[Senate Hearing 108-537]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-537

IMPROVING THE ADMINISTRATION OF JUSTICE: A PROPOSAL TO SPLIT THE NINTH 
                                CIRCUIT

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

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 7, 2004

                               __________

                          Serial No. J-108-64

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                    JEFF SESSIONS, Alabama, Chairman
CHARLES E. GRASSLEY, Iowa            CHARLES E. SCHUMER, New York
ARLEN SPECTER, Pennsylvania          PATRICK J. LEAHY, Vermont
LARRY E. CRAIG, Idaho                RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   RICHARD J. DURBIN, Illinois
                 William Smith, Majority Chief Counsel
                 Jeff Berman, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....     7
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     4
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     5
    prepared statement...........................................    99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   101
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1
    prepared statement and attachments...........................   184

                               WITNESSES

Coughenour, John C., Chief Judge, District Court for the Western 
  District of Washington, Seattle, Washington....................    46
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska....     8
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth 
  Circuit, Portland, Oregon......................................    14
Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the 
  Ninth Circuit, Phoenix, Arizona................................    11
Tallman, Richard C., Judge, Court of Appeals for the Ninth 
  Circuit, Seattle, Washington...................................    18
Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh 
  Circuit, Jacksonville, Florida.................................    43
Wallace, J. Clifford, Senior Judge, Court of Appeals for the 
  Ninth Circuit, San Diego, California...........................    21

                         QUESTIONS AND ANSWERS

Responses of Mary M. Schroeder to questions submitted by Senator 
  Feinstein......................................................    51

                       SUBMISSIONS FOR THE RECORD

California Academy of Appellate Lawyers, Jerome I. Braun, for 
  James C. Martin, President, Los Angeles, California:
    letter April 19, 2004........................................    55
    letter February 24, 2004.....................................    57
California Public Defenders Association, Michael T. Judge, 
  Chairperson, Legislative Committee Sacramento, California, 
  letter.........................................................    58
Cebull, Richard F., District Judge of Montana, Billings, Montana, 
  letter.........................................................    61
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho, 
  prepared statement.............................................    62
Coughenour, John C., Chief Judge, District Court for the Western 
  District of Washington, Seattle, Washington, prepared statement    64
Curley, Sarah Sharer, Chief Judge, District of Arizona, 
  Bankruptcy Court, Phoenix, Arizona, letter.....................    68
Ensign, Hon. John, a U.S. Senator from the State of Nevada, 
  prepared statement.............................................    71
Federal Bar Association, Joyce E. Kitchens, National President, 
  Atlanta, Georgia, prepared statement...........................    73
Haddon, Sam E., District Judge, District Court of Montana, Great 
  Falls, Montana, letter.........................................    75
Hawaii State Bar Association, Dale W. Lee, President, Honolulu, 
  Hawaii, prepared statement.....................................    76
Kleinfeld, Andrew J., Circuit Judge, Court of Appeals, Ninth 
  Circuit, Fairbanks, Alaska, letter and attachment..............    78
Locke, Hon. Gary, Governor, State of Washington, Olympia, 
  Washington, letter and attachment..............................   103
Los Angeles County Bar Association, Robin Meadow, President, Los 
  Angeles, California, prepared statement........................   107
Malkin, Harold, Esq., Seattle, Washington, letter................   109
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska, 
  prepared statement and attachments.............................   111
Nielsen, William Fremming, Senior U.S. District Judge, Eastern 
  District of Washington, Spokane, Washington....................   120
O'Scannlain, Diarmuid F., Judge, Court of Appeals for the Ninth 
  Circuit, Portland, Oregon:
    prepared statement...........................................   122
    letter, May 7, 2004..........................................   140
Perris, Elizabeth L., Bankruptcy Judge, Oregon Bankruptcy Court, 
  Portland, Oregon, letter and attachment........................   144
Roll, John M., District Judge, District Court of Arizona, Tucson, 
  Arizona
    letter, October 8, 2003......................................   150
    letter, November 4, 2003.....................................   154
    letter, April 5, 2004........................................   160
    letter, April 29, 2004.......................................   168
    letter, May 21, 2004.........................................   170
Santa Clara County Bar Association, Lisa Herrick, President, 
  Santa Clara, California, prepared statement....................   173
Schroeder, Hon. Mary M., Chief Judge, Court of Appeals for the 
  Ninth Circuit, Phoenix, Arizona:
    prepared statement...........................................   175
    letter, April 19, 2004.......................................   180
    letter, May 5, 2004..........................................   182
State Bar of Arizona, Pamela A. Treadwell-Rubin, President, 
  Phoenix, Arizona, letter.......................................   203
State Bar of California, Charles V. Berwanger, Litigation 
  Section, San Franclsco, California, letter.....................   204
Tallman, Richard C., Judge, Court of Appeals for the Ninth 
  Circuit, Seattle, Washington, prepared statement...............   207
Tamm, Bradley R., Attorney at Law, Honolulu, Hawaii, letter......   226
Thomas, Sidney R., Circuit Judge, Court of Appeals, Billings, 
  Montana, letter................................................   228
Tjoflat, Gerald Bard, Judge, Court of Appeals for the Eleventh 
  Circuit, Jacksonville, Florida, prepared statement.............   244
Van Sickle, Fred, Chief Judge, District Court, Eastern District 
  of Washington, Spokane, Washington, letter.....................   268
Wallace, J. Clifford, Senior Judge, Court of Appeals for the 
  Ninth Circuit, San Diego, California, prepared statement.......   270
Witherspoon, Kelley, Davenport & Toole, Attorneys & Counselors, 
  Spokane, Washington:
    Bhan T. Rekofke, Harvey Saferstein, Margaret Carew Toledo, 
      letter, April 21, 2004.....................................   275
    Leslie R. Weatherhead, letter, April 21, 2004................   277

 
IMPROVING THE ADMINISTRATION OF JUSTICE: A PROPOSAL TO SPLIT THE NINTH 
                                CIRCUIT

                              ----------                              


                        WEDNESDAY, APRIL 7, 2004

                              United States Senate,
  Subcommittee on Administrative Oversight and the Courts, 
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:02 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, Chairman of the Subcommittee, presiding.
    Present: Senators Sessions, Kyl, Craig, and Feinstein.

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Chairman Sessions. Good morning. The Subcommittee on 
Administrative Oversight and the Courts will come to order. I 
am pleased to convene this hearing on the division issue of the 
Ninth Circuit. I think we have great panels today, and I look 
forward to a very interesting and informative hearing.
    I guess the first question one would ask is why are we 
discussing a division of the Ninth Circuit now. To answer that 
question, we need to appreciate the basic purposes of a Federal 
court of appeals. In our Federal judicial system, an appellate 
court has two basic functions. First, it must review lower 
court and agency decisions. In this regard, it acts effectively 
as a court of last resort, since the Supreme Court reviews very 
few courts of appeals decisions each year.
    Second, to borrow from Chief Justice Marshall's famous 
opinion in Marbury v. Madison, it must say clearly and 
consistently ``what the law is'' for that circuit. Uncertainty 
in the law frustrates litigants, encourages wasteful lawsuits 
and undermines the rule of law.
    We will discuss today with regard to the circuit the 
fundamental facts of it, its size, and discuss the pros and 
cons of division. We will not be discussing opinions or 
judicial philosophy or matters of that nature. I think that is 
not really what we should be about today.
    How well does the Ninth Circuit fulfill the basic functions 
I outlined earlier? We start with some facts. The Ninth Circuit 
is the largest circuit in our system by far. It covers almost 
40 percent of the land mass of the United States. It stretches 
from the Arctic Circle to the border of Mexico and rules almost 
one-fifth of the population of the country.
    It now has 28 authorized judgeships--11 more than the next 
circuit, as this chart shows, and almost 17 more than the 
average circuit. It has 21 senior judges, who provide a great 
service to the court. Many senior judges carry virtually a full 
caseload, and I know with the caseload you have in the Ninth 
Circuit you wouldn't be able to get along without them.
    It is therefore not much of an exaggeration to say that the 
Ninth Circuit panel assigned to a particular case, when you 
have as many judges as you can draw from, is a sort of luck-of-
the-draw panel. In addition, district judges are called up to 
sit, and visiting judges from other circuits are called to sit 
on panels.
    The Judicial Conference of the United States has 
recommended that the Congress create seven additional 
judgeships for the Ninth Circuit. If we did so, the court would 
have 35 active judges, making it even larger. Nobody would 
claim that our Supreme Court could function with 35 justices. 
In fact, I am not aware of any court in America of this size.
    Why should we feel any different about the Ninth Circuit 
with 35 active and 21 senior judges, given that the court of 
appeals is the court of last resort in the vast majority of 
cases? Counting senior judges, the Ninth Circuit would be twice 
the size of any other circuit.
    Moreover, as this chart illustrates, the caseload of this 
large circuit has exploded in recent years. In 1997, about 
8,700 appeals were filed. In 2003, there were almost 13,000--a 
48-percent increase, or over 4,000 more appeals in just 6 
years. This huge increase in caseload appears to have impaired 
the administration of justice. The Ninth Circuit's efficiency 
in deciding appeals--that is, the time the court takes between 
the filing of a notice of appeal and the final disposition of a 
case--consistently has lagged behind other circuits. In 2003, 
for instance, the Ninth Circuit had 418 cases pending for 3 
months or more--25 shy of the next five circuits combined. The 
next highest circuit had 98 cases.
    The next chart shows that 138 cases were pending in the 
Ninth Circuit for over a year. This was more than every other 
circuit in the Federal court system combined, with the next 
highest circuit at a mere 19 cases. This delay cannot be 
explained solely by lack of judgeships. Although the caseload 
is high, several other circuits have higher caseloads per 
judge. Thus, it appears that the first function of a court of 
appeals--reviewing decisions from below--may not be performed 
as well as it could be.
    If population growth is any indication, the problem is 
quite likely to get worse. As you can see from this chart, the 
population of the States within the Ninth Circuit grew faster 
than that of any other circuit between 1990 and 2000. That 
population is projected to grow even more substantially between 
1995 and 2025, as this chart demonstrates. With the higher 
caseload that those millions of new residents will bring, the 
administrative challenges can only grow.
    How about the second function? Are Ninth Circuit judges 
able to speak with clarity and consistency on what the law of 
the circuit is? This, too, appears doubtful. Because the 
circuit has so many judges, it is difficult to preserve the 
collegiality that is so important to judicial decisionmaking.
    As D.C. Circuit Judge Harry T. Edwards eloquently argued, 
quote, ``In the end, collegiality mitigates judges' ideological 
preferences and enables us to find common ground and reach 
better decisions. In other words, the more collegial the court, 
the more likely it is that the cases that come before it will 
be determined on their legal merits.''
    Additionally, the Ninth Circuit employs a limited en banc 
procedure under which it is not the full court of appeals, but 
a random draw of ten judges, plus the chief judge, that reviews 
three-judge panel decisions. This can result, and often has 
resulted in a mere six judges making the law for the entire 
circuit. In all other circuit, en banc means en banc--the full 
court.
    Finally, with so many cases decided each year, it is hard 
for any one judge to read the decisions of his or her peers, 
and it is virtually impossible for lawyers who practice in the 
circuit to stay abreast of the law. Judge Becker, a 
distinguished judge of the Third Circuit, has explained that, 
quote, ``When 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.'' 
These factors--loss of collegiality, the limited en banc, and 
an inability to monitor new law--undermine the goal of 
maintaining a coherent law of the circuit.
    Chief Justice Rehnquist and Justices Stevens, O'Connor, 
Scalia and Kennedy publicly have agreed that structural reform 
was needed. No Justice on the Supreme Court has disagreed. 
These jurists voiced their concern 6 years ago. Today, the 
Ninth Circuit issues almost 50 percent more decisions than it 
did then. It is difficult to argue that Ninth Circuit judges 
and lawyers receiving the flood of opinions find the law any 
more coherent.
    So is this a circumstance in which the Congress should 
exercise its constitutional power to ordain and establish new 
inferior courts? Several of my colleagues are here today to 
help answer that question. Senator Murkowski, of Alaska, has 
been a leader in addressing reorganization of the Ninth Circuit 
and has introduced a bill to that effect. I am sure her 
comments, in a moment, based on her experience as a Senator 
from Alaska and a lawyer who has practiced within the Ninth 
Circuit, will give us a useful context for understanding the 
issue.
    I would also like to commend my colleague, Senator Dianne 
Feinstein, who is the Ranking Member for this hearing, for her 
interest in Ninth Circuit reorganization. Senator Feinstein has 
long advocated that the Congress look at objective measures in 
determining whether or not to split the circuit, and has wisely 
insisted that any division serve administrative, not political 
purposes.
    In fact, the very title of this hearing borrows from a 
speech she gave on the Senate floor several years ago in which 
she stated, ``That is the fundamental question: Would a split 
improve the administration of justice and, if so, what should 
that split be?'' Senator Feinstein asked the precise question 
that we intend to focus on in this hearing, and I look forward 
to the insights from our distinguished group of witnesses.
    Senator Feinstein, would you like to make opening remarks?

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

    Senator Feinstein. Thank you very much, Mr. Chairman. I 
would like to begin by welcoming our distinguished witnesses. I 
also particularly want to thank the Chief Judge, Judge 
Schroeder. I know she had other plans and she changed those 
plans to be here. I think it is very important that she be 
here, and I am delighted that you were able to accommodate the 
Subcommittee. It means a great deal to us, so thank you very 
much.
    The issue of whether to split the Ninth Circuit has come 
before us many times before. It was introduced in the 98th 
session of Congress and virtually every session since that 
time. Some have said the court, with its 57 million citizens, 
is simply too large and that there need to be greater 
efficiencies and those efficiencies could be done if the court 
were smaller. Others hint that California judges have a liberal 
bent which is coloring decisionmaking in that circuit.
    I believe that we really have to look at this circuit in 
view of its increasing size. Frankly, I was amazed to see that 
the caseload in 1 year, from 2002 to 2003, has gone up by 13 
percent, with 12,782 additional cases. That is more than some 
circuits even have in the entire year, and it is just the 
increase in the Ninth Circuit.
    I think we have to look anew at travel time and how much 
time is spent in extraordinary travel; the circuit is so large. 
In reading last night the comments of some of the judges who 
are going to testify, I would like to urge them to spend some 
time in their remarks before us about the en banc proceedings.
    I, for one, very much appreciate the court's accommodation 
to our request that you hold more en banc hearings, and I 
believe, in fact, you have. But the question arises, even with 
11 judges en banc, it still means that 6 judges effectively 
determine precedent for the entire circuit.
    The final one, and where most, I think, students of circuit 
split come down is do the judges themselves and the legal 
profession itself want a split in the circuit. Now, we have 
eight judges, senior and active judges, who say they would like 
to have a split. I think those reasons are very important to be 
examined.
    Additionally, the circuit has instituted a number of new 
administrative procedures. I think it is very important that we 
take a look at those procedures and see if technology alone is 
enough to accommodate reduced collegiality.
    Some feel the Ninth Circuit has become extraordinarily 
impersonal. Does that meet the test of circuit law in an 
adequate way? Some say judges are so stressed and busy with the 
largest caseloads in the Nation that they can't really keep up 
with the law. Is that, in fact, the case today or is it not?
    One of the problems we have had is that people take sides 
in this. You are either for a split or you are against a split, 
and you develop a defensive posture and therefore you really 
can't look, I think, with an open mind at changing needs of the 
circuit. So I actually welcome this hearing, and perhaps I look 
at it with a much more open mind than I have in the past. And 
this really driven by this enormous 13-percent increase in 
caseload 1 year after the other.
    Mr. Chairman, the American Bar Association, under date of 
April 6 of this year, has produced a letter which I would like 
to enter in the record, but I would like to read one paragraph 
from it, if I might.
    ``Statistics compiled by the Administrative Office of the 
United States Courts and submitted to Congress annually 
demonstrate that the circuit is functioning very well and 
utilizes its resources effectively. In fact, even though 
filings increased by 13 percent during the 2002 fiscal year, 
the Ninth Circuit terminated 11.7 percent more cases in 2003 
than in 2002. Disposition times for the Ninth Circuit also have 
steadily improved over the last few years and compare favorably 
with times of other circuits in many respects. For example, the 
Ninth Circuit was the second fastest circuit in terms of median 
time from the date of first hearing to final disposition--one-
and-a-half months. Similarly, the Ninth Circuit's median time 
from submission to disposition was a record-breaking .2 months. 
These and other statistics readily available from the 
statistical reports presented by the Administrative Office 
amply demonstrate that the Ninth Circuit continues to cope 
admirably with its rising caseload without jeopardizing the 
quality of justice, and that its overall performance is on par 
with that of other judicial circuits.''
    I actually believe this is fact and truth. However, I am 
not sure it is the whole story. I do think that circuits can 
become so overburdened, so impersonal, so harassed that they 
can't keep up with the law, and that the collegiality on which 
many of the circuits seem to base some of their decisionmaking 
gets lost.
    So I would be hopeful that our witnesses today would 
address some of these questions, and I would ask unanimous 
consent to place this letter from the bar association in the 
record, if I might.
    Chairman Sessions. Without objection, it will be made a 
part of the record.
    Senator Feinstein. That completes my statement. Thank you.
    Chairman Sessions. I will be glad to hear briefly from our 
other two Senators, Senator Kyl and Senator Larry Craig.

