SPEAKERS CONTENTS INSERTS
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NINTH CIRCUIT COURT OF APPEALS JUDGESHIP AND REORGANIZATION ACT OF 2003
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
OCTOBER 21, 2003
Page 2 PREV PAGE TOP OF DOCSerial No. 54
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Page 3 PREV PAGE TOP OF DOCSTEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Page 4 PREV PAGE TOP OF DOCSubcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JOHN R. CARTER, Texas
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
Page 5 PREV PAGE TOP OF DOCBLAINE MERRITT, Chief Counsel
DEBRA ROSE, Counsel
DAVID WHITNEY, Counsel
MELISSA L. MCDONALD, Full Committee Counsel
ALEC FRENCH, Minority Counsel
C O N T E N T S
OCTOBER 21, 2003
The Honorable Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Howard L. Berman, a Representative in Congress From the State of California, and Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property
The Honorable Mary M. Schroeder, Chief Judge
The Honorable Diarmuid F. O'Scannlain, Judge
Page 6 PREV PAGE TOP OF DOCOral Testimony
The Honorable Alex Kozinski, Judge
Mr. Arthur D. Hellman, Professor
Material Submitted for the Hearing Record
Statement of the Honorable John Conyers, Jr.
Statement of the American Bar Association
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from Circuit Judge Andrew J. Klinfeld, United States Court of Appeals, Ninth Circuit
Letter to the Honorable Lamar Smith and the Honorable Howard L. Berman from the Honorable Mary M. Schroeder, Chief Judge, United States Court of Appeals for the Ninth Circuit
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Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Fred Van Sickle, Chief United States District Judge, Eastern District of Washington (Spokane)
Letter to the Honorable F. James Sensenbrenner, Jr. Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Thomas G. Nelson, United States Circuit Judge for the Ninth Circuit of Idaho
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Philip M. Pro, Chief Judge, United States District Court, District of Nevada
Letter to the Honorable Lamar Smith, Chairman, Subcommittee on Courts, the Internet, and Intellectual Property of the House Committee on the Judiciary from the Honorable Sidney R. Thomas, United States Circuit Judge, United States Court of Appeals (Montana)
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, the Honorable Lamar Smith, Chairman, Subcommittee on Courts, the Internet, and Intellectual Property of the House Committee on the Judiciary, the Honorable John Conyers, Jr., Ranking Member, Committee on the Judiciary, and the Honorable Howard L. Berman, Ranking Member, Subcommittee on Courts, the Internet, and Intellectual Property, Committee on the Judiciary from Sharon L. O'Grady, Vice PresidentSan Francisco, Federal Bar Association, Northern District of California Chapter
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Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable John M. Roll, United States District Judge, United States District Court, District of Arizona
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable James A. Redden, United State District Judge, United States District Court, District of Oregon
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Sam H. Haddon, District Judge, United States District Court, District of Montana
Letter to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary, U.S. House of Representatives from the Honorable Joseph T. Sneed, Circuit Judge, United States Court of Appeals, Ninth Circuit
Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation from Cass R Sunstein, David Schkade and Lisa Michelle Ellman
NINTH CIRCUIT COURT OF APPEALS JUDGESHIP AND REORGANIZATION ACT OF 2003
TUESDAY, OCTOBER 21, 2003
House of Representatives,
Page 9 PREV PAGE TOP OF DOCSubcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 2:10 p.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Subcommittee] presiding.
Mr. SMITH. The Subcommittee on Courts, the Internet, and Intellectual Property will come to order. We welcome our witnesses here. This is a hearing on the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 0203. I am going to recognize myself for an opening statement, then other Members, then we will proceed with hearing from the witnesses today.
It has been said that the courts are the great levelers of the land; before them, all are equal. The rule of law is the cornerstone of American jurisprudence. For the most part, Americans have retained faith in our judiciary, because they believe it does apply the rule of law, from traffic court to the Supreme Court, when adjudicating legal disputes.
But a judiciary that fails to dispense justice in a timely, fair, and dispassionate manner compromises its own credibility. None of us here endorses such a fate for any of our Nation's courts at any level of review.
It is with this in mind that we will evaluate the merits of H.R. 2723, the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003 which was introduced by our colleague, Representative Mike Simpson of Idaho.
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More specifically, we need to explore whether the Ninth has become so big in geographic size, in work load, in number of active and senior judges, that it can no longer appropriately discharge its civic functions on behalf of the American people.
Consider this: The Ninth has 48 judges, a figure that is approaching twice the number of total judges of the next largest circuit. The Ninth represents 56 million people, or roughly one-fifth of our Nation's population. This is 25 million more people than the next largest circuit. The Ninth encompasses nearly 40 percent of the geographic area of the United States.
Some might argue so what if the Ninth is bigger and must handle more work for more people. Do these statistics by themselves indicate that the Ninth cannot produce quality work in a reasonable amount of time?
Well, the Ninth Circuit also has the most number of appeals filed and the highest percentage increase in appeals filed, the most number of appeals still pending and the longest meeting time until disposition.
In this regard, I would like to direct everyone's attention to the charts positioned on the side of the dais to my right. The one labeled ''Circuit Work Load and Productivity'' illustrates the Ninth's dilemma because of the sheer number of cases it must handle annually.
The second chart denotes the three slowest circuits as measured by the time required to dispose of an appeal once filed. Over the 23-year period reviewed, the Ninth Circuit was rated one of the three slowest circuits 21 times. It was the slowest circuit in 10 of those years. If objectively rated, the Ninth Circuit would get the lowest grade based on these criteria. Counting the D.C. Circuit, the Ninth would rank 12th out of 12.
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This rate raises the obvious question: Is justice being served, or, perhaps more precisely, can justice be better served?
There are other problems we should examine as well. Given the vast size of the Ninth, how does the added travel confronting the affected judges compromise their ability to work effectively? If the Ninth were split, would judges in the current configuration have greater opportunity to participate on argument panels with all of their colleagues? Will this result, and the increased likelihood of hearing more cases en banc, lead to greater predictability and certainty in the development of circuit case law?
We have a distinguished panel of witnesses to address these and other questions, and I look forward to their testimony today.
The gentleman from California, Mr. Berman, whose congressional district lies within the geographic boundaries of the Ninth Circuit, is recognized for his opening statement.
Mr. BERMAN. At least up till now.
Thank you, Mr. Chairman. It shall come as no surprise that I am opposed to the idea of splitting the Ninth Circuit, and thus am opposed to the legislation before us today, H.R. 2723. I have stated that opposition during hearings on similar legislation in each of the past several Congresses.
Page 12 PREV PAGE TOP OF DOC As then, I reject the political motives of some split advocates, find underwhelming the empirical case presented by others, and am concerned that a split will do more harm than good.
Some split advocates accuse the Ninth Circuit of being unduly activist in its decisions and believe a split would somehow curb this alleged tendency or at least inoculate the carved-out circuit from the decisions of the old Ninth Circuit.
I reject, quote, judicial activism, unquote, as a sound rationale for splitting the courts or for any other congressional action against the courts. If judicial activism were valid grounds for restructuring the courts, we would have to reconstitute the current U.S. Supreme Court, which has displayed its own judicial activism in crafting its doctrine of State sovereign immunity. Because judicial activism exists in the eye of the beholder, it cannot be a sound basis for restructuring courts.
Of course there are some, like Judge O'Scannlain, and several of his colleagues, who support a split for substantive reasons and not political or philosophical reasons, ideological reasons. I fully accept the substantive nature of their position and intend, as I have done in the past several Congresses, to hear them out.
Split proponents have the burden of proving the advisability of a split, and in my mind it is a heavy burden. They both must prove that the current Ninth Circuit does not efficiently and effectively serve the interests of justice and that a split would solve more problems than it would create. To date, the empirical evidence in support of a split has been lacking. In fact, for each reason offered as a justification to split the Ninth Circuit, there is an equally reasonable response that may justify an opposite conclusion.
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I know our witnesses will get into many of these arguments and counterarguments, and I won't go through all of those arguments at this point. I will wait till questions and answers after the testimony.
But I do want to discuss a few issues that our witnesses apparently do not intend to address. Some split proponents tout the common misperception that the Supreme Court reverses the Ninth Circuit an inordinate amount of the time. Based on this misperception, they claim the Ninth Circuit is either out of touch with the rest of the country or issues an unusual number of bad decisions. The evidence does not support this assertion and, in fact, may lead to the opposite conclusion.
According to the Conservative Center for Individual Freedom, in the October through 2002 term, the Supreme Court reversed 18 out of 24, or 75 percent, of the Ninth Circuit decisions it took. That seems like a large percentage until you learn that the Supreme Court reversed 100 percent of the Fourth, Fifth, Eighth, and Tenth Circuit decisions it took.
Furthermore, the Supreme Court reversed 71 percent of Sixth Circuit decisions and 67 percent of Second, Seventh, and district court decisions. Thus the Supreme Court actually reversed the Ninth Circuit much less than four other circuits on a percentage basis, and about in the same percentage of cases as three other circuits and the district courts as a whole.
