[Senate Hearing 109-190]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-190

 
REVISITING PROPOSALS TO SPLIT THE NINTH CIRCUIT: AN INEVITABLE SOLUTION 
                          TO A GROWING PROBLEM

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

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 26, 2005

                               __________

                          Serial No. J-109-47

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            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
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, 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
ARLEN SPECTER, Pennsylvania          CHARLES E. SCHUMER, New York
CHARLES E. GRASSLEY, Iowa            DIANNE FEINSTEIN, California
JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
                 William Smith, Majority Chief Counsel
                Preet Bharara, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     4
    prepared statement...........................................    53
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     7
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    85
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1
    prepared statement...........................................   134

                               WITNESSES

Ensign, Hon. John, a U.S. Senator from the State of Nevada.......    11
Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court, 
  Southern District of California, San Diego, California.........    42
Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for 
  the Ninth Circuit, Fairbanks, Alaska...........................    36
Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Pasadena, California............................    20
Murkoski, Hon. Lisa, a U.S. Senator from the State of Alaska.....     9
O'Scannlain, Diarmuid F., Circuit Judge, U.S. Court of Appeals 
  for the Ninth Circuit, Portland, Oregon........................    13
Roll, John M., District Judge, U.S. District Court, District of 
  Arizona, Tucson, Arizona.......................................    38
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Phoenix, Arizona................................    17
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Seattle, Washington.............................    15
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Billings, Montana...............................    40

                       SUBMISSIONS FOR THE RECORD

Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court, 
  Southern District of California, San Diego, California, 
  prepared statement.............................................    55
Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for 
  the Ninth Circuit, Fairbanks, Alaska, prepared statement.......    57
Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Pasadena, California, prepared statement........    78
Murkoski, Hon. Lisa, a U.S. Senator from the State of Alaska, 
  prepared statement.............................................    87
O'Scannlain, Diarmuid F., Circuit Judge, U.S. Court of Appeals 
  for the Ninth Circuit, Portland, Oregon, prepared statement....    89
Roll, John M., District Judge, U.S. District Court, District of 
  Arizona, Tucson, Arizona, prepared statement...................   104
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Phoenix, Arizona, prepared statement............   129
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Seattle, Washington, prepared statement.........   149
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the 
  Ninth Circuit, Billings, Montana, prepared statement...........   168
United States Court of Appeals for the Ninth Circuit Judges' Vote 
  on Circuit Division, table.....................................   193


REVISITING PROPOSALS TO SPLIT THE NINTH CIRCUIT: AN INEVITABLE SOLUTION 
                          TO A GROWING PROBLEM

                              ----------                              


                      WEDNESDAY, OCTOBER 26, 2005

                                       U.S. Senate,
Subcommittee on Administrative Oversight and the Courts, of 
                            the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions 
(Chairman of the Subcommittee) presiding.
    Present: Senators Sessions, Kyl, and Feinstein.
    Also present: Senators Murkowski and Ensign.

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

    Chairman Sessions. Good afternoon. The Subcommittee on 
Administrative Oversight and the Courts will come to order. I 
am pleased to convene this hearing to consider a division of 
the Ninth Circuit.
    You might say, here we go again. It has been a year and a 
half since we last discussed this topic in the Subcommittee and 
I am looking forward to hearing the witnesses and their 
testimonies, all of whom have traveled a long way and have 
dedicated, many of you, quite a lot of hours in personal time 
and attention to develop your well-researched opinions on the 
topic before us today.
    I appreciate Senator Feinstein for her interest in this. We 
work together on the Judiciary Committee. No one works harder 
or is more committed to doing the right thing and we are 
delighted that you could be with us, you and some of our other 
members who will probably appear before long that are 
interested in the Ninth Circuit, Senators who represent States 
in the Ninth Circuit.
    So we are eager to hear the opinions of the distinguished 
jurists before us. It is going to be very helpful to us.
    It is, however, the constitutional duty of the 
Congressional branch, the legislative branch, to create such 
inferior courts, quote, ``as the Congress may from time to time 
ordain and establish,'' Article III, Section 1 of the 
Constitution. So it is with this constitutional duty in mind we 
have convened today's hearing. Our question is whether the 
enormous size of the Ninth Circuit is an impediment to the 
administration of justice and whether a division of the circuit 
would enhance justice.
    The division of circuits has been a normal and natural 
evolution of judicial organization in our country and it has 
succeeded, I believe, each time it has been tried. Most 
recently, Congress recognized this need when it decided to 
split the Fifth Circuit into two separate courts of appeals. In 
1973, the Commission on Revision of the Federal Court Appellate 
System, the Hruska Commission, recommended that the Fifth and 
Ninth Circuits be split.
    In 1980, the Congress split only the Fifth, carving out a 
new 11th Circuit, and I think I told you last time, as a new 
U.S. Attorney, I was in Atlanta at the formation ceremony of 
that 11th Circuit. Judge John Godbold, who had been the Chief 
Judge of the old Fifth, supported the division and became the 
new Chief at the 11th. I think that all those judges have felt 
very good about that division in the years since. The 
recommendation, however, to divide the Ninth Circuit was not 
acted upon.
    In the year prior to this division, for example, the old 
Fifth Circuit's 26 judges disposed of 4,717 appeals. In 1995, 
the combined 29 judges from the old Fifth and the 11th disposed 
of nearly triple that number of appeals, 12,401. In a Montana 
Law Review article by Ninth Circuit Senator Conrad Burns, he 
noted, quote, ``tripling the output of the Fifth Circuit while 
only adding three new judgeships certainly indicates that 
splitting the Fifth Circuit yielded a long-term benefit for 
all.''
    I will add that the testimony before this Subcommittee 
several years ago by Chief Judge Gerald Tjoflat of the 11th 
Circuit was unequivocal. He said that their current level of 
harmony and collegiality and efficiency would not be possible 
in a much larger circuit. As a matter of fact, he was dubious 
of even taking new judges. He would rather the workload go up 
to keep the numbers smaller.
    So today, we must face the problem of the unprecedented 
size of the Ninth Circuit and consider the options to improve 
administration of justice.
    The Ninth Circuit covers 40 percent of our country's land 
mass and stretches from Northern Alaska, and Judge, we are glad 
to have you down from Fairbanks, to the Mexican border. It 
encompasses more States than any of the other 11 circuits and 
manages almost one-fourth of the caseload of the whole United 
States, 14,800 to 63,000 total filings of the other circuits.
    The Ninth Circuit claims one-fifth of the nation's 
population, 58 million, within its jurisdiction. That is almost 
three times the average population of any other circuit, or the 
other circuits. Though the Fifth Circuit was split 25 years 
ago, largely due to its size, the Ninth Circuit currently has 
almost the same population as the current Fifth and 11th 
Circuits, both of which have also grown. Today, the Ninth 
Circuit has 58 million people while the 11th and Fifth Circuits 
together have 60.
    At our April 2004 hearing, we learned a lot about the 
numbers impacting the Ninth Circuit. Today, those numbers are 
still dramatic. The Ninth Circuit has 28 authorized judgeships, 
24 active and four vacancies, and 23 senior judges, for a total 
of 51 judges. That amounts to 11 more active judgeships than 
the next-largest circuit, and it is more than double the 
average number of authorized judgeships in the other circuits. 
If you add senior judges to the authorized judgeship numbers, 
the Ninth Circuit has 24 more judges than the total number of 
the next-largest circuit.
    As of June 30, 2005, the Ninth Circuit had more than triple 
the number of appeals filed in 2005 than the average of all the 
other circuits and has 6,000 more filings in 2005 than the next 
busiest circuit. Though the average caseload increase between 
2000 and 2005 for a circuit court was just over 14 percent, the 
Ninth Circuit's caseload increase was by almost 70 percent, 
which is a really stunning figure to me. During that same 
time--I will skip that. And the rate of increase has continued 
steadily. From 1997 to 2003, the Ninth Circuit caseload bore a 
48.1 percent increase. Now, it is a 70 percent increase. It is 
still going up.
    The large number of judges and the caseload burdens do 
appear to have impaired the administration of justice in the 
circuit. The Ninth's efficiency in deciding appeals, that is 
the time the court takes between the filing of a notice of 
appeal and the final disposition, has consistently lagged 
behind other circuits. In 2003, for example, the Ninth Circuit 
had 418 cases pending for 3 months or more, almost the same as 
the next five circuits combined. The next highest circuit had 
98 such cases.
    The next charts shows that 138 cases were pending in the 
Ninth Circuit for over a year. This was more than every other 
circuit in the Federal system combined, with the next highest 
circuit at a mere 19 cases.
    According to the latest statistics, the Ninth Circuit takes 
almost 40 percent longer to dispose of an appeal than the 
average of all of the other circuits. The Ninth takes 15.4 
months and the average is 11.1 months. Please note that this 
delay cannot be explained solely by a lack of judgeships, 
because although the caseload for the Ninth is high--it is 
high--several other circuits have higher caseloads per judge 
than the Ninth.
    I would also note, time of disposition is important to 
litigants. Huge impacts are at stake as a court's cases sit on 
that docket. I would like to see the average of 11.1 months be 
reduced, frankly, and I think the addition to 15 is a 
significant concern.
    The limited en banc procedures employed by the Ninth 
Circuit, coupled with the large number of public opinions 
issued each year, make it impossible for the Ninth to speak 
with clarity and consistency, it seems to me. A circuit with as 
many judges and as many opinions as the Ninth Circuit has loses 
collegiality and unity. Additionally, the Ninth Circuit's 
limited en banc procedures have permitted a random draw of ten 
judges plus the Chief Judge to be the final review of a three-
judge panel decision. This can result and has resulted in a 
mere six judges making the law for the entire circuit. Even 
though the circuit has recently voted to increase the number of 
judges that sit en banc to 15, that number still allows a mere 
eight judges to make the law for the entire circuit. In all 
other circuits, en banc means en banc, what it always has 
meant, the full court.
    Finally, with so many cases decided each year, it is hard 
for any one judge to read all the opinions of his or her peers 
and it is virtually impossible for lawyers who practice in the 
circuit to stay abreast of the law. In 2004 alone, the Ninth 
Circuit published 691 decisions. That is over 60 a month.
    These factors, loss of collegiality, the limited en banc, 
and the inability to monitor new law, undermine the goal of 
certainty in the law. I hope that each of the Ninth Circuit 
judges testifying before us today will speak to these factors 
and tell us how they impact the Ninth Circuit's ability to 
maintain clear and consistent law in the circuit.
    [The prepared statement of Chairman Sessions appears as a 
submission for the record.]
    Chairman Sessions. Now, three of my Ninth Circuit 
colleagues are here today, or at least two--I guess three 
counting Senator Feinstein, and I think maybe another one will 
show up, to help us explore the issues surrounding the decision 
to split the Ninth Circuit.
    Senator Lisa Murkowski of Alaska has been a leader in 
addressing reorganization of the Ninth Circuit and has 
introduced legislation to restructure the circuit both in this 
Congress and in the last. Her comments based on her experience 
as a Senator from the Northwest and as a lawyer who practiced 
within the Ninth Circuit will give us a useful context for 
understanding the issues.
    I also see my colleague on the Judiciary Committee, Senator 
Kyl here, who has not only argued cases before the Ninth 
Circuit, on numerous occasions, he has argued a bunch of cases 
before the U.S. Supreme Court. He is clearly our most 
experienced attorney probably in the Senate, and Jon, we are 
glad to have you here. I know this is a matter close to your 
heart and we look forward to hearing you.
    Senator Feinstein, thank you for your leadership on these 
issues. I know you have watched it very closely over the years 
and we are delighted to hear from you at this time, and then we 
will go to Senator Kyl and Senator Murkowski.

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

    Senator Feinstein. Fine. Thank you very much, Mr. Chairman. 
I would like to welcome each of the judges that is here. It is 
a long trip from the West Coast, and so we really appreciate 
it. I would like to acknowledge the fact that today is the 
Chief Judge's 40th wedding anniversary and guess where she is, 
right here, and so--
    [Laughter.]
    Chairman Sessions. We are impressed.
    Senator Feinstein. Thank you very, very much for being 
here.
    As the Chairman has said, the Ninth Circuit is the largest 
circuit court of appeals in the Nation in both population and 
caseload. Advocates for splitting the Ninth Circuit often cite 
the size as a basis for dividing it. However, I think what 
matters is not the size of the Ninth, but whether the Ninth 
meets its charge of providing justice to those living in the 
States. The current Ninth Circuit, I believe, achieves this 
goal.
    As I have looked at the various proposals over the years 
that have come before this Committee, splitting the Ninth is a 
lose-lose proposition. There are clear financial costs to the 
split. The Administrative Office of the Courts has submitted 
documentation. I will speak about that in a few minutes. And 
there are clear and dramatic costs to the administration of 
justice.
    The uniformity of law in the West is a key advantage of the 
Ninth, as large as it is. It provides consistency among Western 
States that share many common concerns. For example, splitting 
the circuit could result in one interpretation of a law 
governing trade with Mexico in California and a different one 
in Arizona, or in the application of environmental regulations 
one way on the California side of Lake Tahoe and another way on 
the Nevada side.
    The efficiency of the Ninth is also a significant 
consideration. As presently constituted, the Ninth is one of 
the most efficient courts of appeals in the nation. Splitting 
the Ninth Circuit into two or even three courts of appeals 
would require the creation of new and costly bureaucracies to 
administer these new courts, thereby losing the economy of 
scale which has been achieved by having a single administration 
tending to the Federal courts of the Ninth Circuit. Dividing up 
the Ninth Circuit would also require additional Federal funds 
for new or expanded courthouses and administrative buildings, 
as existing judicial facilities would be insufficient for the 
new circuit or circuits.
    Yesterday, the Administrative Office of the United States 
Courts provided me with a letter estimating the costs for 
splitting the Ninth Circuit under S. 1845, which would split 
the Ninth Circuit into the Ninth and 12th Circuits. The 
Administrative Office estimates that the split to two circuits 
would have a startup cost of $95,855,172 and would have $15, 
almost $16 in annual new recurring costs.
    In a two-way split with a circuit headquarters in Phoenix, 
with the new judgeships, the cost is $15.9 million, the startup 
cost $95,800,000. The two-way split with the 12th Circuit 
headquarters in Seattle, with new judgeships, the cost is 
$13,140,049 and the startup costs $13,815,801. The cost of the 
seven additional judgeships in annual recurring costs is $5.656 
million, with startup costs of $1.156 million. This is a rather 
lengthy letter and I would like to place it in the record so 
that everybody could have a chance of reviewing it.
    But let me summarize by saying these are substantial costs, 
particularly considering that the judiciary budget is already 
stretched thin.
    Finally, one must consider what organization of the Ninth 
Circuit--must consider that it will be fair to all of the 
States of the current Ninth. The plan to split the Ninth leaves 
the States remaining in the Ninth with a far higher caseload 
per judge than those States that would move to a new 12th or 
13th Circuit. They become easy. You can put your feet up on the 
desk, because they would have very few cases. That is the 
bottom line.
    Under the current proposals, California and Hawaii would be 
left in the Ninth, while Arizona, Nevada, Idaho, Montana, 
Oregon, Washington, and Alaska would move to a new circuit or 
circuits. These proposals would create nice sinecures with low 
caseloads for judges in the newly created 12th or 13th Circuit 
but would disadvantage what would remain in the largest circuit 
in the nation.
    The new Ninth would still have 72 percent of the cases in 
the old Ninth. However, even with the addition of the five 
permanent and two temporary judgeships proposed in the two 
bills before the Senate, the new Ninth Circuit would have only 
60 percent of the judges. So they would have 72 percent of the 
caseload, but 60 percent of the judges. Is this fair? I don't 
think so.
    The caseload in the new Ninth would be 536 cases per judge 
as opposed to 317 cases per judge for the proposed 12th. This 
would leave judges in the Ninth with 219 more cases per judge. 
This is simply not a fair distribution of judicial resources. 
So we create all this new additional courthouses, 
administration, circuits, and yet 72 percent of the cases 
remain in the Ninth.
    For the judges in the new Ninth to have a comparable 
caseload to judges in the new 12th, the Ninth would need an 
additional 14 judges on top of the five permanent and two 
temporary judges created by the bills before the Committee. In 
total, 21 new judges would need to be added to the Ninth 
Circuit for a split to be fair. Now, you can be sure that 
representing California, I am not going to let an unfair 
distribution of caseload happen. I am just not going to do it. 
This would entail its own problems and costs and it highlights 
the difficulties created by proposals to split the Ninth.
    Opposition to splitting the Ninth comes from judges and 
State bar associations that would move into a proposed new 
circuit as well as those that would remain in the Ninth 
Circuit. Only three of the active judges on the Ninth Circuit, 
as far as I know, favor splitting the circuit, and we are going 
to hear from one today. He is very respected. I have had an 
opportunity of having at least an hour with him to discuss 
this, Judge O'Scannlain in San Francisco, and I very much 
appreciate his point of view. I thought a lot about it. But 
unless you want to guarantee those 21 new judges for the Ninth 
and an equal caseload across the field, I would be foolish to 
let a split happen to the circuit that I represent.
    Additionally, the bar associations of Arizona, of 
Washington, of Montana, and Hawaii have all voiced their 
opposition to breaking up the Ninth Circuit. Washington State 
says they strongly oppose both bills. We believe there is no 
legitimate reason to split this jurisdiction, and certainly no 
reason to incur the very substantial costs that such a split 
will generate. We further believe that our democratic process 
demands formal hearings on this matter, which, of course, we 
are having.
    It says that the Washington State Bar debated the issues of 
size, regional differences among the States, judicial 
collegiality, and necessary consistency in rulings. The Board 
of Governors of our organization unanimously concluded that 
splitting the Ninth would not serve the interests of justice or 
the citizens of the State of Washington.
    The State Bar of Montana has passed a resolution which says 
in a ``whereas'' clause, a divided circuit would remove the 
numerous benefits which Montana enjoys as a part of the United 
States Court of Appeals for the Ninth, and whereas a divided 
circuit would result in additional one-time construction and 
division costs and increased annual administrative expenses, et 
cetera, they oppose it.
    The Hawaii State Bar says they believe the composition of 
the Ninth serves the public well, representing as it does 
diverse demographic areas as well as a broad range of political 
and economic constituencies.
    And the Arizona Bar says, at its regular meeting in Phoenix 
on August 19 of this year, the State Bar Board of Governors 
analyzed the proposals to reorganize the Ninth. Further, the 
Board discussed how the bar is served by the current 
configuration and considered the fiscal impact of splitting the 
circuit. The Board voted to reaffirm its longstanding position 
to oppose splitting the Ninth Circuit.
    I would like to ask that these letters also be included in 
the file.
    Chairman Sessions. We will make them a part of the record.
    Senator Feinstein. So unless somebody can guarantee me that 
there will be 21 new judges and an equal caseload spread, this 
thing doesn't even get to first base with me because I think we 
hurt the administration of justice, we create new costs, and we 
don't even the caseload, and I thank you very much.
    Chairman Sessions. Thank you, Senator Feinstein. They are 
not all equal now, that is for sure, but we probably should 
look at that more.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    Chairman Sessions. Senator Kyl, and Senator Ensign, did he 
come in? Oh, there you are. Do you want to stay there or would 
you like to join us? You can stay right there, if you would 
like.

