[Senate Hearing 109-1035]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1035
EXAMINING THE PROPOSAL TO RESTRUCTURE THE NINTH CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
SEPTEMBER 20, 2006
----------
Serial No. J-109-112
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Printed for the use of the Committee on the Judiciary
EXAMINING THE PROPOSAL TO RESTRUCTURE THE NINTH CIRCUIT
S. Hrg. 109-1035
EXAMINING THE PROPOSAL TO RESTRUCTURE THE NINTH CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2006
__________
Serial No. J-109-112
__________
Printed for the use of the Committee on the Judiciary
----------
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Washington, DC 20402-0001
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
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 5
prepared statement........................................... 178
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 254
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Baucus, Hon. Max, a U.S. Senator from the State of Montana....... 7
Boxer, Hon. Barbara, a U.S. Senator from the State of California. 8
Brand, Rachel L., Assistant Attorney General for Legal Policy,
U.S. Department of Justice, Washington, D.C.................... 14
Eastman, John C., Chapman University School of Law, Anaheim,
California..................................................... 38
Ensign, Hon. John, a U.S. Senator from the State of Nevada....... 12
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska.... 10
Neukom, William H., Esq., Preston Gates & Ellis, LLP, Seattle,
Washington..................................................... 40
O'Scannlain, Diarmuid, Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit, Portland, Oregon............................ 26
Roll, John M., Chief District Judge, U.S. District Court for the
District of Arizona, Tucson, Arizona........................... 28
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the
Ninth Circuit, Phoenix, Arizona................................ 21
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Seattle, Washington............................. 23
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Billings, Montana............................... 24
Wilson, Hon. Pete, a former U.S. Senator from the State of
California, former Governor of California, and Bingham
McCutchen, of Counsel, Bingham Consulting Group, Principal, Los
Angeles, California............................................ 2
QUESTIONS AND ANSWERS
Responses of Rachel L. Brand to questions submitted by Senators
Kyl, Feinstein................................................. 46
Responses of John C. Eastman to questions submitted by Senator
Kyl............................................................ 69
Responses of William H. Neukom to questions submitted by Senator
Feinstein...................................................... 72
Responses of John M. Roll to questions submitted by Senator Kyl.. 79
Responses of Diarmuid O'Scannlain to questions submitted by
Senator Kyl.................................................... 89
Responses of Mary M. Schroeder to questions submitted by Senator
Feinstein...................................................... 92
Responses of Richard C. Tallman to questions submitted by Senator
Kyl............................................................ 99
SUBMISSIONS FOR THE RECORD
Alaska Bar Association, Anchorage, Alaska, letter and attachment. 107
American Bar Association, Washington, D.C., statement and
attachment..................................................... 111
American Civil Liberties Union, Caroline Fredrickson, Director,
and Christopher E. Anders, Legislative Counsel, Washington,
D.C., joint letter............................................. 129
Arizona State Bar, Helen Perry Grimwood, President, Phoenix,
Arizona, letter................................................ 131
Bea, Carlos Tibureio, Circuit Judge, Court of Appeals for the
Ninth Circuit, San Francisco, California, letter............... 133
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
statement...................................................... 135
Brand, Rachel L., Assistant Attorney General for Legal Policy,
U.S. Department of Justice, Washington, D.C., statement........ 138
Bryan, Hon. Richard, a former U.S. Senator from the State of
Nevada, statement.............................................. 149
California State Bar, William J. Caldarelli, Chairman, Litigation
Section of the State Bar, San Diego, California, letter........ 151
Earthjustice, Glenn Sugameli, Senior Judicial Counsel,
Washington, D.C., joint letter................................. 154
Eastman, Dr. John C., Interim Associate Dean of Administration
and Henry Salvatori Professor of Law & Community Service,
Chapman University School of Law, Director, Claremont Institute
Center for Constitutional Jurisprudence, statement............. 163
Ensign, Hon. John, a U.S. Senator from the State of Nevada,
statement...................................................... 174
Federal Bar Association, Northern District of California Chapter,
San Francisco, California, letter.............................. 182
Federal Practice and Procedure Committee, Michael G. Hanlon,
Protland, Oregon, letter....................................... 185
Gillers, Stephen, Emily Kempin Professor of Law, New York
University, New York, New York, letter......................... 187
Hawaii State Bar Association, Richard Turbin, President,
Honolulu, Hawaii, letter....................................... 190
Hispanic National Bar Association, Nelson A. Castillo, Esq.,
President Washington, D.C., letter............................. 191
Inter Tribal Council of Arizona, Jamie Fullmer, President,
Chairman, Yavapai Apache Nation, Phoenix, Arizona, Resolution.. 193
Kennedy, Anthony M., Justice, Supreme Court of the United States,
Washington, D.C., letter....................................... 195
LaForge, William N., Federal Bar Association, Office of the
President, Washington, D.C., letter............................ 202
Law Professors Opposed to Splitting the Ninth Circuit, letter.... 205
Los Abogados Hispanic Bar Association, Margarita Silva,
President, Phoenix Arizona, letter............................. 256
Los Angeles County Bar Association, Charles E. Michaels,
President, Los Angeles, California, letter..................... 258
Lasnik, Robert S., Chief Judge, Western District of Washington,
Chair, Conference Executive Committee, Seattle, Washington,
joint letter................................................... 260
McGrath, Paul B., Executive Director, Western States Sheriffs'
Association, Carson City, Nevada, letter and resolution........ 266
Montana State Bar, Resolution.................................... 268
Napolitano, Janet, Governor, State of Arizona, Phoenix, Arizona:
September 13, 2006, letter................................... 270
October 20, 2004, letter..................................... 272
October 20, 2004, letter..................................... 273
Neukom, William H., Esq., Preston Gates & Ellis, LLP, Seattle,
Washington, statement and letter............................... 274
Nevada State Bar, Rew R. Goodenow, Esq., President, Las Vegas,
Nevada, letter................................................. 296
Opposition to Splitting the Ninth Circuit........................ 297
O'Scannlain, Diarmuid, Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit, Portland, Oregon, statement and attachment.. 302
Roll, John M., Chief District Judge, U.S. District Court for the
District of Arizona, Tucson, Arizona, statement................ 415
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the
Ninth Circuit, Phoenix, Arizona, statement and attachment...... 434
Service Employees International Union, Anna Burger, Internatinal
Secretary-Treasurer, letter.................................... 455
Stensgar, Ernest L., Affiliated Tribes of Northwest Indians,
Portland, Oregon, letter and resolution........................ 456
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Seattle, Washington, statement.................. 460
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Billings, Montana, statement.................... 480
Washington State Bar Association, S. Brooke Taylor, President,
Port Angeles, Washington, letter............................... 517
Wilson, Hon. Pete, a former U.S. Senator from the State of
California, former Governor of California, and Bingham
McCutchen, of Counsel, Bingham Consulting Group, Principal, Los
Angeles, California, statement................................. 519
Winmill, B. Lynn, Chief District Judge, District Court of Idaho,
Boise, Idaho, letter........................................... 526
Zive, Gregg W., Chief Nevada Bankruptcy Judge, and Chair,
Conference of Chief Bankruptcy Judges of the Ninth Circuit,
Reno, Nevada, joint letter..................................... 528
EXAMINING THE PROPOSAL TO RESTRUCTURE THE NINTH CIRCUIT
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WEDNESDAY, SEPTEMBER 20, 2006
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 2 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Kyl, Sessions, and Feinstein.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. It is 2 o'clock, and this Committee
starts on time, so we are going to proceed. Our first panel is
a panel of Senators, and understandably they have other duties.
I am going to go out of turn here and call Senator Wilson
first, if Senator Wilson is in the room--I saw him a moment or
two ago. May I, Pete?--out of deference to a former colleague.
They have you all alone on Panel 4, Senator Wilson. I could
call you ``Governor Wilson.'' I could call you ``Mayor
Wilson.''
Mr. Wilson. Some guys just cannot hold a job.
[Laughter.]
Chairman Specter. But if you don't mind, I prefer
``Senator.''
Mr. Wilson. Thank you.
Chairman Specter. We have a 5-minute rule, which applies to
Senators on this side of the podium as well as Senators on that
side, but I guess you are entitled to 15 minutes, Pete, since
you have three titles.
[Laughter.]
Chairman Specter. Just kidding. Just kidding, Pete. We
welcome you here.
Mr. Wilson. I was prepared to accept your generous offer,
Mr. Chairman.
Chairman Specter. Senator Wilson was elected in 1982, and
he was here, re-elected in 1988, and then he became Governor in
the 1990 election. It is nice to have you back, Pete, and the
floor is yours.
STATEMENT OF HON. PETE WILSON, A FORMER U.S. SENATOR FROM THE
STATE OF CALIFORNIA, FORMER GOVERNOR OF CALIFORNIA, AND BINGHAM
MCCUTCHEN, OF COUNSEL, BINGHAM CONSULTING GROUP, PRINCIPAL, LOS
ANGELES, CALIFORNIA
Mr. Wilson. Thank you very much, Mr. Chairman and members.
I am delighted to be back and have the pleasure and privilege
of seeing some old friends.
The matter before us is not new. I can offer neither a new
face nor a new voice, but I think perhaps I can present an
argument which, to my knowledge, the Committee has not
considered before.
Historically, of course, the rare splits--there have been
only two in the history of the appellate courts--had been
predicated upon considerations that were largely logistical,
having to do with case load and the ability of the court to
perform its duties adequately. Today, my testimony will not
echo the powerful arguments relating to the logistical burdens.
Instead, those are going to be dealt with by eminent members of
the court: Chief Judge Mary Schroeder and Judge Thomas. I will
not take the time to simply echo their arguments. I simply
subscribe to them. Rather, I would like to focus the attention
of the Committee on the scant but very clear precedent, the
legal authority that is involved in a very different matter.
Now, I do not think that there has ever been an explicit
basis in terms of seeking ideological change for the body of
precedent presented to the Committee. And perhaps that time has
not yet come. I would like to think so. But in the interest of
time, let's focus on that legal authority, the Bonner case,
which was, in fact, the very first case heard and the very
first opinion published by the new Eleventh Circuit when it was
created in 1981 from the old Fifth Circuit.
The court in Bonner made an extensive analysis. I think it
is squarely on point if, in fact, the purpose of the
legislation that you are hearing today is to seek to bring
about a change in the body of precedent. Because, in fact, what
the court in Bonner decided was that that was really not a
tenable situation, and they came up with very practical reasons
as well as some that were purely philosophical. They not only
rejected their own procedural rulemaking power as totally
inappropriate for establishing a body of precedent, but they
went still further, expressing a concern about having to
relitigate ``every relevant proposition in every case.'' The
risk they saw was that it could involve a requirement for a
rehearing en banc under Federal Rule of Appellate Procedure 35
on the ground that each new precedent would involve a
``question of exceptional importance.'' The result, the court
felt, would be a ``burden that this court could not discharge
without seriously damaging its effectiveness,'' which would
``mean years of waiting to determine the law of the circuit.''
Hardly a way for a court dedicated to achieving predictability
and stability to begin.
And so the court said, quite predictably, ``We choose
instead to begin on a stable, fixed, and identifiable base
while maintaining the capacity for change''--which, of course,
they have beyond dispute.
Now, that was an eminently practical decision because the
burdens of relitigation which it avoided, while preserving the
capability to make responsible change, I think and the court
thought cannot be responsible ignored, either by a court
conscientiously seeking to decide truly important new issues
without inordinate delay or, I respectfully submit, by
responsible legislators seeking to avoid imposing those burdens
and unconscionable delays on the bench, the bar, and the public
of a proposed new Twelfth Circuit. Rather, any evolution in the
direction of the Twelfth Circuit ought to occur slowly and by
increment.
As the court pointed out, there was not only a compelling
motivation in terms of the practical burdens, but this, I
think, was really at the basis of their consideration.
The court clearly recoiled from the prospect of injury to
the rule of law, were it to be ``cast adrift'' upon a
metaphoric sea of unpredictable precedents, and this was, I
think, the very pointed comment they made.
Theoretically this court could decide to proceed with its
duties without any precedent, deciding each legal principle
anew, and relying upon decisions of the former Fifth Circuit
and other circuit and district courts as only persuasive
authority and not binding. This court, the trial courts, the
bar, and the public are entitled to a better result than to be
cast adrift among the differing precedents of other
jurisdictions, required to examine afresh every legal principle
that eventually arises in the Eleventh Circuit.
What they said was very clearly a defense and an admonition
that the law of stare decisis, the doctrine of stare decisis
was one--
Chairman Specter. Senator Wilson, how much more time would
you like?
Mr. Wilson. About 2 minutes, sir.
Chairman Specter. Okay.
Mr. Wilson. Thank you.
The court said, ``We tend to think of stare decisis as only
`it is decided.' The full phrase is stare decisis et non quieta
movere--`to adhere to precedents and not to unsettle things
which are established.' The prospect of decades of writing on a
clean slate in pursuit of the possibility that in some case or
cases we might find a rule we like better (or even conclude
that an old Fifth Circuit decision is wrong) is at best
unappealing, at worst catastrophic.''
Mr. Chairman, I would like to think that that admonition is
needless. But just in the event that some future Congress would
choose to not only create a split and a new circuit but in the
act creating that new circuit instruct it to apply the
precedent of a different circuit than that from which it has
come, I think that we should understand that that court, the
Bonner court, regarded that as essentially flouting the
doctrine and doing so in flagrant violation of stare decisis
and inviting all the ills that would ensure. I can only hope
that that does not occur, but that if some future court is
going to--or if some future act of Congress creates a new
Twelfth Circuit, that the members of that new court will have
the same respect for precedent as did the Eleventh when, in
their first decision, they decided that they were going to be
bound by the decisions of the old Fifth. If indeed there are
some who would seek by means the kind of wholesale change that
would unsettle established things and undermine the rule of
law, then I think they will find that the Bonner case is at the
table like Banquo's ghost to haunt them. They will be required
to learn patience and respect for stare decisis.
I would also point out that if that new court does create
precedent, as it should, it is quite predictable that before
such broad change is legitimately achieved by a new circuit
court of appeals, several other circuits will have attained the
size of the present Ninth Circuit and apply for a split to the
Judiciary Committee of the next generation.
Mr. Chairman and members, thank you for your patience and
your courtesy.
[The prepared statement of Senator Wilson appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Wilson. I am going to
recognize Senator Feinstein for a moment to greet her adversary
in 1990, and then recognize Senator Kyl, and then back to
Senator Feinstein for an opening statement.
Senator Feinstein. Thank you very much, Mr. Chairman. I
just wanted to say welcome, Pete, Senator, Governor. I was
listening to you, and I could not help but think, because it
has been so long ago, 1990, how great a Senator you would have
been if you had remained in the Senate.
[Laughter.]
Senator Feinstein. In any event, I want to thank you for
coming back for this. It is very important to all of us in
California, and I think your views are both critical and
important. So thank you very much.
Mr. Wilson. Thank you very much, Senator. That is a
generous comment. The only way I can respond is to suggest that
you should be grateful that I saved you from the budget I faced
in 1991.