Some split proponents have in the past claimed that the efficacy of the Ninth Circuit compares unfavorably with other circuits as measured in decisions per judge. I guess that efficacy is supposed to mean efficiency. As I pointed out last year, I believe the opposite conclusion can be drawn. From October 2000 through September 2001, the Ninth Circuit handled about 207 appeals per circuit judge. The Fourth, Fifth, Seventh and Eighth Circuits and Eleventh Circuit handled more, with the Fifth Circuit handling almost twice as many appeals per judge.
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However the Ninth Circuit judges are comparable to the Second, Third, and Sixth Circuits and significantly more than the First, Eighth, and Tenth Circuits. In other words, those numbers show that Ninth Circuit judges are in the middle of the packet with regard to the number of appeals they handle annually. This may not be the most efficient, but it is certainly not among the least.
While the opinions of Judge O'Scannlain and his 8 colleagues deserve our reasoned consideration, it is also important to note their opinion is not broadly shared. Chief Judge Schroeder, Judge Kozinski, and an apparent majority of their Ninth Circuit colleagues oppose a split.
The bar, which is certainly an effective community with much practical experience in dealing with the Ninth Circuit, also opposes a split. In 1998 the ABA adopted a formal resolution in opposition to splitting the Ninth, and in written testimony submitted to this Subcommittee last year reiterated its staunch opposition to any division of the Ninth Circuit.
Once again, in conclusion I find the substantive arguments of both sides on this issue to be reasonable. Without clear evidence that the current situation is detrimental, and understanding that a dramatic restructuring could end up a costly failure, I do not believe it is appropriate or prudent for Congress to legislate a split of the Ninth Circuit. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Berman.
Page 15 PREV PAGE TOP OF DOC Mr. SMITH. Are there other Members who wish to make opening statements?
The gentlewoman from California, Ms. Waters, is recognized for an opening statement.
Ms. WATERS. Thank you very much, Mr. Chairman and Members. I move to strike the last word.
Mr. Chairman, I am strongly opposed to H.R. 2723. Nothing has occurred since the last time this Committee considered dividing the Ninth Circuit that convinces me that there is any justification for such a division. While I ascribe no partisan motive to the witnesses before us, I am alsoI am concerned that at least some of the proponents of this bill are acting to try to address what they perceive as a liberal bias within the Ninth Circuit.
Clearly, in my view, objections to the substance of any decision of this court are no basis to justify proposals to divide the Ninth Circuit.
I believe that Judge Kozinski framed the issue before us correctly in his prepared testimony when he stated, and I quote, ''Dividing a circuit should not take place to make the lives of judges or lawyers easier or cozier or to reduce travel burdens. It should only take place when there is demonstrated proof that a circuit is not operating effectively and there is consensus among the bench and the bar and public that it serves that division is the appropriate remedy,'' unquote.
Page 16 PREV PAGE TOP OF DOC I do not see any persuasive evidence to suggest that the Ninth Circuit is not operating effectively. The circuit court has developed procedures that allow for early identification of potential or perceived conflicts and procedures that ensure that issues common to a number of cases are monitored so that panels are alerted to all other pending cases in which the same issue is being raised.
The court also issues prepublication reports to advise members of the court 2 days in advance of the filing of every published opinion and identifies cases that may be affected by the publication of that new opinion.
There is nothing to suggest that cases are not being adequately examined for consistency and with precedent and legal soundness.
Similarly, the court's procedures for an en banc review appear to be functioning effectively. While it is true that 11 judges sit as an en banc court, rather than the 28 authorized judges, every active Ninth Circuit judge participates in the decision whether to take a panel decision for en banc review.
Finally, I believe that proposals to divide the Ninth Circuit ignore the positive impact that technology is having on the court's ability to manage its docket and dispense justice effectively.
While I was not pleased with the court's reversal of the three-judge appellate court panel that had ordered a stay to the California recall election, no one can dispute that the appellate proceedings were handled efficiently and effectively.
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The recall election case demonstrates that the Ninth Circuit's procedures are working well, and it confirms the wisdom of the adage, ''If it ain't broke, don't fix it.''.
Mr. Chairman, from construction costs of adding another circuit court headquarters, to the decreased opportunities to transfer judges in order to manage caseloads, I believe that dividing the Ninth Circuit would create far more problems than it would solve.
Simply put, the cure proposed by this bill is far worse than any alleged disease. I urge my colleagues to reject H.R. 2723 and yield back the balance of my time.
Mr. SMITH. Thank you, Ms. Waters.
Mr. SMITH. Before introducing our witnesses today, I would like to recognize the presence of the gentleman from Idaho, the individual who wrote the legislation on which we are having a hearing, and that is Congressman Mike Simpson. We appreciate his being here today and welcome him to sit in on the hearing as well.
Our first witness is the Honorable Mary M. Schroeder, the Chief Judge for the U.S. Court of Appeals for the Ninth Circuit. Prior to her service on the Federal bench, she also served as a judge for the Arizona Court of Appeals. Judge Schroeder earned her B.A. In 1962 from Swarthmore College and her J.D. in 1965 from the University of Chicago Law School.
Our next witness is the Honorable Diarmuid O'Scannlain, who is a circuit judge for the Ninth Circuit Court of Appeals. Judge O'Scannlain earned his B.A. Degree in 1957 from St. Johns University and his J.D. Degree in 1963 from Harvard Law School. He also earned the LLM degree in judicial process at the University of Virginia School of Law in 1992.
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Our next witness is the Honorable Alex Kozinski, who also serves on the Ninth Circuit. Earlier in his career, Judge Kozinski was the Chief Judge of the U.S. Claims Court. Judge Kozinski received his undergraduate and law degree from UCLA, where he was a member of the Law Review.
The last witness is Arthur Hellman, who is a professor at the University of Pittsburgh School of Law. Professor Hellman is the Nation's leading academic authority on the Ninth Circuit. He received his B.A. Magna cum laude, Harvard 1963, and his J.D. 1966 from the Yale Law School.
Welcome to you all. We have written statements as well from the witnesses, and without objection, the entire witness statements will be made a part of the record. We do hope, however, that you will limit your oral testimony to 5 minutes.
Mr. SMITH. And we will proceed, and, Judge Schroeder, we will begin with you.
STATEMENT OF HONORABLE MARY M. SCHROEDER, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Judge SCHROEDER. Thank you very much, Mr. Chairman. I appreciate the opportunity to appear before you today. My name is Mary M. Schroeder. I am Chief Judge of the United States Court of Appeals for the Ninth Circuit, a position I have held since December of 2000. My chambers are in Phoenix, Arizona. With me today in opposition to this legislation is my colleague Alex Kozinski of Pasadena, and sitting collegially between us, expressing a different point of view, is Judge O'Scannlain.
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Behind us, as always, is our very fine clerk of court, Cathy Catterson, who is with us from San Francisco.
I have nothing but positive things to report on the circuit's conduct of its business since I appeared before you approximately 15 months ago testifying in opposition to then-pending legislation. There was no reason to divide the circuit then, and there is none now.
We have four new judges, and we have reduced the time needed to hear and decide cases. There have only been two instances of circuit division in the history of our country. The first was in 1929 when the Eighth Circuit divided into the Eighth and the Tenth, and the second was in 1980 when the Fifth Circuit divided to create a new Eleventh Circuit.
That division had the full support of a substantial majority of the affected judges, and took place before the computer revolution which has transformed our country and the world, including our court systems. The majority of our judges on the Ninth Circuit do not favor any realignment.
This bill would divide the Ninth Circuit into two unbalanced circuits, one consisting of Arizona, California, and Nevada, which would have 82 percent of the caseload of the existing Ninth Circuit, and the otherleaving the remaining 18 percent to a circuit spanning the distance from the Arctic Circle to Guam. That is a lot of territory for nine judges.
H.R. 2723 also attempts to address major problems that were pointed out at last year's hearing, but it doesn't find solutions that will work. To deal with the real need for flexibility in the assignment of district judges, the bill would allow the transfer of district judges from one circuit to another but only upon the agreement of two Chief Judges, thus setting the stage for intercircuit administrative disputes. And this would require district and circuit judges to keep current in the law of two circuits rather than one.
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To compensate for the paucity of judges in the circuit containing California, Arizona and Nevada, the bill adds judges; but if recent experience is any lesson, the additional judges will not be seen in significant numbers for a long time. Our average time for confirmation has been about 2-1/2 years.
Nor does the bill purport to do anything about the increase of costs resulting from the replication of existing staff resources, administrative personnel, and construction of buildings. The most important point is this: Our circuit works well. Our foresighted efforts to deal with the critical judicial administration issues facing us in the 21st century are receiving national recognition.
We have worked intensively on improving the relationships between the judiciary and the media, both electronic and print, so that the public is better informed about the operation of the courts. It is important for people to see how our justice system works, and our achievements were illustrated 3 weeks ago with the recall case. Whether you agree with it or not, it was telecast live to the Nation on a nationwide basis. So the Court of Appeals has in fact permitted cameras in the courtrooms for nearly 10 years.
In closing, I simply would like to emphasize that division of the circuit is not a partisan issue for our judges. We urge the Subcommittee to take no further action on 2723 and allow the circuit to continue to devote its efforts to what it should be doing, which is deciding those cases that come before it in a just and prompt manner through the conscientious application of the Constitution and laws of the United States. Thank you.
