[Senate Hearing 109-190]
[From the U.S. Government Publishing Office]
S. Hrg. 109-190
REVISITING PROPOSALS TO SPLIT THE NINTH CIRCUIT: AN INEVITABLE SOLUTION
TO A GROWING PROBLEM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
OCTOBER 26, 2005
__________
Serial No. J-109-47
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on Administrative Oversight and the Courts
JEFF SESSIONS, Alabama, Chairman
ARLEN SPECTER, Pennsylvania CHARLES E. SCHUMER, New York
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California
JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin
William Smith, Majority Chief Counsel
Preet Bharara, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 4
prepared statement........................................... 53
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 7
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 85
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
prepared statement........................................... 134
WITNESSES
Ensign, Hon. John, a U.S. Senator from the State of Nevada....... 11
Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court,
Southern District of California, San Diego, California......... 42
Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit, Fairbanks, Alaska........................... 36
Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Pasadena, California............................ 20
Murkoski, Hon. Lisa, a U.S. Senator from the State of Alaska..... 9
O'Scannlain, Diarmuid F., Circuit Judge, U.S. Court of Appeals
for the Ninth Circuit, Portland, Oregon........................ 13
Roll, John M., District Judge, U.S. District Court, District of
Arizona, Tucson, Arizona....................................... 38
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the
Ninth Circuit, Phoenix, Arizona................................ 17
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Seattle, Washington............................. 15
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Billings, Montana............................... 40
SUBMISSIONS FOR THE RECORD
Huff, Marilyn L., Chief Judge Emeritus, U.S. District Court,
Southern District of California, San Diego, California,
prepared statement............................................. 55
Kleinfeld, Andrew J., Circuit Judge, U.S. Court of Appeals for
the Ninth Circuit, Fairbanks, Alaska, prepared statement....... 57
Kozinski, Alex, Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Pasadena, California, prepared statement........ 78
Murkoski, Hon. Lisa, a U.S. Senator from the State of Alaska,
prepared statement............................................. 87
O'Scannlain, Diarmuid F., Circuit Judge, U.S. Court of Appeals
for the Ninth Circuit, Portland, Oregon, prepared statement.... 89
Roll, John M., District Judge, U.S. District Court, District of
Arizona, Tucson, Arizona, prepared statement................... 104
Schroeder, Mary M., Chief Judge, U.S. Court of Appeals for the
Ninth Circuit, Phoenix, Arizona, prepared statement............ 129
Tallman, Richard C., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Seattle, Washington, prepared statement......... 149
Thomas, Sidney R., Circuit Judge, U.S. Court of Appeals for the
Ninth Circuit, Billings, Montana, prepared statement........... 168
United States Court of Appeals for the Ninth Circuit Judges' Vote
on Circuit Division, table..................................... 193
REVISITING PROPOSALS TO SPLIT THE NINTH CIRCUIT: AN INEVITABLE SOLUTION
TO A GROWING PROBLEM
----------
WEDNESDAY, OCTOBER 26, 2005
U.S. Senate,
Subcommittee on Administrative Oversight and the Courts, of
the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:32 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff Sessions
(Chairman of the Subcommittee) presiding.
Present: Senators Sessions, Kyl, and Feinstein.
Also present: Senators Murkowski and Ensign.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM
THE STATE OF ALABAMA
Chairman Sessions. Good afternoon. The Subcommittee on
Administrative Oversight and the Courts will come to order. I
am pleased to convene this hearing to consider a division of
the Ninth Circuit.
You might say, here we go again. It has been a year and a
half since we last discussed this topic in the Subcommittee and
I am looking forward to hearing the witnesses and their
testimonies, all of whom have traveled a long way and have
dedicated, many of you, quite a lot of hours in personal time
and attention to develop your well-researched opinions on the
topic before us today.
I appreciate Senator Feinstein for her interest in this. We
work together on the Judiciary Committee. No one works harder
or is more committed to doing the right thing and we are
delighted that you could be with us, you and some of our other
members who will probably appear before long that are
interested in the Ninth Circuit, Senators who represent States
in the Ninth Circuit.
So we are eager to hear the opinions of the distinguished
jurists before us. It is going to be very helpful to us.
It is, however, the constitutional duty of the
Congressional branch, the legislative branch, to create such
inferior courts, quote, ``as the Congress may from time to time
ordain and establish,'' Article III, Section 1 of the
Constitution. So it is with this constitutional duty in mind we
have convened today's hearing. Our question is whether the
enormous size of the Ninth Circuit is an impediment to the
administration of justice and whether a division of the circuit
would enhance justice.
The division of circuits has been a normal and natural
evolution of judicial organization in our country and it has
succeeded, I believe, each time it has been tried. Most
recently, Congress recognized this need when it decided to
split the Fifth Circuit into two separate courts of appeals. In
1973, the Commission on Revision of the Federal Court Appellate
System, the Hruska Commission, recommended that the Fifth and
Ninth Circuits be split.
In 1980, the Congress split only the Fifth, carving out a
new 11th Circuit, and I think I told you last time, as a new
U.S. Attorney, I was in Atlanta at the formation ceremony of
that 11th Circuit. Judge John Godbold, who had been the Chief
Judge of the old Fifth, supported the division and became the
new Chief at the 11th. I think that all those judges have felt
very good about that division in the years since. The
recommendation, however, to divide the Ninth Circuit was not
acted upon.
In the year prior to this division, for example, the old
Fifth Circuit's 26 judges disposed of 4,717 appeals. In 1995,
the combined 29 judges from the old Fifth and the 11th disposed
of nearly triple that number of appeals, 12,401. In a Montana
Law Review article by Ninth Circuit Senator Conrad Burns, he
noted, quote, ``tripling the output of the Fifth Circuit while
only adding three new judgeships certainly indicates that
splitting the Fifth Circuit yielded a long-term benefit for
all.''
I will add that the testimony before this Subcommittee
several years ago by Chief Judge Gerald Tjoflat of the 11th
Circuit was unequivocal. He said that their current level of
harmony and collegiality and efficiency would not be possible
in a much larger circuit. As a matter of fact, he was dubious
of even taking new judges. He would rather the workload go up
to keep the numbers smaller.
So today, we must face the problem of the unprecedented
size of the Ninth Circuit and consider the options to improve
administration of justice.
The Ninth Circuit covers 40 percent of our country's land
mass and stretches from Northern Alaska, and Judge, we are glad
to have you down from Fairbanks, to the Mexican border. It
encompasses more States than any of the other 11 circuits and
manages almost one-fourth of the caseload of the whole United
States, 14,800 to 63,000 total filings of the other circuits.
The Ninth Circuit claims one-fifth of the nation's
population, 58 million, within its jurisdiction. That is almost
three times the average population of any other circuit, or the
other circuits. Though the Fifth Circuit was split 25 years
ago, largely due to its size, the Ninth Circuit currently has
almost the same population as the current Fifth and 11th
Circuits, both of which have also grown. Today, the Ninth
Circuit has 58 million people while the 11th and Fifth Circuits
together have 60.
At our April 2004 hearing, we learned a lot about the
numbers impacting the Ninth Circuit. Today, those numbers are
still dramatic. The Ninth Circuit has 28 authorized judgeships,
24 active and four vacancies, and 23 senior judges, for a total
of 51 judges. That amounts to 11 more active judgeships than
the next-largest circuit, and it is more than double the
average number of authorized judgeships in the other circuits.
If you add senior judges to the authorized judgeship numbers,
the Ninth Circuit has 24 more judges than the total number of
the next-largest circuit.
As of June 30, 2005, the Ninth Circuit had more than triple
the number of appeals filed in 2005 than the average of all the
other circuits and has 6,000 more filings in 2005 than the next
busiest circuit. Though the average caseload increase between
2000 and 2005 for a circuit court was just over 14 percent, the
Ninth Circuit's caseload increase was by almost 70 percent,
which is a really stunning figure to me. During that same
time--I will skip that. And the rate of increase has continued
steadily. From 1997 to 2003, the Ninth Circuit caseload bore a
48.1 percent increase. Now, it is a 70 percent increase. It is
still going up.
The large number of judges and the caseload burdens do
appear to have impaired the administration of justice in the
circuit. The Ninth's efficiency in deciding appeals, that is
the time the court takes between the filing of a notice of
appeal and the final disposition, has consistently lagged
behind other circuits. In 2003, for example, the Ninth Circuit
had 418 cases pending for 3 months or more, almost the same as
the next five circuits combined. The next highest circuit had
98 such cases.
The next charts shows that 138 cases were pending in the
Ninth Circuit for over a year. This was more than every other
circuit in the Federal system combined, with the next highest
circuit at a mere 19 cases.
According to the latest statistics, the Ninth Circuit takes
almost 40 percent longer to dispose of an appeal than the
average of all of the other circuits. The Ninth takes 15.4
months and the average is 11.1 months. Please note that this
delay cannot be explained solely by a lack of judgeships,
because although the caseload for the Ninth is high--it is
high--several other circuits have higher caseloads per judge
than the Ninth.
I would also note, time of disposition is important to
litigants. Huge impacts are at stake as a court's cases sit on
that docket. I would like to see the average of 11.1 months be
reduced, frankly, and I think the addition to 15 is a
significant concern.
The limited en banc procedures employed by the Ninth
Circuit, coupled with the large number of public opinions
issued each year, make it impossible for the Ninth to speak
with clarity and consistency, it seems to me. A circuit with as
many judges and as many opinions as the Ninth Circuit has loses
collegiality and unity. Additionally, the Ninth Circuit's
limited en banc procedures have permitted a random draw of ten
judges plus the Chief Judge to be the final review of a three-
judge panel decision. This can result and has resulted in a
mere six judges making the law for the entire circuit. Even
though the circuit has recently voted to increase the number of
judges that sit en banc to 15, that number still allows a mere
eight judges to make the law for the entire circuit. In all
other circuits, en banc means en banc, what it always has
meant, the full court.
Finally, with so many cases decided each year, it is hard
for any one judge to read all the opinions of his or her peers
and it is virtually impossible for lawyers who practice in the
circuit to stay abreast of the law. In 2004 alone, the Ninth
Circuit published 691 decisions. That is over 60 a month.
These factors, loss of collegiality, the limited en banc,
and the inability to monitor new law, undermine the goal of
certainty in the law. I hope that each of the Ninth Circuit
judges testifying before us today will speak to these factors
and tell us how they impact the Ninth Circuit's ability to
maintain clear and consistent law in the circuit.
[The prepared statement of Chairman Sessions appears as a
submission for the record.]