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

    Senator Kyl. Thank you, Mr. Chairman. I know that we are 
all anxious to get to the panel, and I know Senator Murkowski 
is anxious to testify as well. I want to make a couple of 
preliminary comments, though, if I could.
    This hearing kind of snuck on me and as a result I have 
another meeting that I have got to go to at 10:30, but I will 
return and will review very carefully the written comments that 
I miss in any event.
    I want to thank you, Mr. Chairman, for holding the hearing. 
The reasons for it were well laid out by both you and Senator 
Feinstein. I also want to note I think we have incredible 
panels here. It is hard to imagine more judicial firepower, 
given the fact that the Supreme Court is unlikely to come visit 
us at this site. So I want to acknowledge that.
    If I could take the personal privilege of introducing Chief 
Judge Schroeder, since I will not be here when she begins her 
testimony, and thank her for making herself available. She did 
have to change her schedule, as Senator Feinstein said.
    She received her law degree from the University of Chicago 
Law School, and after serving as a trial attorney in the U.S. 
Justice Department's Civil Division, spent several years in 
private practice in Phoenix, Arizona. She was appointed to the 
court of appeals in Arizona in 1975, and in 1979 was elevated 
by President Carter to the U.S. Court of Appeals for the Ninth 
Circuit. She has served as chief judge of the circuit since the 
year 2000. She brings a unique and valuable perspective to the 
topic of this hearing.
    Mr. Chairman, the subject, whether to divide the Ninth 
Circuit, is one that I have been involved in for many years. 
Prior to coming to Congress, I spent nearly two decades in 
private practice in Phoenix, and in that capacity represented 
clients before every level of both the State and Federal 
courts, including much litigation before the Court of Appeals 
for the Ninth Circuit.
    As a Senator from Arizona, I have supported and submitted 
written comments to the White Commission on structural 
alternatives for the Federal courts of appeals that was issued 
in 1998. Commenting on the commission's draft report, I urged 
commissioners to consider and evaluate multiple proposals for 
reconfiguring the Ninth Circuit.
    Among the proposals that I suggested to the commission were 
making California into a separate division of the Ninth 
Circuit, or into a separate circuit; creating four divisions, 
with central California alone as its own division, in order to 
more evenly distribute caseload; even adding Arizona to the 
Tenth Circuit.
    Mr. Chairman, I am very open-minded about this subject, as 
you can see, and I agree with Senator Feinstein that all of us 
need to be open-minded and constructive to our approach to 
this.
    Each of the various ideas presents its own issues for 
consideration, but ultimately the path that Congress chooses to 
follow will depend upon which criteria we deem to be most 
important in configuring a circuit. Is top priority to be given 
to evenly balanced caseload, to preserve geographic contiguity, 
to avoid subdividing a State, to maintain compactness? And 
there are other issues, as well.
    As this process moves forward, I hope that all of us can 
keep in mind one criterion above others, and that is to ask how 
do any of the proposed configurations, including the status 
quo, affect litigants who have matters before the court? How 
does it affect their ability to gain access to a stable and 
reliable body of law by which they can arrange their affairs? 
And when disputes arise, how does the circuit's structure 
affect their ability to have a case decided quickly and 
efficiently and correctly?
    I think by devoting our good-faith energies to this matter 
and deciding which criteria are most important, while always 
holding the interests of the court's customers above all 
others, we should be able to come to an agreement on how the 
U.S. Court of Appeals for the Ninth Circuit should be 
configured in the future.
    Again, I commend you for addressing this subject and for 
all of our witnesses for taking the time to be here and help 
inform us on the subject.
    Thank you.
    Chairman Sessions. Thank you, Senator Kyl. I know that you 
have taken a real interest in this as a full-time practicing 
lawyer who has, I am sure, argued before the Ninth Circuit. I 
know you have had several cases you have argued before the U.S. 
Supreme Court, so you are one of our premier lawyers in the 
Senate.
    Senator Craig.

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF 
                             IDAHO

    Senator Craig. Mr. Chairman, thank you very much, and let 
me reflect, as all have, our appreciation for having these most 
prestigious panels before us this morning to consider with us 
what we believe in the West to be a very necessary and 
important issue.
    I also want to thank the Chairman and the Ranking Member 
for their objective approach to this issue. There are a lot of 
reasons to look at the Ninth Circuit, and many of them have 
been expressed and I will hold to those objective reasons. We 
have two bills introduced here in the Senate. We have a bill 
introduced in the House. Senator Murkowski is before us. She 
has faced this issue and has introduced legislation that I am 
supportive of.
    I am here also to say I don't know of the magic of the 
design or the geography, but I do believe, based on all the 
statistical work I have read and the opinions that I am 
hearing--and I have had the opportunity to read some of your 
testimony already--that a day is rapidly coming when this 
Senate, this Congress, has to face the issue and resolve what I 
think Senator Feinstein has appropriately asked this morning.
    I am one of the few non-lawyers on the Judiciary Committee, 
so I will make only one political statement and then I will 
retain the balance of the time to listen. If I want to be 
assured of one applause line that is the loudest I can get in 
any single bipartisan audience in the State of Idaho, it is to 
suggest that I am openly and aggressively supportive of 
redesigning and reshaping the Ninth Circuit.
    For any who would argue that this is too expensive to do, 
most Idahoans would suggest that failure to do it is too 
expensive for my State to put up with. That is the feeling in 
Idaho and that is the feeling in many Western States today. So 
it is incumbent upon this Congress to look at it in an 
objective way and to try to determine if it is necessary and 
appropriate to do.
    I have concluded that it is; others have already concluded 
it. But I will also tell you I don't know quite how effectively 
to do it in a right and responsible manner that gets the 
citizens of our country the best legal actions and activities 
through the courts they can have.
    Thank you, Mr. Chairman.
    Chairman Sessions. Thank you, Senator Craig.
    We will hear from two panels of witnesses today. On the 
first, we will discuss whether a division of the Ninth Circuit 
is warranted. We will also address the merits of the various 
proposals to effect such a division, including Senator Ensign's 
bill, who is not here today but who has offered legislation, 
and Senator Murkowski, who is here today.
    The witnesses on the first panel will include Judge 
Diarmuid O'Scannlain, appointed to the Ninth Circuit in 1986; 
Judge Mary Schroeder, appointed to the Ninth Circuit in 1979; 
Judge Richard Tallman, appointed in 2000; and Judge Clifford 
Wallace, appointed in 1972.
    On the second panel, we will focus on the administrative 
aspects of a division, with respect to the most recent 
restructuring of a Federal circuit. In 1981, Florida, Georgia 
and my home State of Alabama were carved out of the Fifth 
Circuit to become the Eleventh Circuit.
    Judge Tjoflat, I was sort of surprised. I thought you were 
too young to have been on the old Fifth Circuit and been a part 
of that split. I don't know why I didn't remember that. I 
remember being at the opening ceremonies in Atlanta when Judge 
Godbold formed the new Eleventh Circuit.
    This reorganization was initiated in large part because of 
the size of that circuit and has proven to be a tremendous 
success in terms of administration. Two witnesses will share 
their wisdom. The first will be Judge Gerald Bard Tjoflat, 
appointed to what was then the Fifth Circuit by President Ford 
in 1975, and has served on the Eleventh Circuit since 1981. The 
second witness will be Judge John Coughenour, appointed to the 
Western District of Washington by President Reagan in 1981.
    I mentioned Judge Schroeder, did I not?
    Judge Schroeder, we are delighted to have you. You are 
Chief Judge of the circuit and you were appointed to the 
circuit in 1979.
    Senator Murkowski.

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

    Senator Murkowski. Thank you. Good morning, Mr. Chairman, 
Senator Feinstein, members of the Subcommittee. I thank you for 
holding a hearing on this very important matter of the United 
States Court of Appeals for the Ninth Circuit.
    The Ninth Circuit has a direct and dramatic impact on my 
State.
    And, Senator Craig, your comment about the sentiment of 
Idahoans on this issue--I can assure you that in Alaska it also 
is extremely important and one of those issues that generates 
huge response, as you have indicated.
    For 20 years, we have examined the need to make changes and 
actively considered how the Ninth Circuit should be 
restructured. The court's administration, the physical size of 
the circuit, the length of time that the court takes to resolve 
cases and the huge and diverse caseload for judges create 
considerable problems in dispensing justice.
    Last year, in response to these problems, I introduced S. 
562, the Ninth Circuit Court of Appeals Reorganization Act of 
2003. I was joined by Senators Stevens, Burns, Craig, Crapo, 
Inhofe and Smith. S. 562 would split the Ninth Circuit by 
leaving Nevada and California in the Ninth Circuit and create 
the Twelfth Circuit, containing Alaska, Arizona, Hawaii, Idaho, 
Montana, Oregon, Washington, along with the territories of Guam 
and the Northern Mariana Islands.
    The bill provides that the present Ninth Circuit would 
cease to exist for administrative purposes on July 1, 2005. To 
allow the prudent administration of the court system, the Ninth 
Circuit and the newly-created Twelfth Circuit could meet in 
each other's jurisdiction for 10 years after the enactment of 
the bill.
    The bill also provides that judges in the Ninth Circuit may 
elect in which circuit they wish to practice. Each circuit 
judge who is in regular, active service and each judge who is a 
senior judge of the former Ninth Circuit on the day before the 
effective date of the Act may elect to be assigned to the new 
Ninth Circuit or to the Twelfth Circuit, and shall notify the 
director of the Administrative Office of the United States 
Courts of such election.
    Let's talk a little bit about the numbers. As the 
Subcommittee members have indicated, some of the problems of 
the circuit can be traced to issues related to its geographic 
size, the caseload, the lack of geographic diversity in its 
sitting judges and many other issues unique to the Ninth 
Circuit.
    In 2003, the Ninth Circuit had 11,277 cases pending before 
it--a 17-percent increase over the previous year of 9,625 
cases. In comparison, in 2003, the Second Circuit had the next 
highest caseload, with 6,767 cases pending, or over 4,500 fewer 
cases than the Ninth. Next in line is the Fifth Circuit, with 
4,444 cases in 2003.
    The Ninth Circuit takes an average of 5.8 months between 
the notice of appeal and the filing of the last brief. But from 
notice of appeal to final disposition, it averages 14 months. 
Now, in comparison, the Fifth Circuit averages 5.6 months 
between the notice of appeal to the filing of the last brief. 
But from the filing of the notice of appeal to a final 
decision, in the Fifth Circuit the average time is 9.4 months--
nearly 5 months faster. So it takes 5 months longer in the 
Ninth Circuit, with close to 7,000 more cases pending. With 
such a large caseload and the length of time involved, the 
reality is that the Ninth Circuit will only fall farther and 
farther behind the other circuits.
    Part of the problem with the Ninth Circuit is its sheer 
size. The three-judge panels cannot circulate opinions to all 
of their colleagues for corrections or review. This breeds 
conflict of decision between three-judge panels all within the 
same circuit. There are 27 judges. There is no telling how some 
issues will be decided. In the Ninth Circuit, the court cannot 
really sit en banc. Instead, 11 judges are picked to review a 
decision of a 3-judge panel. And once again the process ensures 
that a decision of the whole court is, in reality, the luck of 
the draw sometimes.
    I am committed to the belief that the people and 
institutions that comprise the Ninth Circuit support splitting 
the circuit and creating a new circuit. On March 21, 2003, Greg 
Mitchell, in the Recorder, wrote that the Ninth Circuit Court 
should be split not as a means to punish it for bad decisions, 
but that it, quote, ``should be split for the ho-hum reason 
that it is just too big to operate as intended and needs to 
become bigger still to carry what has become the heaviest 
caseload in the country.''
    According to Mitchell, the Judicial Conference said it 
would seek 11 new circuit judges from Congress, with 7 to be 
for the Ninth Circuit. If that happens, there would be over 35 
active judges in that circuit, with another 20 on senior 
status.
    An editorial in the Oregonian newspaper dated July 25, 
2002, encourages the splitting of the Ninth Circuit not because 
of the court's decisions, but because, quote, ``The hard facts 
make the case.'' The paper pointed out that the Ninth Circuit 
comprises nine States and two territories which contain a 
population of over 56 million people. The next largest-
populated circuit is the Sixth Circuit, with a population of 32 
million. The Ninth Circuit has twice the population of the 
average appeals court.
    The Oregonian cited Judge O'Scannlain, who sits on the 
Ninth Circuit and who is with us this morning, and he said his 
support of the split, quote, ``is solely based on judicial 
administration grounds, not premised on reaction to unpopular 
decisions or Supreme Court batting averages.'' I do look 
forward to hearing his comments this morning.
    Seven years ago, the U.S. Congress was considering 
legislation to split the Ninth Circuit. The split did not occur 
then, but the legislative effort resulted in a commission being 
convened to consider and make recommendations on the issue. The 
White Commission, in the 1990's, did not recommend the split, 
but suggested administrative changes that subsequently seem 
unworkable and do not address the problems we have today.
    So here we are this morning considering my legislation, S. 
562, as well as S. 2278. I am pleased to see that Senator 
Ensign and Senator Craig have put forward another proposal to 
address the problem. Senator Ensign's bill would create two new 
circuits. One circuit would keep California, Hawaii and the two 
territories in the Ninth Circuit. The new Twelfth would include 
Arizona, Nevada, Montana and Idaho. The State of Alaska would 
join the States or Oregon and Washington to create the 
Thirteenth Circuit. This proposal is intriguing and I am 
anxious to hear more about it. The several administrative 
changes that are suggested in Senators Ensign and Craig's bill 
are also attractive.
    Quite honestly, Mr. Chairman, I am just pleased to see some 
progress and further discussion on any of these proposals. I 
thank Senator Ensign for his leadership on this.
    Mr. Chairman, I thank you for holding the hearing this 
morning and I am looking forward to the presentations from the 
various judges.
    Thank you.
    Chairman Sessions. Thank you, Senator Murkowski. Your 
leadership in moving this issue forward has been helpful. I 
know you are a lawyer and a member of the Ninth Circuit bar and 
care about it deeply and want to see the court reach its 
highest potential.
    I think it is interesting to have the different ideas, as 
Senator Kyl said, that have been floating about. So I guess 
your position is somewhat like Senator Kyl's. You are open to 
discussion, but you have presented a proposal that you believe 
would work.
    Senator Murkowski. Absolutely. I think what is happening 
now with the various proposals that are out on the table and 
the discussions and a review of what we can do to better 
provide for justice within the Western States is what we are 
all looking for.
    Chairman Sessions. Very good. Well, we thank you for that 
presentation.
    Senator Murkowski. Thank you.
    Chairman Sessions. We would be delighted to have you stay 
with us, but if you have other things to do, you are free to go 
as you choose.
    Senator Murkowski. Thank you.
    Chairman Sessions. All right. We will take our first panel 
now--Judge O'Scannlain, Chief Judge Schroeder, Judge Tallman 
and Judge Wallace.
    If you would each stand and raise your right hand--okay, we 
won't swear you in this morning. You are officers of the court. 
You can pretend this is a court, but trust me, it is not. This 
is a political branch.
    Chief Judge Schroeder, we would be delighted to hear from 
you and your observations on this subject, and we will just go 
down our list.

