[Senate Report 104-197]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 260
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-197
_______________________________________________________________________


 
       NINTH CIRCUIT COURT OF APPEALS REORGANIZATION ACT OF 1995

                                _______


               December 21, 1995.--Ordered to be printed

_______________________________________________________________________


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                         [To accompany S. 956]

    The Committee on the Judiciary, to which was referred the 
bill (S. 956) to amend title 28, United States Code, to divide 
the ninth judicial circuit of the United States into two 
circuits, having considered the same, reports favorably 
thereon, with an amendment in the nature of a substitute, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................3
 II. Legislative history..............................................3
III. Discussion.......................................................6
 IV. Vote of the committee...........................................11
  V. Section-by-section analysis.....................................12
 VI. Cost estimate...................................................14
VII. Regulatory impact statement.....................................15
VIII.Minority views of Senators Biden, Kennedy, Leahy, Simon, Kohl, 
     Feinstein, and Feingold.........................................16
 IX. Additional views of Senators Feinstein and Kennedy..............18
  X. Changes in existing law.........................................31

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ninth Circuit Court of Appeals 
Reorganization Act of 1995''.

SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.

    Section 21 of title 28, United States Code, is amended--
          (1) in the matter before the table, by striking out 
        ``thirteen'' and inserting in lieu thereof ``fourteen'';
          (2) in the table, by striking out the item relating to the 
        ninth circuit and inserting in lieu thereof the following new 
        item.

``Ninth...................................  California, Hawaii, Guam,   
                                             Northern Mariana           
                                             Islands.'';                
                                                                        

        and
          (3) between the last 2 items of the table, by inserting the 
        following new item:

``Twelfth.................................  Alaska, Arizona, Idaho,     
                                             Montana, Nevada, Oregon,   
                                             Washington.''.             
                                                                        

SEC. 3. NUMBER OF CIRCUIT JUDGES.

    The table in section 44(a) of title 28, United States Code, is 
amended--
          (1) by striking out the item relating to the ninth circuit 
        and inserting in lieu thereof the following new item:

``Ninth...................................  15'';                       
                                                                        

        and
          (2) by inserting between the last 2 items at the end thereof 
        the following new item:

``Twelfth.................................  13''.                       
                                                                        

SEC. 4 PLACES OF CIRCUIT COURT.

    The table in section 48 of title 28, United States Code, is 
amended--
          (1) by striking out the item relating to the ninth circuit 
        and inserting in lieu thereof the following new item:

``Ninth...................................  San Francisco, Los          
                                             Angeles.'';                
                                                                        

        and
          (2) by inserting between the last 2 items at the end thereof 
        the following new item:

``Twelfth.................................  Portland, Seattle,          
                                             Phoenix.''.                
                                                                        

SEC. 5. ASSIGNMENT OF CIRCUIT JUDGES AND CLERK OF THE COURT.

    (a) Circuit Judges.--No later than 60 days after the date of the 
enactment of this Act, the judicial council for the former ninth 
circuit shall make assignments of the circuit judges of the former 
ninth circuit to the new ninth circuit and the twelfth circuit, 
consistent with the provisions of this Act.
    (b) Clerk of the Court.--The Clerk of the Court for the Twelfth 
Circuit United States Court of Appeals shall be located in Phoenix, 
Arizona.

SEC. 6. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.

    Each judge who is a senior judge of the former ninth circuit on the 
day before the effective date of this Act may elect to be assigned to 
the new ninth circuit or to the twelfth circuit and shall notify the 
Director of the Administrative Office of the United States Courts of 
such election.

SEC. 7. SENIORITY OF JUDGES.

    The seniority of each judge--
          (1) who is assigned under section 5 of this Act; or
          (2) who elects to be assigned under section 6 of this Act;
shall run from the date of commission of such judge as a judge of the 
former ninth circuit.

SEC. 8. APPLICATION TO CASES.

    The provisions of the following paragraphs of this section apply to 
any case in which, on the day before the effective date of this Act, an 
appeal or other proceeding has been filed with the former ninth 
circuit:
          (1) If the matter has been submitted for decision, further 
        proceedings in respect of the matter shall be had in the same 
        manner and with the same effect as if this Act had not been 
        enacted.
          (2) If the matter has not been submitted for decision, the 
        appeal or proceeding, together with the original papers, 
        printed records, and record entries duly certified, shall, by 
        appropriate orders, be transferred to the court to which it 
        would have gone had this Act been in full force and effect at 
        the time such appeal was taken or other proceeding commenced, 
        and further proceedings in respect of the case shall be had in 
        the same manner and with the same effect as if the appeal or 
        other proceeding had been filed in such court.
          (3) A petition for rehearing or a petition for rehearing en 
        banc in a matter decided before the effective date of this Act, 
        or submitted before the effective date of this Act and decided 
        on or after the effective date as provided in paragraph (1) of 
        this section, shall be treated in the same manner and with the 
        same effect as though this Act had not been enacted. If a 
        petition for rehearing en banc is granted, the matter shall be 
        reheard by a court comprised as though this Act had not been 
        enacted.

SEC. 9. DEFINITIONS.

    For purposes of this Act, the term--
          (1) ``former ninth circuit'' means the ninth judicial circuit 
        of the United States as in existence on the day before the 
        effective date of this Act;
          (2) ``new ninth circuit'' means the ninth judicial circuit of 
        the United States established by the amendment made by section 
        2(2) of this Act; and
          (3) ``twelfth circuit'' means the twelfth judicial circuit of 
        the United States established by the amendment made by section 
        2(3) of this Act.

SEC. 10. ADMINISTRATION.

    The court of appeals for the ninth circuit as constituted on the 
day before the effective date of this Act may take such administrative 
action as may be required to carry out this Act. Such court shall cease 
to exist for administrative purposes on July 1, 1997.

SEC. 11. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect 60 
days after the date of the enactment of this Act.

                               I. Purpose

    S. 956 is designed to improve the administration of justice 
in areas currently within the U.S. Court of Appeals for the 
Ninth Circuit.1 The ninth circuit has long attracted 
attention as the largest court of appeals in the Federal 
system, and the issue of whether it should be split has been a 
recurring one. Upon careful consideration, the committee 
concludes that a division of the ninth circuit is warranted, 
particularly given the likely continued growth of that circuit. 
The committee substitute presents the most feasible manner of 
splitting the circuit at this time.
    \1\ The ninth circuit comprises Alaska, Arizona, California, 
Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the 
Northern Mariana Islands. See 28 U.S.C. 41.
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                        II. Legislative History

    The question of whether the U.S. Court of Appeals for the 
Ninth Circuit should be divided into two separate circuits has 
a lengthy history that spans three decades. In 1972, in 
recognition of problems faced by the courts of appeals, 
Congress created the Commission on the Revision of the Federal 
Court Appellate System, Public Law 92-489, 86 Stat. 807 (1972), 
commonly known as the Hruska Commission. In its 1973 report, 
the Hruska Commission recommended that the old fifth circuit 
and the ninth circuit be divided.2 The Hruska Commission 
particularly noted the ninth circuit's ``striking'' size, its 
``serious difficulties with backlog and delay,'' and its 
``apparently inconsistent decisions by different panels of the 
large court.'' 3 The Commission ``concluded that the 
creation of two new circuits is essential to afford immediate 
relief'' to the ninth circuit.4
    \2\ See Commission on the Revision of the Federal Court Appellate 
System, The Geographical Boundaries of the Several Judicial Circuits: 
Alternative Proposals, 62 F.R.D. 224 (1973) [hereinafter Hruska 
Commission Report].
    \3\ See Hruska Commission Report, 62 F.R.D. at 228-229, 235.
    \4\ Id. at 228.
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    Although Congress eventually split the old fifth circuit to 
create the current fifth and eleventh circuits,5 the ninth 
circuit was not split. Today it remains the same size 
geographically as when the Hruska Commission recommended it be 
split. In terms of judges and caseload, however, the court has 
grown substantially. In 1973, the ninth circuit was composed of 
13 judges and received an annual caseload of approximately 
2,300 filings.6 The ninth circuit has now mushroomed to 28 
active circuit judges, and the caseload has grown to upwards of 
8,000 appellate filings each year. In addition, the Judicial 
Conference of the United States has recommended that Congress 
approve 10 new judgeships for the ninth circuit court of 
appeals. One ninth-circuit judge has even suggested that the 
court be doubled in size to 56 judges. An even-larger ninth 
circuit appears highly likely in the not too distant future.
    \5\ See Fifth Circuit Court of Appeals Reorganization Act of 1980, 
Public Law 89-670, 94 Stat. 1994 (1980).
    \6\ Hruska Commission Report, 62 F.R.D. at 236.
---------------------------------------------------------------------------
    In the same period in which Congress was considering the 
split of the fifth circuit, Congress took steps to ameliorate 
effects of the ninth circuit's size and continued growth. 
Congress decided to permit large circuits to hear en banc cases 
through limited en banc procedures, in which en banc cases 
could be decided without the participation of the full court, 
and to permit large circuits to divide themselves into 
administrative divisions.7 Although no other circuit 
follows those procedures, the ninth circuit adopted the two 
reforms in 1980. Despite those innovations, concern with the 
circuit's size and with the effectiveness of reform has 
persisted.
    \7\ See Act of Oct. 10, 1978, Public Law 95-486, Sec. 6, 92 Stat. 
1629 (1978).
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    Senate hearings exploring a split of the ninth circuit have 
been held on several occasions over the past 12 years, and 
numerous bills have been introduced to accomplish various 
splits of the ninth circuit. Senate hearings on the issue, 
chaired by then-Senator DeConcini, were held in the Judiciary 
Committee's Subcommittee on Courts on March 7, 1984.8 On 
March 6, 1990, the Judiciary Committee's Subcommittee on Courts 
and Administrative Practice, chaired by Senator Heflin, again 
held hearings on a proposal to split the ninth circuit.9
    \8\ Oversight on the Federal Courts of Appeals and U.S. Claims 
Court Workload: Hearing before the Subcommittee on Courts of the 
Committee on the Judiciary, United States Senate, 98th Cong., 2d sess. 
(Mar. 7, 1984).
    \9\ Ninth Circuit Court of Appeals Reorganization Act of 1989: 
Hearing before the Subcommittee on Courts and Administrative Practice 
of the Committee on the Judiciary, United States Senate, 101st Cong., 
2d sess. (Mar. 6, 1990).
---------------------------------------------------------------------------
    Senator Gorton, a leading proponent of splitting the ninth 
circuit, first introduced a proposal to split the ninth circuit 
in 1983. That bill, S. 1156, 98th Cong., 1st sess., would have 
divided the ninth circuit into a new ninth circuit consisting 
of Arizona, California, Nevada, Guam, and Hawaii; and a twelfth 
circuit consisting of Alaska, Idaho, Montana, Oregon, and 
Washington. In 1989, Senator Gorton and other Senators, 
primarily from States in the northwestern United States, 
introduced S. 948, 101st Cong., 1st sess., a bill to divide the 
ninth circuit in a slightly different fashion. That bill would 
have divided the circuit by creating a new ninth circuit 
consisting of Arizona, California, and Nevada, and a twelfth 
circuit comprising the remaining States and territories of the 
ninth circuit. In the 102d Cong., 1st sess., S. 1686 was 
introduced in the Senate by Senator Gorton and others, which 
essentially reverted to the prior formulation. That bill 
proposed to split the ninth circuit by placing Arizona, 
California, Hawaii, Nevada, Guam, and the Northern Mariana 
Islands in the new ninth circuit, with the remaining States in 
the ninth circuit to be placed in the twelfth circuit. That 
formulation had also been introduced in the House in the 101st 
Cong., 2d sess., as H.R. 4900, and is the same formulation 
introduced by Senator Gorton this Congress in S. 956, 104th 
Cong., 1st sess.10
    \10\ Senator Gorton first introduced that version this Congress as 
S. 853. See 141 Cong. Rec. S7497. A minor technical correction was made 
to the bill, and it was reintroduced as S. 956. See 141 Cong. Rec. 
S8945.
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    An entirely different formulation was introduced in the 
House in the 103d Cong., 1st sess., in a bill sponsored by 
Representative Kopetski, H.R. 3654. That proposal would have 
divided the ninth circuit in a manner similar to that 
recommended in 1973 by the Hruska Commission, which had 
recommended splitting the ninth circuit in a way that would 
have divided California between circuits. H.R. 3654 would have 
placed Alaska, Idaho, Montana, Oregon, Washington, Hawaii, 
Guam, the Northern Mariana Islands, and the Northern and 
Eastern Districts of California in the new ninth circuit, with 
the remaining ninth circuit districts to be placed in the 
twelfth circuit. That effort reflects a concern with ensuring 
that a split of the ninth circuit would create a fairly even 
split of the caseload and judgeships of the ninth circuit 
between the new circuits.
    On September 13, 1995, the chairman of the Judiciary 
Committee, Senator Hatch, convened a hearing on splitting the 
ninth circuit, at which various proposals to divide the ninth 
circuit were discussed. The hearing focussed on Senator 
Gorton's bill, S. 956, and concerns raised by that particular 
split.11 Testimony at the hearing was given by Senator 
Gorton; Senator Burns; Senator Inouye; Senator Reid; Senator 
Murray; Chief Judge J. Clifford Wallace of the U.S. Court of 
Appeals for the Ninth Circuit; Judge Diarmuid F. O'Scannlain of 
the U.S. Court of Appeals for the Ninth Circuit; Chief Judge 
Gerald Bard Tjoflat of the U.S. Court of Appeals for the 
Eleventh Circuit; Professor Arthur D. Hellman of the University 
of Pittsburgh School of Law; Charles E. Jones, Esq., a 
practitioner from Phoenix, AZ; and John McKay, Esq., a 
practitioner from Seattle, WA.
    \11\ Original cosponsors of S. 956 include Senators Burns, Craig, 
Hatfield, Kempthorne, Murkowski, and Stevens.
---------------------------------------------------------------------------
    Particularly evident at the hearing were concerns that S. 
956 would leave a ninth circuit that would still be too large 
and that could itself in the near future raise the question of 
whether it should be further subdivided. Judge O'Scannlain of 
the ninth circuit particularly noted that the Gorton bill as 
introduced ``would do nothing to solve the problems of the 
remaining ninth circuit.'' To address those concerns, the 
principal cosponsors of the bill, Senator Gorton and Senator 
Burns, developed an alternate proposal to split the ninth 
circuit that the committee considered in the form of an 
amendment in the nature of a substitute. Senator Hatch offered 
the substitute amendment in committee on their behalf. The 
committee substitute would establish a new ninth circuit 
consisting of California, Hawaii, Guam, and the Northern 
Mariana Islands; and a twelfth circuit comprising Alaska, 
Arizona, Idaho, Montana, Nevada, Oregon, and Washington.
    On December 7, 1995, S. 956, as amended by the amendment in 
the nature of a substitute, was reported favorably out of the 
committee by a rollcall vote of 11 yeas to 7 nays.

