[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

                     RESTRUCTURING THE 9TH CIRCUIT



                               BEFORE THE

                            SUBCOMMITTEE ON
                            AND THE INTERNET

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             MARCH 16, 2017


                           Serial No. 115-11


         Printed for the use of the Committee on the Judiciary

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                 DARRELL E. ISSA, California, Chairman
                  DOUG COLLINS, Georgia, Vice-Chairman
LAMAR SMITH, Texas                   JERROLD NADLER, New York
STEVE CHABOT, Ohio                   HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
JIM JORDAN, Ohio                     THEODORE E. DEUTCH, Florida
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
RON DeSANTIS, Florida                BRAD SCHNEIDER, Illinois
MATT GAETZ, Florida                  ZOE LOFGREN, California
ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
                                     LUIS GUTIERREZ, Illinois
                            C O N T E N T S


                             MARCH 16, 2017

                           OPENING STATEMENTS

The Honorable Darrel Issa, California, Chairman, Subcommittee on 
  Courts, Intellectual Property, and the Internet................     1
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................     2
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     3


The Honorable Sidney R. Thomas, Chief Circuit Judge, United 
  States Court of Appeals for the Ninth Circuit, Oral Statement..     7
The Honorable Carlos T. Bea, Circuit Judge, United States Court 
  of Appeals for the Ninth Circuit, Oral Statement...............     9
The Honorable Alex Kozinski, Circuit Judge, United States Court 
  of Appeals for the Ninth Circuit, Oral Statement...............    10
Professor John Eastman, Dale E. Fowler School of Law, Chapman 
  University, Oral Statement.....................................    12
Professor Brian T. Fitzpatrick, Vanderbilt University Law School, 
  Oral Statement.................................................    14

              Additional Material Submitted for the Record

Statement submitted by the Honorable Louie Gohmert, Texas, 
  Committee on the Judiciary. This material is available at the 
  Committee and can be accessed on the Committee repository at:
Statement submitted by the Honorable Andy Biggs, Arizona, 
  Committee on the Judiciary. This material is available at the 
  Committee and can be accessed on the Committee repository at:
Statement submitted by the Honorable Andrew J. Kleinfeld, Circuit 
  Judge, United States Court of Appeals for the Ninth Circuit. 
  This material is available at the Committee and can be accessed 
  on the Committee repository at:
Statement submitted by the Honorable John M. Roll, Chief United 
  States District Judge, United States District Court for the 
  District of Arizona. This material is available at the 
  Committee and can be accessed on the Committee repository at:
Statement submitted by the Honorable Diarmuid F. Scannlain, 
  Circuit Judge, United States Court of Appeals for the Ninth 
  Circuit. This material is available at the Committee and can be 
  accessed on the Committee repository at:
Statement submitted by Professor Brian T. Fitzpatrick, Vanderbilt 
  University Law School. This material is available at the 
  Committee and can be accessed on the Committee repository at:
Statement submitted by Professor Arthur D. Hellman, University of 
  Pittsburg School of Law. This material is available at the 
  Committee and can be accessed on the Committee repository at:



                        THURSDAY, MARCH 16, 2017

                        House of Representatives

    Subcommittee on Courts, Intellectual Property, and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The subcommittee met, pursuant to call, at 10:40 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Darrell Issa 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Issa, Goodlatte, Collins, Chabot, 
Franks, Jordan, Poe, Chaffetz, Marino, Labrador, Farenthold, 
DeSantis, Biggs, Nadler, Conyers, Richmond, Lieu, Schneider, 
and Lofgren.
    Also Present: Representative Gohmert.
    Staff Present: Joe Keeley, Chief Counsel; Zack Walz, Clerk; 
Jason Everett, Minority Chief Counsel, Subcommittee on Courts, 
Intellectual Property, and the Internet; David Greengrass, 
Minority Counsel; and Rosalind Jackson, Minority Professional 
Staff Member.
    Mr. Issa. The Subcommittee on Courts, Intellectual 
Property, and the Internet will come to order.
    Without objection, the chair is authorized to declare a 
recess of the committee at any time.
    We welcome everyone here today for the day's hearing, 
``Bringing Justice Closer to the People: Examining Ideas for 
Restructuring the Ninth Circuit.'' And I now recognize myself 
for a short opening statement.
    It has been more than a decade since we last considered a 
bill to, if you will, split the Ninth Circuit. The Ninth 
Circuit is by far the largest circuit of the 12. Additionally, 
the Ninth Circuit hears, more or less, 20 percent of the 
appeals. And some would say from this side of the dais 
throughout the various States that it also is the most reversed 
    Notwithstanding that, it is my circuit. It includes my 
State. And I am deeply concerned today, and will be until we 
find resolution, that stripping away the other States of the 
Ninth Circuit would still leave California as by far the 
largest circuit.
    So when we come together today, we come together with two 
challenges: one, that there is no way without splitting a State 
to have, at current, California not be, if it were all by 
itself, the largest circuit.
    Secondly, we have wrestled with this for now decades. 
During that time, the Ninth Circuit has grown, and today, with 
four vacancies, there is additionally five more requested. If 
all were granted, the Ninth Circuit would be 34 judges. And 
we're honored to have some of those judges with us today.
    I am here to say I'm pleased to see that the Fifth Circuit 
in 1980 was done--its splitting was done in less than a year, 
no ill effects, and, in fact, passed both the House and Senate 
by unanimous consent. I hope today to have the same result to 
whatever we propose.
    It's now my pleasure to recognize the ranking member of the 
full committee, Mr. Conyers, for his opening statement.
    Mr. Conyers. Thank you, Mr. Chairman.
    Members of the committee, today's hearing provides an 
important opportunity to examine whether the Ninth Circuit 
Court of Appeals is able to adequately perform its duties as it 
is currently structured.
    The hearing takes on an added importance in the wake of a 
series of decisions in the Ninth Circuit and elsewhere 
overturning President Trump's Muslim/refugee ban. Instead of 
coming to terms with the legal flaws with his own executive 
order, President Trump has chosen to attack the Ninth Circuit, 
which he has said is in chaos and, frankly, in turmoil. Those 
are quotes.
    Last night, after learning of the Hawaii court's decision 
again rejecting his ban, he said: ``People are screaming to 
break up the Ninth Circuit. You have to see how many times 
they've been overturned with their terrible decisions,'' end 
    Of course, none of what the President has charged about the 
Ninth Circuit is true. The Ninth Circuit is as well-organized 
as any in the country. Of the very few Ninth Circuit cases the 
Supreme Court takes up, a significant portion are overturned, 
but that's true for every circuit, several of which are 
overturned at a higher rate than the Ninth Circuit. And, 
overall, less than one-tenth of 1 percent of the Ninth Circuit 
decisions are overturned by the Supreme Court.
    The reality is this is not a new debate President Trump has 
brought us to. It is one that we have had for decades. Although 
I will not speculate why there continues to be such an interest 
by some of my conservative colleagues to divide the Ninth 
Circuit, there are several points we should keep in mind.
    To begin with, splitting the Ninth Circuit would not bring 
justice closer to the people. Instead, it would likely result 
in further delay, reduce access to justice, and waste the 
taxpayer dollars. If the Ninth Circuit were divided, there 
would not be sufficient judicial resources, particularly with 
respect to addressing the significant caseload demands of the 
district and bankruptcy courts.
    Although legislative proposals introduced this Congress 
take differing approaches to dividing the Ninth Circuit and 
creating a new 12th Circuit, inevitably all of these have one 
common problem: Such restructuring would result in a 
significant financial cost to American taxpayers, because 
millions of dollars would be needed to construct the new 
circuit headquarters and for other costs.
    Another concern I have is that splitting the Ninth Circuit 
would do little to improve judicial efficiency. And none of the 
legislative proposals would actually resolve the heavy caseload 
problem, because a clear majority of the Ninth Circuit cases 
come from California. Any circuit that includes all of 
California will still have the largest number of judges and 
appeals, and it would serve the largest population.
    Finally, I am particularly skeptical of any legislative 
proposal ostensibly intended to assist certain entities when, 
in fact, those very same entities oppose or question the need 
for such a legislative fix. Dividing the Ninth Circuit is 
opposed by a majority of the judges in that circuit as well as 
by the bar, including the American Bar Association itself. In 
fact, the White Commission, which Congress established to study 
the issue, concluded in 1998 that splitting the circuit was 
impractical and unnecessary.
    And so I ask my colleagues to very carefully listen to the 
witnesses today and join me in opposition to dividing the Ninth 
    I thank you, Mr. Chairman.
    Mr. Issa. And I thank you.
    With that, we recognize the chairman of the full committee 
for his opening statement, Mr. Goodlatte.
    Chairman Goodlatte. Thank you, Mr. Chairman.
    This morning, the subcommittee will hear testimony on the 
longstanding issue of the vastly large Ninth Circuit Court of 
    For the past several decades, the size of the circuit has 
continued to grow, far in excess of other circuits. Twenty 
percent of the U.S. population now resides in this circuit, 
with nine States and two territories, making it twice the size 
of any other circuit.
    Today, the Ninth Circuit has 29 authorized judgeships, also 
far exceeding the next closest circuit, the Fifth, with only 17 
judges. The Judicial Conference has already asked for five 
additional judgeships for the Ninth Circuit, and more requests 
may be coming this summer.
    As noted by Justices Kennedy and Thomas in their 2005 
testimony before the House Appropriations Committee, judicial 
collegiality is an important component for the consistent rule 
of law. Oversize circuits, wherever they may be located, 
undercut such collegiality by limiting the interactions of the 
entire circuit as a collective whole.
    In our creation of a court system below the Supreme Court, 
Congress envisioned an appellate system that limited the 
initial appellate panel to a subset of the whole circuit that 
was then followed by the circuit, sitting as a whole, hearing 
any further appeals.
    It is unfortunate that a prior Congress authorized the 
Ninth Circuit to operate with 11-judge en banc panels that 
masquerade as true en banc panels. This has resulted in an 
important component of our appellate system being lost. 
Although the Ninth Circuit has procedures to use true en banc 
panels, they have never done so, despite some of the critical 
cases they have handled.
    In response to a similar crowding issue in the Fifth 
Circuit, this committee in 1980 enacted legislation to move 
three of its six States to a new 11th Circuit and provided only 
a year of transition time. I highlight the fact that the 
legislation passed in both the House and Senate by unanimous 
consent. The transition required by that bill occurred 
    Various groups have studied the size of the Ninth Circuit. 
The 1998 White Commission recommended that the Ninth Circuit 
not be formally split but, instead, be divided into three 
separate adjudicative divisions. Whatever one may think of this 
commission and its recommendations, it, too, recognized the 
need to do something about the Ninth Circuit, by splitting it 
into three divisions in conjunction with a process to resolve 
intradivision splits. There is not a huge logical leap between 
dividing the Ninth Circuit into three adjudicative divisions 
and dividing into separate circuits outright.
    And in response to those who might argue against the split 
by stating that size creates efficiencies, I would point out 
that no one has suggested combining other circuits to make them 
    As this committee moves forward on legislation addressing 
issues facing the Federal courts this year, I look forward to 
addressing the Ninth Circuit, in addition to other issues.
    Thank you, Mr. Chairman. I yield back.
    Mr. Issa. I thank the chairman.
    We now recognize the gentleman from New York, the ranking 
member of the subcommittee, Mr. Nadler, for his opening 
    Mr. Nadler. I thank the chairman.
    Mr. Chairman, proposals to split up the Ninth Circuit Court 
of Appeals have been floated since at least 1941. What was a 
bad idea at the time of Pearl Harbor remains a bad idea today.
    Proponents of splitting up the Ninth Circuit generally mask 
their arguments in concerns over its size and the supposed 
detrimental effect this has on judicial efficiency and on the 
consistency of its rulings. They say that it covers too much 
geographical distance and too large a population to be 
effective. They argue that, because it is so large, there is 
administrative waste, there are procedural delays, and the 
judges aren't able to work together to produce a consistent and 
rational jurisprudence.
    However, the facts say otherwise.
    It is true that the Ninth Circuit is the largest of the 11 
regional circuit courts of appeal in terms of physical area, of 
population covered, and of caseload. With a district that 
includes Alaska, Hawaii, and the territories of Guam and the 
Northern Mariana Islands, it is no surprise that judges must 
occasionally travel great distances to serve the entire 
circuit. But we have things called jet planes and email that 
make it possible to minimize the disruption that any physical 
distance may cause. Indeed, that disruption is less today than 
it was in 1941.
    And with California as the anchor State in the circuit, it 
is unavoidable that it will cover a large population. Unless 
you were to split the State in half, which would be disastrous 
from the point of view of judicial coherence, a large circuit 
is just a fact of life.
    But there is simply no evidence that the Ninth Circuit's 
size has impeded its ability to administer justice to the 
people within its jurisdiction. To the extent that there is a 
somewhat higher backlog of pending cases in the Ninth Circuit 
compared to other circuits, more resources can be devoted to 
resolving those issues. Indeed, just yesterday, the Judicial 
Conference recommended adding an additional five judges to the 
Ninth Circuit, which would certainly reduce the workload per 
judge. And technology is being deployed in a variety of ways to 
help improve administrative efficiency.
    There is also no evidence to support the frequently made 
claim that the Ninth Circuit is a renegade court with wild and 
unpredictable rulings. Even the often-cited statistic that the 
Ninth Circuit is allegedly the most reversed circuit at the 
Supreme Court is wildly misleading. Given the very small sample 
size since so few cases ever reach the Supreme Court, it is 
hard to conclude much from the sometimes modestly higher rate 
of reversal that the Ninth Circuit faces by the most 
conservative Supreme Court in many generations. Indeed, the 
worst numbers cited by critics is 2\1/2\ reversals per 1,000 
    What this debate is really all about is that conservatives 
do not like the more liberal rulings that occasionally emerge 
from the Ninth Circuit. They believe they can manufacture a new 
circuit that would produce more conservative results. That is a 
very different and a more dangerous matter.
    Like clockwork, we see proposals to split up the Ninth 
Circuit whenever it delivers a controversial decision with 
which conservatives disagree. Whether it is ruling that the 
Pledge of Allegiance should not include the words ``under 
God,'' overturning restrictions on abortion or gay rights, or, 
most recently, its unanimous decision to uphold the temporary 
stay on President Trump's unconstitutional Muslim and refugee 
ban, the Ninth Circuit has long been in the sights of 
Republican politicians.
    Just last night, President Trump said at his campaign 
rally: ``People are screaming, break up the Ninth''--this is a 
quote. Quote: ``People are screaming, break up the Ninth 
Circuit. And I'll tell you what, that Ninth Circuit you have to 
see. Take a look at how many times they've been overturned with 
their terrible decisions,'' unquote.
    But to manipulate the Federal courts in order to achieve 
the political ends you seek is highly inappropriate. Just as 
there is a nationwide movement to end legislative 
gerrymandering, we should resist this form of judicial 
gerrymandering as well.
    Proponents of splitting up the Ninth Circuit will present a 
vast array of reasons why it is too large and must be broken 
up, but none of their arguments withstand scrutiny. And the 
proposals they have advanced to solve the alleged harms they 
cite would not actually achieve the results they say they want. 
Any proposed 12th Circuit would still cover a significant 
distance and leave in place the large Ninth Circuit base in 
California, all while introducing uncertainty into the law at 
great taxpayer expense.
    While I believe that splitting up the Ninth Circuit would 
be both unnecessary and unwise, I appreciate having the 
opportunity to hear from all our distinguished witnesses on 
this issue.
    I would note that all three of the judges appearing today, 
like a majority of their colleagues on the Ninth Circuit, 
oppose such a split, as does the American Bar Association and 
numerous other practitioners and experts who have studied this 
issue in great depth.
    I look forward to the judges' testimony and to the 
testimony of our other witnesses, and I yield back the balance 
of my time.
    Mr. Issa. I thank the gentleman.
    All members may have 5 legislative days in order to have 
their opening statements and other comments placed in the 
record. Without objection--we'll waive other ones.
    Before I do that, I will recognize the gentleman from Texas 
for purpose of a unanimous consent.
    Mr. Gohmert. Thank you, Mr. Chairman.
    As a member of the full committee, I'd ask unanimous 
consent to include a letter in the record with an attachment as 
to how the cases would be broken up if it was California in the 
Ninth Circuit and all the other States in another circuit.
    Mr. Issa. Without objection, it will be placed in the 
    This material is available at the Committee or on the 
Committee repository at: http://docs.house.gov/meetings/JU/