[Laughter.]
Mr. Wilson. And 1992 and 1993. Thank you.
Senator Feinstein. Thank you.
Chairman Specter. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I just wanted also to
thank Senator Wilson for being here and the other panelists,
and to excuse myself in advance. In about 12 minutes, I have to
go to another hearing to introduce the person who I hope will
be the new Secretary of Transportation from Arizona, and as
soon as that is completed, then I will return. But it means no
disrespect to whoever happens to be talking at the time.
Chairman Specter. Thank you, Senator Kyl. It is a complex
game of musical chairs. I am going to have to excuse myself at
2:20, and Senator Kyl will preside as long as he is here, and
then Senator Feinstein will preside if there is no other
majority party Senator. Then when Senator Kyl comes back, he
will preside. And Senator Murkowski has notified us that she
has a commitment and hopes to leave by 2:25, and whoever is
presiding, Senator Murkowski, will try to accommodate you. You
are in competition with Senators.
And now for an opening statement, Senator Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
THE STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. This
is a very important matter for the West, and I think it has
implications for the Nation as a whole. The Supreme Court
reviews less than 1 percent of all of the cases appealed to it,
so for most of the Ninth Circuit residents, the Ninth Circuit
is the court of last resort. And last year, the circuit
reviewed almost 16,000 cases, making decisions on virtually
every legal issue there is.
I agreed with many of the decisions. I disagreed with some
of them. However, the Framers of the Constitution intended the
judiciary to be independent and free from Congressional or
presidential pressure or reprisal.
I am very concerned that recent attempts to split the Ninth
are part of an assault on the independence of the judiciary by
those who disagree with some of the court's rulings. As
Governor Wilson has stated, these attempts are judicial
gerrymandering, designed to isolate and punish judges whose
decisions some disagree with. They are antithetical to the
Constitution. Attempting to coerce or punish judges or rig the
system is not an appropriate response to disagreements with the
court's decisions. It is essential that we preserve our system
of checks and balances and make it clear that politicians will
not meddle in the work of judges.
The configuration of the Ninth is not set in stone;
however, any change should be guided by concerns of efficiency
and administration, not ideology. The Ninth is the largest
circuit in the Nation. That is measured by both population and
case load. Its size alone actually tells us little. The
question is whether the size helps or hinders it in providing
justice to the people within its boundaries.
After a substantial review of statistics, decisions, and
reports from those who know the circuit best, it is clear that
splitting the Ninth would hinder its mission of providing
justice to the people of the West. When ideologic concerns are
set aside, it becomes evident that the proposal before the
Committee to split the circuit is a lose-lose proposition. The
costs of court administration would rise while the
administration of justice would suffer. The uniformity of law
in the West is a key advantage to the Ninth. It offers
consistency, and it helps share common concerns.
The size of the Ninth is an asset. It offers a unified
legal approach to issues from immigration to the environment,
and dividing the circuit would make these problems more
difficult to solve. Let me just give you a few examples.
Splitting the circuit could result in different
interpretations in California and Arizona of laws governing
immigration, different applications of environmental
regulations on the northern and Nevada sides of Lake Tahoe, and
different intellectual property law in Silicon Valley and the
Seattle technology corridor. These differences would have real
economic costs.
The economy of scale offered by the Ninth has resulted in
numerous innovations to increase efficiency: one, a circuit
mediator whose office settled 90 percent of the 977 cases that
came before it saved both time and money; two, a bankruptcy
appellate panel that resolved almost 700 appeals last year;
three, a system for case tracking that inventories and tracks
appeals, groups similar questions of law together to promote
consistent treatment.
In a time of tight judicial budgets, splitting the circuit
would add significant and unnecessary expense. It would require
additional Federal funds to duplicate the current staff of the
Ninth and new or expanded courthouses and administrative
buildings since existing judicial facilities for a Twelfth are
inadequate. The Administrative Office of the U.S. Courts
estimates that creating a Twelfth Circuit would have a start-up
cost of $96 million, with another $16 million in annual
recurring costs.
Those who know the Ninth, know it best overwhelmingly
oppose a split. Of the Ninth's active court of appeals judges,
18 oppose the split, 3 support it. The district court and
bankruptcy judges of the Ninth also oppose the split. Every
State bar that has weighed in on the split--Alaska, Arizona,
Hawaii, Montana, Nevada, Oregon, and Washington--oppose
breaking up the Ninth. And more than 100 different national,
regional, and local organizations have written to urge that the
Ninth be kept intact.
Yesterday, I received a letter from 368 law professors
representing 49 States and countless legal philosophies
counseling against a split. I will put those letters in the
record; also, letters from judges, organizations, and
individuals opposing the split; as well as the written
testimony offered by Senator Richard Bryan of Nevada in
opposition to the split.
One last point. The split as proposed grossly, unfairly
distributes judicial resources in the West. The Ninth would
keep 71 percent of the case load, but only 58 percent of the
permanent judges. That is unacceptable. Currently, the Ninth
has a case load of 570 cases per judge as opposed to the
national average of 381 cases per judge. Under the split, the
average case load in the Ninth would actually increase to 600
cases per judge while the new Twelfth would have only 326 cases
per judge. This inequitable division of resources would leave
residents of California and Hawaii facing greater delays and
with court services inferior to their Twelfth Circuit
neighbors. Clearly, that is untenable to both Senator Boxer and
myself.
Some advocates of splitting the Ninth assert that doing so
would reduce delays in court appeals. This bill would actually
increase the case load per judge, and with it, increase delays.
If our goal is to reduce delays in the Ninth, a better answer
is give its judge the case loads comparable to other circuit
courts, not splitting the circuit.
New judges for the Ninth are long overdue. Adding judges to
bring the Ninth's case load per judge down to the national
average would cost far less than splitting the circuit and
would have a much greater impact in combating delay.
In addition--and this is an important point--40 percent of
the Ninth Circuit's current case load consists of immigration
appeals--40 percent. That is an increase of 497 percent in less
than 5 years.
Now, I hope that Congress will pay new immigration
legislation. I hope we can move through some new judges. But,
in conclusion, let me just say splitting the Ninth I believe
would create more problems than it would solve. So, Senator
Kyl, would you like to make an opening statement?
Senator Kyl [Presiding.] Senator Feinstein, all of the
submissions for the record will be accepted, in addition to a
letter that I am going to submit for the record, dated June
29th.
Senator Feinstein. Thank you.
Senator Kyl. And what I would like to do now is to call
upon Senator Baucus, Senator Boxer, and Senator Murkowski, in
that order, and excuse myself in about 1 minute, and I will
turn the gavel over to Senator Feinstein.
Senator Baucus?
STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM THE STATE OF
MONTANA
Senator Baucus. Thank you very much, Mr. Chairman. First, I
would like to welcome a member of the next panel, that is,
Judge Sid Thomas. He is here to testify. Judge Thomas is one of
the most senior judges on the Ninth Circuit. He is the en banc
coordinator and death penalty coordinator for the circuit. He
also serves on the Executive Committee for the circuit and can
explain the real effect that this proposal will have on the
country, let alone on the circuit.
I recommended Judge Thomas for the Ninth Circuit many years
ago. Montana is very proud to have one of its own on the bench.
We are eager to hear what he has to say about the proposal.
In our proposal, let me say this: Yes, the Ninth Circuit is
the largest court of appeals in the United States. That is
undisputed. It has the largest population and the largest case
load. That is because it is so large. But these alone are not
good reasons for splitting what is currently a very productive
court of appeals.
Some of our colleagues talk about delays in the Ninth
Circuit. In reality, the Ninth Circuit is one of the fastest
circuits in the Nation in resolving cases once the case is
actually heard by the court. The delays in processing are
caused by the number of cases referred to the court, and these
cases are mostly immigration appeals. Splitting the circuit
will not resolve this problem. It will not reduce the number of
immigration appeals. We are still going to get immigration
appeals. The Federal judiciary, the Ninth Circuit, a circuit is
going to have to still take those cases. It makes no sense to
have one circuit that only takes immigration cases.
Splitting the circuit would also have a detrimental effect
especially on the West, and my home State, to name one.
Splitting the Ninth would eliminate uniformity of law in the
West. So important. States sharing common concerns, such as
environment and Native American rights, would end up with
different rules of law. That makes no sense. This would create
confusion, cause serious problems, and even animosity among the
States in the West.
Splitting the Ninth would impose huge new costs. A split
would require new Federal funds for courthouses and
administrative buildings. Existing judicial facilities are just
not equipped for a new circuit. The Administrative Office
estimates the start-up costs to be $96 million additional and
then $16 million in annual recurring costs under the proposed
split. The judiciary budget is already stretched thin. The
creation of a new and costly bureaucracy to administer the new
circuit would just add to our growing deficit.
And this proposal does not have the support of the people
whom it will most directly affect. Judges on this circuit
oppose it. Members of the State bars affected by the split
oppose it. Almost 100 Federal, State, and local organizations
oppose splitting the Ninth Circuit. Only three of the 26 active
judges on the Ninth favor splitting the circuit. Many State
bars oppose it, including Alaska, Washington, Nevada, Hawaii,
Arizona. Even the Federal Bar Association and the Appellate
Section of the Oregon Bar feel strongly that we should not
split the Ninth Circuit. The State Bar of Montana does not
support the proposal. The Montana Bar unanimously passed a
resolution opposing division of the Ninth Circuit.
We ought to be listening to the people on the ground who
deal with this issue every day, not the hardship from our
offices in Washington, D.C. Let's be frank. The motivation
behind splitting the circuit is political. It is an attempt to
control the decisions of the judiciary by rearranging the
bench. It reminds me of FDRs court-packing. The same thing--
trying to change results by changing the composition of the
court by law and the number of judges and how the lines are
drawn. This is, as has been said, judicial gerrymandering. It
is not appropriate for the Congress to gerrymander the
circuits.
The judiciary is supposed to be an independent branch of
Government. It must remain so. Splitting the Ninth is not the
right thing to do for Montana, it is not the right thing to do
for the country, and I for the life of me cannot understand why
anybody thinks this is a good proposal, why we are sitting here
today. It is just the wrong thing to do.
Senator Feinstein [Presiding.] Thank you very much, Senator
Baucus.
Senator Boxer, I believe you are next, Senator Murkowski,
and then Senator Ensign.
STATEMENT OF HON. BARBARA BOXER, A U.S. SENATOR FROM THE STATE
OF CALIFORNIA
Senator Boxer. Madam Chairman, thank you so much for all
the work you have done on this subject. I wanted to thank my
colleagues here. We are going to have a few disagreements, but
so far former Governor and Senator Wilson and Senator Baucus
and you, Madam Chair, and I certainly agree that this is not a
bill whose time has come. And we need to do everything to stop
it, and I hope we can do it right here. And I was wondering if
you could call the roll since you are alone right now, and
maybe we can dispose of the bill.
[Laughter.]
Senator Feinstein. No such luck, I am afraid.
Senator Boxer. But since that will not work, then I am
going to add my voice to this debate. And I am going to try to
put most of my comments in the record and summarize, and I know
I am going to be repeating some of the arguments, but it is
important to fill this record with the facts. So bear with me
if I am repeating a bit here.
Opposition to this bill has brought together many
Republicans and Democrats--I think it is evidenced here today--
liberals and conservatives and moderates. And, again, I want to
thank former Governor and former Senator Pete Wilson for taking
the time to come before the Committee.
I will not go through the exact change that is proposed
because we all know it, but I will say I oppose this
legislation for three reasons: first and foremost, it is
unnecessary; second, splitting the Ninth would create
additional costs without benefits and create administrative
problems that do not exist; and, third, the bill is opposed by
the majority of the people who would be the most effects--the
judges and the attorneys of the Ninth.
The Ninth Circuit is one of the fastest courts in the
country in terms of issuing decisions following oral argument,
and there are those who would make it sound like that is not
the case, but it is the case. To the extent there is delay in
the movement of cases in the circuit, it is due to the high
case load per judge in the circuit, which can lead to delays in
assigning judges to each case. However, this issue can be
resolved by adding more judges to the circuit, which would
decrease the case load per judge. Adding judges to the circuit
would be more effective and less costly than creating a new
circuit court. So if the real reason behind this is efficiency,
we have got a very clear way to do it. But as you have heard
from others, I do not think that is, in fact, the agenda here.
Splitting the Ninth would lead to an interesting result.
The new Ninth, with California and Hawaii, would be left with
71 percent of the former circuit's case load, as my colleague
stated, just over 11,000 cases spread among 58 percent of the
former circuit's judges. So it is going to make matters worse.
Splitting the circuit would increase the case load per judge in
California and Hawaii, not decrease the case load. So what is
the benefit of adding cases to our judges? Does it make sense
to claim that the judges in the circuit are overburdened and
then propose a fix that increases their case load? That does
not make any sense to me.
Also, the bill would require the creation of a new
administrative bureaucracy. I thought, you know, some of the
people on the other side of the aisle do not like to create new
bureaucracies, but, yes, that is what they are doing with the
creation of a new Twelfth Circuit. There will be construction
costs, and I sit on the Committee with my colleague, Senator
Baucus of Montana--we sit on the Environment and Public Works
Committee, and the building of these courthouses is no small
matter. It costs an absolute fortune, and we do not need that
cost right now when we have so many other pressing needs.
And then we have personnel, administrative costs, security
costs, all of this going through the roof. Why would we be for
a proposal that is unnecessary and which is so very costly? At
the end of the day, we will get less judicial efficiency in the
courts. It does not make sense.
Only twice in our Nation's history have we divided a
Federal judicial circuit. Both times the split was supported by
the majority of judges and attorneys in the circuit who would
be affected by the split. And again, as was stated, in this
case the split is not supported by the majority of judges and
attorneys in the circuit. Again, 18 Federal appellate court
judges oppose the split, and many of the trial court judges in
the circuit whose decisions are reviewed oppose this bill. And
the ABA and almost every State bar association oppose the
break-up. And yet in the face of this overwhelming opposition,
there is a still a push within the Senate to split the Ninth
Circuit Court.
So I urge my colleagues, who are not here right now, but
maybe somewhere they are hearing my words, to vote against this
bill, which would not only increase the burdens on Federal
appellate judges in my home State, Senator Feinstein's home
State, and certainly in Senator Baucus', but also send a bad
message that we do not respect the independence of our
judiciary. And that is key. At a time when we all revere our
Constitution, we should respect the independence of the
judiciary.
So thank you, Madam Chair. I cannot believe I did this
within the 5 minutes, almost.
Senator Feinstein. You did.
Senator Boxer. Almost, 16 seconds, okay. But I really think
you have been my hero on this issue, and I thank you so much.
Senator Feinstein. Thank you. Thank you, Senator Boxer.
Senator Murkowski?