Page 21 PREV PAGE TOP OF DOC Mr. SMITH. Thank you, Judge Schroeder.
[The prepared statement of Judge Schroeder follows:]
PREPARED STATEMENT OF CHIEF JUDGE MARY M. SCHROEDER
I appreciate the opportunity to appear before you today. My name is Mary M. Schroeder and I am Chief Judge of the United States Court of Appeals for the Ninth Circuit, a position I have held since December 2000. I was appointed to the Ninth Circuit in 1979 by President Jimmy Carter. My chambers are in Phoenix, Arizona. Appearing with me today in opposition to the bill is my colleague Alex Kozinski of Pasadena, California, who was appointed to the Ninth Circuit in 1985 by President Ronald Reagan.
Since I last appeared before you, the Senate has confirmed four new judges to our Court, and we are now nearly up to full strength. It has been a very long time since we have had our full complement of judges; for quite a few years the Court was down by as many as one-third of its authorized, active judgeships. With the confirmation of these new judges and the continuing innovative means of managing our caseload, the Court has actually materially reduced the time needed to calendar and decide cases. As a result, I have nothing but positive things to report on the Circuit's conduct of its business since I appeared before you approximately fifteen months ago testifying in opposition to then pending legislation. There was no reason to divide the Circuit then and absolutely none now.
In the period since 1984, when the Court was last authorized new judgeships, there has been a tremendous growth in the Court's caseload. It has more than doubled. Due to the advances in technology, such as the automated docket, computer aided legal research, instantaneous electronic mail, videoconferencing, along with the economies of scale that can be achieved in a large circuit, we have increased our efficiency and our caseload has become more, and not less, manageable. Both the Fifth and Eleventh Circuits have experienced similar increases in caseload growth. No one is calling for further divisions of those circuits, and no one should.
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There have only been two instances of circuit division the history of our country. The first was in 1929 when the Eighth Circuit divided into the Eighth and Tenth Circuits; and the second was in 1980 when the old Fifth Circuit divided to create a new Eleventh Circuit. That division had the full support of a substantial majority of the affected judges and took place before the computer revolution which has transformed our country and the world, including our court systems.
Last year, this subcommittee held a hearing on HR 1203, the Ninth Circuit Court of Appeals Reorganization Act of 2001. It was brought out during that hearing, that circuit division would do away with important advantages that flow from a large circuit. Division would eliminate the ability to transfer district judges from one district to another within the same Circuit to deal with fluctuating caseloads. Division would also reduce the number of circuit judges available to decide the cases from the burgeoning border districts, of Arizona and Southern California, and the increasingly populous District of Nevada.
I turn to the provisions of this bill, HR 2723. It would divide the Ninth Circuit into two unbalanced circuits. One, consisting of Arizona, California and Nevada, would have 82% of the caseload of the existing Ninth Circuit, leaving the remaining 18% to a circuit spanning the distance from the Arctic Circle to Guam. That's a lot of territory for 9 judges.
HR 2723 also attempts to address major problems that were pointed out at last year's hearing, but it does not find solutions that will work. To deal with the real need for flexibility in the assignment of district judges, the bill would allow the transfer of district judges from one circuit to another, but only upon agreement of two Chief Judges, thus setting the stage for intercircuit administrative disputes. More important this would require both district and circuit judges to keep current in the law of two circuits rather than one.
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To compensate for the paucity of judges in the Circuit containing California, Arizona, and Nevada, this bill purports to add judges; but if recent experience is any lesson, the additional judges will not be seen in significant numbers to do any good for a very long time. The average length of time from vacancy to confirmation of Ninth Circuit judges over the past ten years has been two and half years. Quite a few took longer than that. For example, it took more than four years for Judge Richard Paez' confirmation to this Court; almost four years for Judge Marsha Berzon; three years for Judge Margaret McKeown; and currently Caroline Kuhl's nomination has been pending for more than two years. It was 19 years before we got an active judge in Hawaii after Judge Herbert Choy took senior status in 1984.
Nor does the bill purport to do anything about the increase of costs resulting from the replication of existing staff resources, existing administrative personnel, and the construction of buildings. Construction costs for a new circuit headquarters would be most dramatic. As noted at last year's hearing, there are courthouses in Seattle and Portland that are being renovated, yet neither of those buildings is being designed as a circuit headquarters. Indeed, substantial planning and design work is already underway in Seattle that would have to be undone, wasting precious taxpayer resources. Neither building has sufficient space to serve as a circuit headquarters. A third building, The Gus Solomon Courthouse in Portland, Oregon, requires substantial and costly seismic strengthening.
The most important point is this: our Circuit works well, and our foresighted efforts to deal with the critical judicial administration issues facing us in the 21st century are receiving national recognition. I will highlight one important project. Beginning more than five years ago, with my predecessor as Chief, Procter Hug of Nevada, the Circuit, through a key new committee, has worked intensively on improving the relationships of the judiciary and the media, both electronic and print, so that the public can be better informed about the operation of the federal courts and the difficult nature of the issues that they confront. It is important for people to see how our justice system works. Our achievements were illustrated three weeks ago when we permitted our En Banc proceedings in the California recall case to be telecast live on a nation wide basis. The lawyers were of superb quality, the issues of great public interest, and the judges well prepared. Much credit goes to Public Information Committee Chair, District Judge Alicemarie Stotler, of Santa Ana, California, and to District Judge Robert Lasnik of Seattle, Washington, who will succeed her.
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The Ninth Circuit Court of Appeals has in fact permitted cameras in our appellate courtrooms for nearly ten years. This, we submit, is another illustration of how the Ninth Circuit is in the forefront of trying to make the public informed of the important role the federal courts play in today's society.
In closing, I would like to emphasize that division of the circuit is not a partisan issue for our judges. For nearly 50 years, our Chief Circuit Judges appointed by the Eisenhower administration through the Reagan Administration, including the judge who is set to succeed me, have all opposed division of the circuit. A large majority of our judges similarly have opposed and continue to oppose division as serving no useful purpose related to the administration of the federal courts of the west. We urge the subcommittee to take no further action on HR 2723, and allow the Ninth Circuit to continue to devote its efforts to what it should be doing: deciding those cases that come before it in a just and prompt manner, and though the conscientious application of the Constitution and the laws of the United States.
Mr. SMITH. Judge O'Scannlain.
STATEMENT OF HONORABLE DIARMUID F. O'SCANNLAIN, JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Judge O'SCANNLAIN. Thank you, Chairman Smith and Members of the Subcommittee. My name is Diarmuid O'Scannlain, and I am a judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Portland, Oregon.
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Thank you for inviting me once again to discuss the future of my circuit. I am especially honored to be called upon to comment on this bill, because it is laudable for recognizing and directly responding to nearly every argument lodged against its predecessors. Congressman Simpson, its sponsor, has gone out of his way to solicit the views of our court, and it is evident that H.R. 2723 was drafted with uncommon sensitivity to the concerns of my colleagues.
I can report that I speak not only on my own behalf but on also the behalf of 8 of my colleagues, and you may also recall that another colleague, Judge Rymer of California, served on the White Commission and is on record that our Court of Appeals is too large to function effectively.
I appear before you as a judge of one of the most scrutinized institutions in this country. In many contexts, that attention is negative, resulting in criticism and controversy. Some view these episodes as fortunate favors, sparking renewed interest in how the Ninth Circuit conducts its business.
I believe that all three judges here today, and Professor Hellman as well, would agree that a restructuring proposal like this bill should be analyzed solely on the grounds of effective judicial administration, grounds that remain unaffected by Supreme Court batting averages and public perception about particular decisions. Rather, restructuring the circuit is the best way to cure the administrative issues affecting my court, an institution that has already exceeded reasonably manageable proportions.
Page 26 PREV PAGE TOP OF DOC As you scan the appendix at the back of my prepared testimony, consider, for example, the exhibits numbered 10 through 13. Compared to all other circuits, we employ more than twice the average number of judges. We have more than twice the average population, and we handle more than twice the average number of appeals. The Ninth Circuit already equals two circuits in one.
The sheer magnitude of our court and its responsibilities negatively affect all aspects of our business, including our celerity, our consistency, our clarity and even our collegiality. Everyone recognizes these considerations, but not everyone agrees that a split is the ideal solution. In fact, on this point my own Chief and I will disagree, although each with the greatest respect for each other's views.
But I am convinced that the various arguments against the split are persuasive. Indeed, the special virtue of this bill is that it addresses substantially all of the arguments against H.R. 1203 advanced by Chief Judge Schroeder and Judge Sidney Thomas at last year's hearings. As the Chief pointed out last year, additional judgeships are sorely needed as there have been no additional judgeships added to our courts since 1984.
But this bill answers that protestation in spades. This bill properly places all seven of its new judges in the reconfigured Ninth Circuit. Last year's proposal left the Ninth Circuit with close to 80 percent of its caseload but only two-thirds of its judges. In contrast, H.R. 2723's efforts result in only a marginal caseload disparity.
The Twelfth Circuit would take about 20 percent of the caseload and about 25 percent of the judges, and of course I am confident that those of us assigned to the Twelfth Circuit would be more than happy to help out the new Ninth on a regular basis as needed. And I for one accept Professor Hellman's suggestion to volunteer to sit with the new Ninth to help balance the load on a temporary basis.