Chairman Sessions. Now, three of my Ninth Circuit
colleagues are here today, or at least two--I guess three
counting Senator Feinstein, and I think maybe another one will
show up, to help us explore the issues surrounding the decision
to split the Ninth Circuit.
Senator Lisa Murkowski of Alaska has been a leader in
addressing reorganization of the Ninth Circuit and has
introduced legislation to restructure the circuit both in this
Congress and in the last. Her comments based on her experience
as a Senator from the Northwest and as a lawyer who practiced
within the Ninth Circuit will give us a useful context for
understanding the issues.
I also see my colleague on the Judiciary Committee, Senator
Kyl here, who has not only argued cases before the Ninth
Circuit, on numerous occasions, he has argued a bunch of cases
before the U.S. Supreme Court. He is clearly our most
experienced attorney probably in the Senate, and Jon, we are
glad to have you here. I know this is a matter close to your
heart and we look forward to hearing you.
Senator Feinstein, thank you for your leadership on these
issues. I know you have watched it very closely over the years
and we are delighted to hear from you at this time, and then we
will go to Senator Kyl and Senator Murkowski.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Fine. Thank you very much, Mr. Chairman.
I would like to welcome each of the judges that is here. It is
a long trip from the West Coast, and so we really appreciate
it. I would like to acknowledge the fact that today is the
Chief Judge's 40th wedding anniversary and guess where she is,
right here, and so--
[Laughter.]
Chairman Sessions. We are impressed.
Senator Feinstein. Thank you very, very much for being
here.
As the Chairman has said, the Ninth Circuit is the largest
circuit court of appeals in the Nation in both population and
caseload. Advocates for splitting the Ninth Circuit often cite
the size as a basis for dividing it. However, I think what
matters is not the size of the Ninth, but whether the Ninth
meets its charge of providing justice to those living in the
States. The current Ninth Circuit, I believe, achieves this
goal.
As I have looked at the various proposals over the years
that have come before this Committee, splitting the Ninth is a
lose-lose proposition. There are clear financial costs to the
split. The Administrative Office of the Courts has submitted
documentation. I will speak about that in a few minutes. And
there are clear and dramatic costs to the administration of
justice.
The uniformity of law in the West is a key advantage of the
Ninth, as large as it is. It provides consistency among Western
States that share many common concerns. For example, splitting
the circuit could result in one interpretation of a law
governing trade with Mexico in California and a different one
in Arizona, or in the application of environmental regulations
one way on the California side of Lake Tahoe and another way on
the Nevada side.
The efficiency of the Ninth is also a significant
consideration. As presently constituted, the Ninth is one of
the most efficient courts of appeals in the nation. Splitting
the Ninth Circuit into two or even three courts of appeals
would require the creation of new and costly bureaucracies to
administer these new courts, thereby losing the economy of
scale which has been achieved by having a single administration
tending to the Federal courts of the Ninth Circuit. Dividing up
the Ninth Circuit would also require additional Federal funds
for new or expanded courthouses and administrative buildings,
as existing judicial facilities would be insufficient for the
new circuit or circuits.
Yesterday, the Administrative Office of the United States
Courts provided me with a letter estimating the costs for
splitting the Ninth Circuit under S. 1845, which would split
the Ninth Circuit into the Ninth and 12th Circuits. The
Administrative Office estimates that the split to two circuits
would have a startup cost of $95,855,172 and would have $15,
almost $16 in annual new recurring costs.
In a two-way split with a circuit headquarters in Phoenix,
with the new judgeships, the cost is $15.9 million, the startup
cost $95,800,000. The two-way split with the 12th Circuit
headquarters in Seattle, with new judgeships, the cost is
$13,140,049 and the startup costs $13,815,801. The cost of the
seven additional judgeships in annual recurring costs is $5.656
million, with startup costs of $1.156 million. This is a rather
lengthy letter and I would like to place it in the record so
that everybody could have a chance of reviewing it.
But let me summarize by saying these are substantial costs,
particularly considering that the judiciary budget is already
stretched thin.
Finally, one must consider what organization of the Ninth
Circuit--must consider that it will be fair to all of the
States of the current Ninth. The plan to split the Ninth leaves
the States remaining in the Ninth with a far higher caseload
per judge than those States that would move to a new 12th or
13th Circuit. They become easy. You can put your feet up on the
desk, because they would have very few cases. That is the
bottom line.
Under the current proposals, California and Hawaii would be
left in the Ninth, while Arizona, Nevada, Idaho, Montana,
Oregon, Washington, and Alaska would move to a new circuit or
circuits. These proposals would create nice sinecures with low
caseloads for judges in the newly created 12th or 13th Circuit
but would disadvantage what would remain in the largest circuit
in the nation.
The new Ninth would still have 72 percent of the cases in
the old Ninth. However, even with the addition of the five
permanent and two temporary judgeships proposed in the two
bills before the Senate, the new Ninth Circuit would have only
60 percent of the judges. So they would have 72 percent of the
caseload, but 60 percent of the judges. Is this fair? I don't
think so.
The caseload in the new Ninth would be 536 cases per judge
as opposed to 317 cases per judge for the proposed 12th. This
would leave judges in the Ninth with 219 more cases per judge.
This is simply not a fair distribution of judicial resources.
So we create all this new additional courthouses,
administration, circuits, and yet 72 percent of the cases
remain in the Ninth.
For the judges in the new Ninth to have a comparable
caseload to judges in the new 12th, the Ninth would need an
additional 14 judges on top of the five permanent and two
temporary judges created by the bills before the Committee. In
total, 21 new judges would need to be added to the Ninth
Circuit for a split to be fair. Now, you can be sure that
representing California, I am not going to let an unfair
distribution of caseload happen. I am just not going to do it.
This would entail its own problems and costs and it highlights
the difficulties created by proposals to split the Ninth.
Opposition to splitting the Ninth comes from judges and
State bar associations that would move into a proposed new
circuit as well as those that would remain in the Ninth
Circuit. Only three of the active judges on the Ninth Circuit,
as far as I know, favor splitting the circuit, and we are going
to hear from one today. He is very respected. I have had an
opportunity of having at least an hour with him to discuss
this, Judge O'Scannlain in San Francisco, and I very much
appreciate his point of view. I thought a lot about it. But
unless you want to guarantee those 21 new judges for the Ninth
and an equal caseload across the field, I would be foolish to
let a split happen to the circuit that I represent.
Additionally, the bar associations of Arizona, of
Washington, of Montana, and Hawaii have all voiced their
opposition to breaking up the Ninth Circuit. Washington State
says they strongly oppose both bills. We believe there is no
legitimate reason to split this jurisdiction, and certainly no
reason to incur the very substantial costs that such a split
will generate. We further believe that our democratic process
demands formal hearings on this matter, which, of course, we
are having.
It says that the Washington State Bar debated the issues of
size, regional differences among the States, judicial
collegiality, and necessary consistency in rulings. The Board
of Governors of our organization unanimously concluded that
splitting the Ninth would not serve the interests of justice or
the citizens of the State of Washington.
The State Bar of Montana has passed a resolution which says
in a ``whereas'' clause, a divided circuit would remove the
numerous benefits which Montana enjoys as a part of the United
States Court of Appeals for the Ninth, and whereas a divided
circuit would result in additional one-time construction and
division costs and increased annual administrative expenses, et
cetera, they oppose it.
The Hawaii State Bar says they believe the composition of
the Ninth serves the public well, representing as it does
diverse demographic areas as well as a broad range of political
and economic constituencies.
And the Arizona Bar says, at its regular meeting in Phoenix
on August 19 of this year, the State Bar Board of Governors
analyzed the proposals to reorganize the Ninth. Further, the
Board discussed how the bar is served by the current
configuration and considered the fiscal impact of splitting the
circuit. The Board voted to reaffirm its longstanding position
to oppose splitting the Ninth Circuit.
I would like to ask that these letters also be included in
the file.
Chairman Sessions. We will make them a part of the record.
Senator Feinstein. So unless somebody can guarantee me that
there will be 21 new judges and an equal caseload spread, this
thing doesn't even get to first base with me because I think we
hurt the administration of justice, we create new costs, and we
don't even the caseload, and I thank you very much.
Chairman Sessions. Thank you, Senator Feinstein. They are
not all equal now, that is for sure, but we probably should
look at that more.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Chairman Sessions. Senator Kyl, and Senator Ensign, did he
come in? Oh, there you are. Do you want to stay there or would
you like to join us? You can stay right there, if you would
like.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Mr. Chairman, I will just be very brief
because we really do want to hear from our witnesses and also
because after I have heard an argument such as that just
delivered by Senator Feinstein, my lawyer juices flow. I
immediately want to take the other side.
I would like, first of all, Senator Feinstein, to assure
you that as of right now, I guarantee you that there will be an
equal number of judges with a caseload that is essentially
identical. Are we on first base?
Senator Feinstein. Well, it is--
[Laughter.]
Senator Kyl. You don't need to answer that. I am not the
cross examiner and you are not the witness. Senator Feinstein,
I just--
Senator Feinstein. If you make the guarantee--
Senator Kyl. Yes, if I can make the guarantee. I just
conducted a--
Chairman Sessions. You two have made good partners on a lot
of matters and maybe you yet can make partnership on this one.
Senator Kyl. Let me just speak to that for a moment,
because we are--Senator Murkowski, Senator Ensign, and the two
of us, of course, all have a dog in this hunt, being that we
represent Ninth Circuit States. It is important to us. We do
listen to our lawyers and judges, although I would say polls of
lawyers and judges, while probative, aren't necessarily
dispositive given our responsibilities that extend beyond
representing our colleagues in the bar or on the bench.
But we have worked together on a lot of things and I have
made it clear that I understand that Arizonans are of two minds
on this. I have, at one time or another, had different views on
this subject. I find that a lot of the arguments just remind me
of when I practiced law. When a lawyer passionately believes in
the cause of a client, you can make great arguments on both
sides.
But I think there is a lot about the arguments that is not
so great. What I have told Senator Feinstein privately, I will
tell all of you, and that is that she has a big stake in this.
California is the big elephant in the room, if you want to put
it that way, and it cannot be--we can't override the interests
of a State like California, nor should one State dominate over
all others. There is going to be a lot of give and take here.
We are all going to work with each other and try to come to a
conclusion that represents the best interests of our
constituents.
So I don't view this as just a majority-minority thing in
terms of political parties, nor do I think one State should
dominate, nor do I think all the other States should join and
pick on California. And I do believe that if there is to be a
division, it needs to be done fairly, and since caseload is one
of the dominant factors here, there does need to be an
appropriate relationship between the judges and the caseload
and that would mean a fair division along the line that Senator
Feinstein suggested.