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

    Senator Kyl. Mr. Chairman, I will just be very brief 
because we really do want to hear from our witnesses and also 
because after I have heard an argument such as that just 
delivered by Senator Feinstein, my lawyer juices flow. I 
immediately want to take the other side.
    I would like, first of all, Senator Feinstein, to assure 
you that as of right now, I guarantee you that there will be an 
equal number of judges with a caseload that is essentially 
identical. Are we on first base?
    Senator Feinstein. Well, it is--
    [Laughter.]
    Senator Kyl. You don't need to answer that. I am not the 
cross examiner and you are not the witness. Senator Feinstein, 
I just--
    Senator Feinstein. If you make the guarantee--
    Senator Kyl. Yes, if I can make the guarantee. I just 
conducted a--
    Chairman Sessions. You two have made good partners on a lot 
of matters and maybe you yet can make partnership on this one.
    Senator Kyl. Let me just speak to that for a moment, 
because we are--Senator Murkowski, Senator Ensign, and the two 
of us, of course, all have a dog in this hunt, being that we 
represent Ninth Circuit States. It is important to us. We do 
listen to our lawyers and judges, although I would say polls of 
lawyers and judges, while probative, aren't necessarily 
dispositive given our responsibilities that extend beyond 
representing our colleagues in the bar or on the bench.
    But we have worked together on a lot of things and I have 
made it clear that I understand that Arizonans are of two minds 
on this. I have, at one time or another, had different views on 
this subject. I find that a lot of the arguments just remind me 
of when I practiced law. When a lawyer passionately believes in 
the cause of a client, you can make great arguments on both 
sides.
    But I think there is a lot about the arguments that is not 
so great. What I have told Senator Feinstein privately, I will 
tell all of you, and that is that she has a big stake in this. 
California is the big elephant in the room, if you want to put 
it that way, and it cannot be--we can't override the interests 
of a State like California, nor should one State dominate over 
all others. There is going to be a lot of give and take here. 
We are all going to work with each other and try to come to a 
conclusion that represents the best interests of our 
constituents.
    So I don't view this as just a majority-minority thing in 
terms of political parties, nor do I think one State should 
dominate, nor do I think all the other States should join and 
pick on California. And I do believe that if there is to be a 
division, it needs to be done fairly, and since caseload is one 
of the dominant factors here, there does need to be an 
appropriate relationship between the judges and the caseload 
and that would mean a fair division along the line that Senator 
Feinstein suggested.
    But here is what I will close with. I know that for many of 
you, this has been going on a long time, and when I first came 
to the Senate, we immediately began hearings on this subject. 
So I have been involved in it for a long time. But don't take 
the fact that there are a couple of bills out here as evidence 
that this is all locked in stone. For example, arguments about 
cost are not very persuasive to me because I don't think you 
have got it right in terms of what the costs are. You do have 
to take what is in front of you in terms of a bill's language, 
and I understand that, and so you have to figure out, all 
right, if that is where the head of the circuit is and lawyers 
are going to be arguing in these two other cities or whatever, 
what might that cost? But there isn't a single new courthouse 
that has to be built.
    So let us be realistic about costs. I know opponents love 
to talk about costs. I would just recommend to you that you get 
a little bit more realistic about that. Just like proponents 
talk about the politics of it, I would suggest we get the 
politics out of it right now. I don't know what the politics of 
two new circuits are going to be, and in one sense, that ought 
not to be the consideration here. So there are things that 
advocates love to talk about that I think on the Committee here 
we need to cull out of the discussion.
    Let me just say that I see this as a process involving both 
Houses of Congress, both parties. I really commend the Chairman 
for having this Subcommittee hearing. He and his staff have 
done a lot of work, and all of us, I think, are going to have 
to discuss this. We are going to have to visit with all of you. 
We are going to have to take your arguments on board and think 
it through very carefully and try to come out with what we 
think is the right answer and the fairest answer if there is to 
be a division. If everyone will just take a deep breath and 
look at this in a realistic and not an advocate way, I think we 
just might be able to come to some conclusions that are agreed 
to, for the most part, by most people.
    And finally, I thank everybody for being here. I know it 
was very difficult, especially in the case of Chief Judge 
Schroeder, who not only has personal matters but other matters 
to attend to and I think it involves a red-eye either last 
night or tonight. So I know how important this is to all of you 
and I really do appreciate the interest that you have had. 
Please continue to talk to us. I appreciate your being here 
today, and let us all just handle this in a problem solving 
way. How is that? Thank you, Mr. Chairman.
    Chairman Sessions. Well said.
    Senator Murkowski?

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

    Senator Murkowski. Thank you, Mr. Chairman, and thank you--
    Chairman Sessions. I will also note Senator Murkowski is a 
practicing lawyer in Alaska and has herself quite a bit of 
experience in these matters.
    Senator Murkowski. Thank you.
    Senator Kyl. Might I, with your indulgence, correct the 
record? I would not want the record to go uncorrected. I have 
briefed a lot of cases to the Supreme Court. Only three have 
seen oral argument. However, all three of my clients were the 
prevailing party.
    [Laughter.]
    Chairman Sessions. Let me ask you, Senator, is there any 
other Senator who has argued three cases in the U.S. Supreme 
Court?
    Senator Kyl. No, I don't think so, but--
    Chairman Sessions. Well, then I wasn't incorrect.
    [Laughter.]
    Senator Murkowski. Humility and modesty gets you 
everywhere.
    I want to thank you, Mr. Chairman, for the invitation to be 
with you in this Committee today. I also want to welcome all of 
the judges that have taken the time to be with us and I want to 
extend a special welcome to my judge representing us in Alaska, 
Judge Andrew Kleinfeld. I appreciate you making the long trek 
down.
    As Senators from the West, this is an issue that has been 
discussed a great deal. I think there has long been a focus on 
the Ninth Circuit and its effectiveness and its efficiency as a 
circuit court of appeals. Senator Ensign and I have come at 
this issue, both of us with a little different approach and 
joined together in introducing S. 1824, the Circuit Court of 
Appeals Restructuring and Modernization Act of 2005. I don't 
know whether this is a nudge to California, but I will note 
that the acronym is CCARMA, so for whatever that is worth.
    [Laughter.]
    Senator Murkowski. You ought to appreciate that in 
California.
    But Senator Ensign and I looked at this issue, as I say, 
perhaps from a little different perspective, but we recognize 
that in order to advance this, in order to get to a place where 
I think we can see real efficiencies and see real effectiveness 
within the court in addressing the ever-increasing caseload, 
that we must do something to move forward with a division of 
the Ninth Circuit.
    Mr. Chairman, you have noted all of the statistics, the 
geographic size, nearly 40 percent of the geographic area of 
the United States, the population serving 58 million people 
more than double the size of the other circuits, and then the 
emphasis and the focus on the caseload, and the fact that the 
Ninth Circuit docket is ever increasing.
    Last year, it had nearly a 60 percent higher caseload than 
the next largest circuit. Immigration cases alone--and I find 
this figure absolutely staggering--immigration cases alone have 
increased by an astounding 463 percent. This causes delays in 
the circuit, and as you have noted, the average time for final 
disposition of a case is 5 months longer than the national 
average.
    Now, some on this panel may argue that the Ninth Circuit is 
not inefficient. They will defend the court. They will say that 
the State improvements have been made to the lengthy period in 
which a case is dispensed, and I truly do applaud the efforts 
of the court, the very hard work and all that has gone into 
that. But we need to recognize, you can tread water for a 
while, but I think in the instance of the Ninth Circuit, the 
tidal wave is coming and it is a tidal wave that can't be 
stopped. It is a tidal wave called population growth.
    Mr. Chairman, I have got a couple charts here. The Ninth 
Circuit--I have already said this--has a population more than 
double of most of the circuits, but it doesn't stop there. The 
Ninth Circuit also contains the fastest-growing States in the 
nation. So if you look at the chart, California is the first 
largest, Hawaii is the third, Arizona the fourth, Nevada the 
fifth, Idaho the sixth, Alaska the eighth. The numbers speak 
for themselves.
    Right now, we have a caseload that is overwhelming, but 
with the population and the demographics in the area, we can 
only anticipate that it gets worse. We can't sit back and watch 
these warning signs without acting. It would be irresponsible 
for us not to act, and I believe it would misuse Congress's 
constitutional authority to effectively manage the courts if we 
do not act.
    So what we have done with CCARMA is what I believe is 
sensible reorganization of the Ninth Circuit, dividing it into 
the Ninth and into the new 12th. The distances and populations 
will be more proportionate. It creates circuits with more 
manageable populations and more manageable travel distance, 
which I think will reduce wasted time and money spent on 
judicial travel.
    The caseload will be more manageable, and this is a point 
that goes directly to Senator Feinstein's concern, and very 
real and very legitimate. We must do what we can to make the 
caseloads more manageable. A smaller circuit will mean a lower 
volume of caseload. The reality, as has been said, California, 
as the largest State, and California, as the fastest growing 
State, is going to have an exceedingly large caseload. But 
anything that we can do to help reduce that is a step that we 
should take. Reductions in caseload will improve the uniformity 
and the consistency in case law.
    So this legislation that Senator Ensign and I have moved 
forward may not be the only way to divide the circuit, but I do 
believe that it is a sensible division. I think it is a 
solution that is long overdue. As you mentioned, we have had 
precedents in dividing both the Fifth and the Eighth Circuits 
and the reasons for doing that were just exactly what we are 
faced with today in the Ninth, responding to a caseload and a 
population growth.
    We must recognize that the direction that we are taking in 
the West with our growing population, recognizing the huge 
caseload, the 58 million people that are being served right 
now, we have got a responsibility. We cannot wait. We have all 
heard the phrase, ``Justice delayed is justice denied,'' and I 
think in the Ninth Circuit it is time we figure out how we make 
that accommodation, make the split to provide for justice in 
the Western States.
    So I appreciate the Committee taking the time to review 
this and look forward to working with you and all the other 
members as we move this forward.
    [The prepared statement of Senator Murkowski appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Senator Murkowski. You have 
put forth legislation. You have talked with other Senators and 
been accommodating and tried to work with other Senators to 
develop the best possible legislation. You have been open 
minded about that and we thank you.
    Senator Ensign, likewise, has felt strongly about this 
issue and has worked diligently to consider every possible 
suggestion. I guess you and Senator Murkowski are together now 
on your suggestions, so Senator Ensign, we are delighted to 
have you to talk about your circuit, the Ninth Circuit.

STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF 
                             NEVADA

    Senator Ensign. Thank you very much, Mr. Chairman and 
Senator Feinstein. I appreciate the comments that you made. I 
want to associate myself with the comments of the Senator from 
Alaska. A lot of the points that she had made, I think are 
right on target. But I also want to address to Senator 
Feinstein that this is not about attacking the Ninth Circuit. 
It is not about attacking the State of California.
    The reality is, we have to ask ourselves why do we have the 
circuits that we have today? Why don't we just have one or two 
or just a few circuits around the country? The reason we add 
circuits or we divide circuits is for more efficient 
management. Companies do this. There are all kinds of reasons 
for efficiencies, and what has been laid out today, whether it 
is delays, whether it is number of caseloads, whatever it is, 
whatever is happening today, I mean, we understand.
    My State is the fastest growing rate-wise. California is 
the fastest growing as far as total population. The number of 
people, that is not going to change. The West is going to 
continue to be the fastest growing area in the United States. 
When we have the populations that we have today, and knowing 
that this situation is going to continue to get worse, it seems 
to me that without splitting the circuit, the burden that is 
going to be put on the courts, and therefore the burden on our 
citizens for delaying their justice is going to continue to get 
worse in the future.
    Senator Murkowski and I, we had different approaches. Her 
approach last time was a reasonable approach. I thought my 
approach last time was a reasonable approach. I obviously liked 
my approach last time better than this time, but we have been 
willing to compromise. We came together on legislation and we 
are both open to changing the legislation if people have better 
ideas. We want to be open to the marketplace of ideas on 
restructuring the Ninth Circuit. But to be wed to say that it 
is functioning well today and cannot be improved by splitting 
it up, I think is closed minded.
    When I first was elected to the House of Representatives, 
this was being talked about back then because the West was so 
fast growing back then. And I remember talking to the judges in 
the State of Nevada, and unanimously, they were opposed to 
splitting the Ninth Circuit. Well, today, as far as the 
District of Nevada, every single one of the judges is for 
splitting the Ninth Circuit, every single one of them. And one 
of the two on the Ninth Circuit are for splitting from my 
State.
    So the judges have come a long way in changing their minds 
because they are seeing the realities of the way that the court 
is functioning. So I know there are differences of opinion. I 
guess being the only non-lawyer here, I don't have the 
experience in the courtroom, but I have the experience 
listening to my constituents and I am here to represent them to 
say that we would like to see faster justice done in the courts 
through a more efficiently run Ninth Circuit. I believe that 
the legislation that we have put forward would achieve that, 
and once again, I am glad that Senator Kyl said, let us put 
ideology out the door. Let us put a lot of those other 
arguments out the door, because just based on the merits to 
make it more efficient, to reflect the population growth of 
today, there is plenty of justification for splitting up the 
Ninth Circuit.
    So I thank you, Mr. Chairman, and I know we have a vote 
coming up on budget reconciliation in the Budget Committee, so 
I have to get back there, as well, so I thank you for the time 
and allowing me to testify today.
    Chairman Sessions. I guess Chairman Gregg would like me to 
be back for that vote, perhaps--
    [Laughter.]
    Chairman Sessions [continuing]. Since there is no proxy 
voting in the Budget Committee and it might be attacked without 
me.
    We have got two panels of witnesses today. The first, we 
will discuss the judgeship caseload numbers that seem to 
evidence a continuing need to divide the Ninth Circuit. We will 
also discuss whether a two-way split or a three-way split would 
be better and we will address the recent cost estimates for a 
division. Very interesting to me will be the discussion 
concerning currently empty Federal courthouses in Seattle and 
Portland, each of which are able, clearly, it appears, to serve 
as a seat for the 12th.
    The witnesses on this panel, starting from my left, are 
Judge Diarmuid O'Scannlain, who was appointed to the Ninth 
Circuit in 1986; Judge Richard Tallman, appointed in 2000; 
Chief Judge Mary Schroeder, appointed in 1979; and Judge Alex 
Kozinski, appointed in 1985.
    On the second panel, we will gain more insight into the 
Ninth Circuit as we explore the possibility of housing a new 
12th Circuit in Phoenix, again, without, we believe, having to 
build a new courthouse to do so. We will again hear from four 
witnesses on that panel.
    So, ladies and gentlemen, we are delighted to have you 
here. Judge O'Scannlain, we are delighted to let you start off.