STATEMENT OF HON. LISA MURKOWSKI, A U.S. SENATOR FROM THE STATE
OF ALASKA
Senator Murkowski. Thank you, Senator Feinstein. I do
appreciate your attention to this matter, and I understand the
musical chairs that we are all engaged in here today. But I
think we would all agree that this is an incredibly important
issue for those of us--and you notice we are all from the West
here. This is an incredibly important issue, and the fact that
it has finally risen to the level of a full Committee level as
opposed to just the subcommittees where you and I have had
opportunity to discuss this issue.
We recognize that it is an issue that I believe the time
has come to be discussing this, and there is one point that you
made that I certainly agree with, and you stated that if there
is to be a split, it should be a split that is guided on the
principles of efficiency, of administrative effectiveness, and
those are the things that we should be looking to as we talk
about the need for a split of the Ninth Circuit Court of
Appeals.
I have been working with Senator Ensign and Senator Kyl on
this, and I think that the proposal that you are looking at is
one that, in my opinion, does make sense and does indicate that
we have reached a point where we have to do more than just talk
about splitting up the Ninth Circuit and move forward on it.
And the reasons that I cite are pretty substantive in terms of
just numbers.
We talk about the geographic size. We understand that, yes,
in the West everything is large. But the Ninth Circuit,
encompassing nearly 40 percent of the geographic area of the
United States, that is bigger than seven of the other circuits
combined. And so when you talk about the ability to produce
decisions that have some consistency of laws, some uniformity,
just the sheer geographic nature of the district that we are
dealing with is one that is almost incredible.
The population factor. The fact that the Ninth serves 58
million people, nearly twice the size of most other districts,
again, setting it apart from all of the other circuits.
The case load. We recognize that the Ninth Circuit docket
is one that just continues to grow. In 2004, it had nearly 60
percent higher case load than the next largest district. You
mentioned, Senator Feinstein, the immigration case load
increasing by--my figures put it at 463 percent. I think yours
was 490. It is an incredible amount in terms of an increase.
And the delays have been addressed, the recognition that
the average time for final disposition of a case is 5 months
longer than the national average.
Now, there has been a suggestion that this is all about
bringing about an ideological change within the district. That
is not what we should be looking at. We should be looking to
what is happening within the demographics of the Ninth Circuit
itself.
Now, some have suggested that the improvements through
technology can help us control the overwhelming case load of
the Ninth Circuit, and I have had an opportunity to listen to
the chief judge and some of the other judges there talking
about those efficiencies that have been introduced. And we
appreciate it, we applaud it, and there has been great effort
in that regard.
But I guess I look at it and say, you know, we are able to
stay on top of it now. We are kind of treading water. But I see
literally a tidal wave coming towards the court that technology
is not going to help us get around. And this is just simply
population growth. And a reference, a couple charts here. As I
stated, the Ninth Circuit already has population more than
double most circuits, but it does not stop there. The Ninth
Circuit also contains the fastest-growing States in the
country. So we can see what is happening.
We have got the existing case load now. We know what is
happening with immigration. But we also see the population
growth in these States. So we cannot sit back and watch these
warning signs without acting.
I think our legislation is a sensible reorganization of the
Ninth. The distances and the populations will be more
proportionate and more manageable, we believe significantly
reducing wasted money and time spent on judicial travel. We
believe the case loads will be more manageable, which will
improve the uniformity and the consistency in the case law.
Senator Boxer mentioned that there have been two occasions
where we have split the courts before, so we know that this is
not unprecedented for us to consider this. And when you
appreciate what happened in the South with the Fifth Circuit,
when they made that split, it was because of factors just like
we are seeing in the West: population growth booming and
predicted to keep on the rise.
With the 58 million residents of the Ninth Circuit that are
suffering, if you will, as they are waiting for cases to be
heard and decided, perhaps prompting some to forego the
appellate process altogether, I think we have looked at this
problem now for decades. We have been studying it. I believe
that the time is now to move forward with it.
I appreciate your time, your courtesy, and I look forward
to the opportunity to address, I believe, a very real issue you
have addressed, and that is, the one of the judicial case load
and how we better manage that. And I am certainly willing
within our legislation to look at how we might make sure that
there is a more equitable allocation there. So I look forward
to working with you, and thank you.
Senator Feinstein. Thank you very much, Senator Murkowski.
Senator Ensign, welcome.
STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Ensign. Thank you, Madam Chair, and I think this is
a very important hearing. I have heard that now is not the time
to split the circuit, and I think we have to ask ourselves one
fundamental question. Why did we ever divide circuits in the
first place? Why are there the number of circuits that we have
today? Because each got to a certain point where they were not
manageable, and they split circuits.
At what point in the future is the Ninth Circuit too large?
At what point is it unmanageable? We already have heard the
population statistics that we have before us. I live in the
fastest-growing State as far as a growth rate is concerned.
Senator Feinstein lives in the fastest-growing State as far as
true population increase is concerned. The whole West, we know,
everybody from the Midwest and the Northeast is moving to the
West, and especially the Southwest. Those trends are not going
to change. The Western States are going to continue to rapidly
increase in population.
I want to point out a couple of the problems with that
population growth, because some have suggested that this is
purely ideological, the reason for the split. And I think that
some would have that as motivation. But I do not think we need
to make an ideological argument to justify a split--I think
Senator Baucus talked about judicial gerrymandering. Well, the
courts are going to be changing and even with this split, you
cannot predict the makup of the court. New people will be
appointed, and you cannot actually gerrymander the courts as
far as ideology because judges are going to be constantly
changing. And you cannot say today what it is going to look
like tomorrow because of new judges, especially the number of
new judges in the fastest-growing area that will continue to be
needed. And if you look at the makeup, there are a lot of
liberals and a lot of conservatives that will go both ways.
I think that it is very important that we address some of
the issues that have been brought up, for instance, the cost.
Well, there is additional cost, but it can be held to a
minimum. First of all, there are buildings within Portland and
Seattle that would take remodeling, that could house the
circuit headquarters--I am not going to get in the battle of
who is going to choose whether it is Seattle or Portland. For
Nevada, as much as I would like to go into Las Vegas, there are
GSA buildings that are available. I think there are two
buildings within Phoenix that could be used that would just
have to be remodeled, and so we could keep the costs down
fairly significantly by doing that.
But we also need to consider that the way that the Ninth
Circuit is able to handle cases right now--and I have heard
this from many, many members on the Ninth Circuit. When they
get together to consider cases in what are known as a limited
en banc hearing, that is something that is not done the same
that it is done in other courts. They do not have the time to
consider the cases. A lot of these decisions, they do not have
the time as colleagues to discuss the cases nearly in the
detail that they do in other circuit courts. That is a common
complaint that I hear.
Well, if they are getting together and they are trying to
put together these decisions, they need collegiality. Working
together is a very important aspect for the circuit courts that
are weighing some of the heavier decisions that are necessary
for the functioning of our constitutional republic. The judges
need to take more time. And I think that we see this in
decisions, because of the large number that are overturned. The
number of decisions that are overturned in the Ninth Circuit is
high. Judges have related to me that that is one of the reasons
they believe the circuit should be split--not because of
ideology. The split is justified simply because of the time
that is needed to consider the cases.
So for the sake of the administration of justice, not only
the efficiency but also in the types of decisions that can be
made, I think it is time to split up the Ninth Circuit. It is
time for us to go to something that is more manageable where
our judges have time to consider the cases in a much more
detailed fashion. Is this bill perfect? No. We are willing to
work with our colleagues to address their concerns. We are
willing to give California the judges that they need and to
address any other issues. But I think it is time to split the
largest circuit geographically, population-wise, because this
situation is only going to continue to get worse. That is why I
believe that it is actually time to finally address the
splitting up of the Ninth Circuit, and I thank you, Mr.
Chairman.
Senator Kyl [Presiding.] Thank you very much, Senator
Ensign.
Senator Ensign. And, Mr. Chairman, could I submit the rest
of my statement for the record?
Senator Kyl. Your statement will be included in the record.
[The prepared statement of Senator Ensign appears as a
submission for the record.]
Senator Kyl. There are members of the bench who are with us
that will not be testifying. I would like to at least recognize
your presence here, and we appreciate your interest in these
proceedings, all from the Ninth Circuit Court of Appeals: Judge
Callahan, Judge Rawlinson, Judge Bea, Judge Clifton, and Judge
Kozinski.
The next panel consists of Rachel Brand, and, Rachel, if
you would take the dais, I will introduce you. Rachel Brand was
confirmed as the Assistant Attorney General for Legal Policy at
the U.S. Department of Justice in 2005. From 2003 until her
appointment, she served as Principal Deputy Assistant Attorney
General in the Office of Legal Policy and before that served as
Associate Counsel to the President, before that with the law
firm of Cooper, Carvin & Rosenthal. She clerked for U.S.
Supreme Court Justice Anthony Kennedy and Massachusetts Supreme
Judicial Court Justice Charles Fried; received her J.D. degree
from Harvard Law School, where she was Deputy Editor-in-Chief
of the Journal of Law and Public Policy; and received her B.A.
from the University of Minnesota.
Ms. Brand, nice to have you with us today. The floor is
yours.
STATEMENT OF RACHEL L. BRAND, ASSISTANT ATTORNEY GENERAL FOR
LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Ms. Brand. Senator Kyl, Senator Feinstein, I am happy to be
here to testify on behalf of the Department of Justice.
The Department supports legislation creating additional
judgeships in the Ninth Circuit. Adequate staffing of the
judiciary is essential to the effective administration of
justice. Steadily increasing case loads in the Ninth Circuit
necessitate additional judgeships there, and we urge Congress
to authorize them. The Department also supports splitting the
Ninth Circuit. Although we have not taken a position favoring
any particular split, we applaud the Committee for focusing on
legislation to divide the Ninth Circuit into courts of a more
manageable size.
From time to time, Congress has acted to improve the
administration of justice by adding or splitting courts of
appeals, and we believe the time is right to do so now in the
Ninth Circuit. That court bears a strong resemblance to the
Fifth Circuit that existed prior to the time Congress split it
into the Fifth and Eleventh Circuits. For example, the Fifth
Circuit then had 26 authorized judgeships. The Ninth Circuit
now has 28 authorized judgeships and will become even larger if
new judgeships are authorized there.
Similarly, at the time of the split, the Fifth Circuit had
about 18 percent of the nationwide appellate case load. The
Ninth Circuit currently is larger with about 23 percent of the
nationwide case load.
There are two primary reasons why the Department of Justice
is weighing in on the issue of splitting the Ninth Circuit.
First, the United States is by far the most frequent litigant
in the courts of appeals, and the Department employs thousands
of civil and criminal litigators who practice in courts all
around the country, including the Ninth Circuit. As such, we
have a particular interest in the effective and efficient
operation of the Ninth Circuit and all Federal courts.
The Department has directly experienced some of the
downsides of the Ninth Circuit's large size. For example, we
experience the cost of the relatively long delay in the Ninth
Circuit between the time of filing a notice of appeal and the
time the court ultimately decides the case.
We have also experienced the downsides of the Ninth
Circuit's unusual en banc procedure. The purpose of an en banc
proceeding, as you know, is for the entire court to decide a
case. In all other courts of appeals, en banc proceedings are
heard by all eligible active judges, whereas, in the Ninth
Circuit, only 15 of the 28 authorized judges participate. In
other courts, then, it is certain that the entire court has
spoken when there is an en banc ruling. In the Ninth Circuit,
in a closely divided case, only eight judges could bind the
circuit, making it possible that a minority of the court had
spoken for the court in an en banc proceeding. This defeats the
entire purpose of an en banc proceeding.
The United States also has an interest in predictability
and consistency in the law. Law enforcement officers need to
understand what the constitutional limitations on their
authority are. Prosecutors need to understand the rules
applicable in criminal trials. Regulatory agencies need to
understand the scope of their authority and how to go about
issuing regulations.
The Department of Justice has noticed inconsistencies
within the Ninth Circuit's case law. In my written testimony, I
describe one such intra-circuit conflict. In that case, the
Department attempted to get resolution of the conflict through
an en banc proceeding, but our petition for rehearing en banc
was denied.
The White Commission, in preparing its 1998 study, surveyed
lawyers and judges around the country and reported evidence
that reinforced the Department's experiences. It said, for
example, that more district judges in the Ninth Circuit than
elsewhere reported difficulties stemming from inconsistencies
between published and unpublished opinions, and that lawyers in
the Ninth Circuit more than lawyers elsewhere reported problems
relating to conflicting precedents.
Senator Feinstein. Relating to what? I am sorry.
Ms. Brand. Conflicting precedents.
As Justice Kennedy noted at that time, it is only natural
that a larger number of decisions from a court will result in
inadvertent intra-circuit conflicts and legal ambiguity.
According to the White Commission, a court of appeals, which
must ``develop a consistent and coherent body of law, functions
more effectively with fewer judges than are currently
authorized for the Ninth Circuit.'' We agree and believe that
dividing the Ninth Circuit will alleviate some of the
Department's concerns.
Second--this is the second reason why the Department has
decided to weigh in--we have a significant public policy
interest in ensuring the effective administration of justice
for all litigants in all the Federal courts. We regularly
engage with Congress and the courts in discussions about how to
improve our Nation's civil and criminal justice systems. Just
as certainty in the law benefits the United States as a party
and makes the Department of Justice's lawyers' jobs easier,
consistency and predictability in the law benefit every
American. Companies and individuals need to have the ability to
know what the law is. They need to know whether a particular
action will subject them to liability or will get them
arrested.
For these and for the other reasons explained in my written
testimony, we support legislation to add new judgeships and to
divide the Ninth Circuit, and I would be happy to take your
questions.
Senator Kyl. Thank you very much.
Let me start with a couple questions. You have just, I
think, answered the question that was foremost on my mind as to
why the--I gather it is not particularly--that the Justice
Department would not ordinarily speak to an issue like this,
but the reasons are primarily because of the large number--or
the large amount of litigation the Department of Justice has in
the Ninth Circuit and its concerns with the way that the
decisions can be conflicted, for example; and, second, the
Department's general interest in the administration of justice.
I might have not summarized that very well, so I guess I
should just ask you the question why the Department of Justice
is particularly interested in this issue.
Ms. Brand. Well, it is for exactly the reasons you state,
Senator Kyl. We have a specific, you might say a parochial,
interest as a litigant and a litigator in how the courts
operate when the United States is sued or when the United
States takes enforcement action in the courts. Our lawyers
obviously experience the same things that all lawyers
experience in the courts. And so it is important to us, as it
is to all parties and all lawyers, that the courts operate
well.
And that leads into our second interest, which is a general
public policy interest in the efficient and effective
administration of justice, and we think of that not only in
terms of administrative issues such as delay, but also in
consistency and predictability in the law. People need to be
able to order their primary conduct, they need to know what
they can do and what they cannot do, and ambiguity makes that
very difficult.
Senator Kyl. You heard the testimony of former Senator
Wilson, and it prompted another question, and that is, whether
we need a consistent body of law in the West or, more
precisely, whether you have a concern that the creation of a
new circuit might create more precedents and, therefore, be
more difficult for litigants to work with.
