of the court more than once every three
    years. The judges may be acquainted with each other and cordial in
    their relationships, but they do not constantly function together in
    adjudicative work.
        Under the traditional conception, an appellate court is a special
    kind of body, basically different from a legislative body or any other
    entity. Those who do not share this conception place little or no value
    on the kind of collegiality described by Judge Coffin, and they see no
    problem in an appellate court of near infinite size. At the
    Commission's public hearings, some of those who defended the present
    organization of the Ninth Circuit Court of Appeals were unwilling to
    say that a court of even forty or fifty judges, attempting to function
    as a single decisional entity, presented a problem. Apparently to those
    holding that view, a random threesome of strangers brought together
    every three years is sufficient to satisfy the appellate process in the
    American legal order. The Commission's report implicitly rejects that
    view, and I urge Congress to do so.
        The divisional plan would preserve the traditional conception of an
    appellate court by establishing decisional units of from seven to 11
    judges each. The plan would permit an indefinite number of judges to be
    added to the court to meet increased business without eroding the
    essential nature of an appellate forum, as additional divisions of this
    size could be created. Without such a plan, we will lose institutions
    that have served the law well and will have in their place ever-growing
    Towers of Babel, increasingly unknown courts composed of a vast number
    of semi-strangers.
                        the courts of appeals generally
        As charged by statute, the Commission examined the structure and
    alignment of the federal appellate system as a whole, and it did so
    with an eye to the future. It reached these conclusions: (1) There will
    be continuing growth in the volume of appeals in the years ahead. (2)
    The rapidity and magnitude of growth will vary among the circuits and
    among types of cases. (3) It is impossible to predict with confidence
    any of these future developments beyond the assertions just made. Given
    the difficulty of predicting the rate, amount, and type of growth in
    each circuit, the Commission concluded that it is not prudent to
    prescribe by legislation at this time a single set of structures and
    procedures for all courts of appeals. Rather, the commission
    recommended that each circuit and court of appeals be authorized in its
    discretion to employ any one of three defined and circumscribed options
    to meet its particular docket situation.
    1. The divisional concept as long-range solution to growth in the
            nationwide appellate system
        The beauty of the divisional concept is that it not only deals
    effectively with the present Ninth circuit situation, but it also
    provides a means of enabling courts of appeals in other circuits to
    continue to function effectively as they grow larger, without splitting
    the circuit. If we adhere to the proposition that no circuit should
    consist of fewer than three states--endorsed by the Hruska Commission
    and re-endorsed by this Commission--there are now eight circuits that
    cannot be split. Yet their courts of appeals are almost certain to
    grow. It is not difficult to imagine several of those courts with 20 or
    more judges within the next 10 to 15 years, a growth that will be
    necessary in order to cope with their dockets. They will increasingly
    encounter the same problems that the Ninth Circuit now encounters. A
    divisional plan of organization will enable those courts to function
    effectively in a situation where circuit-splitting is not an option.
        While the Commission was clear that the Ninth Circuit Court of
    Appeals is at a point where a divisional structure is required, it was
    hesitant to say exactly where that point is reached short of 28
    judgeships. Thus, it concluded that the wise course of action is to
    authorize any court of appeals with more than 15 judgeships to organize
    itself into divisions, in its discretion. This gives each court the
    ability to assess its distinctive situation and design an appropriate
    internal structure.
    2. Two-Judge panels
        Because the courts of appeals now decide many appeals through a
    summary process, typically using staff attorneys, the Commission
    concluded that as to cases of that type, each court of appeals should
    be authorized, in its discretion, to assign them to panels of two
    judges instead of three judges. The report explains this option in
    detail.
    3. District court appellate panels
        Shifting a portion of the appellate work to the trial level has
    long been advocated. The Commission concluded that the idea is
    sufficiently promising that each Circuit Judicial Council should have
    discretionary authority to establish district court appellate panels
    and assign designated categories of cases to those panels, each
    consisting of two district judges and one circuit judge.
        In all of these options, the Federal Judicial Center would be
    charged with monitoring the procedure and reporting on the experience
    to the Judicial Conference of the United States, which, in turn, would
    communicate its views to the Congress.
                            minor changes in s. 253
      1. In Section 2(c)(1) of the bill, I suggest that the following
        sentence be added at the end: ``A judge selected for service on the
        Circuit Division shall continue to perform regular judicial duties
        as a member of a regional division.'' The reason for this provision
        is to make it clear that selection for the Circuit Division does
        not relieve a judge from his or her regional divisional duties.
        service on the Circuit Division is simply an additional duty, as
        service on an en banc now is.