STATEMENT OF HON. MARY M. SCHROEDER, CHIEF JUDGE, U.S. COURT OF 
        APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA

    Judge Schroeder. Thank you very much, Mr. Chairman. I very 
much appreciate being here. My name is Mary M. Schroeder. I am 
the Chief Judge of the United States Court of Appeals for the 
Ninth Circuit, appointed to the court in 1979 by President 
Carter. I am the Chief Executive Officer of both the Court of 
Appeals and the Ninth Circuit Judicial Council, which governs 
the court of appeals, the district courts and the bankruptcy 
courts. My home chambers are in Phoenix, Arizona, and I welcome 
the opportunity to appear before you even on short notice.
    Chairman Sessions. Thank you for that.
    Judge Schroeder. I want to thank Senator Kyl for the 
comments that he made earlier, and I do look forward to the 
testimony of all of the witnesses.
    Appearing with me today in opposition to the proposals to 
divide the circuit are two other judges with administrative 
experience in our circuit. The first is Senior Judge J. 
Clifford Wallace, of San Diego, who served as Chief Judge 
before I did, and he has a great deal of experience 
internationally in traveling around the world working with 
judges in other countries and showing them how our system of 
Government works and sharing our belief in the rule of law.
    Also here testifying on the next panel is Chief District 
Judge Jack Coughenour. He is the Chief District Judge for the 
Western District of Washington. Judge Coughenour has been 
involved in administrative matters with our circuit for many 
years, as well. He is currently the Chair of our Conference of 
Chief District Judges.
    Also present with us is our wonderful, superb clerk of 
court, Cathy Catterson, who formerly worked here in Washington 
for Senator Javits for many years, and also worked with the 
Deavitt Commission before coming to our court.
    I believe it is very important at the outset that all of us 
understand at least three important points. The first does go 
to cost. When we discuss any of the proposals before you--and 
most of the discussion so far this morning has been concerning 
the court of appeals, but when we talk about splitting up the 
judges of the existing court of appeals, we are not just 
talking about the court of appeals. We are actually talking 
about dividing the entire and well-integrated administrative 
structure of the Ninth Circuit in order to create two, or even 
three, separate and largely duplicative administrative 
structures.
    This is costly and, I submit, wasteful. This is especially 
true when we face a budget crisis requiring us to lay off 
employees performing critical functions; for example, 
supervision of probationers and preparation of sentencing 
reports. So we are talking about district courts, bankruptcy 
courts, as well as the court of appeals.
    The second point goes to geography. The Ninth Circuit 
includes California. Although there are nine States in the 
Ninth Circuit, more than two-thirds of the workload of the 
court of appeals is from California. There is no way to divide 
the circuit into multiple circuits of roughly proportionate 
size without dividing California. None of the proposals before 
you would do that. So, like Goldilocks, we find that one is too 
big and another too small. The proposals to divide the 
circuit--I am very pleased that they do now--several contain 
proposals to add additional judges for California. But under 
all, there would still be more than 20 judges in any circuit 
containing California.
    The third point that I wish to make goes to history. Over 
the course of the extremely colorful history of the West, 
certain ties have developed that should be respected in circuit 
alignment in order to provide for continuity and stability.
    Arizona, for example, may at one time have seen itself as a 
Rocky Mountain State. But the truth today is its economic and 
cultural ties are overwhelmingly closer to California than to 
Colorado or Wyoming. Another example is California and Nevada. 
Their bond is so great that they have joined in a compact to 
protect Lake Tahoe. Idaho and eastern Washington have 
essentially treated their district judges as interchangeable 
for years.
    So the division proposed in S. 2278 into three circuits 
would sever all those ties by dividing Arizona from California, 
California from Nevada, and Idaho from Washington. A unified 
circuit keeps those ties intact.
    As Chief, I am very proud of the manner in which we have 
been able to administer a rapidly growing caseload with 
innovative procedures possible only in a court with large 
judicial resources. Some examples: Our system of identifying 
issues and grouping cases is unique among the circuits and 
allows for efficient resolution of hundreds of cases at a time 
once the central issue is decided by a panel.
    The staff attorney's office, and in particular our Pro Se 
Unit--and the largest growth in cases for some time was in pro 
se cases; it is now the immigration cases which make up that 
increase that has been referred to in the past year. But our 
Pro Se Unit efficiently processes approximately one-third of 
our cases each year, and these are cases in which 
jurisdictional problems dictate the result or in which the 
decision is compelled by existing case law.
    Our bankruptcy appellate panel has successfully resolved a 
large number of bankruptcy appeals which would otherwise be 
decided by circuit judges. Our mediation program, also unique 
in its breadth, resolves more than 800 appellate cases a year, 
and we are the leader in appellate mediation among the Federal 
circuits. Our mediators travel all over the country training 
others to follow in our stead.
    Technology has dramatically changed court operations over 
the last few decades. Senator Feinstein referred to this and it 
is extremely important. Particularly, these changes have taken 
place since the time when the Fifth Circuit split almost 25 
years ago. We now have automated case management and issue 
tracking systems, computer-aided legal research, electronic 
mail, video conferencing. These have all permitted the court to 
function as if the judges were in the same building.
    Most important, the existence of a large circuit, with all 
circuit, district and bankruptcy judges bound by the same 
circuit law, gives us the flexibility to deal with the large 
concentrations of population and enormous empty spaces of the 
West. A large circuit has served our citizens well by allowing 
us to move judges from one part of the circuit to another, 
depending on where the needs are, as recently, for example, in 
the border districts of California and Arizona and in the 
widely scattered population centers of Idaho.
    I recognize that the latest proposal contains a number of 
provisions intended to ameliorate the harm that would result 
from division. It would add circuit judgeships for California 
and it would postpone actual division until after that most 
uncertain point in time when the new judges are confirmed, but 
this makes long-range planning very difficult.
    This proposal also envisions judges from the new Twelfth 
and the Thirteenth Circuit sitting with the Ninth Circuit on 
request. This would restore a bit of the lost flexibility, but 
not much. Judges would have to keep track of the law of 
multiple circuits to make it work. Most important, chief 
circuit judges are not anxious to see their active judges doing 
the work of other courts and not their own.
    The commission chaired by former Justice Byron White 
studied the issues a few years ago. It recommended against 
dividing the circuit, it praised its administration and it 
cautioned against restructuring courts on the basis of 
particular decisions by particular judges. Judicial 
independence is a constitutional protection for all our 
citizens.
    Circuit restructuring is, in fact, rare. It has happened 
only twice. The last was nearly a quarter of a century ago, 
when the Fifth Circuit divided into the Fifth and the Eleventh, 
upon the unanimous vote of the active circuit judges. Division 
should take place only after there is demonstrated proof that a 
circuit is not operating effectively and when there is 
consensus among the bench, the bar and the public it serves 
that division is the appropriate remedy. That burden has not 
been met here.
    The latest proposal was introduced 5 days ago. It took me a 
day to travel here, so I have had only limited time to prepare 
and to study it. If you have any questions that I am unable to 
answer or if you would like a written follow-up on any matter 
that arises during this hearing, I would be happy to provide. I 
would also invite any of you to visit our headquarters in San 
Francisco to see how we function.
    I am pleased to be here with my colleague, Diarmuid 
O'Scannlain, with whom I have appeared before, and with my 
colleague, Richard Tallman, whose views appear to reflect those 
of our mutual mentor and very esteemed colleague, the late, 
great Eugene Wright, of Seattle. Judge Wallace and I never got 
him to see the light either.
    We have had discussions within our court about this subject 
from time to time for several decades, but the great majority 
of our judges have consistently opposed division. We have 48 
judges and I believe the latest list was 9 active and senior 
judges--9 of approximately 48 have supported division. The 
remainder do not. I am advised that the chief bankruptcy judge 
has opposed division as well.
    We are scheduled to discuss this subject at our next court 
retreat in about ten days. The Chair of our Conference of Chief 
District Judges, Judge Coughenour, of Seattle, is here and he 
will share his trial court perspective with you.
    To comment, if I may just briefly, on our en banc process, 
to respond to the Senator's question, our limited en banc 
process has been in place for about 25 years, since I came on 
board. We believe it has worked quite successfully. It has a 
failsafe device. If any judge is unhappy with the decision of 
11 judges, a judge may call for a vote of all of the judges, 
and our rules provide that we will sit as an en banc court, 
with every member of the court sitting.
    We have had, I think, two or three calls for a vote to sit 
en banc. I believe they were in death penalty cases. The court 
has never voted to sit its 28 judges. We believe this is 
testimony that the system has worked quite well. And, as noted, 
we have increased the number of en banc sittings in recent 
years.
    The American Bar Association and the Federal Bar 
Association have both weighed in against a split. I also want 
to clarify that the increase in our caseload recently--there 
was reference to 12,000. That is the total number of cases. The 
increase has been approximately 3,000 and it is due to an 
immigration case surge due to the increasing number of cases 
decided by the Board of Immigration Appeals. The circuit 
receives about 50 percent of the appeals nationwide in 
immigration cases. Most of those are in California as well.
    So I thank you very much for the privilege of appearing 
before you and I will answer any questions that you have.
    [The prepared statement of Judge Schroeder appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Chief Judge Schroeder. We 
appreciate those comments and your insight.
    Judge O'Scannlain.

STATEMENT OF HON. DIARMUID F. O'SCANNLAIN, JUDGE, U.S. COURT OF 
        APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON

    Judge O'Scannlain. Thank you, Mr. Chairman. Good morning, 
Mr. Chairman and members of the Subcommittee. My name is 
Diarmuid F. O'Scannlain, Judge of the United States Court of 
Appeals for the Ninth Circuit, with chambers in Portland, 
Oregon.
    I am especially honored to be called upon, along with my 
colleague, Judge Tallman, and my colleague from the Eleventh 
Circuit, Judge Tjoflat, to support restructuring the largest 
judicial circuit in the country. The urgency is manifest in the 
number of Ninth Circuit reorganization bills which are pending 
in this session of Congress. Last year, Senator Murkowski 
introduced S. 562, and Congressman Simpson of Idaho introduced 
H.R. 2723 in the House, which incidentally has already had a 
hearing in the House Judiciary Committee. Just last week, 
Senator Ensign introduced S. 2278. Each of these proposals 
offers distinct, but elegant solutions to the problem of our 
over-large and overburdened circuit.
    Mr. Chairman, I speak not only on my own behalf, but on 
behalf of many circuit and district judges. Eight of my 
colleagues publicly support the restructuring of the Ninth 
Circuit--Judges Sneed of California, Beezer of Washington, Hall 
of California, Trott of Idaho, Fernandez of California, T.G. 
Nelson of Idaho, Kleinfeld of Alaska, and my colleague here, 
Judge Tallman of Washington.
    You may recall that my colleague, Judge Rymer, from 
California served on the White Commission and is on record that 
our court of appeals is too large to function effectively. I 
can also report that the judges of the District of Oregon have 
recently voted 10 to 4 in favor of a split in a survey which 
was requested by the Oregon Chapter of the Federal Bar 
Association.
    I appear before you as a judge of one of the most 
scrutinized institutions in the country. In many contexts, that 
attention is negative, resulting in criticism and controversy. 
Some view these episodes as fortunate events, sparking renewed 
interest in how the Ninth Circuit conducts its business.
    Yet, I believe that all of us testifying today would agree, 
supporters and opponents alike, that any restructuring proposal 
should be analyzed solely on the grounds of effective judicial 
administration, grounds that remain unaffected by the Supreme 
Court batting averages or public perception of any given 
decision.
    Mr. Chairman, I won't repeat the detail of my written 
testimony, but I do want to emphasize a few points. Put very 
simply, the Ninth Circuit is now so large that the only 
reasonable solution is to reorganize it. We are the largest in 
every category--9 States; 13,000 annual case filings; 47 
judges, soon to be 50; 40 percent of the geographic area of the 
country and 57 million people.
    Indeed, your comments, Mr. Chairman, and those of Senators 
Feinstein, Kyl, Craig and Murkowski suggest that there may be a 
developing consensus that the size of the court bears very 
close scrutiny. Our increasingly gargantuan size relative to 
other circuits irrefutably demonstrates the necessity of a 
reorganization. No matter what metric one uses, the Ninth 
Circuit dwarfs all others.
    If you would kindly turn with me to the appendix to my 
written testimony, specifically to Exhibit 7 on page 33, you 
will see the comparison of the total number of judges on the 
Ninth Circuit with the average number of judges on all of the 
other circuits. This chart dramatically illustrates that the 
Ninth Circuit has two-and-a-half times as many judges as the 
average of all other circuits.
    Turning to the next page, Exhibit 8, page 34, you will see 
that Ninth Circuit law governs the lives of almost three times 
more human beings than the other circuits, on average, do. This 
is a truly extraordinary imbalance of judicial power. An 
opinion issued by the average circuit judge in this country 
establishes Federal law for about 20 million people, but the 
same opinion, if issued by a Ninth Circuit judge, adjudicates 
the Federal rights and obligations for close to 60 million 
citizens. That is a stunning discrepancy.
    Turning to Exhibit 9 on page 35, you will see that the 
Ninth Circuit now houses nearly as many people as the Fifth and 
the Eleventh Circuits combined. These two circuits were formed 
by splitting a single circuit, the old Fifth Circuit, back in 
1981 in a relatively straightforward process that went largely 
unchallenged. So I am mystified by the relentless refusal by 
past and present Ninth Circuit chief judges to entertain any 
reorganization at all.
    Exhibit 10 on page 36 demonstrates the serious caseload gap 
between the Ninth Circuit and the average of all of the 
circuits. In overall appeals filed last court year--perhaps the 
most important metric of judicial administration--the Ninth 
Circuit dwarfed the other circuits by an almost three-to-one 
margin. And this will only get worse. As the Administrative 
Office has reported for several years now, the number of 
appeals in the Ninth Circuit keeps climbing at an ever-
increasing rate.
    Although we have elevated our productivity through various 
triage efforts, we have not been able to increase the 
resolution of our appeals at the same remarkable pace set by 
new filings. The Ninth Circuit Court of Appeals has not yet 
collapsed, but it is certainly poised at the edge of a 
precipice, and only a restructuring can bring us back.
    Split opponents have long attempted to place the burden on 
Congress to demonstrate that a reorganization is absolutely 
necessary. There may have been some force to that argument in 
the past when the Ninth Circuit was the largest of our regional 
circuits, but by a relatively small margin.
    Of course, complete parity is impossible and, by 
consequence, there will always be a largest and there will 
always be a smallest circuit. But, Mr. Chairman, I submit to 
you now that the tide has turned and the burden plainly has 
shifted, indeed the whole paradigm has shifted. As long as one 
accepts the underlying premise of appellate circuits in the 
first place that discrete decisionmaking units provide absolute 
benefits to the administration of justice, there is no denying 
that the Ninth Circuit must be reorganized.
    I challenge any opponent of reorganization to articulate a 
reasonable justification for placing one-fifth of our citizens, 
one-fifth of the entire Federal appellate judiciary and one-
fifth of all of the appeals filed by all of the Federal 
litigants in this country in just one of twelve regional 
subdivisions.
    The Ninth Circuit's size has so far exceeded the other 
circuits in all relevant respects that it is difficult even to 
argue that it is part of the same appellate system. Indeed, 
opponents generally make precisely such an argument. They have 
to because there is no other justification for such a large 
deviation from the norm.
    But then maybe the Ninth Circuit is something special. 
Maybe, as reorganization critics appear to believe, we are the 
exception to every other circuit, and maybe we are some 
untouchable empire immune from scrutiny that should be allowed 
to swell to three times the size of all other circuits without 
consequence.
    But if that is the case, then it is time for the critics of 
restructuring to defend that position. Clearly, it has become 
the job of those who oppose reconfiguration to demonstrate why 
such a wildly uneven distribution should stand, for there can 
be no dispute about what the numbers alone prove. The question 
that must now be answered is whether there is any compelling 
evidence to avoid a split.
    There was at least one argument along these lines that 
warrants a specific response. In her most recent state of the 
circuit speech, our chief judge made the astonishing assertion 
that, and I quote, ``Split proposals must realistically be 
viewed as a threat to judicial independence,'' end quote. I 
submit that this is directly contrary to over a century of 
Congressional attention to circuit structure, all of which is 
concededly within the legislature's purview, and it simply 
cannot be true.
    Bills such as S. 562, H.R. 2723 and S. 2278, with many 
provisions directly responding to the concerns the chief judge 
and other critics have previously articulated, deserve 
considered commendation, not presumptive condemnation. They 
demonstrate the good-faith efforts made by the House and the 
Senate reasonably to restructure the judicial goliath of our 
court.
    Calling for a circuit split based on a particular decision 
is counterproductive and unacceptable. But may I suggest so is 
attacking the integrity of our elected representatives when 
confronted with honest and fair proposals to divide our 
circuit.
    Unfortunately, the Ninth Circuit's problems will not go 
away. Rather, they will only get worse. The case for a split 
has become self-evident. We have moved beyond the time for 
quibbles over presumptions and motivations. This issue has 
already spawned, both within and outside the court, too much 
debate, discussion, reporting, testifying, and for far too 
long. We judges need to get back to judging.
    I ask that you mandate some sort of restructuring now. One 
way or another, the issue must be put to rest so that we can 
concentrate on our sworn duties and end the distractions caused 
by this never-ending controversy. I urge you to give serious 
consideration to any reasonable restructuring proposal that 
might come before you.
    Mr. Chairman, I thank you for allowing me to appear before 
you today and I will be very happy to answer any questions that 
you may have.
    [The prepared statement of Judge O'Scannlain appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge O'Scannlain, and your 
complete remarks and the remarks of all of you will be put in 
the record. We appreciate the tale you gave us in your written 
statement.
    Judge Tallman.