    Mr. Issa. We have a distinguished panel here today. The 
witnesses' written statements will be entered into the record 
in their entirety.
    And I will ask you to summarize, when you give your 
statements, in 5 minutes or less. I will not hold you to it, 
but the light will indicate that your time has expired.
    Additionally, I want to thank the judges who came and, in 
some cases, stayed for a protracted period through the 
snowstorm to be here today. I know it was a personal sacrifice, 
and I very much appreciate it.
    Before I introduce the witnesses, it is the committee rule 
that all witnesses be sworn. So would you all please rise, 
raise your right hand to be sworn?
    Do you solemnly swear or affirm that the testimony you will 
give today will be the truth, the whole truth, and nothing but 
the truth?
    Please be seated.
    Let the record indicate that all witnesses answered in the 
    Our witnesses today include the Honorable Sidney Thomas, 
Chief Judge of the United States Court of Appeals for the Ninth 
Circuit; the Honorable Carlos Bea, Circuit Judge for the United 
States Court of Appeals, Ninth Circuit; the Honorable Alex 
Kozinski, Circuit Judge for the United States Ninth Circuit.
    You guys are critical to this, of course.
    We are also joined by Professor John Eastman of Chapman 
University School of Law and Professor Brian Fitzpatrick of 
Vanderbilt University School of Law.
    And, with that, we'll go straight down, starting with you, 



    Judge Thomas. Thank you, Mr. Chairman.
    Mr. Issa. I think you're going to have to turn your mike 
on. See if the button in front----
    Judge Thomas. Yeah. Thank you, Mr. Chairman. It's a 
privilege to be here, and thank you for the opportunity to 
testify. My name is Sid Thomas, and it's my privilege to serve 
as Chief Judge of the Ninth Circuit Court of Appeals, but the 
views I express today are my own.
    The Ninth Circuit is effectively and innovatively managed 
and provides tremendous service to the district courts. 
Splitting the circuit would have a devastating effect on the 
administration of justice in the western United States. It 
would increase case delay and cause expensive, unnecessary, and 
wasteful bureaucratic duplication.
    A circuit split would be costly. Under the current 
legislative proposals, a new circuit headquarters in Phoenix 
would cost an estimated $136 million; required renovations in 
Seattle could reach $54 million; and the construction of a new 
space for holding court in Las Vegas, Anchorage, and Missoula 
would cost about $2 million at each location. And those 
facilities would have to be staffed year-round but only used a 
few weeks a year. A circuit split would result in two clerks of 
court and staff, two circuit executives and staff, and the 
creation of two circuit libraries. And none of that expense is 
    Over the past decade, the Federal judiciary has made a 
concerted effort to save taxpayer money by cost containment, 
consolidation, and shared administrative services. Creating a 
new expensive, duplicative, and unnecessary bureaucratic 
structure would be a giant step in the wrong direction.
    When a circuit split is discussed, most of the focus is on 
the court of appeals, but the court of appeals is only a small 
part of our circuit. The circuit includes 14 separate district 
courts, bankruptcy courts, and pretrial probation offices, and 
these courts are the ones that do the nuts-and-bolts work that 
directly affect the largest number of citizens. A circuit 
division would substantially reduce the services we could 
provide to them. We provide support for cybersecurity, judicial 
disability and wellness, human resources, court policy, and 
many other aspects.
    For example, the Ninth Circuit resources allow the quick 
deployment of visiting judges to districts in need. When 
Arizona was in a state of judicial emergency, with a 
skyrocketing criminal docket, we were able to quickly dispatch 
visiting judges from within the circuit to solve it.
    And we do this all the time in the circuit. Since 1999, 
we've made 200 visiting judge designations to Arizona, 300 to 
Idaho, 100 to the Southern District of California, and 80 
judges took 15 cases each recently to resolve 1,500 cases in 
California's Eastern District. We simply would not have 
sufficient judicial resources to mount this kind of effort with 
a circuit split.
    The Ninth Circuit has also been aggressive in finding ways 
to save money. We reduced our physical space, saving taxpayers 
$7 million a year in rent. Our capital case budget review 
process and electronic fee voucher systems have saved hundreds 
of thousands, if not millions, of dollars. And the list goes 
on. But most of these initiatives would not be possible if the 
circuit were split because we would lack personnel and money.
    On the appellate side, a circuit split would significantly 
increase delay; it would not reduce it. The Ninth Circuit is 
known for its innovative and effective case management. For 
example, the Ninth Circuit appellate commissioner, a position 
unique to the Ninth Circuit, resolved over 4,000 motions and 
over 1,700 fee vouchers that would otherwise have been assigned 
to judges. Staff motions attorneys disposed of over 5,000 
noncontroversial motions through clerk orders that would 
otherwise be handled by judges.
    On staff presentation, judicial motions and screening 
panels resolved almost 2,400 merits appeals, 1,300 habeas 
appeals, and 3,200 motions. Our pro se unit analyzed 5,000 
cases last year for jurisdictional and procedural defects.
    Last year, our mediation unit settled 1,135 appeals, and 
that exceeds the output of many of the smaller circuits. The 
year before, it was around 1,500 appeals. And we've had great 
success with our mediation efforts. The continuing mediation 
efforts arising out of the California energy blackout cases has 
resulted in $8.7 billion being refunded to consumers, 
businesses, and local governments.
    We've only been able to achieve the success because the 
Ninth Circuit has economies of scale and a critical mass of 
resources, which would be lost in a circuit split. One cannot 
divide one budget between two circuits, unnecessarily duplicate 
staff positions, put substantially more administrative tasks on 
judges' desks, significantly reduce staff support, and expect 
faster resolutions of appeals or better service to the public. 
A circuit division would create more appellate delay, 
significantly reduce support to our judicial districts, and 
would be wastefully expensive.
    Can we do better? Certainly, we can, and we will continue 
to try. But the best way to assure the effective administration 
of justice in the West and to bring justice closer to the 
people is to keep the Ninth Circuit intact.
    Thank you, Mr. Chairman.
    Judge Thomas's written statement is available at the 
Committee or on the Committee repository at: http://
    Mr. Issa. Thank you.
    Judge Bea.