      2. In Sections 2(e), 3(c), and 4(c), The Federal Judicial center is
        required to report within three years after the date of enactment
        of the Act. This is much too short a period of time within which to
        obtain a meaningful study and evaluation of these procedures. After
        enactment of this bill, it is likely to take any court several
        months to put the new structures or procedures in place and begin
        to function under them. After collecting and evaluating data, it is
        likely to take the Federal Judicial Center a substantial time to
        write a report. The upshot is that there would be less than two
        years of experience on which a report could be based. That is
        hardly even one appellate cycle. While the eight years recommended
        by the Commission may be considered too long, three years seems
        clearly too short. I suggest that the bill be amended to specify
        five years within which the FJC report must be submitted.
        As is always the case with proposals for change, opponents can
    raise an array of hypothetical questions and imagined difficulties in
    their operation. And so it is here. Having heard many, and maybe all,
    of them, I am satisfied that no one of them amounts to a reason for
    rejecting the Commission's recommendations. Some of the imagined
    situations will never occur, and others will be worked out in practice.
    It must be remembered that any new judicial structure, jurisdiction, or
    procedure will go through an initial ``shakedown'' period after its
    adoption, during which kinks are ironed out and uncertainties are
    clarified. It should also be borne in mind that much of the opposition
    voiced to the commission's recommendations comes, as members of
    Congress no doubt understand, from the instinctive objection to change
    by some judges and lawyers.
        The relatively modest, evolutionary changes to the century-old
    federal appellate system recommended by this Congressionally created
    Commission are needed to preserve the appellate courts as we have known
    them in the face of unprecedented growth. After three decades of
    debates, conferences, committee hearings, studies, and reports, I
    respectfully submit that it is time for Congress to act.
                                   __________

                   Prepared Statement of Joseph T. Sneed, III

                              introductory remarks
        I shall devote the initial Portion of this presentation to what the
    entire federal judicial system should resemble fifty years hence. I do
    this because whatever happens to the Ninth Circuit in the near future
    should anticipate that future to the extent possible.
        Certain assumptions about future developments are quite reasonable.
    These include the increasing dominance of federal law over state law
    and continuing increases in the number of lawyers. In short, all signs
    point to a continuing increase in federal litigation and a
    corresponding increase in the number of federal judges serving the
    nation, Unfortunately, no other assumption appears reasonable.
        This means this Commission, in my opinion, must base its
    recommendations on that assumption. When so based I submit that the
    commission must proceed in one of two basic directions. The first would
    be to preserve the existing Ninth Circuit as a model for the future,
    and recommend the eventual consolidation of the remaining circuits into
    Eastern, Midwestern, Southern, and Southwestern circuits. This, or
    something resembling it, is the ``Mega-Circuit'' vision. Within such
    circuits there would very likely develop specialized circuit agencies,
    such as the present bankruptcy appellate panels, functioning between
    the district court and the Mega-Circuit court.
        The second assumption upon which this commission might proceed is
    that the number of circuits should be increased as the caseload drives
    the need for additional judges power in a given circuit above a range
    between, I would say, 17 to 21 circuit judges. In due course this will
    create the need for the creation of a court to serve as an auxiliary to
    the Supreme Court. It is on the basis of this second assumption that my
    written remarks are based.
        My remarks are addressed to the present geographic configuration of
    the Ninth Circuit Court of Appeals. My position is that it should be
    divided. This conclusion is based on the following considerations.
        The case filings in this Circuit have increased 63 percent in the
    past ten years. They were 5,490 in 1987, and 8,692 in 1997. Also, the
    number of motions filed in this circuit have increased. They were
    approximately 8,643 in 1987, and 12,028 in 1997. Our en banc hearings
    in 1987 were 15, and those in 1997 were only 8. The total number of
    habeas corpus cases was 786, which include 37 death penalty cases. The
    total number of prisoner petitions was 2,151. The total number of pro
    se appeals was 3,424. In the past several years our active judge power
    has substantially declined (for which Congress is largely responsible)
    and this further hampered the Circuit's ability to keep abreast with
    case filings and en banc calls.
                          i. some consequences of size
    A. Collegiality
        In many respects the consequences of these facts are more important
    than the facts themselves. The size of the Circuit dictates that active
    and some senior judges spend an inordinate amount of time in travel.