Ms. Brand. The Fifth Circuit was split in 1981, as Governor
Wilson discussed. The Eleventh Circuit, when it was created,
adopted prior Fifth Circuit precedent as its own. So if you
litigate now in the Eleventh Circuit and you cite a Fifth
Circuit case from 1970, as long as it has not been overturned,
it remains good law in the Eleventh Circuit.
Now, the bill that is before the Committee does not
specifically address that issue, and it, therefore, would be up
to the judges to decide when a new court was created. But I
would guess that they would probably handle it the same way,
and that would lessen the unpredictability that would result
from a circuit split.
Senator Kyl. Among the things that your testimony dealt
with was the intra-circuit splits, and you talked about en banc
hearings. Two questions here. What are some of the effects of
intra-circuit splits? And then, second, can you be a little bit
more precise as to the reason why you believe the Ninth Circuit
is particularly susceptible to these intra-circuit splits or
divisions?
Ms. Brand. The effect of an intra-circuit split is what I
discussed earlier. It is the inability to order your conduct.
It is the inability to know, if you are an agency, how you go
about issuing a regulation. What is the scope of your statutory
authority? If you are a prosecutor, you may not know how to
argue before the court, what the court should take into account
in sentencing, for example, if you have two conflicting panel
decisions saying the court must consider this, or, no, the
court does not have to consider that. It makes life very
difficult, and you are in the position then as a lawyer of not
knowing what to argue. You are in the position as a party of
not knowing what to do. So that is the problem with an intra-
circuit split.
Now, I guess there is no way to empirically prove whether
there are more intra-circuit splits in the Ninth Circuit than
elsewhere, but when the White Commission did a survey of
lawyers and judges in the late 1990's, it found that the
perception of lawyers and the perception of district judges was
that there was more ambiguity and more inconsistency in the
Ninth Circuit than elsewhere. And it seems logical that, with a
greater number of decisions, the risk of inadvertent intra-
circuit splits is greater. So the larger the caseload, the more
judges there are, inevitably, the more ambiguity and more
intra-circuit conflict there will be. And that is what Justice
Kennedy pointed out to the White Commission, and that is what
the White Commission itself said.
Senator Kyl. Thank you. In view of the seconds left here, I
will now turn the questioning over to Senator Feinstein.
Senator Feinstein. Thank you very much. Welcome.
I take it you have had Federal agencies complain about
intra-circuit splits. Is that correct?
Ms. Brand. The Department of Justice's lawyers have
provided us with a number of examples of intra-circuit splits
that affect the criminal justice system and that affect public
lands issues. So, yes, we have had folks from around the
Government bring this to our attention.
Senator Feinstein. I would request to see them, then,
please.
Ms. Brand. Sure. I can provide you with some more examples
in addition to the ones that are in my testimony.
Senator Feinstein. Thank you. I appreciate that.
You also noted that the Ninth Circuit has the longest
period of time from notice of appeal to decision. However, as
noted by others, the Ninth is the second fastest from hearing
to decision. Since once judges receive cases they dispose of
them quickly, wouldn't the addition of additional judges speed
the Ninth Circuit?
Ms. Brand. I think that the addition of new judges is
critical, and, yes, I think it would definitely help
disposition time. And as I said in my testimony, we support
providing additional judgeships for the Ninth Circuit.
I do not think that that would solve all the problems,
however, because if you added the seven new judges that are
provided for by S. 1845, you would then have a court consisting
of 35 district judges, which is even larger than it is now, and
it would exacerbate the problems that I just described. So,
yes, adding judges would help, but it would not completely
solve the problem.
Senator Feinstein. You see, I guess I have a problem really
understanding the problems that you are describing. Let me ask
this: In 1998, the Justice Department opposed splitting the
Ninth. Today, you are coming before us and you are supporting
splitting the Ninth.
What has changed? The Ninth has always been big. It has
always had a high case load. But there was always an admission
by Justice that there were certain economies of scale, certain
advances the Ninth had put in place that really offset any
deficiency caused by its size.
Now, you are not taking that position today, so what has
changed?
Ms. Brand. Well, I have read the Department of Justice's
1998 testimony. It provided comment to the White Commission in
connection with its study, and it then provided testimony to
Congress when Congress was looking at a bill that would have
implemented the White Commission's recommendations.
What the Justice Department said then was that we need to
wait and see. Basically the Ninth Circuit should take
additional administrative measures to address what the
Department did see as issues in the Ninth Circuit, and see how
it went.
Well, now 6 or 7 years have passed, and the Ninth Circuit
has no doubt been very innovative and very creative in using
administrative measures to improve its efficiency. But,
nevertheless, the case load has continued to rapidly increase,
the length of time for disposition has remained long, and the
administrative measures that they have taken have not entirely
solved the problem. The measures that have been taken consist
largely of delegating certain functions of the Court to non-
judicial officers, and inevitably there is some limit to how
much of the judicial function can be delegated to non-judges.
So at some point there are maximum efficiencies. And,
regardless of the measures that have been taken, we have
continued to see longer times and increased case load.
So I think we have taken a new look at the issue now. It is
2006, and there are good arguments on both sides, but we think
the weight of the evidence is in favor of a split.
Senator Feinstein. Okay. It is just that I have never seen
any advocacy by your Department for additional judges. As I
have tried to get additional judges, I have never received any
help from your Department. And I would like the record to
reflect that.
Ms. Brand. Well, may I make a comment about that?
Senator Feinstein. Sure.
Ms. Brand. The Attorney General has said on a number of
occasions that he supports adequate staffing of the judiciary
and that he supports new judges. He has told the Judicial
Conference that a few times now.
In October of 2005, the Department of Justice provided a
views letter on a Ninth Circuit split bill, and in that letter
we supported additional judgeships, and I just want to make
sure that you know today that we are supporting additional
judgeships for the Ninth Circuit.
Senator Feinstein. Yes. I guess what I am talking about,
Ms. Brand, is when it is really not writing a letter or
speaking to an outside group. It is lobbying in the House and
it is lobbying in the Senate. And I know of no such lobbying to
produce additional judgeships for the Ninth Circuit.
Let me ask you this question: If further study determined
that splitting the Ninth would result in inefficiency and
increased delays, would the Department still support splitting
the Ninth?
Ms. Brand. Well, Senator, I think that when you split a
circuit, in the beginning there will be certain administrative
challenges that will occur. That is inevitable. I think that so
much study has been done at this point that there is not a lot
of point in doing additional study. And I would also point out
that it is not just delay, it is not just cost that can be
measured in monetary terms that it is at stake here. There is a
very strong justice interest in consistency in the law. People
have to know what the law is, and the greater the body of case
law, we think, the greater the inevitability of intra-circuit
conflicts. You cannot quantify that in terms of efficiency,
administrative function, or money, but you can quantify it in
terms of the impact on justice. And so we want to make sure
that that interest is also taken into account.
Senator Feinstein. You know, it is just kind of interesting
to me. I have sat on this Committee for 14 years now. No one
from Justice has ever picked up the phone and called me and
said, ``You should know we have a problem with the Ninth
Circuit, and these are what the problems are.'' So I can only
conclude--and I must just say this--that this is political,
that it has nothing to do with the performance of the circuit.
I sat down with the Attorney General over a very pleasant
lunch. We discussed many issues. The Ninth Circuit was never
raised. And so if this is, you know, a substantial enough
effort, when you have the bar associations of every State, when
you have the majority of judges, when you have the majority of
lawyers that practice before the Ninth opposing a split, that
Justice suddenly comes up and does something they have never
done before, which is support a split, I really think the
reasons you present today are not, frankly, compelling.
Ms. Brand. May I respond to that very briefly?
Senator Feinstein. Sure.
Ms. Brand. The reasons why we have supported the split are
the ones that are stated in my testimony, and political
motivations would not have much bearing here because Ninth
Circuit case law that is in existence now is going to, I
predict, stay in effect. As I said, the bill does not address
what would happen with precedent, but if the Ninth Circuit and
Twelfth Circuit did what the Fifth and Eleventh did, then
existing Ninth Circuit case law would remain in effect in both
the Ninth and the Twelfth Circuits. So even if we wanted to do
away with Ninth Circuit case law, this split would not do it.
Moreover, the judges that are on the court now are going to
stay on the court, so our opposition has nothing to do with the
outcome of any particular case. It has nothing to do with our
opinions about any particular judge. It has to do with our
observations as litigants, our observations as lawyers, and our
general public policy interests in the administration of
justice. That is all I can say.
Senator Feinstein. So you are saying today that you do not
believe that the administration of justice is well served by
the Ninth Circuit?
Ms. Brand. I think it could be improved by a Ninth Circuit
split.
Senator Feinstein. Well, I would appreciate getting in
writing some specifics with the documentation.
Ms. Brand. I would be happy to do that.
Senator Feinstein. Thank you very much.
Thanks, Mr. Chairman.
Senator Kyl. I appreciate it, and if other members of the
panel wish to submit questions for the record, or perhaps if we
have additional questions, we will get those to you, and I
presume that we will leave the record open for the usual period
of time.
I appreciate your testimony, and I would just add one thing
to what Senator Feinstein said. I have mixed emotions about
dividing the court, but I have never determined that it would
make much difference politically. If you look at some of the
decisions, some of the judges live in places other than
California that some people love to rail against. But, in any
event, the one litigant that is in every circuit is the U.S.
Department of Justice, so you are not going to be able to
escape the clutches of whatever is being complained of, if it
is a political complaint, it seems to me.
Senator Feinstein. Let me just say this, if I might, Mr.
Chairman. The Justice Department has now joined the fray, and I
want them to put up, and if there is a problem with the circuit
and what was said here today is that there is not the proper
administration of justice, I want to know chapter and verse and
subchapter where the problems are.
Senator Kyl. Sure. Fair enough. I noted the two specific
cases you cited in your testimony, and you said you would try
to find some additional ones, and we will leave the record open
for you to do that.
Ms. Brand. Thank you.
Senator Kyl. Thank you very much for your testimony.
[The prepared statement of Ms. Brand appears as a
submission for the record.]
Senator Kyl. The next panel consists of Hon. Mary
Schroeder, who is Chief Circuit Judge of the Ninth Circuit;
Hon. Richard Tallman, Circuit Judge of the Ninth Circuit; Hon.
Sidney Thomas, Circuit Judge of the Ninth Circuit; Hon.
Diarmuid O'Scannlain, Circuit Judge of the Ninth Circuit; and
Hon. John Roll, Chief District Judge for the District of
Arizona.
I would like to briefly introduce each of these witnesses
because they are all extraordinarily distinguished, starting
with Judge Schroeder, current Chief Judge on the circuit, the
first woman to hold that position. She was appointed to the
Arizona Court of Appeals and served until 1979, when she was
nominated by President Jimmy Carter and appointed to the Ninth
Circuit. Before that, she was with the Phoenix firm of Lewis
and Roca. She served as a law clerk to Justice Jesse Udall of
the Arizona Supreme Court in 1970, practiced as a trial
attorney with the Civil Division of the Department of Justice,
authored numerous publications, received her B.A. from
Swarthmore, and her J.D. from the University of Chicago.
Interestingly, one of six women in her class at the University
of Chicago.
The Honorable Richard Tallman currently serves on the Ninth
Circuit. Prior to his judicial service, he was a partner with
the Seattle firm of Tallman & Severin and was previous to that
a member of the firm of Bogle & Gates. He had previous service
as a Federal prosecutor, first with the Criminal Division of
the U.S. Department of Justice and then with the U.S. Attorney
in Seattle; received his bachelor's degree from the University
of Santa Clara, summa cum laude, and his juris doctorate from
Northwestern University School of Law, where he was Executive
Editor of the Northwestern University Law Review.
The Honorable Sidney Thomas serves currently as the en banc
coordinator and death penalty coordinator for the Ninth Circuit
as a member of the court's Executive Committee. He previously
served as administrative head of the Northern Unit of the Ninth
Circuit, a member of the Judicial Council for the circuit. He
was in private practice and received his undergraduate degree
from Montana State University and graduated with honors from
the University of Montana Law School.
Judge O'Scannlain was confirmed to the Ninth Circuit in
1986. Between 1969 and 1974, he served as Deputy Attorney
General of Oregon, Public Utility Commissioner, Director of the
Department of Environmental Quality in Oregon. And then in
2003, the late Chief Justice Rehnquist appointed him to the
Federal Judicial Center's Advisory Committee on Appellate Judge
Education, and Chief Justice Roberts has recently elevated him
to chair that committee. He received his B.A. from St. John's
University, his J.D. from Harvard Law School, and his L.L.M.
from the University of Virginia Law School.
The Honorable John Roll was just recently elevated to the
position of Chief District Judge of the Arizona District Court.
Prior to that appointment, he served in a variety of positions,
including Judge for the Court of Appeals for the State of
Arizona, Judge on the Pima County Superior Court, and as an
Assistant U.S. Attorney for the District of Arizona. He
received his B.A. from the University of Arizona, his J.D. from
the University of Arizona College of Law, and L.L.M. from the
University of Virginia School of Law.
As you can see, a very distinguished panel, and I think the
best thing to do is simply start from my left with Chief Judge
Schroeder. Each of you are aware that we have a 5-minute clock,
if you can adhere to that to the best of your ability. Of
course, all of your written statements will be put into the
record, and so, Judge Schroeder, the floor is yours.
STATEMENT OF HON. MARY M. SCHROEDER, CHIEF JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA
Judge Schroeder. Thank you, Senator Kyl, and Senator
Feinstein--
Senator Feinstein. Could you move the mike directly--thank
you.
Judge Schroeder. It is a pleasure for me to--
Senator Feinstein. And turn it on. I do not believe it is
on.
Judge Schroeder. It is not? There, now it is on.
It is a pleasure for me to appear here this afternoon. I
understand the Committee has a specific proposal before it for
division of the circuit, and I think it illustrates the
dramatic inequities that flow from a split proposal that
separates California and Hawaii from the rest of the States in
the circuit.
I am pleased to have with me here to testify in opposition
to this proposal my colleague Sidney Thomas of Montana. He is
in line to become chief judge one of these days, and he has a
great expertise in dealing with case volume. You have already
introduced our newer colleagues who were confirmed by the
Committee within the last few years: Judge Callahan, Judge
Clifton, Judge Rawlinson, and Judge Bea. They also oppose split
of the circuit. Judge Kozinski is also here. He will succeed me
as chief judge, and he is opposition to splitting the circuit.
My concern in opposing is underlined by my view of the
administration of justice. My opposition is shared by all of my
predecessors within living memory as chief of the circuit,
beginning with Richard Chambers of Arizona, appointed by
President Eisenhower, and extending through chiefs appointed by
Presidents Kennedy, Nixon, and Carter, and the future chiefs
appointed by Presidents Reagan and Clinton. The overwhelming
majority of our court of appeals judges oppose a division. This
has never been a partisan issue for us.
You will have before you letters from lawyers, from
district judges, from law professors. They do not want a split
either. Neither do the bar associations that have been
mentioned already this afternoon.