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Although this area is growing, I do concede that the Twelfth Circuit would begin as one of our smaller circuits, but at 2,200 total appeals filed, it already would process more litigation than the First and the D.C. Circuits and would be within a few hundred appeals of the Tenth.
By appeals fixed per authorized judgeship, the Twelfth Circuit would exceed the Tenth and D.C. Circuits and be less than 50 filings away from each of the First, Third, Sixth, and Eighth Circuits. Judge Thomas's suggestion that the Twelfth Circuit would be too small impugns each one of these already hardworking circuits.
Also Congressman Simpson's proposal explicitly continues and expands our practice of assigning circuit and district judges in times of need. These important provisions essentially provide an unprecedented double benefit. Nearly all the important administrative innovations the Ninth Circuit has instituted over the last few years may be shared between the two new circuits, and at the same time each circuit would receive all the benefits of reorganization into new circuits.
There is nothing unusual, unprecedented, or even unconstitutional about the restructuring of judicial circuits. Federal appellate courts have long evolved in response to natural population and docket changes. As geographic or legal areas grow even larger, they divide into smaller, more manageable judicial units.
No circuit, not even mine, should resist the inevitable. Only the barest nostalgia suggests that the Ninth Circuit should be kept essentially the same for over a century. But our circuit is not a collectible or an antique, we are not untouchable. We are not something special or an exception to other circuits. We are not some elite entity immune from scrutiny by mere mortals. The only consideration is the optimal size and structure for judges to perform their duties like all other circuits in our judicial system.
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Indeed, I am mystified by the relentless refusal of past, present, and future Chief Judges to contemplate the inevitable. But I for one cannot oppose the logical evolution of the Ninth Circuit as we grow to gargantuan size.
Mr. Chairman, I thank you for making these short remarks. The complete presentation of my views on the legislation has been submitted, and I appreciate it being admitted into the record.
Mr. SMITH. And it has been. Thank you, Judge O'Scannlain.
[The prepared statement of Judge O'Scannlain follows:]
PREPARED STATEMENT OF JUDGE DIARMUID F. O'SCANNLAIN
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Mr. SMITH. Judge Kozinski.
STATEMENT OF HONORABLE ALEX KOZINSKI, JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Judge KOZINSKI. Good afternoon, Mr. Chairman, and Members of the Committee. My name is Alex Kozinski. I am a judge on the Ninth Circuit. Like my junior colleague Judge O'Scannlain, I was appointed by President Reagan, and I am confident that when Judge O'Scannlain reaches my level of seniority, he will see the error of his ways.
I want to start out by thanking very seriously the Committee for allowing me to testify and for the courtesy it has shown in the process. And I want to specifically commend the Committee staff. They are just wonderful. I have testified here twice, and it really speaks well for the Committee and its Chairman that they have such wonderful people working for them and make us out-of-towners feel so comfortable.
I will submit my statement for the record, and I don't want to reiterate the dry facts and figures and statistics to which I allude there. Instead, what I would like to talk about in the few minutes that I have is an illustration of how a process works with reference to the case that Congresswoman Waters referred to, the California recall case, the Southwest Voter Registration v. Shelley case. I believe this case illustrates that the Ninth Circuit is neither too big nor too far dispersed nor too diverse to deal with its business effectively and quickly.
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As you may recall, and probably don't, but the record shows the opinion of the three-judge panel enjoying the election in California was issued at 10 o'clock on September 15th, 2003. Thirteen minutes later it was circulated to the entire court. At 4:12 a.m., the following day, Tuesday, 16 hours later, there was an en banc call made by one of the judges of the circuit with not simply a call but also a memorandum of law supporting the en banc call.
At 11:24 the next day, only 24 hours after the opinion was issued, the en banc coordinator issued an order notifying the parties that the call had been made and asking for their views.
Only an hour later, schedule was set for internal circulation of memos.
During the 3 days that we had to circulate memos in the case, more than 25 memos were circulated by 15 different judges in seven States. The voting was set to start on Friday morning at 9 o'clock, and it was completed at 11:03 a.m., 2 hours and 3 minutes later.
Four minutes after that, 11:07 on Friday morning, an en banc panel was drawn, and 12 minutesI am sorryan order was filed notifying the world that the case had gone en banc, and 12 minutes after that, 11:15 a.m., we had a panel of judges drawn to sit in the case. The case was heard the following Monday.
As some of you may recall having watched the hearings, judges in that case came from California, Arizona, Oregon, Washington, Nevada, and Alaska. I hope I am not being presumptuous in saying that those who observed the hearing believe the judges were well prepared and asked pertinent questions and fully understood the issues. And less than a day later, the following morning, the court, consisting of judges from seven States, from judges appointed by Presidents from Clintonfrom Carter to Clinton and every President in between, issued an unanimous opinion that was so well accepted that put the processvoting process well intact, that even those who disagreed with the result felt it was unnecessary and perhaps hopeless to take it to the Supreme Court, it was so well received, and the appellants in that case notified that they would not take an appeal.
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Now, I believe the case is more visible and therefore I have spoken about it, about the speed with which the court acted, despite its size, despite the diversity in the number of the judges. And the fact that we were able to get the job accomplished as quickly and as effectively, I think, speaks quite well, and I think refutes the notion that the Ninth Circuit is somehow too unwieldy, too big, too diverse, or too acrimonious in any sense to remain intactand I believe that that case is not unique. From my own experience on the court through 18 years, longer than Judge O'Scannlain
Judge O'SCANNLAIN. By 1 year.
Judge KOZINSKI. Well, it was an important year. I believe that that case reflects the work of the court, and I urge the Committee to, after careful consideration, reject the bill.
Mr. SMITH. Thank you, Judge Kozinski.
[The prepared statement of Judge Kozinski follows:]
Mr. SMITH. Professor Hellman.
STATEMENT OF PROFESSOR ARTHUR D. HELLMAN, PROFESSOR OF LAW, UNIVERSITY OF PITTSBURGH SCHOOL OF LAW
Mr. HELLMAN. Thank you, Mr. Chairman, for holding a hearing on this new bill and for inviting me to express my views. It is certainly true that there have been many hearings in both houses of Congress on the subject of reorganizing the Ninth Circuit. But as I see it, the issue today is significantly different from what it has been in the past.
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In the past, the issue has always been should Congress divide the Ninth Circuit, or should Congress leave the circuit alone? That is not the issue today.
Earlier this year, the Judicial Conference of the United States asked Congress to authorize seven additional judgeships for the Court of Appeals. That was in response to a request from the Ninth Circuit.
As I said last June when I had the privilege of testifying before this Subcommittee, there is no doubt that that request is justified. So the choice today is this: Should Congress simply authorize the seven new judgeships, creating a court of 35 active judges, or should Congress move forward with H.R. 2723, which authorizes the new judgeships but also divides the circuit?
I think that is a question on which reasonable people can disagree, and it is because there is so much that can be said on both sides that my statement is so regrettably long.
What I would like to do now is to identify three issues that particularly require discussion and investigation. First, there is the fact that even today the judges sit with one another so infrequently. Here is one example. Judge William Fletcher joined the court in February 1999. Today, 4-1/2 years later, he still has not sat on a regular argument panel with all of the active judges appointed through 2000.
Outside the Ninth Circuit, most appellate judges would say that an appellate court cannot operate effectively when the judges have so little opportunity to sit together in deciding cases. But maybe they say that because their only experience is on a smaller court, and, as Justice Frankfurter used to say, they are confusing the familiar with the necessary.
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On the other hand, it is also possible that the judges of the Ninth Circuit, when they say there is no problem, are confusing the necessary with the desirable. I am not a judge, and I cannot tell you which of those positions is correct. I do say this: It is something the judges should be thinking very hard about and discussing with one another. They should be looking at the data, at the printouts, and asking: Are we satisfied with this way of carrying out our work today? What will our professional lives be like on a court of 35 active judges?
The second issue is the one that the Chairman has mentioned, delay; delay in the disposition of cases by the Ninth Circuit Court of Appeals.
Now, the record doesn't look very good, but that alone is not a reason for dividing the circuit. You would have to find a causal connection between the size of the circuit and delay, and that has just not been established. But that doesn't mean that the issue should be off the table. The pattern is a very troubling one, and it is something that should be investigated in a systematic and scientific way.
If it does turn out that there is a link to circuit size, that will have to be considered along with the other factors.
The third issue involves the flood of immigration appeals, discussed I think in some of the other testimony. There are a number of questions raised about this. To what extent is this phenomenon a product of the Justice Department's decision to clear a backlog, which I believe it has now done, and to what extent is it the product of circumstances that are going to continue? Should these appealsand there are just a huge number of themshould they be weighted as ordinary cases, or should they maybe be weighted a bit like pro se cases because so many of them involve similar issues?
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And there is also a broader aspect of counting these cases. You cannot ignore these appeals in making the choice I have identified between those two courses of action, but it would be shortsighted to let them overshadow everything else.
Well, those are only a sampling of the issues that should be discussed. Some of those issues are relevant to all members of the Ninth Circuit legal community. Others involve matters that are uniquely within the experience of the Court of Appeals judges. What is important is that the discussion take place.