    While much work is done without the necessity of travel by means of the
    telephone and e-mail, it remains true that rarely is the full court
    assembled in one location. The annual symposium of three or four days
    provides one of the few opportunities for such assembly. The Judicial
    Conference is too large and concerned with matters not always relevant
    to circuit business.
        There are inescapable consequences that flow from these conditions.
    One is the increasing inability to disagree respectfully. Too
    frequently a disagreement on the law leads to sharp verbal thrusts that
    on occasion become infected with distinct hostility. Another is that
    the formal court meeting must be devoted to reporting to those judges
    present the activities of the Chief judge, the Executive Committee, and
    various other committees of the court.
        To some extent the conditions I have mentioned also exist in
    smaller circuits. My point is that they are made more intense by the
    large number of judges in the present Ninth Circuit and their vast
    geographic dispersal. This heightened intensity slowly undermines the
    obligations of collegiality and subtly excuses one's failure to perform
    them. Those obligations are more easily met, or perhaps one should say
    induced, in smaller circuits. Frequent encounters, a lunch, or an
    exchange of social events softens the edge of legitimate judicial
    differences.
        It is true that to some degree appellate judges must be reasonably
    courteous to one another. However, when this obligation is burdened
    with unspoken hostility, courtesy is marked by reserve and restraint.
        it is undeniable that without regard to the size of the court
    judges will differ in their approach to the nature of their duties.
    Usually this difference reveals itself in the manner in which a judge
    utilizes precedents. All precedents can be squeezed or stretched. Every
    judge sometimes resorts to both. These practices, unchecked by frequent
    personal encounters with each of one's colleagues, tend to generate en
    banc calls which can lead to intemperate remarks that further strain
    the obligations of courtesy.
        In my opinion, a court smaller than the present Ninth Circuit will
    better impose a curb on these tendencies. The increasing frequency of
    the necessity of justifying such tendencies to a relatively small group
    of colleagues gradually produces a movement of all toward the center
    more or less satisfactory to most. 33.
    The en banc process
        The reduced force of this pressure toward the center in courts the
    size of the Ninth circuit increases the likelihood of resort to the en
    banc process. This was recognized when the Ninth circuit was increased
    in size to twenty-three active judges. However, an en banc court of
    twenty-three judges is not practical. Then-Chief Judge Browning
    designed and secured approval from the Court and Congress of a limited
    en banc process whereby a case voted by a majority of the active judges
    would be placed before a panel of eleven active judges chosen by lot
    from among all active judges.
        The element of chance in this process, while tolerable with a court
    of twenty-three active judges, becomes, I submit, increasingly
    capricious as the authorized strength of the Ninth circuit increases. A
    similar en banc process of a court of forty- one, for example, very
    likely will not be tolerated. What then is the proper size? Certainly
    the en banc court should be larger than the present eleven. But how
    much larger? What is the proper balance between representational
    fairness and operational efficiency of the en banc panel? Today it
    would be possible to recommend that the en banc court be increased by
    small increments as the authorized-strength of the court grows. I
    strongly suggest that this is an inappropriate course for this
    Commission to endorse.
    C. Other ameliorative possibilities
        No doubt there are procedures available now or relatively soon that
    would, or could, ameliorate the disadvantages of the enormous
    geographic area embraced by the Ninth Circuit. For example, e-mail has
    reduced the delays in inter-chambers communication enormously. Video
    conferencing would permit intra-panel conferencing as well as possibly
    oral arguments heard and seen by all participants without leaving their
    chambers or law offices. The number of appeals entitled to full scale
    oral argument also could be substantially reduced by practice or
    legislation. Indeed, in this circuit during my tenure this has been
    done by practice and without too much protest. Progress in this
    direction could be formalized by creating at the circuit level an
    equivalent of the Supreme Court's certiorari process. In such a system,
    much of the screening process would be done by staff lawyers rather
    than elbow clerks.
    D. The legitimacy concern
        No doubt other measures aimed at increasing our disposition
    capacity will be suggested in presentations to this Commission. While I
    cannot be dogmatic, I must suggest that many of these techniques will
    reduce the legitimacy of a key part of the federal judiciary--the
    Circuit Courts of Appeals. That legitimacy ought not to be eroded. It
    contributes enormously to permitting the Supreme Court to limit its
    grants of certiorari to very important cases secure in the knowledge
    that all cases from the district courts have been carefully screened
    for error by the circuit courts. We should not erode the legitimacy of
    the security on which the Supreme Court relies.