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

    Judge O'Scannlain. Thank you very much, Mr. Chairman and 
members of the Subcommittee of the Senate Committee on the 
Judiciary. My name is Diarmuid O'Scannlain, United States 
Circuit Judge for the Ninth Circuit with chambers in Portland, 
Oregon. I am very much honored to be invited to participate in 
this hearing on revisiting proposals to split the circuit. 
Indeed, the urgency of restructuring the largest judicial 
circuit in the country is even more evident today, in my view, 
by the number of Ninth Circuit reorganization bills pending in 
both Houses of Congress this session, perhaps the highest 
number in Congressional history.
    As you know, Senator Ensign, who has just appeared before 
you, on behalf of Senators Kyl and Murkowski and five other 
sponsors, recently introduced the latest Senate Ninth Circuit 
reorganization bill, which is S. 1845, which is, I understand, 
the central focus of your hearing today.
    Although I have this prepared statement to make, I do want 
to be able to respond to the very kind invitation from my good 
friend, Senator Feinstein, with whom I have started a dialog of 
sorts, to pursue the questions which she raises, which I am 
very happy to do and which I hope I can do after I finish my 
prepared statement, or when it is time for questions and 
answers, if that is appropriate, Senator.
    It is inevitable that Congress must restructure the Ninth 
Circuit and I think S. 1845 is a perfectly legitimate vehicle 
for accomplishing that goal. It bears emphasis, however, that 
since I last appeared before you on April 7 of 2004, the 
Judicial Conference of the United States, the policymaking arm 
of the Federal judiciary, has now gone on record as expressing 
neutrality on splitting the Ninth Circuit. This is a most 
significant change, indeed.
    Also, the Attorney General of the United States, Alberto 
Gonzales, announced that the United States Department of 
Justice now supports a split of the Ninth Circuit without 
specifying which particular configuration it prefers.
    The passage by the House of Representatives of a Ninth 
Circuit split bill last year and recent indications of its 
doing so again very shortly, the newly expressed non-opposition 
by the Judicial Conference, and the support of the Attorney 
General, and the widening support across the country for 
splitting the Ninth Circuit auger well for Congressional action 
this year.
    Let me emphasize that S. 1845, like any restructuring 
proposal, should be analyzed solely on the grounds of effective 
judicial administration, grounds that remain unaffected by 
Supreme Court batting averages and public reaction to any of 
our individual high-profile decisions. My support of the 
fundamental restructuring of the Ninth Circuit has never been 
premised on the outcome of any given case. I believe that the 
sheer magnitude of our court and its responsibilities 
negatively affect all aspects of our business, including our 
solidarity, our consistency, our clarity, and even, sadly, our 
collegiality.
    Simply put, the Ninth Circuit is too big. It is time now to 
take the prudent, well-established course and bring the Ninth 
Circuit into line with the rest of the circuits in the Federal 
judicial system. Restructuring large circuits is the natural 
process of judicial evolution, as you can see if you would look 
at the appendix part of my testimony, beginning at page 17, you 
will see Exhibit 1, which runs for two or three pages. This 
shows the history of the evolution of circuits since 1789, and 
starting with the Evarts Act, you, Congress, have restructured 
circuits four times since 1891, most recently the Fifth Circuit 
just 25 years ago. I believe that the legislation today before 
you represents a workable restructuring plan and I urge you to 
give it serious consideration.
    From a purely numerical perspective, the enormity of my 
court is undeniable, and none of the comments today have 
refuted the numbers that are so oppressive to us as we look at 
this issue. That doesn't matter whether you measure by number 
of judges, population, or caseload. If you would turn to 
Exhibit 4 on page 24, you will see that at 28 authorized 
judgeships, our court of appeals has 11 more authorized 
judgeships than the next-largest circuit.
    Exhibit 5 indicates that the Ninth Circuit has more than 
double the average number of judgeships of all other circuit 
courts of appeals. The Ninth Circuit has 22 more total judges 
than the next-largest circuit. At 51 authorized and senior 
judgeships, the Ninth Circuit has more than double the average 
number of total judges of all other circuits, as demonstrated 
by Exhibit 7 on page 27.
    By population, also, our circuit dwarfs all others. More 
than 58 million people, almost exactly one-fifth of the entire 
population of the United States, live within our circuit.
    And the caseload is killing us. Even with the lumbering 
number of judges on our circuit, we can hardly keep up with the 
immense breadth and scope of our circuit's caseload. As you can 
see from Exhibit 12 on page 32, the Ninth Circuit has 6,000 
more filings in 2005 than the next busiest circuit, and at 
15,600 appeals, the Ninth Circuit had more than triple the 
average number of appeals filed of all circuits in 2005.
    Sadly, this caseload has taken its toll on the litigants 
within our circuit. Looking at Exhibit 16 on page 36, the Ninth 
Circuit is now, regrettably, the slowest circuit in the 
disposition of appeals. And the numbers on Exhibit 17 show that 
the Ninth Circuit takes 40 percent longer to dispose of its 
appeals than the average of other circuits, although you will 
probably hear from some of my colleagues, which is absolutely 
true, that we have a very good record in terms of disposing of 
cases. Once the case gets to argument until it is decided, we 
probably have one of the best records in the country. But the 
problem is getting it from a notice of appeal to the scheduling 
it for oral argument and that is what the fundamental problem 
is.
    So no matter what metric one uses, the Ninth Circuit 
dominates out of all proportion to the structure of the rest of 
the Federal judicial system. From any reasonable perspective, 
the Ninth Circuit already equals at least two circuits in one.
    Now, I am not alone in my conclusions. Several Supreme 
Court Justices have commented--
    Chairman Sessions. Judge O'Scannlain, I think I failed to 
start you off on time, so you have had an extra minute or so 
and--
    Judge O'Scannlain. Oh, OK.
    Chairman Sessions. I guess one of the pleasures of a lawyer 
is to be able to cutoff a judge, having the light go off.
    Judge O'Scannlain. All right.
    [Laughter.]
    Chairman Sessions. That is a very rare privilege, but 
anyway, if you would just wrap up so we can give everybody a 
similar amount of time.
    Judge O'Scannlain. All right, Mr. Chairman. I submit to you 
that the tide has now turned and the burden of persuasion has 
plainly shifted. Indeed, the whole paradigm has shifted. As 
long as one accepts the underlying premise of the 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 into this country into one of 12 regional circuits.
    In closing, let me say that Chief Judge Schroeder and her 
predecessors have done a truly admirable job with the limited 
tools that they have had, chipping away at the mounting 
challenges to efficient judicial administration. However, I do 
not believe that long-term solutions to long-term problems come 
from tinkering at the edges. The time has come when cosmetic 
changes can no longer suffice and a significant restructuring 
is necessary.
    Thank you, Mr. Chairman, and I will be very happy to take 
questions at the appropriate time.
    [The prepared statement of Judge O'Scannlain appears as a 
submission for the record.]
    Chairman Sessions. Thank you.
    Judge Tallman?

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

    Judge Tallman. Good afternoon, Mr. Chairman and 
distinguished members of the Subcommittee. My name is Richard 
C. Tallman. I am a United States Circuit Judge with chambers in 
Seattle. Thank you for the invitation to appear here this 
afternoon to discuss why the reorganization of our court is 
overdue to bring about a new era of judicial efficiency in the 
circuit courts of the Western United States.
    I join eight other circuit judges on our court who are 
listed in Footnote 1 of my written testimony who also support a 
split, and Mr. Chairman, I would ask that that written 
testimony be made a part of the record.
    Chairman Sessions. We will make that a part of the record.
    Judge Tallman. I can also say that there are other judges 
on our court who support reorganization but who prefer, for 
various reasons, not to identify themselves.
    Mr. Chairman, the statistical evidence is overwhelming. 
Unmentioned in the previous numbers is the fact that we are 
forced to borrow visiting circuit and district judges from all 
over the United States. In this year alone, we brought in 137 
visitors. Next year, we expect around 200. That has an impact 
on the development of the jurisprudence in the Ninth Circuit. 
That is in addition to the 51 active and senior circuit judges 
who continue to hear cases on the Ninth.
    We should not be deterred by overstated arguments of short-
term financial costs. Instead, we should view the cost of 
splitting the court as a necessary investment which will pay 
great dividends in the delivery of justice to the people we 
serve.
    If Congress prefers a two-way split, the most readily 
available, cost effective, and geographically desirable 
location for the 12th Circuit's headquarters is the now empty 
ten-story William K. Nakamura United States Courthouse located 
at 1010 Fifth Avenue in Seattle, Washington. It is pictured in 
Exhibit 1 and is up on the chart. This building, rich in 
history, where many great men and women have served our Nation, 
is the perfect building to begin a new era in our reorganized 
judiciary, and Senator Feinstein, we can lop off $84 million 
from the AO's letter that you just marked in the record by 
using the Nakamura Courthouse. Congress has already approved 
the $53 million in renovation costs and that work is underway 
by the General Services Administration. That building, with 
104,000 usable square feet, is more than adequate to physically 
house the judges' chambers, the courtrooms, and all of the 
clerks and administrative space for the new 12th Circuit with 
plenty of room for future growth.
    The architectural drawings for its renovated courtrooms are 
shown in Exhibits 3 and 4 to my testimony. That is a typical 
three-judge panel hearing room, and the next one is the en banc 
courtroom which is designed and will be built out to handle 15 
judges so that the full court could sit en banc.
    Congress has already approved the $53 million in repairs 
and renovation costs in GSA's budget for fiscal year 2005 and 
preparing it to serve as the headquarters for the 12th Circuit 
will not add excessive work or cost to the ongoing renovation. 
Most importantly, the renovation work will be completed in 
plenty of time to allow the 12th Circuit to begin operations, 
hear oral arguments, and carry out other judicial functions 
upon the effective date of the split.
    Seattle is centrally located for the States that would make 
up the 12th Circuit. That is a substantial cost to taxpayers in 
lieu of having current Ninth Circuit judges and staff regularly 
travel these great distances. Flights to and from Seattle are 
more convenient, more frequent, would be shorter in duration, 
and are less expensive, allowing for cost savings, less time 
wasted in airports, and more time spent in chambers handling 
appellate work.
    If Congress prefers another Pacific Northwest location, the 
Gus Solomon U.S. Courthouse in Portland, Oregon, stands ready 
to answer the call. It is shown in Exhibit 5 to my testimony, 
another empty, available courthouse.
    With these existing facilities, it is clear that we do not 
need to build new courthouses. We also ought to try to avoid 
arrangements in which the new circuit headquarters would be 
housed in separate buildings within the same city. Either 
Nakamura or Solomon can do the job in one building.
    Because California is producing 70 percent of the Ninth 
Circuit's 16,000 cases, a substantial amount of time and money 
is spent sending judges from outside the Golden State to hear 
cases in California, while California judges travel to hear 
cases in other States of the Ninth Circuit. This past year, I 
heard cases in Seattle for only five days for the entire year. 
It is wasteful to pay judges to play this game of judicial 
musical chairs, traveling to one another's States when the job 
could easily be done by local judges working at their home duty 
stations.
    By adding new judges in California and splitting many of 
the current Ninth Circuit States into the 12th Circuit, all 
judges will spend less time traveling and more time working on 
cases within their own State or States closer in proximity. 
Those are real cost savings of millions of dollars annually and 
countless hours of travel.
    With or without a split, it is absolutely necessary to add 
additional judgeships in California and fill empty seats 
already authorized, but it is unfair to attribute the cost of 
doing so to the cost of splitting the Ninth Circuit. Those 
judges are needed now. We have to address this growth problem, 
which is rapidly growing and getting worse by the day. The 
startup costs have been inflated in past discussions because it 
was assumed that brand new courthouses would have to be 
constructed. Nor was there any offsetting credit based on the 
financial gain from cost savings resulting from separating the 
States and enjoying judicial resources closer to home.
    The transaction costs of investing in improving the 
delivery of justice are far less than the opportunity costs of 
simply maintaining the status quo. That is unacceptable. 
Justice delayed is justice denied. It is hard to quantify the 
benefits of speedier resolution of appeals, which will surely 
follow the creation of more manageable, smaller appellate 
courts.
    In the end, our citizens, both as taxpayers and consumers 
of our court services, will greatly benefit from the a split of 
the Ninth Circuit. It will provide them with better service, 
litigants with prompt decisions, and a full en banc review of 
the most important cases to reach the court. The time is now to 
make the investment in improving the delivery of justice in the 
Western United States. Thank you, Mr. Chairman.
    [The prepared statement of Judge Tallman appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Tallman.
    Chief Judge Mary Schroeder, we are delighted to have you 
here again and look forward to hearing from you.

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

    Judge Schroeder. Thank you so much, Mr. Chairman, and good 
afternoon. My name is Mary Schroeder and I am the Chief Judge 
of the United States Court of Appeals for the Ninth Circuit. I 
am very pleased to be with you. My husband is a little less 
enthusiastic about my being here--
    [Laughter.]
    Judge Schroeder [continuing]. But I hope to join him later 
in the day.
    I have served in the capacity of Chief Judge of the Ninth 
Circuit since December of 2000. My home chambers are in 
Phoenix, Arizona, and Senator Kyl and I practiced law together 
in Phoenix at the same time and we have been together on many 
projects for a long time.
    I would like to introduce our colleague, Carlos Bea. Judge 
Bea and his wife, Lucille, are here from San Francisco, and our 
wonderful Clerk of Court, Cathy Catterson, who is also here 
today. I notice that the Clerk of Court of the District of 
Arizona is also here, Rich Weir.
    As you know, technology has improved rapidly. We now have 
BlackBerrys, we have cell phones, laptops. We can communicate 
instantly with each other wherever we are on the planet. It is 
now easier to administer this circuit than it was when I took 
over as Chief in 2000.
    Moreover, it is the view of the overwhelming majority of 
our circuit judges, bankruptcy judges, and the lawyers who 
practice within the circuit that a division of the circuit 
would not improve the administration of justice in the West. We 
are not just talking about the Court of Appeals. We are talking 
about the entire circuit and this includes magistrate judges, 
district judges, everyone.
    There are only three active circuit judges who support 
division and they are all here today and you will hear from 
them.
    What I would like to focus upon this afternoon, however, is 
not how well the circuit is operating but how harmful a circuit 
division would be, especially now. There are three principal 
reasons.
    The first is the unprecedented devastation wrought by 
Hurricane Katrina, which the AO has already asked for $65 
million in additional appropriation.
    The second is the temporary but unprecedented increase in 
immigration appeals to our court from the Board of Immigration 
Appeals in the Justice Department that cannot provide 
sufficient meaningful administrative review, and we hope to 
work with them so that they get the resources that they need, 
as well.
    The third reason that this is such a bad time to consider 
splitting the circuit is the need for court resources to 
prepare for new litigation spawned by the Bankruptcy Act that 
went into effect last week and new immigration legislation that 
you are struggling to formulate, and we would like to work with 
you to make sure that whatever policies you come up with in the 
immigration field work.
    I was in Houston after Katrina last week and their circuit 
executive's offices in rented space, their clerk's office on 
rented furniture, their entire clerk's office, 100 people, is 
on per diem and working in Houston. They are worried about 
their children, their homes, and what the future will bring. 
The Federal Appellate Court for the Fifth Circuit is at least 
functioning, thanks to those efforts of the Chief Judge and its 
administrators, but I understand there are trial courts there 
that are not functioning at all.
    We don't think this is the time to create an unnecessary 
and costly bureaucratic court structure in the West, especially 
when there is no legal system in one area of the country right 
now.
    With respect to the immigration case deluge, those cases 
are nearly all from California. Splitting the circuit would 
exacerbate administrative burdens because the judges from the 
rest of the circuit would no longer be there to help and staff 
resources would be cut. The Judicial Conference of the U.S. has 
taken a position of neutrality with respect to the merits of 
the split. That has always been the position. They have never 
taken a position in favor of circuit splitting or opposed. They 
do oppose linking new judgeships to the issue of circuit 
splitting.
    Let me speak for a moment about staffing. The new Circuit 
Court of Appeals has to be staffed and a new circuit has to be 
staffed. They would need a clerk of court, circuit executive, 
technology folks, staff attorneys. We have all of that now very 
effectively in the Ninth Circuit and we have services that are 
not matched because of the expertise that we are able to 
provide in a circuit executive's office and a clerk's office 
that serve a lot of folks out there.
    Finally, about administration, the existing circuit has a 
hub. It is easily administered because nearly all of the judges 
can get to San Francisco within 2 hours and they don't have to 
lose more than a day in the office. I happen to follow college 
athletics and the headquarters of the PAC 10 and the Ninth 
Circuit are within seven BART stops from each other because 
that is the hub of that area of the lower 48, and when Hawaii 
and Alaska were added, they were added to the Ninth Circuit. 
Nobody thought a thing because there was nowhere else for them 
to go and I don't think there is now.
    Neither of the circuits that were created by S. 1845 would 
have such a hub. One would cover the whole Pacific and the 
other would stretch from the border of Mexico to the Arctic 
Circle. Judges would have to change planes in San Francisco in 
order to get from Phoenix to Seattle. So the courthouse in 
Phoenix, we can look at, but it is fully occupied and it has 
ten courtrooms. You would have to fill in those courtrooms--
that is very, very expensive--and move the bankruptcy court 
out.
    So given the stress on the administration of justice right 
now by all of the things we are seeing, all of the movement in 
this country, fracturing the administrative structure of the 
courts of the West is not a good idea.
    I thank you for the opportunity to appear before you and I 
would be happy to answer any questions later. Thank you.
    [The prepared statement of Judge Schroeder appears as a 
submission for the record.]
    Chairman Sessions. Thank you. Thank you, Chief Judge 
Schroeder.
    Judge Kozinski, it is a pleasure to have you with us and 
see you again. I am not uninterested in your comments and will 
be studying your record, but unless Senator Kyl is leaving--he 
just disappeared. I have to go vote in just a minute. Senator 
Kyl says that he would be pleased to preside, so we are 
delighted to hear from you at this time.