But here is what I will close with. I know that for many of
you, this has been going on a long time, and when I first came
to the Senate, we immediately began hearings on this subject.
So I have been involved in it for a long time. But don't take
the fact that there are a couple of bills out here as evidence
that this is all locked in stone. For example, arguments about
cost are not very persuasive to me because I don't think you
have got it right in terms of what the costs are. You do have
to take what is in front of you in terms of a bill's language,
and I understand that, and so you have to figure out, all
right, if that is where the head of the circuit is and lawyers
are going to be arguing in these two other cities or whatever,
what might that cost? But there isn't a single new courthouse
that has to be built.
So let us be realistic about costs. I know opponents love
to talk about costs. I would just recommend to you that you get
a little bit more realistic about that. Just like proponents
talk about the politics of it, I would suggest we get the
politics out of it right now. I don't know what the politics of
two new circuits are going to be, and in one sense, that ought
not to be the consideration here. So there are things that
advocates love to talk about that I think on the Committee here
we need to cull out of the discussion.
Let me just say that I see this as a process involving both
Houses of Congress, both parties. I really commend the Chairman
for having this Subcommittee hearing. He and his staff have
done a lot of work, and all of us, I think, are going to have
to discuss this. We are going to have to visit with all of you.
We are going to have to take your arguments on board and think
it through very carefully and try to come out with what we
think is the right answer and the fairest answer if there is to
be a division. If everyone will just take a deep breath and
look at this in a realistic and not an advocate way, I think we
just might be able to come to some conclusions that are agreed
to, for the most part, by most people.
And finally, I thank everybody for being here. I know it
was very difficult, especially in the case of Chief Judge
Schroeder, who not only has personal matters but other matters
to attend to and I think it involves a red-eye either last
night or tonight. So I know how important this is to all of you
and I really do appreciate the interest that you have had.
Please continue to talk to us. I appreciate your being here
today, and let us all just handle this in a problem solving
way. How is that? Thank you, Mr. Chairman.
Chairman Sessions. Well said.
Senator Murkowski?
STATEMENT OF HON. LISA MURKOWSKI, A U.S. SENATOR FROM THE STATE
OF ALASKA
Senator Murkowski. Thank you, Mr. Chairman, and thank you--
Chairman Sessions. I will also note Senator Murkowski is a
practicing lawyer in Alaska and has herself quite a bit of
experience in these matters.
Senator Murkowski. Thank you.
Senator Kyl. Might I, with your indulgence, correct the
record? I would not want the record to go uncorrected. I have
briefed a lot of cases to the Supreme Court. Only three have
seen oral argument. However, all three of my clients were the
prevailing party.
[Laughter.]
Chairman Sessions. Let me ask you, Senator, is there any
other Senator who has argued three cases in the U.S. Supreme
Court?
Senator Kyl. No, I don't think so, but--
Chairman Sessions. Well, then I wasn't incorrect.
[Laughter.]
Senator Murkowski. Humility and modesty gets you
everywhere.
I want to thank you, Mr. Chairman, for the invitation to be
with you in this Committee today. I also want to welcome all of
the judges that have taken the time to be with us and I want to
extend a special welcome to my judge representing us in Alaska,
Judge Andrew Kleinfeld. I appreciate you making the long trek
down.
As Senators from the West, this is an issue that has been
discussed a great deal. I think there has long been a focus on
the Ninth Circuit and its effectiveness and its efficiency as a
circuit court of appeals. Senator Ensign and I have come at
this issue, both of us with a little different approach and
joined together in introducing S. 1824, the Circuit Court of
Appeals Restructuring and Modernization Act of 2005. I don't
know whether this is a nudge to California, but I will note
that the acronym is CCARMA, so for whatever that is worth.
[Laughter.]
Senator Murkowski. You ought to appreciate that in
California.
But Senator Ensign and I looked at this issue, as I say,
perhaps from a little different perspective, but we recognize
that in order to advance this, in order to get to a place where
I think we can see real efficiencies and see real effectiveness
within the court in addressing the ever-increasing caseload,
that we must do something to move forward with a division of
the Ninth Circuit.
Mr. Chairman, you have noted all of the statistics, the
geographic size, nearly 40 percent of the geographic area of
the United States, the population serving 58 million people
more than double the size of the other circuits, and then the
emphasis and the focus on the caseload, and the fact that the
Ninth Circuit docket is ever increasing.
Last year, it had nearly a 60 percent higher caseload than
the next largest circuit. Immigration cases alone--and I find
this figure absolutely staggering--immigration cases alone have
increased by an astounding 463 percent. This causes delays in
the circuit, and as you have noted, the average time for final
disposition of a case is 5 months longer than the national
average.
Now, some on this panel may argue that the Ninth Circuit is
not inefficient. They will defend the court. They will say that
the State improvements have been made to the lengthy period in
which a case is dispensed, and I truly do applaud the efforts
of the court, the very hard work and all that has gone into
that. But we need to recognize, you can tread water for a
while, but I think in the instance of the Ninth Circuit, the
tidal wave is coming and it is a tidal wave that can't be
stopped. It is a tidal wave called population growth.
Mr. Chairman, I have got a couple charts here. The Ninth
Circuit--I have already said this--has a population more than
double of most of the circuits, but it doesn't stop there. The
Ninth Circuit also contains the fastest-growing States in the
nation. So if you look at the chart, California is the first
largest, Hawaii is the third, Arizona the fourth, Nevada the
fifth, Idaho the sixth, Alaska the eighth. The numbers speak
for themselves.
Right now, we have a caseload that is overwhelming, but
with the population and the demographics in the area, we can
only anticipate that it gets worse. We can't sit back and watch
these warning signs without acting. It would be irresponsible
for us not to act, and I believe it would misuse Congress's
constitutional authority to effectively manage the courts if we
do not act.
So what we have done with CCARMA is what I believe is
sensible reorganization of the Ninth Circuit, dividing it into
the Ninth and into the new 12th. The distances and populations
will be more proportionate. It creates circuits with more
manageable populations and more manageable travel distance,
which I think will reduce wasted time and money spent on
judicial travel.
The caseload will be more manageable, and this is a point
that goes directly to Senator Feinstein's concern, and very
real and very legitimate. We must do what we can to make the
caseloads more manageable. A smaller circuit will mean a lower
volume of caseload. The reality, as has been said, California,
as the largest State, and California, as the fastest growing
State, is going to have an exceedingly large caseload. But
anything that we can do to help reduce that is a step that we
should take. Reductions in caseload will improve the uniformity
and the consistency in case law.
So this legislation that Senator Ensign and I have moved
forward may not be the only way to divide the circuit, but I do
believe that it is a sensible division. I think it is a
solution that is long overdue. As you mentioned, we have had
precedents in dividing both the Fifth and the Eighth Circuits
and the reasons for doing that were just exactly what we are
faced with today in the Ninth, responding to a caseload and a
population growth.
We must recognize that the direction that we are taking in
the West with our growing population, recognizing the huge
caseload, the 58 million people that are being served right
now, we have got a responsibility. We cannot wait. We have all
heard the phrase, ``Justice delayed is justice denied,'' and I
think in the Ninth Circuit it is time we figure out how we make
that accommodation, make the split to provide for justice in
the Western States.
So I appreciate the Committee taking the time to review
this and look forward to working with you and all the other
members as we move this forward.
[The prepared statement of Senator Murkowski appears as a
submission for the record.]
Chairman Sessions. Thank you, Senator Murkowski. You have
put forth legislation. You have talked with other Senators and
been accommodating and tried to work with other Senators to
develop the best possible legislation. You have been open
minded about that and we thank you.
Senator Ensign, likewise, has felt strongly about this
issue and has worked diligently to consider every possible
suggestion. I guess you and Senator Murkowski are together now
on your suggestions, so Senator Ensign, we are delighted to
have you to talk about your circuit, the Ninth Circuit.
STATEMENT OF HON. JOHN ENSIGN, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Ensign. Thank you very much, Mr. Chairman and
Senator Feinstein. I appreciate the comments that you made. I
want to associate myself with the comments of the Senator from
Alaska. A lot of the points that she had made, I think are
right on target. But I also want to address to Senator
Feinstein that this is not about attacking the Ninth Circuit.
It is not about attacking the State of California.
The reality is, we have to ask ourselves why do we have the
circuits that we have today? Why don't we just have one or two
or just a few circuits around the country? The reason we add
circuits or we divide circuits is for more efficient
management. Companies do this. There are all kinds of reasons
for efficiencies, and what has been laid out today, whether it
is delays, whether it is number of caseloads, whatever it is,
whatever is happening today, I mean, we understand.
My State is the fastest growing rate-wise. California is
the fastest growing as far as total population. The number of
people, that is not going to change. The West is going to
continue to be the fastest growing area in the United States.
When we have the populations that we have today, and knowing
that this situation is going to continue to get worse, it seems
to me that without splitting the circuit, the burden that is
going to be put on the courts, and therefore the burden on our
citizens for delaying their justice is going to continue to get
worse in the future.
Senator Murkowski and I, we had different approaches. Her
approach last time was a reasonable approach. I thought my
approach last time was a reasonable approach. I obviously liked
my approach last time better than this time, but we have been
willing to compromise. We came together on legislation and we
are both open to changing the legislation if people have better
ideas. We want to be open to the marketplace of ideas on
restructuring the Ninth Circuit. But to be wed to say that it
is functioning well today and cannot be improved by splitting
it up, I think is closed minded.
When I first was elected to the House of Representatives,
this was being talked about back then because the West was so
fast growing back then. And I remember talking to the judges in
the State of Nevada, and unanimously, they were opposed to
splitting the Ninth Circuit. Well, today, as far as the
District of Nevada, every single one of the judges is for
splitting the Ninth Circuit, every single one of them. And one
of the two on the Ninth Circuit are for splitting from my
State.
So the judges have come a long way in changing their minds
because they are seeing the realities of the way that the court
is functioning. So I know there are differences of opinion. I
guess being the only non-lawyer here, I don't have the
experience in the courtroom, but I have the experience
listening to my constituents and I am here to represent them to
say that we would like to see faster justice done in the courts
through a more efficiently run Ninth Circuit. I believe that
the legislation that we have put forward would achieve that,
and once again, I am glad that Senator Kyl said, let us put
ideology out the door. Let us put a lot of those other
arguments out the door, because just based on the merits to
make it more efficient, to reflect the population growth of
today, there is plenty of justification for splitting up the
Ninth Circuit.
So I thank you, Mr. Chairman, and I know we have a vote
coming up on budget reconciliation in the Budget Committee, so
I have to get back there, as well, so I thank you for the time
and allowing me to testify today.