                            ii. a proposed solution
        I suggest that an appropriate and relatively long-term solution is
    the enactment of a law dividing the Ninth Circuit and thereby creating
    a Twelfth Circuit consisting of the northwest states of Oregon,
    Washington, Idaho, Montana, and Alaska. This is not a new idea; it has
    been discussed at least since the 1930's. Indeed in the early 1950's
    then-Chief Judge Denman briefly promoted the idea for which at that
    time there was some support among the circuit judges from the
    northwestern states.
    A. The Northwest as a ``bloodbank'' for California
        The late Chief Judge Chambers, then only recently appointed to the
    Ninth Circuit, opposed the idea at least in part because it was his
    firm belief that only by including the northwestern states in the
    circuit would sufficient judges be nominated and confirmed by the
    Senate of the United States to enable the Ninth Circuit to handle with
    dispatch the appeals that were filed by and on behalf of Californians.
    In his inimitable style Chief Judge Chambers put it this way: ``The
    Northwest is the bloodbank for California.''
        An issue before this Commission is whether that belief remains
    valid. I would argue that it does not. In 1950 the population of the
    then existing states of the northwest was approximately 5,366,000.
    Today the population of those states, plus the State of Alaska, is
    approximately 10,826,000. The combined populations of California,
    Arizona, Nevada and Hawaii is now 38,524,016. cases filed in the Ninth
    Circuit in 1952 originating in the northwestern states numbered 142. In
    1997 the number of cases originating in those states reached 1,973. I
    submit that a Twelfth circuit is justified by these numbers. It remains
    true that the filings originating in California and the states of
    Nevada, Arizona and Hawaii in 1997 are greater than those of the
    northwestern states. In that year they were 6,646.\1\
    ---------------------------------------------------------------------------
        \1\ While these combined figures do not correspond to the total
    number of case filings in 1997, such discrepancy can be explained by
    the omission of case filings from Guam (61) and the Northern Mariana
    Islands (12).
    ---------------------------------------------------------------------------
        These numbers clearly indicate that the case filings in the
    suggested Twelfth circuit are sufficient to justify its existence.
    Obviously the same is true of the reconfigured Ninth circuit. The only
    serious issue is whether the late Chief Judge Chambers, ``bloodbank''
    strategy remains necessary to secure enough circuit Judges in the
    southwest four-state circuit to dispose in a timely fashion of the
    appeals originating in California.
        I submit that the political power of California, one of the giants
    of the Union of States, is sufficient to provide that protection. While
    it has only two senators, the Arizona-Nevada-Hawaii-California Circuit
    would have a comfortable eight plus many congressmen to assist in
    protecting California's interest in securing the needed judges. The
    west is no longer that ``area beyond the Rocky Mountains'' but an area
    rivaling the eastern seaboard in national influence.
    B. An alternative approach
        Moreover, there exists a method by which Congress could eliminate,
    or substantially reduce, California's reliance on the northwest ``blood
    bank.'' This Commission should press Congress to enact,
    contemporaneously with the creation of a northwest circuit, a provision
    requiring that a certain percentage of the judges of the resulting
    southwest Ninth Circuit be from the State of California. Under the
    present figures, roughly 75k of the cases filed in the Ninth Circuit,
    which have their source in the four states of California, Nevada,
    Arizona, and Hawaii, are California cases. Thus, it would be quite
    reasonable to provide that three out of five (60 percent) of the
    appointments should involve residents of California. No doubt were such
    a requirement written into the law, the Senators of these states would
    devise an orderly process of rotation of making their recommendations
    to the President. Moreover, it is likely that the percentage assigned
    to California would be subject to negotiation. The minimum percentage
    assigned to California should never be permitted to fall below one-half
    of the total active judge strength of the southwest circuit.
        I cannot predict whether legislation structured along these lines
    is politically feasible. On the other hand, to release the northwest
    from the Ninth Circuit and simultaneously to assure California of a
    respectable share of Ninth Circuit appointments has considerable appeal
    to both the northwestern states as well as to California. Moreover, it
    should not antagonize Nevada, Arizona, or Hawaii.
    C. A California split between two circuits
        It was suggested some years ago that a portion of California remain
    in the Ninth Circuit and the remainder be assigned to a northwestern
    circuit. The inevitable differences in the interpretation of California
    law and the application thereto of federal statutory and constitutional
    law would make necessary either the creation of ponderous procedures to
    harmonize these conflicts or the imposition of that duty on the Supreme
    Court. Moreover, I would suppose that California practitioners and
    their clients would not welcome such a structure.