                            III. Discussion

                                overview

    As noted above, proposals to split the ninth circuit have 
been under consideration in Congress for some time and have 
been the subject of several hearings in the committee. A number 
of committee members expressed interest in commissioning a 
study of the structure of the Federal courts of appeals rather 
than taking immediate action to split the ninth circuit. In the 
committee's view, the legislative history, in conjunction with 
available statistics and research concerning the ninth circuit, 
provides an ample record for an informed decision at this point 
as to whether and how to divide the ninth circuit.
    The ninth circuit stands well apart from the other Federal 
judicial circuits and remains in a unique position. It is by 
far the largest court of appeals in the Federal system by any 
measure. No other circuit presents anywhere near as compelling 
a case for being split, and no other circuit has attracted 
similar, long-term attention on the question of whether it 
should be split. Given that the ninth circuit has requested an 
additional 10 judgeships, the issue presents an immediacy that 
is not evident with respect to any other of the circuit 
courts.12
    \12\ Splitting a circuit to respond to caseload and population 
growth is by no means unprecedented. Congress divided the original 
eighth circuit to create the tenth circuit in 1929, and divided the 
former fifth circuit to create the eleventh circuit in 1980.
---------------------------------------------------------------------------
    Nevertheless, the committee remains concerned with the 
continued growth of the Federal courts of appeals. Longer-term 
issues concerning the circuit courts have not been subject to 
the same attention either within Congress or within the legal 
community that the question of splitting the ninth circuit has 
received. A study of the future of the courts of appeals would 
be a valuable undertaking. In the committee's view, such a 
study would be perfectly appropriate in conjunction with a 
division of the ninth circuit or following such a division. The 
larger issues involving circuit organization and structure, as 
well as Federal court jurisdiction, will not be addressed by a 
split of the ninth circuit. Responses to those issues will be 
critical to the continued efficient administration of appellate 
justice in the Federal system and to the character and role of 
the appellate system.

                     committee substitute to s. 956

    The committee substitute would produce a more even split of 
the ninth circuit than the original Gorton bill would have 
created. As introduced, S. 956 would have split the ninth 
circuit in a manner that would still have left a very large 
ninth circuit both in terms of judgeships and caseload.
    Under the committee substitute, California, Hawaii, Guam, 
and the Northern Mariana Islands would form one circuit having 
15 circuit judgeships. Alaska, Arizona, Idaho, Montana, Nevada, 
Oregon, and Washington would form a new twelfth circuit having 
13 circuit judgeships. No new judgeships would be created, and 
the caseload would be split roughly 60 percent to 40 percent 
between the new circuits.\13\ The division of the judgeships 
represents a 54-percent to 46-percent division of the judges 
between the circuits. That breakdown creates a reasonable 
alignment of the caseload and judgeships without causing undue 
disruption to the current judges sitting on the ninth circuit.
    \13\ That caseload split is based on figures provided by the ninth 
circuit and by the Administrative Office of the U.S. Courts. Figures 
from the ninth circuit do differ slightly from those provided by the 
Administrative Office. In the committee's opinion, those differences 
are not significant and appear to reflect slightly different bases for 
the data. Data provided to the committee by the Administrative Office 
reveal a caseload division between the new circuits that would average 
approximately 59 percent to 41 percent over the last 5 years. The ninth 
circuit's figures show that, over the last 5 years, the division would 
range from 59 percent to 41 percent to 62 percent to 38 percent, 
depending on the year. The 5-year average based on the ninth circuit's 
numbers is 60.8 percent to 39.2 percent. In any event, no matter which 
figures are used, the result is roughly a 60 to 40-percent caseload 
split between the new ninth circuit and the twelfth circuit. That 
represents a vast improvement over the original Gorton bill, which 
would have produced a lopsided 75- to 25-percent split in the caseload 
between the new circuits.
---------------------------------------------------------------------------
    The committee substitute embodies the most feasible way of 
dividing the ninth circuit without taking unusual and 
potentially problematic steps such as splitting California 
between circuits, having California alone be its own one-State 
circuit, or moving States from the ninth circuit into other 
circuits. In alignment with Hawaii and the territories, 
California would be joined by a significant appellate caseload 
from outside that State. According to data provided by the 
ninth circuit, over the past 5 years, on average more ninth 
circuit appeals originated from Hawaii than from Alaska, Idaho, 
or Montana. The arrangement embodied in the committee 
substitute ensures that interstate perspectives are represented 
in the new ninth circuit.
    California will undoubtedly predominate in the new ninth 
circuit. Such a situation is not without precedent among the 
courts of appeals. Cases originating in New York unquestionably 
dominate the second circuit, while cases from Connecticut and 
Vermont contribute only a small portion of that circuit's 
docket.14 Texas is likewise the dominant State in the 
fifth circuit, with Mississippi and Louisiana maintaining a 
smaller presence in that circuit.15
    \14\ According to figures provided by the Administrative Office of 
the U.S. Courts, over the past 5 years cases from Vermont have made up 
just 3 percent of the second circuit's caseload, while cases 
originating in Connecticut have contributed 10 percent of that 
circuit's caseload.
    \15\ According to figures provided by the Administrative Office of 
the U.S. Courts, over the past 5 years cases from Mississippi 
constituted 8 percent of the fifth circuit's caseload, and cases from 
Louisiana made up 23 percent of that circuit's docket.
---------------------------------------------------------------------------