I continue to believe, and I do want to emphasize this, I continue to believe that it would be wrong for Congress to divide a circuit unless the proposed reorganization has substantial support from the judges and lawyers in the affected region. They are the ones who know best what is going on there. But the judges and lawyersand I think particularly the judgeshave a correlative obligation to formulate their position through a process that is thorough and open-minded. And that includes a willingness to reconsider previously stated positions in the light of new information and new legislative proposals such as H.R. 2723.
I want to thank you again, Mr. Chairman, for holding this hearing, because it puts these issues on the table, and it invites the judges to take the next step in this process. Thank you.
Mr. SMITH. Thank you, Professor Hellman.
[The prepared statement of Mr. Hellman follows:]
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Mr. SMITH. Judge Schroeder, let me address my first question to you. You said a few minutes ago that the most important point was, quote, our circuit works well.
Given sort of the cumulative message of the charts that you saw a few minutes ago, particularlyand to me it is one of the most importantthe time or disposition which is longer with the Ninth Circuit than with any other circuit by far, it seems to meand given what was on the charts a while ago, where I indicated in my opening statement that if you were to rank the circuits, the Ninth Circuit would be 12th out of 12.
Given all of that, it seems to me that the circuit does not necessarily work well. And my question to you is if splitting the court would reduce the backlogand in that case you also hold a record, because you have the fastest increasing backlog loadif it would reduce the time of disposition, why wouldn't you favor splitting the Ninth Circuit?
Judge SCHROEDER. Well, thank you for the question. First of all I want to point out that we are not theif we are talking about the time from filing a notice of appeal to final disposition, the Sixth Circuit is about 16 months, and the Ninth Circuit is 14. So we are not the slowest, but
Page 41 PREV PAGE TOP OF DOC Mr. SMITH. We were looking over the cumulative 23 years, and I think
Judge SCHROEDER. Oh, over the 23 years.
Mr. SMITH. The Ninth Circuit was 21 of the 23. But anyway, it is not a good picture, shall we say, and it would belie, I think, the claim that everything is going well.
Judge SCHROEDER. Well, first of all, we have reduced the delay, and we are continuing to reduce delay. We did have in the past few years as many as 10 vacancies of our 28 judges. We are very encouraged by the fact that those have been filled. We had a vacancy in Hawaii that went from 1984 until last year.
So we have had to deal with those issues. Those are not issues that are the responsibility of the House of Representatives.
Mr. SMITH. If we saw improvement on some of those issues, like time decision position and reducing the backlog, are you in favor of dividing the Ninth Circuit?
Judge SCHROEDER. If we see improvement that are in favor of it
Mr. SMITH. If dividing the circuit would lead to improvement in some of those statistics
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Judge SCHROEDER. There has been no indication, no showing that it would, because as this billas I tried to make clear, this bill would put 80 percent of the cases into one circuit and leave nine judges to decide cases that range from one-sixth of the world's surface. So I see no indication from that, that that would make for a more efficient operation. And we have been very much concerned about increasing efficiency and making sure that our litigants are heard.
Mr. SMITH. It seems to me that even if it only improved things by 20 percent it would be worth doing, but that may just be a difference of opinion. But thank you for your answer.
And Judge O'Scannlain, let me direct my next question to you. You pointed out in your testimony that the special virtue of H.R. 2723 is that it addresses substantially all of the arguments against H.R. 1203 advanced last year. And I agree. I also think your testimony goes a long ways toward addressing all of the criticisms of the current bill in its improved form.
You say in your testimony that the court size negatively affects the ability of us judges to do our jobs. In what way does it negatively affect your ability to do your jobs? And do you feel by dividing the court we would see an improvement in some of these indications of jurisprudence?
Judge O'SCANNLAIN. Size gets to be an unmanageable issue after a certain level. As I mentioned in my remarks, the clerk of court, Kathy Catterson who is in the room and has already been identified, has done a fabulous job with managing the numbers that we have to deal with. But we are a human institution, and if we get the seven new judges that we have requested through the omnibus judge bill, we would be up at 57 judges. And when you look at that comparison, which is Exhibit No. 7, you just see how off the charts we are in terms of comparison to other circuits.
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It seems to me that we have to remember that we are not unique in any way in terms of what other circuits ought to be doing, and the circuits should have some reasonable comparability. Obviously they are not meant to be copies of each other, but the sheer amount of the volume of work that we now have, the number of judges, has an effect on the court, which is I believe manifested and is going to become more and more manifest in the future as all of the other forces that are driving our size continue, unless we do something about it.
Mr. SMITH. Thank you, Judge O'Scannlain.
Judge KOZINSKI. Mr. Chairman, might I speak to this
Mr. SMITH. My time is up, but I am going to come back in a minute and have some more questions for you all, so when that time comes, perhaps you can respond then.
The gentleman from California, Mr. Berman, is recognized for his questions.
Mr. BERMAN. Judge Kozinski, would you like to speak to that?
Judge KOZINSKI. Thank you, Mr. Berman.
Just very briefly, it is not the case, as Judge O'Scannlain suggested, the larger circuit in fact is less efficient. In fact, it is quite the contrary. The Ninth Circuit issues 700 or so opinions a year. Those opinions become the binding law of the Ninth Circuit. They do nothing for the Tenth Circuit, the Eighth Circuit. Those issues have been decided by panels in those circuits separately, even if only to provide an opinion to say we agree with our colleagues in the Ninth, which sometimes they do, sometimes they don't.
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If you split the Ninth Circuit in half, all of those cases we now decide that become binding law for the entire Ninth Circuit would have to be duplicated. Many issues would have to be heard in the Ninth Circuit and in the future Twelfth Circuit. We are doubling the work.
Mr. BERMAN. In other words, the notion that an issue that is ruled on by a Ninth Circuit panel is binding on future cases coming up in the Ninth Circuit would now be cast aside, not simply for the new circuit but for both circuits because
Judge KOZINSKI. They would both have to decide.
Mr. BERMAN. They have to redecide cases thatbefore they could summarily affirm or overturn
Judge KOZINSKI. But based on prior Ninth Circuit precedent, now the judges in the other circuit would have to write an opinion, duplicate the work.
Mr. BERMAN. And just to understand Judge Schroeder's point earlier on the issue of time of disposition in the year 2002, the Ninth Circuit was not the slowest circuit, and that at least some part of the earlier length of time was as a result of a significant number of vacancies in the Ninth Circuit positions, that it was the lack of judges rather than the size of the circuit that contributed to the delay in disposition.
Judge SCHROEDER. That was a major factor.
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Mr. BERMAN. And that even this bill before us creates seven new judges for the two circuits, as I understand it, in order to deal with the issue of caseload and judges.
Judge SCHROEDER. To make up for the loss of the judges that would go to another circuit, yes, and alsoand to assist us inthe Ninth Circuit in doing its job, that's right.
Mr. BERMAN. On the issue of travel time and travel burden, it is obviously true that the Ninth Circuit judges travel great distances. But in the new Twelfth Circuit created by this legislation, Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, and Washington are all in one circuit. This split would shift the burden from the Ninth Circuit, it seems to me, to the new Twelfth Circuit. And my guess is with what little I know about airplane routes, that the best way to get from Montana to Hawaii may be through California.
Judge SCHROEDER. San Francisco or Los Angeles, that's correct.
Mr. BERMAN. Judge Kozinski, it is sometimes argued that the size of the Ninth Circuit and the ever-changing composition of panels reduces collegiality amongst Ninth Circuit judges. Professor Hellman, whose own research shows that conflicts between the Ninth Circuit panels are no more prevalent than in smaller circuits, has concerns about whether the Ninth Circuit judges feel themselves a part of the court and know the minds of their fellow judges. I think that was part of the illustration of Judge Fletcher. And Professor Hellman, you gave that illustration. Right?
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Reduced collegiality, as suggested, may make it harder to reach agreement, disagree amicably, or craft a stable body of law.
Do you, Judge Kozinski, believe the level of collegiality among Ninth Circuit judges is insignificant or somehow impairs the operation of the court from yourbecause you, unlike Professor Hellman, by his own words, are a judge and presumably could make some observations about that.
Judge KOZINSKI. I was told by Professor Hellman's observations and speculations on this point, it is certainly not consistent with my experience of the many years spent on the Ninth Circuit; but as it turns out, we don't need to speculate or rely on judges. And there was in fact a study just issued by Professor Kazenstien and some of his colleagues that go to this very question. And if I may distribute this, because it would be helpful, there is a chart that speaks to this issue, and if I could havejust explain what it says.
The study looked into the matter of how often circuitsone of the issues looked at is what they call panel effects, the degree to which judges are likely to be swayed by colleagues when they are on the same panel. And if you would look at the chart which comes from this study, you will see that the circuits are lined up by size, with the Ninth Circuit being the greatest. The points on the chart, the other graph, shows the degree of cooperation, the willingness of panel judges to be swayed to collaborate with other judges; in other words, to be collegial. The Ninth Circuit is the highest, and this is not based on opinion, this is based upon actual voting pattern.
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Size in fact has very little to do with it. If you notice the SecondFifth, Sixth, and Second Circuit, vary drastically in the level of collegiality, much lower than the Ninth Circuit. And look at the Seventh circuit, which is about the same size as the Tenth, Eighth, and Eleventh, and it has much lower level of panel effects of collegiality.