  STATEMENT OF HON. RICHARD C. TALLMAN, JUDGE, U.S. COURT OF 
       APPEALS FOR THE NINTH CIRCUIT, SEATTLE, WASHINGTON

    Judge Tallman. Good morning, Mr. Chairman, members of the 
Subcommittee and Senator Murkowski. My name is Richard C. 
Tallman and I am a circuit judge on the Ninth Circuit, with 
chambers in Seattle, Washington. I was appointed by President 
William J. Clinton in May of 2000. I thank you for the 
invitation to appear here today to discuss the reorganization 
of our court.
    I again join my colleague, Judge Diarmuid O'Scannlain, and 
the other circuit and district judges throughout our circuit 
who publicly favor splitting our court to better serve the 
citizens of the West. Like so many of the contentious cases we 
decide, this topic also divides my colleagues. But I must 
respectfully disagree with the other point of view espoused by 
my distinguished chief judge, Judge Wallace and Chief Judge 
Coughenour. Size does affect the quality and efficiency of 
administering justice. Inevitable and continuing growth will 
not permit us to ignore this conundrum indefinitely.
    I agree with the opening comments of the Senators this 
morning and with Judge O'Scannlain that the key consideration 
is identifying the best structure to permit our judges to serve 
the public. The public has the right to prompt, quality 
decisionmaking. Justice delayed is justice denied. The quality 
of our decisionmaking process is impacted by a variety of 
factors. I would like to touch upon a few in my oral remarks.
    I am acutely aware of how the sheer size of our court 
impedes the critical development of strong personal working 
relationships with my fellow judges. The genius of the 
appellate process is the close collaboration of independent 
jurists who combine their judgment, experiences and collective 
wisdom to decide the issues presented in an appeal.
    I came on the bench nearly 4 years ago, in June of 2000. 
Yet, to this day, I have not sat on a regular three-judge oral 
argument panel with all of my other active and senior 
colleagues. I am not alone. Professor Hellman, a noted expert 
on our court, testified in October 2003 about H.R. 2723, 
introduced by Congressman Mike Simpson of Idaho. Professor 
Hellman's research confirmed that even today the judges of my 
court sit with one another infrequently. He cited the example 
of Judge William Fletcher, who joined the court in February 
1999 and who, four-and-a-half years later, had still not sat 
with all of the active judges appointed through 2000.
    The White Commission observed 6 years ago that only by 
sitting together regularly can members of a court come to know 
one another and work most effectively together. The sheer 
volume of the nearly 13,000 appeals filed annually would be 
difficult for our active and senior judges to handle under the 
best of circumstances.
    The problem is exacerbated by the enormous geographical 
size of our circuit; as some in Idaho and Montana describe it, 
``windshield time''. The problem means that we have to travel 
long distances and spend substantial time away from our 
chambers in transit. Professor Hellman testified that judges 
need a working environment that is conducive to the thoughtful 
and efficient processing of their cases. Travel detracts from 
the creation of that environment.
    For example, there are only some kinds of work that I can 
do in the many hours I spend in airports and on airplanes. To 
protect the confidentiality of the decisionmaking process, I 
cannot work on opinions not yet publicly filed, or read sealed 
materials or memoranda from other judges relating to such 
matters. I would gladly give up my premier frequent-flyer 
status for more time in chambers.
    Turning to the aspect of our work that is most important to 
maintaining consistency in our decisions, I would like to tell 
you why our current system of limited en banc proceedings is 
not working fairly.
    The Ninth Circuit is the only circuit in the country where 
all active circuit judges do not participate in rendering the 
most important decisions. Size prevents us from functioning as 
a democratic institution with majority rule--the rule in every 
other circuit court and in the United States Supreme Court. 
Only our chief judge is assured a seat on every en banc panel. 
The remaining 10, out of 26 active judges, are randomly drawn 
by lot using a jury wheel. The randomness of this selection 
process frequently results in en banc panels that do not 
contain any of the judges who originally sat on the three-judge 
panel.
    This occurred in the California recall election case and 
two recent death penalty cases cited in my written testimony. 
The recall case, in particular, has been touted as a shining 
example of how quickly and efficiently our en banc process can 
work. But the en banc panels deliberated and voted to reverse 
the initial decisions in all three cases without the 
participation and benefit of the in-depth knowledge of the 
factual and procedural history of each case possessed by the 
three judges who initially heard them.
    Most strikingly, a mere 6 judges on a limited en banc panel 
can set the law of the circuit for the other 20 judges, whether 
the resulting decision reflects the full majority's views or 
not. It is indisputable that some close cases with six-to-five 
or seven-to-four split votes would have been decided 
differently had different eligible judges been drawn for the en 
banc panels. I have provided specific examples in my written 
materials.
    It also is theoretically possible that an 11-judge panel 
could contain none of the minimum of 14 judges who voted to 
accept the case for en banc review in the first place. A 
court's en banc process should be inclusive, encouraging 
participation by all judges. After all, these are by definition 
cases of great significance or those involving extraordinary 
legal error.
    Yet, our limited en banc system discourages judges from 
making en banc calls, which again plays a key role in 
developing and maintaining our jurisprudence. Making an en banc 
call or opposing one is a tremendously time-consuming endeavor. 
Unseen by the public is the written advocacy of the judges 
supporting the call, who essentially write legal briefs in 
support of the reasons why the case should be reviewed en banc. 
The panel that issued the decision normally opposes the call 
and writes a brief urging that the decision stand.
    All judges, active and senior, are free to join in the 
exchange of these internal memoranda, which can become quite 
voluminous. One reason that judges may not choose to 
participate in this process is because they will not know 
whether they have been randomly assigned to the 11-judge panel 
until after a majority of the active judges has voted in favor 
of en banc review. As the court grows bigger, a judge's chances 
of being drawn for an en banc panel decrease.
    Due to the extremely large caseload in the circuit, too 
many cases are decided annually to permit effective review of 
each by an en banc panel. En banc proceedings occur only in a 
small percentage of our cases. For example, in 2003, out of 972 
petitions for rehearing en banc filed by the parties, judges 
called for en banc votes in only 40 cases. Of those 40, only 13 
were eventually reheard en banc. The Supreme Court lacks the 
capacity to correct the inevitable mistakes through its 
certiorari process that slip past our inadequate Ninth Circuit 
limited en banc process.
    Whatever you decide about whether to split the Ninth 
Circuit, I am pleased to see that the various bills recognize 
that California needs more judges. I would certainly be willing 
to visit wherever needed during the transition period while new 
judges are nominated and are under consideration by you for 
appointment.
    In terms of where a new circuit headquarters might be 
located, Seattle is home to the ten-story William K. Nakamura 
United States Courthouse, which the judges of the Western 
District of Washington will soon vacate when they move to a new 
facility. The Nakamura Courthouse has more than 100,000 square 
feet of usable space. It is certainly large enough to serve as 
a circuit headquarters and could be reconfigured for that 
purpose without excessive additional work or financial 
expenditure.
    We are well past the point of asking whether the Ninth 
Circuit should be split. Instead, we ought to be asking how it 
should be accomplished. I appreciate the fact that Congress has 
been considering various proposals for what the split might 
look like. I recognize that the ultimate configuration of such 
a split is a decision best left to the considered judgment of 
the legislative branch. Whatever you decide, a smaller court 
would speed dispositions of appeals, improve our collegiality, 
and enhance predictability, which I learned from practicing law 
is crucial to maintaining the respect for the rule of law among 
the people we serve.
    I thank the Subcommittee for the opportunity to testify and 
I look forward to your questions.
    [The prepared statement of Judge Tallman appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Tallman.
    Senator Feinstein, I believe you have a guest. Would you 
introduce her?
    Senator Feinstein. Thank you very much, Mr. Chairman. 
Indeed, I do. I am privileged to have my granddaughter here. 
She is 11 years old. She lives in San Francisco. He mother, my 
daughter, is a judge, and so she is reviewing this process.
    Chairman Sessions. Very good.
    Senator Feinstein. I am pleased to have her meet the panel.
    Chairman Sessions. We are delighted to have you. We just 
couldn't be happier, and I hope you will give Senator Feinstein 
your best advice on how this matter should be settled.
    Judge Wallace.

STATEMENT OF HON. J. CLIFFORD WALLACE, SENIOR JUDGE, U.S. COURT 
    OF APPEALS FOR THE NINTH CIRCUIT, SAN DIEGO, CALIFORNIA