                    CONDITIONS IN THE NINTH CIRCUIT

    The committee commends the efforts of the ninth-circuit 
judges, clerk's office, and circuit executives in managing that 
very large circuit in what may be as efficient a manner as a 
circuit of that size can be run. Chief Judge Wallace has played 
a leading role in guiding the circuit through a period of 
growth and development. The committee recognizes his efforts 
and dedication to the ninth circuit. The committee finds that a 
split of the ninth circuit has simply become an inevitable 
prospect given the circuit's future growth coupled with current 
conditions in the circuit.
    The judicial council of the ninth circuit has formally 
opposed a division of the circuit, as have a number of State 
bar associations and other entities. On the other hand, 
numerous State attorney generals and practitioners in the ninth 
circuit have indicated support for the circuit's division. Some 
individual district and circuit judges in the ninth circuit 
also express views that the circuit will need to be split. Due 
consideration has been given to all judgments expressed to the 
committee. Ideally, there might be agreement on the future of 
the ninth circuit, particularly among the district and circuit 
judges who would be affected by a split. That is not the case. 
The committee and the Congress nevertheless have an independent 
responsibility to oversee the functioning of the Federal courts 
of appeals and to address any difficulties presented therein. 
It is in that spirit that the committee finds that the 
interaction of several conditions in the ninth circuit warrant 
a split of the circuit at this time.
    At the outset, the committee notes that some proponents of 
a ninth-circuit division have indicated support for splitting 
the circuit based on outcomes in certain cases or on a 
perceived liberal bias on the part of California judges. 
Frequently cited have been environmental cases affecting the 
northwest States. The committee does not support a split of the 
ninth circuit on those bases. As Chief Judge Wallace testified 
at the committee hearing, ``[t]o divide a circuit in order to 
accommodate a regional interest is the antithesis of the 
federalizing function.'' Senators Biden and Feinstein both 
argued at the committee markup that a split on such grounds 
would amount to insupportable political ``gerrymandering.''
    Although a number of parties have registered their 
dissatisfaction with certain environmental and other decisions 
of the ninth circuit, the committee finds such dissatisfaction 
an improper rationale for splitting the circuit. While it is 
the committee's hope that the courts of appeals will reach 
correct decisions on the law, the committee does not support 
altering circuit boundaries in order to achieve a given 
ideological outcome on the merits in any case or to benefit any 
regional interest.16 Litigants are entitled to a full, 
fair, and expeditious determination of the merits of their 
case. They are not entitled to a given result.
    \16\ In contrast, the committee finds that improving the 
consistency of circuit law is a desirable outcome and is appropriate to 
consider in assessing circuit boundaries.
---------------------------------------------------------------------------
    Moreover, the committee is highly skeptical as a practical 
matter as to whether any significant ideological shift in 
appellate decisions could be achieved through a circuit split. 
First, as testimony at the hearing highlighted, the 
philosophical tendencies of a particular judge are far more 
likely to be aligned with the President who appointed that 
judge than the State from which the judge came. As Senator Kyl 
pointed out, ``when we look at predictors of how a judge might 
rule, it is a far greater predictor as to who appointed that 
judge than the region of the country from which the judge 
comes.'' Second, the twelfth circuit would likely adopt as 
binding precedent the case law of the circuit to which the 
region formerly belonged, which is what occurred when the 
eleventh circuit split from the old fifth circuit.17 
Accordingly, cases from the ninth circuit would likely continue 
to be binding precedent in the twelfth circuit.
    \17\ See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 
1981) (en banc).
---------------------------------------------------------------------------
    Despite the questionable propriety of considering the 
judicial philosophies and resulting opinions of particular 
judges or regions when examining circuit boundaries, various 
other factors do provide appropriate support for a division of 
the ninth circuit.
    Size, delays and efficiency. The ninth circuit spans nine 
States and two territories covering 1.4 million square miles. 
It serves a population of more than 45 million people. The next 
largest circuit in terms of population, the sixth circuit, 
serves fewer than 29 million people. Every other Federal 
circuit serves fewer than 24 million people. By 2010, the 
Census Bureau estimates that the ninth circuit's population 
will be more than 63 million, which represents a 43-percent 
increase in 15 years. As Judge O'Scannlain of the ninth circuit 
testified, ``In light of the demographic trends in our country, 
it is clear that the population of the states in the ninth 
circuit, and thus the caseload of the federal judiciary sitting 
in those states, will continue to increase at a rate 
significantly ahead of most other regions of the country.''
    The ninth circuit already has 28 active judges, making it 
by far the largest circuit. The next largest, the fifth 
circuit, has 17 circuit judges, while the smallest, the first 
circuit, has 6. The average number of judges in the Federal 
circuits other than the ninth is 12.6.
    The circuit's size has contributed to delay in case 
processing in the circuit. As Chief Judge Wallace stated in 
written testimony submitted to the committee, ``it takes about 
four months longer to complete an appeal in our court as 
compared to the national median time.'' The most recent 
statistics provided by the Administrative Office of the U.S. 
Courts reveal that the ninth circuit is noticeably slow by 
other measures. The ninth circuit is next to slowest in the 
time from the filing of a case in the lower court to the final 
disposition in the court of appeals. It is slowest from the 
filing of the last brief in a case to hearing and submission of 
the case for decision. The ninth circuit is indeed fastest by 
one minor measure: the time from submission of a case for 
decision to final disposition. That particular statistic is of 
negligible import given the circuit's notable delays in overall 
case processing.
    Many have cited the court's enormous size as a factor in 
the court's ability to process the large number of cases filed 
in the circuit each year. Chief Judge Tjoflat of the eleventh 
circuit testified at the hearing as to efficiencies that have 
resulted in the fifth and eleventh circuits since the split of 
the old fifth circuit. He observed that the eleventh and fifth 
circuit combined process many more cases than the ninth circuit 
does. They have sometimes done so with fewer judges altogether, 
given judicial vacancies. In recent years, the combined fifth 
and eleventh circuits, containing a total of 29 judgeships, 
have resolved on the order of 50 percent more cases each year 
than the ninth circuit, which has 28 authorized judgeships. 
Significantly, the committee is not aware of any increase in 
conflicts between the circuits or any other negative result 
following the successful split of the old fifth circuit. The 
split of the fifth circuit has in fact been universally 
considered a success.18
    \18\ See, e.g., A Move to Chop Up the Ninth Circuit, The American 
Lawyer, January-February 1992, at 89 (observing that maybe a ninth 
circuit split ``would be a good idea, like breaking up the Fifth 
Circuit in 1980''). Concern about any split of the ninth circuit 
leading to increased conflicts between the circuits is belied by the 
experience of the old fifth circuit and is overstated. In response to a 
question from Senator Thurmond at the hearing in this regard, Judge 
O'Scannlain pointed out, ``simply having a large number of circuits 
does not necessarily mean that you are going to have a large number of 
conflicts [because conflicts] tend to be reduced to two or three 
fundamental approaches to the same legal issue, no matter how many 
circuits are involved.''
---------------------------------------------------------------------------
    On a related note, large circuits will necessarily be prone 
to a less collegial environment. The more judges that sit on a 
circuit, the less frequent a particular judge is likely to 
encounter any other judge on a three-judge panel. Breakdown in 
collegiality can lead to a diminished quality of 
decisionmaking. Judge O'Scannlain of the ninth circuit noted in 
testimony before the committee that ``as a court of appeals 
becomes increasingly large, it loses the collegiality among 
judges that is such a fundamental ingredient in effective 
administration of justice.''
    Intracircuit conflicts and en banc review. The large number 
of judges also presents problems related to intracircuit 
conflicts and increases the likelihood of inconsistent 
decisions between panels within the circuit. With 28 judges on 
the ninth circuit, there are 3,276 possible combinations of 
panels, not including the significant number of panels 
including senior judges and judges sitting by designation. 
Despite computerization and other efforts, the proliferation of 
three-judge panel decisions and the sheer size of the caseload 
makes it increasingly difficult for judges to keep abreast of 
ninth circuit decisions to avoid conflicting decisions. 
District judges, litigants, and parties seeking to conform 
their conduct to circuit law also encounter serious obstacles 
in assessing what the law of the circuit is. Anecdotal evidence 
indicates that the ninth circuit is marked by an increased 
incidence of intracircuit conflicts.19
    \19\ Although one empirical study suggested that the ninth circuit 
may not suffer from significant intracircuit conflicts, that study 
received criticism at the committee hearing. Chief Judge Tjoflat of the 
eleventh circuit, for example, argued that it would in fact be 
impossible to conduct a reliable empirical study of intracircuit 
conflicts because ``[t]here are so many ways in which precedent can be 
disregarded in cases.''
---------------------------------------------------------------------------
    Compounding that problem, the ninth circuit does not use 
the traditional en banc procedure for resolving intracircuit 
conflicts. Instead, the circuit uses a limited en banc 
procedure in which an 11-judge panel, consisting of the chief 
judge and 10 circuit judges chosen by lot, review cases en 
banc. This method could permit as few as six of the sitting 
judges to dictate the outcome of a case contrary to the 
judgment of 22 others, solely depending on the luck of the 
draw. Under the ninth circuit's rules, the circuit may decide 
to review a case using the full en banc court. However, ever 
since the adoption in 1980 of circuit rules permitting the 
ninth circuit to hear cases through limited en banc procedures, 
the ninth circuit has never elected to hear a case sitting as a 
full en banc court. True en banc review in the ninth circuit is 
effectively nonexistent, and intracircuit inconsistencies are 
more likely to go unreviewed. (This may also explain in part 
why the ninth circuit typically has a high reversal rate in the 
Supreme Court \20\ ). Without effective review, it is 
increasingly likely that a particular three-judge panel might 
choose to sidestep circuit precedent.
    \20\ Senator Feinstein suggests, in her additional views, that the 
observation that the ninth circuit experiences a higher reversal rate 
in the Supreme Court is without support. To the contrary, that 
circuit's reversal rate, while fluctuating from year to year, has been 
documented to be notably high. See e.g., Marcia Coyle, A Working 
Majority: Supreme Court Review, National Law Journal (July 31, 1995) at 
C1 (ninth-circuit reversal rate in the Supreme Court for the 1994-1995 
term was 82 percent); David Lauter, In Moderate Pursuit of Conservative 
Goals: Supreme Court Review, National Law Journal (Sept. 2, 1985) at S-
2 (noting that ``The justices continue to reverse a disproportionately 
high percentage of the cases coming to them from the 9th U.S. Circuit 
Court of Appeals.)
---------------------------------------------------------------------------
    Conclusion. These factors as a whole have led the 
committee, after careful consideration, to conclude that a 
split of the ninth circuit is warranted, particularly given the 
circuit's impending growth. It is the committee's view that the 
split of the ninth circuit accomplished by the committee 
substitute presents the most reasonable split of that circuit 
at this time. The costs of the committee substitute will not be 
prohibitive. Reliable estimates suggest that any costs will be 
moderate and will not be long-term. Significant long-term 
savings could be realized, for example, if the new circuits 
experience similar efficiencies to those that emerged in the 
fifth and eleventh circuits. In any event, the committee 
remains dedicated to ensuring that any costs associated with a 
split are minimized.