    Judge Bea. Good morning, Mr. Chairman and members of the 
    Mr. Issa. I'm afraid the same affliction happens to every 
    Judge Bea. Good morning, Mr. Chairman, members of the 
subcommittee, and thank you for taking time to hear the views 
of the judges of the Ninth Circuit on the restructuring.
    My name is Carlos Bea, and I've served on the Ninth Circuit 
since October 2003, when my nomination by President George W. 
Bush was confirmed by the Senate. And the views I express here 
are my own.
    Based on my 13 years of experience on the circuit court, I 
am opposed to the geographical division proposed by the several 
bills in the Senate and House hoppers. I would like to discuss 
three topics regarding the advantages of the present circuit 
and answer a couple of criticisms.
    First, I point to the great advantage to our business and 
professional communities in having a uniform body of law which 
covers the nine western States and the Pacific islands. A 
decision by our court binds courts and litigants in the whole 
western area. This minimizes the risk that law of intellectual 
property--copyrights and trademarks, for instance--maritime 
trade, labor relations--employment discrimination, for 
instance--will be different in Phoenix or San Francisco or 
    You can easily grasp this is not an abstract advantage. Who 
has standing to sue on a copyright infringement claim is now 
uniform in Washington State, home of Microsoft Corporation, and 
California, home of Google Corporation, thanks to our Silvers 
    Whether an employee qualifies as a whistleblower if he has 
or has not informed his superiors but has not informed the 
Securities and Exchange Commission calls for the same elements 
of proof in San Francisco and in Tucson.
    Mr. Neukom, the general counsel of Microsoft and former 
general manager of the three-time World Series champion San 
Francisco Giants----
    Mr. Issa. You've made your case.
    Judge Bea [continuing]. Pointed out the practical effect of 
this predictability in his opposition to splitting the circuit 
back in 2006.
    A practical illustration of the advantage of a single 
western circuit would be the intellectual property rights 
litigation over the past 30 years between Microsoft, based in 
Seattle, and companies such as Apple Computer and Sun 
Microsystems, based in Silicon Valley. While this litigation 
proceeded before trial courts in the Northern District of 
California, we were reassured by the fact that the district 
court there would apply the same interpretations of copyright 
law that a district court in Seattle would apply because they 
are both part of a single Federal circuit.
    The very size of the Ninth Circuit gives foreign and 
domestic traders confidence against the perception that they 
will be hometowned. Indeed, the advantage of a large circuit 
may point to a different sort of restructuring of the appellate 
courts nationwide, which is the concentration of circuits, 
rather than the dispersal. The best size for the circuit 
depends a great deal upon the issue that is being framed. 
Uniformity of tax laws is best achieved by a large circuit.
    A second reason why I favor retaining our present structure 
is that we sit on panels with judges of other States who come 
to the circuit with many different backgrounds and experiences. 
This is especially true in environmental law cases, where the 
judge is someone who has lived and practiced and judged where 
the trees involved actually grow or the streams that flow 
actually are and the jobs of harvesting the trees and 
controlling the streams are affected. That helps determine the 
analysis and the outcome. This predictability and uniformity of 
law based on diversity of thought and backgrounds of the judges 
would suffer under any balkanization.
    A couple of words on two other points.
    The most frequently heard criticism of the Ninth Circuit is 
large geographic size. It's already been mentioned by Member 
Nadler that we no longer travel between circuits on overnight 
trains and we don't wait for postmen to bring us our decisions 
and our memoranda, so the size of the circuit is not a cause of 
any delay or any malfunction.
    And, also, as mentioned by the Chief Judge, the additional 
costs of creation of the proposed 12th Circuit are unnecessary.
    So, in conclusion, I think you should take into 
consideration the views of the people on the ground. Ask the 
judges of the Ninth Circuit whether they want to be split, and 
I think you'll find a very small minority saying it should be 
split. The overwhelming majority of the people directly 
involved are against a circuit split.
    Thank you for giving me this opportunity to share my 
thoughts with you.
    Judge Bea's written statement is available at the Committee 
or on the committee repository at: http://docs.house.gov/
    Mr. Issa. It is my pleasure.
    Judge Kozinski.


    Judge Kozinski. Mr. Chairman, members of the committee, it 
is a real honor to be here and a real pleasure to join my good 
colleagues Chief Judge Thomas and Judge Bea, my good friend 
Professor Eastman, and my former extern, Professor Fitzpatrick. 
I thought he would have learned more during the summer I had 
him there, but I'll see if I can set him straight this time.
    I will rely largely on my written testimony, the burden of 
which addresses the aspect of the hearing that deals with 
bringing justice closer to the people, which, after all, is an 
objective that we all must share.
    And the bottom line--and I say this throughout my 
testimony--is that the Ninth Circuit is at the very cutting 
edge in bringing justice close to the people, and for two 
    One of them is, because it is so large, our courthouses are 
so much further away from most of the people in our circuit, so 
we have been forced by necessity to use the advantages of 
modern technology to bring justice home, to make it accessible.
    We also have, because we are such a large circuit and have 
so many judges, we have a concentration of resources. Unlike 
other courts that have small staffs and then have to duplicate 
circuit executive offices and clerk's offices and other central 
staff, we have central staff unified, and we have resources to 
buy excellent equipment.
    Now, what this means is that, if you are a litigant in the 
Ninth Circuit, you don't have to travel from Honolulu or Saipan 
or Billings or Fairbanks or Nome or Phoenix to see the 
arguments in your case, see the judges. What you can do is, so 
long as you have a computer, you can watch oral arguments 
anywhere in the world and in real-time, and you can see the 
hearings archived on our website.
    We are the only circuit that does that, and we do it 
because we have a commitment to the concept of open access. We 
also have a commitment to the idea that we are there to serve 
the people, and our function is to make it easier and cheaper 
for parties and their lawyers to take advantage of our 
resources that we have available. So this is a commitment that 
we share, and this advantage would be lost if we were a smaller 
court. The concentration of resources that we have would be 
    I think the case speaks for itself, so I need not belabor 
it. I do want to talk about three points that were raised 
during the hearing.
    Chairman Goodlatte mentioned collegiality. And my 
colleagues have mentioned and I want to reiterate it, when the 
Fifth Circuit was split, every single judge on the Fifth 
Circuit wrote Congress and said, ``We must be split.'' That is 
not the case in the Ninth Circuit.
    With two or three exceptions, literally fewer exceptions 
than I have fingers on my right hand, our judges are strongly 
united on the idea that we should remain a single circuit. This 
involves judges appointed by different Presidents. Our Chief 
Judge was appointed by President Clinton, and I was appointed 
by President Reagan, and our junior colleague here was 
appointed by President George W. Bush. And that is true of all 
of our judges but two or three.
    Now, that should speak something to the functionality of 
the court, that the actual people who are involved in operating 
the court do not believe that the split would be a benefit. And 
the committee ought not to impute to us a lack of collegiality 
that, in fact, does not exist.
    The chairman also mentioned the fact that no one has talked 
about melding other circuits into larger circuits. Well, in 
fact, not the case. Our Chief Judge Emeritus, Cliff Wallace, 
has been advancing that idea for years, and, Mr. Chairman, I 
commend it to this committee. I think other circuits would 
benefit and other regions of the country would benefit from 
having circuits the size of California.
    Mini circuits, like the First, Second, and Third that are 
hardly as large as the Central District of California, would, I 
think, benefit from being brought together in larger circuits. 
And the larger the circuits, of course, the fewer circuit 
conflicts there will be for the Supreme Court to handle.
    You said you wouldn't stop me, but I see my time is up. I 
do want to leave this idea on the table, however, that 
splitting the Ninth Circuit is really going in the wrong 
direction. What this committee ought to be looking at is 
bringing together smaller circuits to help them gain the 
efficiency and the collegiality that the Ninth Circuit now 
    Judge Kozinski's written statement is available at the 
Committee or on the committee repository at: http://
    Mr. Issa. Thank you.
    Would you put up the map of the combined circuits, please? 
There we go.
    Before the next two witnesses, Your Honor, since you 
brought it up, we have the existing circuits, including the 
First, Second, and Third, which are 6, 13, and 14 judges, and 
combined would be 33 judges, 1 less than the Ninth Circuit will 
be after the additions.
    So, as we go through the remainder, I do want to make 
sure--and it's sort of a theme for today--that if the Ninth 
Circuit is too big, then the others are too small. And this 
would be the combination. If the Ninth Circuit were to be left 
at 34 judges, which is what it's recommended to go to, then 
you'd have 33, 33, 31, and 29 by combining the other circuits, 
including the First, Second, and Third being combined.
    Although the gentleman from New York told me that the 
sophistication of the New York cases might be a problem for the 
Maine folks. But we'll cover that at a later hearing.
    Mr. Nadler. Mr. Chairman.
    Mr. Issa. Yes.
    Mr. Nadler. If you combine the First, Second, and Third, 
you would still, I assume, call it the Second?
    Mr. Issa. We would do whatever the gentleman from New York 
wants to get his vote.
    Anyhow, Professor Eastman, on that point of privilege, 
we'll continue.

                   TESTIMONY OF JOHN EASTMAN

    Mr. Eastman. Chairman Issa, thank you, and thanks to all 
the members of the committee for taking up this important 
issue. I testified before the U.S. Senate more than a decade 
ago about the same subject, and I think the problem remains as 
it was then.
    I was struck by Chief Judge Thomas and Judge Bea's 
comments, thinking we ought to be here to discuss consolidation 
of the other circuits, and so I was happy to hear my good 
friend Judge Kozinski actually say that explicitly.
    I want to focus on the part of my testimony dealing with 
collegiality. What we're not talking about is how friendly the 
judges are amongst themselves. I have a great deal of respect 
for the judges on the Ninth Circuit, almost all of them, and I 
think they have a high level of collegiality in the normal way 
we use that word.
    I'm talking about something more specific, something that 
Judge Harry Edwards described in a Pennsylvania Law Review 
article back in 2003: the common interest in getting the law 
right. And it's that collegiality that I think suffers the 
larger the court goes.
    We've got a lot of evidence for that and a lot of testimony 
to that effect over the years. First Circuit Judge Frank Coffin 
once said: ``You increase the size of the courts, you militate 
against old-fashioned collegiality that existed when judges sat 
often with each other.''
    That's the kind of collegiality I'm talking about. It 
checks the tendency of some judges to, quote, ``fly solo,'' as 
Judge Coffin described. We know who those judges are on the 
Ninth Circuit. One's published that the Supreme Court can't 
reverse him all the time.
    We have an extraordinarily high number of combinations on 
the Ninth Circuit. Just if you look at the active judges and 
run the math, 3,654 different combinations of 3-judge panels. 
If you add in the existing senior judges, it's a whopping 
17,296 different combinations of 3-judge panels.
    Judge Bea talked about a uniform law in the West. Well, I 
practice out there, and I've got to tell you it's more like the 
Wild West. My clients ask me what my prediction is on how the 
Ninth Circuit's going to rule on their case, and I said, ``I 
have no idea. I might be able to give you a better assessment 
once I see the random draw of the panel.'' And those draws, as 
I said, are extraordinarily high in the number of combinations 
you might get. That necessarily fosters an inability to have a 
coherent body of law.
    You know, if we do break the circuit up and we end up with 
some more conflicts on important issues, like patents, as Judge 
Bea focused on, or environmental law, we might actually add 
back some more cases to the Supreme Court's docket. People have 
complained that it's getting a little too light in recent 
years, so maybe that's a good thing.
    But the main thing I'm looking at is the ability to get the 
law right. With the extraordinary number of opinions that come 
out, it's hard for the practitioners to keep up with everything 
that's going on in the court. I know it's got to be hard for 
the judges as well. That necessarily creates intra-circuit 
conflicts, oftentimes in nuanced decisions that don't manifest 
themselves for years or decades because of the large size.
    As the White Commission reported, consensus among appellate 
judges throughout the country, including about a third of the 
Ninth Circuit judges--now, this was a while ago--thought that a 
court of appeals, being a court whose members must work 
collegially over time to develop a consistent and coherent body 
of law, functions more effectively with fewer judges than are 
currently authorized for the Ninth Circuit. The White 
Commission concluded that the optimal size of a circuit court 
was somewhere between 11 and 17. That's roughly half the size 
that we have on the Ninth Circuit now.
    And it's not just the reversal rate. And I want to take 
this up. And I know my colleague is going to talk about the 
statistics on the reversal rate. As Judge Posner pointed out in 
a thorough study, the Ninth Circuit had the highest summary 
reversal rate, by far, over any other circuit court in the 
country. This, I think, goes to the outliers, those judges that 
fly solo, that can be unchecked by the lack of familiarity and 
frequent meetings with each other. It's six times as high as 
the next circuit.
    Judge O'Scannlain, who, as I understand it, submitted 
written testimony to the court--I hope it will be entered into 
the record--notes that 1 in 10 of the Ninth Circuit's decisions 
taken up by the Supreme Court are summarily reversed without 
even oral argument, and roughly half are reversed unanimously. 
And this on a Supreme Court that we know is very ideologically 
    That demonstrates there is something going on, an outlier 
effect, an effect of judges flying solo on the Ninth Circuit 
that, quite frankly, doesn't exist nearly as frequently on the 
other courts of appeals. And I think it is correlated and 
perhaps caused by the size of the court.
    Thank you very much.
    Mr. Eastman's written statement is available at the 
Committee or on the committee repository at: http://
    Mr. Issa. Thank you.
    Professor Fitzpatrick.