In fact, size of circuit seems to have no effect at all on this. And it is not only contrary to my own experience, I believe the experience of most of my colleagues, it in fact is a very well respected study. I have given the cite, and I hope the Committee will have an opportunity
Mr. SMITH. Without objection, the chart will be made a part of the record. I thank you, Judge.
The gentlewoman from Pennsylvania, Ms. Hart, is recognized for her questions.
Ms. HART. Thank you, Mr. Chairman. There has been a lot of discussion regarding how large the caseload is of the current circuit, and I am interested in Professor Hellman's response. And I know he had some things to say that were cut off earlier. Feel free to put those in if they actually speak to this issue as well.
The proposed new Ninth Circuit, how would you respond to the suggestion that it would also have a huge caseload, that that really wouldn't be acted?
Page 48 PREV PAGE TOP OF DOC Mr. SMITH. Would the gentlewoman yield for just a second? If she wouldn't mind, would she address that question to both Professor Hellman and to Judge O'Scannlain? I was going to ask them the same question.
Ms. HART. Okay. Then I will address it to both Professor Hellman and Judge O'Scannlain. Thank you.
Mr. HELLMAN. Well, as it happens, I would actually like to start with Judge O'Scannlain's statement. If you look at page 25, his Exhibit 9, number of appeals filed per circuit, you look at that exhibit, bar graph there, you will see that the Fifth Circuit is closing in on 9,000 filings a year. The Eleventh Circuit is not far behind. You are going to have large circuits no matter what you do with the Ninth, no matter how the Ninth Circuit is configured. And trying to configure the new Ninth as a circuit that is the only second largest or that is smaller than the Fifth Circuit is not a worthwhile goal for a realignment plan.
Now, of course you may say, as many do say, don't realign at all. But I think we are addressing the question if you realign, how do you do it? But it just does not serve any useful purpose to try to create a circuit smaller in filings than the Fifth.
But even if you did think it somehow served a useful purpose, you would have to weigh that against something that is much more important, and that is having a minimum of three States in the new Ninth Circuit. The White Commission spoke very cogently and eloquently about this, and their reasoning I think carries even more weight today at a time when the confirmation process is so politicized. It is vital that you have three pairs of Senators influencing the appointment to a court of appeals. It is vital in maintaining diversity in appointments. It is vital in getting positions filled in the face of a stalemate such as the one that has precluded any appointments to the Sixth Circuit from Michigan for more than 4 years.
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So if the circuit is to be splitand, again, I think reasonable people can disagree about thatI would agree with the comment made I think in a letter from Judge Kleinfeld that this alignment in H.R. 2723 is the optimum alignment, and the fact that the new Ninth Circuit would still be a very large circuit is not I think a reason for not doing it.
Ms. HART. Thank you. Yield back.
Oh, I am sorry, Judge O'Scannlain. I am sorry.
Judge O'SCANNLAIN. Well, I could simply elaborate that one needs to keep some historical context. Restructuring is what larger circuits do. This is what happened to the Eighth Circuit when it carved outwhen the Tenth Circuit was carved out in the 1920's. This is what happened to the Fifth Circuit when the Eleventh Circuit was carved out in 1980. If it were a question of the optimum caseload allocation betweenin other words, to take what we have and to split it as close to half as possible, then we would be following the Hariska Commission recommendation in 1974 which suggested that the Ninth Circuit be splitin fact recommended that the Ninth Circuit be split in such a way that there would be a northern circuit based in San Francisco and a southern circuit based in Los Angeles. In other words, that would imply that a single State could be split.
If we had done that in 1974 when it was recommended, or even at 1980 when the Fifth did it, because theyit had been recommended that the Fifth Circuit splitthen you would have equal-sized circuits today.
Page 50 PREV PAGE TOP OF DOC The problem of course with that recommendation is that from a political standpoint, it is my understanding, particularly based on some conversations I have had with Senator Feinstein, that there is some resistance to the idea of splitting a State, having a State in two separate circuits. Conceptually it can be done, but if there are other considerations that would prevent it, of course then that has to be off the table.
So in the end, large circuits split. They do the best they can. If it turns out that one portion is going to be larger than the other, well, that is the way it is going to have to be for a while.
Mr. CONYERS. Mr. Chairman.
Mr. SMITH. Yes. Thank you, Ms. Hart. The gentleman from Michigan, the Ranking Member of the Judiciary Committee, is recognized for his questions or comments.
Mr. CONYERS. Thank you, sir.
A question, starting with the Honorable Judge Kozinski. In 1980 the Fifth Circuit was split because the judges thought it was too big. Now the Congress wants to split the Ninth because they think it is too big, and so I think it is who is calling for the split thatit is my suspicion the judges have some resistance to other people figuring out what is best for them, and I just wanted the conversation to revolve around that comment of mine for a while.
Page 51 PREV PAGE TOP OF DOC Judge KOZINSKI. Yes, you are absolutely right. The Fifth Circuit was split after many years of consideration by the bar and the judges in that circuit, and they reached a substantial agreement. I don't remember whether there was unanimity, but there was virtual unanimity among the judges of the court, with the support of the bars of the six States in the old Fifth Circuit, that a split was appropriate. It was done. Congress acquiesced to the decision made essentially by the judges and the lawyers representing the litigants or States.
That is not our situation. I will leave it up to our Chief Judge to speak to the questionon the question of the Ninth Circuit official position. But speaking for myself personally, it is my understanding there is a firm commitment on the part of the judges in the Ninth Circuit that the circuit remain in one piece, not unanimous. We do have Judge O'Scannlain here and some of his colleagues, many of them senior judges, but it is a substantial majority.
But I also speak for the bar, because I meet with lawyers, and that is a question that comes up a lot. I was with a group of lawyers meeting this weekend, and a number of lawyers from our circuit, and the question must have come up two dozen times. I did not find a single lawyer who thought it would be a good idea.
Mr. CONYERS. Chief Judge Schroeder, what do you think?
Judge SCHROEDER. Well, I would agree with what Judge Kozinski has said. It was a substantial majority of the Fifth Circuitof the judges that wanted to divide. We have never had a division. We have only had two in history. That was the last one. It was almost 25 years ago, and it was with the substantial majority of those judges.
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Our court has remained consistently throughout with a substantial majority who do not favor division of the circuit, and I think that theit is wise for Congress to listen to the judges, because Congress has done so in the past.
Mr. CONYERS. Thank you all.
Oh, yes, sir.
Judge O'SCANNLAIN. May I make an observation?
Mr. CONYERS. Absolutely.
Judge O'SCANNLAIN. Mr. Conyers, I am reluctant to raise this, but when it became known that there was going to be a hearing and that I was going to be one of the panelists invited, I specifically suggested to the Chief that we have a straw vote, because her perception and the perception of Judge Kozinski seems to be that the opposition is overwhelming.
My perception is different. My perception is that there is a significant and growing support for the idea that we have to start thinking about restructuring and start planning for that and do something about it.
I suggested that we have this straw vote, and the Chief suggestedwell, didn't suggest, just simply said, no, there won't be any until we have a chance to talk about it, which presumably will be at our next court meeting which is presently scheduled for December. So perhaps one product of this hearing might be to extract a commitment from my Chief that at the next court meeting we will actually hear itraise this subject, discuss it, and see where we are on it.
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My hunch is it will still be little less than 4951 percent. But nevertheless, if I am correct in my perception about what my colleagues are telling me, then it seems to me that there is a progression of interest in and commitment to the idea of doing something about restructuring.
Judge KOZINSKI. I am sure he is able to talk to other judges. He was here with nine names last year. He is still with nine names today. You can be sure that there are other judges who were willing to join the cause. Judge O'Scannlain, as a good enough advocate to have found them.
Mr. CONYERS. Madam Chief, did you want to add anything?
Judge SCHROEDER. Any judge who wished to be added to the list had full opportunity to do so, and no one did.
Mr. CONYERS. Professor Hellman, you are the only one who hasn't helped us on this question.
Mr. HELLMAN. Well, as I have said in my statement, I do think the judges should be discussing this. I think they should be looking at some of these data, some of which have not been presented before, including this very interesting chart from the Sunstein study. I don't think simply a straw vote is what this Committee would like. I think this Committee would like to know what the judges think about these very specific issues that have been raised.
Page 54 PREV PAGE TOP OF DOC Now, Judge Kozinski described the I think very excellent process that the court went through for the recall case in a very short period of time, a period ofperiod initially with the exchange of memos and then in that case a hearing.
Well, there was a similar process 25 years ago now when the court decided how it would take advantage of the opportunity that Congress gave it to create the limited en banc, and that was a period of several weeks, maybe even more than weeks, where the judges exchanged memos, winnowed out bad ideas, and improved good ones. And then they came together for a meeting and talked about it and did come to a consensus.
Now, I don't think there is going to be a consensus on this issue, but I think that kind of structured process is the one that would help this Committee in knowing the answer to the question, which I agree is very important and indeed critical: What has the experience of the judges been and what does that experience tell us about how effective a large court is today and, what is even more important, how effective it would be with seven new judges. That is a 25 percent expansion, and I think that has to be factored into what the judges talk about.