Chairman Sessions. I guess Chairman Gregg would like me to
be back for that vote, perhaps--
[Laughter.]
Chairman Sessions [continuing]. Since there is no proxy
voting in the Budget Committee and it might be attacked without
me.
We have got two panels of witnesses today. The first, we
will discuss the judgeship caseload numbers that seem to
evidence a continuing need to divide the Ninth Circuit. We will
also discuss whether a two-way split or a three-way split would
be better and we will address the recent cost estimates for a
division. Very interesting to me will be the discussion
concerning currently empty Federal courthouses in Seattle and
Portland, each of which are able, clearly, it appears, to serve
as a seat for the 12th.
The witnesses on this panel, starting from my left, are
Judge Diarmuid O'Scannlain, who was appointed to the Ninth
Circuit in 1986; Judge Richard Tallman, appointed in 2000;
Chief Judge Mary Schroeder, appointed in 1979; and Judge Alex
Kozinski, appointed in 1985.
On the second panel, we will gain more insight into the
Ninth Circuit as we explore the possibility of housing a new
12th Circuit in Phoenix, again, without, we believe, having to
build a new courthouse to do so. We will again hear from four
witnesses on that panel.
So, ladies and gentlemen, we are delighted to have you
here. Judge O'Scannlain, we are delighted to let you start off.
STATEMENT OF DIARMUID O'SCANNLAIN, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PORTLAND, OREGON
Judge O'Scannlain. Thank you very much, Mr. Chairman and
members of the Subcommittee of the Senate Committee on the
Judiciary. My name is Diarmuid O'Scannlain, United States
Circuit Judge for the Ninth Circuit with chambers in Portland,
Oregon. I am very much honored to be invited to participate in
this hearing on revisiting proposals to split the circuit.
Indeed, the urgency of restructuring the largest judicial
circuit in the country is even more evident today, in my view,
by the number of Ninth Circuit reorganization bills pending in
both Houses of Congress this session, perhaps the highest
number in Congressional history.
As you know, Senator Ensign, who has just appeared before
you, on behalf of Senators Kyl and Murkowski and five other
sponsors, recently introduced the latest Senate Ninth Circuit
reorganization bill, which is S. 1845, which is, I understand,
the central focus of your hearing today.
Although I have this prepared statement to make, I do want
to be able to respond to the very kind invitation from my good
friend, Senator Feinstein, with whom I have started a dialog of
sorts, to pursue the questions which she raises, which I am
very happy to do and which I hope I can do after I finish my
prepared statement, or when it is time for questions and
answers, if that is appropriate, Senator.
It is inevitable that Congress must restructure the Ninth
Circuit and I think S. 1845 is a perfectly legitimate vehicle
for accomplishing that goal. It bears emphasis, however, that
since I last appeared before you on April 7 of 2004, the
Judicial Conference of the United States, the policymaking arm
of the Federal judiciary, has now gone on record as expressing
neutrality on splitting the Ninth Circuit. This is a most
significant change, indeed.
Also, the Attorney General of the United States, Alberto
Gonzales, announced that the United States Department of
Justice now supports a split of the Ninth Circuit without
specifying which particular configuration it prefers.
The passage by the House of Representatives of a Ninth
Circuit split bill last year and recent indications of its
doing so again very shortly, the newly expressed non-opposition
by the Judicial Conference, and the support of the Attorney
General, and the widening support across the country for
splitting the Ninth Circuit auger well for Congressional action
this year.
Let me emphasize that S. 1845, like any restructuring
proposal, should be analyzed solely on the grounds of effective
judicial administration, grounds that remain unaffected by
Supreme Court batting averages and public reaction to any of
our individual high-profile decisions. My support of the
fundamental restructuring of the Ninth Circuit has never been
premised on the outcome of any given case. I believe that the
sheer magnitude of our court and its responsibilities
negatively affect all aspects of our business, including our
solidarity, our consistency, our clarity, and even, sadly, our
collegiality.
Simply put, the Ninth Circuit is too big. It is time now to
take the prudent, well-established course and bring the Ninth
Circuit into line with the rest of the circuits in the Federal
judicial system. Restructuring large circuits is the natural
process of judicial evolution, as you can see if you would look
at the appendix part of my testimony, beginning at page 17, you
will see Exhibit 1, which runs for two or three pages. This
shows the history of the evolution of circuits since 1789, and
starting with the Evarts Act, you, Congress, have restructured
circuits four times since 1891, most recently the Fifth Circuit
just 25 years ago. I believe that the legislation today before
you represents a workable restructuring plan and I urge you to
give it serious consideration.
From a purely numerical perspective, the enormity of my
court is undeniable, and none of the comments today have
refuted the numbers that are so oppressive to us as we look at
this issue. That doesn't matter whether you measure by number
of judges, population, or caseload. If you would turn to
Exhibit 4 on page 24, you will see that at 28 authorized
judgeships, our court of appeals has 11 more authorized
judgeships than the next-largest circuit.
Exhibit 5 indicates that the Ninth Circuit has more than
double the average number of judgeships of all other circuit
courts of appeals. The Ninth Circuit has 22 more total judges
than the next-largest circuit. At 51 authorized and senior
judgeships, the Ninth Circuit has more than double the average
number of total judges of all other circuits, as demonstrated
by Exhibit 7 on page 27.
By population, also, our circuit dwarfs all others. More
than 58 million people, almost exactly one-fifth of the entire
population of the United States, live within our circuit.
And the caseload is killing us. Even with the lumbering
number of judges on our circuit, we can hardly keep up with the
immense breadth and scope of our circuit's caseload. As you can
see from Exhibit 12 on page 32, the Ninth Circuit has 6,000
more filings in 2005 than the next busiest circuit, and at
15,600 appeals, the Ninth Circuit had more than triple the
average number of appeals filed of all circuits in 2005.
Sadly, this caseload has taken its toll on the litigants
within our circuit. Looking at Exhibit 16 on page 36, the Ninth
Circuit is now, regrettably, the slowest circuit in the
disposition of appeals. And the numbers on Exhibit 17 show that
the Ninth Circuit takes 40 percent longer to dispose of its
appeals than the average of other circuits, although you will
probably hear from some of my colleagues, which is absolutely
true, that we have a very good record in terms of disposing of
cases. Once the case gets to argument until it is decided, we
probably have one of the best records in the country. But the
problem is getting it from a notice of appeal to the scheduling
it for oral argument and that is what the fundamental problem
is.
So no matter what metric one uses, the Ninth Circuit
dominates out of all proportion to the structure of the rest of
the Federal judicial system. From any reasonable perspective,
the Ninth Circuit already equals at least two circuits in one.
Now, I am not alone in my conclusions. Several Supreme
Court Justices have commented--
Chairman Sessions. Judge O'Scannlain, I think I failed to
start you off on time, so you have had an extra minute or so
and--
Judge O'Scannlain. Oh, OK.
Chairman Sessions. I guess one of the pleasures of a lawyer
is to be able to cutoff a judge, having the light go off.
Judge O'Scannlain. All right.
[Laughter.]
Chairman Sessions. That is a very rare privilege, but
anyway, if you would just wrap up so we can give everybody a
similar amount of time.
Judge O'Scannlain. All right, Mr. Chairman. I submit to you
that the tide has now turned and the burden of persuasion has
plainly shifted. Indeed, the whole paradigm has shifted. As
long as one accepts the underlying premise of the appellate
circuits in the first place that discrete decisionmaking units
provide absolute benefits to the administration of justice,
there is no denying that the Ninth Circuit must be reorganized.
I challenge any opponent of reorganization to articulate a
reasonable justification for placing one-fifth of our citizens,
one-fifth of the entire Federal appellate judiciary, and one-
fifth of all of the appeals filed by all of the Federal
litigants into this country into one of 12 regional circuits.
In closing, let me say that Chief Judge Schroeder and her
predecessors have done a truly admirable job with the limited
tools that they have had, chipping away at the mounting
challenges to efficient judicial administration. However, I do
not believe that long-term solutions to long-term problems come
from tinkering at the edges. The time has come when cosmetic
changes can no longer suffice and a significant restructuring
is necessary.
Thank you, Mr. Chairman, and I will be very happy to take
questions at the appropriate time.
[The prepared statement of Judge O'Scannlain appears as a
submission for the record.]
Chairman Sessions. Thank you.
Judge Tallman?
STATEMENT OF RICHARD C. TALLMAN, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, SEATTLE, WASHINGTON
Judge Tallman. Good afternoon, Mr. Chairman and
distinguished members of the Subcommittee. My name is Richard
C. Tallman. I am a United States Circuit Judge with chambers in
Seattle. Thank you for the invitation to appear here this
afternoon to discuss why the reorganization of our court is
overdue to bring about a new era of judicial efficiency in the
circuit courts of the Western United States.
I join eight other circuit judges on our court who are
listed in Footnote 1 of my written testimony who also support a
split, and Mr. Chairman, I would ask that that written
testimony be made a part of the record.
Chairman Sessions. We will make that a part of the record.
Judge Tallman. I can also say that there are other judges
on our court who support reorganization but who prefer, for
various reasons, not to identify themselves.
Mr. Chairman, the statistical evidence is overwhelming.
Unmentioned in the previous numbers is the fact that we are
forced to borrow visiting circuit and district judges from all
over the United States. In this year alone, we brought in 137
visitors. Next year, we expect around 200. That has an impact
on the development of the jurisprudence in the Ninth Circuit.
That is in addition to the 51 active and senior circuit judges
who continue to hear cases on the Ninth.
We should not be deterred by overstated arguments of short-
term financial costs. Instead, we should view the cost of
splitting the court as a necessary investment which will pay
great dividends in the delivery of justice to the people we
serve.
If Congress prefers a two-way split, the most readily
available, cost effective, and geographically desirable
location for the 12th Circuit's headquarters is the now empty
ten-story William K. Nakamura United States Courthouse located
at 1010 Fifth Avenue in Seattle, Washington. It is pictured in
Exhibit 1 and is up on the chart. This building, rich in
history, where many great men and women have served our Nation,
is the perfect building to begin a new era in our reorganized
judiciary, and Senator Feinstein, we can lop off $84 million
from the AO's letter that you just marked in the record by
using the Nakamura Courthouse. Congress has already approved
the $53 million in renovation costs and that work is underway
by the General Services Administration. That building, with
104,000 usable square feet, is more than adequate to physically
house the judges' chambers, the courtrooms, and all of the
clerks and administrative space for the new 12th Circuit with
plenty of room for future growth.