    Mr. Fitzpatrick. Mr. Chairman, members of the committee, 
thank you so much.
    Mr. Issa. But the gentleman will remember that your old 
mentor is there. He wants you to at least strike some balance 
of what you remember him teaching you, as you dispel what his 
opinion is.
    Mr. Fitzpatrick. Well, yes, I--thank you for having me, Mr. 
Chairman. And I was an extern to Judge Kozinski. I also clerked 
for one of his colleagues after that, Judge O'Scannlain. And 
there's no question the Ninth Circuit is a very fine circuit. 
But I think we can have two even finer circuits if we split it.
    Like everything in life, there are costs and there are 
benefits to splitting the Ninth Circuit. I have no doubt that 
Chief Judge Thomas is correct; if we split the Ninth Circuit, 
we're going to have to spend more money to create another 
administrative apparatus in the new circuit. I don't doubt 
    But there are benefits to splitting the Ninth Circuit, as 
well. And the benefit that I want to talk about today was 
alluded to by my colleague Professor Eastman here. If we go to 
smaller circuits, we reduce the number of outlier decisions 
that the courts make. And when I say outlier decisions, I don't 
mean it in a partisan way. We can have conservative outliers; 
we can have liberal outliers. Smaller courts lead to fewer 
outlier decisions.
    Let me first talk about the Ninth Circuit's reversal rate. 
This is good evidence that the Ninth Circuit is issuing more 
outlier decisions.
    It is indisputable that the Ninth Circuit has the highest 
reversal rate of any court of appeals in America, and it has 
been that way for many, many decades. When people dispute that 
number, as Chief Judge Thomas did in his testimony, they 
usually talk about the win-loss rate of the Ninth Circuit at 
the Supreme Court. Given the cases the Supreme Court has chosen 
to review, the Ninth Circuit win-loss rate is sometimes the 
worst, sometimes the best. But that's not how serious 
empiricists and scholars measure reversal rate. We look at how 
many reversals are there compared to how many underlying 
appeals does the court decide. There's no doubt the Ninth 
Circuit is an outlier in reversal rate. It is reversed much 
more often than any other circuit as a percentage of the 
appeals it decides.
    You don't have to take my word for it. There are serious 
scholarly studies that I cite in my written testimony. One of 
them was written, as my colleague noted, by Judge Richard 
Posner on the United States Court of Appeals for the Seventh 
Circuit. He sits in Chicago, one of the most well-respected 
judges in the history of the American judiciary. He looked at 
how often was the Ninth Circuit summarily reversed by the 
Supreme Court. Quote: ``The Ninth Circuit has the highest rate 
of reversal by the Supreme Court.'' He looked at how often the 
Ninth Circuit was unanimously reversed by the Supreme Court. 
Quote: ``Again, the Ninth Circuit is at the top.''
    He's not the only one. I also cite in my written testimony 
a study by Dr. Kevin Scott. He's a Ph.D. in political science 
who now works for the Federal judiciary. He works in the 
Administrative Office of the Courts. He, too, looked at the 
Ninth Circuit's reversal rate. What did he find? Quote: ``The 
frequency with which the Ninth Circuit is reversed is a 
statistical anomaly.''
    The Ninth Circuit is on its own island when it comes to 
reversal rate. Why? Size is the reason. Math tells us that size 
will cause a circuit to issue more outlier decisions. Why is 
that? It's simple statistics. Circuits decide cases in three-
judge panels. Three-judge panels are randomly selected from a 
larger group. You can run the numbers. I do it in my written 
testimony. The probability of selecting a panel of three with a 
majority of outlier judges increases as the size of the circuit 
increases. I did a graph of it in my written testimony for you.
    The math on this is not disputable. When I first raised 
these mathematical arguments several years ago the last time 
the split was on the table, the Ninth Circuit's own statistical 
consultant, Professor David Kaye--he's now a law professor at 
Penn State; he was back then a law professor at Arizona State--
he wrote a response to my mathematical points that I raised in 
my testimony here and 10 years ago. He's a defender of the 
Ninth Circuit. He likes the current Ninth Circuit. But he 
didn't disagree with the math. Professor Kaye said, quote, 
Fitzpatrick's ``mathematics have bearing on the optimal size of 
appellate courts.'' Quote: ``To the extent that panels of 
extreme judges are undesirable, the smaller court is 
superior.'' This is the Ninth Circuit's own statistical 
consultant, agrees smaller courts are superior.
    Nothing here has anything to do with Republicans or 
Democrats. It's about the optimal design of a circuit court. 
Smaller courts are better because smaller courts lead to less 
extreme panels.
    It is possible to overcome the math with a good en banc 
process. A full court could see an outlier panel and take the 
case en banc and reverse it. The Ninth Circuit is too big for a 
good en banc process. Not all the judges can sit en banc 
because there's so many of them, so they randomly select 11 to 
sit en banc. And you can have outliers making up a majority of 
an 11-person en banc panel, just like you can have outliers in 
a majority on a 3-judge panel.
    The Ninth Circuit's en banc process doesn't work. That's 
why the reversal rate is so high. And other bigger circuits, 
like the 11th and the Fifth, don't have as high reversal rates 
because their en banc process catches the outliers.
    Thank you, Mr. Chairman.
    Mr. Fitzpatrick's written statement is available at the 
Committee or on the committee repository at: http://
    Mr. Issa. I want to thank all of you for your testimony. 
Again, your entire written statements will be placed in the 
record. And, additionally, the other written statements are in 
the record.
    Mr. Issa. With that, I'll recognize myself for my line of 
    And I'd ask that that map be put back up on the board. Pick 
the combined one. Thank you.
    It will get there.
    Judge Thomas, in your opening statement, you very wisely 
pointed to bureaucracy, efficiency, all the benefits that you 
feel bigger has. Does that mean that, perhaps like Judge 
Kozinski, you would support combining these into similar sizes 
for the others, essentially reversing when the Fifth was split? 
Because right now it's still smaller than your circuit would be 
if we put it back together.
    Judge Thomas. Well, if we were designing circuits from 
scratch, my answer might be yes. But we have established 
circuits with established jurisprudence, and I think combining 
circuits now would certainly wreak more havoc on the rule of 
law and their existing administrative structures than if we 
were starting----
    Mr. Issa. But let me follow up with----
    Judge Thomas. Go ahead.
    Mr. Issa. If you disagree with putting them back together, 
then let's go through a couple of things.
    First of all, that means that, for example, the First is 
incredibly inefficient. It only has six judges. It's very 
small. It represents a small population and a small amount of 
caseloads by comparison to the other circuits.
    So I appreciate the fact that New Hampshire and Maine have 
different law than New York or Massachusetts, but the fact is 
that you mentioned that your judges, the vast majority, support 
staying together. And, of course, unanimously or nearly 
unanimously, the judges of the Fifth Circuit supported breaking 
    Well, without trying to be disrespectful, this is, in fact, 
not your business. The business of the size of the courts, the 
efficiencies, the financial contribution our appropriators give 
is disproportionately our obligation.
    And so, when you say that it's, on one hand, more efficient 
to run the Ninth Circuit as a large group, and Professor 
Fitzpatrick says that it is, in fact, a highly reversed, then I 
have a bit of ambiguity to deal with in my position, which is 
that you say it will cost me a few million dollars to break up 
the circuit.
    Professor, I don't know if you've done this, but what does 
it cost for the Supreme Court to take up cases? And what are 
the costs of the ones they don't have time to take up and 
reverse that are decided wrong, the bad law?
    So I guess I would look and say I appreciate the dollar 
figures you gave us, but those dollar figures probably don't 
add up to one bad case that's decided that goes to the Supreme 
Court, would they? I mean, a typical patent case is $8 million 
or $9 million for each side now. If it goes all the way to the 
Fed circuit and Supreme Court, it's more.
    But the cases that you get wrong that end up in the Supreme 
Court have legal fees greater than you've described as your 
cost of having a few more courtrooms, wouldn't you agree?
    Judge Thomas. Well, I have to respectfully disagree, Mr. 
Chairman. The first--and I want to say that----
    Mr. Issa. Have you looked at what legal bills in cases 
before you cost?
    Judge Thomas. Oh, I know they're tremendous legal bills. 
But, first of all, we aren't the most reversed circuit. We 
haven't been during the Roberts era. Last year, we were the 
second most reversed; the year before, the 10th; the third most 
the year before that; the fourth, the year before, the fourth 
    Mr. Issa. Well, let's go back to--Professor, is that true, 
that they've been doing better lately?
    Mr. Fitzpatrick. It is true they're not as bad as they used 
to be, but they're still the most reversed.
    Now, in any given year, does another circuit have a higher 
reversal rate? Occasionally. But over the run of the last 20 
years, the Ninth Circuit is 44 percent more often reversed than 
the next closest circuit.
    Mr. Issa. Okay.
    Well, let me put my questioning on a piece of history. The 
White Commission, which was mentioned multiple times, their 
final report from December 1998, in that, Byron White, Justice 
White, does not call for breakup of the circuit.
    Judge Thomas. That's right.
    Mr. Issa. He does call for effective breakup of the 
circuit. It says: We propose the Ninth Circuit Court of Appeals 
be organized into three regional-based adjudication divisions. 
Those divisions would be Alaska, Idaho, Montana, Oregon, and 
eastern and western Washington; second one, the middle division 
would be the northern/eastern California, Guam, Hawaii, 
Nevada--``Nevada,'' if you prefer--and Northern Marianas; and 
the southern division, which would be Arizona, the Central and 
Southern Districts of California, where I reside.
    Basically, his recommendation was to break your circuit 
into three circuits so there would be regional adjudication. Do 
you support that today?
    Judge Thomas. I do not. And----
    Mr. Issa. Okay. So when people refer to the White 
Commission, he did support breaking up your circuit; he simply 
had a different way of doing it, such that you could have one 
set of law, no matter where it was decided, but it would 
achieve what Professor Fitzpatrick was talking about.
    And I'm going to come back to you, because time is limited, 
and I want to make sure I get at least the organizational.
    If we were to have these large ones or go back, go to the 
other smaller one, the 12th, or with the existing ones, the 
only way to get the equivalent of the Ninth Circuit being 
broken up to meet the requirements that you mentioned, the 
smaller, the more predictive, not to have the random--and your 
numbers were staggering, I must admit.
    So I'm going to just assume that if you followed White's 
recommendation and created three regionals, you would get all 
of the advantages that Judge Thomas is talking about of the 
large and the administration, but you would get en bancs that 
were able to meet. They'd be, more or less, 11 judges. You 
would have three-judge panels that were from a definable group 
that would be similar to the other circuits that exist today. 
Is that correct?
    Mr. Fitzpatrick. I think you are absolutely right, Mr. 
    Mr. Issa. Okay.
    So if anyone has any further comments before we go on to 
other members, I just want to give you a chance. Because, 
today, when I look at one side of the body that must decide 
saying, ``Break it up,'' and then I look at the history of a 
recommendation not taken in 1998, and I look at the testimony, 
I find that the middle ground between break it up and don't 
break it up may very well be the long-ago-forgotten White 
    Any comments by any of you?
    Yes, of course. Go ahead, Judge.
    Judge Bea. As an old trial lawyer from California, let me 
tell you why the White Commission recommendation is not 
    If you divide California into northern California and 
southern California, when we apply California law on diversity 
cases, which we do all the time, especially insurance coverage 
cases, we'll have one interpretation of California law in San 
Francisco and another one in Los Angeles. That is not good 
judicial administration.
    Mr. Issa. Okay. By the way, I think when I read the White 
report, what I saw was that that did not prohibit the regions 
from resolving their ambiguity, such that California 
effectively wouldn't be split, if they did have for some reason 
a northern and southern split. But I appreciate that.
    We now go to the ranking member of the full committee, the 
honorable gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, sir.
    Back to you, Judge Thomas. Did I get you correct when you 
said that supporters claim that the reversal rate of the Ninth 
Circuit is much higher than for other circuits? Because during 
the Roberts Court era, the most reversed circuit was the Sixth 
    Judge Thomas. That's true.
    Mr. Conyers. So, now, advocates for splitting the Ninth 