                       IV. Vote of the Committee

    Pursuant to paragraph 7 of rule XXVI of the Standing Rules 
of the Senate, each committee is to announce the results of 
rollcall votes taken in any meeting of the committee on any 
measure or amendment. The Senate Judiciary Committee, with a 
quorum present, met on Thursday, November 30, 1995, at 10 a.m., 
to begin marking up S. 956. On Thursday, December 7, 1995, the 
committee, again with a quorum present, met to complete the 
markup of the bill. At that meeting, the following rollcall 
votes occurred on an amendment proposed to the bill and on the 
motion to favorably report S. 956 as amended by an amendment in 
the nature of a substitute:
    (1) The Feinstein amendment to create, in lieu of a split 
of the ninth circuit, a commission to study the structure of 
the Federal courts of appeals. The amendment was defeated: 8 
yeas to 9 nays.
        YEAS                          NAYS
Biden                               Thurmond
Kennedy                             Simpson (proxy)
Leahy                               Grassley
Heflin                              Brown
Simon                               Thompson
Kohl                                Kyl
Feinstein                           DeWine
Feingold                            Abraham (proxy)
                                    Hatch
    (2) Motion to favorably report S. 956 as amended by an 
amendment in the nature of a substitute. The motion was 
adopted: 11 yeas to 7 nays.
         YEAS                         NAYS
Thurmond                            Biden
Simpson (proxy)                     Kennedy
Grassley                            Leahy
Specter (proxy)                     Simon
Brown                               Kohl
Thompson                            Feinstein
Kyl                                  Feingold
DeWine
Abraham (proxy)
Heflin
Hatch

                     V. Section-by-Section Analysis

                         SECTION 1. SHORT TITLE

    This section sets forth the title of the act, the ``Ninth 
Circuit Court of Appeals Reorganization Act of 1995.''

             SECTION 2. NUMBER AND COMPOSITION OF CIRCUITS

    This section amends section 41 of title 28, which sets 
forth both the number of the circuit courts of appeals and the 
States and territories that each circuit comprises. The section 
is amended to specify that there will be a total of 14 judicial 
circuits of the United States. The listing of the States and 
territories in the ninth circuit is amended to provide that the 
ninth circuit contains only California, Hawaii, Guam, and the 
Northern Mariana Islands. A new listing for the twelfth circuit 
is added to the section, specifying that the twelfth circuit 
will consist of Alaska, Arizona, Idaho, Montana, Nevada, 
Oregon, and Washington.

                  SECTION 3. NUMBER OF CIRCUIT JUDGES

    Section 44(a) of title 28 contains a table listing the 
judicial circuits and the number of active circuit judgeships 
for each circuit. Currently, the ninth circuit contains 28 
circuit judgeships. Section 44(a) is amended to provide that 
the ninth circuit will have 15 circuit judges, and to provide 
that the twelfth circuit created by the bill will have 13 
circuit judges. The bill accordingly does not add any 
judgeships; rather, it divides the current ninth circuit 
judgeships between the new ninth and twelfth circuits in a 
manner roughly proportional to the division of the appellate 
caseload between those circuits.

                   SECTION 4. PLACES OF CIRCUIT COURT

    Section 48(a) of title 28 provides that the courts of 
appeals shall hold regular sessions at certain specified 
locations, as well as at other places within the circuit as 
each court may specify by rule. The places at which regular 
sessions of the ninth circuit shall take place will include San 
Francisco and Los Angeles. A new listing for the twelfth 
circuit is added, providing that regular sessions shall be held 
in Portland, Seattle, and Phoenix.

     SECTION 5. ASSIGNMENT OF CIRCUIT JUDGES AND CLERK OF THE COURT

    The bill provides that, no later than 60 days after the 
date of enactment, the judicial council for the ninth circuit 
shall make assignments of the circuit judges of the former 
ninth circuit to the new ninth circuit and the twelfth circuit, 
consistent with the provisions of the bill. In addition, the 
bill establishes that the Clerk of the Court for the twelfth 
circuit shall be located in Phoenix.

           SECTION 6. ELECTION OF ASSIGNMENT BY SENIOR JUDGES

    Under the bill, each judge who is a senior judge of the 
former ninth circuit on the day before the effective date of 
the act may elect to be assigned either to the new ninth 
circuit or to the twelfth circuit and is to notify the Director 
of the Administrative Office of the U.S. Courts of that 
election.

                     SECTION 7. SENIORITY OF JUDGES

    The seniority of any circuit judge assigned under section 5 
of the act or having elected to be assigned under section 6 of 
the act shall run from the date of commission of that judge as 
a judge of the former ninth circuit. This provision permits the 
judges of the ninth circuit to maintain their current 
seniority, regardless of whether they end up in the new ninth 
circuit or in the twelfth circuit.

                    SECTION 8. APPLICATION TO CASES

    This section provides for the processing of cases in which 
an appeal or other proceeding has been filed with the ninth 
circuit before the effective date of the act. First, if the 
matter has been submitted for decision, the case is to be 
further processed as if the act had not been enacted. Second, 
where a matter has not yet been submitted for decision, the 
appellate proceeding, along with the original papers, printed 
records, and record entries, are to be transferred to the court 
to which it would have gone had the act been in effect at the 
time the matter was commenced. Further proceedings will then be 
conducted as if the matter had been filed in that court. 
Finally, in the case of a petition for rehearing or a petition 
for rehearing en banc, if the matter had been decided on appeal 
before the effective date of the act, or had been submitted 
before the effective date and decided on or after the effective 
date as provided above, then the petition is to be handled as 
if the act had not been enacted. If a petition for rehearing en 
banc is granted, the matter will be reheard by a court 
comprised as though the act had not been enacted.

                         SECTION 9. DEFINITIONS

    This section defines three terms. The ``former ninth 
circuit'' is defined as the ninth circuit as in existence on 
the day before the effective date of the act. The term ``new 
ninth circuit'' refers to the ninth circuit established by the 
amendments contained in the act. Likewise, the ``twelfth 
circuit'' is the twelfth circuit established by the amendments 
embodied in the act.

                       SECTION 10. ADMINISTRATION

    This section permits the ninth circuit, as constituted 
before the effective date of the act, to take any 
administrative action that may be required to carry out the 
act. It also provides that the former ninth circuit shall cease 
to exist for administrative purposes on July 1, 1997.

                       SECTION 11. EFFECTIVE DATE

    The effective date of the act is 60 days after the date of 
enactment.

                           VI. Cost Estimate

    In accordance with paragraph 11(a), rule XXVI, of the 
Standing Rules of the Senate, the committee offers the report 
of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, December 19, 1995.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 956, the Ninth Circuit Court of Appeals 
Reorganization Act of 1995, as ordered reported by the Senate 
Committee on the Judiciary on December 7, 1995. CBO estimates 
that enacting S. 956 would result in discretionary cost of the 
federal government of about $3 million in each of the fiscal 
years 1996 through 2000, assuming appropriation of the 
necessary funds. Enacting the bill also would require a one-
time cost for building construction or rehabilitation, which 
could be as much as $23 million, subject to appropriation of 
the necessary amounts. Because enacting S. 956 would not affect 
direct spending or receipts, pay-as-you-go procedures would not 
apply to this legislation.
    S. 956 would divide the Ninth Judicial Circuit United 
States Court of Appeals into two circuits. The reduced ninth 
circuit would include California, Hawaii, Guam, and the 
Northern Mariana Islands, while the newly created twelfth 
circuit would include Alaska, Washington, Oregon, Idaho, 
Montana, Nevada, and Arizona. The headquarters for the twelfth 
circuit would be located in Phoenix.
    Enacting S. 956 would require the creation of offices of 
the Clerk of the Court and the Circuit Executive, which perform 
administrative functions for the circuit, for the new twelfth 
circuit. (Currently, these offices for the ninth circuit are 
located in San Francisco.) The new Clerk's and Circuit 
Executive's offices in Phoenix would engender one-time costs--
probably in fiscal year 1996--for new computer systems (about 
$1 million) and for a library (about $2 million). The net 
incremental cost to staff these offices, assuming a reduction 
in the number of positions in San Francisco proportional to the 
expected decline in caseload for the ninth circuit, would be 
about $1 million annually, starting in fiscal year 1997. Other 
changes in net costs for operations of the San Francisco 
office, including severance costs, moving expenses, and savings 
for a reduction in San Francisco office space and lower travel 
costs, are not likely to be significant.
    Additionally, there would be costs to house the twelfth 
circuit headquarters in Phoenix, which could be accomplished 
through various alternatives. Assuming current design standards 
for federal courthouses are adhered to, the General Services 
Administration estimates that it would cost about $23 million 
to construct a new courthouse facility for the twelfth circuit. 
Such a facility probably could be built by the year 2002. 
However, there is already a federal district courthouse in 
Phoenix, which will be replaced by a new district courthouse 
now in the planning stages. If design standards are not 
followed precisely, and if those two buildings are utilized, it 
is possible that facilities for the twelfth circuit 
headquarters could be provided for significantly less than $23 
million. In any case, such costs would be subject to 
appropriations action.
    Assuming enactment of this bill in early 1996, the twelfth 
circuit probably could be operational by fiscal year 1997. 
Presumably, space would be leased in Phoenix until permanent 
facilities are acquired, either through new construction or 
retrofitting an existing building. The cost to lease temporary 
space would be about $2 million annually.
    In summary, enacting S. 956 would result in added costs of 
about $3 million annually from fiscal year 1996 until whenever 
permanent facilities are established, after which additional 
annual costs would be about $1 million. There would also be 
one-time costs to acquire permanent space for the twelfth 
circuit headquarters, which could be as much as $23 million.
    Enacting S. 956 would result in no costs to state or local 
governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                         June E. O'Neill, Director.

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, it is hereby stated that the 
committee finds that the bill will have no additional direct 
regulatory impact.
 VIII. MINORITY VIEWS OF SENATORS BIDEN, KENNEDY, LEAHY, SIMON, KOHL, 
                        FEINSTEIN, AND FEINGOLD