The architectural drawings for its renovated courtrooms are
shown in Exhibits 3 and 4 to my testimony. That is a typical
three-judge panel hearing room, and the next one is the en banc
courtroom which is designed and will be built out to handle 15
judges so that the full court could sit en banc.
Congress has already approved the $53 million in repairs
and renovation costs in GSA's budget for fiscal year 2005 and
preparing it to serve as the headquarters for the 12th Circuit
will not add excessive work or cost to the ongoing renovation.
Most importantly, the renovation work will be completed in
plenty of time to allow the 12th Circuit to begin operations,
hear oral arguments, and carry out other judicial functions
upon the effective date of the split.
Seattle is centrally located for the States that would make
up the 12th Circuit. That is a substantial cost to taxpayers in
lieu of having current Ninth Circuit judges and staff regularly
travel these great distances. Flights to and from Seattle are
more convenient, more frequent, would be shorter in duration,
and are less expensive, allowing for cost savings, less time
wasted in airports, and more time spent in chambers handling
appellate work.
If Congress prefers another Pacific Northwest location, the
Gus Solomon U.S. Courthouse in Portland, Oregon, stands ready
to answer the call. It is shown in Exhibit 5 to my testimony,
another empty, available courthouse.
With these existing facilities, it is clear that we do not
need to build new courthouses. We also ought to try to avoid
arrangements in which the new circuit headquarters would be
housed in separate buildings within the same city. Either
Nakamura or Solomon can do the job in one building.
Because California is producing 70 percent of the Ninth
Circuit's 16,000 cases, a substantial amount of time and money
is spent sending judges from outside the Golden State to hear
cases in California, while California judges travel to hear
cases in other States of the Ninth Circuit. This past year, I
heard cases in Seattle for only five days for the entire year.
It is wasteful to pay judges to play this game of judicial
musical chairs, traveling to one another's States when the job
could easily be done by local judges working at their home duty
stations.
By adding new judges in California and splitting many of
the current Ninth Circuit States into the 12th Circuit, all
judges will spend less time traveling and more time working on
cases within their own State or States closer in proximity.
Those are real cost savings of millions of dollars annually and
countless hours of travel.
With or without a split, it is absolutely necessary to add
additional judgeships in California and fill empty seats
already authorized, but it is unfair to attribute the cost of
doing so to the cost of splitting the Ninth Circuit. Those
judges are needed now. We have to address this growth problem,
which is rapidly growing and getting worse by the day. The
startup costs have been inflated in past discussions because it
was assumed that brand new courthouses would have to be
constructed. Nor was there any offsetting credit based on the
financial gain from cost savings resulting from separating the
States and enjoying judicial resources closer to home.
The transaction costs of investing in improving the
delivery of justice are far less than the opportunity costs of
simply maintaining the status quo. That is unacceptable.
Justice delayed is justice denied. It is hard to quantify the
benefits of speedier resolution of appeals, which will surely
follow the creation of more manageable, smaller appellate
courts.
In the end, our citizens, both as taxpayers and consumers
of our court services, will greatly benefit from the a split of
the Ninth Circuit. It will provide them with better service,
litigants with prompt decisions, and a full en banc review of
the most important cases to reach the court. The time is now to
make the investment in improving the delivery of justice in the
Western United States. Thank you, Mr. Chairman.
[The prepared statement of Judge Tallman appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge Tallman.
Chief Judge Mary Schroeder, we are delighted to have you
here again and look forward to hearing from you.
STATEMENT OF MARY M. SCHROEDER, CHIEF JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PHOENIX, ARIZONA
Judge Schroeder. Thank you so much, Mr. Chairman, and good
afternoon. My name is Mary Schroeder and I am the Chief Judge
of the United States Court of Appeals for the Ninth Circuit. I
am very pleased to be with you. My husband is a little less
enthusiastic about my being here--
[Laughter.]
Judge Schroeder [continuing]. But I hope to join him later
in the day.
I have served in the capacity of Chief Judge of the Ninth
Circuit since December of 2000. My home chambers are in
Phoenix, Arizona, and Senator Kyl and I practiced law together
in Phoenix at the same time and we have been together on many
projects for a long time.
I would like to introduce our colleague, Carlos Bea. Judge
Bea and his wife, Lucille, are here from San Francisco, and our
wonderful Clerk of Court, Cathy Catterson, who is also here
today. I notice that the Clerk of Court of the District of
Arizona is also here, Rich Weir.
As you know, technology has improved rapidly. We now have
BlackBerrys, we have cell phones, laptops. We can communicate
instantly with each other wherever we are on the planet. It is
now easier to administer this circuit than it was when I took
over as Chief in 2000.
Moreover, it is the view of the overwhelming majority of
our circuit judges, bankruptcy judges, and the lawyers who
practice within the circuit that a division of the circuit
would not improve the administration of justice in the West. We
are not just talking about the Court of Appeals. We are talking
about the entire circuit and this includes magistrate judges,
district judges, everyone.
There are only three active circuit judges who support
division and they are all here today and you will hear from
them.
What I would like to focus upon this afternoon, however, is
not how well the circuit is operating but how harmful a circuit
division would be, especially now. There are three principal
reasons.
The first is the unprecedented devastation wrought by
Hurricane Katrina, which the AO has already asked for $65
million in additional appropriation.
The second is the temporary but unprecedented increase in
immigration appeals to our court from the Board of Immigration
Appeals in the Justice Department that cannot provide
sufficient meaningful administrative review, and we hope to
work with them so that they get the resources that they need,
as well.
The third reason that this is such a bad time to consider
splitting the circuit is the need for court resources to
prepare for new litigation spawned by the Bankruptcy Act that
went into effect last week and new immigration legislation that
you are struggling to formulate, and we would like to work with
you to make sure that whatever policies you come up with in the
immigration field work.
I was in Houston after Katrina last week and their circuit
executive's offices in rented space, their clerk's office on
rented furniture, their entire clerk's office, 100 people, is
on per diem and working in Houston. They are worried about
their children, their homes, and what the future will bring.
The Federal Appellate Court for the Fifth Circuit is at least
functioning, thanks to those efforts of the Chief Judge and its
administrators, but I understand there are trial courts there
that are not functioning at all.
We don't think this is the time to create an unnecessary
and costly bureaucratic court structure in the West, especially
when there is no legal system in one area of the country right
now.
With respect to the immigration case deluge, those cases
are nearly all from California. Splitting the circuit would
exacerbate administrative burdens because the judges from the
rest of the circuit would no longer be there to help and staff
resources would be cut. The Judicial Conference of the U.S. has
taken a position of neutrality with respect to the merits of
the split. That has always been the position. They have never
taken a position in favor of circuit splitting or opposed. They
do oppose linking new judgeships to the issue of circuit
splitting.
Let me speak for a moment about staffing. The new Circuit
Court of Appeals has to be staffed and a new circuit has to be
staffed. They would need a clerk of court, circuit executive,
technology folks, staff attorneys. We have all of that now very
effectively in the Ninth Circuit and we have services that are
not matched because of the expertise that we are able to
provide in a circuit executive's office and a clerk's office
that serve a lot of folks out there.
Finally, about administration, the existing circuit has a
hub. It is easily administered because nearly all of the judges
can get to San Francisco within 2 hours and they don't have to
lose more than a day in the office. I happen to follow college
athletics and the headquarters of the PAC 10 and the Ninth
Circuit are within seven BART stops from each other because
that is the hub of that area of the lower 48, and when Hawaii
and Alaska were added, they were added to the Ninth Circuit.
Nobody thought a thing because there was nowhere else for them
to go and I don't think there is now.
Neither of the circuits that were created by S. 1845 would
have such a hub. One would cover the whole Pacific and the
other would stretch from the border of Mexico to the Arctic
Circle. Judges would have to change planes in San Francisco in
order to get from Phoenix to Seattle. So the courthouse in
Phoenix, we can look at, but it is fully occupied and it has
ten courtrooms. You would have to fill in those courtrooms--
that is very, very expensive--and move the bankruptcy court
out.
So given the stress on the administration of justice right
now by all of the things we are seeing, all of the movement in
this country, fracturing the administrative structure of the
courts of the West is not a good idea.
I thank you for the opportunity to appear before you and I
would be happy to answer any questions later. Thank you.
[The prepared statement of Judge Schroeder appears as a
submission for the record.]
Chairman Sessions. Thank you. Thank you, Chief Judge
Schroeder.
Judge Kozinski, it is a pleasure to have you with us and
see you again. I am not uninterested in your comments and will
be studying your record, but unless Senator Kyl is leaving--he
just disappeared. I have to go vote in just a minute. Senator
Kyl says that he would be pleased to preside, so we are
delighted to hear from you at this time.
STATEMENT OF ALEX KOZINSKI, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, PASADENA, CALIFORNIA
Judge Kozinski. Thank you, Mr. Chairman, members of the
Committee. My name is Alex Kozinski. I am a judge on the Ninth
Circuit. I have been a judge on the Ninth Circuit for 20 years.
I am resident in Pasadena.
I have written testimony and rather than summarizing it,
which I planned to do, what I would like to do is address some
points raised by the other witnesses, but partly because
Senator Feinstein did such a fine job of saying most of the
points that I did and there is no point repeating them here.
On this matter of whether there is a consensus that the
Ninth Circuit ought to be split, I think the Committee ought to
think seriously about this. Who knows more about what is good
for the people in the Ninth Circuit insofar as the Ninth
Circuit is concerned than the lawyers, the people who represent
the litigants who appear before us? I think it is significant.
I think it is a fact that can't be brushed aside that the State
bars of Arizona, Hawaii, and Montana have all voted against the
split. These are States that would be split away from the Ninth
Circuit, that would get the supposed benefits of a split, and
yet the lawyers representing the litigants that appear before
us are against the split.
Also, the judges know quite a bit about this and I think
the Committee ought to find it significant that of the judges
on our court, there are only three active judges, who are all
present, who voted in favor of a split. We had a court meeting.
We had a discussion. We had a vote. Only three active judges,
all present here, voted in favor of the split. It is
significant that of the circuit judges from Montana, Arizona,
Nevada, and Hawaii, there was not a single circuit judge,
active or senior, who voted in favor of the split. Not a single
judge from one of those States voted in favor of the split.
Now, I heard Senator Ensign say to the contrary, that he
believed that one of the circuit judges from Nevada voted
differently. I have here a vote tally sheet of the vote we have
taken. It includes the list of all the judges who voted for and
against, who abstained. It shows that--
Chairman Sessions. Do we have a voting rights case here?
[Laughter.]
Judge Kozinski. Well, I think it is important, Senator, to
have the record straight--
Chairman Sessions. Well, it is.