Circuit argue that the circuit is the Nation's largest in terms 
of geography, population, and corresponding workload. Why 
shouldn't these factors warrant dividing the Ninth Circuit?
    Judge Thomas. Well, if you take--you know, the current 
proposals don't really solve the land mass problem. If you 
create a new 12th, it has 80 percent or more of the land mass, 
depending on the proposal, with 20 percent of the cases. 
Because judicial budgets are caseload-driven, it would create 
the largest land mass with the smallest amount of money in any 
of the circuits in the Nation.
    Correspondingly, California would be underfunded for the 
same reason. It would have to duplicate the resources with a 
diminished budget.
    So it's not a good answer, but----
    Mr. Conyers. Okay.
    Judge Bea----
    Judge Bea. Yes, sir.
    Mr. Conyers [continuing]. When Congress considered 
splitting the Fifth Circuit into the 11th Circuit, the 
overwhelming majority of judges and members of the bar in the 
circuit supported splitting the circuit. Is this the same case 
with the Ninth Circuit?
    Judge Bea. No, Mr. Conyers. Just the opposite is true.
    I think you have in your records a 2006 letter signed by 
the judges of the Ninth Circuit then. I was a junior judge 
then, and I signed it. And with the exception of 3 of the some 
45 judges at the time--because senior judges also signed that 
letter. There were three judges who are presently also in favor 
of the split, and, as far as I know, they're the only ones in 
favor of the split. They have written letters to the committee: 
Judges Kleinfeld, O'Scannlain, and Tallman.
    As far as I know, the rest of our judges are against the 
split or, agreeing with the chairman, think that it's none of 
their business, it's your business.
    Mr. Conyers. A-ha.
    Let me turn now to Judge Thomas again.
    What are some of the adverse impacts, sir, that splitting 
the Ninth Circuit would have on the provision of justice?
    Judge Thomas. Well, there's certainly increased delay on 
the appellate level, not decreased delay. We would be stripped 
of our administrative innovations. We simply couldn't afford 
them. You can't divide the budget, reduce staff, put more work 
on judges' desks administratively, and expect them to decide 
cases more quickly.
    In addition, I think the central point is we would really 
lose delivery of services to the public. And they're served at 
the district courts and bankruptcy courts. We provide 
consolidated and effective service to that. And I mentioned 
some in cybersecurity, wellness support, building support. The 
smaller districts benefit from our advice on how best to 
construct buildings. So the districts would suffer enormously 
if the circuit were divided.
    Mr. Conyers. Thank you.
    If the Ninth Circuit were split, would judicial resources 
be duplicated?
    Judge Thomas. Certainly, with the administrative level, 
they would be. We'd have two clerks of court and staff, two 
circuit executives and staff, and the list goes on. It's really 
an enormous infrastructure for a circuit to have. So you'd be 
unnecessarily duplicating those functions, and also then 
reducing the ability for those offices to deliver services, 
because they would be doing the same service functions in each 
    So, for example, you take the mediators now, we have about 
eight mediators that settle more than the output of some 
smaller circuits, we couldn't afford that in smaller circuits. 
And we know from practice that the mediation efforts in some 
other circuits aren't as successful because they lack critical 
mass. So we would lose the critical mass resources that we 
would need.
    Mr. Conyers. Now, finally, what are some of the costs 
attendant to a division of the Ninth Circuit?
    Judge Thomas. Well, you start with construction costs, 
because we don't have places of sitting to hold court in the 
places designated by the legislation. You'd have to build a new 
circuit headquarters in Phoenix, and we've estimated that cost 
to be $136 million. The renovations of Nakamura in Seattle to 
accommodate would be $54 million, $2 million each for holding 
places of court in Las Vegas, Missoula, and Anchorage.
    And those would be just the start of the costs, because, 
obviously, we would have some increased travel when you have a 
circuit that extends from the Arctic Circle to the Sonoran 
Desert and no center of gravity.
    So overall the duplication would cost a significant amount 
of money.
    Mr. Conyers. Finally, my last question, to Professor 
Fitzpatrick. Does California have the greatest share of cases 
among the various States and territories comprising the Ninth 
    Mr. Fitzpatrick. By far, yes.
    Mr. Conyers. And if so, could the Ninth Circuit be 
reconfigured into two circuits having roughly the same caseload 
without splitting California?
    Mr. Fitzpatrick. No, but I really don't see any reason why 
California could not be split. There's no reason why Federal 
law could not vary from one part of the State to another in the 
same way that Federal law now varies from one State to another.
    Mr. Conyers. That's true.
    Thank you, Mr. Chairman.
    Thank you.
    Mr. Issa. I thank you. Thank you. Great questioning.
    I now go to the gentleman from Georgia for his questions.
    Mr. Collins. Thank you, Mr. Chairman.
    In looking at this, I have some more general questions. I 
think the questions I want to move to is how we'd go about 
    And, Judge Thomas, I didn't--we were just discussing your 
last answer. Can you clarify better what you were talking about 
as far as cost? Because we sort of--from the question, I'm not 
sure the answer. Maybe I just misunderstood it. But your last 
answer about costs in these different places and being all 
over, clarify that briefly for me.
    Judge Thomas. Well, certainly. The current legislative 
proposals call for the creation of a Twelfth with a new circuit 
headquarters in Phoenix and a secondary headquarters at 
Seattle. We don't have space there right now. We don't have 
space to hold court. We don't have visiting judge space. We 
don't have space for the circuit staff.
    So we asked our staff and GSA to come up with a cost 
estimate of what that would be in Phoenix, and they came up 
with $136 million. And the same was true for Seattle, because 
we have some upgrades we need to do and some infrastructure 
needs. We'd have to move out Federal agencies from that 
courthouse. And the estimated cost from that is about $54 
million. That would obviously change.
    And there are no places for holding Circuit Court hearings 
in the designated places of sitting, like Missoula. You can 
borrow a district courtroom for a day, but if you're going to 
sit for a week, you need a courtroom, you need visiting judge 
chambers and infrastructure. We have that situation a bit in 
Honolulu. We are fortunate to be able to share with the 
Bankruptcy Court. But you need staffing to secure that facility 
year round. Based on caseload, it's only used a couple times a 
    Mr. Collins. But also I think if----
    Judge Thomas. That's one example.
    Mr. Collins. And I appreciate that. But I think, looking at 
it creatively here, I mean, businesses, other things, we all 
have to change places all the time. I'm not sure of the size.
    In fact, I want to go to Mr. Fitzpatrick on this. One of 
the things that I hear about this--and, again, being from the 
Eleventh Circuit and when it split--but I want to go back to 
something that's often talked about: the reason we can't do the 
en banc, true en banc. And the good justices were actually 
saying, we use technology, we're making good use of that.
    Explain to me why you can't do the en banc. If you've got 
the good technology, if you have the ability, if you don't even 
have to bring them in. You could do them from actual 
interchange. We do it in classrooms all the time.
    Is there possibly another reason why they don't want to do 
the true en banc hearings?
    Mr. Fitzpatrick. You know, I really don't know why they 
don't. It is theoretically available in the Ninth Circuit to 
have a full court en banc rehearing. As Chief Judge Thomas 
noted in his written testimony, it's never been done, but it's 
theoretically possible. Why they don't see the need to do it is 
beyond me.
    One of the things that I noted in my written testimony is 
when I served as a law clerk on the Ninth Circuit, we had an 
11-judge en banc panel with 10 Democratic appointees and 1 
Republican appointee. It is not a representative en banc 
process. And I think if they did go full court en banc, then 
the reversal rate might very well fall, because they'd be able 
to catch some of these outlier panels better.
    Mr. Collins. Could, possibly, if they did--and I'm just 
asking the judges, if you did more en banc, you might actually 
see a need to split the circuit? Because I think this is 
something we've got to look at.
    And the question here is, one of the noticeable--and I want 
to come back to Mr. Fitzpatrick. because I'm interested in what 
you have to say--one of the noticeable differences between 
current bills--and one of the things is there's different 
ideas, not just the ones that were mentioned are pending.
    What factors do you see as the priority in deciding which 
States--namely, Oregon, Washington--going to a new Ninth 
Circuit and which States would go in the Twelfth? What would it 
be as we look forward to that?
    Mr. Fitzpatrick. I think it's a hard question. There are 
probably a lot of factors that go into that analysis. I think 
one of the most important factors is to try to get the circuits 
to be as close as possible in terms of the number of judges, 
for some of the reasons we've been discussing here, to cut down 
on outlier panels, to make an en banc process more meaningful.
    If you keep California by itself in one circuit, the 
analyses suggest you're going to need over 20 judges for that 
circuit still. It'll still be the biggest circuit out there.
    And so I would encourage the committee to consider some 
kind of division of California, if not what the chairman 
mentioned from the White Commission, then some other way to 
divide up California, because it's really the elephant in the 
    Mr. Collins. And I'm interested, and I'll open it up to 
everyone very quickly if anybody wants to or they can get back 
to us as well, looking back, and I was the district that was 
last affected, an area in Georgia, in the Fifth and the 
Eleventh, when the circuit split. What kind of lessons can we 
learn from that that would help the transition if we moved 
ahead with the Ninth?
    Judge Thomas. Well, I think the lessons from the division 
of the Fifth, there was a logical division geographically, 
there was a proportionality of caseload, they had places of 
sitting intact, and all of the judges supported it. So it was 
    You don't have that circumstance with the Ninth Circuit. 
There's no proportionality in any of the splits, there are--
either in land mass or in population. The judges do not support 
it. And it would lack jurisprudential and geographic coherence.
    So the good judges of the Fifth made that decision, and it 
was a logical one, I think, at the time. It's not logical for 
    Mr. Collins. Well, I appreciate the judges' opinion on 
that. And I think, like I said, I think whether the judges of 
the Fifth or Eleventh actually agreed or not, frankly, comes 
down to a matter of concern, but not also a matter of opinion 
on this body as well.
    I appreciate you coming.
    And with that, Mr. Chairman, I yield back.
    Mr. Issa. I thank the gentleman.
    We now go to the ranking member of the subcommittee, Mr. 
Nadler. for his questions.
    Mr. Nadler. I thank the chairman.
    Judge Thomas, last night, President Trump attacked the 
Ninth Circuit, which he said is in chaos and, frankly, in 
turmoil. He said, ``People are screaming to break up the Ninth 
Circuit. You have to see how many times they have been 
overturned with their terrible decisions,'' unquote.
    Now, less than one-tenth of 1 percent of Ninth Circuit 
decisions are overturned by the Supreme Court. Do you think 
that that statistic gives weight to the President's opinion, to 
the President's characterization, or do you think it's 
important that courts stand up to the executive when necessary?
    Judge Thomas. Well, judicial independence is important, and 
I know this committee has recognized that. I would certainly 
not want to comment on the President's remarks.
    Mr. Nadler. Okay. And many supporters of legislation to 
split up the Ninth Circuit are upfront about the fact that they 
support a split because they perceive it to be a liberal court. 
If politicians were able to gerrymander a new court that would, 
presumably, rule more in line with their political beliefs, 
what impact do you think this would have on the public's 
respect for the rule of law and for the Federal court system as 
a fair and neutral arbitrator?
    Judge Thomas. Well, I think it would diminish the public's 
respect for rule of law, no question about that, and I hope and 
trust this committee would not be engaging in that kind of 
endeavor. I trust the chair that he would not.
    Mr. Nadler. Thank you. And the testimony was--I think it 
was your testimony before--that it would cost $130 million to 
split up the circuit. Can you give us an idea of what you could 
do with $130 million if we dedicated those funds toward 
increasing availability of legal services for low-income civil 
defendant--civil litigants in the Ninth Circuit, or the United 
States as a whole for that matter?
    Judge Thomas. One of the great problems we have in the 
appellate courts, generally, in the Ninth Circuit are pro se 
litigation--pro se litigators. It approaches 50 percent of the 
volume of our cases.
    We've been engaged in a prison litigation reform effort to 