Mr. SMITH. Thank you, Mr. Conyers.
The gentleman from Virginia, Mr. Goodlatte, is recognized.
Mr. GOODLATTE. Thank you, Mr. Chairman. I am not sure where I come down on all this, but it is very interesting hearing. Let me ask the three justices if they can tell me their opinion about how that vote would go if we just took the vote from those States which would comprise the proposed new Twelfth Circuit. Would they be in favor of it, or would they be opposed
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Judge SCHROEDER. I have no reason to think that anything has changed since last year.
Mr. GOODLATTE. And how was that last year?
Judge SCHROEDER. There were 9 judges who supported a split last year. Most of those nine were from the Northwest, as I recall.
Mr. GOODLATTE. So a majority of the justices in Oregon
Judge SCHROEDER. No, I did not say that. I said of the nine judges
Mr. GOODLATTE. There are only nine active justices in the
Judge SCHROEDER. No, the 9 judges of the 48 who supported a spilt, and that includes senior judges.
Mr. GOODLATTE. I see what you are saying. You are saying that 9 of the 48 that were opposed to splitting were from the part of the district
Judge SCHROEDER. I am not even sure that that is
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Judge O'SCANNLAIN. If my Chief is finished, I think I perhaps can answer the question. Judge Kleinfeld of Alaska is a very enthusiastic supporter of this legislation and has written a letter to the Chairman in support. Judge Tallman from Seattle is an enthusiastic support over this legislation and has written a letter in support. Judge Tom Nelson and judge Steve Trott, both of whom are in Idaho, are also supporters of this legislation.
Mr. GOODLATTE. Now, are they all active judges or any of them senior?
Judge O'SCANNLAIN. All four are active.
Mr. GOODLATTE. And you are active.
Judge O'SCANNLAIN. Yes.
Mr. GOODLATTE. So at least a majority of the active judges in this new area support the creation of this
Judge O'SCANNLAIN. That is probably right, but I have to add one caveat. And that is, both Judge Graber, who is a colleague of mine in Portland in the same courthouse, and Judge Gould in Seattle have indicated that they refuse to express their views, because they do not think it is appropriate as judges to express a view on this issue.
Now, with respect to that, obviously the three of us disagree with that proposition. We feel comfortable communicating to Congress
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Mr. GOODLATTE. I understand. I only have a limited amount of time, Justice
Judge O'SCANNLAIN. I am sorry, but I just want to say you have to exclude those two in terms of those in the Ninth
Mr. GOODLATTE. But five of the nine active judges have expressed a favorable opinion of the idea, and two are unknown. And we don't know what the other two are
Judge O'SCANNLAIN. No. Judge Thomas would probably be an opponent, because he testified here last year. He is from Montana.
Mr. GOODLATTE. A majority of the justices from the area where this would have its greatest impact favor the concept.
Now, Justice Schroederdid you want to respond to that?
Judge KOZINSKI. No. I have nothing further.
Mr. GOODLATTE. Judge Schroeder, you made a point, which I think is a valid point, of how far-flung this circuit is. You said everything from the Arctic Circle to Guam. I note that 95 percent-plus of that is water and not too many appeals come from that, butand I also note from the chart that only 34 are from Guam and 16 from the Northern Marianas, which is less than one-half of 1 percent of the appeals. So I wouldn't think the burden of going to those two places for those hearings would be extraordinarily onerous.
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Judge SCHROEDER. No. It is not the Guam and Northern Marianas that are the problem. The
Mr. GOODLATTE. Alaska is 1 percent and Hawaii is 2 percent of the total caseload of the current circuit.
Judge SCHROEDER. The Hawaii cases would have to be heard eitherit is true that there is water, but it takes hours to traverse it. The Hawaii cases would be presumably heard primarily in Seattle, which means that those lawyers would have to travel to Seattle, whichand many of them are government lawyers. This is all very expensive. The traditional route is to San Francisco.
Mr. GOODLATTE. Well, it wouldn't have an embargo on those justices traveling through the Ninth Circuit to reach their destination, would you?
Judge SCHROEDER. No. It probably doesn't make a lot of sense, but it could.
Mr. GOODLATTE. In fact, if justices from those areas go to provide the personnel to hear cases in Hawaii or Guam or in the Northern Marianas now, they do that now, travel through San Francisco.
Judge SCHROEDER. Well, at the present time our judges go to Hawaii approximately once every 5 years and to Alaska once every 8 years. Presumably the judges in the new circuit would have to go to those places every year.
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Mr. GOODLATTE. I would think so, and I don't think that is a bad idea.
But let me ask this as well. I wonder what motivates most of the justices in California and in the remainder of the circuit that have expressed their opposition to this. The Ninth Circuit is by far the largest circuit and, by virtue of that, has I think a higher profile and a higher influence. It also has a reputation, fairly or not, for having more opinions that are outside of a central moderate viewpoint. I say that from somebody from the Fourth Circuit which has the reputation for being the most conservative circuit of the current 12 circuits. So I wonder if the motivation here is that there might be some diminution of the influence of the decisions made by virtue of some reduction in the size, although it will still be the largest circuit.
Judge SCHROEDER. Well, I can assure you that this is simply not a political issue for us. Our Chief Judges, from Judge Chambers who was from Tucson, Arizona, through Judge Browning, who was from Belt, Montana, to Judge Goodwin from Oregon
Mr. GOODLATTE. But I know a strong correlation here between the opposition to this proposal being from the States that would remainparticularly California that would remain the core of the Ninth Circuit and at least some majority, we don't know exactly how much, but some majority from those States that would comprise the new Twelfth Circuit supporting the idea, and I am wondering why that correlation exists.
Judge KOZINSKI. Perhaps the allure of becoming Chief Judge.
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Judge O'SCANNLAIN. Who is sitting on my right.
Judge KOZINSKI. I am next in line, but I am not anxious to take the job, and I am not committed to doing so. But there are judges who think that the chance to be Chief Judge of a circuit, even though a smaller circuit than the Ninth, is a good enough reason to split, I would suspect. Just since we are being cynical together here.
Judge O'SCANNLAIN. Well, while we are at it, let the record show that this judge is ineligible to become Chief Judge of the new circuit, because I have already reached age 65, which means that I would not be eligible to serve as Chief Judge.
Mr. BERMAN. Does it pay more?
Judge O'SCANNLAIN. No, it doesn't, but I thought the record ought to be fairly
Mr. SMITH. The gentleman's time has expired.
Thank you, Mr. Goodlatte.
Let me recognize myself for just a couple more questions, and maybe following the line of questions by Mr. Goodlatte, I might also ask the question to Mr.to Judge O'Scannlain. Why, just in general, the resistance to change? Do you think judges are concerned about the appearance of a loss of influence? Do you think that it is just, as we all are sometimes opposed to a change in the status quo? In addition to reasons you might have given Mr. Goodlatte, I would just ask you to speculate as to what you think is the motivation here.
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Judge O'SCANNLAIN. Well, as I said in my testimony and repeated in my oral remarks, I am at a loss to explain it, but it seems to go with the office of Chief Judge past, Chief Judge present, and Chief Judge future and
Mr. SMITH. Maybe there is a certain vested interest here that no one wants to see diminished in any way. I don't know.
Judge O'SCANNLAIN. Could be.
Mr. SMITH. Thank you, Judge.
Professor Hellman, I felt like in your testimony a few minutes ago you didn't get to the best part of your testimony, and I wanted to ask you to elaborate upon it right now. You said in your written testimony, I can see four benefits that the new Ninth Circuit could expect to gain after the reorganization contemplated by the bill. I don't think you got to those four benefits in your testimony, and would you get to them now?
Mr. HELLMAN. Thank you, Mr. Chairman. I think I can lead into that by also addressing a little bit the prior question, which is why the opposition from California. It seems to me that we have to take into account the fact that every other circuit division bill until this one has shortchanged California in one way or another. Either it hasn't given California enough judges or it has been an alignment that would have been disadvantageous to the effective operation of the court in California. So you have a very long history. I mean, this controversy has been around for a very long time, and every prior bill has left California with the short end of the stick.
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That leaves a history which I think is very, very hard to overcome, and that is one of the reasons why I think it is so important that the judges talk about this bill, which is so different from the prior ones.
Now, I do list in my testimony some of the benefits that I think the new Ninth Circuit can get. I don't want to oversell them. I don't think that they alone would be a reason for splitting the circuit if you didn't have some other good reasons, but it seems to me that having less travel for the judges is a benefit. I don't think it is just a cozier situation for the court. It seems to me that in any organization that we expect to do what we expect from our judges and the judges of an appellate court, having a working environment that is conducive to working effectively is important, and a lot of travel, it seems to me, is something of a burden. Now, the judges are used to it. Maybe it doesn't have the effect on them that it has on many other people, but it seems to me less travel is something that is worthwhile.
I think there would be some benefit to having a more participatory circuit judicial conference. The Ninth Circuit Judicial Conference is a wonderful institution. It is an organ of governance, which is not in most of the other circuits, and it works very well. But a very limited number of lawyers can participate in that, and one of the benefits of having a three-State circuit is that a lot more lawyers could participate, they would learn something about how the courts work, and the courts would get the benefit from that.