Judge Kozinski. and the record is that the Judge Rawlinson
from Las Vegas voted in favor of a split and Judge Hugg, former
Chief Judge, a great Chief Judge, a wonderful Chief Judge,
voted against the split and the two judges abstained. Judge
Brunetti and Judge Bybee abstained. I am aware, as I stand here
and I am under oath, I am aware of no colleague of mine from
Nevada who voted--who believes that the split is appropriate.
Now, these are judges and lawyers from the States that
would be affected by the split, the split that supposedly is
inevitable. I think the Committee ought to think very carefully
about why those people most intimately familiar with it and
those who are most involved with our litigation process have
voted against the split.
Now, Judge O'Scannlain raised, as well did the Chairman,
the business about delay in deciding cases in the Ninth
Circuit. Judge O'Scannlain, a fine colleague of mine, and Judge
Tallman, a wonderful colleague--one of the worst things about
this proposed split is I really would miss them, and Judge
Kleinfeld. I really would hate to see them go, and I am going
to hold on to them as hard as I can.
But Judge O'Scannlain was quite fair. He said, oh, they
will tell you that once the cases get to the judges, we are the
fastest, one of the fastest courts in the country to decide.
Well, isn't that the test of the circuit, of how the circuit is
working? The reason cases are delayed is because we have four
vacancies. Up until two or 3 years ago, we had eight vacancies
and ten vacancies in our court. The reason we have visiting
judges from other courts is we don't have the judges. Judges
have not been confirmed.
Once the cases get to the judges, once the judges get to
decide the cases, once the decisionmaking process comes within
our control, we are the second fastest court in the country. It
doesn't matter that some of our colleagues are in Alaska and
others are in Montana and others are in Hawaii because I can
talk to Judge Kleinfeld and I can talk to Judge Thomas in
Montana, I can talk to my colleague, Judge Clifton, in Honolulu
by picking up the phone or by sending an e-mail, and you know
what? E-mail to Montana is just as fast as e-mail to downtown
Los Angeles, believe it or not.
We are unified as a court and at no time in the history of
the United States has a circuit court been split over the
strong opposition of a majority of the judges. The only time
that we know about is the Fifth Circuit was split when the
judges unanimously voted to split. Now, I don't think we have a
veto. I don't think we are entitled to deference in the sense
that you can't do it. Of course, you can do it. It is your job
to do it. But you need to think carefully about the people who
actually deal with the lives and fortunes of the litigants
before us, the judges and the lawyers, and the judges and the
lawyers have spoken and by overwhelming margins they have said
no.
I think this Committee should accept that verdict, after
close study, and should reject once and for all the proposals
to split the Ninth Circuit, and what they should do is commend
the court and help us with technology, help us with resources,
help us here in the Senate with confirming our judges. Give us
the judges to do the job for you. You do that and we are not
going to see those numbers. We are going to see the fastest
court in the country.
Thank you, members of the Committee and--and Mr. Chairman.
[The prepared statement of Judge Kozinski appears as a
submission for the record.]
Senator Kyl. [Presiding.] Thank you. I don't mean to
confuse things--
[Laughter.]
Judge Kozinski. Excuse me, sir, I do have this vote tally
sheet. I know in court we would say, may I have it marked as an
exhibit--
Senator Kyl. Without objection. Any written material that
any of you would like to have appear in the record will be
included in the record.
Since Senator Feinstein is ranking, Senator Feinstein,
would you like to begin the questioning? Are you prepared?
I will tell you what. Let me just ask one question first
and then I will turn to you, how is that? It was occasioned by,
Judge Kozinski, one of the comments you just made. I don't know
why it takes the Ninth Circuit so long to get to oral argument.
Your suggestion was, Judge Kozinski, that that was because
there are four vacancies. On the other hand, isn't it possible
to set oral argument and if there are two judges set and a
third that has to be filled in, to simply fill it in with a
visiting judge or district court judge? In other words, why
should the fact that there are four vacancies mean that it
takes a long time to get to oral argument? I don't understand
that. And Judge Schroeder might be able to answer that, as
well.
Judge Kozinski. Since you directed the question to me,
there is always a balance on a court between speed and getting
the work done by bringing in more judges--being short of
judges. Of course, there is not an unlimited number of visiting
judges you can get. Other judges have their own work to do. But
in terms of maintaining consistency in the law of the circuit,
what you want to do is to have as many of the local judges, as
many judges from the home circuit as possible because they see
the same cases again and again.
Now, the balance can be struck in various ways, but I
believe it will be irresponsible for a court to promiscuously
bring in visiting judges when there are vacancies. I think we
try to do our job, but at the same time we don't want to muck
up the law by having too many hands in the pot.
Judge Schroeder. What we like to do is to bring in our own
district judges who are familiar with the circuit law. It is
not helpful particularly to bring in a lot of judges from other
circuits who are not familiar with the circuit law.
One of the things that came out in the White Commission
hearings that they had in the late 1990's when they studied the
circuit structure throughout the country was a dissatisfaction
on the part of lawyers in some other parts of the country with
some other circuits that relied more heavily on visiting judges
than the Ninth Circuit does, because they would like to have
the cases decided by those who are familiar with the law and
not in Atlanta by a senior judge from Indiana.
Senator Kyl. And, by the way, let me make it clear that if
it were up to me, there wouldn't be any vacancies in any court,
and, in fact, we would have more judges to be filled in the
form of new judgeships, both district and circuit, but I don't
control all of that and I understand that that is a deficiency.
Do, Judge Tallman or Judge O'Scannlain, do you have a view
on this question of why it takes so long to get to oral
argument?
Judge Tallman. I should say, and I think you can appreciate
this as a former practicing lawyer, it doesn't matter to the
litigants what the reasons are. All they know is that it takes
15.4 months on average to get their cases decided. We do have
problems in immigration cases getting the record, the
administrative record together, and that is a problem on the
government's side of the equation. But we have got a whole
basement full of pending court cases in San Francisco that are
waiting for oral argument panels to become available to which
they can be assigned and that takes more judges.
To respond directly to Senator Feinstein's concerns
expressed at the outset, Senator, there is no way to equalize
the caseload with California unless the State itself is split
and no one is advocating that. But none of the circuit
caseloads are mathematically equal and there will always be
variations from one to another.
The logical result of the opposition argument is that there
is no limit to the size to which this court may grow. Do we
really want an appellate court of 75 active and senior circuit
judges? That is not a court, it is a legislature.
Senator Kyl. By the way, the senior judges are available
for designation on panels to the extent that they devote time
to judging, so I presume they are included within the panel?
Judge Tallman. Technically, they are not designated. As a
senior judge of the court, they continue to hear cases. They
just hear a reduced caseload. Some of them are handling
caseloads that are equal to or greater than an active judge.
Judge Schroeder. We rely on them.
Senator Kyl. Actually, my preliminary question has turned
into a whole 5 minutes, but Judge O'Scannlain, do you want to
conclude--
Judge O'Scannlain. I would just simply concur with my
colleague, Judge Tallman, and suggest that that figure of 47
judges today, including seniors, includes 23 seniors, and if I
am not mistaken, at least 20 or maybe even 22 of those 23
seniors are actively sitting on panels, so that if we were
stuck with just the 28, we would be at a total loss.
But from the standpoint of the litigant, it doesn't matter
how fast we are, and I totally agree with Judge Tallman on
this, in terms of deciding cases as long as his case is
waiting. So the problem is that notwithstanding all of these
vaunted programs that we have, especially, for example, the
screening panel, ironically, the cases that get the quickest
treatment in our court are the ones that have the least complex
issues to deal with. Those sometimes get in and out within six
or 8 months, compared to 15 months as an average, and we do
that with a screening panel. But notwithstanding that, we are
still the slowest court in the entire country and that is a
statistic which cannot be gainsaid.
Judge Kozinski. Senator, if I may just followup, my
colleagues are absolutely right. It doesn't matter to the
litigant why the delay is, but it certainly matters in figuring
out the swiftness. If the problem is we don't have enough
judges, then the solution is give us more judges. Splitting a
circuit is not going to solve the problem that is created by
the absence of judges.
What it will do is exactly as Senator Feinstein pointed
out, because the judges in the new proposed 12th Circuit would
have a much lower caseload, yes, those cases would get their
judges more quickly. But the cases in California and cases in
Hawaii, and Senator Kyl, Senator Murkowski, you are
representing the nation, not just your own State and I submit
that it is not fair to have a solution that makes the problem
of delay so much worse in important parts of the country in
other States, Hawaii and California. The problem being created
by lack of judges, give us the judges. That will solve the
problem.
Judge O'Scannlain. Mr. Chairman, Senator Kyl, if I can call
you Mr. Chairman at the moment, there is a little
disingenuousness going on here, if I may say so, and I say so
with a certain amount of regret. But we had the opportunity in
1990, the last major judgeship bill, to ask for new judges. We
were entitled by the numbers to close to ten, maybe actually
ten new judges, and we asked for zero. So the fact that we
don't have enough judges is to a certain extent a product of
our own making.
And at the very least, what this bill does is give us seven
new judges. In my view, and I repeat what I shared with Senator
Feinstein in our meeting, I think the number of seven judges
for California is too low. I think California justifies
significantly more than that. And the fact that we never asked
for them until now, I think is unfortunate, to say the least.
Senator Kyl. Let me just conclude this and then, Mr.
Chairman, Senator Feinstein should probably have the next
opportunity since I basically took your spot here by asking a
question that opened a bit of a can of worms. But let me just
conclude with my thoughts, because I think both sides in this
debate make a good point.
Judge Kozinski, I think you are absolutely right that it is
critical that we fill all of the vacancies and, I believe,
create new judgeships consistent with the caseload and fill
those as well and that that can have the effect of reducing the
time to argument. That, therefore, helps to relieve the
pressure that has been building for a split.
But I also agree with the proposition that carried to not a
logical extreme, day after tomorrow, we are going to have how
many judges on this court? That makes the argument that, for
any semblance of collegiality and ability to conduct en banc
hearings and the other things which make for an effective
court, there is going to be a point at which we either have to
have a very different view of what a circuit court is with 75
judges or agree that at some point there does have to be a
split.
So it seems to me that there is validity in both points
that have been made here.
Judge Kozinski. I hop I will have a chance to speak to you
privately at some point on all of those issues. I will be happy
to come back to Washington or to Arizona to do that.
Senator Kyl. Let us do it in Arizona. I said before, I view
this as not perhaps the beginning of a conversation, but the
continuation of a conversation that is going to take us a
while. Everyone can breathe easy that this isn't going to pass
tomorrow in exactly this form and there is plenty of time for
conversation and I welcome, and I really do again appreciate
the time that all of you have put in and the difficulty that it
has created for some of you.