       ninth circuit court of appeals reorganization act of 1995

    The fundamental problem with S. 956 is the absence of any 
data to support the circuit realignment it proposes. Unlike the 
efforts which preceded the split of the Fifth Circuit, there is 
no recent study to demonstrate that the Ninth Circuit should be 
divided. In fact, the considerable thought and study Congress 
gave to the problems faced by the circuit courts of appeals 
prior to the last circuit realignment is overwhelming in light 
of the history of S. 956.
    In 1972, after extensive Committee hearings and in 
recognition of the complexity of the problem, Congress 
determined that a commission should be created to study the 
problems faced by the courts of appeals. As Congressman Charles 
E. Wiggins later testified, ``It was clear that something had 
to be done, and yet, the problem was sufficiently complex that 
it was felt that Congress should not undertake it without at 
least the advice or counsel of a panel of genuine national 
experts in this field.'' Thus the creation of the Commission on 
Revision of the Federal Court Appellate System of the United 
States (the Hruska Commission).
    In carrying out its mission, the Hruska Commission 
conducted hearings throughout the country and issued a 
preliminary report. Thousands of copies of the report were 
circulated, in addition to those that were published in the 
Federal reporter system, and all concerned were invited to 
comment. A final report was issued in December 1973. It would 
seem that if Congress is again to address a ``crisis'' in the 
federal courts of appeals, then there should at least be a 
comprehensive study similar to that of the Hruska Commission.
    In contrast, however, the Committee has conducted only one 
hearing. The two Ninth Circuit judges who testified did not 
recommend splitting the circuit at this time. Chief Judge 
Wallace suggested that ``Instead of dividing the Ninth Circuit, 
why not study whether or not the Ninth Circuit is the better 
way to approach it and leave the Congress the opportunity of 
thinking in the future of what courts should look like.'' Judge 
O'Scannlain testified that ``the Congress should direct the 
circuit judges of the Ninth Circuit to reflect over the next 
few years and then to recommend, as did the judges of the Fifth 
Circuit Court of Appeals in the 1980s, what the proper division 
of their circuit should be. That recommendation should be based 
on an analysis of the factors which will affect the court's 
ability to meet its goals in the coming years. Any 
restructuring of the Ninth Circuit must guarantee 
accountability to all the people it currently serves.'' And 
Judge Tjoflat, who shared his experience as a judge of the old 
Fifth Circuit and now Chief Judge of the Eleventh Circuit, 
suggested that ``maybe a new commission should be formed, like 
the Hruska Commission. Maybe some circuits should be linked 
together and maybe some should be divided.''
    Given the absence of a recent study, deference should be 
given to those who are most familiar with the Ninth Circuit and 
the extent to which its size affects the administration of 
justice. On four occasions in the past fifteen years, the Ninth 
Circuit Judicial Conference has voted overwhelmingly in 
opposition to splitting the circuit. In August 1995, the Ninth 
Circuit Judicial Council, the governing body for all Ninth 
Circuit courts, voted unanimously to oppose the original 
legislation introduced by Senator Gorton. Similarly, the State 
Bar of Arizona, the State Bar of California, the Hawaii State 
Bar Association, the State Bar of Montana, and the State Bar of 
Nevada all opposed the original legislation. The manner in 
which the substitute was prepared prevented the Committee from 
hearing from all of these groups on the substitute before it 
was reported out of the Committee.
    As testified at the hearing by Professor Arthur Hellman, 
Deputy Executive Director of the Hruska Commission, 
``speculation is no substitute for evidence.'' The basis of any 
proposal to realign a circuit should be a deliberate review and 
thorough understanding of the problems which exist and the 
solutions that might best address those problems. One hearing 
is insufficient.
                                                         Joe Biden.
         IX. ADDITIONAL VIEWS OF SENATORS FEINSTEIN AND KENNEDY

   1. A Piecemeal Approach is Not the Answer to a Nationwide Problem

    If Congress passes legislation to divide the Ninth Circuit 
and create a new Twelfth Circuit, it will be making an 
irreversible decision that will have far reaching and long-term 
implications for all circuits. By dividing the Ninth Circuit 
despite the overwhelming opposition of its bench and bar, 
Congress will set a precedent that it may subsequently regret. 
Federal legislators will be making the arbitrary policy 
decision that circuits of a given size will be divided even if 
they are functioning well. Congress will be endorsing the view 
that circuit division is the solution to dealing with the 
nationwide problem of caseload growth. It will be creating new 
infrastructures and institutionalizing ways of doing business 
that will make comprehensive reform more difficult in the 
future.
    If Congress passes S. 956, it will be proceeding with a 
policy in the absence of adequate or timely information. The 
key questions have not been answered: Is circuit splitting the 
solution to caseload growth, and, if so, where should new 
circuit boundaries be drawn? Until Congress can better answer 
these questions, it should not be breaking up a circuit which, 
in the judgment of those who know it best, is working well.
    In recent weeks, the Judiciary Committee has been presented 
with two radically different proposals for splitting the Ninth 
Circuit, with no adequate analytical foundation for either. 
There have been no hearings on the proposal that is being 
reported to the Senate floor. The current bill would create a 
seven-state Twelfth Circuit running from the Arctic Circle to 
the Mexican border, and a two-state Ninth Circuit consisting of 
California, Hawaii, and the Pacific territories. This proposal 
was devised only a few weeks ago. Prior to that, there was 
another proposal that would have cut the northern from the 
southern part of the Ninth Circuit.
    Judiciary Committee hearings on the earlier bill indicated 
that there are many questions on how to deal with caseload 
growth, and no consensus on how to resolve them. Some believe 
we need more judges. Some believe we need specialized courts. 
Some believe we need larger circuits, and others prefer the 
compactness and collegiality of smaller circuits. As the 
federal caseload continues to grow, we will increasingly be 
required to choose between maintaining larger circuits or 
further splitting circuits and balkanizing federal law.

             failure of past attempts to split the circuit

    The majority report emphasizes the ``lengthy history'' of 
proposals to divide the Ninth Circuit. Section II states that 
``numerous bills have been introduced'' and that hearings have 
been held in the Senate on ``several occasions.''
    It is true that earlier attempts have been made to divide 
the Ninth Circuit. On various occasions beginning in 1983, 
Senator Slade Gorton, joined at times by other northwestern 
Senators, has offered legislation to split the circuit. But the 
crucial fact is that these attempts were rejected uniformly. 
Every one of the bills cited by the majority died in committee. 
None was reported to the floor. This was true when the 
Democrats controlled the Senate in 1990, and it was true when 
the Republicans controlled the Senate in 1984. The fact that a 
measure has been rejected repeatedly--no matter which political 
party was in power--argues against the merits of the proposal, 
not in its favor. \1\
    \1\ The majority notes that a 1984 hearing was chaired by Senator 
DeConcini. What the majority fails to note was that Senator DeConcini 
opposed the split, and testified against splitting the circuit in a 
1990 hearing. See, Hearing on S. 948 Before the Subcommittee on Courts 
and Administrative Practices of the Senate Committee on the Judiciary, 
101st Cong., 2d sess. 18 (1990), at 288-89, cited in Carl Tobias, ``The 
Impoverished Idea of Circuit Splitting,'' 39 Emory Law Journal 
(forthcoming, 1996).
---------------------------------------------------------------------------

 A Commission to Recommend Changes in Circuit Structure and Boundaries

    Past experience with circuit division, undertaken only 
twice since the courts of appeal were created in 1891, has 
provided unclear results. According to the Administrative 
Office of the U.S. Courts, the Eleventh Circuit, which split 
from the Fifth Circuit in 1981, is now the slowest circuit in 
the country from filing of the appeal to final disposition.
    This is not necessarily to criticize the Eleventh Circuit. 
2 The fact is that the Eleventh Circuit is laboring under 
the same kinds of caseload pressures that beset the Ninth. So 
are all of the other circuits. To the extent that S. 956 is 
grounded in legitimate concerns about judicial administration, 
it is bound to fail because it represents a piecemeal approach 
to a national problem.
    \2\ Table B-4 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
---------------------------------------------------------------------------
    Rather than targeting one circuit and dividing it 
haphazardly, Congress should create a Commission that would 
proceed systematically, examine problems on a nationwide basis, 
and make recommendations that will serve the country for the 
long term. Before we implement Draconian structural reforms, we 
should be absolutely certain that innovations in case 
processing and other management solutions would not suffice. 
Any ``solution'' carries tradeoffs. Only a careful, holistic 
examination can provide a sound foundation for choosing among 
various options for reform or realignment of the circuit courts 
of appeal. Senator Heflin's remarks at September's Judiciary 
Committee hearing are instructive:

          In my judgment, the overall structure of the circuit 
        courts of appeals needs careful study *  *  * The 
        federalizing of various crimes is going to vastly 
        increase the workload of the district courts and 
        circuit courts of appeals. Proposals that are out in 
        the field of tort reform and others will also increase 
        the work of the Federal courts relative to civil 
        actions in the future. Congress continues to add to the 
        workload of the judiciary and all of the circuit courts 
        will be impacted by this. We also continue to develop 
        conflicts between the various circuits, and there have 
        been proposals over a period of time to do something 
        about it. I really think that in the long run, there 
        needs to be a careful evaluation of the entire circuit 
        court structure and the administration of justice, how 
        decisions are decided. 3
    \3\ Hearing on S. 956, Committee on the Judiciary, United States 
Senate, 104th Cong., 1st sess. (Sept. 13, 1995).

    The importance of conducting a study before dividing the 
Ninth Circuit also has been emphasized by Governor Pete Wilson 
of California. In a letter to Chairman Hatch of Dec. 6, 1995, 
Governor Wilson registered his ``strong opposition to any split 
before an objective study is concluded,'' and urged that the 
study ``be commissioned to carefully examine the concerns about 
the Ninth Circuit and determine whether the concerns are 
legitimate and whether a change in the circuit's boundaries is 
the best method of addressing them.''
    A means of implementing such a study is readily at hand. As 
the majority report notes, the Committee rejected by only the 
narrowest of margins an amendment by Senator Feinstein ``to 
create, in lieu of a split of the ninth circuit, a commission 
to study the structure of the federal courts of appeals.'' The 
proposed commission would enable Congress to act in a sound, 
comprehensive way to improve the quality of appellate justice 
nationwide. 4 This represents a far better and more 
reasoned approach than S. 956 in any of its variations.
    \4\ Specifically, the ``Commission on Structural Alternatives to 
the Federal Courts of Appeals'' would:
    (a) study the present division of the United States into the 
several judicial circuits;
    (b) study the structure of the Federal court of appeals system; and
    (c) issue recommendations to the President and Congress relating to 
``such changes in circuit boundaries or structure as may be appropriate 
for the expeditious and effective disposition of the caseload of the 
Federal courts of appeals, consistent with fundamental concepts of 
fairness and due process.'' Feinstein Substitute Amendment to S. 956, 
104th Cong., 1st sess., Nov. 30, 1995.
---------------------------------------------------------------------------

          2. The Bench and Bar Oppose the Ninth Circuit Split.

    In deciding whether to divide the Ninth Circuit, the 
greatest weight should be given to the views of the judges and 
lawyers of the circuit. The record before this Committee 
demonstrates that the bench and bar of the circuit 
overwhelmingly oppose the division.
    The bar associations of Arizona, Nevada, Montana, 
California, and Hawaii all have passed resolutions expressing 
their opposition to splitting the circuit, as did Idaho the 
last time this came up. The Federal Bar Association, which is 
composed entirely of lawyers with substantial practice in the 
federal courts, also opposes the splitting of the Ninth 
Circuit. On four occasions over the last decade, the judges and 
lawyers at the Ninth Circuit Judicial Conference voted against 
division of the circuit. The official voice of the Ninth 
Circuit judges is unanimously opposed to the measure--the 
Judicial Council of the Circuit has adopted strong resolutions 
of opposition. At the Judiciary Committee's September hearing 
on S. 956, the Chief Judge of the Circuit appeared in 
opposition.
    The Arizona and Nevada bar associations already have passed 
resolutions opposing the new Committee proposal. According to 
the Arizona Bar resolution:

          Such a plan would be extremely unfortunate for 
        Arizona and wastefully unwise as a matter of judicial 
        administration *  *  * The proposal cuts Arizona off 
        from California, the state with which it shares the 
        greatest legal and economic ties. The proposed division 
        puts a premium on racing for choice of forum so that 
        California and Arizona parties to a disputed business 
        transaction will each have an incentive to sue first to 
        keep the matter in ``their'' circuit; and yet this may 
        be a matter which, without fostering a race to the 
        courthouse, might never be litigated at all.