    Judge Wallace. Thank you, Mr. Chairman. My name is Clifford 
Wallace. I have been a judge on the United States Court of 
Appeals since 1972. I think that makes me senior. Prior to 
that, I was a district court judge, and before that I practiced 
as a trial lawyer in San Diego for 15 years handling major 
civil litigation.
    Since my taking senior status, I have reoriented my views 
as to the best use of my time and now spend over 50 percent of 
my time working with judiciaries overseas, now having worked 
with nearly 60 countries. I only mention this because I come 
with a little different perspective which I intend to describe 
to you later.
    I am very, very pleased to be asked to testify again on the 
division of the circuit. I want to make two points. The first 
point is whether or not the case has been made for a division 
of the Ninth Circuit, and second, if so, or if no? What is the 
alternative to division of the circuit.
    I have testified in opposition to division of the circuit 
before, and one of the issues is who has the burden of proof. I 
notice my colleague, Judge O'Scannlain, was attempting to place 
the burden of proof on us, which is a very interesting ploy. In 
January I was in Indonesia. They have a new constitutional 
court and one of its duties is to certify election results. And 
the legislature gave them a very short time period, 30 days in 
one instance, 15 days in another, to certify over a country 
that has a huge numbers of islands and voting problems.
    I was asked to help them decide how to organize this 
particular challenge, and it seemed clear to me that what they 
needed to do was put the burden proof on the complainer rather 
than litigate each complaint through hearings. They would never 
get completed.
    The burden of proof has always been on those who wish to 
divide the circuit; that is, if you are going to make a change, 
a case must be made of a need. The long-range plan for Federal 
courts made this crystal clear: ``Circuit restructuring should 
only occur 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''.
    My position is that case hasn't been made, the burden proof 
has not been met. I have outlined that in my written statement 
to this Committee. Rather than restating my opinions, I have 
attached a law review article I wrote in the Ohio State Law 
Journal.
    What I would like to do today is move to another area. But 
first I just want to make a footnote here that I am very 
grateful, Mr. Chairman, that you have indicated to my 
colleague, Judge O'Scannlain, that we shouldn't decide issues 
as important as this based upon case decisions.
    I noticed that the junior Senator from Nevada, when he 
introduced his bill, gave a press release indicating the 
circuit should be divided because of the Pledge of Allegiance 
case, which has now been argued before the Supreme Court. I 
point out, Mr. Chairman, that the person who wrote that 
decision is a judge from Oregon, and the very able dissent in 
the case was by a judge from Los Angeles. The idea of dividing 
circuits so that certain cases come out a certain way is 
problematic. I am grateful to the Committee that this is not 
going to be an issue.
    What I would like to do is to bank upon your assurance that 
everyone has an open mind, because I want to go a little 
different direction. I think that what is needed is larger, 
fewer circuits in the 21st century. Those who champion division 
seem to express a preference for a small-court culture.
    My good friend, Jerry Tjoflat, will testify in the next 
group, and he and I have been on opposite sides of this issue 
for quite a number of years. He equates the small, collegial 
court to life in the small town, which he contrasts to the big 
city where many people do not know, much less understand, their 
neighbors.
    This is indeed a romantic and appealing notion, that of the 
small town, in which everyone knows each other intimately, and 
can reach decisions by consensus in town meetings. Then on the 
other side, Judge Tjoflat contrasts it with the so-called 
``jumbo'' court, which he describes as less efficient and less 
predictable.
    There is one issue that is bound to come collegiality: and 
that has been discussed this morning. There is no question that 
as you add judges, you decrease collegiality, but its 
significance depends on how much you try. My colleague, Judge 
Tallman, said there is too much time in travel. But that is 
because we have decided to travel, not because Congress has 
told us to travel. It is not because we can't do it another 
way. We have chosen to travel.
    A few years before I came on the court of appeals in 1972, 
nearly every judge moved to San Francisco when they were 
appointed to the court of appeals. That is what we did. We 
lived at circuit headquarters. We saw each other everyday in 
circuit headquarters.
    The judges of our court today can all move to San Francisco 
and do what we used to do when we were a collegial court. But 
we have chosen, for creature comfort, to live in different 
communities. That is fine, but we shouldn't object on the basis 
of collegiality when we were the ones who caused the decrease 
in collegiality.
    If it is a problem as serious as indicated, then why not 
decide in the Ninth Circuit and in every other circuit in the 
United States that we will all live at circuit headquarters, 
which Judges used to do in the early days of our Republic?
    The ultimate test is not the comfort of the judges, but 
what is best for the country. The Federal courts do not exist 
for the benefit of the judges; they exist, at taxpayers' 
expense, solely to serve and meet the needs of the public. 
Judges are, fundamentally, public servants. Judicial policy 
must be dictated by concerns for the judiciary's mission, not 
the personal preferences of its members.
    Thus, I am not sure that we really gain very much by 
comparing life in the big city with life in the small town. All 
of us would like to go back to the days of Learned Hand where 
we could sit and contemplate and enjoy the slow process, but it 
is not going to happen. Life has gone on, and the people of the 
United States want something else. So what I would like to do 
is talk about regional courts.
    I remember the time when the Fifth Circuit was divided. I 
had been on the Ninth Circuit for some years by then, and the 
Congress decided that the Ninth and the Fifth Circuit could 
split, if the Judges chose to do so, or the alternative would 
be that they could have what are called administrative units 
and limited en bancs. We chose the latter, the Fifth Circuit 
the former.
    John Minor Wisdom, a judge of the old Fifth Circuit, told 
me that the Ninth Circuit is the last regional court left. With 
nostalgia, he said it. I want to talk to you a little bit about 
my view, which is consistent with Judge Wisdom's perception, 
about regional courts. Large circuits like the Ninth can 
enhance stability, predictability and efficiency in law--just 
the charges made by those who wish to divide. Let me talk about 
stability and predictability.
    Critics maintain that a large court is inherently unstable 
and unpredictable. It is true the number of possible panel 
permutations in a court increases exponentially as the number 
of judges increases incrementally, and that one cannot predict 
which panel will hear one's appeal. It is also true that you 
don't sit as much with your colleagues on the bench. It does 
not follow, however, that the law in such a court will be 
unpredictable or unstable.
    Of course, for lawyers and litigants, the best guide for 
predicting the outcome of any litigation is a case on point. 
Where there is no case on point, they are left to shrug their 
shoulders and speculate what the court will do. The more 
published decisions from which to work, the more guidance 
lawyers and trial judges will receive.
    Recognizing this principle, some smaller jurisdictions with 
small courts voluntarily opt to follow the law of the State of 
California, the largest judiciary in our country, for the very 
purpose of providing guidance and predictability to lawyers and 
litigants. Guam is a typical example.
    Attorneys who practice law in small jurisdictions where 
there is little precedent know how difficult it is to plan and 
predict. A larger court is capable of providing sufficient case 
law to provide truly useful precedent. It is precisely in such 
a court where one can find a case on point.
    But will these added cases lead to conflict and 
inconsistency? Professor Arthur Hellman published a collection 
of articles analyzing the Ninth Circuit and commenting on the 
future of the judiciary. Hellman's empirical study--and I point 
out again, empirical study--found that the feared inconsistency 
in decisions of a large court simply has not materialized. I 
have heard lawyers and others tell us our opinions are 
inconsistent, I have heard a lot of people say they are 
unpredictable, but there is only one empirical study and that 
empirical study says those who believe this are wrong.
    Hellman's study is the most thorough, scholarly attempt 
that has yet been made on this issue, according to Professor 
Daniel Meador of the University of Virginia, in that it goes 
far toward rebutting the assumption that such a large appellate 
court, sitting in randomly-assigned three-judge panels, will 
inevitably generate an uneven body of case law. The contrary 
view, though popular, is unsupported by evidence and is really 
nothing more than seat-of-the-pants assumptions.
    What about efficiencies? Chief Judge Schroeder has pointed 
out efficiencies in our court and I will not repeat: but let me 
state that statistics can be misleading. Statistics as to the 
time of filing to the time of disposition take more into 
account than the efficiency of judges. The efficiency of judges 
is determined from the time they get the case until the time 
they file the case.
    Last year, the Ninth Circuit was second best of all 
circuits in judges' promptness as measured by median time from 
hearing to disposition, and, tied for first place for 
submission to disposition.
    The Ninth is the big circuit. Why has the ABA indicated 
that there are efficiencies in the Ninth Circuit? Why does the 
organization which represents all the lawyers of the United 
States believe the Ninth Circuit is doing well?
    The delay is before judges get the case. Judges in the 
Ninth Circuit are more prompt than most all in the United 
States. The question is getting the case to the panels, which 
means more judges. The issue is not how judges are doing in a 
large circuit; it is the lack of judges given to the circuit to 
dispose of its work.
    Now, let me turn for a moment to the 11-judge en banc 
court. I was a member of the court when we decided to adopt 
this program, so it is probably appropriate that I make a 
comment on why we did it and how it can be changed, if our 
court decides to do so.
    A court of 11 judges is designated when there is to be an 
en banc hearing. We were allowed by the Congress to do this by 
rule of courts. My colleague, Judge Tallman, says a three judge 
panel may not automatically be on the en banc court for that 
case. We can change that. We decided at that time that we 
wanted a fresh look at an en banc case and not have the three 
judges of the original panel automatically on the en banc 
court. The fresh look would mean we would have 11 new judges, 
although any of them may be drawn. If Judge Tallman is correct, 
we can change that tomorrow by local rule, if a majority of our 
judges can be convinced by him that the court should be so.
    The question of panel autonomy has always been sacrosanct; 
that is, in most cases we rely on panels. Where we need to take 
a case en banc, we can. We can change it from 11 judges. That 
too is set by local rule. If Judge Tallman is correct that 11 
is too small, change it to 13, change it to 15, change it to 
21. It is all done by the court by local rule. Congress doesn't 
have to do a thing. So if the limited en banc is imperfect, and 
if we in the Ninth Circuit agree with Judge Tallman, we can 
change that by local rule.
    Finally, what about the full court? The full court can 
always take the case. If a majority of the judges decide, after 
the limited en banc court opinion, to sit as a full court, we 
can do so by the same process that we voted for a limited en 
banc majority vote. The court has voted, but has never gone to 
full court. Why? Because I think the judges of the Ninth 
Circuit don't believe that every judge has to have his or her 
hand on the en banc pencil; that is, for purposes of finality, 
11 judges have reached a decision, which is sufficiently final. 
If we are wrong about that, we have the solution in our hands 
and can take any case as a full court. We have two courtrooms 
where it can be held.
    Now, let me point out that in 1990, the report of the 
Federal Courts Study Committee commented upon our limited en 
banc. This committee was made up of a group of judges and 
lawyers from across the country who looked at our system in-
depth. Senators and Congressmen, this is the report: ``The 
limited en banc appears to allow more efficient use of court of 
appeals resources and should be available to other courts of 
appeals, even those that do not regularly have 15 active 
judges. The growth in the number of circuit judges is likely to 
continue, increasing the potential for en banc courts of 
unwieldy size.''
    I have taken more time on that than I should, but let me 
talk about the alternative. Certainly, courts could be more 
congenial if they sat in smaller groups, et cetera. But once 
you divide the Ninth Circuit, where are you going in principle 
as a Congress? Are you going to set certain limits on the size 
of courts?
    There isn't going to be a decrease in the number of cases 
coming to the courts, regardless of what you do with the Ninth 
Circuit. Filings will continue to increase. We will have more 
people. Our people understand their rights better. They are 
better educated. And I applaud these increases; it is showing 
that our courts are providing their useful purpose.
    So what is the average size you want of a circuit court? 
One of the bills before you calls for a six-judge circuit. 
Using that model, we would now have 30 circuits. What happens 
as you continue to divide? What occurs when you have 30 
circuits, when you have 40 circuits? We lose the whole ability 
of having coherent national Federal law.
    It is not just the division of the Ninth Circuit that is at 
stake. The Congress will now decide what will be the Federal 
appellate governance for the future of our country. By the end 
of the 21st century, a Congress will once more have many more 
of these division proposals before it. Do we eventually want 
balkanization of the Federal system, or is it wiser at this 
time to learn how to work with larger courts? Should we not be 
considering combining courts and learning the process that we 
have studied and developed in the Ninth Circuit?
    It is not that large is bad. Large is different. And it is 
not that we can go back to having small circuits of six or 
eight judges throughout the United States. It will not happen. 
We cannot turn the clock back. Our people demand more. The 
question is, at the end of the 21st century, what kind of 
structure do you want? And I suggest that continuing to divide 
will balkanize the Federal rule of law in the United States. We 
would be far better off with fewer, larger circuits. They have 
problems, certainly. Nothing is perfect, but we must look at 
what is best for the United States in the long term. And I 
suggest it is time to open our minds to another model--fewer, 
larger circuits.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Judge Wallace appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Wallace, and thank you 
for your articulate support for the contrarian view that large 
is not bad. You have articulated it well and it gives us a good 
place to work from.
    With regard to the question of burden of proof, I think I 
have learned in the Senate there is no burden of proof up here. 
It is however you feel when you cast your vote and whatever 
factors go into your mind. It is really a political world. As 
one who spent by far the biggest part of my professional life 
in court practicing law, it is something you have to get used 
to.
    Justice Kennedy also in his letter to the White Commission 
noted that, quote, ``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''--in effect, a 
three-judge panel binds 50 million people--``which include,'' 
he says, ``visiting circuit and district judges, must meet a 
heavy burden of persuasion.'' So Justice Kennedy, who used to 
be a member of the Ninth Circuit, as I recall, saw the burden 
on the other side.
    Do you disagree with that, Judge? Obviously, you do.
    Judge Wallace. I do. Justice Kennedy was my junior on the 
court.
    [Laughter.]
    Judge Wallace. I disagreed with him at times then and I 
disagree with him now.
    Chairman Sessions. Well, Judge O'Scannlain, do you have any 
thoughts on the burden question and how the politicians here 
should look at that issue?
    Judge O'Scannlain. Well, it seems to me that time has 
changed. As I indicated in my submitted testimony and in my 
remarks, the relentless growth that we have seen and the 
problems that it has created has called out for a resolution. 
And it seems to me that three very respectable proposals have 
been made in this session of Congress which I would hope our 
chief judge and the members of our court would be given an 
opportunity to review and perhaps get back to you, Mr. 
Chairman, and to your colleagues on the House side with some 
suggestions of how we might go about restructuring.
    I see the burden issue as being responsive to these 
respectable suggestions, and it seems to me that now that that 
has been made from the legislative branch, the burden is on us 
at this point to respond, and respond intelligently with 
suggestions about why this particular restructuring has greater 
strengths than others, or suggested alternatives or whatever. 
But it seems to me that is our burden.
    Chairman Sessions. Well, it is something that we would 
value. I think there really is a lack of concrete commitment to 
any one plan as being the absolute right way to do this. So I 
think if anybody has insight into what they think the circuit 
should look like if it were split, we would be delighted to 
hear it.
    I know the empirical study that you referred to may 
indicate that there is not a concern among lawyers. But the 
White Commission's report found that lawyers in the Ninth 
Circuit report somewhat more difficulty discerning the circuit 
law and predicting outcomes of appeals than lawyers elsewhere. 
Ninth Circuit lawyers more often than others report a large or 
grave problem--the difficulty of discerning circuit law due to 
the conflicting precedents and the unpredictability of 
appellate results until the panel identity is known.
    Judge O'Scannlain, in your remarks you made reference to 
the fact that frequently there is an embarrassing situation in 
which a panel unknowingly conflicts with another panel. I 
believe that was the point you made. Is that more likely to 
happen in a larger circuit, and what did you mean by that?
    Judge O'Scannlain. Well, it has happened and it is indeed 
more likely to happen in a larger circuit simply because of the 
fact that at any given time we have the potential for nine 
separate three-judge panels to be sitting at the same time. 
Whether it be in Pasadena or Honolulu or Anchorage or Portland 
or Seattle, wherever we routinely sit, we could very well have 
as many as nine panels sitting simultaneously, some of which 
panels might have identical issues without necessarily knowing 
that there is a case going to come down from one of the other 
panels or has recently come down and hasn't been published yet.
    We do have an internal procedure that is designed to 
minimize that, but like everything it is not perfect. I respect 
the chief judge and our clerk of court for identifying that 
problem and coming up with a potential resolution of it. But it 
is not a perfect resolution, and it can't be so long as you 
have that kind of volume going on and that many panels which 
could sit simultaneously.
    Chairman Sessions. Chief Judge Schroeder, you might want to 
comment on that, and then also I would like your thoughts on 
how important you think it is to have additional judges for the 
circuit.
    Judge Schroeder. Yes, thank you, Mr. Chairman. I would like 
to comment on the issue of conflicts. I recall just before I 
went on the Ninth Circuit, I had a discussion with one of our 
most revered judges in the history of the country, Judge 
Coffin, of the First Circuit, and it was at the time when the 
Omnibus Judgeship Act of 1978 or 1979 had just passed. Ten 
judges were to be added to the Ninth Circuit and an additional 
judge to the First Circuit, Judge Coffin's circuit.
    He said to me that he thought that the Ninth Circuit would 
have less trouble going from 13 to 23 judges than the First 
Circuit would have going from 3 to 4, because there are always 
problems of adjusting when you have different panels. We have 
attempted to minimize that with our system of issue 
identification.
    We have, since the White Commission report, studied this 
question. We have attempted to quantify the nature of the 
conflicts. We have been unable to do so. We have put a website 
up so that lawyers who find conflicts in our decisions can send 
them to our website.
    We have established a rule where we permit the citation of 
our unpublished decisions to us in petitions for rehearing or 
in requests for publication so that lawyers can cite to us 
instances where we have issued conflicting decisions. And we 
are getting almost no such citations, so the documentation, as 
Judge Wallace has pointed out, for the existence of multiple 
conflicts on a regular basis simply does not exist.
    Chairman Sessions. How about the need for new judges?
    Judge Schroeder. Thank you. The one thing I think that 
there is consensus here on is that additional judges needed to 
be added to serve the interests of the administration of 
justice in the West. That is true, no matter what you do.
    Judge Wallace said it far better than I could. The real 
issue is what do we do with the courts, the Federal courts, as 
the cases grow. This is true in the West and it is true in the 
South. The Eleventh Circuit has chosen not to add judges and 
has instead made very extensive use of visiting judges from 
other circuits. Many of our own judges have been sitting in the 
Eleventh Circuit. And they have also added the number of cases 
per judge, so that now in the Eleventh Circuit the number of 
cases that a judge sits on is now more than 800. I just read a 
book on the division of the Fifth and the Eleventh Circuits. 
They were worried about being overloaded when each judge had 67 
cases.
    Chairman Sessions. Judge Tallman, you talked about the 
courthouse that might be existing in Seattle. I think maybe 
there is one in Portland that Judge O'Scannlain made reference 
to. But tell me, isn't it true that six district judges would 
require more space than six circuit judges, actual space, and 
how many courtrooms would you actually need in a courthouse for 
six circuit judges? I know each judge has got to have their 
office space, but in additional to the office space, you don't 
need six courtrooms, do you?
    Judge Tallman. Senator, I am on the Seattle space Committee 
that is intimately involved in the planning for the renovation 