   STATEMENT OF ALEX KOZINSKI, CIRCUIT JUDGE, U.S. COURT OF 
      APPEALS FOR THE NINTH CIRCUIT, PASADENA, CALIFORNIA

    Judge Kozinski. Thank you, Mr. Chairman, members of the 
Committee. My name is Alex Kozinski. I am a judge on the Ninth 
Circuit. I have been a judge on the Ninth Circuit for 20 years. 
I am resident in Pasadena.
    I have written testimony and rather than summarizing it, 
which I planned to do, what I would like to do is address some 
points raised by the other witnesses, but partly because 
Senator Feinstein did such a fine job of saying most of the 
points that I did and there is no point repeating them here.
    On this matter of whether there is a consensus that the 
Ninth Circuit ought to be split, I think the Committee ought to 
think seriously about this. Who knows more about what is good 
for the people in the Ninth Circuit insofar as the Ninth 
Circuit is concerned than the lawyers, the people who represent 
the litigants who appear before us? I think it is significant. 
I think it is a fact that can't be brushed aside that the State 
bars of Arizona, Hawaii, and Montana have all voted against the 
split. These are States that would be split away from the Ninth 
Circuit, that would get the supposed benefits of a split, and 
yet the lawyers representing the litigants that appear before 
us are against the split.
    Also, the judges know quite a bit about this and I think 
the Committee ought to find it significant that of the judges 
on our court, there are only three active judges, who are all 
present, who voted in favor of a split. We had a court meeting. 
We had a discussion. We had a vote. Only three active judges, 
all present here, voted in favor of the split. It is 
significant that of the circuit judges from Montana, Arizona, 
Nevada, and Hawaii, there was not a single circuit judge, 
active or senior, who voted in favor of the split. Not a single 
judge from one of those States voted in favor of the split.
    Now, I heard Senator Ensign say to the contrary, that he 
believed that one of the circuit judges from Nevada voted 
differently. I have here a vote tally sheet of the vote we have 
taken. It includes the list of all the judges who voted for and 
against, who abstained. It shows that--
    Chairman Sessions. Do we have a voting rights case here?
    [Laughter.]
    Judge Kozinski. Well, I think it is important, Senator, to 
have the record straight--
    Chairman Sessions. Well, it is.
    Judge Kozinski. and the record is that the Judge Rawlinson 
from Las Vegas voted in favor of a split and Judge Hugg, former 
Chief Judge, a great Chief Judge, a wonderful Chief Judge, 
voted against the split and the two judges abstained. Judge 
Brunetti and Judge Bybee abstained. I am aware, as I stand here 
and I am under oath, I am aware of no colleague of mine from 
Nevada who voted--who believes that the split is appropriate.
    Now, these are judges and lawyers from the States that 
would be affected by the split, the split that supposedly is 
inevitable. I think the Committee ought to think very carefully 
about why those people most intimately familiar with it and 
those who are most involved with our litigation process have 
voted against the split.
    Now, Judge O'Scannlain raised, as well did the Chairman, 
the business about delay in deciding cases in the Ninth 
Circuit. Judge O'Scannlain, a fine colleague of mine, and Judge 
Tallman, a wonderful colleague--one of the worst things about 
this proposed split is I really would miss them, and Judge 
Kleinfeld. I really would hate to see them go, and I am going 
to hold on to them as hard as I can.
    But Judge O'Scannlain was quite fair. He said, oh, they 
will tell you that once the cases get to the judges, we are the 
fastest, one of the fastest courts in the country to decide. 
Well, isn't that the test of the circuit, of how the circuit is 
working? The reason cases are delayed is because we have four 
vacancies. Up until two or 3 years ago, we had eight vacancies 
and ten vacancies in our court. The reason we have visiting 
judges from other courts is we don't have the judges. Judges 
have not been confirmed.
    Once the cases get to the judges, once the judges get to 
decide the cases, once the decisionmaking process comes within 
our control, we are the second fastest court in the country. It 
doesn't matter that some of our colleagues are in Alaska and 
others are in Montana and others are in Hawaii because I can 
talk to Judge Kleinfeld and I can talk to Judge Thomas in 
Montana, I can talk to my colleague, Judge Clifton, in Honolulu 
by picking up the phone or by sending an e-mail, and you know 
what? E-mail to Montana is just as fast as e-mail to downtown 
Los Angeles, believe it or not.
    We are unified as a court and at no time in the history of 
the United States has a circuit court been split over the 
strong opposition of a majority of the judges. The only time 
that we know about is the Fifth Circuit was split when the 
judges unanimously voted to split. Now, I don't think we have a 
veto. I don't think we are entitled to deference in the sense 
that you can't do it. Of course, you can do it. It is your job 
to do it. But you need to think carefully about the people who 
actually deal with the lives and fortunes of the litigants 
before us, the judges and the lawyers, and the judges and the 
lawyers have spoken and by overwhelming margins they have said 
no.
    I think this Committee should accept that verdict, after 
close study, and should reject once and for all the proposals 
to split the Ninth Circuit, and what they should do is commend 
the court and help us with technology, help us with resources, 
help us here in the Senate with confirming our judges. Give us 
the judges to do the job for you. You do that and we are not 
going to see those numbers. We are going to see the fastest 
court in the country.
    Thank you, members of the Committee and--and Mr. Chairman.
    [The prepared statement of Judge Kozinski appears as a 
submission for the record.]
    Senator Kyl. [Presiding.] Thank you. I don't mean to 
confuse things--
    [Laughter.]
    Judge Kozinski. Excuse me, sir, I do have this vote tally 
sheet. I know in court we would say, may I have it marked as an 
exhibit--
    Senator Kyl. Without objection. Any written material that 
any of you would like to have appear in the record will be 
included in the record.
    Since Senator Feinstein is ranking, Senator Feinstein, 
would you like to begin the questioning? Are you prepared?
    I will tell you what. Let me just ask one question first 
and then I will turn to you, how is that? It was occasioned by, 
Judge Kozinski, one of the comments you just made. I don't know 
why it takes the Ninth Circuit so long to get to oral argument. 
Your suggestion was, Judge Kozinski, that that was because 
there are four vacancies. On the other hand, isn't it possible 
to set oral argument and if there are two judges set and a 
third that has to be filled in, to simply fill it in with a 
visiting judge or district court judge? In other words, why 
should the fact that there are four vacancies mean that it 
takes a long time to get to oral argument? I don't understand 
that. And Judge Schroeder might be able to answer that, as 
well.
    Judge Kozinski. Since you directed the question to me, 
there is always a balance on a court between speed and getting 
the work done by bringing in more judges--being short of 
judges. Of course, there is not an unlimited number of visiting 
judges you can get. Other judges have their own work to do. But 
in terms of maintaining consistency in the law of the circuit, 
what you want to do is to have as many of the local judges, as 
many judges from the home circuit as possible because they see 
the same cases again and again.
    Now, the balance can be struck in various ways, but I 
believe it will be irresponsible for a court to promiscuously 
bring in visiting judges when there are vacancies. I think we 
try to do our job, but at the same time we don't want to muck 
up the law by having too many hands in the pot.
    Judge Schroeder. What we like to do is to bring in our own 
district judges who are familiar with the circuit law. It is 
not helpful particularly to bring in a lot of judges from other 
circuits who are not familiar with the circuit law.
    One of the things that came out in the White Commission 
hearings that they had in the late 1990's when they studied the 
circuit structure throughout the country was a dissatisfaction 
on the part of lawyers in some other parts of the country with 
some other circuits that relied more heavily on visiting judges 
than the Ninth Circuit does, because they would like to have 
the cases decided by those who are familiar with the law and 
not in Atlanta by a senior judge from Indiana.
    Senator Kyl. And, by the way, let me make it clear that if 
it were up to me, there wouldn't be any vacancies in any court, 
and, in fact, we would have more judges to be filled in the 
form of new judgeships, both district and circuit, but I don't 
control all of that and I understand that that is a deficiency.
    Do, Judge Tallman or Judge O'Scannlain, do you have a view 
on this question of why it takes so long to get to oral 
argument?
    Judge Tallman. I should say, and I think you can appreciate 
this as a former practicing lawyer, it doesn't matter to the 
litigants what the reasons are. All they know is that it takes 
15.4 months on average to get their cases decided. We do have 
problems in immigration cases getting the record, the 
administrative record together, and that is a problem on the 
government's side of the equation. But we have got a whole 
basement full of pending court cases in San Francisco that are 
waiting for oral argument panels to become available to which 
they can be assigned and that takes more judges.
    To respond directly to Senator Feinstein's concerns 
expressed at the outset, Senator, there is no way to equalize 
the caseload with California unless the State itself is split 
and no one is advocating that. But none of the circuit 
caseloads are mathematically equal and there will always be 
variations from one to another.
    The logical result of the opposition argument is that there 
is no limit to the size to which this court may grow. Do we 
really want an appellate court of 75 active and senior circuit 
judges? That is not a court, it is a legislature.
    Senator Kyl. By the way, the senior judges are available 
for designation on panels to the extent that they devote time 
to judging, so I presume they are included within the panel?
    Judge Tallman. Technically, they are not designated. As a 
senior judge of the court, they continue to hear cases. They 
just hear a reduced caseload. Some of them are handling 
caseloads that are equal to or greater than an active judge.
    Judge Schroeder. We rely on them.
    Senator Kyl. Actually, my preliminary question has turned 
into a whole 5 minutes, but Judge O'Scannlain, do you want to 
conclude--
    Judge O'Scannlain. I would just simply concur with my 
colleague, Judge Tallman, and suggest that that figure of 47 
judges today, including seniors, includes 23 seniors, and if I 
am not mistaken, at least 20 or maybe even 22 of those 23 
seniors are actively sitting on panels, so that if we were 
stuck with just the 28, we would be at a total loss.
    But from the standpoint of the litigant, it doesn't matter 
how fast we are, and I totally agree with Judge Tallman on 
this, in terms of deciding cases as long as his case is 
waiting. So the problem is that notwithstanding all of these 
vaunted programs that we have, especially, for example, the 
screening panel, ironically, the cases that get the quickest 
treatment in our court are the ones that have the least complex 
issues to deal with. Those sometimes get in and out within six 
or 8 months, compared to 15 months as an average, and we do 
that with a screening panel. But notwithstanding that, we are 
still the slowest court in the entire country and that is a 
statistic which cannot be gainsaid.
    Judge Kozinski. Senator, if I may just followup, my 
colleagues are absolutely right. It doesn't matter to the 
litigant why the delay is, but it certainly matters in figuring 
out the swiftness. If the problem is we don't have enough 
judges, then the solution is give us more judges. Splitting a 
circuit is not going to solve the problem that is created by 
the absence of judges.
    What it will do is exactly as Senator Feinstein pointed 
out, because the judges in the new proposed 12th Circuit would 
have a much lower caseload, yes, those cases would get their 
judges more quickly. But the cases in California and cases in 
Hawaii, and Senator Kyl, Senator Murkowski, you are 
representing the nation, not just your own State and I submit 
that it is not fair to have a solution that makes the problem 
of delay so much worse in important parts of the country in 
other States, Hawaii and California. The problem being created 
by lack of judges, give us the judges. That will solve the 
problem.
    Judge O'Scannlain. Mr. Chairman, Senator Kyl, if I can call 
you Mr. Chairman at the moment, there is a little 
disingenuousness going on here, if I may say so, and I say so 
with a certain amount of regret. But we had the opportunity in 
1990, the last major judgeship bill, to ask for new judges. We 
were entitled by the numbers to close to ten, maybe actually 
ten new judges, and we asked for zero. So the fact that we 
don't have enough judges is to a certain extent a product of 
our own making.
    And at the very least, what this bill does is give us seven 
new judges. In my view, and I repeat what I shared with Senator 
Feinstein in our meeting, I think the number of seven judges 
for California is too low. I think California justifies 
significantly more than that. And the fact that we never asked 
for them until now, I think is unfortunate, to say the least.
    Senator Kyl. Let me just conclude this and then, Mr. 
Chairman, Senator Feinstein should probably have the next 
opportunity since I basically took your spot here by asking a 
question that opened a bit of a can of worms. But let me just 
conclude with my thoughts, because I think both sides in this 
debate make a good point.
    Judge Kozinski, I think you are absolutely right that it is 
critical that we fill all of the vacancies and, I believe, 
create new judgeships consistent with the caseload and fill 
those as well and that that can have the effect of reducing the 
time to argument. That, therefore, helps to relieve the 
pressure that has been building for a split.
    But I also agree with the proposition that carried to not a 
logical extreme, day after tomorrow, we are going to have how 
many judges on this court? That makes the argument that, for 
any semblance of collegiality and ability to conduct en banc 
hearings and the other things which make for an effective 
court, there is going to be a point at which we either have to 
have a very different view of what a circuit court is with 75 
judges or agree that at some point there does have to be a 
split.
    So it seems to me that there is validity in both points 
that have been made here.
    Judge Kozinski. I hop I will have a chance to speak to you 
privately at some point on all of those issues. I will be happy 
to come back to Washington or to Arizona to do that.
    Senator Kyl. Let us do it in Arizona. I said before, I view 
this as not perhaps the beginning of a conversation, but the 
continuation of a conversation that is going to take us a 
while. Everyone can breathe easy that this isn't going to pass 
tomorrow in exactly this form and there is plenty of time for 
conversation and I welcome, and I really do again appreciate 
the time that all of you have put in and the difficulty that it 
has created for some of you.
    Judge Schroeder. May I say, Senator, that Judge Thomas will 
also address these issues that you are concerned about.
    Senator Feinstein. I am not going to ask a formal question. 
Let me just for a moment have a bit of a discussion.
    I think there is more actually underlying this than just, 
well, let us shorten the time that a case can get to a judge 
because that is pretty simple, as Judge Kozinski pointed out. 
Increase the number of judges.
    The fact of the matter is, it has been increasingly 
difficult to get new judge positions to the Ninth Circuit, and 
the fact of the matter is, I believe, and I can't make any 
accusations, but I believe that there is an effort to starve 
the circuit to bring it to the point of a split. The points I 
have been trying to make is the very real need for parity in 
caseload.
    I think there are political reasons here. People say they 
aren't. I believe there are. Clearly, there are travel reasons. 
Some judges, I guess, don't want to travel as much, and I can 
understand that and I don't blame you for it. I am not at all 
critical.
    But I don't think the case should be made on the timeliness 
or the delay in getting the case, because if that is really the 
argument, then get the judges. When it comes to judges being 
active in lobbying, and I say this to both sides, nobody helps, 
really. The Chief Judge does, but that is somewhat limited. But 
while we are judges, we don't lobby is kind of the answer that 
comes back. Consequently, the Ninth Circuit has been seriously 
disadvantaged.
    Now, any split--I told you, 72 percent of the caseload 
remains in California and the rest of it, I mean, if you look 
at the actual numbers, they are de minimis. I won't do Guam. 
Hawaii, 247 cases are filed in a year. Alaska, 136 cases. that 
is all. Arizona, 1,195. Idaho, 161. Montana, 355. Nevada, 827. 
Oregon, 638. Washington, 1,130. So the big States of those are 
Washington and Arizona. But California, 10,985 cases.
    Therefore, it seems to me that a decision has to be made 
whether there is enough, and I can't answer this because I 
don't know, judicial interest in having the kind of 
cosmopolitan Western circuit that exists there with interaction 
for trade laws, kind of a richness of law because of the 
geographical composition of the circuit, or if not, I mean, if 
California could get 21 new judges on the line and be its own 
circuit, we could try and see how that would work.
    Judge O'Scannlain. Well, there is precedent for--if you 
look at Judge O'Scannlain's Exhibit 1, back at the beginning 
days of the republic, there was a United States Court of 
Appeals for the California Circuit and it--
    Senator Feinstein. I saw it, but it didn't last long.
    Judge O'Scannlain. No, because the West grew and there 
needed to be more judges.
    Senator Feinstein. It grew and there was a synthesis of 
interests within the States. And as you know, no circuit except 
for the D.C. Circuit is less than three States. So the circuits 
have been devised on the basis that a number of States together 
is a good thing. So the question of size, in my view, is 
strictly related to numbers of judges. Go ahead, take me on. I 
am happy for you to take it on.
    Judge O'Scannlain. I would have to say that on this 
particular point, maybe Judge Kozinski, you, Senator, and I are 
in total agreement, and that is we need more judges. I 
certainly feel that very strongly. I thought we needed them in 
1990 when we failed to ask for them, but we need them certainly 
today.
    The problem is, how large can a court of appeals grow and 
still be a court of appeals? That is the nub of it. And if you 
read the White Commission report of 1998, that is the central 
piece they make. They recommended that we split into three 
separate divisions. Keep the circuit structure, but split into 
three semi-autonomous divisions, one of which would--well, two 
of which would split California.
    Now, I realize, Senator, that you have some concerns about 
the optics of that and--
    Senator Feinstein. Forum shopping, yes.
    Judge O'Scannlain. And that is a very respectable point and 
one which I share, as well. But the key here is that if we are 
looking at some modifications to this bill, in my personal 
view, I think the new 12th Circuit gets too many judges and the 
new Ninth does not get enough. So even with 35 judges to be 
reallocated, I think you could pick up two more judges just by 
shifting from the 12th to the Ninth in this bill, and then, as 
I said in my earlier testimony, I think you could justify ten 
or more judges at least to go with the number of California 
judges there are.
    So I think--but I think that is just a matter of 
adjustment. The principle, though, is the key, and the 
principle is you cannot let a court of appeals grow so large 
that the number of judges sitting around making law--now, we 
are not talking about making law in a legislative sense, in 
which there are much less limitations, but here, we have to 
speak as a unifying body which declares the law. The White 
Commission recommended nine to 17 as the ideal range. Over 17, 
it becomes cumbersome. We are at 28. If we go to 35 or 38 or 45 
or 55, it is impossible and we cannot function as a court of 
appeals with that number.
    Senator Feinstein. Does everybody agree that if you grow 
like that, it is impossible? Judge--
    Judge Schroeder. No. No.
    Senator Feinstein. Wait. Judge Schroeder, just a second. I 
will go down the line. Judge Tallman?
    Judge Tallman. I do agree with that, and it gets back to 
what we talked about at the last hearing, which is the 
importance of maintaining consistency and predictability in the 
law. The problem that we have now with 50 judges resident, 
active and senior, and 150 to 200 visiting judges is that it is 
like going to Las Vegas in terms of what the outcome is going 
to be. Tell me who the three judges are going to be on the 
panel and I might be able to predict how that particular panel 
is going to go.
    That is not supposed to be the way circuit courts of appeal 
operate. They are supposed to apply the same legal principles, 
the same body of law to similar sets of facts that come before 
them, and the en banc process exists to correct those panels 
who wander off the reservation because they didn't follow the 
law.
    With a court of 75 judges trying to have a functioning en 
banc process, even on a limited basis as we do now in the Ninth 
Circuit, would be virtually impossible. You are talking about 
the ability to review less than 3 percent now with the limited 
en banc process of errant cases that have gone awry. You 
couldn't do it with a court of 25,000 cases and 75 judges.
    Senator Feinstein. Judge Schroeder?
    Judge Schroeder. I am not sure why we are talking about 75 
judges when we have never had the 28 for more than five 
minutes, but the truth is that it used to be that nine judges 
was considered the ideal size of a court. Now, all the circuits 
except the First are larger than nine. We have seen by 
technology that it is easier to operate when you have larger 
courts as we get bigger in our ability to communicate.
    You referenced the community of interest of the West. That 
is very important. We have a community of interest in the West. 
We have Microsoft, for example, in Seattle. We have the Silicon 
Valley. We have Intel. All of these are looking toward the 
Pacific. We all think of ourselves as Pacific Rim. We need to 
keep that community together. It is very important.
    And we will, if we ever get to 35 or 40 judges and it turns 
out that there are problems, we will deal with them. But no one 
has ever, in studying the circuit, has ever concluded that it 
would be more efficient to divide the circuit.
    Senator Feinstein. Judge Kozinski?
    Judge Kozinski. Well, it seems to me Judge O'Scannlain is 
giving up the game. He favors a split, but he says, oh, 
California should get ten more judges. Well, under the CCARMA 
bill, it is 16 judges plus he said we should get two more. That 
is 18. Ten more is 28. We are back at 28 active judges.
    Now, it seems to me the reality is we are all getting 
bigger. The country is getting bigger. Courts are getting 
bigger. Cases are getting bigger. Litigation is getting bigger. 
Simply throwing out--and law firms are getting bigger. Simply 
throwing out a number, saying, oh, 75 is a very big number, you 
know, ten judges was a very big number for a circuit in 1960. 
There was not a single circuit in the country that had as many 
as ten judges. It was horrible, the very though.
    I remember 1960 and I am sure--
    Senator Feinstein. I do, too.
    Judge Kozinski. There we go. It was not such a long time 
ago. We live in a different world. And just to answer the 
question that Senator Kyl asked and the thing I want to talk to 
him about in his office when I get a chance, yes, you can run a 
court with 75 judges. It is not ideal, but it is done and this 
bill is about collegiality. I love my colleagues. I get along 
well with my colleagues. We josh around here. But as I say to 
Judge Tallman every time I see him, I say, you bad guy. Do I 
not say that to you?
    Judge Tallman. You do.
    Judge Kozinski. And the reason I say, you bad guy, is 
because he wants to leave me and I don't want to lose him.
    Judge Schroeder. Well, he is--
    Judge Kozinski. And that is how we relate to each other.
    Senator Feinstein. Let me just say one thing about justice. 
I am not a lawyer, so it is easy for me to say. But it seems to 
me that--I have always thought, to some extent, small is better 
because small is human. Judge Schroeder, I have a problem with 
doing things by BlackBerrys, probably because I am not of the 
generation, really. For me, it is the human interaction. It is 
the ability to take the time. It is having people feel really 
satisfied that they had their justice and that it was human, 
that it wasn't mechanical, and that cases weren't just sorted 
in bulk and dealt with in bulk and that kind of thing, that 
there was an individual quality to the justice that is meted 
out.
    I do think that as a circuit gets bigger, if this one is 
going to continue to grow, it is inevitable that 1 day, we are 
going to be there. I don't pretend to know what is the size 
when we are going to be there, but for me, as I look at this 
and try to see the forest for the trees, it is parity. It is 
bringing down the number of cases per judge so that the 
individual case has a certain prominence and isn't just in a 
batch that is dispensed with in a certain way.
    Judge Schroeder. I don't disagree with that at all, but as 
you have pointed out, the reality is that California is very 
large and that it is going to have to have a certain number of 