solve the problems in the prisons and take them away from the 
courts, improving mediation and grievance procedures, and 
providing prison staff with more effective and efficient ways 
of doing things. We had a summit in Sacramento and a task force 
for each district.
    We are going to save money that way. But if we could use 
$130 million, that would go a long way to solving that problem.
    Mr. Nadler. Thank you.
    Judge Kozinski, supporters of splitting up the Ninth 
Circuit argue that its rulings suffer from a lack of 
predictability, in part because it uses a truncated en banc 
process in which only a subset of 11 judges serve in any en 
banc. Professor Eastman alluded to this before.
    Given that only 19 out of almost 12,000 cases that were 
terminated in all 2016 were heard en banc, do you think that 
the Ninth Circuit's en banc process has a measurable effect on 
the jurisdiction of the court?
    Judge Kozinski. It has some effect, but the important point 
there is that we have 19 cases. We actually had 21 cases this 
past year. Other circuits take much fewer en bancs, take en 
bancs in the single digits and often the low single digits.
    So whereas we have a truncated en banc, we actually go en 
banc much more often, we are able to go en banc much more often 
and police our panels much more effectively than other circuits 
that have to convene in a full en banc.
    We have worked this out mathematically. And, as we know, 
sampling is not perfect, but we often poll smaller groups to 
give us a good indication of what is the outcome in a larger 
group. And it turns out that 11 judges, the outcome--if you 
take a group of 29 judges, which is the size of active judges 
in the Ninth Circuit, and you select at random 11, that the 
outcome of the 11 is almost always, 90 percent of the time, 
will be the same as the full group.
    So Professor Fitzpatrick's concerns about predictability, I 
think, are vastly overstated.
    Mr. Nadler. Thank you.
    Professor Fitzpatrick, your testimony points out that over 
the 20 years, the majority of judges in the Ninth Circuit were 
nominated by Democratic Presidents while the Supreme Court 
Justices during that period were nominated predominantly by 
Republican Presidents. Thus, you reach the unsurprising 
conclusion that this is a major factor in the somewhat higher 
reversal rate in the Ninth Circuit over that time.
    Won't the ideological makeup of both courts change over 
time as new Presidents and Governors take office and make knew 
nominations? And why would you think we should make a permanent 
change to the structure of the Ninth Circuit to address a 
temporary issue?
    Mr. Fitzpatrick. You're absolutely right, but my view does 
not in any way depend upon the current ideological makeup of 
the Ninth Circuit versus the Supreme Court. That was just a 
note that I made that size is not the only factor in the Ninth 
Circuit's reversal rate. My testimony is simply based on 
neutral principles about----
    Mr. Nadler. Excuse me. Your testimony was very clear that a 
major--perhaps the major reason for the disparity is the 
difference in appointments. And then you say: ``But might size 
play a role as well? I think it might very well, because 
mathematical theory predicts that it will.''
    There's no certainty. There's no evidence for that at all. 
You say: It might very well.
    We know about the ideologic--I'm sorry--about the political 
disparity in appointments. That's clearly going to have an 
effect. Then we have a theory that: Maybe, because mathematical 
theory predicts that it might. So you have no evidence for that 
at all, really.
    Mr. Fitzpatrick. If I may, I do. So the same studies that 
show that ideology matters to reversal rate also show that size 
matters. One of the things that I cite in my testimony is a 
study by Dr. Kevin Scott. He works for the Federal courts, and 
he concluded that the dual factors of the Ninth Circuit's 
greater size and its limited en banc procedure added nine 
reversals a year to its success at the Supreme Court. That's 
what he came up with when he ran all the numbers. This is a 
Federal judiciary guy. He's a Ph.D. in political science.
    Mr. Nadler. Lots of Federal judiciary guys are wrong.
    Mr. Issa. On that shining note, we now go to the gentleman 
from Utah, Chairman Chaffetz.
    Mr. Chaffetz. Thank you.
    I appreciate you all being here. And to the three judges on 
the panel today, thank you for your time and commitment to this 
country and your service to our country. Thank you for your 
good work.
    Professor Eastman points out this paper that was written by 
Seventh Circuit Chief Judge Richard Posner, and I'm going to 
read part of Mr. Eastman's testimony here: The quality of 
judicial output declines as the number of judges on an 
Appellate Court expands was the premise of--or the conclusion 
of Richard Posner's--Chief Judge Posner's paper here.
    And I'm going to read, again, from Mr. Eastman's testimony: 
``Thus, although the Fifth Circuit had nearly the same caseload 
as the Ninth Circuit, the Ninth Circuit experienced a rate of 
summary reversal more than six times higher than the next 
busiest circuit.'' Now, to be fair, that was looking at from 
1985 to 1997.
    But he went on: ``As Ninth Circuit Judge O'Scannlain''--I'm 
sure I'm mispronouncing his name--``noted in a 2013 article, 
quote, `Approximately 1 in 10 Ninth Circuit cases reviewed by 
the Supreme Court results in a summary reversal,' end quote, 
and another half are reversed unanimously in a nonsummary 
disposition by an otherwise ideologically divided court. 
Moreover, ``according to Mr. Eastman's testimony,'' the 
combined reversal rate of the Fifth and the Eleventh Circuit is 
much lower than it was before the two circuits were split from 
the old Fifth.''
    And so the question goes, was Chief Judge Posner wrong in 
his conclusion that the quality of judicial output declines as 
the number of judges on an Appellate Court expands? And if he 
is wrong, why is he wrong? I mean, he's citing some fairly 
strong evidence over a 12-year period.
    Judge Thomas. Well, I guess I'll start, if you don't mind.
    Of course, when I hear those statistics, you recall that 
he's talking about a period before I even joined the court 20 
years ago. So there, if you look at different periods of time 
on summary reversals, you actually get much different data. And 
I have looked at that, because the subject seems to come up a 
fair amount, because I want to use that statistic.
    But I think the more important question is: Does size 
affect the quality of deliberation? And in the Ninth Circuit I 
would say absolutely not. And I think our deliberations now are 
even better than when I joined the court because of technology. 
We are exchanging views every single day in rapid form.
    And we have different judges who take different interests. 
Some are interested in intellectual property, some are very 
concerned about the consistency of even our unpublished 
decisions, some are concerned about bankruptcy law, and some 
are concerned about environmental law. And all of these judges 
bring different perspective to the court, and we have free and 
robust exchanges every day in terms of the kind of collegiality 
that Professor Eastman was talking about.
    So I think----
    Mr. Chaffetz. Well----
    Judge Thomas. I don't mean to----
    Mr. Chaffetz. No, go ahead. Go ahead.
    Judge Thomas. But my colleagues may have a different----
    Mr. Chaffetz. He looked at very statistical information and 
drew the conclusion that there is a direct relationship.
    I can tell Professor Fitzpatrick wants to jump in here.
    Go ahead.
    Mr. Fitzpatrick. Well, Judge Posner is simply one of the 
most respected judges in the history of our court system. 
Perhaps the only Federal judge that is smarter than Judge 
Posner is Judge Kozinski. So I think that he deserves great 
weight when he runs the numbers and comes to the views that he 
does. And, again, it's consistent with everyone else that has 
looked at the data. Again, the study by Dr. Kevin Scott of the 
Federal Judicial Center. It all says the same thing, which is 
size matters.
    Mr. Chaffetz. And representing some--I think the number is 
more than 65 million people--I'm just not buying that it's 
faster and it supports services. I mean, our population has 
grown over the years by tens of millions of people, and there 
does come a time when I think you need to split.
    And I've got to tell you, there is a great deal of 
frustration with the Ninth Circuit. There are people that are 
absolutely fed up with some of these things. As a Member of 
Congress, I've got to tell you, the rulings that we've had 
coming out against President Trump to protect our borders and 
secure this Nation, while none of you on this panel made that 
decision, it's infuriating to us to look to the Ninth Circuit, 
to see people say: Well, there's, you know, 70 people here that 
we've got to protect and 80 people here. What about protecting 
the United States of America?
    And it's the Ninth Circuit that is causing these problems 
and taking away the duties that the Judiciary Committee, the 
Congress, has given to the President of the United States to 
protect our borders.
    There are people that are outraged about this. And those 
are specific cases with specific judges, but I've got to tell 
you, according to some others that I hear on this panel say, 
where is the outrage? There are a lot of us that are outraged.
    The President was duly given by Congress the authority to 
protect our borders. And for these injunctions to come in place 
and prevent the President from doing his job is absolutely, 
totally wrong.
    I do think, Mr. Chairman, this is the right way to do this 
and to look at it. I do think that, certainly, Chief Justice 
Posner and some of the panelists here are on the right track. I 
think being able to deal with things en bloc too should also be 
given some heavy weight, and that is clearly not happening in 
the Ninth Circuit.
    I yield back.
    Mr. Issa. I thank the gentleman.
    Judge Kozinski. Mr. Chairman, since I've been compared to 
Judge Posner, can I venture an answer? It won't take very long.
    Mr. Issa. Your Honor, I might some day be in your court. 
How could I deny you?
    Judge Kozinski. Good answer.
    You know, a model is--I have a great deal of respect for 
Judge Posner, but Dick and I disagree all the time on all such 
things. And the model is only as good as the input you put into 
it. If you leave out important considerations, the model is 
going to give you the wrong answer.
    The period in question that Judge Posner looked at 
overlooked the makeup of the two courts. And the reality is 
that in the late 1970s, the Ninth Circuit moved from 13 judges 
to 23 judges, and President Carter was able to appoint 11 or 12 
judges to the Ninth Circuit, some of the most liberal judges 
the world has ever seen. Good friends of mine, with whom I 
disagree a great deal. And they had a tremendous influence on 
the jurisprudence of the court at that time.
    At the same time, the Supreme Court was very much going in 
the other direction. And so much of the disparity that 
Professor Fitzpatrick and Judge Posner refer to, you can only 
attribute to size if you think that judges are blank spheres. 
If you take into account who the judges were that populated the 
two courts, that explains it. It's not a question of size.
    The problem with Dick's analysis, Dick Posner's analysis, 
is he looked at the wrong thing. He looked at size, whereas, 
really, it was the composition of the panels that made the 
    Now, the fact that we're reversed by the Supreme Court 
doesn't mean we're wrong. It may mean that the Supreme Court 
was wrong, at least in the view of my colleagues. But I think 
that's what was going on there.
    Mr. Issa. Well, I thank you. And I'm going to be forced to 
move on, if you don't mind.
    We now recognize the gentleman from California for his 
round of questioning. And I trust that we'll continue this 
lively back and forth of size matters, it doesn't matter; 
ideology matters, it doesn't matter. But I would admonish all 
of us that we are trying to figure out whether to split the 
court for reasons that should not be ideological by definition. 
Thank you.
    Mr. Lieu. Thank you, Mr. Chairman.
    I clerked on the Ninth Circuit Court of Appeals for the 
late Judge Thomas Tang. The Ninth Circuit had awesome judges 
then. It has awesome judges now.
    And what I want to ask--and, first of all, thank you, Judge 
Kozinski, for being here. My friend, Beverly Hills School Board 
Member Lisa Korbatov, says very kind things about you. I want 
to ask you, as an Appellate Court, you have to take all cases. 
Isn't that correct?
    Judge Kozinski. Of course.
    Mr. Lieu. Unlike the Supreme Court, you can't decide to 
pick and choose?
    Judge Kozinski. Of course.
    Mr. Lieu. And it is no secret that States like California 
are just more progressive, for example, than a State like 
Kentucky? And isn't it possible that because you have to take 
all cases, you are just going to get a higher proportion of 
cases that push the envelope, that challenge the status quo, 
that are more progressive, and as a result, some of the 
statistics you are seeing are because of the cases that are 
brought before you? Is that correct?
    Judge Kozinski. That's certainly right. And of course it 
would be exacerbated if California were isolated.
    One of the ideas of regional circuits is that you have no 
single State dominates a circuit. If you have a large State, 
you will have surrounding States that will provide other 
perspectives--the rural perspective, the mountain perspective, 
the environmental perspective. And isolating California would 
only exacerbate the problem of which you speak.