    The majority report quotes one judge of the Ninth Circuit--
Judge O'Scannlain--who testified at the September hearings 
about the possible loss of collegiality on a large court. 
However, Judge O'Scannlain also told the Committee, ``In my 
view, many of those administrative innovations have been 
successful. I entirely agree with Chief Judge Wallace that the 
Ninth Circuit is handling its caseload reasonably well, and 
there is not currently a crisis.'' 5 He further testified 
that the bill before the Committee would do ``nothing to 
resolve [the Ninth Circuit's] long-term problems, and may 
actually exacerbate them.'' 6 Judge O'Scannlain urged that 
Congress conduct a careful study of the problems of the courts 
of appeals before dividing one circuit.
    \5\ Written statement at 4.
    \6\ Id., at 13.
---------------------------------------------------------------------------
    It is a telling demonstration of the weakness of the 
arguments for S. 956 that the Ninth Circuit judge relied on so 
heavily by the majority did not support the bill. Rather, he 
urged the course of action embodied in the proposed 
substitute--a careful study.

3. The Division of the Fifth Circuit Provides No Precedent for Dividing 
                               the Ninth

    The most recent splitting of a circuit was that of the old 
Fifth Circuit, with its division into the new Fifth Circuit and 
the Eleventh Circuit. The difference between the two situations 
dramatizes why the same remedy is neither desirable nor 
practical here.
    Legislation to divide the Fifth Circuit was first 
considered as early as 1975. But it was not enacted at that 
time because there was strong opposition from judges and 
lawyers in the affected states. By 1980, however, professional 
opinion had coalesced. Division of the Fifth Circuit had the 
unanimous support of the judges of the court of appeals. It was 
also endorsed by the bar associations of each of the six states 
in the circuit, as well as by other judges and lawyers.
    The contrast with the present legislation could not be 
sharper. As described above, the Ninth Circuit Judicial Council 
and the Judicial Conference oppose splitting the circuit. State 
bar associations in the circuit have spoken out against the 
proposal.
    In dividing the Fifth Circuit in 1980, Congress acted in 
accordance with the overwhelming weight of professional opinion 
within the circuit. That same respect for professional opinion 
leads to the conclusion that the Ninth Circuit should not be 
divided.
    In the aftermath of the Omnibus Judgeship Act of 1978, 
Congress declined to realign federal circuit courts 
unilaterally. Subsequently, after the judges and bar were fully 
united behind the idea, the Fifth Circuit chose to split and 
create a new Eleventh Circuit. By contrast, the Ninth Circuit 
responded to the 1978 reorganization Act by implementing a 
series of innovative changes in court structure, and those 
innovations have proven extremely successful.

      Earlier Splitting of the Fifth Circuit--Questionable Results

    The majority report asserts, without documentation, that 
``[t]he split of the fifth circuit has in fact been universally 
considered a success.'' Yet there have been no scholarly, 
independent studies of the Fifth or the Eleventh Circuits. The 
Ninth Circuit, on the other hand, has benefitted from intensive 
scrutiny, documented in Professor Arthur Hellman's 
comprehensive review, Restructuring Justice: The Innovations of 
the Ninth Circuit and the Future of the Federal Courts.7
    \7\ Cornell University Press (1990).
---------------------------------------------------------------------------
    By many standard measures, the Ninth Circuit is doing 
better than either the Fifth or the Eleventh. As noted earlier, 
the Eleventh Circuit, a product of the Fifth Circuit split, is 
now the slowest circuit in the country from filing of an appeal 
to disposition.8 The pending caseloads for the Eleventh 
and the Fifth Circuits have increased by 40 and 54 percent 
respectively over the past 5 years, while the pending caseload 
of the Ninth Circuit has decreased by 11 percent over the same 
time period.9 For each of the past 5 years, the Ninth 
Circuit has shortened its time from filing to final 
disposition, and has terminated more cases than have been 
filed.10 The Ninth Circuit hears oral argument in a 
substantially greater percentage of cases than either the Fifth 
or the Eleventh Circuits--40 percent for the Ninth Circuit, 
compared to 37 percent for the Eleventh Circuit and 25 percent 
for the Fifth.11
    \8\ Table B-4 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
    \9\ Table B (12-month period ended Sept. 20), Judicial Business of 
the United States Courts--1994; 1993; 1992; Table B (June 30); 1991 
Annual Report of the Director, Book One, Administrative Office of the 
United States Courts.
    \10\ Id.
    \11\ Table S-1 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
---------------------------------------------------------------------------
    Another indication of the productivity and effectiveness of 
a court is its ability to issue written, reasoned dispositions 
for the parties in the cases that come before it. The higher 
the percentage of cases in which a court of appeals issues 
written decisions in disposing of its cases, the more effective 
it is in providing guidance to litigants about that court's 
interpretation and application of the law. The Ninth Circuit 
furnishes written dispositions in 92 percent of its over 4300 
dispositions each year.12 The Eleventh Circuit, in 
contrast, issues written, reasoned dispositions in only 65 
percent of its 1600 cases each year--the second lowest 
percentage (after the Third Circuit) among all of the federal 
courts of appeals.13
    \12\ Table S-3 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
    \13\ Id.
---------------------------------------------------------------------------
    A review of the growth of caseloads in the two most 
recently split circuits when compared to the Ninth Circuit 
demonstrates the very point that the Arizona Bar resolution 
highlighted--a split may in fact engender more litigation 
because it creates a ``race-to-the-courthouse'' mentality, when 
in a single circuit no litigation would have been considered. 
Appeals have increased 30 and 31 percent respectively in the 
Fifth and Eleventh circuits since the 1980 split, compared to 
less than 28 percent for the Ninth Circuit.14
    \14\ Table B (12-month period ended Sept. 30), Judicial Business of 
the United States Courts--1995; 1993; 1992; Table B (June 30), Annual 
Report of the Director, 1981-1991, Administrative Office of the United 
States Courts.
---------------------------------------------------------------------------

        4. 1995 Legislation Should Not Be Based on a 1973 Report

    In the debate over the current proposal to divide the Ninth 
Circuit, frequent reference has been made to the 1973 report by 
the Commission on Revision of the Federal Court Appellate 
System (Hruska Commission), which recommended that the Fifth 
and Ninth circuits each be divided. Ninth Circuit Judge Charles 
Wiggins of Nevada, 15 who served as a member of the Hruska 
Commission and who once supported a split of the circuit, 
recently wrote to Senator Feinstein to register strong 
opposition to the split:
    \15\ Judge Wiggins speaks with unique authority on the issue of 
dividing the Ninth Circuit. He was a Republican member of the United 
States House of Representatives from a district in southern California 
from 1967 to 1979. He served continuously on the House Judiciary 
Committee. In that capacity, he served on the Hruska Commission from 
1972-73. In 1984, he was appointed by President Reagan to the United 
States Court of Appeals for the Ninth Circuit. He is now an active 
judge on the circuit.

        I am pleased that you are going to carry your 
        opposition to S. 956 to the floor *  *  * My 
        understanding of the role of the circuit courts in our 
        system of federal justice has changed over the years 
        from that which I held when the Hruska Commission 
        issued its final report in 1973. At that time, I 
        endorsed the recommendations of the Commission calling 
        for a division of the Fifth and Ninth Circuits. I have 
        grown wiser in the succeeding 22 years.16
    \16\ Letter to Senator Dianne Feinstein, Dec. 18, 1995.

    Professor Arthur Hellman, a leading expert on the circuit 
court system, served as Deputy Executive Director of the Hruska 
Commission, and in that capacity drafted the Commission's 1973 
report. Like Judge Wiggins, Professor Hellman supported a Ninth 
Circuit split 22 years ago. He now writes: ``Although the 
Hruska Commission recommended in 1973 that the Ninth Circuit be 
divided, that recommendation has been made obsolete by 
intervening events.'' Professor Hellman emphasized that 
``[r]ecent studies of the federal courts have declined to 
endorse the Hruska Commission recommendation. On the contrary, 
they have recognized that the large circuit may provide a more 
workable alternative to the traditional model.'' 17
    \17\ Memorandum to Senator Dianne Feinstein, Dec. 12, 1995.
---------------------------------------------------------------------------
    In the 22 years since the Hruska Commission finished its 
work, no other study has focused exclusively on the federal 
appellate courts. Two blue-ribbon study groups have analyzed 
problems of the federal judicial system as a whole. Neither of 
these endorsed the Hruska Commission's recommendation for a 
division of the Ninth Circuit. Rather, both expressed 
skepticism about dividing circuits as a remedy for appellate 
overload.
    The Federal Courts Study Committee of 1990 did not take any 
position on whether the Ninth Circuit should be split. The 
Committee observed, however, that ``The Court of Appeals for 
the Ninth Circuit--a `jumbo' circuit today--apparently manages 
effectively * * * Perhaps the Ninth Circuit represents a 
workable alternative to the traditional model.''
    The Report of the Committee on Long-Range Planning of the 
Judicial Conference of the United States stands in even starker 
contrast to the Hruska Commission report issued 22 years ago. 
The report disclaimed any ``fixed numerical limit to circuit 
size.'' It emphasized that proposed changes in circuit 
boundaries ``must be considered in the light of the disruption 
of precedent and judicial administration that such changes 
generally entail.'' The report concluded that ``Circuit 
restructuring should occur only if compelling empirical 
evidence demonstrates adjudicative or administrative 
dysfunction in a court so that it cannot continue to deliver 
quality justice and coherent, consistent circuit law in the 
face of increasing caseload.''
    It would be unwise to rely on a 22-year-old report, such as 
the Hruska Commission's report, as the basis for deciding 
issues of health care policy, telecommunications policy, or any 
other legislative issue. It is no more sensible to do so when 
the question involves the structure of the federal courts.