The fact is that while the debate has been focused on a
handful of decisions from our court of appeals, the proposal
would dismantle the entire circuit. The circuit law for
California would be different from that of its neighbors.
Lawyers would have to track new and different circuit law in
bankruptcy, in commercial litigation, for example, that spans
Arizona and California. There is a lot of that, and that makes
the practice of law more expensive.
Of course, circuits on the East Coast have been fragmented
from the 18th century, but why in the 21st century should we
set out to create a similar system in the West. We in the West
didn't grow from 13 colonies.
This bill would leave California alone with Hawaii in a
circuit containing more than 70 percent of the cases in our
circuit, too few judges, much of the Pacific Ocean, and only
four Senators, leaving it difficult to get resources in the
future. And it could not use the judges we already are able to
use in the remaining States because they would be operating
under a different circuit law. They would no longer be
interchangeable.
So the new circuit would be overwhelmed with new cases that
included California, and as for the new Twelfth Circuit, it
would have a very busy Arizona border, a long border with
Canada, and large security issues to cope with, and it would
take years for a new circuit to assemble a staff with the
experience of the existing Ninth Circuit staff. And I might
mention our Clerk of Court Cathy Catterson is here as well as
our Circuit Executive Greg Walters.
And all of this is costly, as you have heard. We are now
experiencing growth in the number of immigration-related
filings. This is largely due to decisions in the executive
branch to decrease administrative review of immigration cases
and increase enforcement on the border. And we need to have and
the Governors of our border States have called for
comprehensive legislative policy.
We want to work with you in any details of whatever
legislation you enact so that immigration law can be
administered well. We need to work together.
Now, there are myths driving the proponents of dividing
circuit. One is that all circuits should look alike. But I live
in Maricopa County, Arizona. That county is bigger that
Connecticut. And another myth is that our en banc process--we
would not have to use a limited en banc. Congress authorized
it. We like it. We could sit with all of our judges. But we
have decided that limited en banc is a better use of resources.
There is a myth that smaller courts are more collegial, but
I think the testimony of our judges who oppose splitting show
that that is not true, either, and also that splitting is in
the natural order of things. I refer to the split of the
Eleventh and Fifth. It is documented in this book, ``A Court
Divided,'' published by Yale University Press. It really had
nothing to do with court administration. It grew out of the
bitter fight over civil rights divisions and civil rights cases
and the demands of some in Congress that the circuit be divided
to separate judges in that circuit. And eventually, when they
withheld judgeships long enough, the judges asked to be
divided. We have not asked to be divided.
I thank you for your time. I have gone a little over, and I
appreciate your indulgence.
[The prepared statement of Judge Schroeder appears as a
submission for the record.]
Senator Kyl. That is quite all right. Thank you, Judge
Schroeder.
Judge Tallman?
STATEMENT OF HON. RICHARD C. TALLMAN, CIRCUIT JUDGE, U.S. COURT
OF APPEALS FOR THE NINTH CIRCUIT, SEATTLE, WASHINGTON
Judge Tallman. Good afternoon, Mr. Chairman and Senator
Feinstein. My name is Richard C. Tallman. I was appointed by
President Clinton to the Ninth Circuit in May of 2000, with
chambers now in Seattle, Washington.
I am here today because I believe Congress must redress the
current burden on the Ninth Circuit's decisionmaking process. I
do not urge reorganization because I take issue with my court's
decisions, because I am tired of writing dissents, or because I
am looking for a comfortable sinecure here. My court is just
too big, with too many judges and too many cases to
consistently render quality decisions with adequate time to
reflect upon each case and apply the relevant case law, to
adequately confer with my colleagues in crafting a careful and
thoughtful disposition, or adequate time to call en banc all of
those cases requiring rehearing.
Instead, I see the case load growing at more than 10
percent per year, collegiality declining, and a lower
percentage of cases reviewed en banc. We are coping with the
remorseless crush of cases by employing the judicial equivalent
of triage. It works most of the time, but all objective data
suggest it is not working as well as it should, and I agree
with Assistant Attorney General Brand on that point.
Ultimately, it is our ability to maintain the people's
respect for the quality and reasoning of our decisions that
ensures the effectiveness of our system of justice and public
confidence in our courts. The case load is now too great to
permit even the most conscientious judge on our court to read
all the dispositions we issue, all decisions of the United
States Supreme Court, and the briefs and records of the nearly
600 cases annually assigned to each judge on our court. When
that process is rushed, mistakes are made. Cases fall through
the cracks.
Collegial decisionmaking is the hallmark of an effective
appellate court. In the past year, there were 26 active and 23
senior circuit judges on my court. I was able to sit on three-
judge panels with only nine of the active and seven of the
senior judges during the past 12 months. Because of our case
load, we are required to borrow increasing numbers of visiting
district and circuit judges from all over the United States,
more than 150 this year alone. The use of visiting judges,
though we appreciate their time and effort greatly, when
combined with the staggering size of my circuit, has made it
increasingly difficult for me to work with all of the judges of
my own court. This is unlike the experience on the other
Federal circuit courts of appeal where the average number of
active judges per court is less than 13. Working together on a
regular basis promotes a cohesive court, with shared
information, circulated expertise, and maximized efficiency.
Our current problems will only worsen over time. No matter
how efficient the circuit becomes in its current form, it
simply cannot keep pace with its ever increasing case load. The
Ninth Circuit terminated just under 2,500 fewer cases than it
received last year. My own recent experience hearing cases just
last week confirms that private civil appeals are hardest hit
by delays in case processing. As a result of our inability to
keep up, there are now over 17,000 cases pending on our docket
as of June 30, 2006, comprising 30.3 percent of the Nation's
entire Federal appellate case load.
I support some form of reorganization, either through
Senate bill 1845 or under a different configuration. I urge
consideration of a three-way split composed of a Pacific
Northwest circuit with five States, a Southwest circuit with
Nevada, Arizona, Hawaii, and the Pacific Territories, and a
stand-alone California circuit. But whatever choice you make,
please act soon. Any action now will greatly increase our
efficiency, our collegiality and manageability, and reduce the
delay in processing and deciding cases while saving money and
reducing productivity losses from extended travel time.
Conspicuous by its absence is any effective rebuttal to the
voluminous data showing that my court is disproportionately
large when measured by any metric. If we do not act now, we
will continue to do the best we can. But it will not be the
best we are capable of doing given the constraints within which
we must currently operate.
Thank you.
[The prepared statement of Judge Tallman appears as a
submission for the record.]
Senator Kyl. Thank you, Judge Tallman.
Judge Thomas?
STATEMENT OF HON. SIDNEY R. THOMAS, CIRCUIT JUDGE, U.S. COURT
OF APPEALS FOR THE NINTH CIRCUIT, BILLINGS, MONTANA
Judge Thomas. Yes, Senator Kyl, Senator Feinstein, I
appreciate the opportunity to testify on the legislation today.
Division of the Ninth Circuit would have a devastating
effect on the administration of justice in the Western United
States. It would increase case delay and reduce our ability to
provide service. It would cause unnecessary and wasteful
duplication. No one disputes that the Ninth Circuit has created
an extraordinarily efficient and effective administrative
structure that is unique among the circuits. We have been able
to accomplish this through economies of scale, technology, and
the aggregation of resources.
To give some examples that I believe you gave earlier,
Senator Feinstein, our mediation unit, with a 90-percent
success rate, settled almost 1,000 cases last year. That is
nearly the entire case output of the D.C. Circuit. The
Bankruptcy Appellate Panel decided nearly 700 appeals. The
Appellate Commissioner, a position unique in the Ninth Circuit,
resolved 4,000 motions and over 1,000 fee requests. Through
presentations of our Staff Attorneys Office, we resolved over
2,000 appeals and 11,000 motions. Our Habeas Unit assisted in
resolving over 1,000 appeals. The Ninth Circuit Pro Se Unit
handled over 6,000 appeals.
Now, what has been the result of this? Well, even though
the Ninth Circuit, as you have heard, has experienced an
astounding increase in immigration case load, over 587 percent
over the past 5 years, which has caused our total case load to
increase 50 percent over the same period, our case processing
time has only increased 1.2 percent over that same period. But
for the unexpected and temporary increase in immigration cases,
the Ninth Circuit would be current.
During the same period of time, other circuits did not fare
so well. Delay in the Second Circuit, which is the other
circuit hardest hit by the surge in immigration cases,
increased 23 percent. And even though the case load in the
Fourth, the Fifth, and the D.C. Circuits grew only 5 percent
over the past 5 years, as compared with the 50-percent increase
in the Ninth Circuit, their delay increased by more than 50
percent.
Despite unprecedented case load increases, we have held our
own because of our administrative efficiencies. However, due to
unnecessary duplication and increased costs, these efficiencies
would be destroyed by circuit division, leaving the same case
load to be managed with sharply reduced resources. One cannot
expect improved performance or reduced delay by forcing the
Ninth Circuit to lay off a substantial percentage of its
employees, and starting up a new circuit from scratch on a
shoestring budget. Circuit division will increase delay and not
reduce it.
None of the arguments raised in support of a circuit split
are persuasive. Proponents argue the circuit is too
geographically large, although it has been the same size since
the Truman administration. The present legislation will not
even address size, leaving 90 percent of the present land mass
in the new Twelfth Circuit, which would still stretch from the
Sonoran Desert to the Arctic Circle.
Proponents contend the Ninth Circuit issues too many
opinions for lawyers and judges to absorb, yet the Seventh and
Eighth Circuits produce more, with the Eighth Circuits issuing
30 percent more opinions than the Ninth. If circuit division is
justified by the sheer number of opinions, those circuits
should be split first.
All academic studies conducted to date indicate the Ninth
Circuit does not experience case conflict any more than any
other circuit. In fact, we have instituted a number of
procedures to prevent case conflict, including electronic case
and issue tracking that other circuits have not been able to
employ due to lack of resources.
Split proponents argue that population growth justifies a
split. However, there is no longer any correlation between
population growth and case load growth in the Federal
judiciary. Over the past 5 years, although the population in
the Ninth Circuit has increased substantially, the case load
from the district courts has actually decreased 1.2 percent.
Present case load growth is due to factors other than
population.
The separatists argue that the limited en banc process
justifies a split. However, the present legislation would still
retain a limited en banc court in the Ninth Circuit. All
studies of our en banc process indicate it is working well. Few
en banc decisions over the past 20 years have even involved
close votes, and, in addition, the Ninth Circuit already has a
mechanism to rehear a case before the full court if a majority
of the cases thought it necessary. In any event, a rehearing en
banc is a rare event in any circuit. Last year, only the Eighth
and Ninth Circuit reheard more than four cases en banc. It
makes no sense to dismantle one circuit and start up a new one
from scratch to allow more judges to hear four cases.
In the end, the question is how best to administer justice
in the West. The solution is not to duplicate management and
create more bureaucracy nor to build expensive new buildings in
one circuit while the space goes empty in another. The best
path is to become more efficient and effective by pooling our
resources and using economies of scale. Can we do better? Sure
we can. But the present structure of the Ninth Circuit provides
the best platform for administering justice in the Western
United States.
Thank you.
[The prepared statement of Judge Thomas appears as a
submission for the record.]
Senator Feinstein. Wow, he did it within 5.
Senator Kyl. All of you guys are really good.
[Laughter.]
Senator Kyl. Of course, I guess you are used to holding
litigants to that standard. It is only fair.
Judge O'Scannlain?
STATEMENT OF HON. DIARMUID O'SCANNLAIN, CIRCUIT JUDGE, U.S.
COURT OF APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON
Judge O'Scannlain. Senator Kyl, Senator Feinstein, my name
is Diarmuid O'Scannlain, United States Circuit Judge for the
Ninth Circuit, with chambers in Portland, Oregon. I appear
today in support of S. 1845, which has been set for markup by
your Committee in the next few days. My written testimony with
graphics attached is before you, substantially unchanged from
the very extensive hearings which you held last fall. Today, I
would like to emphasize three points.
First of all, the Ninth Circuit just does not look like
America anymore. Our court has grown to a size utterly
disproportionate from all other circuits in the Federal
judicial system, and as you can see from the charts and the
graphics beginning at page 17, the question of circuit
realignment is no longer whether, but when and how. All of this
disproportionality is exactly what the Congressionally mandated
Hruska Commission foresaw in 1973. Over 30 years ago, the
Commission recommended that both the then-Fifth Circuit and the
current Ninth Circuit be split. The Fifth Circuit promptly was
split, but the Ninth Circuit resisted. Regrettably, the chief
judges of the circuit have continually opposed a necessary and
inevitable restructuring.
After the Senate passed a Ninth Circuit bill in 1997, our
then-chief judge called for another study. Congress graciously
accommodated that request by creating the so-called White
Commission, which essentially reiterated the observations of
the Hruska Commission. Furthermore, the White Commission
recommended splitting the circuit into three semi-autonomous
divisional courts, leaving the circuit as but a shell. Yet,
once again, our circuit's leadership rejected that
Congressionally authorized Commission's well-considered report.
I listened to my colleagues in opposition, and they talk
like the Ninth Circuit is the center of the judicial universe.
I suggest their perspective is misplaced. The Ninth is only one
of 12 circuits in the Federal judicial system. The Supreme
Court, of course, is central. Chief Judge Schroeder cannot
point to a single Supreme Court Justice who agrees with her. We
have pointed to at least four who favor restructuring of the
Ninth Circuit.
Mr. Chairman, except for decisions in cases, the Ninth
Circuit is not immune from your oversight. It is no longer
defensible to allocate 20 percent of the Nation's population,
over 23 percent of the Federal case load, and over 30 percent
of the backlog of all Federal appeals into but one of 12
regional circuits. Why should the Ninth Circuit be treated
differently from its sister circuits? The burden is now on the
diehard split opponents to show why the overwhelming burdens
and vastly disproportionate size of the Ninth Circuit should be
retained in a system which presumes co-equal appellate courts.
My second point is to debunk the extravagant claims made
regarding the cost of a split. Most administrative costs would
be amply set off by reducing the size of the old circuit. With
respect, my chief judge assumes the new Ninth keeps the budget
of the old Ninth. If the new Ninth Circuit is about two-thirds
of the old circuit, that obviously means that one-third of the
combined budget, including a third of the staff and supplies,
would get reallocated to the new Twelfth. If there are any
significant additional costs beyond reallocation of the present
budget and some minor transitional expenses, I would be very
much surprised.
Certainly, there is absolutely no need whatsoever for new
courthouses to be built. Unused courthouse space now available
in Phoenix and Portland and Seattle will accommodate any
administrative needs. The $100 million number is a red herring,
and most of us in this room can see that for what it is.
Third, while I support S. 1845, which is similar to the
bill that actually passed in 1997, I do think that there are
other options as well. I have long felt that the Hruska
Commission offered a preferable solution, but out of respect
for the concerns of Senator Feinstein and, I believe, Chairman
Specter, about placing California into two different circuits,
I have demurred.
