[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
BRINGING JUSTICE CLOSER TO THE PEOPLE: EXAMINING IDEAS FOR
RESTRUCTURING THE 9TH CIRCUIT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
MARCH 16, 2017
__________
Serial No. 115-11
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
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SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
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
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Page
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
WITNESSES
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-MState-G000552-20170316.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-MState-B001302-20170316.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-20170316-SD003.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-20170316-SD005.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-20170316-SD004.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-20170316-SD006.pdf.
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:
http://docs.house.gov/meetings/JU/JU03/20170316/105706/
HHRG-115-JU03-20170316-SD007.pdf.
BRINGING JUSTICE CLOSER TO THE PEOPLE: EXAMINING IDEAS FOR
RESTRUCTURING THE NINTH CIRCUIT
----------
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
circuit.
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
quotation.
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
Circuit.
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
Appeals.
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
smoothly.
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
bigger.
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
statement.
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
decisions.
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
record.
This material is available at the Committee or on the
Committee repository at: http://docs.house.gov/meetings/JU/
JU03/20170316/105706/HHRG-115-JU03-MState-G000552-20170316.pdf.
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
affirmative.
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,
Chief.
TESTIMONY OF THE HONORABLE SIDNEY R. THOMAS, CHIEF CIRCUIT
JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT;
THE HONORABLE CARLOS T. BEA, CIRCUIT JUDGE, UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT; THE HONORABLE ALEX KOZINSKI,
CIRCUIT JUDGE, UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT; JOHN EASTMAN, PROFESSOR, DALE E. FOWLER SCHOOL OF LAW,
CHAPMAN UNIVERSITY; AND BRIAN T. FITZPATRICK, PROFESSOR,
VANDERBILT UNIVERSITY SCHOOL OF LAW
TESTIMONY OF THE HONORABLE SIDNEY R. THOMAS
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
necessary.
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://
docs.house.gov/
meetings/JU/JU03/20170316/105706/HHRG-115-JU03-Wstate-
ThomasS-20170316.pdf.
Mr. Issa. Thank you.
Judge Bea.
TESTIMONY OF THE HONORABLE CARLOS T. BEA
Judge Bea. Good morning, Mr. Chairman and members of the
subcommittee.
Mr. Issa. I'm afraid the same affliction happens to every
witness.
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
Seattle.
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
case.
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/
meetings/JU/JU03/20170316/105706/HHRG-115-JU03-Wstate-BeaC-
20170316.pdf.
Mr. Issa. It is my pleasure.
Judge Kozinski.
TESTIMONY OF THE HONORABLE ALEX 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
reasons.
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
gone.
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
enjoys.
Judge Kozinski's written statement is available at the
Committee or on the committee repository at: http://
docs.house.gov/meetings/JU/JU03/20170316/105706/HHRG-115-JU03-
Wstate-KozinskiA-20170316.pdf.
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
divided.
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://
docs.house.gov/meetings/JU/JU03/20170316/105706/HHRG-115-JU03-
Wstate-EastmanJ-20170316.pdf.
Mr. Issa. Thank you.
Professor Fitzpatrick.
TESTIMONY OF BRIAN T. 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
that.
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://
docs.house.gov/meetings/JU/JU03/20170316/105706/HHRG-115-JU03-
Wstate-FitzpatrickB-20170316.pdf.
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
questioning.
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
up.
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
most----
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.
Chairman.
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
report.
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
practical.
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
Circuit.
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
circuit.
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
Circuit?
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
splitting.
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
year.
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
room.
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
seamless.
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
us.
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
difference.
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
Circuit?
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
reasons.
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,
right?
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
don't----
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
mind.
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
role.
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.
Lofgren.
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
testimony.
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.
Anyway----
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
split.
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
judges?
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
Circuit.
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
bench?
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
matter.
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.
[all]