           5. Creating a New Circuit Is a Costly Proposition

    This Congress is concerned with reducing costs of the 
federal judiciary. In fact, the Senate recently adopted an 
amendment to limit the costs of the Circuit Judicial 
Conferences in order to help ``fight unnecessary spending in 
the judiciary.'' At a time when we are seeking to save money, 
we ought not to be building duplicative and superfluous 
bureaucracies, particularly when there is no demonstrated gain.
    The costs of any version of S. 956 would be substantial:
         No matter where the lines are drawn, splitting 
        the circuit would require duplicative offices of clerk 
        of court, circuit executive, staff attorneys, 
        settlement attorneys, and library, as well as 
        courtrooms, mail and computer facilities.
         Estimated costs of a new or rehabilitated 
        courthouse in Phoenix range from $23 million to $59.5 
        million. Three alternatives currently are being 
        explored to house a new court of appeals headquarters 
        in Phoenix. These include: (1) a newly constructed 
        Twelfth Circuit headquarters building, (2) 
        transformation of the old Phoenix district courthouse 
        into a circuit headquarters, or (3) altering the plans 
        for the proposed new district court building to 
        accommodate circuit headquarters.
                  The General Services Administration (GSA) has 
                estimated the cost of a newly-constructed 
                circuit headquarters building at $23 million. 
                This estimate does not include site purchase 
                costs.
                  The second alternative would be to house the 
                court of appeals in the existing Federal 
                courthouse after the district court vacates it 
                in 1999 or 2000. GSA estimates the cost of a 
                ``partial'' rehabilitation of the building at 
                $28.4 million. The Congressional Budget Office 
                (CBO) estimates the costs of a ``partial'' 
                rehabilitation at ``less than 23 million.'' The 
                GSA has indicated that it is extremely rare to 
                do a ``partial'' mechanical and systems 
                rehabilitation. The more likely procedure would 
                be a complete building mechanical 
                rehabilitation at $59.5 million.
                  The third alternative would be for the court 
                of appeals to share the new building that has 
                been designed to house the district court in 
                Phoenix. Neither GSA nor CBO have estimated the 
                costs of this alternative as it is probably the 
                least viable. According to the Ninth Circuit 
                Executive Office, this option would ``generate 
                huge redesign costs, delay the project 
                significantly, and result in very little if any 
                savings.''
         GSA and CBO have allocated one-time start-up 
        costs at $3 million, including $1 million for computers 
        and $2 million for a new circuit library.
         GSA and CBO have estimated annual costs of 
        duplicative staff positions at $1 million, and an 
        additional $2 million for the cost of leasing space for 
        the headquarters until permanent quarters could be made 
        available.
         Congress has authorized, and GSA has virtually 
        completed, an extensive post-earthquake restoration of 
        the Ninth Circuit headquarters building in San 
        Francisco at a cost of over $100 million. In addition, 
        the GSA completed the build-out of the court of appeals 
        courthouse in Pasadena within the last two years. Both 
        projects were designed to accommodate the full 
        compliment of Ninth Circuit judges and staff. If the 
        Twelfth Circuit were to be created, substantial 
        expenses already incurred would be wasted. According to 
        the Ninth Circuit Executive Office, ``the taxpayers 
        would be asked to spend money preparing facilities in 
        Phoenix when they have just finished paying for the 
        same facilities in San Francisco and Pasadena.'' As 
        much as 35 percent of the space in San Francisco and 
        Pasadena would no longer be necessary.
         The Committee bill interferes with future 
        flexibility by specifying that the Clerk of the Court 
        for the Twelfth Circuit shall be in Phoenix. This 
        provision is unprecedented. Current law does not 
        specify the location of the Clerk's Office for the 
        Ninth or any other circuit. Even if more economic 
        facilities were available elsewhere, the new court 
        would be precluded from using them without going 
        through the process of securing amendatory legislation 
        from the Congress.

   6. Regionalism and Ideology Should Play No Part in the Drawing of 
                           Circuit Boundaries

    The Committee disavows the notion that one purpose of 
dividing the circuit is to change the substantive outcomes of 
decisions. Some of the language of the sponsors, however, 
suggests that the so-called domination of a ``California'' 
judicial philosophy is a factor driving this legislation. In an 
earlier proposal to split the Ninth Circuit, a sponsor stated 
that the Northwestern states were ``dominated by California 
judges, and California attitudes'' and that ``[o]ur interests 
cannot be fully addressed from a California perspective.'' A 
look at the current proposal on a map shows that California 
would be segregated from all contiguous states.
    In a recent article in the New York Times, a sponsor of S. 
956 added that the circuit was unwieldy and deprived states 
``which are more dependent on how we manage our resources'' 
from having their issues considered by judges who might more be 
sensitive to local needs.18 In a May 25 press release, a 
sponsor commented, ``We are seeing an increase in legal actions 
against economic activities in states like Montana such as 
timbering, mining and water development. This threatens local 
economic stability.'' 19 In a September 8 press release, 
the principal sponsor of the current bill condemned a Ninth 
Circuit ruling against a Montana sheriff's appeal of background 
checks under the Brady handgun control law, calling it further 
evidence of the need to split the Northwest states from the 
Ninth Circuit: ``There they go again * * * Once again the Ninth 
Circuit has shown itself far out of step with the views of 
mainstream Montanans and the rest of the Northwest.'' 20
    \18\ Neil A. Lewis, ``Partisan Gridlock Blocks Senate Confirmation 
of Federal Judges,'' New York Times, Nov. 29, 1995.
    \19\ Press Release, Senator Conrad Burns, ``Gorton-Burns Bill Would 
Split the Ninth Circuit Court of Appeals; Burns to Hold Up Judicial 
Nominations Until Bill is Approved,'' May 25, 1995.
    \20\ Press Release, Senator Conrad Burns, ``Need to Split the Ninth 
Circuit,'' Sept. 8, 1995.
---------------------------------------------------------------------------
    To divide circuits in order to accommodate regional 
interests is antithetical to the federalizing function of the 
circuit courts of appeal. Former Chief Justice Warren Burger 
rejected such a premise as completely unacceptable in testimony 
about an earlier version of this legislation, stating, ``I find 
it a very offensive statement to be made that a United States 
Judge, having taken the oath of office, is going to be biased 
because of the economic conditions of his own jurisdiction.'' 
21
    \21\ Quoted in Statement of Chief Judge Wallace, Hearing on S. 956, 
Committee on the Judiciary, United States Senate, 104th Cong., 1st 
sess. (Sept. 13, 1995).
---------------------------------------------------------------------------
    In his recent letter, Judge Charles Wiggins commented on 
this issue:

          The majority report also contains the misleading 
        statement that the recommended division of the Ninth 
        Circuit is not in response to ideological differences 
        between judges from California and judges from 
        elsewhere in the circuit. I strongly disagree that such 
        a motive does not in fact underlie the proposal for the 
        change. Such a regionalization of the circuits in 
        accordance with state interests is wrong. There is one 
        federal law. It is enacted by the Congress, signed by 
        the President, and is to be respected in every state in 
        the union. The law in Montana and Washington is the 
        same law as exists in Maine and Vermont. It is the 
        mission of the Supreme Court to maintain one consistent 
        federal law. I do hope that you will challenge the 
        supporters of the revision to explain the reasons 
        justifying their proposal.22
    \22\ Letter to Senator Feinstein, Dec. 8, 1995.

    If regional ideological preferences are animating forces 
behind this legislation, they are misguided. The Ninth Circuit 
is not an ideologically uniform circuit, as some proponents 
have suggested. In terms of sitting judges, the circuit 
includes 15 Republican appointees and only 9 Democratic 
appointees. Sitting Ninth Circuit judges in California include 
7 Republican appointees and only 4 Democratic appointees. 
Another myth is that the circuit is ``pro-environmental'' in 
its decisions. Contrary to this assumption, in an examination 
of the 125 most recent environmental cases in the Ninth 
Circuit--cases spanning 3 years--researchers documented 64 pro-
environmental cases and 65 con--signs of a properly objective 
judiciary. And what is more important is that there was no 
sectional breakdown of the judges in those cases.

7. Ninth Circuit Innovations Since the Hruska Commission's Report Show 
             That a Large Circuit Can Function Effectively

    The Ninth Circuit's experience in the 22 years following 
the Hruska Commission's report demonstrates that innovative 
approaches to adjudication and administration can go far 
towards mitigating potential problems of operating a large 
court. The Ninth Circuit has become a national leader in 
experimentation in judicial administration, developing 
solutions that are models for the rest of the country.

            Limited En Banc Procedure Authorized by Congress

    The majority report views the Ninth Circuit's use of a 
limited en banc court as a reason for dividing the circuit. It 
is not. The Ninth Circuit's use of the ``limited en banc'' 
procedure has proved effective in resolving the occasional 
intracircuit conflicts that arise.
    The 11-judge limited en banc was authorized by Congress to 
establish the law of the Circuit without the participation of 
all active judges. In so doing, Congress acted on the 
recommendation of the Hruska Commission--the same commission 
that is quoted with approval in the majority report.
    Critics of the limited en banc procedure should note that 
en banc decisions, in the Ninth Circuit and elsewhere, comprise 
only a small minority of precedential decisions. The Ninth 
Circuit holds only about 12-13 limited en banc sittings per 
year, out of over 4,000 written decisions. 23 Critics 
should also note that the law of all the federal circuits is 
overwhelmingly established by three-judge panels, with two 
judges sufficient for a majority. These decisions are every bit 
as authoritative as decisions that are signed by a majority of 
the full court.
    \23\ Table S-1 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
---------------------------------------------------------------------------
    All judges participate in the decision as to whether a case 
will go en banc, and the court's rules allow for rehearing by 
the full court at the request of either judges or litigants. 
The fact that a full hearing has never been held is not a cause 
for complaint; on the contrary, it simply points out the 
legitimacy of the device. There is no basis for viewing the 
limited en banc in anything other than a favorable light.

                           Other Innovations

    The Ninth Circuit was the first federal court to automate 
its docket. Computerized issue tracking systems, far more 
sophisticated than anything available in 1973, keep Ninth 
Circuit panels appraised of other panel decisions, helping them 
avoid intracircuit conflicts. Circuit-wide electronic networks 
also keep the court in close communication.
    The Ninth Circuit's use of an Appellate Commissioner has 
expedited rulings on minor and non-dispositive motions. The 
Appellate Mediation Program has fostered earlier case 
settlement.
    The Circuit's decentralized budget process, emulated by 
other circuits, has promoted economic efficiency through better 
targeting of resources to local needs.
    The Ninth Circuit is the only circuit to have a Bankruptcy 
Appellate Panel in place. This revolving 3-judge panel is 
regionally diverse. It is drawn from districts other than 
districts from which the cases arise, and it expeditiously 
dispatches bankruptcy cases.