Judge Schroeder. May I say, Senator, that Judge Thomas will
also address these issues that you are concerned about.
Senator Feinstein. I am not going to ask a formal question.
Let me just for a moment have a bit of a discussion.
I think there is more actually underlying this than just,
well, let us shorten the time that a case can get to a judge
because that is pretty simple, as Judge Kozinski pointed out.
Increase the number of judges.
The fact of the matter is, it has been increasingly
difficult to get new judge positions to the Ninth Circuit, and
the fact of the matter is, I believe, and I can't make any
accusations, but I believe that there is an effort to starve
the circuit to bring it to the point of a split. The points I
have been trying to make is the very real need for parity in
caseload.
I think there are political reasons here. People say they
aren't. I believe there are. Clearly, there are travel reasons.
Some judges, I guess, don't want to travel as much, and I can
understand that and I don't blame you for it. I am not at all
critical.
But I don't think the case should be made on the timeliness
or the delay in getting the case, because if that is really the
argument, then get the judges. When it comes to judges being
active in lobbying, and I say this to both sides, nobody helps,
really. The Chief Judge does, but that is somewhat limited. But
while we are judges, we don't lobby is kind of the answer that
comes back. Consequently, the Ninth Circuit has been seriously
disadvantaged.
Now, any split--I told you, 72 percent of the caseload
remains in California and the rest of it, I mean, if you look
at the actual numbers, they are de minimis. I won't do Guam.
Hawaii, 247 cases are filed in a year. Alaska, 136 cases. that
is all. Arizona, 1,195. Idaho, 161. Montana, 355. Nevada, 827.
Oregon, 638. Washington, 1,130. So the big States of those are
Washington and Arizona. But California, 10,985 cases.
Therefore, it seems to me that a decision has to be made
whether there is enough, and I can't answer this because I
don't know, judicial interest in having the kind of
cosmopolitan Western circuit that exists there with interaction
for trade laws, kind of a richness of law because of the
geographical composition of the circuit, or if not, I mean, if
California could get 21 new judges on the line and be its own
circuit, we could try and see how that would work.
Judge O'Scannlain. Well, there is precedent for--if you
look at Judge O'Scannlain's Exhibit 1, back at the beginning
days of the republic, there was a United States Court of
Appeals for the California Circuit and it--
Senator Feinstein. I saw it, but it didn't last long.
Judge O'Scannlain. No, because the West grew and there
needed to be more judges.
Senator Feinstein. It grew and there was a synthesis of
interests within the States. And as you know, no circuit except
for the D.C. Circuit is less than three States. So the circuits
have been devised on the basis that a number of States together
is a good thing. So the question of size, in my view, is
strictly related to numbers of judges. Go ahead, take me on. I
am happy for you to take it on.
Judge O'Scannlain. I would have to say that on this
particular point, maybe Judge Kozinski, you, Senator, and I are
in total agreement, and that is we need more judges. I
certainly feel that very strongly. I thought we needed them in
1990 when we failed to ask for them, but we need them certainly
today.
The problem is, how large can a court of appeals grow and
still be a court of appeals? That is the nub of it. And if you
read the White Commission report of 1998, that is the central
piece they make. They recommended that we split into three
separate divisions. Keep the circuit structure, but split into
three semi-autonomous divisions, one of which would--well, two
of which would split California.
Now, I realize, Senator, that you have some concerns about
the optics of that and--
Senator Feinstein. Forum shopping, yes.
Judge O'Scannlain. And that is a very respectable point and
one which I share, as well. But the key here is that if we are
looking at some modifications to this bill, in my personal
view, I think the new 12th Circuit gets too many judges and the
new Ninth does not get enough. So even with 35 judges to be
reallocated, I think you could pick up two more judges just by
shifting from the 12th to the Ninth in this bill, and then, as
I said in my earlier testimony, I think you could justify ten
or more judges at least to go with the number of California
judges there are.
So I think--but I think that is just a matter of
adjustment. The principle, though, is the key, and the
principle is you cannot let a court of appeals grow so large
that the number of judges sitting around making law--now, we
are not talking about making law in a legislative sense, in
which there are much less limitations, but here, we have to
speak as a unifying body which declares the law. The White
Commission recommended nine to 17 as the ideal range. Over 17,
it becomes cumbersome. We are at 28. If we go to 35 or 38 or 45
or 55, it is impossible and we cannot function as a court of
appeals with that number.
Senator Feinstein. Does everybody agree that if you grow
like that, it is impossible? Judge--
Judge Schroeder. No. No.
Senator Feinstein. Wait. Judge Schroeder, just a second. I
will go down the line. Judge Tallman?
Judge Tallman. I do agree with that, and it gets back to
what we talked about at the last hearing, which is the
importance of maintaining consistency and predictability in the
law. The problem that we have now with 50 judges resident,
active and senior, and 150 to 200 visiting judges is that it is
like going to Las Vegas in terms of what the outcome is going
to be. Tell me who the three judges are going to be on the
panel and I might be able to predict how that particular panel
is going to go.
That is not supposed to be the way circuit courts of appeal
operate. They are supposed to apply the same legal principles,
the same body of law to similar sets of facts that come before
them, and the en banc process exists to correct those panels
who wander off the reservation because they didn't follow the
law.
With a court of 75 judges trying to have a functioning en
banc process, even on a limited basis as we do now in the Ninth
Circuit, would be virtually impossible. You are talking about
the ability to review less than 3 percent now with the limited
en banc process of errant cases that have gone awry. You
couldn't do it with a court of 25,000 cases and 75 judges.
Senator Feinstein. Judge Schroeder?
Judge Schroeder. I am not sure why we are talking about 75
judges when we have never had the 28 for more than five
minutes, but the truth is that it used to be that nine judges
was considered the ideal size of a court. Now, all the circuits
except the First are larger than nine. We have seen by
technology that it is easier to operate when you have larger
courts as we get bigger in our ability to communicate.
You referenced the community of interest of the West. That
is very important. We have a community of interest in the West.
We have Microsoft, for example, in Seattle. We have the Silicon
Valley. We have Intel. All of these are looking toward the
Pacific. We all think of ourselves as Pacific Rim. We need to
keep that community together. It is very important.
And we will, if we ever get to 35 or 40 judges and it turns
out that there are problems, we will deal with them. But no one
has ever, in studying the circuit, has ever concluded that it
would be more efficient to divide the circuit.
Senator Feinstein. Judge Kozinski?
Judge Kozinski. Well, it seems to me Judge O'Scannlain is
giving up the game. He favors a split, but he says, oh,
California should get ten more judges. Well, under the CCARMA
bill, it is 16 judges plus he said we should get two more. That
is 18. Ten more is 28. We are back at 28 active judges.
Now, it seems to me the reality is we are all getting
bigger. The country is getting bigger. Courts are getting
bigger. Cases are getting bigger. Litigation is getting bigger.
Simply throwing out--and law firms are getting bigger. Simply
throwing out a number, saying, oh, 75 is a very big number, you
know, ten judges was a very big number for a circuit in 1960.
There was not a single circuit in the country that had as many
as ten judges. It was horrible, the very though.
I remember 1960 and I am sure--
Senator Feinstein. I do, too.
Judge Kozinski. There we go. It was not such a long time
ago. We live in a different world. And just to answer the
question that Senator Kyl asked and the thing I want to talk to
him about in his office when I get a chance, yes, you can run a
court with 75 judges. It is not ideal, but it is done and this
bill is about collegiality. I love my colleagues. I get along
well with my colleagues. We josh around here. But as I say to
Judge Tallman every time I see him, I say, you bad guy. Do I
not say that to you?
Judge Tallman. You do.
Judge Kozinski. And the reason I say, you bad guy, is
because he wants to leave me and I don't want to lose him.
Judge Schroeder. Well, he is--
Judge Kozinski. And that is how we relate to each other.
Senator Feinstein. Let me just say one thing about justice.
I am not a lawyer, so it is easy for me to say. But it seems to
me that--I have always thought, to some extent, small is better
because small is human. Judge Schroeder, I have a problem with
doing things by BlackBerrys, probably because I am not of the
generation, really. For me, it is the human interaction. It is
the ability to take the time. It is having people feel really
satisfied that they had their justice and that it was human,
that it wasn't mechanical, and that cases weren't just sorted
in bulk and dealt with in bulk and that kind of thing, that
there was an individual quality to the justice that is meted
out.
I do think that as a circuit gets bigger, if this one is
going to continue to grow, it is inevitable that 1 day, we are
going to be there. I don't pretend to know what is the size
when we are going to be there, but for me, as I look at this
and try to see the forest for the trees, it is parity. It is
bringing down the number of cases per judge so that the
individual case has a certain prominence and isn't just in a
batch that is dispensed with in a certain way.
Judge Schroeder. I don't disagree with that at all, but as
you have pointed out, the reality is that California is very
large and that it is going to have to have a certain number of
judges and that any circuit with California is going to be
larger than 20 judges. That is just the reality of the world in
which we live.
Judge O'Scannlain. Perhaps, Senator Feinstein, the time has
come to give some consideration, I am not sure where I would
stand on it personally, but some serious consideration to the
rule that we kind of followed, an unwritten rule that there has
to be three states to make a circuit. The District of Columbia
is an exception to that rule, but that didn't occur until 1948.
Maybe because of the population pressures of California, the
time has come to consider whether California, like it was in
1855, should once again become its own circuit. Certainly, the
numbers in every way justify it. I am not suggesting that as a
solution here, but I am suggesting that we have to do something
with these numbers because these are pressures which need a
response.
Senator Feinstein. I haven't seen a proposal that treats
California fairly in terms of judges, candidly.
Judge O'Scannlain. OK.
Senator Feinstein. Clearly, it knocks down the caseload to,
like, 325 for the other States per judge with the judges that
accompany the proposals, but it leaves California judges with
over 500 cases. I can't--
Judge Tallman. Mr. Chairman, Senator, I think you are
overlooking the fact that the bills also provide for continuing
exchanges of circuit judges between the 12th and the Ninth to
address that problem. We will continue to be sitting in
California for some time to come as the bills are currently
drafted.
Senator Feinstein. Then what is the point of doing it?
[Laughter.]
Judge Tallman. Because at some point, the thought was that
California would get the additional permanent judgeships that
it needs so that you wouldn't need to be borrowing all these
judges from the rest of the country.