    Mr. Lieu. Thank you. Because I see many of the statistics 
that my colleagues on the other side bring up, and they are 
statistics without any meaning. I don't think the relevance is 
what percent does any particular circuit get reversed. I think 
the relevance is the quality of the opinions coming out of the 
circuit and are they doing some groundbreaking opinions.
    So, for example, in 2014, when the Ninth Circuit went out 
and said bloggers have the same free speech protections as 
traditional press, that was a pretty awesome and amazing 
opinion, and that's the kind of things that we see out of the 
Ninth Circuit. And so I think the real statistic is, what are 
the quality of opinions coming out? Are the judges putting down 
their rationales? Are they explaining to the American people 
what they are doing?
    And for the record, I note that multiple judges have 
imposed a block on Donald Trump's bigoted travel ban. So just 
today, a Maryland judge and a Fourth Circuit blocked Donald 
Trump's bigoted travel ban.
    Do any of you believe we should break up the Fourth 
    That would be a no, no witnesses.
    Judge Kozinski. I believe in melding it.
    Mr. Lieu. All right.
    The other thing I think we ought to look at is in terms of 
how these circuits are configured. You do have efficiencies 
from the way the Ninth Circuit is operated. I clerked on there. 
And it's interesting that my colleagues on the aisle don't want 
to have those efficiencies. But because of the way it's 
structured, I don't see any reason why we should change the 
Ninth Circuit. I think doing so would be purely for ideological 
    But keep in mind, Federal judges get paid to follow the 
Constitution regardless of where they sit, whether they sit in 
Maryland or in California or in Washington. And those Federal 
judges have struck down--or actually put a block on Donald 
Trump's travel ban. So it's not ideological. It's the judges 
across the Nation that have made this decision.
    So I think it's strange to say let's break up the Ninth 
Circuit, as the President said last night, because a judge in 
the Ninth Circuit said that his executive order was based on 
bigotry and unconstitutional, because today the Maryland judge 
said the same thing. And I'm waiting for the President to also 
say, let's break up the Fourth Circuit.
    But even if you broke up all these circuits, if you had 50 
circuits, you'd still have the same number of Federal appellate 
judges sitting there being paid to follow the Constitution. 
You'd still get the same decisions. It would just be out of the 
Twenty-ninth Circuit instead of the Ninth Circuit. You wouldn't 
get any change in the law that's coming out. So I think this 
entire hearing is sort of bizarre and useless.
    And with that, I happily yield back.
    Mr. Issa. I thank the gentleman.
    We now go to the gentleman from Florida, Mr. DeSantis.
    Mr. DeSantis. Thank you, Mr. Chairman.
    And thanks to the members of the court and the professors.
    Judge Kozinski, do courts--your court, District Court, 
Supreme Court--just have a roving authority to review actions 
of the political branches?
    Judge Kozinski. No.
    Mr. DeSantis. So it needs to require a concrete legal case 
or controversy, correct?
    Judge Kozinski. Absolutely.
    Mr. DeSantis. So if the President does things, Congress 
does things, it may end up in front of the court, properly, but 
there may just be no way people can get into court for you guys 
to adjudicate if no one has standing to bring a legal case, 
    Judge Kozinski. Absolutely.
    Mr. DeSantis. Do you believe that Article III courts 
possess the institutional competence to second guess national 
security decisions made by the President or the Congress?
    Judge Kozinski. In general, not.
    Mr. DeSantis. Why?
    Judge Kozinski. I would have to be presented with an actual 
legal issue to understand. I mean, there are certainly 
possibilities that the Congress passes a law that gives us 
authority to adjudicate such an issue.
    But in general courts are very poorly informed in terms of 
making foreign policy decisions. We don't have information. We 
    Mr. DeSantis. So, yeah, is it safe to say there would be a 
difference between a court passing judgment in a proper case 
between whether action was lawful or constitutional versus 
whether it was politically wise or the correct policy, correct?
    Judge Kozinski. I agree with you entirely.
    Mr. DeSantis. What are the checks on the courts as you 
understand the Constitution? I mean, Congress can pass a 
statute, maybe the President signs it, it goes beyond Congress' 
authority or infringes the Bill of Rights, you guys can have a 
case before you, you can effectively check the Congress through 
a concrete case. You guys get it wrong. Your District Court 
gets it wrong. The Supreme Court gets it just grievously wrong. 
How do the American people check bad court decisions?
    Judge Kozinski. Well, if I may say so, when the Supreme 
Court speaks, by definition, it gets it right. The Supreme 
Court interprets the Constitution. That's the way--that's what 
the Constitution says. That's the way our system works.
    Mr. DeSantis. I disagree with that. I mean, I think if you 
look at cases from, like, the Dred Scott decision and other 
States, the courts are not infallible.
    I think you're a very smart guy. I like a lot of your 
opinions, and I think you are very principled. But I really 
disagree with that. This is not speaking ex cathedra from this 
building over here. They do get it wrong.
    And I guess your argument to me is that there is no 
recourse for the Supreme Court. Five to four decision, even if 
we think it's way outside what the Constitution is, there's no 
mechanism for us to check that, correct?
    Judge Kozinski. Well, yes, we can amend the Constitution. 
There is a mechanism, and we can amend the Constitution.
    We can also--the Supreme Court does--and let me just make 
clear, I disagree with any number of opinions of the Supreme 
Court, particularly those where I was reversed. I disagree with 
every single one of those, they got it totally wrong. But as a 
matter of constitutional law, the Supreme Court says that's 
what the Constitution says.
    Mr. DeSantis. Well, yes, you as a circuit judge are bound 
by it, of course.
    Judge Kozinski. We're bound by it. But the Supreme Court 
does reconsider its views from time to time. We saw that 
happened with the case Bowers v. Hardwick that held that 
homosexual sodomy was--could be criminalized, and 17 years 
later the Court changed its mind and reversed course.
    So the Court does reconsider its rulings. And one 
possibility and one way in which those of us who disagree with 
the Supreme Court's--some of the Supreme Court's rulings--can 
seek to reverse a decision is by bringing other cases and 
making a stronger case and persuading the Court to change its 
    Mr. DeSantis. But that requires private parties. That 
requires them. That's not Congress as the representatives of 
the people checking. Now, there are different things in the 
Constitution, circumscribing your jurisdiction and whatnot.
    But here's why I think I'm concerned, because I think that 
some of the courts in your circuit are playing a dangerous game 
here. I mean, when you talked about analyzing an executive 
action that's taken directly pursuant to a very broad 
congressional statute and you basically say: If the President 
was somebody else, it would be lawful, but because this 
President campaigned and said things that we disagree with, oh, 
no, call it off, it's illegal----
    Mr. Issa. Would the gentleman suspend? I'll give you back 
the time.
    But consistent with the judges' other role, they can answer 
any hypothetical question they want, but nothing related to----
    Mr. DeSantis. I wasn't going to--I was going to end with a 
statement. So I'm not expecting them to answer.
    Mr. Issa. Oh, I apologize. Go ahead.
    Mr. DeSantis. But my concern is, is that when that's being 
done and you're invoking these campaign statements, I don't see 
a principled way where that's going to end up making sense over 
the long term. And I understand there's antipathy in our 
country that is reflected on some of your courts for the 
current President, but that is not enough of a reason to wade 
into some of these sensitive matters of national security.
    And so I think the courts, you know, while they think 
they're saving the day from some people's perspectives, I think 
they may be--end up in the long run undermining their proper 
    So I don't expect them to respond. But that's my view, and 
I'm concerned. I yield back.
    Mr. Issa. I thank the gentleman.
    And I might note that our former President thought Citizens 
United was badly decided and told the Supremes in the well of 
the House. So many people don't like decisions, but I side with 
Judge Kozinski. Ultimately, theirs is the last word at the time 
they make it.
    With that, we go to my friend----
    Judge Kozinski. Us California boys have to hang together.
    Mr. Issa. We will hang. If some of this legislation pass, 
we will hang separately, I guess.
    With that, we go to the gentlelady from California, Ms. 
    Ms. Lofgren. Thank you, Mr. Chairman.
    First, I'd just like to say we often get professors--and 
that's not to diminish your presence here today--but it is a 
rare day when we have justices. And it is really an honor that 
you have come here to share your thoughts with us, and I, for 
one, appreciate it a great deal. It's great to see the faces 
after I've seen the names on the decisions, and it's really an 
honor to hear from you.
    Just getting to some of the meat of the issue. You know, 
Mr. Eastman has testified that it takes extra time for the 
Ninth Circuit when deciding decisions. But it seems to me that 
if that's the case, that could relate to the complicated cases 
that come before the Ninth Circuit.
    I come from Silicon Valley. There's a lot of litigation 
coming out of the Valley that's highly technical. I think we're 
very lucky to have very skilled District Court judges in San 
Jose who can sort through this. But these are complicated 
cases. It's not a trip and fall that ends up in a diversity 
case. I mean, it's complicated. And inefficiencies aren't just 
related to time. It's related to the complication of the case.
    In looking at Mr. Fitzpatrick's testimony, it talks about 
the various reversal rates. But it's interesting, if you look 
at, instead of the 20 years, if you look at a 10-year reversal 
rate using the very same methodology and data sources, my staff 
crunched the numbers, and instead of the number that was in the 
testimony, you come up with a 1.84 for every 1,000 cases. And 
if you look at the last 5 years, it's 1.55 per 1,000, which is 
a little bit more, but not much more, than the Sixth District.
    So I think these statistics, really, are not very 
enlightening. And for me, as chair of the California Democratic 
delegation, it's important to me that the State of California 
not be divided. You know, unless the State itself were to 
divide into two States, which is really not something the 
people of California want or the Congress wants, it's very 
important that there be a cohesive rule of law in the State of 
California on these diversity case decisions, I think Justice 
Bea or Kozinski mentioned earlier.
    I just want to say there's some other reasons for--I mean, 
you could, theoretically, take Montana and Idaho out, but it 
wouldn't materially make a difference in terms of it's just too 
small a State. And as, I think, Judge Kozinski said, there is 
value in the diversity.
    Judge Bea. It would make a great deal of difference if I 
lost my Montana----
    Ms. Lofgren. It might make a personal difference, but in 
terms of the number of cases, it wouldn't materially affect it, 
and why make a change for no little--for such a little impact?
    I just wanted to say, I mean, I think it's unfortunate in a 
way--and I don't blame the chairman, I'm sure this was planned 
long before the decisions yesterday in Maryland and Hawaii. One 
of the things that's important for us to do, all of us as 
Americans, is to defend our structure of government. And that's 
the judiciary, the executive, and the legislative branch.
    And there's a lot of criticism. The President just said 
recently, I think just today, that the judge who decided--I 
don't know whether it was the Hawaii or Maryland judge he was 
criticizing--had done so for political reasons. I think that's 
unfortunate. I mean, we've all had cases where we disagreed--I 
mean, I certainly have--with circuit, trial court, and Supreme 
Court decisions. But disagreeing with the outcome is very 
different than undercutting the rationale for the 
decisionmaking, and I think it's important that we not do that.
    You know, yes, the President has--is given the power to do 
a variety of actions by the Congress. He's not given the power 
to violate the Constitution. And there's certainly--there will 
be a lot of litigation. We'll see what, in the end, what the 
decision is. But I, for one, am confident that the judges who 
will be hearing this case will hear it with an open mind, with 
an eye on the facts and the precedents, and come to the best 
decision that they can.
    And I don't see how busting up the Ninth Circuit or 
threatening to do so, sort of in retaliation for a judge in 
Hawaii--I'm not saying that that is what is intended, but it 
might look like that. And I think that that is the last thing 
that the Congress ought to be perceived as doing, because we 
ought to have respect for the judicial branch. I do, and I'm 
sure all the members here do.
    So with that, Mr. Chairman, I would yield back the balance 
of my time with thanks, once again, to especially the justices 