Let me conclude by noting that opponents of restructuring
myopically argue that everything is just fine. When they urge
that smaller circuits merge into bigger ones, they are simply
unrealistic. With respect, the data show that it is the Ninth
Circuit that is out of sync, and it is getting worse by the
day. I urge the Committee to act now.
Thank you, Mr. Chairman.
[The prepared statement of Judge O'Scannlain appears as a
submission for the record.]
Senator Kyl. Thank you, Judge O'Scannlain. And, finally,
Judge Roll.
STATEMENT OF HON. JOHN M. ROLL, CHIEF DISTRICT JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT OF ARIZONA, TUCSON, ARIZONA
Judge Roll. Thank you, Senator Kyl, Senator Feinstein. It
is an honor to be invited to testify before you. I
enthusiastically support S. 1845. I am the chief judge in the
District of Arizona. I speak only for myself, although five of
my colleagues from the District of Arizona have written to you
in support of this legislation as well.
When is a circuit court, which is only one of 12 regional
circuit courts, too big? In 1998, the White Commission
concluded that it was too big. Justice White, who chaired that
Commission, described it as ``adjudicatively malfunctioning,''
and Judge Pam Rymer of the Ninth Circuit said, ``The Ninth
Circuit is broke. It needs fixing and structural changes are
required.'' As has already been mentioned, four Supreme Court
Justices wrote in support of a split of the Ninth Circuit to
the White Commission. Since the White Commission issued its
report, the population of the Ninth Circuit has grown by 8
million people, and the case load is now 30 percent of all
pending Federal appeals. Now, you have heard a lot of numbers
discussed here. If you will look at my attachments, Attachment
B shows where that 30 percent comes from.
Justice Kennedy said, when he wrote to the White Commission
in support of a split, the burden should be on the split
opponents who want to have three-judge panels decide the law
for one-fifth of the United States. I submit to you the Ninth
Circuit has not made that showing.
It is the slowest circuit in the country in decisional
time, which is the time from the filing of notice of appeal to
the time of disposition. That is the time that matters to
litigants. It is 4 months slower than the average circuit and 2
months slower than the next slowest circuit. It has too many
judges, which requires the use of a limited en banc procedure,
which has been criticized by Judge Pam Rymer, who was a member
of the White Commission, and by Justice O'Connor, who said that
it just can't serve the same purpose as a full en banc. In
fact, Judge Rymer said a limited en banc is an oxymoron,
because `en banc' means `full bench.'
Only a fraction of the Ninth Circuit sits en banc. Panel
members who decide three-judge panel decisions frequently are
not selected to sit on the en banc. And I do dispute Judge
Thomas' indication that only a few of the limited en banc votes
are close. My Attachment J shows that since the White Report
was issued, one-third of the cases decided en banc by the Ninth
Circuit were by close votes, 6-5 or 7-4. It is the most
unanimously reversed circuit in the country. Since the White
Report was issued, it has been reversed unanimously by the
Supreme Court 62 times. Sixty of those cases were not even
heard en banc.
S. 1845 benefits all nine States of the Ninth Circuit. The
new Twelfth Circuit would look like most other circuits. Its
population of 21 million would be average. Its case load of
4,500 cases would be larger than five other circuits. Its case-
to-judge ratio would be right in the middle. It would be 7th of
the 13 circuits, with 351 cases per judge, and this is
illustrated on page 17 of my prepared statement, in a graph
that shows where those numbers come from. That is actually
larger than the case loads of the Third and the Sixth Circuits
in addition to some of the smaller circuits.
It would be tied with the Eighth Circuit for the most
number of States--seven States. The cost, as Judge O'Scannlain
has described, is not prohibitive, and that is described at
length in my attachments at Attachment M.
The Judicial Conference representation would be equalized
for a circuit of that size, and a BAP would be available, in
the opinion of Judge Lloyd George, who supports a split. And I
would point out that the Tenth Circuit has a BAP, so certainly
the Twelfth Circuit could have a BAP as well.
The new Ninth Circuit's case load would drop, with the
addition of seven new judges, to a ratio of from 570 to 518
cases per judge. That would take the Ninth Circuit down from
the third highest to the fourth highest.
The mantra that we have heard from the beginning is ``no
split is possible because the only way to evenly divide the
Ninth Circuit is to split California. California does not want
a split; therefore, you cannot split the Ninth Circuit.'' That
logic cannot possibly continue to prevail.
Thank you for the opportunity to appear before you.
[The prepared statement of Judge Roll appears as a
submission for the record.]
Senator Kyl. Well, thank you very much.
We have heard a lot about the collegiality of the court,
and it strikes me that if Senators could disagree as
strenuously and yet agreeably, as you all have, we would be a
better place.
[Laughter.]
Senator Feinstein. You do not know what happens after they
leave this room.
Senator Kyl. Well, for some reason I sense that somehow or
other they are able to function, but you are right.
Just a couple of things. First of all, do any of you who
support a division of the court disagree with my view-- and I
suspect this is Senator Feinstein's view--that neither of the
two, or if it were to be three, new circuits should--if the
object of the split is to try to relieve the case load burden--
that we should add a number of judges sufficient that the case
load is at least no greater than and hopefully less than the
current case load for each of the different remnants that would
be divided out? Is there any disagreement with that
proposition?
Judge Tallman. No disagreement.
Judge O'Scannlain. I don't think so, Senator. I think that
is the objective, and that can be attained through various
devices.
Senator Kyl. One device is we would have to authorize many
more judges, which I am in favor of doing, by the way.
Judge Schroeder, just for the record, because I think you
would want to probably do this delicately and in great
consideration, but given the fact that the immigration cases
are such a huge proportion of the new case load of the circuit,
and undoubtedly a drain on resources, if you all had ideas that
might be useful to us as we are trying to put together
immigration reform legislation that might in some way impact
that, it would be very useful for us. And so if you would like
to comment, fine.
Judge Schroeder. Yes, if I may comment to that. What has
created the tremendous increase in immigration appeals--and I
might add that this is felt by all of the circuits in the
country. Proportionately, it is just that we get about 50
percent of the immigration appeals. The Second Circuit gets
about 30 percent. So the two circuits with the great ports are
most affected in terms of the numbers, but everyone feels it.
What has created it has been the decisions in the executive
branch to increase enforcement and to reduce the intermediate
administrative review of cases.
Senator Kyl. Right.
Judge Schroeder. So that cases are coming from us--from the
immigration judge directly to the courts of appeals.
Senator Kyl. Which might suggest some other kind of
additional administrative remedies?
Judge Schroeder. This is correct. It--
Senator Kyl. If--I am sorry. Go ahead.
Judge Schroeder. Yes, administrative review would be one
option. Another that has been suggested is the creation of
something akin to the Tax Court that would take the cases from
the immigration judges to an Article I court and then to an
Article III court.
Senator Kyl. Would you treat this as an invitation to
submit for the record from the court any ideas that you have
that you think are appropriate coming from the judicial branch
for policy making? Because it has a direct impact on the
functioning of your branch, and, therefore, it seems to me a
legitimate thing for you to be commenting on.
Judge Schroeder. Well, within the bounds of respecting the
independence of our two branches, I would be happy to do that.
And as I indicated, if you settle--once Congress decides what
kind of policy it wishes to enact, we can work with you on the
administrative details so that it can be enforced effectively.
And we would like to do that.
Senator Kyl. Maybe what we could do is propose some options
and ask you to comment on them.
Judge Schroeder. That would be helpful.
Senator Kyl. Okay. One thing that struck me, much of the
statistical analysis and testimony are variations on themes
that have been testified to before, and I remember this being
said before, but it did strike me--and I think, Judge Tallman,
this came from you regarding collegiality--that there are 150
visiting judges, which does detract from the collegiality. And
I do remember testimony before that it is really critical for
the proper functioning of the court to have this concept of
collegiality, be able to know each other, to work with each
other on a continual basis. And it does seem to me that that
many visiting judges would impede that to some extent. If you
would like to follow up on that, I would appreciate it.
Judge Tallman. It impedes it in this way: We obviously need
to have their help given the case load, but if we are bringing
in judges from outside, then by definition, the panel is not
composed of all Ninth Circuit judges. So we cannot be spending
the same amount of time we would be with one another if we
didn't have to rely so heavily on visiting judges.
Senator Kyl. I appreciate that.
Senator Feinstein?
Senator Feinstein. Thank you, Mr. Chairman.
No current circuit consists of fewer than three States, and
you have all read the Commission reports, and you know there is
a reason for that. Obviously, if this split before us were to
take place, it would just be California and Hawaii in a
circuit, essentially, and very different in that respect.
Judge O'Scannlain is correct about my strong resistance to
a split of California. Clearly, if it were to happen here, it
would set a precedent for it to happen in other ways.
Judge O'Scannlain. Right, and I respect that, Senator.
Senator Feinstein. We all know California is a huge State
and it is growing, and it is going to be bigger, but to date,
nobody has suggested dividing California.
I am very curious why you do not consider the White
Commission's comments with respect to maintaining the three--
State circuit as, to an extent, dispositive.
Judge O'Scannlain. Well, Senator, if I may, two points.
First, I am not sure I agree with you on your statement
that no circuit has less than three States. The District of
Columbia Circuit, which is an independent, separate circuit,
just like all the rest, only has one jurisdiction, and that is
the District of Columbia. So there is a precedent for a one-
jurisdiction circuit. Some people have suggested that the State
of California is so large that it should be its own circuit.
Indeed, if it were its own circuit, it would be, as of day one,
the largest circuit in the country in terms of case load and
judges, and it would be unique in that way.
Now, with respect to the White Commission, don't forget the
White Commission created three separate divisions, divisional
courts, two of which straddled California. There was one for
the southwest, one for sort of the middle, that would include
the northern and eastern districts and put them in two separate
divisions within our court. So we would be splitting California
to that extent. Again, the court rejected the White
Commission's recommendation.
Senator Feinstein. If I can, let me go back to the
immigration situation, because a 497-percent increase in cases
is considerable. The question is what to do about it.
Now, Judge Schroeder referred to setting up some other
entity. Senator Specter, Mr. Chairman, as you know, had a
provision in the immigration bill that would automatically take
those cases and place them elsewhere.
Are there any other suggestions with respect to this high
load of immigration cases? And let me ask another question.
Where do they come from--well, I guess where do they come from
is not a good question to ask. But are there any other
suggestions as to any solution with respect to the high
immigration case load? Judge Thomas?
Judge Thomas. Yes. First, our immigration case load came
from a decision by the Attorney General to process--
Senator Feinstein. I cannot hear you. I am sorry.
Judge Thomas. I am sorry. Our current immigration case load
came from a decision by the Attorney General to process over
50,000 cases in 4 months from the Board of Immigration Appeals.
All indications are that this is a spike, although starting to
decline, we do not know how long. So we think and hope that it
is a bulge in cases rather than a permanent situation.
Interestingly, of our case load, 80 percent of those cases
wash out before they get to oral argument panels. Either they
are procedurally barred or they are jurisdictionally barred.
And that is where the importance of our staff and triage comes
into play, because if the staff can triage 80 percent of the
cases before it gets to an oral argument panel, that is very
significant.
So in any solution I think we have to maximize our staff
resources, but there are two approaches. One, of course, if you
create a different court, that takes 40 percent of our case
load away right away. If we just concentrate our resources and
try to even improve our ability to tackle these cases, then I
think in a few years, we will be current with the immigration
case load by just leaving it as it is.
Senator Feinstein. All right. Now, whatever is done,
California accounts for 69 percent of the circuit's appeals,
and if size is the primary concern with respect to the current
Ninth, the current legislation would still leave the Ninth with
the largest case load circuit.
Given the size, wouldn't a new Ninth have the same alleged
problems with numbers of judges and case load as the current
Ninth?
Judge O'Scannlain. Well, Senator, if I may suggest, if any
of these options is pursued, either transfer to a central
court, such as the Federal Circuit, or the creation of perhaps
an Article I court or another court of immigration appeals, the
problem is not going to go away. There certainly has been a
little bit of a bump because of the streamlining, but, on the
other hand, given the enforcement by the executive in the
immigration area, those prosecutions and those issues are going
to continue to be with us for an indefinite period of time.
Another option would be to sprinkle these immigration cases
throughout the country so that circuits other than the Ninth
and the Second would be assigned cases. This can be done--you
have got the MDL model, the multidistrict litigation model,
which could be used in that situation. But I would hope that
you can look at the immigration issue as a separate issue, if
that can be done. I have no idea where that stands in terms of
your agenda this year.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Senator Kyl. Thank you.
We are joined by the Chairman of the Subcommittee on
Courts, Senator Sessions of Alabama, and if he is not ready, I
can go ahead with just one question. But if you are, Senator
Sessions, the floor is yours.
Senator Sessions. Why don't you go ahead.
Senator Kyl. Well, I have one question. It just takes a
little long to ask it. This is something that comes out of
something that was near and dear to the heart of Senator
Feinstein and myself, our crime victims rights law, and a case
in which the Ninth Circuit was so slow in performing its
function that we finally filed an amicus brief in the case. And
on the theory that a picture is worth a thousand words and that
sometimes something that sort of directly impacts you is more
meaningful than a lot of statistics, for example, this may
suggest one area in which I have noted the difficulty of the
court in dealing with a case within the time frame it was
supposed to.
Under the victims rights law, when there is a writ of
mandamus, under this particular section, the court is to decide
the application within 72 hours after the petition is filed.
But in the Kenna case, instead of that happening, nothing was
done with the case for 2 months. Finally, the Ninth Circuit
directed the district court to file a response to the petition.
Unfortunately, Mr. Kenna was not served with that. He finally
got a copy from the Ninth Circuit clerk's office. On September
22nd, now 3\1/2\ months after his original petition, he filed a
request for ruling with the Ninth Circuit, reminding the court
that almost 4 months had elapsed after the court was supposed
to have decided the case within a matter of 72 hours.
Three weeks later, October 13th, the case was finally
referred to the Merits Panel, but then instead of expediting
the case, the clerk ordered it calendared during the week of
January 9, 2006--7 months after the petition for writ of
mandamus was filed.
On December 30th, we finally filed an amicus brief, as I
said, on behalf of Mr. Kenna. And finally, on January 11, 2006,
the case was argued. Then on January 20th, 7\1/2\ months after
the petition had been filed, the case was decided.
I do note and appreciate the fact that in the opinion the
court noted its error here and said, ``Finally, we recognize
under the statute we were required to take up and decide this
application forthwith, within 72 hours after the petition had
been filed. We acknowledge our regrettable failure to consider
the petition within the time limits of the statute and
apologize to the petitioner for this inexcusable delay.''
Obviously, litigants have to abide by the time frames that
are set forth by the court and by the rules, and I would note
that at just about exactly the same time that this case was
proceeding, a petition was filed in the Second Circuit and was
resolved within the 72-hour period that the statute required.
Now, obviously, a case like--you know, it is always
possible for there to be a slip-up, but in the administration
of justice, we all work really hard to avoid slip-ups because
we are dealing with real people's lives, and in this case
involving victims of crime who have already been victimized
once. So the question is not how could this happen. I suppose
anything--it is possible for a mistake like this to be made.