        I do not favor this partitioning of California.
                  iii. the future of circuit courts of appeal
        I have not to this point chosen to address directly the larger
    questions of whether, how, and, if so, when the existing structure of
    the Circuit Courts of Appeal should be altered. My focus on the Ninth
    Circuit is responsive to a significant portion of the mandate given by
    Congress to this Commission. Nonetheless, it is obvious that there is a
    link between what is proper for the Ninth Circuit and the future of
    Circuit Courts of Appeal in general.
        It is clear that I do not support the creation of what have been
    called mega-circuits. In such circuits judges become mere overseers of
    a large staff, both within and without the chambers, in which an
    increasing number of cases are decided without a judge, or his or her
    elbow clerk, having examined the record with care. I do not argue that
    such practices frequently result in disaster. That would not be true. I
    do argue that the citizens of the United States, properly informed,
    would not believe that such a system amounts to equal justice to all?
    To forfeit the faith that equal justice exists is not a risk that
    should be encountered lightly.
        I recognize that to downsize the geographical limits of circuits,
    as case filings exceed the limits of direct personal involvement of
    individual circuit judges, could lead to a substantial increase in the
    number of circuits. This in turn creates pressures for the creation of
    one or more judicial bodies to assist the Supreme Court in
    administering and establishing the law of the United States.
        I regard this possibility more remote in time than the existence of
    mega-circuits. Therefore, at this point the downsizing of circuits to
    stabilize and maintain the direct involvement of circuit judges in a
    substantial portion of the case filings is the cautious and proper
    course to follow.
                                   conclusion
        I close my remarks by observing that the geographic reach of the
    Ninth Circuit is enormous, embracing that remnant of manifest destiny.
    Guam, as once it did the treaty port portion of Shanghai. This enormity
    has an undeniable appeal to many, not excluding the judges who sit
    thereon. Our fascination with size is one shared by most Americans
    without regard to their station in life. It is part of our sense of
    identity.
        Nonetheless, it is out of place as a factor in determining whether
    the Ninth Circuit should be split. Our goal should be to design an
    appellate structure that will most satisfactorily serve the citizens of
    the states of Alaska, Washington, Idaho, Montana, Oregon, California,
    Nevada, Arizona, Hawaii, and the Commonwealth of the Northern Marianas,
    and the Island of Guam. It is by that standard that the work of this
    Commission, as it relates to the Ninth Circuit Court of Appeals, should
    be judged. In that process the many virtues of the Ninth circuit's past
    should not be controlling.
                                   __________

             Prepared Statement of Circuit Judge David R. Thompson

                                    summary
        The Ninth Circuit Court of Appeals has established an Evaluation
    Committee which Judge Thompson chairs. The Committee is evaluating the
    processes of the Circuit Court. To date, the Committee has considered
    issues within the categories of Consistency of Decisions, Regional
    Sensitivity, Collegiality, Productivity and the Court's En Banc
    Process.
        To identify cases perceived to create conflicts, the Committee will
    use its staff attorneys to review opinions; it also intends to
    implement a process to permit district judges and the bar to bring
    potential conflicts to the Court's attention. The Court is
    experimenting with the regional assignment of judges, and is examining
    the issue of ``collegiality'' in the context of how it may impact the
    work of the Court. To increase productivity, the Committee is
    considering an ``assault'' on pending cases, and making changes in the
    Court's calendaring procedures. With regard to the en banc process, the
    Committee intends to make recommendations for increasing the number of
    judges on the en banc court and decreasing the voting number necessary
    to take a case en banc.
        The work of the Committee is ongoing. The Ninth Circuit can
    experiment with changes to respond to perceived concerns with far less
    disruption, and at far less cost, than a whole new divisional
    structure.
                                     ______

        Mr. Chairman, Members of the Subcommittee: My name is David
    Thompson. I am a Senior Circuit Judge of the United States Court of
    Appeals for the Ninth Circuit. My chambers are located in San Diego,
    California. I am also Chairman of the Ninth Circuit Court of Appeals'
    Evaluation Committee, and it is in that capacity that I appear before
    you today.
        Thank you for the opportunity to present these remarks with regard
    to your review of the Report of the Commission on Structural
    Alternatives for the Federal Courts of Appeals regarding the Ninth
    Circuit and Senate Bill 253, the Ninth Circuit Reorganization Act.