                8. The Ninth Circuit Is Doing a Good Job

    The Ninth Circuit is operating smoothly and proficiently in 
terminating over 8,500 cases a year, almost two-fifths more 
than the number it terminated only seven years ago with the 
same number of judges.
    In disposition of cases after they have been submitted, the 
Circuit is fast in getting out its work. The average time from 
oral argument submission to disposition is 1.9 months, or a 
half a month less than the national average. 24 In fact, 
the Ninth Circuit is the 2nd most efficient circuit in deciding 
cases once they are submitted to judges. 25
    \24\ Table B-4 (12-month period ended Sept. 30), Judicial Business 
of the United States Courts--1994, Administrative Office of the United 
States Courts.
    \25\ Id.
---------------------------------------------------------------------------
    One indication of whether a court of appeals is keeping up 
with its workload is whether the number of pending cases is 
decreasing. Since 1992, the number of cases pending before the 
Ninth Circuit has decreased annually. As noted earlier, while 
the pending caseloads for the Eleventh and the Fifth Circuits 
have increased by 40 and 54 percent respectively over the past 
5 years, the Ninth Circuit's pending caseload has decreased by 
11 percent over the same time period. 26 For each of the 
past 5 years, the Ninth Circuit has shortened its time from 
filing to final disposition, and has terminated more cases than 
have been filed. 27
    \26\ Table B (12-month period ended Sept. 30), Judicial Business of 
the United States Courts--1994; 1993; 1992; Table B (June 30) 1991 
Annual Report of the Director, Book One, Administrative Office of the 
United States Courts.
    \27\ Id.
---------------------------------------------------------------------------

              Intracircuit Conflict: No Empirical Evidence

    The majority cites problems of intracircuit conflict as a 
reason for dividing the Ninth Circuit. The majority admittedly 
relies only upon ``[a]necdotal evidence.'' Anecdotal evidence 
is no substitute for objective, systematic study. As the 
Federal Judicial Center stated in 1993, there has been only one 
``systematic study of the operation of precedent in a large 
circuit.'' The scholar who conducted that study, Professor 
Arthur Hellman, testified at the Committee's hearing. He 
stated: ``The conclusion I reached after examining [hundreds] 
of cases is that the Ninth Circuit has generally succeeded in 
avoiding intracircuit conflict.''
    The majority also mentions the Ninth Circuit's 3,276 
possible panel combinations. In actual practice, the circuit 
uses fewer than 100 different combinations of judges per year. 
28 This is likely to be a lower figure than for certain 
other circuits, where panels are shuffled on a daily basis 
during a single week of sittings. 29
    \28\ Office of the Circuit Executive, United States Courts for the 
Ninth Circuit.
    \29\ Internal figures, Clerk, Ninth Circuit Court of Appeals 
(available upon request).
---------------------------------------------------------------------------
    Finally, without documentation, the majority report alludes 
to a high reversal rate of Ninth Circuit cases in the Supreme 
Court. In fact, the Supreme Court elects to hear only 13-24 
Ninth Circuit cases per year--hardly representative of the more 
than 4000 final dispositions issued annually by the circuit. 
30
    \30\ Id.
---------------------------------------------------------------------------

                  Delay and Size: No Proven Connection

    The majority report states that the Ninth Circuit's 
size``has contributed to delay in case processing in the 
circuit.'' It is true that the circuit's median interval from 
filing the appeal to hearing or submission could be reduced. It 
is noteworthy, however, that the Ninth Circuit's interval is 
close to the national median and is shorter than that of the 
Eleventh Circuit. It is hard to see why the majority report 
refers to the split of the Eleventh Circuit from the Fifth as a 
``success,'' when one of the new courts has the nation's 
poorest record for delay.
    Furthermore, it does not necessarily follow that any delay 
in the Ninth Circuit is related to circuit size. This could be 
attributable to the need for more judges, 31 variations in 
caseload mix, or judicial unwillingness to take substantive 
shortcuts, such as issuing orders without explanation.
    \31\ The majority quotes, out of context, from Chief Judge 
Wallace's testimony relating to the issue of delay. At the Committee 
hearing, Judge Wallace mentioned the current four-month delay to 
emphasize the need for more judges: ``Hundreds of cases are available 
to be heard by judges; there simply are not enough judges to hear 
them.''
---------------------------------------------------------------------------
    As noted above, the Third Circuit, for example, disposes of 
59 percent of its cases by unpublished orders that contain no 
explanation for the result. In the Ninth Circuit, only 5 
percent of cases have no statement of reasons. It is not 
surprising that the Third Circuit is faster than the Ninth in 
disposing of cases. But the Third Circuit's tradeoff is not 
necessarily desirable.

          9. S. 956 Would Create Three Undesirable Precedents

     One State Would Predominate in the Proposed New Ninth Circuit

    The majority acknowledges that ``California will 
undoubtedly predominate in the new Ninth Circuit,'' but insists 
that this situation ``is not without precedent in the courts of 
appeals.'' The fact is that California would predominate in the 
proposed new Ninth Circuit Court of Appeals to a degree that is 
without precedent or parallel.
    According to the majority's own figures on other circuits 
dominated by one state, New York contributes 87 percent of the 
caseload of the Second Circuit, while Texas contributes only 69 
percent of the Fifth Circuit's caseload. In the proposed new 
Ninth Circuit, however, 94 percent of the caseload would come 
from California. 32 This is a far cry from the two 
examples cited by the majority.
    \32\ Internal figures, Clerk, Ninth Circuit Court of Appeals 
(available upon request).
---------------------------------------------------------------------------

   A Two-State Circuit Would Weaken the Federalizing Function of the 
                       Federal Courts of Appeals

    Since their establishment in 1891, the circuits have been 
structured to draw upon the legal traditions of several states. 
The Ninth Circuit proposed in the Committee bill would contain 
only 2 states, California and Hawaii--the latter dwarfed by the 
former. In the entire history of the federal courts of appeal, 
there has never been a circuit composed of fewer than 3 states. 
Congress has recognized the importance of preserving the 
federalizing function of the courts of appeals by insisting 
that each circuit have at least three states.
    In the proposed new Ninth Circuit, California would 
contribute 94 percent of the caseload and, in all likelihood, 
would contribute all but one of the judges. Indeed, at the 
present time, every one of the active judges in the proposed 
new Ninth Circuit is from California.
    In the past, Congress has recognized the undesirability of 
two-state circuits. For much of the time when division of the 
old Fifth Circuit was under consideration, the principal 
proposal would have created a four-state/two-state split. 
Congress rejected this proposal in part because it would have 
created a two-state circuit. Only when a consensus developed on 
a three-three split did the division proceed. The same concerns 
that led Congress to insist on a three-three split of the 
former Fifth Circuit should lead it to reject S. 956.

 Congress has Never Divided a Circuit Until the Judges and Lawyers of 
      the Circuit Expressed Overwhelming Support for the Division

    The majority is of course correct in stating that Congress 
has an independent responsibility to oversee the functioning of 
the federal courts of appeals. However, in exercising this 
responsibility, Congress has always given greatest weight to 
the judgment of those who know the courts best. In the 105-year 
history of the federal courts of appeals, Congress has never 
divided a circuit until the judges and lawyers of the circuit 
expressed overwhelming support for the division.
    Congress has divided circuits only twice since the courts 
of appeals were created in 1891. In 1929, the Tenth Circuit was 
carved out of the old Eighth. By the time hearings were held on 
the proposal, all of the judges of the existing Eighth Circuit 
and bar associations of eight states had expressed their 
approval.
    The division of the Fifth Circuit in 1980 provides an even 
more apt comparison with what the majority proposes to do. 
Legislation to divide the Fifth Circuit was considered by 
Congress as early as 1975. But it was not enacted at that time. 
One reason was that there was strong opposition to the proposal 
from judges and lawyers in the affected states. By 1980, 
however, as noted earlier, professional opinion had coalesced. 
Division of the Fifth Circuit had the unanimous support of the 
circuit judges and the bar associations of every state.
    As Chief Judge Wallace noted in his testimony before the 
Judiciary Committee, ``the burden of proof should be put on 
those proponents of splitting the circuit.'' The Ninth Circuit 
is functioning well, there are advantages to size, and it is 
not clear that splitting the circuit would achieve any 
benefits.
    The debate over dividing the Ninth Circuit is not simply a 
regional debate. The future of the national judiciary is at 
stake. It is in the national interest to keep the Ninth Circuit 
intact to continue on the path of innovation that will 
ultimately benefit all of the circuits.
                                                  Dianne Feinstein.

                       X. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 956, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets; new 
matter is printed in italic; existing law in which no change is 
proposed is shown in roman):

                           UNITED STATES CODE

          * * * * * * *

               Title 28--Judiciary and Judicial Procedure

          * * * * * * *

                      CHAPTER 3--COURTS OF APPEALS

          * * * * * * *

Sec. 41. Number and composition of circuits

    The [thirteen] fourteen judicial circuits of the United 
States are constituted as follows:

                                                                        
                Circuits                           Composition          
                                                                        
District of Columbia...................  District of Columbia.          
First..................................  Maine, Massachusetts, New      
                                          Hampshire, Puerto Rico, Rhode 
                                          Island.                       
                                                                        
                     *    *    *    *    *    *    *                    
                                                                        
Eighth.................................  Arkansas, Iowa, Minnesota,     
                                          Missouri, Nebraska, North     
                                          Dakota, South Dakota.         
[Ninth.................................  Alaska, Arizona, California,   
                                          Idaho, Montana, Nevada,       
                                          Oregon, Washington, Guam,     
                                          Hawaii.]                      
Ninth..................................  California, Hawaii, Guam,      
                                          Northern Mariana Islands.     
Tenth..................................  Colorado, Kansas, New Mexico,  
                                          Oklahoma, Utah, Wyoming.      
Eleventh...............................  Alabama, Florida, Georgia.     
Twelfth................................  Alaska, Arizona, Idaho,        
                                          Montana, Nevada, Oregon,      
                                          Washington.                   
Federal................................  All Federal judicial districts.
                                                                        

          * * * * * * *

Sec. 44. Appointment, tenure, residence and salary of circuit judges

    (a) The President shall appoint, by and with the advice and 
consent of the Senate, circuit judges for the several circuits 
as follows:
                                                               Number of
                                                                  Judges
Circuits:
District of Columbia..............................................    12
First.............................................................     6

     * * * * * * *

Eighth............................................................    11
[Ninth............................................................   28]
Ninth.............................................................    15
Tenth.............................................................    12
Eleventh..........................................................    12
Twelfth...........................................................    13
Federal...........................................................    12

     * * * * * * *

Sec. 48. Terms of court

    (a) The courts of appeals shall hold regular sessions at 
the places listed below, and at such other places within the 
respective circuit as each court may designate by rule.

                                                                        
                Circuits                              Places            
                                                                        
District of Columbia...................  Washington.                    
First..................................  Boston.                        
                                                                        
                     *    *    *    *    *    *    *                    
                                                                        
Eighth.................................  St. Louis, Kansas City, Omaha, 
                                          St. Paul.                     
[Ninth.................................  San Francisco, Los Angeles,    
                                          Portland, Seattle]            
Ninth..................................  San Francisco, Los Angeles.    
Tenth..................................  Denver, Wichita, Oklahoma City.
Twelfth................................  Portland, Seattle, Phoenix.    
Eleventh...............................  Atlanta, Jacksonville,         
                                          Montgomery.                   
Federal................................  District of Columbia, and in   
                                          any other place listed above  
                                          as the court by rule directs. 
                                                                        

          * * * * * * *