But it has certainly made an impression on me as to the ability
of the court to deal with cases in a speedy way.
If any of you would like to comment on that, I invite it,
but it is more in the nature of ``this is one of the things
that has kind of been sticking in my craw.'' Yes, Judge
Schroeder?
Judge Schroeder. Yes, I would like to comment on that
briefly, Senator Kyl. That was an unfortunate glitch that
happened because it was new legislation and our clerk's office
did not understand, did not realize the time limitations on the
legislation.
We have now corrected our procedures so that we are alerted
when these cases are filed, and that should not happen again.
Judge Thomas. In fact, I would add, Senator, that we had
three of those cases last July. All of them were processed
within the 72 hours. And to get a written published opinion,
which is a requirement of the legislation, is quite a feat. But
we have now remedied that situation, and those cases are
getting flagged. My understanding is that the parties in that
case did not necessarily flag, and the parties may not have
been interested in the time limits, or at least flag the time
limits for us. But it was an error in that case, and I think
the answer is when we make an error, we try to address it. And
we have addressed it.
Senator Kyl. Well, I know from the counsel to the parties
that the parties were very concerned about the lack of
timeliness. As I said, everybody can make a mistake. The court
certainly recognized it and made the point. But it does
demonstrate that from an administrative standpoint, it slipped
through. And at the same time, another circuit was handling the
case that it had in accordance with the legal requirement.
I actually took a Republican question. Would you like to
question next, or shall I turn to Senator Sessions?
Senator Feinstein. Turn to Senator Sessions.
Senator Kyl. Okay. Senator Sessions?
Senator Sessions. Thank you, Senator Kyl and Senator
Feinstein. I know you both care about the Ninth Circuit. You
have been engaged in these issues for many years. I have come
to it as Chairman of the Courts Committee with the belief that
we ought to have a good panel and a good hearing and good
testimony and see what the facts shake out. And I look up, and
this is the same group we had before.
[Laughter.]
Senator Sessions. And I guess that means you are the best
of the best, with the best perspectives and best insight.
I just remember very, very vividly testimony from judges in
other circuits when Senator Grassley chaired the Subcommittee,
and they were concerned about the growth of the circuit. Judge
Tjoflat on the Eleventh said that they would be willing to work
harder and have a higher case load because if you get the
number too big, it does not work. Some have compared the Ninth
Circuit to the House of Lords instead of a court. I mean, there
are 28 active judges authorized, and we really need more. And
you just get so big, that finally you are not a court anymore,
in my view. And since the old Fifth split to the Eleventh and
the Fifth, they have been happy with that. They would not go
back. They are so enthusiastic about the collegiality they have
been able to maintain, and that allows for consistency and
uniformity when you are a tighter circuit. And when you get
bigger, you get panels that, statistically speaking, may not
represent the full--the heart of where the circuit is, and that
may well be one reason the circuit has had more difficulties in
getting its cases affirmed by the Supreme Court, because you
can get an aberrational panel when you have 30 judges to pick
from. You may get three that have the most extreme view on one
particular subject, and that is the one they decide. So it ends
up with a number of problems.
So I have concluded, after our hearing, that we should
proceed forward. I have thought, I say to my colleagues, that
perhaps a three-way split would be the best because it would
have two ideal-size circuits, both of which are in growing
areas, and it would probably take care of us for 20 or 30
years, maybe, or more hopefully. It would still be a large
California circuit, and whatever is with it, but I do think we
need to take that first step in going forward.
Looking at the case load, for example, I believe, Judge
Tallman, you submitted this chart. First, I would say that even
as currently configured and with the number of judges that you
have--and I know you believe you should have more circuit
judges. The case load per judge is 595 or 600; whereas, in the
Eleventh Circuit it is higher, it is 642. So you don't have the
highest case load per judge in the country. And I do think we
have got--as we work through the immigration matter, we have
got to figure out a way to make the law clearer, and if we do
that, I think we will have less appeals in the long run, and
maybe a spate of them as the law is initially contested, but
they could decline.
I am sure you have discussed all the fundamental questions
of the circuit. I would ask this question, I guess for Judge
Schroeder. How many new judges--if we did not divide the Ninth
Circuit and we just left it, how many new judges do you need
now? And I am sure you probably have a number a little higher
than I would think, but I know you need some additional judges.
What is your judgment and what does the AO recommend?
Judge Schroeder. Yes, I am glad you asked that question,
Senator Sessions. We have not had a new judgeship on the Ninth
Circuit since 1984, and we have requested--and we have never
had our full 28 authorized judgeships full except for about 5
minutes once. And we now have two vacancies. As long as 5 years
ago, about 5 years ago, before I became chief, we had as many
as ten vacancies.
Now, we have asked for a number of years for seven judges.
I believe that if the seven judges were added to the circuit,
that would help--that would enable us to do our job well if the
immigration cases, as you say, as you indicate, there were a
different channel for those or they were to diminish, as we
think they will.
So if you were to split the circuit, in order to make the
Ninth Circuit load equivalent to what the new Twelfth Circuit
would be, you would have to add somewhere between 13 to 20
judges all to the California circuit.
So that we want to share the load. Administratively, that
is our goal. And we can share the load, we think, pretty
effectively with the seven additional judgeships if they get
filled. Of course, I am not holding my breath for that.
Senator Sessions. Well, I think at some point we have got
to confront that problem. I think you are at the upper end. You
have the second heaviest case load per judge in the country,
and so we need to think about your request.
Now, I would ask you to comment, and if any of the others
would, but you have opposed the idea that we would have
immigrant appeals go to the Federal Circuit or another type
arrangement. Wouldn't that be a real relief to the circuit? And
why would you oppose that?
Judge Schroeder. I opposed their going to the Federal
Circuit because the Federal Circuit is already a specialized
court with other fields. Those judges are not familiar with
immigration issues, and it is a court that is located in
Washington, D.C. It is as far away as possible from where the
immigration cases emanate.
But my mind is open as to--I have no fixed solution for
this. I did not think that the Federal Circuit was a good
solution.
Senator Sessions. Any other members of the panel want to
comment on that subject?
Senator Kyl. Senator Sessions, I might note that at the
very beginning we invited the members of the court to give us
their suggestions as to how to deal with these large number of
immigration appeals, and perhaps the best way to deal with that
is to send them some options that might come out of our debate
about the immigration reform and elicit their reaction to those
options. And they have agreed to do that for us.
Senator Sessions. You know, the split did not occur after
the Fifth, the old Fifth split, and the White Commission, I
think probably, assuming some political problems out there,
proposed this divisional concept, which I am not particularly
comfortable with.
Judge O'Scannlain, would you like to opine on the
difference between a two-way or three-way split? I do not know
what perspective--I do not remember your perspective on it,
but--
Judge O'Scannlain. Well, in my detailed written testimony,
I have indicated a fairly thorough analysis of different
options. My preferred option, as I indicated here, was the
Hruska Commission report, which was, in effect, followed in the
White Commission when it decided to split the single circuit
into three separate divisions, divisional courts, including two
courts that would share California, the third division would be
mostly the Northwest.
I think there are considerations both ways. If you cannot
split California, maybe the time has come to look at California
being its own circuit, just like the District of Columbia. That
should be examined.
After that, if we want to get into closer parity with the
rest of the country, why, it might make sense to have a
mountain circuit starting from Arizona up to Montana and Idaho,
with Nevada. That was the bill, actually, that came out of the
House in 2004, with a Northwest circuit. There is another
option which would be a Northwest-Southwest. Now, that has been
a fairly popular proposal starting with Senator Jackson and
Senator Magnuson as far back as 1955 when this entire debate
kind of got started in a real way. So we are at this 50 years
now.
But there are a variety of different ways to go, and I can
see pluses and minuses on all of them. But I think they all
come back to your State, Senator Feinstein. California has to
be the center of the analysis. The rest of us are very logical
regions. The Northwest is probably the most logical region--
Oregon, Washington, Alaska, Idaho, and Montana. I think there
is almost very broad unanimity on that. In fact, we have a
division inside our court that represents that. But then from
there on, I think it is a matter of negotiation, as well as
analysis in terms of what works.
Senator Sessions. Well, thank you, and I have taken too
much time. I appreciate your leadership.
I think we should move forward. That is all I would say. I
think we need to move this thing to a solution, and I hope that
we can reach a comfort level in the Senate that will allow that
to happen.
Senator Kyl. Senator Sessions, thank you.
I am going to have to apologize to the panel. Senator
Feinstein has one final comment or question she would like to
pose, but I am going to have to leave here. I will turn the
meeting over to Senator Sessions. We do have one more panel.
But I appreciate all of you being here to testify. It may
have been dejavu all over again, but I learn something new each
time.
[Laughter.]
Senator Kyl. So at least I appreciate it very, very much.
Senator Feinstein, I will turn the microphone over to you
now.
Senator Feinstein. You know, Judge Schroeder very politely
said that the court has been asking for seven judges and has
not gotten them. I want to put this on the table. We try, and
the reaction that comes back from the House is no new judges
until the circuit is split. Ergo, starve the Ninth Circuit,
force it into disrepair, until they finally have to admit that
it needs a split.
I want everybody to know I will never, ever go to that. I
will never, ever let that happen, one way or another. The fair
thing, if the proponents of a split want a split, is to give
the Ninth the judges it needs now, and then see if there is
still a problem. If there is still a problem, then we know
something. But, you know, 15 judges sit en banc. Well, that is
not enough. It should be all 28 or 30 or 35.
I do not agree with that at all, and I think that there has
been a basic unfairness in this whole argument, and it is sub
rosa, but it continues year after year and it is not fair. It
is not fair to do this to this circuit. And the most cost-
efficient way is simply to provide the necessary judges, then
make the judgments. Then see what the time lags are. Then see
how the cases proceed.
But absent that, I can only believe this is being done with
a political motive. If you don't give the circuit what it needs
to be equal with other circuits, you do not start out on a
level playing field. And that is where this discussion is
today. It is not a level playing field. No circuit is as
distressed as the Ninth in terms of vacancies and the need to
fill them. The longer you keep the vacancies vacant, the more
you do not accede to the requests based on case load for
additional judges, the more you starve the circuit and you
increase the problems. And I believe that is the strategy
around here, and it is a wrong strategy. And some of us cannot
accede to that strategy. So I think that card has to be put on
the table.
Senator Sessions [Presiding.] All right. Thank you. Of
course, there are other circuits that need judges also, and I
would just say that is not the Senate's strategy.
Senator Feinstein. It is the House strategy, though.
Senator Sessions. It may--I have heard things of that
nature said.
[Laughter.]
Senator Sessions. But I do not know that that is the
definitive issue, and I do not know that--you know, at some
point we have got to move beyond those intense feelings. I
understand your approach to it, Senator Feinstein. I know you
care about it, and you are not going to be ordered around. And
we have got some on the other side that will not be ordered
around, either.
Senator Feinstein. Sure.
Senator Sessions. They have hard heads, too.
So this is an excellent panel. I wish I could have heard
all of your testimony. Thank you for that. Unless any of you
have something you feel like you have to add, we will go to the
next panel. Thank you for your service to your country and your
commitment to justice.
Senator Sessions. Our next panel includes Dr. John Eastman,
the Henry Salvatori Professor of Law and community Service at
Chapman University School of Law. Prior to joining the Chapman
faculty in August 1999, he served as a law clerk for Justice
Clarence Thomas at the Supreme Court and at the United States
Court of Appeals. After his clerkships, he practiced with the
national law firm of Kirkland & Ellis, specializing in civil
and constitutional litigation. Prior to law school, he served
as Director of Congressional and Public Affairs at the U.S.
Commission on Civil Rights and was a 1990 Congressional
candidate. He earned his undergraduate degree at the University
of Dallas and J.D. from the University of Chicago School of
Law, where he graduated with high honors. He has a Ph.D. and an
M.A. in government from the Claremont Graduate School, with
fields of concentration in political philosophy, American
government, constitutional law, and international relations.
That is a lot.
Mr. Eastman. Do I get more than 5 minutes?
[Laughter.]
Senator Sessions. Mr. Neukom is the Chair of Preston Gates
& Ellis, LLP. In January of 2004, he was elected to that
position. He rejoined Preston Gates in the fall of 2002 from
his position as Executive Vice President of Law and Corporate
Affairs at Microsoft, where he spent 17 years managing the
company's legal and government affairs and philanthropic
activities. As Microsoft's lead counsel, he was instrumental in
securing the landmark victory in Apple v. Microsoft. That was a
historic event. And he has led Microsoft's defense in antitrust
claims and other actions. He is President-elect of the American
Bar Association. He earned his A.B. from Dartmouth and his
L.L.B. from Stanford.
Dr. Eastman, we are prepared to hear from you.
STATEMENT OF JOHN C. EASTMAN, CHAPMAN UNIVERSITY SCHOOL OF LAW,
ANAHEIM, CALIFORNIA
Mr. Eastman. Thank you, Senator Sessions, Senator
Feinstein. It is a real honor and pleasure to be here.
I teach constitutional law at Chapman University in
Southern California, so I am a constituent of yours, Senator
Feinstein. But I also run the Center for Constitutional
Jurisprudence, which litigates all over the country, but in
particular in the Ninth Circuit. And so I deal with these
questions, and I want to address the notion that this effort to
split the Ninth Circuit is political. If it were, and if I were
politically motivated, most of the judges that tend to vote my
direction on my cases would be lost from the Ninth Circuit that
would remain in California, and so I would be on the other side
of this. So I guess I am speaking against interest here in
arguing it is not political.
I want to focus on the notion of judicial collegiality
because I think that is a real stake, a real issue here, and I
do not think it has been addressed in the right terms. By
``collegiality,'' I do not mean the mere exchange of
pleasantries. The judges on the Ninth Circuit are famous for
their collegiality in that sense. What I mean is the notion of
shared authority that comes from a court. It is the idea that
judges embody the knowledge that they have a common interest in
getting the law right, as Judge Harry Edwards noted in a 2003
Law Reserve article.
Collegiality within an appellate panel permits an open,
honest, and frank discussion of otherwise divisive legal issues
without fracturing the unity of the group but, more
importantly, I think helps get the law right. That familiarity
between the judges means that there will not be any particular
judge who decides to go off solo and apply his own personal
agendas rather than really making an effort to get the law, as
received, correct in their opinions.
As First Circuit Judge Frank Coffin noted nearly two
decades ago, while serving as the Chairman of the Committee on
the Judicial Branch of the United States Judicial Conference,
``The increased size of courts and heavy workloads mitigate
against the old-fashioned collegiality that existed when judges
sat often with each other.'' And I think this is a huge
problem. In my written testimony, I go through several other
examples of this.
In other words, if we are serious about having decisions
from courts rather than individual decisions from individual
judges, the size of the court does matter. And the larger you
make the court, the more number of judges you add, the fewer
opportunities they have to sit with each other and develop the
kind of collegiality that I think is necessary to the rule of
law.