judges and that any circuit with California is going to be 
larger than 20 judges. That is just the reality of the world in 
which we live.
    Judge O'Scannlain. Perhaps, Senator Feinstein, the time has 
come to give some consideration, I am not sure where I would 
stand on it personally, but some serious consideration to the 
rule that we kind of followed, an unwritten rule that there has 
to be three states to make a circuit. The District of Columbia 
is an exception to that rule, but that didn't occur until 1948. 
Maybe because of the population pressures of California, the 
time has come to consider whether California, like it was in 
1855, should once again become its own circuit. Certainly, the 
numbers in every way justify it. I am not suggesting that as a 
solution here, but I am suggesting that we have to do something 
with these numbers because these are pressures which need a 
response.
    Senator Feinstein. I haven't seen a proposal that treats 
California fairly in terms of judges, candidly.
    Judge O'Scannlain. OK.
    Senator Feinstein. Clearly, it knocks down the caseload to, 
like, 325 for the other States per judge with the judges that 
accompany the proposals, but it leaves California judges with 
over 500 cases. I can't--
    Judge Tallman. Mr. Chairman, Senator, I think you are 
overlooking the fact that the bills also provide for continuing 
exchanges of circuit judges between the 12th and the Ninth to 
address that problem. We will continue to be sitting in 
California for some time to come as the bills are currently 
drafted.
    Senator Feinstein. Then what is the point of doing it?
    [Laughter.]
    Judge Tallman. Because at some point, the thought was that 
California would get the additional permanent judgeships that 
it needs so that you wouldn't need to be borrowing all these 
judges from the rest of the country.
    Senator Feinstein. Let me just say, I have been here now 
for almost 13 years. I don't think California will get the 
judges it needs. The only way for California to get the judges 
it needs is to get them before there is any split and have 
them, because I think California will be slighted, and I 
greatly respect Senator Murkowski. I think she does a super 
job. We serve together on Energy and Water. But the proposal 
doesn't treat California fairly in terms of number--I leave out 
the word ``fairly,'' but doesn't treat California adequately in 
terms of the number of judges and I have to fight for my State.
    Judge Kozinski. Mr. Chairman, may I just have 30 seconds to 
address this. Judge O'Scannlain put in this idea of a single 
State circuit for the first time and I just want to address it. 
There has been a philosophy in the Federal courts, and it is a 
very important philosophy and this Committee ought not to 
reconsider it lightly or casually or on an ad hoc basis. The 
idea is that trial courts, trial courts, for very good reasons, 
trial courts tend to be local. The judges are drawn from the 
local community. They have the approval of the local senators 
or the State senators.
    Appellate courts in this country in the Federal system have 
been regional and national, regional for the circuits, national 
for the United States Supreme Court. It is a very important 
principle that ought not to be slighted or overlooked, and that 
is that you have regional interests in the application of 
facts, but when it comes to application of the law, you want 
regional consistency and you do want views from outside the 
State.
    I am very happy when Judge Kleinfeld comes and sits on 
California cases or when Judge Thomas does and our colleagues 
from Arizona. It is very important to have that and to continue 
with that. A single State circuit would go contrary to that 
long-established principle. I would beg this Committee not to 
do so without a very careful thought to it.
    Chairman Sessions. [Presiding.] Well, it is a big circuit. 
California is a big State. Some call it a nation-state. It is 
further from San Diego to San Francisco than it is from Mobile 
to Atlanta, and maybe further culturally, I don't know. We have 
got a whole bunch of circuits on the East Coast. We have got 
several on the Gulf Coast.
    I think these things don't make much sense to me, frankly. 
I think it is just angst. There was a lot of angst when they 
split the Fifth Circuit. It went on, every kind of fear and 
concern, voting rights were going to be denied, it was just 
awful, but somehow, it was done and everybody is so happy.
    Look at these numbers, Senator Feinstein. Now, I know this 
is a busy circuit. It has got 6,000 immigration cases. But 
trust me, an immigration case is not as big as a multi-
defendant conspiracy cocaine case or an antitrust case. Those 
can be handled in a larger number. But even then, the existing 
caseload per judge that is being handled is not the highest. 
The Ninth handles 560 per judge, which is large, but the 11th 
has 642. The Fifth has 567. And the Second has 524, and that is 
as of June 2005 from the Administrative Office of the Courts 
statistics.
    True, some others, you say that the 12th would not have 
that many judges, but it would be about 326, I believe. But 
here, the First Circuit has 314 per judge. The Third, 307. The 
Fourth, 355. The Sixth, 316. The Seventh, 337. The Eighth, 322. 
And the D.C. Circuit, which I have been trying to take a judge 
from--
    [Laughter.]
    Chairman Sessions [continuing]. Has 114, but they act like 
the roof is going to fall if you take one of their judges, but 
they only have 114 per judge and you have 560. But they say 
theirs are big cases.
    But anyway, so I think the numbers are important here. But 
I have--
    Judge O'Scannlain. Mr. Chairman, if I could just make one 
point with respect to that, and that is that perhaps the most 
successful circuit of all is your circuit, the 11th Circuit, 
which has the highest number of cases per judge. They have made 
the decision, they do not want additional judges because they 
feel to do so would be to affect their decisionmaking ability 
and to create precisely the kinds of problems we have been 
hearing about during this hearing. So they have elected to stay 
at whatever it is, 12 or 13 or something like that, and yet 
take a huge burden, which, God bless them, they do a terrific 
job. They have all of the same bells and whistles that we do, 
pretty much. There are differences, of course. But they are a 
much more efficient circuit than we are and their backlog, or 
at least their lag time, isn't as bad.
    I am glad you pointed out the disparity between the 
circuits, which run from 100-and-something to well over 600. 
The key to me when I hear all of that is that the 11th Circuit 
can do it with fewer judges and be very effective.
    Chairman Sessions. I know there perhaps have been 
ideological and judicial philosophy concerns about the Ninth 
Circuit. We know it is the most reversed circuit in the 
country. I think some of the reasons for that is not 
ideological, but as I think some of you suggested, these panels 
of three being selected out of a very large number, you have 
more likelihood of an aberrant panel than you would in a 
smaller court, perhaps.
    But at any rate, I am concerned about the size of this 
court. I think 28 judges is breathtaking. I would note that the 
bill that has been proposed would add seven new judges to the 
old Ninth Circuit and add no new judges to the 12th. So all the 
new judges in their proposal, which should be a pretty 
noticeable increase in judges and at least keep those caseload 
numbers more reasonable, perhaps, than they are today.
    I want to discuss this question of whether we are dealing 
with a court or the House of Lords.
    [Laughter.]
    Chairman Sessions. I mean, to have an en banc that 28, 35, 
51--well, 51 judges counting the senior judges, but an en banc, 
you would just have, say, 28 if you were fully stocked in the 
Ninth, would you share with me--I think, Judge O'Scannlain, you 
wrote, or was it you, Judge Tallman, that emphasized that 
most--the practical problems of maintaining uniformity, maybe 
the psychological pressures on judges to try to conform to a 
circuit that they can identify with, how that is impacted as 
you get larger and larger?
    Judge Tallman. Mr. Chairman, you are recalling, I think, 
both my oral and my written testimony from the April 2004 
hearing, where I laid out the case for why the limited en banc 
process has not worked very well. I know Judge Roll is prepared 
to address that in his testimony, as well. But there certainly 
is a practical limit to how many judges can effectively hear a 
case en banc.
    We are now, as you know, going to experiment starting 
January 1 with 15 judges, which I understand is about what the 
Fifth does when they sit en banc, but I also understand, and I 
believe Judge Tjoflat touched on this when he testified in 
April of 2004 that that was one of the deciding factors that 
pushed the judges of the old Fifth into agreeing that it was 
time to divide. They had an en banc hearing with 25, I think it 
was at that time, and it was just unmanageable. It was too many 
judges to try and wrestle with the issue effectively.
    Chairman Sessions. Perhaps--
    Judge Schroeder. Could I just respond?
    Chairman Sessions. I will say this, and then I will 
recognize you, that I am not aware in the Western world of a 
court this big, in the Western heritage of law that we have a 
court this big. It ceases--I think the question is, is it a 
court anymore? Is it just a vote, you know, some sort of who 
can get the most votes in this big to-do? So I think that is a 
legitimate concern.
    Chief Justice Schroeder, I will hear from you and then we 
will go to Senator Murkowski.
    Judge Schroeder. I just wanted to respond briefly with 
respect to size that we should keep this in perspective. There 
are fewer judges in the entire Ninth Circuit than there are in 
the State court system of Arizona. The former Chief Justice of 
the Arizona Supreme Court has testified previously--he was not 
Chief Justice at the time, but in opposition to a split of the 
circuit because in relation to other court systems in the 
court, we are not that big.
    Chairman Sessions. The Supreme Court of Arizona?
    Judge Schroeder. The Supreme Court of Arizona has five, but 
there are over 20 appellate court judges, intermediate 
appellate court judges in Arizona.
    Chairman Sessions. Well, we have those, too. I think we 
have nine on our Supreme Court, but as you said, I think 
traditionally it has been seven or nine. Some have had five. 
But I have never seen this one as large as the Supreme Court--
    Judge Schroeder. Of course, we are not a supreme court.
    Chairman Sessions. Well, that is true--
    Judge Kozinski. You could make us.
    [Laughter.]
    Chairman Sessions. Do you want to make that?
    Judge Kozinski. It is OK with us.
    [Laughter.]
    Judge O'Scannlain. Well, Mr. Chairman, we are indeed the 
court of last resort for something like 97.6 percent of all 
Federal appeals, at least in our circuit, and it is pretty much 
the same in every other circuit.
    Chairman Sessions. In our court of appeals, I don't know 
how they do the en banc.
    Judge Kozinski, and then--Senator Murkowski.
    Judge Kozinski. I think if you make us--
    Chairman Sessions. Senator Murkowski?
    Senator Murkowski. Mr. Chairman, before I begin my 
questions, I have got a question to you. I understand we have 
got a group of five stacked votes that have just begun. Can I 
ask what your intention is in terms of the second panel and 
what you--
    Chairman Sessions. My intention would be for you to, I 
guess, finish with this panel. I think we need for--these 
judges have come so far, I think we need to make it complete 
today.
    Senator Murkowski. OK. I appreciate that. I will be quick, 
then, with my questions.
    Judge Schroeder, you had indicated in your testimony the 
three reasons why it is imperative that we not move forward 
now. One of them was what we are facing with Katrina. The 
second was the immigrations appeals issues. And then the third 
you noted was the new litigation from bankruptcy reform and 
immigration reform.
    Last year, in April, I had also introduced legislation that 
would split the court. This was pre-Katrina, this was pre-
bankruptcy reform, although we were certainly talking about 
bankruptcy reform and immigration reform and the immigration 
cases are certainly escalating. I guess my question to you is, 
you are saying, not now. In your mind, is there ever a point 
when it is appropriate, when demographics or whatever issues 
within the court would merit a division of some sort?
    Judge Schroeder. Senator, I am not religious on the 
subject. I think that times change, that things happen. I think 
that if we have experience with a court of 35 or of 40 active 
judges, if we do have that experience and find that that is too 
large and that it should not function, we should reconsider. I 
think that we can always look at what we are doing and benefit 
from our own experience and from the possibility of change.
    As I have indicated, we have moved from a court of 11 on an 
en banc to 15 because we are trying to respond to criticisms 
that the 11 was too small. We--actually, our court liked the 11 
because we thought it was an efficient use of resources, but we 
want to respond to criticisms and to adjust, and we are willing 
to work to see what changes may be constructive. We will work 
with you, what changes might be constructive in helping us deal 
more effectively with the caseload.
    Senator Murkowski. I appreciate that openness and we do, I 
am sure, look forward to working with you and the others who 
have testified here today as we try to resolve these issues.
    You had also indicated--your comments were more to the 
stress on the administrative structure and I think, certainly 
in the presentation that I made and the Chairman here, our 
concern was more to the delay to the litigants, the justice 
delayed is justice denied approach. And I can appreciate that 
from an administrative point of view, we do need to be 
conscious of the costs. We do need to look to administrative 
efficiencies.
    But my constituents, again, are more concerned about when 
is my case going to be heard? We want to be able to answer to 
them and to respond to them.
    You have indicated that you had used to the court's benefit 
technology, and that is necessary and it is important, but I 
recognize that even with all the advantages of the technology 
that I have at my disposal, I still have to read my clips. I 
still have to read my briefs. I still have to do that work. 
There are things that technology cannot make efficient. All of 
you judges sitting there know that you have to do the 
listening, you have got to do the reading, and no amount of 
BlackBerrys or computers are going to speed that up.
    Have we gotten to the point where we have utilized t 
technology as much as we can, but still, because of the nature 
of our courts and because of the process that requires that we 
have a human brain to process it at the final outcome, how much 
more can we squeeze out of the Ninth?
    Judge Schroeder. Oh, we have learned to work smarter, 
Senator, and we have learned that when you have a volume of 
cases that have repetitive issues, that there are ways to deal 
with them that give adequate consideration, full consideration 
to those issues and yet still permit similar cases to, once the 
critical issue is decided, to be handled expeditiously. And 
there are ways that we have been able to do that and we can 
continue to do it.
    Other courts have done the same, because the volume of 
cases both in the State courts and the Federal courts has 
increased and we have adjusted to it and we have been aided 
greatly by technology and by new means of communication. But we 
also are very concerned, as Judge Kozinski has said, about 
maintaining very good relations with each other and I think we 
have superb relations with each other in the Ninth Circuit.
    Senator Murkowski. It makes you wonder, though, when we 
count cases, it is just one, two, three, four five. But, in 
fact, one immigration case might be very similar, an Alaska 
lands issue that relates to laws that judges who have an 
expertise in immigration cannot be possibly able to prepare in 
a quick time period and I think this is where some of the 
frustration lies, is that all cases are not equal in terms of 
counting for caseload purposes. You have some, as was 
mentioned, whether it is an antitrust case or whatever the 
issue is, where we are trying to say in looking at a caseload 
that a number is a number and that there is some equivalency 
there and I don't think that that is necessarily the situation 
that we are faced with.
    It is something that when we are looking to Senator 
Feinstein's concerns about how we get to parity with caseload, 
that might be something that we need to review, as well, is the 
types of cases that are coming to us. If the types of cases 
that are coming out of Arizona and California are 85 percent 
immigration-type cases, how does that mean we might want to 
account for and move those cases around? Any comments on that?
    Judge Kozinski. There is no doubt about it, Senator, that 
Arizona and Nevada have a great deal more in common with 
California than they do with Alaska. That raises the question 
of what sense it makes to have a circuit that starts out at one 
end of the Mexican border and ends at the other end of the 
North Pole.
    The beauty of the current Ninth Circuit is that there is 
not a single State that has a common interest with no one in 
the circuit. We have California. California has a border with 
Mexico, but so does Arizona. We have water problems, issues 
which I understand is not a big issue--
    Senator Murkowski. We want to solve your water problems.
    Judge Kozinski. Senator, you do that and you can take away 
a judgeship.
    [Laughter.]
    Senator Murkowski. Is that a promise?
    Judge Kozinski. But it is not a big issue in Montana. It is 
not a big issue in Alaska. It is a huge issue and a huge shared 
issue in Nevada, Arizona, and California.
    Timber, frankly, is not a big issue in Arizona, I don't 
think, but it is a big issue in Washington and Oregon--it is 
not in Nevada, either--and in California.
    The beauty of the current makeup of the Ninth Circuit is 
that all of us have to be experts in some areas. I am very 
proud to say that sitting right here at the front table and 
behind us, including Judge Kleinfeld, each of us, I think--and 
again, I don't want to brag for myself, but just to speak for 
my colleagues--I consider each of them an expert in immigration 
law. Now, this may seem a simple subject to you, but believe 
me, it is an intricate field that requires a great deal of 
expertise and a great deal of understanding. And each of my 
colleagues, and I hope I also include myself, is not simply 
just familiar with it, but actually knows it quite well.
    Now, I think it would be a great loss, and I think that 
experience learned from, in Judge O'Scannlain's case, 19 years 
on the court, Judge Kleinfeld, 15 years on the court, would be 
lost because there would not be very many immigration cases 
coming out of the 12th Circuit. What we are doing is then 
having a bunch of rookie judges deciding these cases. It may 
seem easier than your conspiracy cases and than your no-
conspiracy cases, but trust me, Mr. Chairman, they are hard. 
They are much harder than you would imagine.
    What we have in the circuit now, where each of the judges 
is a generalist and at the same time is an expert. But we have 
no case, no State that has a single interest that isn't shared 
by at least one other State. This is a strength, Senator. This 
is a strength we should not give up.
    Senator Murkowski. Let me ask you just very quickly down 
the line--
    Chairman Sessions. Go ahead, if you will be brief and--
    Senator Murkowski. I will be very quick and I will ask 
everyone to, as well.
    Chairman Sessions [continuing]. If you ask your question 
and the answers will be brief--
    Senator Murkowski. You all have years and years of 
experience on the bench. Since coming to the Ninth Circuit, 
what has the increase in caseload done to your quality of life? 
Judge Schroeder, we already know that you are giving up your 
anniversary to be here to testify and we do appreciate that, 
but what does it mean to your day?
    Judge O'Scannlain. Well, a very practical answer in my 
case, I came on in 1986 when we were doing about 180 cases per 
judge per year, which meant that I was responsible for about 60 
decisions, 60 opinions per year in the late 1980's. Now, we are 
well past 500 cases per judge. We have tripled our productivity 
and we have enormously expanded the amount of time that it 
takes to get to maintain that.
    The one thing that I will say is common to this court, but 
it is no different to any other court, is that I think we have 
an enormously strong work ethic and we really work very, very 
hard to try to bring those numbers down. That is why it is so 
embarrassing for us to be known as the slowest circuit in the 
country, because it is not from any lack of effort on our part, 
at least in terms of the judges that are here now.
    The problem is the load. It has tripled in my lifetime. If 
you go back to Judge Browning, who was appointed in 1960, it is 
probably a tenfold increase in load.
    Senator Murkowski. So yours has tripled?
    Judge O'Scannlain. Yes.
    Senator Murkowski. Judge Tallman?
    Judge Tallman. The biggest supporter of the split is my 
wife and it is because she never sees me. I travel, on average, 
between case and court Committee work, at least half of each 
month, two out of 4 weeks. And the caseload has increased by 70 
percent in the 5 years that I have been on the court, 2000 to 
2005. You bet that has an adverse impact on the family life of 
our judges. There is a limit, there is a breaking point beyond 
which machines cannot replace human endurance and families 
suffer. I know your families pay a high price, as well, for 
your sacrifice.
    Senator Murkowski. Did you say you live in Seattle?
    Judge Tallman. I do.
    Senator Murkowski. And yet you said you only had 5 days 
last year--
    Judge Tallman. Five days. I sat hearing cases in Seattle 5 
days last year. The rest of the time was in California or some 
other part of the circuit, and that does not make my wife very 
happy.
    Senator Murkowski. Judge Schroeder or Kozinski?
    Judge Schroeder. The tip of the iceberg is the time that we 
spend in court hearing cases, because we do our work in the 
chamber, and the court does not sit in Phoenix, so I spend all 
of my time in hearing cases outside of my home chambers, but I 
am able to do that because I am able to travel and I have 
learned to do it.
    I regard it as the greatest honor and privilege one can 
have, to be a United States Circuit Judge. I regard being a 
United States Circuit Judge of the Ninth Circuit as the best 
job that the law has to offer. I regard the diversity of the 
geography, the people, the joy of working with colleagues who 
are smarter than I am is wonderful, and one of the greatest 
experiences I have is when I am able to travel to Alaska. I 
have done so with my husband several times. It is a wonderful 
place and it--
    Chairman Sessions. Judge Schroeder, our vote is down to one 
minute, I think--
    Judge Schroeder. Excuse me.
    Senator Murkowski. Thanks for the compliment. I appreciate 
it.
    Chairman Sessions. and they are not going to carry them 
much longer. They are getting serious. Obviously, we don't 
think they are real serious, but they are more serious, and so 
the extra time that we sometimes have--and Judge Kozinski, 
thank you--
    Judge Kozinski. My answer is very simple. When I got 
appointed 20 years ago, I got about 4 hours' sleep and I still 
get about 4 hours' sleep. I insist on it. I don't care how hard 
the work is. I am going to get my 4 hours no matter what.
    [Laughter.]
    Chairman Sessions. One thing I would note under the bill as 
I see it that Senator Murkowski has proposed, a new Ninth 
Circuit, yes, the new 12th Circuit would have 340 cases per 
judge, but the new Ninth Circuit with their new judges would 
have its caseload fall from 560 to 511, and that would not be 
out of line with at least half a dozen other circuits.
    I wish we could continue this. Our other panel, let me tell 
you, sometimes we have been able to work back and forth between 
the votes. I don't think--they are keeping the time tighter 
now. We are supposed to have five votes. That can mean almost 
an hour. Our goal would be to be back here in about 45 minutes 
to have the next panel, but I am sure it will be at least 30 
before we get back. I apologize.
    [Recess.]
    EVENING SESSION[6 p.m.]
    Chairman Sessions. The Committee will come to order.
    That spasm called a series of votes took longer than it 
should. While Senator Murkowski and I were working away, they 
were voting and we missed the first of the votes. It wasn't 
close, it didn't affect any outcome, so you have to get there. 
But then they slowed down. If they had moved on at that same 
speed, we would have been here sooner and I apologize very much 
for interrupting what has been a remarkably interesting and 
important hearing, I think.
    So we have our second panel. Senator Feinstein told me she 
will be here. She was just voting when I was and perhaps some 
of our other members will be able to return.
    On this panel, we will gain more insight into the Ninth 
Circuit as we will explore the possibility of housing a new 
12th Circuit in Phoenix, again, without having to build a new 
courthouse to do so.
    We will hear from four witnesses. The first witness will be 
Judge Andrew Kleinfeld, appointed to the Ninth Circuit in 1986. 
Judge Kleinfeld traveled all the way from Fairbanks, Alaska. I 
saw Senator Stevens just a moment ago and told him you were 
here.
    The second witness will be District Judge John Roll, 
appointed to the United States District Court in Tucson in 
1991, and we will hear from Judge Sidney R. Thomas, appointed 
to the Ninth Circuit in 1995, and from Chief Judge Emeritus 
Marilyn Huff, appointed to the U.S. District Court for the 
Southern District of California in 1991.
    Senator Murkowski, we are glad you are here. Thank you for 
coming back.
    Judge Kleinfeld, we will start with you, and we will try to 
keep this to 5 minutes. It is getting late. But if you need 
time to wrap up, that will be all right.