And of course this bill, this particular bill would give the judges of the new Ninth Circuit a substantialI shouldn't say substantialby itself it gives some reduction in their per-judge caseload. If the judges of the Twelfth Circuit provide some of the help that Judge O'Scannlain has indicated is forthcoming, they would get a lot of help.
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Now, a lot of the difference in terms of the individual work loads comes about because of this flood of immigration appeals. If we had done these calculations based on 2001, which is before they came in, it would have worked out just about right. Now, we can't ignore these immigration appeals, but I am not sure that they are going to be coming in at the same rate forever. So those are some of the benefits. They are not huge, but they have to be weighed against the other side: How much would be lost if this bill were enacted?
Mr. SMITH. Thank you, Professor Hellman.
Mr. Berman, do you have other questions?
The gentleman from California, Mr. Berman, is recognized.
Mr. BERMAN. I have a letter here from a law firm opposing the bill that says, somewhat harshly, although the bill is disingenuously labeled the Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003, it is in fact the ''pack and split bill'' of 2003. It combines the unmeritorious features of a circuit split, with a court-packing plan reminiscent of President Roosevelt's infamous court-packing plan of 1937. It invokes the image of wrongful tying arrangements. On its face it bears the marks of undue political influence with the judiciary. And I will just sort ofit is an interestingI don't know if it is accurate, but it is an interesting insight about the combination of these two things in the new bill.
The thing that I don't understand is the notion of why splitting the circuits will fundamentally deal with the issue of time of disposition. The Chairman in his opening remarks made that the major argument to demonstrate that the Ninth Circuit isn't as efficient, isn't operating as well as it should be over a long period of time, the time of disposition being the worst. It has been pointed out that in the last year it was no longer the worst. It has been pointed out that there were
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Mr. SMITH. If the gentleman will yield, that really wasn't a correct statement. I listed a number of criteria that was
Mr. BERMAN. That was the first one.
Mr. SMITH. Just because it was the first doesn't mean it was the only.
Mr. BERMAN. I didn't say the only. I never said the only.
Mr. SMITH. If the gentleman recalled, his main point had to do with reversal rates which weren't mentioned, so keep that in context.
Mr. BERMAN. My onlybut I don't evenif it is true, it may be a reason. If there is something inherent that a split will make cases still be determined wisely and a good decision, but in a faster period of time, that to me isin other words, I am accepting the premise that if that is true and if a split helps that, it is an argument, but what I don't understand is why it helps it. It isn't thatwhy isn't it a function of the number of judges, whether it is in one circuit or in two circuits? In fact, I could argue in a very small circuit the chances of one or two illnesses couldover a long period of time could much more dramatically impede the processing of cases in that small circuit than it might have in a much larger circuit.
And then I guess I ask you, Judge O'Scannlain, sincegiven your position on the issue, why will this be helped by a split because of the very seven judges that Mr. Trainer suggests is a court-packing bill. That is what makes me think that the Cooley Godward letter is just over the top. It is an extraordinary comment from a highly distinguished law firm, particularly dealing with this issue, but the key to moving the cases along and to reducing the backlog and accelerating our record of performance is more judges.
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Mr. BERMAN. All right. So then give the seven judgeswhat does a split have to do with it?
Judge O'SCANNLAIN. Well, it is really the timing of all of this. If we get 7 more judges and go to 57 judges compared to the next largest circuit, which is in the twenties or so, where are we going? I mean, can we grow infinitely? Can we grow to 80, 100 judges? It may not be all that long before we get to numbers like that; and my key interest in this is emphasizing the notion of size and the fact that we cannot grow infinitely. That is the point
Mr. BERMAN. That I understandI understand that argument, and I guess you could debate whether this is the size which it shouldn't be
Judge O'SCANNLAIN. Reasonable people can differ on that.
Mr. BERMAN. But on the issue of time of disposition, I hear you saying more judges is the solution to that problem. And it is not the Ninth Circuit is filled with lazy judges, it is not that there is something magic about a split that will shorten time of disposition. We need more judges is what you are really saying.
Judge O'SCANNLAIN. Oh, there is no question about that. I think all of us would agree with that.
Mr. BERMAN. Either of you, both of you.
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Judge SCHROEDER. I just want to point out we haven't had any new judges since 1984.
I also wanted to point out that both the Fifth Circuit has grown since the division, more than doubled in the number of cases. The Eleventh Circuit has grown by 400 percent in the number of cases. No one is suggesting that those circuits should divide again, and no one should. Growth in caseload is something that goes with the growth and advancement of our society.
Mr. BERMAN. I want to make one comment, since the red light is blinking.
My colleague, Mr. Goodlatte's comments, his interest in whether the judges of the newof what would be the new Twelfth Circuit, how they felt about it. I mean, that is sort of what we fought a Civil War over. I mean, I know that if there are a number of Congressif Members of Congress from northern California could decide whether or not there should be a 51st State, our California is split. I mean, in other words, I am just wondering, this whole issue of what body do you look at to decide, it raises problems. Did you have anything on this?
Mr. SMITH. Would the gentleman like to be recognized for another 30?
Judge KOZINSKI. If I may just have 30 seconds? I think the Chairman's last question is really a profound one, if I may just speak to it, the one that he addressed to Professor Hellman. He asked why the resistance of the judges, or most of the judges, in the Ninth Circuit to split, and if I may focus on the word a little bit, if I may, on the word resistance. I have been there 18 years, and I have never been a strong advocate one way or the other on this issue. I have been more or less on the fence. I think there are good reasons, as Professor Hellman has pointed out and as Judge O'Scannlain pointed out, why a split at some point might be appropriate. This is the first time I have spoken in public on the issue, and so I have been largely on the fence about it.
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To me, the case of splitting has not been proven. I look at cases. I look at other circuits. I look at circuits like the Sixth Circuit which are much smaller, and they have an atmosphere that has become public and quite poisoned. I hope something like that does not happen to our circuit which has truly, even though we disagree with each other at times, we disagree respectfully and graciously, and we get along marvelously well. I am simply afraid that splitting will cost us that collegiality and that friendliness, which is borne out by the figures. I hope this Committee will take that seriously into account.
Mr. SMITH. Thank you, Judge Kozinski; and thank you, Mr. Berman. I will recognize myself for questions.
Judge O'Scannlain, you wanted to respond to that. You probably had the same impression I did, that the collegiality would be increased if it were smaller.
Judge O'SCANNLAIN. Well, it would have to be. I can't imagineI simply don't understand the argument that we have just heard, because it doesn't seem to follow from itself.
With respect to other matter of the judges of the new Twelfth, I had a chance to look at Exhibit 5 and, so far as the 8 judges in the Northwest are concerned, one is an opponent, two have no position, and the remaining five support it. So those are the actual numbers.
In terms of the voting numbers I suppose it would be 5 to 1. But, in any event, it is just spelling out in detail the response to Mr. Goodlatte's question.
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Mr. SMITH. Thank you, Judge O'Scannlain; and I ought to point out that both you and Professor Hellman have in the past opposed legislation to split the Ninth Circuit and you now favor it, and perhaps other judges will come around, too, and that might be an argument.
Judge O'SCANNLAIN. Well, that is right. When I first came on the court in 1986, I was approached by my senior Senator and very good friend Mark Hatfield, who was a very strong proponent of splitting the circuit at that time. But it was very clear, because of speeches that were made, that the motivation was having to do with environmental issues and, in particular, the spotted owl case. It was a very, very hot issue in our part of the country.
I continued to oppose the circuit until I started thinking about when I went to an LLM program at the University of Virginia, an LLM program for appellate judges. During that time I did a lot of research on court structure and organization, and somewhere in the early 1990's I began to take a different point of view and, obviously, totally unrelated to anything to do with cases.
Mr. HELLMAN. Could I just clarify? I have not taken the position that the circuit should be split.
Mr. SMITH. I thought those four reasons you gave sort of put you in that camp.
Mr. HELLMAN. I listed there some of the benefits that the new Ninth Circuit could expect to get, and I went on to say that those benefits should be weighed against the drawbacks of splitting. I think the judges should think about these issues and then come back to your Subcommittee in the first instance and give their position. I would not support the split at this time, based on the opposition of the judges.
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Mr. SMITH. And if the judges change their mind, then you would change your mind as well, is that right?
Mr. HELLMAN. I think the CongressI agree with what Judge Schroeder said in her initial comment, that the history of this kind of controversy has been that Congress has waited until there has been a pretty strong consensus from the affected circuit. That has worked well, and I see no reason why Congress should abandon that approach.
Mr. SMITH. Okay. Fair enough. Thank you all for your comments.
I want to say that Mr. Berman pointed out that one of the concerns that I have is the length of time for the disposition of cases. That continues to trouble me; and I do feel that that would go a long way to justifying a split of the circuit if, in fact, we could show that the time of disposition was reduced. You know the cliche as well as I do: Justice delayed is justice denied. So that is why I have a particular concern about that part of the argument, in any case.
But we appreciate your testimony. It has been very, very helpful, and we thank you for appearing before us today.
Judge O'SCANNLAIN. Thank you very much, Mr. Chairman.
Mr. HELLMAN. Thank you, Mr. Chairman.
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A P P E N D I X
Material Submitted for the Hearing Record
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