        The Evaluation Committee was created by the Ninth Circuit in
    response to perceived concerns raised by the White Commission Report.
    The Committee's task however, is part of the Ninth Circuit's ongoing
    annual reevaluation of its practices and procedures pursuant to its
    Long Range Plan. The White Commission Report simply focused the task of
    the Committee.
        It is not the task of the Committee to quibble with the White
    Commission Report. The strengths and deficiencies of that report have
    been pointed out and analyzed by others. The task of the Evaluation
    Committee is to accept the perceived concerns expressed in the White
    Commission Report and by others and to respond to those concerns.
        The Committes's mission statement was developed at its first
    meeting on March 23, 1999. That mission is,

              To examine the existing policies, practices and
            administrative structure of the Ninth Circuit Court of Appeals,
            in order to make recommendations to its judges to improve the
            delivery of justice in the region it serves.

        The Committee--consisting of Ninth Circuit judges from different
    regions within the Circuit, as well as a representative from the
    district court bench, a prominent scholar of the federal appellate
    courts, and an experienced appellate practitioner--has met on a number
    of occasions over the past months. The Committee has considered a wide
    variety of issues within the following categories of subjects:

      Consistency of Decisions

      Regional Sensitivity and Outreach

      Collegiality

      Productivity

      The En Banc Process

        The work of the Committee is ongoing. None of the foregoing
    subjects has been exhausted, although the Committee has considered and
    given varying degrees of study and evaluation to each.
                            consistency of decisions
        There is no objective evidence--none whatsoever--that decisions
    rendered by the Ninth Circuit Court of Appeals are infected with
    inconsistency to a degree greater than any other circuit. Because of
    the Ninth Circuit's size, however, the perception is that there must be
    inconsistencies in its decisions. How could there not be with so many
    panels issuing so many opinions? The answer is that there is not a
    significant number of inconsistencies in decisions and any conflicts
    that have occurred have been resolved by the Circuit's en banc process.
    The task of the Committee, however, is to increase the Circuit's
    ability to recognize potential or perceived conflicts early on and deal
    with them immediately. To do this the Committee is considering methods
    that will enable judges of the district courts and practitioners to
    bring perceived conflicts to the Court's attention. These methods
    include establishing an ``electronic mailbox'' to receive such
    communications, and participating in outreach programs to contact the
    bench and bar throughout the Circuit through meetings and focus group
    encounters.
        In addition to increasing the Court's awareness of any potential
    conflicts in filed decisions, the Committee is experimenting with
    gathering data from all opinions before they are filed. To do this, the
    Committee will draw upon the expertise of the Ninth Circuit's staff
    attorneys. These attorneys are divided into areas of expertise--
    criminal law, environmental law, immigration law, to name a few. The
    staff examines all opinions sent to the clerk's office for filing--
    before the opinions are filed. The staff has been asked to identify any
    case that (a) expressly distinguishes one or more Ninth Circuit
    precedents; (b) expressly rejects one or more precedents of other
    circuits; (c) has a dissent; (d) holds a federal statute
    unconstitutional; (e) holds a state statute or initiative measure
    unconstitutional; or (f) holds invalid a published regulation of any
    agency or department of the federal government. The idea is to give the
    staff attorneys objective criteria with which to spot potential
    conflicts and sensitive decisions and call those to the court's
    attention. Members of the Evaluation Committee, on an individual judge
    volunteer basis, will examine reports from the staff to determine
    whether a conflict appears to be real or more likely falls within those
    classes of cases in which a panel typically points out differences
    between existing authority and the present case.
        Currently, judges of the Court review opinions when they are first
    published in slip opinion form. Conflicts may be discovered by this
    process. It is anticipated, however, that the specialized work of the
    staff attorneys applying objective criteria will increase the Circuit's
    ability to identify any conflicts.
                       regional sensitivity and outreach
        Responding to regional sensitivity, the Committee is experimenting
    with the regional assignment of judges. Under this process, at least
    one judge from the three administrative units in the Circuit--southern,
    middle and northern--will sit on a three-judge panel hearing cases that
    arise within that judge's ``home'' administrative region. Whether such
    a regional assignment of judges will prove to be a good or a bad idea
    we do not know. Those who think it's a good idea argue that it is
    important to have a judge from the area where a case arises sit on a
    panel that decides the case. Those who think it's a bad idea argue the
    concept of regional assignment violates the principle of random
    selection of judges, and that the law federal judges are called upon to
    apply is uniform national law.