STATEMENT OF ANDREW J. KLEINFELD, CIRCUIT JUDGE, U.S. COURT OF 
        APPEALS FOR THE NINTH CIRCUIT, FAIRBANKS, ALASKA

    Judge Kleinfeld. Thank you, Mr. Chairman. I very much 
appreciate your inviting us and allowing us to be heard on 
this, and I am especially proud and grateful as an Alaskan to 
see my fellow member of the Alaska Bar Association, Senator 
Murkowski, in this august body. I really appreciate it.
    The basic theme of my colleagues who oppose a split is if 
it ain't broke, don't fix it. It has been just the way it is 
since 1891, except that we added Hawaii to it, and that is not 
that long a time and nothing much has changed that requires a 
change of the Ninth Circuit.
    My basic theme is, there is no reason to hold the other 
States hostage to California. California is so big that it 
cannot be part of a traditional appellate court. Any appellate 
circuit that California is a part of has to be different from a 
traditional appellate court. There is no help for that, but 
there is no reason to impose it on everybody else.
    The big question, I guess, if you are trying to decide 
which advice to take is, is it broke? Has anything changed 
since 1891? Well, five Supreme Court Justices, disinterested 
persons who are more expert than anyone else in the quality of 
our work, say that it is broke, the late Chief Justice 
Rehnquist, Justice O'Connor, Justice Scalia, Justice Stevens, 
and Justice Kennedy, who served on our court. Now, that is a 
very broad spectrum of the Supreme Court. There is nothing 
ideological about that group of five.
    What I think is notable to them is not even the rate of 
reversals, but the rate of nine-zero reversals. If a court gets 
reversed five-four, there may be philosophical differences. 
When you get reversed nine-zero, that is not a philosophical 
difference, that is a mistake, and we are a real leader in 
nine-zero reversals. That is a bad thing.
    The White Commission also said that, after its considerable 
study, the Ninth Circuit was too big to be a practical 
appellate body. It recommended that for appellate 
decisionmaking purposes, the Ninth Circuit be divided into 
three divisions. My impression is that the White Commission 
report--I don't really know anything about politics and you do, 
but my impression is that it was dead on arrival because it 
proposed to split California and it was terribly complicated, 
but they just didn't think it was practical to have such a big 
circuit all sitting together.
    Judge Richard Posner of the Seventh Circuit did one of 
those quantitative economics analyses that he is famous for and 
concluded and demonstrated in his article about it that the 
high error rate of the Ninth Circuit, and by error, he is 
thinking nine-zip reversals, is caused by excessive size. He 
looked at all courts, and basically, bigger court, more 
mistakes.
    Why? It is plain and simple. We are too big to rehear cases 
en banc and we are too big to read each other's decisions. What 
Senator Murkowski said is absolutely right. The technology 
doesn't do you any good. The problem isn't getting it into our 
computers, it is getting it from our computers into our heads. 
They say your head size grows when you become a judge, but it 
doesn't grow enough to hold everything that is coming from all 
the other judges.
    I suggest to you that the draws on our court, combined with 
its size and its partial en banc, make the law a game of chance 
in the Ninth Circuit and law should not be a game of chance, 
and the Supreme Court can't fix our mistakes. Eighty cases a 
year, their docket, isn't enough to fix whatever mistakes are 
in 8,000 decisions of the Ninth Circuit. Too many balls are 
flying at them.
    As for how to split it, my own view is you have got two 
choices. You can split it into two like the bill pending and it 
is just like the split of the Fifth into the Fifth and the 
11th, perfectly practical, but we will be back because Nevada 
and Arizona are growing so fast.
    You can split into three, Alaska, Washington, and Oregon in 
one circuit and the remaining States in the other, or you could 
add Montana and Idaho to the Northern Circuit. It doesn't much 
matter. Adding them to the Northern Circuit makes some sense 
because Arizona and Nevada are the fastest growing States in 
the country. If you do that, then both of those circuits become 
very much like the Tenth Circuit in size.
    Senator Feinstein is right that California needs a lot more 
judges. We need 21 judges for California's caseload now. We 
asked for ten in the fall of 1992, after asking for zero in 
1990. In the fall of 1992, we asked for ten. Our caseload is 
vastly greater than it was then. But it can't be a traditional 
court with so many judges. It is just an address list or a data 
base from which you draw courts.
    Even though it has to be different from the other circuits, 
there is no reason that the law and the legal system has to be 
different in all those other States. What is worse is, if you 
try to keep everything together, it can't be done right. Right 
now, a judge on the Ninth Circuit sits in Alaska about once in 
eight years. There is no way that a Ninth Circuit judge can be 
sufficiently knowledgeable in the unique Federal law applicable 
to Alaska, sitting that infrequently. The Alaska National 
Interest Lands Conservation Act, the Alaska Native Claims 
Settlement Act, Indian law is totally different in Alaska from 
every place else. It can't be done. The cases are especially 
big and complex.
    And as for the size, I can't even call people in Phoenix on 
the phone for a lot of the day because there is a 1-hour time 
difference and a 2-hour time difference for half the year.
    Finally, to wrap up, I have never understood why this is so 
controversial. We are not talking about seceding from the 
Union. This is more like splitting up a regional office of the 
Veterans' Administration. If Congress split a regional office, 
you would expect some squawks from the present and the future 
regional administrators, whose fiefdoms were reduced, and from 
people who feared a RIF or a relocation. But if it was a good 
idea for the veterans, you would do it.
    This is a good idea for America, and it is entirely up to 
you. The stuff about how you are attacking judicial 
independence, it is nonsense. It says right here in the 
Constitution that the judicial powers for cases and 
controversies, and it says that the power to ordain and 
establish inferior courts is Congress's. You don't need our 
advice and consent.
    So I urge you to do it. It has been 114 years. It is about 
time, now that those other States have filled in population, 
lots of it, that they have a traditional appellate court to go 
to.
    [The prepared statement of Judge Kleinfeld appears as a 
submission for the record.]
    Chairman Sessions. Thank you.
    We did go over, so if you could stay with us on the time. 
Judge Roll?

