[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.
[GRAPHIC] [TIFF OMITTED] T6528.001

[GRAPHIC] [TIFF OMITTED] T6528.002

[GRAPHIC] [TIFF OMITTED] T6528.003

[GRAPHIC] [TIFF OMITTED] T6528.004

[GRAPHIC] [TIFF OMITTED] T6528.005

[GRAPHIC] [TIFF OMITTED] T6528.006

[GRAPHIC] [TIFF OMITTED] T6528.007

[GRAPHIC] [TIFF OMITTED] T6528.008

[GRAPHIC] [TIFF OMITTED] T6528.009

[GRAPHIC] [TIFF OMITTED] T6528.010

[GRAPHIC] [TIFF OMITTED] T6528.011

[GRAPHIC] [TIFF OMITTED] T6528.012

[GRAPHIC] [TIFF OMITTED] T6528.013

[GRAPHIC] [TIFF OMITTED] T6528.014

[GRAPHIC] [TIFF OMITTED] T6528.015

    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.]
    [GRAPHIC] [TIFF OMITTED] T6528.016
    
    [GRAPHIC] [TIFF OMITTED] T6528.017
    
    [GRAPHIC] [TIFF OMITTED] T6528.018
    
    [GRAPHIC] [TIFF OMITTED] T6528.019
    
    [GRAPHIC] [TIFF OMITTED] T6528.020
    
    [GRAPHIC] [TIFF OMITTED] T6528.021
    
    [GRAPHIC] [TIFF OMITTED] T6528.022
    
    [GRAPHIC] [TIFF OMITTED] T6528.023
    
    [GRAPHIC] [TIFF OMITTED] T6528.024
    
    [GRAPHIC] [TIFF OMITTED] T6528.025
    
    [GRAPHIC] [TIFF OMITTED] T6528.026
    
    [GRAPHIC] [TIFF OMITTED] T6528.027
    
    [GRAPHIC] [TIFF OMITTED] T6528.028
    
    [GRAPHIC] [TIFF OMITTED] T6528.029
    
    [GRAPHIC] [TIFF OMITTED] T6528.030
    
                         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.


                                