        Regional sensitivity also covers outreach to the communities served
    by the Ninth Circuit. For years, the Court has, on occasion, sat in
    various cities throughout the Circuit where the Court ordinarily does
    not sit. Those sittings, however, because of a lack of facilities and
    the difficulty in gathering enough cases from a particular region to
    fill a week's argument calendar, have not occurred as often as they
    might have. The Court is currently experimenting with holding more
    Court sittings in more cities. The intention is to combine these
    sittings with bench-bar activities to develop communication with all
    areas of the circuit and find out if there are problems which the Court
    should confront.
                                  collegiality
        In addressing the subject of collegiality, the first task is to
    define what we mean by that term. If the meaning is derived from the
    usual comment made of a large circuit that there are too many judges to
    permit the growth of a warm and fuzzy feeling among them, that, to put
    it bluntly, is ridiculous. To the contrary, judges in a larger circuit
    are not thrown together as often as in smaller circuits, thus reducing
    occasions for potential tension between differing and strong
    personalities.
        If we mean by ``collegiality'' the ability of judges to enjoy each
    other's company at social gatherings, that is a non-problem because
    even the most ardent opponents can hit it off with one another for a
    limited time when they are not called upon to come to grips with issues
    of substance that divide them.
        More aptly, I believe the issue of collegiality can be defined as
    the ability of judges to hammer out opinions, with knowledge of the
    idiosyncracies of each other enhanced by having sat together
    frequently. I believe this is the concept of collegiality expressed in
    the White Commission Report. It assumes that the law of a circuit will
    be more consistent (either consistently right or consistently wrong) if
    the judges of that court over a period of time come to some common
    understanding of what it will take to get at least two of three judges
    on a panel to agree to an opinion. This seems to be the aspect of
    collegiality that we, as a Committee, should be studying. In any event,
    we are proceeding with defining the term (which the White Commission
    referred to as ``elusive'') and determining how we should respond to
    the concern that collegiality, whatever it means, is lacking in a large
    circuit, and if it is, whether it impacts the delivery of justice to
    any significant degree.
                                  productivity
        The distinguished Senator who chairs the Subcommittee on
    Administrative Oversight and the Courts has remarked that to accomplish
    a big job doesn't necessarily require more people to do the work; it
    requires people to work smarter. The Ninth Circuit has taken this view
    to heart as it has coped with extreme vacancies in the number of its
    active judges. For a good portion of the past few years, the Court has
    operated with two-thirds or less of its full, active judge complement.
    The Court has 28 active judgeship slots, and only 21 are currently
    filled. Regardless of where the blame lies for this failure to provide
    the Ninth Circuit with the judges it needs to do its work, the Court
    has held its own. Are the Ninth Circuit judges working hard? You bet
    they are! The Ninth Circuit is among the fastest, if not the fastest,
    in filing decisions following oral argument. The challenge, however, is
    to work smarter.
        The Evaluation Committee has under consideration the possibility of
    mounting an ``assault'' on the volume of pending cases. To do this, the
    Circuit would assemble panels of judges to attack certain batches of
    cases, those with similar issues or at least those falling within the
    same category of law. Panels would decide one after another of these
    cases as quickly as possible, perhaps hearing oral argument in combined
    cases which raise common issues. The Court is already doing this to
    some extent in its calendaring process, but the assault would involve a
    major effort by all judges of the Court, senior and active alike. The
    obvious downside of this is that to move judges from what they are
    currently doing to a new task may not result in any net gain. This
    proposal is currently under consideration.
        Using some features of the ``assault'' concept, the Committee is
    currently experimenting with increasing the identification of cases
    with similar issues and assigning a lead case or cases to a particular
    panel, notifying the parties in all of the following cases that a
    decision affecting their case will be made by the lead case. We
    anticipate lawyers for parties in following cases may participate in
    sharpening the briefing and argument in the lead case. The lead-case
    concept concentrates the decisional process in one three-judge panel,
    rather than defusing it among a number of judges on different panels.
    Once a decision in the lead case is made, the following cases should
    settle, or at least they could be disposed of without extensive
    disposition time.
        Increased productivity has already been achieved in the Ninth
    Circuit by the use of the Court's motions and screening calendars. Each
    month, a special screening panel of three judges sits in San Francisco.