STATEMENT OF JOHN M. ROLL, DISTRICT JUDGE, U.S. DISTRICT COURT, 
              DISTRICT OF ARIZONA, TUCSON, ARIZONA

    Judge Roll. Good evening, Mr. Chairman and Senator 
Feinstein and Senator Murkowski. First of all, on behalf of all 
the members of the panel, I want to express our appreciation 
for the chance to be heard. I know that the first panel was 
very invigorating and I know what an inconvenience it had to be 
to come back and hear us and we appreciate the opportunity to 
speak to you.
    I am John Roll. I am a District Judge in the District of 
Arizona. I am next in line to become Chief Judge. That will be 
next year. Attached to the materials that I submitted in my 
written testimony is a letter from former Chief Judge Robert C. 
Broomfield, and he joins with me in strongly supporting the 
formation of a new 12th Circuit Court of Appeals.
    He also adopts the conclusions contained in the report 
concerning available space for courtrooms in Phoenix. There are 
two courthouses in Phoenix, the Sandra Day O'Connor Courthouse 
at 401 and the 230 North First Courthouse in Phoenix. Both of 
those courthouses have adequate room to house a circuit 
executive's headquarters immediately, for the immediate future. 
There is not a need to construct new courthouses, and the 
significance of that is, of course, the figures from the 
Administrative Office which were offered earlier today describe 
the need for an $84 million new courthouse in the event of a 
circuit split.
    For the short term and even likely for the mid-term, that 
is not true. For the long term, of course, the West is growing, 
and as one witness has already mentioned, Nevada is the fastest 
growing State in the country by percentage and Arizona is 
second, so there will be growth that will ultimately require in 
the long term, perhaps, a new courthouse, but not in the short 
term.
    Judge Browning, another former Chief Judge from the 
District of Arizona, testified before you 6 years ago. In his 
testimony, he said in his work with the White Commission, he 
repeatedly asked split opponents, how big is too big, and when 
Judge Browning testified before you 6 years ago, the population 
in the Ninth Circuit was 51.4 million people. It is now 58 
million people. When Judge Browning testified before you 6 
years ago, the caseload of the Ninth Circuit was under 9,000. 
It is now about 16,000 cases. When he testified, the median 
time for decision was 14.4, and it was among the slowest. It is 
now the slowest at 15.4 months.
    When he testified before you, there were 28 circuit judges 
that were authorized for the Ninth Circuit. There are still 28, 
but another seven are being requested and really are needed. If 
seven more are added, the Ninth Circuit will become three times 
the size of the average circuit, active judge circuit size for 
the other circuits.
    This creates some problems, all related to the limited en 
banc, and I would respectfully submit and incorporate my 
comments on that. I think that it is structurally flawed. The 
limited en banc results in only 11 judges sitting. It will be 
15 after the first of the year. The votes, as I included in my 
appendix to my testimony, indicate that currently, since the 
White Commission, one-third of the en banc votes are by six-to-
five or seven-to-four votes. That means six or seven judges are 
speaking for a court of 28. When 15 judges sit, it will be 
eight or nine judges speaking for a court of 28.
    It results in some odd results. First of all, because 
whether a case goes en banc is determined by whether a majority 
of the judges on the court vote for the case to be heard en 
banc. Our court is so large, it takes 15 votes for that to 
happen. There weren't 15 votes for medical marijuana, for 
euthanasia, for any number of other cases that I point out and 
they were never heard.
    There is, in fact, a recent case, the Bactine v. Bayer 
case, that was recently decided by two-to-one. There was a 
ruling by a panel that the Supreme Court's Crawford v. 
Washington case would be retroactive. Nine judges, including 
four circuit judges who appeared before you here today, voted 
for rehearing. They said five other circuits have looked at 
this already and they have concluded it is not retroactive. We 
should take this en banc. They didn't have enough votes. It 
will probably become one of the latest cases by the Supreme 
Court to be unanimously reversed when it was decided by a panel 
but never heard by the full en banc.
    Justice Kennedy in his letter to the White Commission said 
a circuit that wants to be outside the normal scope of a 
regular circuit court in the United States should bear the 
heavy burden of showing that, in fact, there is a reason for 
that, that there are compelling reasons, and Justice Kennedy, 
who served on the Ninth Circuit, said there has been no such 
showing.
    If the Senate and the House leave it up to the Ninth 
Circuit to decide when it is time for a split, I submit that, 
as Judge Browning said, when will a circuit be too big? The 
answer from the circuit will either be never or the answer will 
be, we will tell you, and respectfully to the Ninth Circuit, it 
is not a Ninth Circuit decision. It is a Congressional call. 
Thank you.
    [The prepared statement of Judge Roll appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge.
    Judge Thomas?

  STATEMENT OF SIDNEY R. THOMAS, CIRCUIT JUDGE, U.S. COURT OF 
        APPEALS FOR THE NINTH CIRCUIT, BILLINGS, MONTANA

    Judge Thomas. Thank you, Mr. Chairman. I want to also thank 
you and the other Senators for coming back from the vote. We 
appreciate your time today and also appreciate the extra time 
you are giving.
    My name is Sid Thomas. I am a Circuit Judge. I have 
chambers in Billings, Montana. I presently serve as the en banc 
coordinator for the Ninth Circuit, the death penalty 
coordinator. I sit on the Executive Committee. As I testify 
here, my views are, of course, my own.
    You have my written testimony and I will not repeat that, 
but I did want to address a couple of issues today, and I want 
to take perhaps Senator Kyl's challenge to step back a bit and 
see what kind of judicial administration we want for the--how 
to administer justice best in the West. If you look at the data 
and step back, I think you will find that the Ninth Circuit, 
and a large circuit, is the best way to administer justice 
effectively.
    There has been a tremendous change in the case mix of the 
Federal courts, not only in the Ninth, but in particular the 
Ninth, over the last 20 years. It used to be that population 
growth and caseload growth were correlated. They are not. In 
fact, you take away the immigration cases, our caseload has 
actually decreased in the last 5 years. Every other category of 
cases is decreasing. Partially, that is due to reforms from 
Congress in the Prison Litigation Reform Act, the Anti-
Terrorism Act, and others. But the fact is, the caseload is 
decreasing in the Ninth Circuit that is non-immigration-
related.
    For some areas of the country, this has been a long-term 
trend. In the Northwest, it has been completely flat for about 
20 years. It has not increased, even though the population has 
increased.
    The reason is that we have a lot more ``pro se''s filing. 
We have a lot more administrative appeals. So we cannot assume 
for the future that we are going to have population increase, 
caseload increase justification for additional judges.
    What the case mix now means is that we need to have a 
strong central staff to engage in triage and let judges do 
judging. If the Ninth Circuit is split, we will take valuable 
resources, we will replicate them, we will significantly 
increase delay. We will not solve delay. Let me explain why 
that is.
    Right now, 80 percent of our cases are dealt with through 
non-judicial panels, that is, cases processed through our staff 
attorneys. The Ninth Circuit, because it has been able to 
aggregate resources, has saved judges an enormous amount of 
time in ways that other circuits have been unable to duplicate. 
Let me give you a couple of examples.
    We have an appellate commissioner. No other circuit has 
that because they can't afford it. The appellate commissioner 
resolved 4,600 motions that would have been heard by judges 
last year, about 1,200 fee petitions.
    Our circuit mediators resolved about 900 appeals. Now, to 
put that in context, the entire output of the D.C. Circuit on 
merits cases was 500 cases last year. Our mediators resolved 
900 cases, and they enjoy success much greater than any other 
circuit because they have critical mass.
    Our staff attorneys resolved 6,000 procedural motions, and 
that is done by triage to make sure that we don't have 
procedural waivers, by focusing in on that. That centralized 
staff is critical to handle volume.
    If the Ninth Circuit is divided, no matter how it is 
divided, those resources will be lost, and we know that because 
we can look at other circuits and see what kind of staff 
resources they have. We track cases by inventory, and so 
therefore when a precedential case is made, we have resolved up 
to 200 cases at a time. No other circuit has that sort of 
resource.
    So what is the issue now? We are looking at delay. The 
Ninth Circuit hasn't been the slowest circuit over the last 10 
years. The Sixth Circuit generally has, and the Second Circuit. 
The White Commission found that delay is not related to size.
    Our delay problem started in the early 1990's when a third 
of our court was vacant. We built up a delay in that period 
that Senator Kyl was talking about between submission of briefs 
and oral argument. We were able to bring that fairly current 
until the onslaught of immigration cases. Immigration cases 
have increased 570 percent in the last few years. As I said, 
our other caseload has only increased 1 percent.
    If you take the resources available to us and you divide 
them and you strip them, it is sort of like if you have a 
restaurant where you have a slow wait staff and you think the 
solution is to divide the restaurant, hire more chefs, fire a 
lot of the wait staff in the kitchen, it is going to be slower. 
It will be significantly slower in terms of delay.
    So I think we need to put this in a broader context and 
look at the assets. Now, can we do things better? Of course, we 
can. If you take a look at spot delays, for example, if you 
take the States of Montana and Alaska with low caseloads, we 
can eliminate the spot delays in those areas fairly quickly, 
and those are solutions we can do without restructuring the 
Ninth Circuit.
    But what will happen with the Ninth Circuit is you won't 
solve any of the problems. We will still have a limited en banc 
system in California because that will have over 20, 25 judges. 
You will still have all of the other attendant problems that 
people are discussing today. You won't have solved anything.
    The better approach is to, I think, reinvent the judiciary, 
make it more effective. We try to do that every year. We try to 
be responsive to what your concerns are and we certainly want 
to work with you in the future. But I think for the present, if 
you look at the data carefully, it only supports keeping the 
Ninth Circuit together. Thank you, Mr. Chairman.
    [The prepared statement of Judge Thomas appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Thomas.
    Judge Huff?

   STATEMENT OF MARILYN L. HUFF, CHIEF JUDGE EMERITUS, U.S. 
  DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO, 
                           CALIFORNIA

