[Senate Hearing 109-1035] [From the U.S. Government Printing 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 ---------- 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 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 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 ---------- 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 ---------- 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.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]