of that facility. What we are planning is essentially a 
regional court of appeals facility similar to what we have in 
Pasadena as a satellite to the headquarters at 7th and Mission 
in San Francisco.
    The Seattle courthouse, as we are currently planning the 
earthquake retrofit and renovation, will have an en banc 
courtroom and two three-judge hearing rooms that will be carved 
out of the existing five courtrooms that the district court 
uses. We will use the fourth courtroom for a meeting room that 
would be large enough to hold the entire court, as it is 
currently comprised, if it wanted to come up and hear en banc 
cases in Seattle. And the fifth courtroom will be turned into a 
branch library for our circuit library.
    But even under that configuration, and using the planning--
I guess it is called any Court, which is the Administrative 
Office computer program for planning space needs--we still 
can't justify filling the entire 104,000 square feet that will 
be vacated by the district court. We are actually going to have 
to find some sub-tenants for the court of appeals. So there is 
plenty of room in the courthouse.
    Chairman Sessions. The point is you have a library and an 
office in that building. Is there another circuit that is 
there?
    Judge Tallman. We actually currently have three circuit 
judges in that building, and then two of us have been forced 
out, because of space shortages because of the needs of the 
district court, down the street in a nearby commercial office 
building.
    Chairman Sessions. And when that gets fixed, you will 
already have three--
    Judge Tallman. We will have five, in total, two active and 
three senior circuit judges.
    Chairman Sessions. Already in Seattle, and already there is 
chambers space for them there?
    Judge Tallman. Absolutely, and we are planning under the 
current planning documents resident judge chambers space for 
ten resident judges and for nine visiting judges.
    Chairman Sessions. That is a generous plan.
    Judge Tallman. It is a big building.
    Chairman Sessions. It sounds like you have got a pretty 
good budget, Chief.
    I am a little bit critical of the judiciary in feeling that 
every magistrate and every district judge has to have their own 
courtroom, when 75 to 80 percent of the time a judge is not in 
his courtroom, and so they are vacant. So I think from a cost 
point of view, we could probably do better.
    But, regardless, you have, I think, brought us up to date 
than appellate court is not quite the demand that magistrates 
and district judges have, with jury rooms and all of that.
    Judge Tallman. Mr. Chairman, we routinely share courtrooms 
all throughout the circuit for three-judge panel hearings. 
There is no such thing as a courtroom being assigned to a 
circuit judge. It is simply in existence for a three-judge 
panel to meet in, and the only reason we are planning two for 
the Nakamura Courthouse is that we do, every other month, have 
two three-judge panels sitting simultaneously in Seattle, so we 
could easily accommodate them.
    I would also like to add that the money for the renovation 
is coming out of the rent money that we have already paid to 
GSA as tenants of the building. So the Congress would not have 
to appropriate new construction funds for that work. So with 
all due respect to the chief's cost figures that she submitted 
in connection with her written testimony, they are grossly 
overstated if the Nakamura Courthouse were to be utilized for a 
circuit headquarters.
    Chairman Sessions. Chief Judge Schroeder, and then I will 
recognize Senator Feinstein.
    Judge Schroeder. Thank you. I would like to comment to that 
briefly. There is a big difference between using a courthouse 
as a regional place of holding hearings for the Ninth Circuit 
Court of Appeals, which is what is being done in the Nakamura 
Courthouse, and converting that courthouse to a circuit 
courthouse.
    I have studied this and we have studied it for some time. 
We believe--and we have consulted with the Administrative 
Office on this--we believe that the Nakamura Courthouse, if you 
were to have a circuit of six judges under one of the 
proposals, might be sufficient to be a circuit headquarters, 
but you would then have to--because that proposal creates three 
circuits, you would have to create another courthouse either in 
Phoenix or in Las Vegas.
    If you were to convert the Nakamura Courthouse to a circuit 
headquarters for a larger circuit that is for more than six 
judges, it would have to be substantially reconfigured. It 
wouldn't work because you have to have space for files, for 
clerks' offices, for circuit executive, for computers, for all 
of the things that are now in San Francisco that would have to 
be moved to a circuit headquarters.
    Judge O'Scannlain. Mr. Chairman, if I could comment on 
that, the best way to analyze this is in terms of the total 
number of employees for the current Ninth Circuit and what 
would result.
    Just hypothetically, suppose we were going to split into 
two circuits, one roughly two-thirds and one roughly one-third 
of where we are now. If we have 300 employees in San Francisco, 
San Francisco would reduce the number of employees presumably 
by 100. And whatever circuit headquarters would be needed in 
Seattle or Portland or whatever, you are only talking about a 
smaller number, one-third of what used to be in San Francisco.
    The assumption seems to be floating around here that 
somehow--
    Chairman Sessions. That is the way business people think, 
Judge, but I am not sure judges think that way.
    Judge O'Scannlain. Well, some of us do.
    Judge Schroeder. Again, I would like to invite you to come 
and see how the space is utilized. It is not just people, it is 
files and documents.
    Chairman Sessions. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. I 
particularly want to make a comment on Judge Wallace because I 
remember him appearing, I think, when he was chief judge on 
this same subject. And you have lost none of your brilliance. I 
want you to do know that, and it is very much appreciated.
    One of the problems we have, Judge Wallace, is that this 
comes back and back and back again, which, if you sit on our 
side of the dais, you have to come to believe means that there 
are people out there who want to split the court. And it is 
particularly in the Northwest where this view applies. Both 
Senator Craig and Senator Murkowski mentioned the popularity of 
it in their States. You have a relatively new Senator in 
Senator Ensign, and yet he makes a proposal as well.
    So it is out there, and I would say to all of you I don't 
think it is going to subside. So the question is whether we 
tackle it or we don't tackle it. My view has been that I have 
seen no overriding reason up to this point to tackle it. I 
think it is much more complicated than we have looked at it to 
date. I will begin to get cost estimates now from CBO and 
others on each of the bills.
    Respectfully, Judge Tallman, I don't think it is going to 
be that simple. I have found that courthouses become the 
redeeming fact of judges. I mean, they all want new 
courthouses. It just doesn't stop. I hear different States 
wanting the courthouse, et cetera.
    Senator Craig. Senator, I think cost per square footage on 
courthouses is the highest of any Federal buildings in the 
Nation.
    Senator Feinstein. I am sure that is right. Thank you. I am 
sure that is right.
    So the question comes, if you are going to do this, how do 
you do it to really serve the public the best? This is part of 
the point, and my own view is that the two-circuit split 
doesn't really accomplish very much at all because it leaves 
the heavy preponderance in the Ninth Circuit. The three-circuit 
split doesn't go much more than that because if you look, as 
has been suggested by one of the jurists, into sort of the 
split of business, under the Ensign proposal the Ninth Circuit 
would keep 69 percent of the cases, under the Murkowski 
proposal 72 percent of the cases, and under the House proposal 
81 percent of the cases. So there is no way you can do a split 
without adding substantial new judges to the Ninth Circuit. I 
think that has to be the first point we have to have agreement 
on.
    Then the second point comes in with precedent, and I want 
to ask each of your views on that. If there were to be a split, 
how would you handle the issue of precedent?
    Why don't you begin, Chief Judge?
    Judge Schroeder. Well, the precedent for precedent is the 
Fifth Circuit-Eleventh Circuit split, which was that all of the 
previous decisions of the Fifth Circuit were adopted as 
precedent for the Fifth and the Eleventh.
    Senator Feinstein. So you would say Ninth Circuit precedent 
be adopted among any new circuits?
    Judge Schroeder. I think that would be the way probably 
that it would be handled, but I don't speak having discussed 
it.
    Senator Feinstein. Well, I think that is important.
    Judge O'Scannlain. Thank you, Senator. I would expect on 
the first official meeting of the new circuit that the judges 
would adopt a rule of court that all existing Ninth Circuit 
precedents shall become the law of the new circuit from day 
one. I think that is what happened in the Fifth Circuit and I 
think that particular fact goes a long way to dispelling the 
concerns of those who do worry about whether the law would be 
different if it were different judges or in different parts of 
the existing circuit. I think that is a very important point.
    Senator Feinstein. Thank you very much.
    Judge Tallman.
    Judge Tallman. Senator, I think that Judge Tjoflat can 
address your question directly because they had that problem 
and he can tell you how they resolved it. But my understanding 
is that for purposes of respecting precedent and the fact that, 
let's say, in business transactions lawyers have counseled 
clients in the past to rely upon existing Ninth Circuit 
precedent in structuring their transactions, you would have to 
leave that law in place initially until such time as the new 
circuit had occasion through future case development to perhaps 
address those issues in the future. Maybe new Supreme Court 
cases would come down that might change it, but I think you 
would have to, for the stability of the transition, adopt 
existing precedent.
    Senator Feinstein. Thank you, Judge.
    Judge Wallace.
    Judge Wallace. I have nothing to add. I agree with my 
colleagues.
    Senator Feinstein. Thank you very much.
    Another point I would like to raise is every time we have 
considered this before, we have always looked to the positions 
of the State bars, the individual State bars in all of the 
States. At this point, we have had just a smattering of 
response and I do think we need to get that.
    I would suggest that if we were to do this and do it right, 
it is going to have substantial cost to it well in excess of 
$100 million. I think we need to at least begin to get some of 
those figures assembled and I would like to ask if the court 
could assemble some figures for us. You mentioned all of the 
technology that would have to be duplicated, and I think we 
need to get a handle at least on those as well.
    Judge Schroeder. We would work with the Administrative 
Office to do that, and it is not just court figures; it is the 
circuit-wide.
    Senator Feinstein. Yes. Now, one question on the en banc 
proceedings. Because this was raised, let me go to the Pledge 
of Allegiance case. It would seem to me if there were any case 
where the circuit would sit as an absolute full circuit, it 
would be that case because judges must know the resounding 
impact of that case.
    It would seem to me that rather than leave a case like that 
which so impacts the history of what this Nation is all about, 
a very solemn Pledge of Allegiance, the entire circuit would 
sit. So from the time this came down, I was puzzled why that 
didn't happen.
    Could any of you take a crack at that?
    Judge O'Scannlain. As you may recall, Senator, I wrote the 
dissent from failure to rehear the case en banc. So the public 
knows that there was a call for a rehearing en banc, and what 
the public can surmise is that there were less than whatever it 
was, 14 votes at that point, in favor of taking that case en 
banc.
    But I would like to suggest that there are probably a 
variety of reasons why judges would vote one way or the other 
on that proposition. For the same reason that you suggest that 
this is a very high-profile issue, some of my colleagues might 
very well have decided not to vote in favor of en banc 
rehearing so that the Supreme Court could get the case as 
quickly as possible, precisely because it is such a case of 
major importance. But there is no record of the individual 
views of the 26, or whatever there were at that time, judges. 
So we can't really go beyond that level of speculation.
    Senator Feinstein. Judge Wallace.
    Judge Wallace. Because I am a senior judge, I can 
speculate. As I indicated, the majority opinion was written by 
Judge Ted Goodwin. He was appointed to the district court and 
to the circuit court by Richard Nixon. He is from Oregon. He is 
a judge who looks very carefully at the dispositions.
    I have read the case. I am more persuaded by the dissent, 
but the majority opinion makes a good point that a case in the 
Supreme Court leads them in that direction. It was a case 
authored by my former colleague, Justice Kennedy, and it may be 
that our the court thought this is an issue for the Supreme 
Court; it is their problem, they should look at it. And they 
have.
    We aren't always happy with the decisions we have to write. 
We have to follow the Supreme Court and we have to follow our 
own precedent. I think that the opinion can be justified on 
that basis and that the action of our court was proper that 
this is one the Supreme Court is going to have to solve, and 
apparently they are going to if they can find standing.
    Senator Feinstein. Thank you.
    One of the things that I have had a great deal of trouble 
throughout the years with as this has come up over and over and 
over again is the diversity issue, the three-State issue. Yet, 
there is so much diversity. I mean, just in California alone a 
test of diversity, in a sense, is met.
    The question comes, too, because there is such feeling from 
the more agricultural States, I think, and I think Idaho is 
probably a classic example--and Senator Craig, I am sure, will 
not hesitate to correct me--that they don't belong in the 
circuit. There are feelings that some States have such 
different interests that they belong in a different circuit.
    How do you look at that, how do you regard it? How should 
we look at that?
    Judge O'Scannlain. Senator, the notion that there is a 
minimum number of circuits, I believe, is one that arises in 
the academy. The law professors seem to think that it is very 
important to have a minimum number, presumably three. Now, I 
don't know why it has to be three, necessarily. Two might work. 
Theoretically, one could envisage a one-State circuit. After 
all, you have the District of Columbia Circuit, which is a one-
district, one-entity circuit.
    The reason why commentators have supported more than one 
State tends to have to do with impact on the State itself. For 
example, California has three different options. One, there 
could be an all-California circuit, a single-State circuit, but 
that would give rise to perhaps unhealthy competition between 
the circuit court of appeals, the Federal court, and the State 
supreme court, both of which have overlapping responsibilities 
on a number of issues. The other option would be to put 
California into two separate circuits, which was the 
recommendation of the Hruska Commission. But I recognize, 
Senator, I believe you have some reservations or concerns about 
that.
    So the analysis has been, all right, assuming California is 
the building block, what are the least populace or least case-
heavy States that could be added to it to accomplish a split 
that would result in a circuit which would still contain 
California and then the minimum addition, whether it is plus 
one or plus two.
    So in a sense, you have a conundrum, the problem being that 
California is so large that it could certainly justify a 
circuit all by itself, with all the diversity that it 
represents and with the four separate judicial districts within 
the State. There is no question, based on population or even on 
caseload, that that would certainly be viable. The real 
question is what do we do with the notion that you have a 
Federal role and you also have a State role and you want to 
minimize the tensions the best you can.
    Judge Schroeder. May I comment to that, Senator?
    Senator Feinstein. Please.
    Judge Schroeder. Thank you. The reason historically that 
there has been a three-State principle has been, I believe, the 
need to have at least six Senators in order to get the 
resources for a circuit because the Senate has such a vital 
role in confirming judges.
    As for the diversity, I think there is no question that 
California is diverse. The concern has been that the driving 
force here has been to create a new circuit in the Pacific 
Northwest from those States, and the concern has been that that 
is not a diverse interest because the reason for the movement 
to create a circuit and the concern is that there is driven by 
certain economic interests.
    I will only reiterate the concern expressed by my 
distinguished late colleague, Judge Wiggins, who sat in 
Congress and who pointed out repeatedly in opposition to my 
distinguished colleagues that we should have a circuit made up 
of the Pacific Northwest. He said that Congress makes one law 
for the entire United States and we should not create courts in 
order to interpret that law differently for certain parts of 
the country. I share that concern.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Sessions. Thank you.
    Senator Biden said that one time. I was presiding in the 
Chair and he said, well, there is only one Constitution and one 
Federal law; you ought to get the same ruling in every Federal 
court in America. Maybe the Northwest knows about salmon and 
Arizona judges have more expertise in immigration, but I think 
you make a good point.
    Judge Wallace, I would just say that I sort of took your 
position when the panel rendered the Pledge case. Most of the 
Senators criticized the Ninth Circuit, including the Democratic 
Leader and Democratic Whip, pretty aggressively.
    Senator Feinstein. May I put Senator Leahy's statement in 
the record?
    Chairman Sessions. Yes. Senator Leahy's statement will be 
made a part of the record.
    I remember saying that, well, it is the Supreme Court's 
time to get this thing straight. They have muddled the law of 
separation of church and state in many, many ways, and 
ultimately they have got to call the question. I do believe 
that.
    Senator Craig.
    Senator Craig. I am learning a great deal this morning--and 
I appreciate that--from your differing points of view about a 
single issue and how we view it as objectively as we can.
    As I said earlier, I am not an attorney. At the same time, 
I do believe it is my incumbent responsibility to attempt to 
reflect a majority opinion of my State as best I can. So in 
listening to all of you this morning, I am factoring several 
things in. So let me make several observations as it relates to 
some of what you all have said.
    Judge Schroeder, it is interesting that politics would be 
the original designer of a circuit; so many Senators, therefore 
so many circuits. But the politics of that day did not 
understand that one State could become so very dominant. In the 
case of resource allocation today, the State of California 
controls a little better than a sixth of the votes in the House 
and the Chairman of the House and Ways Committee. So from the 
standpoint of California being impaired by resources in a 
division, that day has passed, and we must retain as best we 
can a certain amount of contemporary opinion. At the same time, 
reality suggests different kinds of things today than it might 
have at the time of that design. I don't dispute the original 
basis.
    Judge Schroeder. May I comment?
    Senator Craig. Please.
    Judge Schroeder. I was giving the historic basis.
    Senator Craig. Exactly.
    Judge Schroeder. On the domination of California, no one 
understand your views more than a judge from Arizona because we 
are adjacent to California, but we know that we are tied to 
California. We don't want to lose that tie, we don't want to be 
dominated. Therefore, we believe that the balance of the 
existing circuit is the best way to achieve the kind of balance 
and efficient administration of justice for all the people in 
the West, which has to be my first priority.
    Senator Craig. Let me now turn to an interesting 
observation that Judge Wallace has made as it relates to size. 
Size is inevitable, so we ought to learn to manage size. If 
that is true, let me offer you this suggestion, Judge, as it 
relates to the Ninth Circuit and the Eleventh Circuit.
    If you think you can manage what you have got now, give it 
another decade because of the rates of growth in those two 
circuits. If you look at the rate of growth in the three States 
of Arizona, Nevada and Idaho alone, I would suggest to you that 
that circuit will grow increasingly larger proportionate to 
other circuits, simply because many of us in the West would 
suggest that the rest of the world has discovered us and they 
are wanting to come there to live.
    Be that as it may, the growth factors are substantial. I 
find it very interesting in my State, in a time of relative 
economic flatness, the growth hasn't changed; people are still 
coming in high numbers. So I do believe we are looking at a 
very large circuit that will grow larger than others, 
increasingly so, and that remains a problem. I think it is also 
true of the Eleventh, for a variety of maybe different reasons, 
but clearly growth is at hand in those two circuits, more so 
than almost any other circuits in the Nation. That is part of 
the frustration I think we are all looking at when we look at 
the facts of the circuit and the caseload involved and the time 
lines and whether justice is, in fact, being rendered in a 
timely way.
    Let me go to another point that I find quite fascinating. 
Some would like to retain the small-town culture. That day has 
passed; let's get on with bigness. I would suggest to you that 
America does want to try to retain as best it can the small-
town culture.
    I find it very interesting that in almost attitudes today 
reflected in polls that Americans really want family and 
community to supersede the influence of a broader, larger 
culture, if you will. So reflective from some of the bases from 
which we make decisions here, I think we all take that into 
consideration. That is the political side of evaluating how a 
court or the process itself works.
    I find it very fascinating that that remains true even in a 
State like Idaho that is now growing very rapidly. Of course, 
it is ironic that the growth itself is a product of those 
searching for the small town, and in searching for it they 
create the large town, and that is inevitably true. So it is an 
interesting struggle we are at. At the same time, I think what 
we now look at and must look at is numbers and timeliness and 
can, in fact, decisions be rendered that are consistent with 
law and precedent that is extremely important.
    Lastly, I found it interesting, Judge Schroeder, your 