for coming and honoring our branch of government with their 
    Mr. Issa. Thank you.
    I'm going to ask unanimous consent that the gentleman from 
Arizona, Mr. Biggs, be allowed to speak, even though he's not a 
member of the committee.
    Without objection, it will be ordered.
    Additionally, I ask unanimous consent that Senator Flake's 
written statement be placed into the record at this time.
    Without objection, so ordered.
    Mr. Issa. So the gentleman from Arizona will follow the 
gentleman from Arizona's written statement.
    The gentleman is recognized.
    Mr. Biggs. Thank you, Mr. Chairman, but I do believe I am a 
member of this committee, so--at least I was so informed. To be 
informed this way that I'm not a member of the committee is 
actually quite shocking.
    Mr. Issa. I apologize. Not a member of the subcommittee.
    Mr. Biggs. I am a member of the subcommittee.
    Mr. Issa. I apologize. I apologize that is a staff 
telling--and I'm not blaming the staff, but they did----
    Mr. Biggs. It's good to be where you feel wanted. I mean, I 
could tell you that.
    Mr. Issa. I ask unanimous consent that as an important 
member of this committee and subcommittee that you be allowed 
to speak for the full 5 minutes, and we'll reset the clock.
    Mr. Eastman. It's the problem of large numbers.
    Mr. Issa. You will notice that the size of the dais is 
about the size of the Ninth Circuit.
    Mr. Biggs. Thank you, Mr. Chairman. I do appreciate it.
    And thanks to all the panel for being here today.
    And when you are the last guy, as I typically am in these 
types of committees, even when I am on the committee, there's 
just so much to talk about that it's piqued my interest.
    This really is the largest circuit--someone--one of the 
judges mentioned the new Twelfth Circuit was going from the 
Arctic Circle to the Sonoran Desert, unlike the current Ninth 
Circuit, which runs from the Arctic Circle to the equator. This 
is part of the problem, the circuit represents over 60 million 
people, which is at least double the size of any other circuit 
and four times the size of the First and Tenth Circuits. And 
not counting the Ninth, the average Federal geographical 
circuit has a population of 22 million. The Ninth Circuit 
accounts for more than one-third of all pending appeals in the 
country, totaling about 13,000 as of the end of last year.
    At the same time, no other circuit had more than 5,300 
cases pending. And last year, it took the Ninth more than 15 
months on average to resolve a case, more than twice as long as 
the average circuit and more than 2 months longer than the next 
slowest circuit.
    When Justice Anthony Kennedy sat on the Ninth Circuit, he 
wrote to the Commission on Structural Alternatives in support 
of circuit split. Justice Kennedy noted that any circuit that 
claimed the right to bind--and I'm quoting here--``to bind 
nearly one-fifth of the people of the United States by 
decisions of its three-judge panel must meet a heavy burden of 
persuasion.'' And he later said on a different occasion that, 
``I do not think it's appropriate for the judges of the Ninth 
Circuit to lobby terribly hard against it,'' meaning a proposed 
    By the 1980s, the United States Fifth Circuit Court of 
Appeals was in a similar situation, albeit not as grave as it 
is today in the Ninth Circuit. It had 26 authorized judges and 
an overburdened caseload. In fact, today the Ninth Circuit has 
nearly 94 percent of the total population of the Fifth and 
Eleventh Circuits combined. But at the time, there were similar 
heightened arguments like we've heard today about the many 
detrimental effects of splitting the Fifth. But Congress 
succeeded in splitting it in 1980 through the Fifth Circuit 
Court of Appeals Reauthorization Act. And the question that 
comes to my mind is, who here would today argue that we would 
be better off without the split?
    Now, we've actually heard some enticing proposals today, 
and in one of the arguments--or, excuse me, one of the 
summaries presented to us today that I refer to now, the 
reference was made that there are advantages to a large 
circuit. For instance, uniformity of tax laws is best achieved 
by a large circuit. And then in some issues, the reference was 
made that maybe a smaller circuit's better.
    And this constant position today that maybe a larger 
circuit may be better leads me to ask this: Should we even have 
circuits anymore? Should we have a delineation by circuits? And 
if so, should you have some sort of fluctuating number of 
judges ascertaining or coming on, depending on what the issue 
is, of the case before you?
    So if it's a tax case, should you have 50 judges deciding? 
If it's some local zoning regulation, should you have two 
    The point is, I think that to make the argument that you 
should adjudicate or potentially adjudicate based on the issue, 
which is what is suggested by this position, doesn't make a lot 
of sense. There's no predictability either.
    Another statement was made about people on the ground, that 
we should listen to people on the ground. And that was a 
reference to the judges in the Ninth Circuit. But I live in the 
Ninth Circuit. I've litigated, and I've litigated as a litigant 
and as an appellant where I've had cases go. I've talked to 
many litigators, and it's similar to what Professor Eastman was 
describing. We had no idea where we were going to go.
    As a client, my attorneys, very experienced attorneys--I 
won't mention their names, because they might have appeared 
before you--would tell me, ``We have no idea because we cannot 
decide, because the panel that we will get could be anybody. We 
will have to wait, clearly, on who the panel is.'' By then, 
it's too late. By then, it's too late. It actually prevents 
predictability. It prevents actually due process.
    And that is the position that I am in, having led the 
Arizona Senate for a number of years, having been in the 
legislature where we've had cases go to the Ninth Circuit. We 
had to try to make decisions, because it was taxpayer dollars 
we were spending, and it was virtually impossible to predict, 
and that's the problem with a circuit the size of the Ninth 
    I just, when I realize--I'm out of time, but there's just 
so much to talk about with regard to this and to deal with each 
one of the issues that you raised. But I just can get down to 
this: Justice Sandra Day O'Connor also supported a split of the 
Ninth Circuit. These are thoughtful people who understand that 
when you live outside of California and you're dragged in over 
and over to that district, you are at an incredible 
disadvantage in getting due process for your client.
    So thank you.
    Thanks, Mr. Chairman.
    Mr. Issa. I thank the gentleman.
    Andy, again, I'm sorry I misstated that.
    Mr. Biggs. It's okay. It's all right.
    Mr. Issa. I'm going to do some quick wrap-ups. Perhaps the 
minority would want a couple. And I'll try to stay outside of 
my admonishment of others.
    Judge Thomas, you had said that combining circuits would be 
a problem. But isn't it true that to the extent that there is 
different case law in different circuits, that actually works 
to the detriment of the greater good of our country, one law?
    So if, in fact, you were to combine, for example, the First 
and the Second Circuits and essentially wipe away their case 
law, make it as though you were in a Third Circuit, so that the 
precedents would then be essentially open to be considered 
again by the larger group, would it really be any different 
than the equivalent of asking the Supreme Court to hear all 
those ambiguities and resolve them?
    Judge Thomas. Well, yes, in this sense. If you are 
combining--if you split a circuit, the circuit law applies to 
the new circuit.
    Mr. Issa. Sure. I understand the split being easy. We've 
never--I don't know that we've ever combined before. But the 
rhetorical question here really is, at six judges, would you 
admonish that the First Circuit is too small to be efficient 
and organized and meet the same set of high standards the Ninth 
Circuit reaches?
    Judge Thomas. Well, my answer is that the litigants and 
litigators in those circuits depend on the long history of 
circuit law. And to the extent there are inconsistencies in 
that law that creates some unpredictability in the uniformity 
of law, and it would be undesirable in my view.
    What I do think is helpful is our national initiatives to 
national cost containment and shared administrative services to 
the extent we have even across circuits.
    Mr. Issa. I would certainly agree that we can have a 
separate hearing on the ability to encourage the court to use 
its funds more efficiently through those practices.
    Back to the White Commission, and I'm going to hit it 
tangentially, and this is a somewhat political question. So I 
think I'll go to my friend, Judge Kozinski.
    To the extent that political appointments do matter, and 
you used the Jimmy Carter appointments with some accuracy, then 
isn't, in fact, one of the problems not on your side of the 
dais but on my side, the use of blue slips by Senators to 
essentially have a veto over members that they do not like 
ideologically, regardless of which President is choosing them? 
Doesn't that essentially exacerbate the partisan nature of your 
    Judge Kozinski. Well, I hesitate to speak on a matter 
that's in the purview of another branch. But the matter is 
quite complicated because, of course, these kinds of decisions 
are made by the executive branch, by the President in selecting 
nominees, and then there's pushback from----
    Mr. Issa. Well, let me ask it another way, then, perhaps to 
any of you.
    If, in fact, these bodies, the House and the Senate, were 
able to resolve--were unable to resolve the question of blue 
slips, then if we were to do, as the gentleman who has departed 
would indicate, and essentially make California an island onto 
itself, wouldn't we essentially create a situation in which the 
two Democratic Senators in California would ensure that only 
judges, based on blue slip, only judges to their liking would 
ever get to your seat?
    Judge Kozinski. I think by definition what you are asking 
must be true. If the only Senators that--the circuit involves a 
single State, then the blue-slipping power of those Senators 
would be essentially unlimited.
    Mr. Issa. And, Professor Fitzpatrick, I'm going to ask you 
this, because as I look at the for-and-against, and with some 
bias for being a Californian, I look at the situation of a 
single State, I'm sensitive to splitting a State. But I'm 
looking at a single-State solution and saying that essentially, 
under current Senate rules, would indicate that you would have 
very little diversity for as long as the Senators had no 
diversity. And at least in the case of my have State, I am, 
with some trepidation, willing to predict that there will be no 
diversity for a very long time.
    So how would you deal with that, which is a reality of the 
political structure, if we were to take what the gentlemen, Mr. 
Flake and Mr. Biggs, had suggested and effectively split off 
everything but California?
    Mr. Fitzpatrick. I think it's a big problem, and I think 
it's even a problem if you're going to throw Hawaii in with 
California. Still the two Senators in California would have 
almost complete control over the circuit's judges.
    That's why I really commend solutions that break California 
into pieces in some way or another. And you cited the White 
Commission proposal earlier, and I think there are other ways 
to do it. But I think that over the long run, that's the only 
thing that's going to satisfy people.
    Mr. Issa. Judge Thomas, I'll put you on the spot a little 
bit, because, like all three of you, you were political 
appointees, you went through a process. The Senators did 
    If we cannot change the structure of Senators essentially 
in their home State having, effectively, a veto--and I'm trying 
not to be partisan in any way, shape, or form, because if you 
go to Arizona, you end up with the exact opposite--but if we--
if that is a reality, isn't that something that this committee 
should guard against, a--any circuit which would be essentially 
politically tilted, if we can do it?
    Judge Thomas. Well, I would hope the committee would make 
its decision based on not ideological factors, and I take it 
with confidence from the chairman's prior remarks that that's 
not the intent. And, frankly, I just don't want to opine on 
what the Congress should do internally. I'd have to leave that 
to you.
    Mr. Issa. I was asking actually for your observation of the 
effect if there was a single-State solution with--let's 
hypothetically say if Arizona were a circuit and California 
were a circuit, would you, by definition, two States, two very 
different pairs of Senators, the current way that the process 
works--and some of you have gone through the process once, some 
twice--do you think that you would end up with vastly different 
circuits and they would be one-State circuits? And is that 
something we should generally guard against?
    Judge Thomas. Well, if I might answer more generally. I 
think one-State circuits are a bad idea for a whole variety of 
reasons, some of which you've just identified.
    Mr. Issa. Okay.
    Any other questions?
    Okay. I'd ask, would you all be willing to take some 
follow-up questions? A number of members were not able to get 
here. They had competing markups.
    Judge Bea. Of course.
    Mr. Issa. We'll leave the record open for 5 days, plus 
whatever time it takes for you to respond.
    With that, this concludes today's hearing. Again, I want to 
thank all of you. The weather is clear. Your ability to get 
home should be unrestricted.
    With that, we stand adjourned.