Now, the most comprehensive assessment of this was done by
Judge Richard Posner, a sitting judge on the Seventh Circuit,
and he has gone through trying to control for every splits on
ideology and these other things by looking at one of the
critical statistics: the number of unanimous or summary
reversals by courts in the country, by the Supreme Court, by a
Supreme Court that does not often do things unanimously over
the last number of decades. And the Ninth Circuit is by far the
largest reversed court on that, six times larger than the next
circuit. And I think that, quite frankly, is a function of this
lack of collegiality in the sense of court building, getting
the law right. They do not sit often enough. You heard
testimony today that they have 150 judges a year from other
circuits, district judges sitting by designation. All of that
undermines the ability of the Ninth Circuit judges to function
as a collaborative court rather than individuals. And it
enhances the prospect that those individual decisions will
simply get the law so wrong that they unanimously get reversed.
The second thing--and I think the Department of Justice
testimony on this was accurate, and I can give you anecdotal
stories. When I get clients and they say, ``What is the
likelihood of success on this appeal?'' I often tell them, ``I
can't tell you that until I know what the panel looks like.''
That is a terrible statement about the notion of law in any
circuit in the country. And I think practitioners told the
White Commission that exists--they have the sense that it
exists. It is hard to quantify, but they have the sense that
that exists more often in the Ninth Circuit than anywhere else.
And I think the Department of Justice testimony--and I look
forward to the additional information that they provide in
response to Senator Feinstein's request--about the number of
intra-circuit conflicts that are created is important. And it
is not just on the published decisions. The Ninth Circuit is
frequently using unpublished decisions or summary decisions by
staff in order to keep up with the workload. That is not the
way we ought to be looking at the implications of justice in
this country, and I think the evidence is very strong that it
is time to split that Ninth Circuit at least into two and, I
would argue, probably three circuits.
Thank you.
[The prepared statement of Mr. Eastman appears as a
submission for the record.]
Senator Sessions. Mr. Neukom?
STATEMENT OF WILLIAM H. NEUKOM, ESQ., PRESTON GATES & ELLIS,
LLP, SEATTLE, WASHINGTON
Mr. Neukom. Thank you, Senator Sessions, Senator Feinstein.
It is good to see each of you again. I am appearing as a lawyer
who has the privilege of representing clients, largely business
clients, in the Ninth Circuit.
Senator Feinstein. Could you pull over the mike, please?
Mr. Neukom. Yes, of course.
Let me suggest, in addition to my written testimony, that
there are four significant advantages for enterprises of
keeping intact the Ninth Circuit Court of Appeals.
First, in a geopolitical era characterized by a global
economy, it seems to me it is clear that a uniform, stable, and
predictable body of law in a large and coherent--and I am going
to come back to that--geographic area is of enormous value. As
enterprises plan their work and work their plans, they desire
as consistent a set of rules by which to run their businesses
as is possible. It is apparent and it is common-sensical that
it is more difficult and much more expensive to try to manage a
business to pockets of law in a geographical region of any
size.
Second, the coastal States of the Ninth Circuit are
incubators for a huge share of the intellectual property
brought to regional and national and, indeed, to the world
market. Those intellectual property enterprises perform best,
they are most efficient, they are most productive in an
environment of well-developed intellectual property rights law.
Intellectual property rights law is the means by which
technological companies can derive value from their inventions.
That is how inventors and innovators protect their intellectual
property from piracy and counterfeiting. It is how they earn a
royalty, by permitting others to use their intellectual
property, how they get a return on their investment.
Intellectual property rights law is the foundation in a very
fundamental sense of a powerful incentive cycle that leads to
the creation and the bringing to market of useful technology
and drives the economy, and will increasingly in the 21st
century. And it is this Ninth Circuit, as presently
constituted, this bench, with its experience and its expertise
in intellectual property rights law that has created an
invaluable body of law that guides the activities and helps
resolves the disputes in the critical sector of intellectual
property businesses.
Third, a unified West Coast jurisprudence of intellectual
property rights law, of maritime law, of commercial law,
encourages commerce and trade between our country and the other
countries around the Pacific Rim, an area which, by most
measures, may be the fastest-growing economy in the world.
And, finally, at a somewhat more conceptual level, if you
will, I think the history of the judiciary and I think any
basic understanding of human nature shows that the convergence
on panels and in chambers of judges of different backgrounds
from a broad region and the resulting diverse and broad
perspective that they bring to their deliberations and to their
analyses promotes sound reasoning and just results.
Let me comment on one other notion. It seems to me that the
theater of this hearing, chock-full of information as it was,
is just a bit misleading, and I invite the Committee to pay
particular attention to the record in its entirety. And I
believe that any objective review of the record in its entirety
will reflect that the evidence overpoweringly is in support of
retaining the Ninth Circuit intact for good reasons: because of
the quality of its work and because of the efficiency of its
administration of its important responsibilities.
The people who know the most about the Ninth Circuit and
bringing justice to the parties who appear before the Ninth
Circuit, the judges on the circuit, the judges in the districts
within the circuit, the lawyers and their professional
associations who appear as advocates before that bench, the law
professors who constantly analyze and organize the decisions by
that bench--all of them, the people who know most and best
about this vital organ of Government, overwhelmingly endorse
the Ninth Circuit in its current configuration.
Thank you for your attention.
[The prepared statement of Mr. Neukom appears as a
submission for the record.]
Senator Sessions. Just briefly, while you mentioned the
fact, Mr. Neukom, that we are in a global economy and the Ninth
Circuit involves a lot of international trade and that it is
important to have uniform, stable, predictable, and coherent
opinions, my observation is that is exactly what we are not
getting out of the circuit.
You, Mr. Eastman, raised a point that has been obvious for
some time that this is the most reversed circuit by the Supreme
Court, whose duty it is in one sense to maintain uniformity and
consistency throughout the land, and it is 6 times as likely to
be reversed by unanimous decisions.
So I would ask both of you to make a brief comment on maybe
Mr. Neukom's and my disagreement. Mr. Eastman, you start since
you raised the reversal rate.
Mr. Eastman. Yes, I think that is right. There are two ways
to look at uniformity. You can have uniformity by having a
single circuit, and if it could consistently apply the law
within the circuit, you would get a greater degree of
uniformity. But I think Judge Posner's statistical analysis has
demonstrated that is not what we are getting out of the Ninth
Circuit. And nobody has laid a finger on his analysis in
criticizing that. We are getting disuniformity within the
circuit because it is too large.
But let me add a point to that. If the point we want to
have intellectual property--a single body of law because of the
importance of the technology, we should perhaps add Boston and
Northern Virginia to the Ninth Circuit because of their
thriving economies in that field as well. We do not do that
anywhere else in the country, and we do not do it for good
reason.
There is an importance to the size of the court that allows
you to get within a court a judgment that was uniform within
the court, and then the Supreme Court can deal with inter-
circuit conflicts to make sure you get unanimity at that level.
Senator Sessions. Mr. Neukom?
Mr. Neukom. Senator, in terms of consistency, I would
invite the Committee's attention to the written testimony of
Judge Thomas, who I think sets out the evidence quite clearly.
I think each of us has our opinions. I simply cannot resist the
observation that I do not hear the uproar from the advocates
who appear in front of this circuit day in and day out.
There is a single law professor in front of you today.
There is a letter from several hundred law professors. You have
heard from three judges in favor of this legislation from the
circuit, two opposed; there are others in the audience who are
in favor of keeping it intact; and there is the overwhelming
majority of the 23 or the 26 who say keep it as it is.
I do not see the problem, and we each have our own
anecdotal evidence, and perhaps better than that. But I think
the point is for the Committee, with the help of its staff, to
consider this record in its entirety. And I think what comes
out of that kind of an overarching review is that this circuit
is exemplary all in, in terms of the quality of its decisional
process, in terms of the guidance it provides to its
constituents within that district, and particularly with regard
to its efficient and innovative administration.
Big is not bad. The question is how you manage your size
and the resources that you--
Senator Sessions. Wouldn't you agree that an en banc panel
of nine is more feasible than one of 28?
Mr. Neukom. I think it is, and I think an en banc panel of
nine judges of the quality that we have in our circuits may be
perfectly adequate to afford the parties a broader review, a
broader perspective review of the merits of an appeal. It is
not clear to me where the quality leaves off between nine or 15
and 25.
Senator Sessions. Well, you have made a number of points,
and I would just say that there are two sides to both of those
points. The intellectual property rights, well, the upper West
Coast has a strong basis of intellectual property cases, and
many of them are right there in the Washington-Oregon area. I
do not know why they would not maintain an expertise.
Second, as to maritime trade laws, I think there are other
circuits that have trade and maritime laws to deal with. They
have panels more consistent than the Ninth Circuit. And I do
not know that--it seems to me the fundamental thing that the
Ninth Circuit seems to lack is the focus on--well, that is
probably an unfair statement. Let me just say it this way: I
believe the circuit ought to be committed to getting the case
right, what the law says, not what their personal view of
international trade is or trademark cases. And it seems that
based on the historical appellate record, panels from other
circuits get it wrong less often than panels of the Ninth
Circuit. So I think that is a reason to consider smaller
circuits. And, second, it just would strike me, once this
decision would be made and a division were to occur, if ever it
does, that people would be really happy with it. They may be
objecting right now, but I think the judges are all going to be
happy, just like the Fifth Circuit was when it split. I
remember being there when the Eleventh Circuit was started up,
and they would never want to go back.
Senator Feinstein?
Senator Feinstein. I think this is a very interesting
discussion, Mr. Chairman, because it is true there is a small
coterie of people who have been pushing for this split of the
Ninth Circuit. You know, I have great respect for Judge
O'Scannlain. He hangs in there like a tiger. His reports are
like--you could get a Ph.D. This could be a dissertation. And
he hangs in, and I respect that and appreciate it. I am not
being critical.
On the other hand, there is no pressure that I get anywhere
I am home for a split in the Ninth Circuit. All the bars are
opposed to a split. The dominant number of judges are opposed
to the split. Most of the Governors are opposed to the split.
This comes, obviously, from somewhere, but in terms of
size, it is not at all reflective of the circuit. In terms as
Mr. Neukom has said, it is not reflective of participants in
the circuit, professional participants. It comes from outside.
So when I say it is political, because there is no popular
support for this, I come to the conclusion it is political
within certain circles.
Now, Mr. Neukom, I think you have raised a very interesting
point, and I want to explore it a little bit more. Obviously,
you have represented a very large intellectual property
industry in your time, and that is Microsoft. Could you be more
specific in how the Seattle-based companies and the Silicon
Valley based companies rely on the unity of law and what might
happen, if it would happen, if there were not that unity of
law?
Mr. Neukom. I would be pleased to, Senator, and I should
say, as I have in my written testimony, that these are my views
and do not represent the views of my former employer or my
current employer. But an example would be, I think, the very
contentious litigation that has gone on between the Microsoft
Corporation and some prominent companies in Silicon Valley. If
you are trying to design a litigation strategy for such a
company in that situation, and if the case is before a district
court in the Northern District of California, you are gratified
to know that that court will be likely applying the law of the
Ninth Circuit, which is law well known and understood to you
because your company is based in a State which is also within
the Ninth Circuit. And you are also gratified to know that that
is a circuit, as I alluded to earlier, which, because of its
breadth, certainly all the way up and down the coast--and I do
not mean to suggest there is not increasing amounts of
intellectual property being created inland from that coast. But
certainly it is a powerful incubator of intellectual property,
and as a result of that, a lot of those cases have come before
this circuit, and this circuit has become expert in it.
So you can expect that you will get a fair shake wherever
you might be, in whatever district court you might be, because
you know that it will be reviewed and those judges know it will
be reviewed by a circuit, and it will be reviewed by a circuit
which is expert.
That helps you in terms of predictability and confidence in
designing a strategy and advising a client. And what that leads
to, I think, is less prospect of that sort of litigation and
the chance to resolve matters earlier.
The same thing is true in licensing of intellectual
property. You are going by a set of rules, whether in
litigation or in licensing, that are relatively uniform, and
that is helpful to businesses. That increases their efficiency
and reduces their cost and lets them pay attention to job one,
which is creating useful technology that drives this economy of
ours.
Senator Feinstein. What would you have done, representing
Microsoft, if the circuit was split?
Mr. Neukom. I would have cared a lot more which district
the case was being tried in, and I would have allocated
resources to trying to determine that forum at the outset. And
it would have changed the strategy from the beginning. Do you
bring a lawsuit or respond to a lawsuit? If you respond to a
lawsuit, you try in some way to have it moved to a different
venue. That complicates things enormously and increases the
expense.
Senator Feinstein. Of course, forum shopping has been one
of my objections to the split of California that you would have
real conflicts between the north and the south as to--and you
could have conceivably one decision in the southern part of the
State and another decision in the northern part of the State,
which would not make much sense.
Do you have any specific anecdotal evidence with respect to
maritime law and, again, the concept of unit?
Mr. Neukom. I do not have any before me. I would be pleased
to look into that subject and to bring some to the Committee's
attention, if you think that would be helpful.
To the point that was made earlier, I think that if we
could do it over again, and if we were trying to get the most
out of our opportunities in the Atlantic Rim--forgive me for
coining a phrase, ineptly--I think it is just obviously more--
it is easier to do business when you have a uniform set of
rules in a coast which is doing trade with countries off of
that coast. And so, yes, we have a number of circuits on the
East Coast, going from Maine to Texas, if you will. That does
complicate, I think, trade on the East Coast in a way that
having the uniformity of the West Coast maritime law makes it
simpler and more efficient to do trade and to provoke trade and
commerce with Pacific Rim countries.
Senator Feinstein. Thank you. My time is up.
Thanks, Mr. Chairman.
Senator Sessions. One thing I would add that I think is
important is that I assume when the circuit splits, if it were
to, we would by law or the circuit would itself adopt, as the
Eleventh Circuit did, the authoritative law of the old Fifth,
and you would adopt as authoritative the Ninth Circuit law. And
I think that would give confidence that there is not going to
be any real change.
And, second, I really want to object to the concept that
every circuit is independent and has all kinds of different
bodies of law. You know, we have just one Constitution. We have
one body of Federal statutory law. And in theory and our ideal
is that there is a fair interpretation of that and everybody
ought to reach the same interpretation and we ought not to have
a whole bunch of different theories.
The problem, as I understand it, with the Ninth is that
they have had this extraordinary number of reversals by a
unanimous U.S. Supreme Court because of the large number of
judges on the court, they have been consistently or too
frequently unable to render opinions that are deemed by the
U.S. Supreme Court to be faithful followers of the law. And I
think the numbers and statistics indicate that.
Yes, there has been some concern about the Ninth Circuit,
and I guess the circuit and others may have a defensive feeling
about it. I have become more convinced that the size maybe is a
problem more than ideology. But, regardless, I think we ought
to move forward with this. I think we ought to listen to
Senator Feinstein, because we always do, because she is
thoughtful on it. And we appreciate both of you for your
insights into subject.
If there is nothing else, we will stand adjourned. Thank
you.
[Whereupon, at 4:34 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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