observation about the culture of the court and the character of 
the western growth. Idaho has grown at an unprecedented rate in 
the last decade. Certainly, for Idaho, it has been a struggle.
    What is fascinating is that half of those who come to Idaho 
are from California. So it isn't that the California culture is 
going to escape Idaho. It is moving there. I would suggest that 
California is culturizing the West. Whether I like it or not, 
the reality is quite true.
    Senator Feinstein. Point of personal privilege. That is 
actually the nicest thing you have said in a long time.
    [Laughter.]
    Senator Craig. See, Dianne, you are seeing my kinder, 
gentler moments here.
    But it is very true. That is the reality of how we grow in 
the West. As California grows, people from the West love the 
West, so they are not going to leave the West and they go 
elsewhere in the West. That is true of Idaho and I suspect it 
is extremely true of Nevada today. It has always been true of 
Arizona and other places. But, statistically, that is true. 
About half from California, half from the rest of the United 
States, come to Idaho.
    What is at stake, I do believe--and I don't disagree with 
the Senator from California about differences as it relates to 
how Idahoans perceive a San Francisco judge judging on an Idaho 
agricultural, resource, or public land issue. They feel, and 
have expressed very openly, that there is an inherent urban 
bias, if you will, upon a State where its ruralness, or more 
importantly its historic and what I believe legal precedents of 
a relationship between its people and the land are, in part, 
different. That has always been a frustration, also, and I 
think that has helped push the issue of a division of the court 
to try to get judges that are more reflective of the culture 
that they are judging cases coming from.
    Well, those are some observations. My bias toward splitting 
the court I have expressed for a good number of years. I do 
believe that I agree with Judge O'Scannlain. I believe that my 
bias is now being increasingly confirmed by a broader majority 
of citizens because of the sheer numbers involved and what is 
happening out there. What might have started as a political 
bias, if you will, or a bias based on politics is rapidly a 
bias that may well be justified by size and the ability of the 
court to effectively function.
    Thank you all very much for your observations and your 
concern. We will rely on you as we must and should, because of 
your experience, as we draw toward what I think is an 
inevitable decision on how we handle this issue.
    Thank you.
    Chairman Sessions. Thank you, Senator Craig.
    Counselor Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    A lot of the concern about a potential split of the circuit 
has to do with the en banc review issue in a court as large as 
the Ninth Circuit. That was a significant focus of the White 
Commission which resolved it in a different and unique way that 
I think, by the way, Mr. Chairman, we should go back and review 
because there was a lot of work that went into that commission. 
I disagreed with the specific recommendation of the commission, 
but I thought it had a lot of very sensible things to day, and 
I think we should go back and review that thoroughly.
    But this question of en banc review, especially with a 
court as large as the Ninth Circuit--and I wanted to review 
something that Judge Posner said that puts this at the top of 
the list of things we have to address. Judge Posner has called 
this limited en banc procedure a formula for in-fighting and 
doctrinal incoherence, among other things because of the 
possible discrepancy between the three-judge panel and the 
random draw of ten judges, plus the chief judge, on the en banc 
panel, the lack of collegiality and the other things that have 
been mentioned here.
    Now, Judge Wallace says, well, we might as well get used to 
this because inevitably the population in all of the circuits 
is going to grow. The caseloads will grow, and we should be 
using the Ninth Circuit in this situation as somewhat of a 
pilot project to figure out how to deal with the inevitable 
growth of all of the other circuits.
    I suppose one response to that is, yes, that is certainly 
true, but is it still nevertheless healthy to have a mega 
circuit that not only is about as big as any two other circuits 
combined, but growing at a faster rate than any of the other 
circuits?
    In other words, should we be trying to deal with that 
growth situation as a group of equal courts rather than one 
that is so substantially larger and growing at a faster rate? 
In other words, is there is a question of optimum size, even 
with growth, and of relative size that is important for us to 
address?
    Could I ask, with that sort of obtuse observation, each of 
you to just address it as an open-ended question, but focused 
on especially the problems with en banc review that I think all 
of us would acknowledge are one of the driving forces in 
presenting this issue?
    We will start with Judge Schroeder and go down the panel.
    Judge Schroeder. Yes. Senator, as Judge Wallace noted in 
his testimony, the question of en banc review in our procedures 
we can change. We established the limited en banc; we can 
change it. I would be more than happy to talk with you or with 
anyone else. We can take it back to the court and discuss it 
and see whether it is advisable, whether it would make any 
meaningful difference to expand the size of the en banc. So we 
can do that.
    On the whole issue of circuit configuration, I think that 
Senator Craig made a very good point and that is in line with 
what we have been saying. The issue here is what do you do with 
the fact that there are growing areas of the country where 
cases are going to continue to be filed at an increasingly fast 
rate. That includes the Eleventh Circuit and the Fifth Circuit 
and the Ninth Circuit.
    It may well be that the time has come for there to be 
another independent look not at the whole system, not at the 
Ninth Circuit, but simply dealing with the issues of how to 
administer justice in those areas which are growing so fast 
that additional judges are going to have to be needed. I think 
that larger issue is what needs to be confronted.
    Senator Kyl. Judge O'Scannlain.
    Judge O'Scannlain. Senator, I think the thing to keep in 
mind with respect to this limited en banc option is that this 
is a creature of statute that permits two circuits to function 
with less than its full court. The only other circuit besides 
ours that qualifies is the Fifth Circuit and they have, since 
1980, declined to function with a limited en banc court. We are 
the only court of the two that are eligible that has adopted 
the limited en banc option.
    I think what you see from the testimony, in particular, of 
my colleague, Judge Tallman, and some of my comments is that 
there are a lot of people who wonder if the limited en banc 
process isn't broken, for a variety of reasons. First of all, 
the notion that 6 judges can bind 28 is in itself a very, very 
difficult concept to deal with.
    But more importantly, there have been a number of instances 
now, and in particular the Payton case which Judge Tallman may 
wish to speak to, where more judges on our court voted one way 
than the six judges who had the last word. More than six voted 
the other way, so it is a very, very difficult case to support 
at this point.
    Now, it is true that we could sit as a 28-judge full court 
en banc. There were two calls; they both occurred since 1986, 
when I came on the court. One had to do with the physician-
assisted suicide case, where the vote was eight to three in 
favor of finding a constitutional right for physician-assisted 
suicide. There was a call, but there was less than a majority. 
So the Supreme Court took it and reversed us.
    Senator Kyl. Excuse me. When you say there was a call, 
could you explain that for the record?
    Judge O'Scannlain. There was a call for a full court 
rehearing after the eight to three en banc decision, and the 
call was unsuccessful. In other words, maybe it took 15 votes 
at that point. Whatever a majority of the number of active 
judges at that time was, it did not materialize. So therefore 
it went on to the Supreme Court.
    The other one was a six-to-five decision where the majority 
held that there was no Eighth Amendment violation when the 
State of Washington used as a form of execution in capital 
cases hanging. There was a call for that case to be reheard en 
banc as well because, first of all, it was a six-to-five case. 
I am sure a lot of people would think that in and of itself 
might justify a rehearing by the full court, and obviously it 
was a very significant constitutional issue. Well, there was a 
call made at that point for a full-court review and the full 
court did not do so. There was not a majority to do so. I 
think, as a matter of fact, that case never went to the Supreme 
Court. As I understand it, it ended at that stage.
    So there is a real problem, and the only reason we have a 
limited en banc is because we are so large. That is really what 
we are dealing with here. Every other circuit will function 
with a full court en banc, and have done so all along. I think 
we have arrived at a point where there is a diminishing 
confidence in our limited en banc process.
    Judge Tallman. Senator, my response would be if the limited 
en banc is such a good system, why hasn't anybody else emulated 
it? The Fifth Circuit certainly could if it wanted to, but has 
chosen not to do so. And making en banc panels larger is not a 
solution. Judge Tjoflat, I think, is prepared to tell you about 
his experiences with an en banc where they actually had some 25 
or 26 judges, and at that point it begins to look less like a 
court and more like an argument in the House of Lords. The 
dynamics are very different when you get a group that big 
trying to decide a single legal issue.
    Senator Kyl. If I could just interrupt--and, Judge Wallace, 
excuse me--that is the situation that is going to exist in, 
let's say, a hypothetically California-only Ninth Circuit. You 
are going to have that many judges on the court today, and 
eventually you will have that many judges on some of the other 
courts.
    So what does that say about the desirability of having all 
25 judges, let's say, sit on a case?
    Judge Tallman. Never having done it, I agree with Judge 
O'Scannlain. The few times it has been suggested on our court, 
it has been voted down, and my understanding is because of the 
concerns that people have of trying--I mean, imagine as a 
lawyer standing in front of three tiers of judges in the 
courtroom to argue your case.
    Senator Kyl. Well, excuse me again for interrupting, but 
knowing the six that I was going to argue before, I might well 
relish that notion.
    Judge Tallman. What you might not like would be the 
individual opinions that could be generated because, 
theoretically, every one of the judges could write separately 
if they wanted to. And trying to discern the legal rule out of 
that ruling would make a mockery of our attempts to do so, such 
as when the Supreme Court writes multiple plurality opinions.
    Senator Kyl. Well, I would suggest the dynamics itself 
would probably move toward a consolidation of opinions and 
views.
    Could I just interrupt and ask one more question, too, in 
terms of your procedures? Twice, you said, since you have been 
on the court, Judge O'Scannlain, there has been a call for a 
full en banc review. Procedurally, how does that work and could 
that theoretically happen in any case, or how does that work?
    Judge O'Scannlain. Well, when I say call, that is the 
device that we have within the court. In other words, a judge 
will simply call for a vote on whether a given case be reheard. 
We have about 40 of those a year, on average, from 3-judge 
panels. I might, for example, see a decision in a particular 
three-judge panel and I have some concerns about whether that 
is an accurate statement of Ninth Circuit law. So I will send a 
message--we operate by e-mail--to my colleagues saying I would 
like to call that case.
    Then that starts a process by which we have an internal 
exchange of memoranda. Some of these memoranda are even more 
carefully done than a lot of briefs that we see. A lot of 
effort goes into it. Ultimately, there will be an end to that 
period and there will be a vote and each judge will vote either 
yes or no on whether a case should be reheard en banc or not, 
and it takes a majority to do so.
    Senator Kyl. A majority of the full court?
    Judge O'Scannlain. A majority of the active, non-recused 
judges, yes, that is correct.
    Senator Kyl. And then that creates an en banc panel?
    Judge O'Scannlain. Well, no.
    Senator Kyl. That is the procedure for the full-court 
review?
    Judge O'Scannlain. Well, it is the same for either. In 
other words, the call simply asks for a vote. Whether it is 
with respect to a 3-judge case or after an 11-judge panel has 
issued an opinion, a call operates exactly the same way.
    Senator Kyl. So just to make sure I understand, have there 
been roughly 40 calls from an 11-judge en banc panel for a 
full-court review?
    Judge O'Scannlain. No, no, no. I hope anything I might have 
said would have been clear.
    Senator Kyl. Only twice since you have been on the court 
has that happened?
    Judge O'Scannlain. Only twice since I came on, and as I 
understand it, only twice ever, because this process only 
started in 1980 or so, or 1981, when that statute became 
effective.
    Senator Kyl. And Judge Schroeder is acknowledging that. So 
could I summarize it this way, then, that while your procedure 
admits of the possibility of a full-court review upon a 
majority vote of the full, qualified court, obviously it has 
not occurred and it would be very sparingly done?
    Judge O'Scannlain. Right. The 40 number refers to the 
average number of calls on three-judge decisions that we are at 
about now.
    Judge Schroeder. I think that is the key statistics that 
Judge O'Scannlain is correct about, that out of 8,000 cases 
that are filed and some 4,000 that we actually decide, on 
average, there may be 30 to 40 requests for a vote to go en 
banc from the 3-judge panel decision.
    Judge O'Scannlain. And roughly more or less half of those 
are successful.
    Judge Schroeder. Yes.
    Senator Kyl. Judge Tallman, before I call on you--and I 
still am going to get to you, Judge Wallace, and I know my red 
light is on, but I think this is an important point.
    So am I correct, then, that out of the full caseload of the 
court in a year, there will be only be between 20 and 40 en 
banc hearings?
    Judge Tallman. That is right. If you look at page 17, which 
is Appendix B of my written testimony, I have listed for you 
the total number of en banc calls.
    Senator Kyl. Thank you. I will review that carefully.
    Judge Tallman. And when the call is made, taking 2003, 
there were 40 en banc votes, but only 13 passed and 27 failed.
    Senator Kyl. That is very helpful and I appreciate that.
    I will just conclude with this, since I referred to Judge 
Wallace, back to my central question, your point being that 
while all the circuits are going to grow, we might as well 
figure out how to deal with that using a court that is already 
big, and my sort of posited response, yes, that is fine, but is 
it still perhaps too big relative to the size that we would 
like to see even though, of course, all of the courts are 
inevitably going to grow in size.
    Judge Wallace. Senator Kyl, thank you for the question. My 
point is that we ought to think further than just the Ninth 
Circuit; that is, I have been pleading for, and there has not 
yet been consideration of, a discussion about whether we are 
going the wrong way.
    Why should the First Circuit have so few judges? We always 
talk about the Ninth Circuit having many, but why shouldn't 
consideration be given to combining circuits? It is not 
politically easy, I am sure, and would not be accepted well by 
judges of the courts of appeals. But that is not the issue. The 
issue isn't the creature comfort of the judges. It is what is 
best for our Republic.
    To me, you will never get to the place where you decide 
what you need for the growth that is going to occur everywhere, 
more in the West than in the East--until you decide if you on 
the right track by dividing and balkanizing or whether you 
should look to larger circuits and begin thinking of combining 
smaller circuits. Then the issue really is before you. There is 
no question that growth is going to occur and we are not in a 
position to really accommodate that unless we look at the issue 
of fewer, larger circuits.
    Senator Kyl. Excuse me. I didn't mean to be impertinent. I 
have got to conduct a luncheon at 12:30 which I Chair, and 
therefore I am going to have to go. And I was just conferring 
with the Chairman about that problem, since I am not going to 
be able to hear the rest of the testimony. I apologize for 
being rude.
    Judge Wallace. That is all right.
    As far as the full court en banc is concerned, the Fifth 
Circuit tried it and didn't like it. That doesn't mean that we 
couldn't hold a full-court en banc and be able to accommodate 
it. It depends on the personality of the judges who are 
involved. If Judge O'Scannlain or others are disappointed with 
our limited en banc, they can go to our court and ask for a 
change of our en banc rule. We can do away with the limited en 
banc tomorrow if a majority of the judges wish to do so.
    What I am suggesting is there is no perfect way of 
accomodating growth in the future. But if we can be flexible in 
our approach and experiment in pilot programs, as we have in 
the Ninth, not kill the pilot program, but think in long range 
terms: what do you want at the end of the 21st century? I think 
this opens up the door to consider having fewer, larger 
circuits as the way of the future.
    I might say, Senator Kyl, that we shouldn't limit the 
contribution small States make to our large circuit. We have 
many times when the view of a small-State judge, such as Idaho 
or Arizona, carries the day because it is a different 
perspective.
    Senator Kyl. I have no doubt that the court would be well 
served if it listened more closely to the views of those small-
State judges. Nothing against my colleagues from California, of 
course.
    Well, I was just going to ask one other question. I don't 
want to get into the procedure of the court, but I was kind of 
curious from your last comment whether you do this in secret 
ballot and whether there has ever been a vote of the judges in 
the circuit on the hypothetical question of splitting the 
circuit. Has that ever occurred?
    Judge O'Scannlain. Well, it has not occurred and I think 
there are a number of us in the court who feel that it would be 
a very desirable thing to happen at some point. It would be 
very, very useful, it seems to me.
    Senator Kyl. It would be interesting because contrary to 
those who sort of relegate the judges to a lesser role in the 
process of making this decision, frankly, while I am not 
willing to defer to the court, especially since undoubtedly 
there would be a divided opinion within the court, I think we 
have to really respect the experience that all of the judges on 
the court have in this matter.
    You certainly know far better than we do about how you can 
best function. Now, that doesn't mean you have the last word, 
obviously, but frankly it would be very, very informative for 
us, I think, to get that kind of an expression of view.
    Judge O'Scannlain. We could either do it ourselves or 
perhaps through the Committee there might be a request that we 
have a secret ballot on precisely that issue, and I think it 
would be very interesting to see the results.
    Judge Wallace. The discussion just changed, I would point 
out, from a request to a secret ballot, and that has never been 
the view of our court that things are done in secret. We are a 
collegial court.
    Judge Schroeder. We have never done that. We have never had 
a vote in secret. But, Senator, if I may just add that we are 
scheduled to discuss this issue of the circuit configuration at 
our next retreat which takes place in about ten days, and if we 
wish to have a further discussion at a court meeting and take a 
vote, we will.
    Senator Kyl. If a majority of the judges call for a secret 
ballot, you will do it, right?
    Judge Schroeder. If they call for a secret ballot, we will 
do that, but we will vote on that openly.
    Chairman Sessions. Thank you, Senator Kyl.
    Well, it has been a very, very interesting and rewarding 
discussion, I think. People have put their opinions out. I 
guess I am inclined to be concerned that as the court grows, we 
are reaching just an intolerable level, unless you really do 
believe in a huge regional court.
    As I recall the rule of 7, 7 percent growth means you 
double in 10 years. Isn't that right?
    Judge Tallman. Yes.
    Chairman Sessions. So at 13-percent growth, we are moving 
rapidly forward, it seems to me. I think a court this large 
becomes more like a legislative body and less like a court. You 
have less pressure to work with your colleagues and more of a 
willingness just to vote like you think that minute.
    I am not aware of any State appellate court that has ever 
existed as large as the Ninth Circuit. In New York, they have 
grown from small to big and they have always kept a smaller 
supreme court and appellate court. Maybe they have intermediate 
court systems.
    But I think about Alabama, Judge Wallace, on the question 
of how many circuits. I think most States have multiple 
circuits. We have 67 counties and I believe 45 or 55 circuits 
that feed to the supreme court or the intermediate courts for 
certain specialized cases. So I think that is the model America 
is used to. I appreciate your willingness to think outside the 
box. I am not there yet, but I believe we do better to stay 
with the system that brought us here which has given us the 
greatest legal system in the history of the world.
    Thank you so much. We have got another panel.
    Judge O'Scannlain. Thank you, Mr. Chairman.
    Judge Schroeder. Thank you, Mr. Chairman.
    Chairman Sessions. Excellent testimony, and your written 
testimony was superior, also.
    Judge Tallman. Thank you.
    Judge Schroeder. Thank you.
    Chairman Sessions. Judge Tjoflat and Judge Coughenour, 
thank you. I am sorry to keep you waiting so long. As you can 
see, the interest was high in this panel, and I guess the 
judges that are in the middle of the discussion have a lot to 
say and want to be heard on it.
    Both of you have submitted superb written testimony. I am 
sorry we have lost some of our numbers. There are meetings that 
occur this time everyday by both of the Senate Leaders, Senator 
Daschle and Senator First, and that has caused us to lose some 
of our numbers.
    I would like to hear from you, if you could allow your 
written testimony to be made part of the record, and just hear 
from you straight up how you see this issue and what we are 
going to do about it, if anything.
    Judge Tjoflat, I know that you were a member of the old 
Fifth Circuit and were part of the change with Judge Wisdom, 
who also apparently voted to split the old Fifth into the 
Eleventh. I do remember that, and I don't think there is a 
single judge that would vote to merge them back. You served, 
also, as chief judge of that Eleventh Circuit Court of Appeals 
and had the administrative responsibility, as has Judge 
Schroeder.