    These special panels are deciding an average of 340 motions, and
    disposing of 140 appeals on the merits, every month. This is in
    addition to the Court's regular work. If the Court had more judges, it
    could increase this output. Without more judges the Court seems to be
    at its limit in this area, but the Committee is nonetheless trying to
    figure out some way to increase this aspect of the Court's
    productivity.
                              the en banc process
        As you know, the Ninth Circuit has a limited en banc. When a case
    is taken en banc, 11 judges of the Court sit as the en banc court. With
    the current active judge complement of 21 judges, this represents a
    majority of the active judges of the Court. But it does not include all
    of the active judges. A perceived concern is that because all of the
    active judges do not sit on the en banc court, the en banc decision
    does not reflect the views of all judges.
        In considering this perceived concern, the Committee enlisted the
    assistance of academic experts. These experts were drawn from a variety
    of disciplines. They are: Professor Linda Cohen, Department of
    Economics, University of California, Irvine; Professor John Ferejohn,
    Hoover Institute, Stanford, California; Professor Lewis Kornhauser, New
    York University School of Law; Professor Matt McCubbins, Department of
    Political Science, University of California, San Diego; and Professor
    Roger Noll, Department of Economics, Stanford University, California.
    We provided this distinguished group of scholars with copies of the
    White Commission Report, together with the rules, procedures and
    statistics relating to the Ninth Circuit's en banc court process. The
    findings of this group were that the Court could achieve approximately
    93 percent representation of the views of all judges of the court if
    the limited en banc Court consisted of 7, yes seven judges. Increasing
    that number to 11 achieved a representative percentage of approximately
    95 percent, and increasing the number to 13 increased the percentage to
    about 96 percent. This scientific report indicates there would be
    little to gain from the standpoint of statistical reliability by
    increasing the number of judges on the en banc court.
        Nevertheless, the Evaluation Committee recognizes that the
    perception of justice is as important as justice itself. If the
    perception is that there should be more judges on the en banc court,
    increasing the number of judges on the en banc court is something the
    Court should consider and act upon. The Committee intends to make a
    recommendation to the Court on this subject at the Court's next meeting
    on July 27, 1999.
        Another facet of the en banc process is the ease, or lack thereof,
    by which a case is taken en banc. Justice O'Connor has suggested that
    the Ninth Circuit should take more cases en banc. One way to achieve
    this would be to decrease the number of judges required to vote for en
    banc. Currently, to take a case en banc requires the affirmative vote
    of at least a majority of the active judges of the Court. By contrast,
    in the Supreme Court, certiorari is granted on the vote of four of the
    nine justices. Question: Should the Ninth Circuit consider adopting a
    formula by which four-ninths (roughly 45 percent) of the votes of its
    active judges would be enough to take a case en banc? This would
    require a statutory change, but the Committee is considering something
    along this line. As we consider the issue, however, we have in mind
    that increasing the number of cases taken en banc as well as increasing
    the number of judges on the en banc court will most assuredly increase
    the judges' workload--on a Court already operating one-third below its
    authorized strength. This increased workload might be offset to some
    extent by choosing judges to sit on an en banc court to hear several
    cases at one time, rather than choosing judges to sit on separate en
    banc courts for each en banc case. To this end, the Court has adopted a
    procedure, on an experimental basis, for the en banc court to sit
    approximately quarterly throughout the year, hearing a number of cases,
    rather than having a different en banc court selected to hear each en
    banc case.
                                   conclusion
        There is no ``conclusion'' to this statement. As stated at the
    outset, the work of the Evaluation Committee is ongoing. The Ninth
    Circuit has always been willing to re-evaluate itself, its performance,
    and to experiment with innovations that would lead to greater
    efficiency and effectiveness. The annual evaluation of the Ninth
    Circuit Long Range Plan is specifically designed to do so. Concerns
    that have surfaced in the Final Report of the Commission can be
    addressed with far less disruption than a whole new divisional
    structure.
        The Ninth Circuit, through its Evaluation Committee, is in the
    midst of reevaluating itself, its performance and experimenting with
    innovations to lead to greater efficiency and effectiveness. The Ninth
    Circuit Court of Appeals can accomplish these goals, and address the
    Commission's concerns, with far less cost and far less disruption than
    a whole new divisional structure.
                Respectfully submitted,
                                     David R. Thompson,
                      Senior Circuit Judge, Ninth Circuit Court
                         of Appeals, Chair of the Evaluation Committee.