[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

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

43-383 PDF                       WASHINGTON : 2009 

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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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