  STATEMENT OF HON. GERALD BARD TJOFLAT, JUDGE, U.S. COURT OF 
    APPEALS FOR THE ELEVENTH CIRCUIT, JACKSONVILLE, FLORIDA

    Judge Tjoflat. Thank you, Mr. Chairman. This is the second 
time the Committee has asked me to appear on the matter of what 
to do about the Ninth Circuit. The last hearing was, if I 
recollect, 1995, October, or 1996, which led to the creation of 
what became known as the White Commission.
    I asked the general counsel of the Committee, why do you 
want me to appear at a hearing--that was back then--on what to 
do about the Ninth Circuit? And they said, well, you were in 
the old Fifth Circuit and you are what is left of the old Fifth 
Circuit who is still active.
    Judge Godbold and I were elected by the old court as the 
spokesmen on the circuit split issue, the reason being that 
Chief Judge Brown was against the division of the circuit. So 
the court decided, well, we will have two other judges appear, 
one from Alabama and one from Florida, to testify before the 
House and the Senate. So I have been wrestling with this 
problem all this time.
    Let me say at the beginning that I commend the Ninth 
Circuit for doing an incredible job in the face of an 
overwhelming caseload and problems that are beyond 
comprehension. I was chief judge of the Eleventh Circuit for 7 
years and I was very active in the administration of the old 
Fifth, and we never saw anything comparable in terms of the 
onslaught of cases and personnel and the number of judges you 
have to deal with. So my hat is off to them. The finger is in 
the dike and they have done a damn good job--excuse me--of 
handling it.
    Let me just share some experiences about what happened in 
the old Fifth Circuit after the Congress added 11 judges to the 
court. If you will recall, during the 1970's, judges weren't 
added to the federal courts until the Carter administration. In 
1979, I guess it was, or early 1978, the quadrennial judgeship 
bill, which was long overdue, added 10 judges to the Ninth, 
which increased the court from 13 to 23, and 11 to the Fifth, 
which increased it from 15 to 26. At that time, we had more 
business in those six States than the Ninth, and that is the 
reason for that.
    Leading up to the addition of the 11 judges, the Congress 
did that over our unanimous objection. I am talking about the 
unanimous objection of the Fifth Circuit Court of Appeals, and 
all the judges in the Fifth Circuit for that matter, the 
district judges as well.
    Chairman Sessions. What did the judges object to?
    Judge Tjoflat. Objected to any more judges on the court of 
appeals.
    I had gone on the Middle District of Florida court in 1970, 
and then went to the Fifth Circuit in 1975, and was familiar 
with the general attitude. The problem from the trial judge 
point of view was, what is the law of the circuit? We saw, as 
the Fifth Circuit grew from, say, 11 to 13 and 13 to 15, that 
the stability of the rule of law was impaired to some extent.
    At any rate, when the quadrennial judgeship surveys that 
the Judicial Conference would have every 4 years--when they 
came to the Fifth Circuit, we said no more judges, and we had 
our heels dug in. And so came 1979 and the bill was introduced. 
As a matter of fact, we didn't even know it was coming. We knew 
a bill was coming to add judges, but not 11 to our court. A 
Senator from Arkansas introduced the bill, is my recollection.
    But at any rate, we acquired ten new judges and we never 
got the eleventh until late in the fall of 1979. We acquired 
ten by the time September rolled around. Maybe we had 23. The 
policy on the Fifth was that we sat en banc in September, 
February and June every year, and we had a court meeting each 
of those times.
    I can't overemphasize the importance of an en banc 
proceeding. It is absolutely essential to the health of the 
Nation that the rule of law be stable, predictable and reliable 
so that citizens can act in accordance therewith. When the law 
is this way today and maybe that way tomorrow, people lose 
their rights. They lose property rights, they lose their civil 
liberties. It is a bad scene, and I think my colleagues on the 
Ninth agree with that a hundred percent. Every judge does.
    So we met in September 1979. I think we had 23 sitting 
around the table, the old 15 and 8 new ones, and we decided not 
to rehear any cases. The whole agenda was, what do we do with 
this mob? We said that in a joking sort of way. So the newer 
judges who had just been appointed in June, July, August and 
September said, well, we think this will work. Well, of course, 
they had no experience, but okay.
    So the idea of what to do with the court was tabled for 1 
year. So we met in February. Well, the en banc calendar in 
February had the September cases and the February cases. I 
don't recall how many, but by that time drugs were a big, huge 
problem and we had cases in the Fifth Circuit where the Coast 
Guard wanted to board ships on the high seas. Do you need a 
search warrant? Do you need reasonable suspicion? Can the Coast 
Guard do it? Will international law allow them to do it? Can 
you do it in the contiguous zone? Can you do it in territorial 
waters? What if the ship isn't flying a flag?
    I am running out of time.
    Chairman Sessions. Well, you are making a good story. That 
is a good history. Maybe you can wrap it up.
    Judge Tjoflat. I will wrap it up.
    Chairman Sessions. This is not like the Eleventh Circuit, 
however, Judge. When the light came on, I knew I had to hush, 
especially when you were presiding.
    Judge Tjoflat. Well, I will try to wrap it up this way. The 
statute that gives the Ninth Circuit the right to have a mini 
en banc gave the old Fifth, not the new Fifth, the old Fifth, 
the same right. So after we sat in February, 1980--it is a 
painful proposition to have 26 judges trying to decide a case 
in conference, I tell you--we decided whether to have mini en 
bancs after the first experience. Maybe it was even after the 
second one, in June. This isn't working with this many people 
sitting around the table.
    So the discussion went this way: Well, we will have a mini 
en banc of 11, but suppose 6 people out of 11 carry the day and 
we have got 20 people on the court who disagree. Are we going 
to re-en banc the case? If we do, what is the public 
perception? This is the dialogue.
    Well, the public perception is, and to the legal 
profession, we will just keep re-en bancing cases until we get 
a majority view out of the mini en banc court. So that would 
make the mini en banc court a dry run, in effect. So we 
decided, well, if we do the mini en banc, we are going to have 
a blood oath that we will not re-en banc cases because we don't 
want to create that perception.
    We studied that for a good while and decided against it, so 
we sat the full crowd. Sitting in an en banc court of that 
size, I tell you, is not only an emotionally draining exercise. 
It takes an enormous amount of work. And I will finish with 
this: There is a group dynamic. You have a room full of 26 
people trying to reach principle, not compromise, principle, 
and some people are going to talk. The larger the group, they 
are silenced. You take somebody who won't talk, won't speak; 
they ``pass'' when it comes to them in an en banc conference of 
26. You put that same individual on a three-judge panel and you 
can't keep them quiet.
    I have sat on en banc courts from 7 to 18, then skipped all 
the way to 26. The reason for the lower numbers was because 
after we split the circuit, which was easy to do because the 
western States had 51 percent of the business and the eastern 
States 49, so we didn't have the California problem--but I sat 
on en banc courts in the Eleventh Circuit of 7, 8, 9, 10, 11 
and 12.
    We have more business in the Eleventh Circuit now than the 
Fifth Circuit had when we split. With the exception of one 
judge voting in the last 23 years, everybody has voted against 
adding one more judge to the court, for the very reason that we 
are concerned about the stability of the rule of law.
    Chairman Sessions. I think that is a dramatic demonstration 
of your belief in tangible terms that collegiality and 
coherence of the circuit is endangered if you actually say you 
don't want more judges to help you do the growing caseload.
    The Eleventh has the highest caseload per judge in the 
country, or close to that. Isn't that right?
    Judge Tjoflat. Something like that.
    [The prepared statement of Judge Tjoflat appears as a 
submission for the record.]
    Chairman Sessions. Judge Coughenour.

    STATEMENT OF HON. JOHN C. COUGHENOUR, CHIEF JUDGE, U.S. 
DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE, 
                           WASHINGTON

    Judge Coughenour. Thank you, Mr. Chairman. I welcome the 
opportunity to express my views, and I think it is appropriate 
that I be the last to speak because I think the value of the 
views of a country boy from the wilds of Kansas is probably 
appropriately positioned at the end.
    Let me say, by the way, in case you are not aware of it, at 
the new building in Seattle we are sharing courtrooms. We are 
the first in the country to do that.
    Chairman Sessions. I am impressed. Every magistrate does 
not have their own courtroom?
    Judge Coughenour. Every magistrate does not have their own 
courtroom. Every judge does not have their own courtroom.
    Chairman Sessions. I am impressed.
    Judge Coughenour. We have two courtrooms for every three 
judges.
    Chairman Sessions. That makes sense, and it takes some 
scheduling, but most of the time I am sure that works very 
well. Do you think that works well?
    Judge Coughenour. I think it is going to work just fine. 
Something that hasn't been said here today which I think bears 
scrutiny is that there is a phenomenon afoot in this country 
recognized by all the chief judges at the most recent national 
chief judges' conferences that we are trying fewer cases across 
the country than was true. And in Seattle and in a number of 
other districts, we are trying less than one-half the number of 
cases than we were just a few years ago. So these concerns 
about this constant growth may be premature.
    In addition, I think it needs to be emphasized that the 
tremendous growth in the Ninth Circuit filings is driven by and 
large by immigration cases. As that glut works its way through 
the court, those numbers are going to be back down at a much 
more reasonable level.
    On the subject of your question, let me state quite bluntly 
my views on this subject have changed. When I went on the court 
23 years ago, I was put there largely by the efforts of Senator 
Slade Gorton, who was a close personal friend then and is still 
a close personal friend. I must say that I could not say the 
same thing about Ronald Reagan. I had never met the man, but 
Senator Gorton was the one who put me where I am.
    Senator Gorton was out front on the issue of splitting the 
circuit, and largely out of loyalty to him I deferred to his 
judgment on the question. When Senator Gorton retired from the 
Senate, my objectivity on the issue was enhanced. And after a 
couple of decades where the rubber meets the road, as opposed 
to some of my colleagues here, I have to tell you that I don't 
see these problems from down below where I am.
    I don't have any difficulty following the law of the Ninth 
Circuit. When I get to work each morning, I make my coffee. I 
don't have a secretary, by the way, to save money. I make my 
coffee and then I go sit down at my computer and I look at the 
most recent summary of Ninth Circuit decisions, and it takes me 
about 15 minutes each morning. We have a very effective way, by 
technology, of alerting all of our judges in the circuit 
immediately what the Ninth Circuit is doing and we can keep 
abreast of it very easily. It is not a problem at all.
    The problem that is perceived by many that these decisions 
are being made down in California that affect us up in the 
Northwest really is a problem of perception and a lack of 
knowledge of what the facts are.
    For example, probably the most controversial decision that 
the people of the Northwest had difficulty accepting was the 
so-called spotted owl decision, a ruling by a dear friend of 
mine who is now gone, Bill Dwyer, from Seattle. We have another 
very controversial decision in the Northwest right now 
regarding the use of pesticides and herbicides adjacent to 
salmon-bearing streams. You are looking at the judge who has to 
be careful where his name is spoken out loud in the Northwest 
right now because of that decision. I am not from California. 
That is a northwesterner making a decision about northwestern 
law.
    The perception that we have all these problems in the 
Northwest because we have these decisions coming out of the 
Ninth Circuit that is dominated by California--there is a siren 
song that attracts one to that conclusion, but upon examination 
it fails.
    The same is true for the attitude that large must be bad. 
Again, there is a siren song that attracts one to that 
conclusion, but it just doesn't bear scrutiny. For those of us 
on the firing line applying the law everyday, who have perhaps 
more responsibility than anyone else in this room to keep track 
of what the law is in the Ninth Circuit, it is not a problem. I 
do it everyday. I don't have any difficulty keeping up with the 
Ninth. In fact, I welcome the number of Ninth Circuit decisions 
we have because very often when I am struggling with a problem, 
I can find a Ninth Circuit case right on point and it makes my 
job a lot easier.
    So I can give Judge Tjoflat my one minutes and 18 seconds, 
if he wishes it.
    [The prepared statement of Judge Coughenour appears as a 
submission for the record.]
    Chairman Sessions. Judge Coughenour, statistically 
speaking, however, with the number of judges as they are 
configured and as they are likely to be configured in the 
future, the odds are pretty high that a salmon case in 
Washington is going to be decided by California judges. Isn't 
that right?
    Judge Coughenour. Yes, and I think the odds are very high 
that I will be affirmed.
    Judge Tjoflat. That is because he is such an able judge.
    Chairman Sessions. Well, I have got to tell you I am not a 
speed reader, but people used to read the opinions, and now we 
are reading summaries and I am not sure a summary can really 
handle an opinion. You know, you can't do everything, but if 
your circuit is not too large and the cases are not too many, 
if you read that, it is a thorough education and it keeps you 
up.
    I remember when I was a prosecutor, I tried to read the 
Federal criminal cases in the circuit and the Supreme Court. I 
just got down to that, which was hard enough for me. Yes, a lot 
of times you just skim the head notes and that kind of thing, 
and you just have to.
    Judge Tjoflat, would you comment on Harry T. Edwards, a 
D.C.
    Circuit Judge's comments that I quoted earlier? ``In the 
end, collegiality mitigates against judges' ideological 
preferences and enables us to find common ground and reach 
better decisions. In other words, the more collegial the court, 
the more likely it is that the cases that come before it will 
be determined on their legal merits.''
    Do you think there is a sense in which judges in a smaller 
circuit feel more of a responsibility to come together and 
speak coherently than in a 28-judge circuit?
    Judge Tjoflat. I think all judges would like to have a good 
intellectual exchange and relationship with their colleagues. 
In the old Fifth Circuit days before we split, we figured out 
how long it would take for everybody on the court to sit with 
everybody else, and what has already been expressed was our 
situation.
    I don't think there is any question at all that when you 
are sitting on panels with the same judge three or four times a 
year and you are handling emergency matters administratively--
stays of execution in death penalty cases, for example, or 
stays of deportation or stays of district court decisions of 
great moment, stays in class actions, all that sort of thing--
the ability to mind-read your colleague is extremely important.
    You don't even call for a law clerk or somebody. You know 
who is on the panel with you and you know exactly how that 
individual thinks and you know what they are interested in or 
what may concern them, and so you get on a quick conference 
call or use the e-mail or just a fax. If we merged the new 
Fifth and the Eleventh together, it would take a good deal of 
time to get to that point, if we could at all.
    Judge Coughenour. Senator, could I make a comment about 
that?
    Chairman Sessions. Yes, please.
    Judge Coughenour. When I joined my old law firm, I was 
number 38. By the time I left the firm, it had almost 200 
lawyers and there was a point that it passed through where 
collegiality started becoming an issue. But it wasn't at 38 or 
28; it was at more like 100 to 150 lawyers where collegiality 
became an issue.
    I have always understood that the most collegial 
institution in the world is the U.S. Senate, and there are 100 
members of the United States Senate.
    Chairman Sessions. You have been ill-informed.
    [Laughter.]
    Chairman Sessions. And I won't even make a comment on the 
Judiciary Committee.
    [Laughter.]
    Chairman Sessions. Well, you can work together. I know the 
old Fifth had a series of tough civil rights cases in the early 
days, and many times you were able to get virtually unanimous 
support there that sent a signal. On the Richard Nixon case and 
other cases, courts have gotten together and they have sat down 
in a room and they have said we need to figure out what we can 
agree on and render an opinion that we can all join in on.
    Is that a factor, Judge Tjoflat?
    Judge Tjoflat. Well, in the old Fifth Circuit days, we had 
school desegregation cases in every village and town and city 
in the South, and there were unanimous decisions just like in 
Brown v. Board of Education in the Supreme Court, in 1954 and 
1955, that carried forward into the 1970's.
    Chairman Sessions. Judge Coughenour, a chief judge who has 
supported some form of restructuring, former Chief Judge 
William Browning, in Arizona, said this. He served on the White 
Commission and he said, ``I think the people of the Ninth 
Circuit today are receiving a rationed form of justice,'' close 
quote, and that part of the reason the Ninth Circuit judges 
resist dividing the circuit is that lawyers naturally have, 
quote, ``an institutional bias against change.''
    How would you respond to that?
    Judge Coughenour. Well, I think I would never disagree with 
my dear friend, Bill Browning. I think lawyers and judges tend 
to be very conservative when it comes to change. I must say 
that I have grown very fond of the Ninth Circuit and I am 
enormously proud of the way it has been administered by our 
chief judges and our current chief judge. I frankly believe 
that we have the best chief judge in the United States right 
now, and that we have every reason to be, if you will pardon 
the term, a little defensive when it comes to the scrutiny that 
is focused on us from time to time.
    We are on the left coast and people do think a little 
differently out there, and as a consequence the rest of the 
country sometimes may have a little difficulty understanding 
the way we think. But there is a West Coast mentality and there 
is something to be said for a West Coast court that ties 
together these many diverse States and people. I frankly am 
very proud to be a member of that court and I will do what I 
can to try to help the Senate understand why we should remain 
the same.
    Chairman Sessions. Well, thank you, Judge.
    Do any of you have any further comments?
    Let me just say that even judges whose judicial philosophy 
I don't share that I may describe as an activist judge--you 
have some extraordinarily capable judges on the court, 
intellectually superior, and they make great opinions, even if 
I would disagree with them.
    I do think Senator Biden is basically correct, however, 
that a case tried in Idaho ought to have the same ruling that 
comes in Los Angeles or New York or Miami, for that matter. We 
have got one law, one Constitution, one set of statutes, and 
fundamentally they have to be in sync. I can imagine it is more 
difficult to control panels when you have them all over the 
place, and just mathematically the odds that you get a weird 
panel with two of the three maybe having a more extreme view of 
the law than would otherwise be the case is a factor.
    Of course, most panels don't get overruled. Most circuit 
cases are affirmed. Fifty-plus million people are bound by the 
decisions of the Ninth Circuit, and if you are looking for left 
coast law instead of Supreme Court law, then they are stuck 
because the Supreme Court can't review them all.
    But, anyway, you both have made good cases. We are going to 
study this hard. My commitment to you is that if we do move 
forward with something, my goal will be to create courts that 
make sense that are not driven by ideology, because I think 
there is no way people could affect ideology anyway, really, in 
the way this court exists and the way it will be divided. So 
let's just do it on merit.
    If there is nothing further, we will adjourn the hearing. I 
will note that we will keep the record open for two weeks for 
any further questions or information that the members might 
like to provide.
    If there is nothing else, we are adjourned.
    [Whereupon, at 1:07 p.m., the Subcommittee was adjourned.]
    [Question and answer and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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