    Judge Huff. Thank you. Last but not least, I am Marilyn 
Huff, the former, immediate past Chief Judge of the Southern 
District of California District Court and I am also speaking 
for our current Chief Judge, Hon. Irma Gonzalez. Together, we 
oppose the split of the Ninth Circuit because the split will 
reduce resources for the district courts, hurt administrative 
sharing, result in a waste of taxpayer money, and further 
splinter enforcement of our borders.
    There is a reason I am passionate on the resource issue. 
Senator Feinstein knows me well, as perhaps many of you do on 
this issue.
    Senator Feinstein. May I interrupt you for just a moment? I 
didn't have a chance to introduce Judge Huff. She is a bright 
star. She is an amazing judge. I have had occasion to talk with 
her and to watch her and California is very proud of her. I 
just want you to know that.
    Judge Huff. Thank you. I share the respect for Senator 
Feinstein because she is right on this issue. This is lose-lose 
on the resource issue, and this is why.
    Our court already experienced a tremendous increase in 
caseload and then a tragic loss of judges due to illnesses and 
death and we clamored for help. We were forced to rely on 
volunteer judges, which is the proposal of this split. The 
volunteers are helpful, but you can only do crisis management 
with volunteers. You can do no long-term planning and it 
doesn't work.
    The split proposals, all of them, end up with 72 percent of 
the work in the circuit with California, and so the split is 
not fair and it is not equitable. Because of our experience, 
this is a problem.
    Next, splintering enforcement of our borders. We share the 
border with Arizona. This would only further exacerbate the 
problems. Right now, Border Patrol can bring cases either in 
Arizona or in California and we have an administrative sharing 
agreement. That, on one of the split proposals, would go out 
the window.
    Next, the issue of administrative sharing. Because of size, 
the Ninth Circuit has actually done some positive things. The 
Jury Committee, one of our critical components, improving 
service for jurors. Our Capital Case Committee has saved 
millions of taxpayer dollars by instituting rigorous case 
budgeting requirements for the lawyers. It has been wonderful. 
Our Fairness Committee has promoted equal justice of the law. 
And then finally, we believe our Wellness Committee has 
resulted in promotion of health for our most important 
resource, our people.
    And then, finally, the issue of cost. Because we are going 
to end up with too many cases, 72 percent of the cases in one 
circuit, then it is going to unnecessarily waste taxpayer funds 
to duplicate the administrative staff necessary to handle a new 
circuit.
    So in conclusion, I believe that it is improper at this 
time to have a split of the Ninth Circuit and I note that I am 
ahead of my time.
    [Laughter.]
    Chairman Sessions. Thank you very much, all of you.
    [The prepared statement of Judge Huff appears as a 
submission for the record.]
    Chairman Sessions. I guess I want to say, everybody has got 
numbers and everybody has facts. I remember one time in Alabama 
there was a dispute within the Republican Party about whether 
the Presidential electors should be given based on a winner-
take-all or a proportional representation. We heard the other 
day California is still winner-take-all. So they had this big 
fight and they made the most eloquent arguments. But when it 
was over, everybody that was for Ronald Reagan voted for 
winner-take-all because they knew he was going to get the most 
votes, and everybody that was for George Bush voted the other 
way because they wanted at least a few of the votes. I don't 
know why that made me think of that.
    [Laughter.]
    Chairman Sessions. I almost want to say, why are you really 
for splitting and why are you really against splitting?
    Let me ask a few questions and I will pass on my time. 
Judge Thomas, both you and Judge Huff say that you think 
somehow there would be--you say in your written statement there 
would be an increase in delays and a reduction in access to 
justice.
    Judge Thomas. Yes.
    Chairman Sessions. That did not happen when the Fifth 
split, and, in fact, they have the most efficient circuit, the 
11th and the Fifth, too, are two of the most efficient, 
productive circuits there are, both of which, if I am not 
mistaken, the Fifth has 567 case per judge, more than the 
Ninth, and the 11th has 642 cases per judge, 40 percent more 
than the Ninth Circuit per judge.
    So I guess I am going to ask you really honestly, why do 
you all think this is going to be some bureaucratic, expensive 
deal?
    Judge Thomas. Well, I do really believe that and it is not 
a partisan issue on our court. On a bipartisan basis, the vast 
majority of our judges want to keep the circuit together and we 
are talking appointees from Kennedy through Carter through 
Reagan, Nixon, and George Bush.
    Chairman Sessions. But is it all because of money?
    Judge Thomas. No, it is not just all--and the reason, if 
you look back to what happened when the Fifth was split, as I 
mentioned, the case mix was so different. Every case was 
argued. Every case was a real case. Now, 40 percent of our 
cases are pro se and it takes a lot of staff to get through 
those cases. If you have a pro se case in chambers, it takes a 
lot of time for judges and for the law clerks, the available 
law clerks. We have an effective pro se unit and we require 
every pro se case to go through that. That is 40 percent of our 
cases. That is about 5,000, 6,000 cases last year in the Ninth 
Circuit alone.
    So things are far different, and what I think the 11th 
Circuit figures suggest is that we have some room on our court 
to be even more efficient before you need to split. If you can 
get those numbers up, we still have a substantial reduction--
    Chairman Sessions. You want more judges, I mean--
    Judge Thomas. Well, we do, but, you know, it is not the key 
to get more judges. I think if--it is like too many chefs, 
really, at the restaurant. If you have more judges and they are 
forced to--
    Chairman Sessions. Well, why do you not want to split it? I 
mean, OK, you are saying we can be more efficient and we don't 
need a lot more judges. But what is it that causes you to draw 
back from what from my perspective is the perfectly logical 
thing?
    Judge Thomas. If it would solve the problems and if I 
thought it would, I certainly would support it. But, in fact, 
it is going--
    Chairman Sessions. What problems? I mean, I am just saying 
collegiality, coherence in your opinions, less reversals by the 
Supreme Court, perhaps more ability to hold--we heard from the 
Chief Judge--she is back there shaking her head, but we heard 
from the chief judges of the Fourth Circuit, the chief judges 
of the 11th Circuit passionately argue that they think 12, 13, 
is really getting large, and if you get much larger than that, 
you can't operate a court effectively, and they would never--
    Judge Thomas. They didn't have our experience, though. We 
are able to get along collegially quite well. I see my friends 
and colleagues much more than I do the district court judges 
who are across the alley from me. We talk all the time. We do 
have a fairly close-knit circuit. So despite those fears, we 
have--the 11th Circuit has survived because of their very heavy 
reliance on visiting judges. That is the tradeoff they made. 
They have a third of their published opinions involve visiting 
judges and they decided to expand that way, which, of course, 
is an option to us, but we haven't used visiting judges to the 
extent that the 11th Circuit has.
    Why am I really against it? Because I think we understand 
that if this is split, California and the Arizona-Nevada 
sections, we will be in such a deep hole, we can't dig out in 
our judicial lifetime, both administratively--
    Chairman Sessions. What do you mean, you can't dig out?
    Judge Thomas. The caseload. Right now, we are doing quite 
well with the caseloads, but if take away--
    Chairman Sessions. I have already gone beyond my time, so--
    Judge Thomas. But if you take away those essential tools 
that we have to deal with the case management now--
    Chairman Sessions. Why would they take those away?
    Judge Thomas. Because they aren't available. Those 
resources aren't available in smaller circuits. The judiciary 
budget is based on--
    Chairman Sessions. Well, let us stop there. Why would they 
take away what you have already got, and why would we take 
money from a district court that has no real--I mean, you are 
just going to try the same number of cases and they are going 
to appeal the same number and it is going to go up there. Why 
are you worried? I don't understand this.
    Judge Huff. Could I answer?
    Chairman Sessions. I think there is something more at stake 
here.
    Judge Huff. Could I answer that? Because of our experience, 
the formula for funding the judiciary primarily comes from 
number of authorized judges, not from your caseload. So if the 
California circuit has 72 percent of the cases, they will not 
get the same proportion of resources and so you are not able to 
then have staff--
    Chairman Sessions. What does that have to do with the 
District Court in the Southern District of California, your 
district?
    Judge Huff. If the circuit is--we care about delays of our 
caseload.
    Chairman Sessions. Well, all right. So you are speculating 
that they are not going to get enough, but this bill calls for 
seven more judges for the--
    Judge Huff. You could pass seven more judges tomorrow with 
delinkage, which the Judicial Conference says, don't link the 
two together.
    Chairman Sessions. OK. So that is what you would prefer. 
OK. My time is up and we have got--
    Judge Thomas. May I finish, just one quick additional 
answer--
    Chairman Sessions. All right.
    Judge Thomas [continuing]. Is that we have been talking 
about the circuit court, but I think Judge Huff makes an 
excellent point on the district courts because you are 
splitting up the district courts, as well, and from--
    Chairman Sessions. They don't work together. District 
courts don't--
    Judge Thomas. If I might, one of the reasons it is 
important to district courts is that we have the flexibility 
now, which you don't have with intracircuit--as easily with 
intracircuit honing of judges. We sent judges down to help out 
when they had problems in the border States in Arizona and San 
Diego. We were down to one active judge in Montana and we were 
parachuting judges in at the last minute, and we could do that 
because we would pick up the phone and people could call 
judges.
    On the other hand, dealing with another circuit is entirely 
different. The Tenth Circuit--Montana borders Wyoming on the 
Tenth and we border the Dakotas on the Eighth. We couldn't get 
any judges out of those circuits and they didn't want to come 
for a lot of reasons, but one of them is, well, they say that 
is different circuit law. It was too cumbersome to get through 
the administrative procedure.
    But because judges have relationships, they can pick up the 
phone and do it, and we know there are going to be spot 
problems, whether it is on the border States, whether it is 
caused by the Exxon Valdez, whether it is caused by simple 
judicial vacancies.
    So for the district courts, it has been a great resource. 
And the other thing for the district courts is smaller circuits 
don't have the resources in terms of courtroom management 
architects and so forth. In Montana, we have benefited greatly 
because we have a circuit architect who came in and said--
    Chairman Sessions. Well, those are reasons, but I don't 
know. I remember that one of the best judges we used to get was 
from California. He would come down to Mobile to try cases 
every year because he was a National Fellow of the Camellia 
Society, and when we had the camellias in season, he came down 
and contributed wonderfully.
    Judge Thomas. Yes. We entice people up with fly fishing in 
Montana.
    Chairman Sessions. People go all over the country, I know 
that. They go to Miami. They line up sometimes to go try cases 
there.
    But my time is over. Senator Feinstein?
    Senator Feinstein. Thank you, Mr. Chairman.
    See, this has become so difficult because the feelings are 
so strong about it and it is very hard to ferret it out. I 
mean, I have two concerns. One is, anyway, let us say 
California ends up with Hawaii, Guam, and the Marianas. It 
still is essentially one big State with 72 percent of the 
circuit, and even with the new judges, 60 percent of the 
resources. That is a problem that has to be worked on. That is 
unacceptable on its face.
    But the thought, Judge Thomas, that you would lose those 
appurtenances and technology and assets that you have as part 
of a split, I don't quite--how would that happen? I mean, you 
could draft a bill so that you keep them.
    Judge Thomas. Well, let me explain why, and that is because 
there is a formula that drives judiciary budgets and we know 
what circuits can afford and what they can't afford and we know 
what they can afford based on their size, and you look at what 
other circuits have been able to afford and what they can't. 
They have to fund essential services, clerks' offices, circuit 
executive offices, human resources, procurement, so forth.
    We have been able to aggregate resources and economize 
because we don't need to duplicate all of those positions. You 
look around the United States. No other circuit tracks cases in 
inventory.
    Senator Feinstein. So no other circuit--
    Judge Thomas. No other circuit tracks their cases with an 
inventory system. No other circuit has an appellate 
commissioner. No other circuit has the success of our 
mediator's office because they have some critical mass. So we 
do have a model and--
    Senator Feinstein. Could you put that in writing for me?
    Judge Thomas. Yes.
    Senator Feinstein. In other words, what the circuit 
believes they would lose that they have that is indispensable 
with respect to the 72 percent of the cases they would have.
    Judge Thomas. Well, sure. And then to go on, it is not just 
the caseload, too, it is the type of case, as you discussed 
before. The death penalty cases pose a significant resource 
problem for us and those would be inequitably distributed in 
any circuit split.
    Senator Feinstein. How many death penalty cases do you have 
in a year?
    Judge Thomas. Well, it varies from year to year, but I can 
talk in the aggregate because we can look in the future. 
Obviously, there are over 600 inmates on death row in 
California. There are about 125 in Arizona. There are perhaps 
70 in Nevada.
    If you look at the division of the death penalty cases 
alone between the different circuit configurations, if you take 
the present cases that are in the Federal system, 50 percent of 
the load would be California, 50 percent in Arizona, probably 1 
percent or so in the Northwest if you split it that way. Long-
term, you have got 60 percent or more cases--65 percent, I 
think, is the figure that will come out of California, 35 
percent or so in Arizona, and those cases by our weighting 
system are weighted 24. They are very complicated cases.
    So it is not just the caseload. There is a disparity in 
terms of case complexity and the resources needed to have that. 
We are fortunate enough to have death penalty law clerks and 
death penalty assistants. Judge McNamee and others, Judge 
Moskowitz out of your district, have monitored the budgets of 
those cases and they have saved us millions of dollars and that 
is on their own time, and those are the district judges who 
give of their time. Those are the kind of resources we lose 
because people just don't have time anymore, and that has been 
a tremendous cost savings.
    So, yes, it is going to be imbalanced on the death penalty 
side and also, I think it is going to be a lot more poorly 
administered.
    Senator Feinstein. So essentially, what you are saying is 
because of your size, you have built a system which is 
irreplaceable and on which you depend for any modicum of 
efficiency--
    Judge Thomas. Precisely.
    Senator Feinstein [continuing]. So that becomes important. 
Let me ask you another question. In terms of community of 
interests, are the community of interests between California 
greater with Arizona and Nevada or Oregon and Washington?
    Judge Thomas. I think it depends on the issue involved. Of 
course, California was the source of all of the law for the 
Ninth Circuit originally, so they started with the field code. 
But if you talk about, for example, the fisheries issue, the 
issues concerning--any of the coastal issues, California has 
more in common with those in the Northwest, going up to Alaska. 
If you are talking about Native American issues, those issues 
involve not only Nevada and Arizona, but in Montana. Alaska is, 
as Judge Kleinfeld said, somewhat different.
    Senator Feinstein. How do you respond to Judge Kleinfeld's 
argument that Alaska has issues that no one else shares?
    Judge Thomas. We all have issues that are unique to our 
States and we take time and a lot of study to make sure that we 
understand it because we are administering national law as it 
affects those issues. There are acts particular to Alaska, to 
be sure, but we are administering and interpreting national 
statutes.
    Senator Feinstein. How about water in terms of the 
community of interest?
    Judge Thomas. Well, there are water issues in Montana all 
the way down through. The water is a critical issue that 
unifies the States. Grazing issues, forestry issues, we have a 
lot of issues in common among the States in the West that 
aren't shared perhaps in the East but are common to all of our 
States. And so the resolution of those issues in California or 
Arizona or Nevada or Montana are very important and needs to be 
consistently applied.
    Senator Feinstein. My time is up. Thank you. Thank you very 
much. Thanks, Mr. Chairman.
    Chairman Sessions. Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    I want to continue along the line of questioning in terms 
of the resources and the concern that if we were to split, 
there would be a loss of resources. Under the legislation that 
I am proposing, the new Ninth, which California would stay, 
would still be the largest circuit in terms of caseload, in 
terms of population area, and in terms of judges. So we are 
going from a situation of being really, really, really big to 
just being really big.
    But you still have access, and I appreciate how the formula 
works. It is complex and we are not going to try to explain it 
here other than to acknowledge that there is a formulaic 
equation that is out there and the authorization of the judges 
is very critical in terms of the funding. But you would still 
be the court or the circuit with the highest authorized number 
of judges, and from what I have heard, Mr. Chairman, I think if 
there is one thing that both the proponents of a split and the 
opponents of a split can agree to is that more judges in the 
areas of the country where we are growing the fastest would be 
helpful and it is something that we should work to do.
    I appreciate what you are saying about the complexity of 
the cases and it goes to my point to the first panel that we 
really just can't count the number of cases in looking at a 
caseload, that there is a weighting that would be appropriate 
depending on complexity. I think it again goes to the issues 
that we have before us. We can't just look at the pie charts 
and the graphs and say, well, this is what we need to do. It is 
complicated. It is complex.
    But I guess I will be leaving this hearing today with three 
kind of findings that I have written down, and I think you 
articulated this, Judge Roll. Is it broke? I think that there 
are enough people in the Ninth Circuit and across the country 
that are looking at this and saying, yes, it is broke. I do not 
feel good telling my constituents that it is an accepted fact 
that, on average, you will have to wait 15-plus months for 
disposition of your case and that is just the way it is because 
we happen to live in the West. I don't think we should accept 
that as a given. I think we should try to do better. So how do 
we do better?
    And then the second thing I am walking away with is, how 
big is too big, because I did hear Chief Judge Schroeder say, 
maybe we are not there yet, but that she would retain an open 
mind that we might 1 day get to that point in her opinion where 
it was too big, too unwieldy. But when we are at a circuit that 
is at 58 million and growing, and if we were to split that 
circuit, you still have a circuit that has close to 38--it is 
37.5 million in the new Ninth and 20 million in the 12th. The 
numbers, I think, are staggering, in my opinion.
    And then the third point that I am leaving with, Mr. 
Chairman, is certainly the recognition and the need to do more 
to assist to get additional judges out in the West.
    I am talking rather than asking a question and I think we 
are probably at that point in the evening where we are ready to 
call it a day, but I thank you for the hearing this afternoon, 
and to each and every one of you that has traveled so far and 
who gives so much, who gives so much to your State, to your 
circuit, to this country, I really appreciate what you do. I do 
hope that we are able to sit down and really evaluate what the 
options are. If this split doesn't work, doesn't make things 
better, then let us look at other options, but let us not just 
close the door and say, no further discussion. I think that 
this has been very productive and I appreciate the testimony 
that we have heard.
    Thank you, Mr. Chairman.
    Chairman Sessions. Thank you, Senator Murkowski.
    I would just like to ask a couple of quick things before we 
wrap up. Judge Roll, you studied, I know, carefully the Hruska 
and the White Commission reports. Would you share with us your 
comments, particularly as they relate to Judge Thomas' 
evaluation of those reports? Do you have a different 
perspective on them?
    Judge Roll. I do, Mr. Chairman, and I believe that it was 
also referred to in one of the other written statements in 
opposition to the split. Senator Hruska's commission 
recommended a split of the Ninth Circuit. This was previously 
recommended. This was in 1973. They recommended two splits, the 
Fifth Circuit and the Ninth Circuit. Only the Fifth Circuit 
ended up being split.
    The White Commission recommended three semi-autonomous 
divisions. I think it is important to recognize that Chief 
Judge Hugg, who was the chief at the time that the White 
Commission's report was issued, said this is a de facto split 
of the Ninth Circuit and there is no reason, there is no need 
to do this. The White Commission, in fact, Judge Hugg wrote, 
and I think it was the University of California-Davis Law 
Review article that was published in the winter of 2000, said 
the White Commission didn't meet its burden in showing that we 
needed to make these changes.
    I think it shows two things. First of all, I think it shows 
that the White Commission was not a clean bill of health for 
the Ninth Circuit and, in fact, recognized there were serious 
problems. I think it also represents the attitude of some of 
the people who oppose the split, which is we will tell you when 
it is time for a split of the circuit.
    Chairman Sessions. It is interesting, and I believe it was 
Judge Kleinfeld or one of the other witnesses--the day is 
long--that indicated that the Judicial Conference has moved 
from opposing the split to being neutral on the split, is that 
correct?
    Judge Roll. That is correct.
    Judge Schroeder. No, it has never opposed the split.
    Chairman Sessions. Oh, it has not opposed it?
    Judge Schroeder. It didn't take a position.
    Judge Roll. I am sorry, Senator. My recollection is, and I 
believe that it is cited in the materials, the Judicial 
Conference previously did oppose a split. It is in the White 
Commission report. If you look in the White Commission report, 
it indicates that the Judicial Conference opposes a split. That 
is my recollection.
    Judge Kleinfeld. I think they said no court should be split 
without its consent, but this time, they said--
    Chairman Sessions. They read the connotation subsequent to 
that?
    Judge Roll. Yes.
    Chairman Sessions. Let me ask you, Judge Roll, about a 
housing plan in Phoenix. Your Appendix E is very helpful on 
that subject. It lays out four alternatives that could be 
pursued at very little cost. You also include your letter from 
Judge Broomfield, which agrees with the findings of the housing 
plan alternatives report. Why would Judge Broomfield's report 
be worthy of particular weight?
    Judge Roll. Well, Judge Broomfield was the Chair of the 
Space and Facilities Committee at the time that the U.S. 
Courthouse Design Guide was actually formulated and he is 
intimately familiar with it. As the presiding judge in Maricopa 
County on the Superior Court and also the Chief Judge in the 
District of Arizona, he has been involved in courthouse 
construction projects, including in the Sandra Day O'Connor 
Courthouse. And, of course, he has gained great familiarity 
with courthouse construction projects and courthouse needs 
through his work as the Chair of the Space and Facilities 
Committee.
    I can't imagine anyone deserving of more weight when he 
says, first of all, that there is available space in either 230 
or 401 in Phoenix, and secondly, that the estimates that were 
previously given about how much space was required are about 
20,000-plus square feet high.
    Judge Kleinfeld. Senator Sessions, could I add just a word 
to that?
    Chairman Sessions. Yes, and would you, if you would like to 
share a thought about the AOC's report--
    Judge Kleinfeld. I do.
    Chairman Sessions [continuing]. Which I thought 
breathtakingly tilted.
    Judge Kleinfeld. I do. I--
    Chairman Sessions. Would you agree with that?
    Judge Kleinfeld. Well, here is the thing. You have got a 
unique opportunity right now for an odd, coincidental reason. 
Three district courts in critical places--Seattle, Portland, 
and Arizona--have just moved into new courthouses. What that 
leaves you with is three empty or nearly empty courthouses in 
the critical places to put circuit headquarters, whether you 
split it two ways or three ways. You can do it basically for 
free, or close to it by Federal Government standards.
    [Laughter.]
    Chairman Sessions. Well stated.
    Judge Kleinfeld. If you look at page six of the AO's 
report, of the exhibits attached to it, here is the gem. Bottom 
line, $94,698,936. Line if you go up a ways, new courthouse 
construction, $84,394,500. You will need to do that if you 
split the Ninth Circuit in 5 years because those abandoned 
courthouses, either they are going to be filled up or they are 
going to be excessed. My chambers is in a former Federal 
district courthouse that was excessed. It is now commercial 
space. But if you do it now, you don't need to spend $95 
million. You can spend $5 or $10 million.
    Chairman Sessions. I also was frankly troubled by the fact 
they threw in the proposal of seven new judges, which are 
probably needed for the circuit anyway, as a cost of the split. 
I mean, I don't think you--so there are several things that 
made those costs look high.
    Judge Kleinfeld, tell me, as I understand it 
mathematically, there are 15,000 possible combinations of 
judges on the Ninth Circuit today who might become a panel to 
hear a given case. Would you share with us your thoughts about 
why that makes uniformity and coherence in the circuit more 
difficult?
    Judge Kleinfeld. Well, the greatest scholar of the common 
law process was Carl Lewellen, a professor at the University of 
Chicago. What he explained in his treatise and his many other 
writings was that the key to it is reckonability. All the law 
cannot be made by a court for any jurisdiction.
    Now, when I was a practicing lawyer in Alaska, I could 
predict what our Supreme Court would do, not just on the basis 
of its precedents, but because by reading its opinions, I knew 
the minds of each of the justices and I knew what they were 
going to do when they didn't have a precedent and I knew when 
they were going to abandon a precedent. So it means that my 
clients could avoid paying me a lot of money to litigate things 
because the outcomes were very predictable. Good lawyers were 
not surprised much.
    When you have got these tens of thousands of possible 
combinations of judges and a gigantic, philosophically 
disparate court, when you basically just have a data base from 
which judges are drawn randomly, until you know your panel, you 
don't know the outcome.
    As far as consistency and coherence goes, if we can't even 
read each other's decisions, how can we be consistent and 
coherent, and for the unpublished ones, it wouldn't matter if 
we did read them because they are so terse. We don't put in the 
explanations and the facts. You wouldn't know if they were 
consistent or not.
    Chairman Sessions. But you publish 670 a year. Is it 
realistically practical for a practicing attorney who wants to 
keep up with the circuit to read those advance sheets, read 
those opinions?
    Judge Kleinfeld. Justice Kennedy said that when he was then 
Judge Kennedy on the Ninth Circuit, it was impossible, and that 
was back when we were a lot smaller. The other justices who 
wrote letters said they didn't see how it was possible.
    Chairman Sessions. Well--
    Judge Thomas. If I might add one thing, Senator, though, 
the Eighth Circuit has more published opinions than we do total 
and only 11 judges, and the Seventh Circuit just has about the 
same number. So size isn't necessarily related to number of 
opinions. The attorneys and the judges on both the Eighth and 
the Seventh Circuit have to read the same number of opinions we 
do.
    Chairman Sessions. But it would be rather obvious that they 
are publishing more opinions than you are--
    Judge Thomas. On a percentage basis.
    Chairman Sessions [continuing]. Which I salute you for not 
over-publishing. I think it is a bane on the law to have too 
many cases published. I really do. But I assume you pare that 
number down pretty close to as low as you can get. Maybe you 
could reduce the number of public opinions, but a published 
opinion does have value, and as big as you are, you are going 
to have to have a lot.
    Thank you for all of your interest. I absolutely believe 
that the American rule of law is the basis for our liberty and 
our economic prosperity, our freedom, and it sets us apart from 
the rest of the world. We can have international corporations 
come into Alabama or California and feel like they will get a 
fair day in court, that nobody is going to be able to demand a 
bribe, nobody is going to be able to confiscate their property 
or take their profits without due process of law. They feel 
comfortable investing here, coming to this country. American 
citizens feel like if they get in trouble with the law, they 
will have a fair day in court. We need to protect that 
heritage.
    I believe personally that we could probably reach those 
goals with smaller circuits, but we obviously have a different 
opinion on it. I have enjoyed the hearing very much. I thank 
each of you for the hard work you have gone to to give us the 
best information that you can.
    Senators Murkowski and Ensign and Kyl have all said that 
they want to be open to how to do this. I think they are pretty 
firmly convinced we need to do something, but they are open-
minded about how to do it. I will be looking to the Senators 
from the circuit to give us leadership, but at some point, we 
just need to do the right thing for the American people and 
that is about all we can do.
    Thank you very much. Have a good day. The Subcommittee is 
adjourned.
    [Whereupon, at 7:01 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]
    [Additional material is being retained in the Committee 
files.]

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