Senator Feinstein. Let me just say, I have been here now
for almost 13 years. I don't think California will get the
judges it needs. The only way for California to get the judges
it needs is to get them before there is any split and have
them, because I think California will be slighted, and I
greatly respect Senator Murkowski. I think she does a super
job. We serve together on Energy and Water. But the proposal
doesn't treat California fairly in terms of number--I leave out
the word ``fairly,'' but doesn't treat California adequately in
terms of the number of judges and I have to fight for my State.
Judge Kozinski. Mr. Chairman, may I just have 30 seconds to
address this. Judge O'Scannlain put in this idea of a single
State circuit for the first time and I just want to address it.
There has been a philosophy in the Federal courts, and it is a
very important philosophy and this Committee ought not to
reconsider it lightly or casually or on an ad hoc basis. The
idea is that trial courts, trial courts, for very good reasons,
trial courts tend to be local. The judges are drawn from the
local community. They have the approval of the local senators
or the State senators.
Appellate courts in this country in the Federal system have
been regional and national, regional for the circuits, national
for the United States Supreme Court. It is a very important
principle that ought not to be slighted or overlooked, and that
is that you have regional interests in the application of
facts, but when it comes to application of the law, you want
regional consistency and you do want views from outside the
State.
I am very happy when Judge Kleinfeld comes and sits on
California cases or when Judge Thomas does and our colleagues
from Arizona. It is very important to have that and to continue
with that. A single State circuit would go contrary to that
long-established principle. I would beg this Committee not to
do so without a very careful thought to it.
Chairman Sessions. [Presiding.] Well, it is a big circuit.
California is a big State. Some call it a nation-state. It is
further from San Diego to San Francisco than it is from Mobile
to Atlanta, and maybe further culturally, I don't know. We have
got a whole bunch of circuits on the East Coast. We have got
several on the Gulf Coast.
I think these things don't make much sense to me, frankly.
I think it is just angst. There was a lot of angst when they
split the Fifth Circuit. It went on, every kind of fear and
concern, voting rights were going to be denied, it was just
awful, but somehow, it was done and everybody is so happy.
Look at these numbers, Senator Feinstein. Now, I know this
is a busy circuit. It has got 6,000 immigration cases. But
trust me, an immigration case is not as big as a multi-
defendant conspiracy cocaine case or an antitrust case. Those
can be handled in a larger number. But even then, the existing
caseload per judge that is being handled is not the highest.
The Ninth handles 560 per judge, which is large, but the 11th
has 642. The Fifth has 567. And the Second has 524, and that is
as of June 2005 from the Administrative Office of the Courts
statistics.
True, some others, you say that the 12th would not have
that many judges, but it would be about 326, I believe. But
here, the First Circuit has 314 per judge. The Third, 307. The
Fourth, 355. The Sixth, 316. The Seventh, 337. The Eighth, 322.
And the D.C. Circuit, which I have been trying to take a judge
from--
[Laughter.]
Chairman Sessions [continuing]. Has 114, but they act like
the roof is going to fall if you take one of their judges, but
they only have 114 per judge and you have 560. But they say
theirs are big cases.
But anyway, so I think the numbers are important here. But
I have--
Judge O'Scannlain. Mr. Chairman, if I could just make one
point with respect to that, and that is that perhaps the most
successful circuit of all is your circuit, the 11th Circuit,
which has the highest number of cases per judge. They have made
the decision, they do not want additional judges because they
feel to do so would be to affect their decisionmaking ability
and to create precisely the kinds of problems we have been
hearing about during this hearing. So they have elected to stay
at whatever it is, 12 or 13 or something like that, and yet
take a huge burden, which, God bless them, they do a terrific
job. They have all of the same bells and whistles that we do,
pretty much. There are differences, of course. But they are a
much more efficient circuit than we are and their backlog, or
at least their lag time, isn't as bad.
I am glad you pointed out the disparity between the
circuits, which run from 100-and-something to well over 600.
The key to me when I hear all of that is that the 11th Circuit
can do it with fewer judges and be very effective.
Chairman Sessions. I know there perhaps have been
ideological and judicial philosophy concerns about the Ninth
Circuit. We know it is the most reversed circuit in the
country. I think some of the reasons for that is not
ideological, but as I think some of you suggested, these panels
of three being selected out of a very large number, you have
more likelihood of an aberrant panel than you would in a
smaller court, perhaps.
But at any rate, I am concerned about the size of this
court. I think 28 judges is breathtaking. I would note that the
bill that has been proposed would add seven new judges to the
old Ninth Circuit and add no new judges to the 12th. So all the
new judges in their proposal, which should be a pretty
noticeable increase in judges and at least keep those caseload
numbers more reasonable, perhaps, than they are today.
I want to discuss this question of whether we are dealing
with a court or the House of Lords.
[Laughter.]
Chairman Sessions. I mean, to have an en banc that 28, 35,
51--well, 51 judges counting the senior judges, but an en banc,
you would just have, say, 28 if you were fully stocked in the
Ninth, would you share with me--I think, Judge O'Scannlain, you
wrote, or was it you, Judge Tallman, that emphasized that
most--the practical problems of maintaining uniformity, maybe
the psychological pressures on judges to try to conform to a
circuit that they can identify with, how that is impacted as
you get larger and larger?
Judge Tallman. Mr. Chairman, you are recalling, I think,
both my oral and my written testimony from the April 2004
hearing, where I laid out the case for why the limited en banc
process has not worked very well. I know Judge Roll is prepared
to address that in his testimony, as well. But there certainly
is a practical limit to how many judges can effectively hear a
case en banc.
We are now, as you know, going to experiment starting
January 1 with 15 judges, which I understand is about what the
Fifth does when they sit en banc, but I also understand, and I
believe Judge Tjoflat touched on this when he testified in
April of 2004 that that was one of the deciding factors that
pushed the judges of the old Fifth into agreeing that it was
time to divide. They had an en banc hearing with 25, I think it
was at that time, and it was just unmanageable. It was too many
judges to try and wrestle with the issue effectively.
Chairman Sessions. Perhaps--
Judge Schroeder. Could I just respond?
Chairman Sessions. I will say this, and then I will
recognize you, that I am not aware in the Western world of a
court this big, in the Western heritage of law that we have a
court this big. It ceases--I think the question is, is it a
court anymore? Is it just a vote, you know, some sort of who
can get the most votes in this big to-do? So I think that is a
legitimate concern.
Chief Justice Schroeder, I will hear from you and then we
will go to Senator Murkowski.
Judge Schroeder. I just wanted to respond briefly with
respect to size that we should keep this in perspective. There
are fewer judges in the entire Ninth Circuit than there are in
the State court system of Arizona. The former Chief Justice of
the Arizona Supreme Court has testified previously--he was not
Chief Justice at the time, but in opposition to a split of the
circuit because in relation to other court systems in the
court, we are not that big.
Chairman Sessions. The Supreme Court of Arizona?
Judge Schroeder. The Supreme Court of Arizona has five, but
there are over 20 appellate court judges, intermediate
appellate court judges in Arizona.
Chairman Sessions. Well, we have those, too. I think we
have nine on our Supreme Court, but as you said, I think
traditionally it has been seven or nine. Some have had five.
But I have never seen this one as large as the Supreme Court--
Judge Schroeder. Of course, we are not a supreme court.
Chairman Sessions. Well, that is true--
Judge Kozinski. You could make us.
[Laughter.]
Chairman Sessions. Do you want to make that?
Judge Kozinski. It is OK with us.
[Laughter.]
Judge O'Scannlain. Well, Mr. Chairman, we are indeed the
court of last resort for something like 97.6 percent of all
Federal appeals, at least in our circuit, and it is pretty much
the same in every other circuit.
Chairman Sessions. In our court of appeals, I don't know
how they do the en banc.
Judge Kozinski, and then--Senator Murkowski.
Judge Kozinski. I think if you make us--
Chairman Sessions. Senator Murkowski?
Senator Murkowski. Mr. Chairman, before I begin my
questions, I have got a question to you. I understand we have
got a group of five stacked votes that have just begun. Can I
ask what your intention is in terms of the second panel and
what you--
Chairman Sessions. My intention would be for you to, I
guess, finish with this panel. I think we need for--these
judges have come so far, I think we need to make it complete
today.
Senator Murkowski. OK. I appreciate that. I will be quick,
then, with my questions.
Judge Schroeder, you had indicated in your testimony the
three reasons why it is imperative that we not move forward
now. One of them was what we are facing with Katrina. The
second was the immigrations appeals issues. And then the third
you noted was the new litigation from bankruptcy reform and
immigration reform.
Last year, in April, I had also introduced legislation that
would split the court. This was pre-Katrina, this was pre-
bankruptcy reform, although we were certainly talking about
bankruptcy reform and immigration reform and the immigration
cases are certainly escalating. I guess my question to you is,
you are saying, not now. In your mind, is there ever a point
when it is appropriate, when demographics or whatever issues
within the court would merit a division of some sort?
Judge Schroeder. Senator, I am not religious on the
subject. I think that times change, that things happen. I think
that if we have experience with a court of 35 or of 40 active
judges, if we do have that experience and find that that is too
large and that it should not function, we should reconsider. I
think that we can always look at what we are doing and benefit
from our own experience and from the possibility of change.
As I have indicated, we have moved from a court of 11 on an
en banc to 15 because we are trying to respond to criticisms
that the 11 was too small. We--actually, our court liked the 11
because we thought it was an efficient use of resources, but we
want to respond to criticisms and to adjust, and we are willing
to work to see what changes may be constructive. We will work
with you, what changes might be constructive in helping us deal
more effectively with the caseload.
Senator Murkowski. I appreciate that openness and we do, I
am sure, look forward to working with you and the others who
have testified here today as we try to resolve these issues.
You had also indicated--your comments were more to the
stress on the administrative structure and I think, certainly
in the presentation that I made and the Chairman here, our
concern was more to the delay to the litigants, the justice
delayed is justice denied approach. And I can appreciate that
from an administrative point of view, we do need to be
conscious of the costs. We do need to look to administrative
efficiencies.
But my constituents, again, are more concerned about when
is my case going to be heard? We want to be able to answer to
them and to respond to them.
You have indicated that you had used to the court's benefit
technology, and that is necessary and it is important, but I
recognize that even with all the advantages of the technology
that I have at my disposal, I still have to read my clips. I
still have to read my briefs. I still have to do that work.
There are things that technology cannot make efficient. All of
you judges sitting there know that you have to do the
listening, you have got to do the reading, and no amount of
BlackBerrys or computers are going to speed that up.
Have we gotten to the point where we have utilized t
technology as much as we can, but still, because of the nature
of our courts and because of the process that requires that we
have a human brain to process it at the final outcome, how much
more can we squeeze out of the Ninth?
Judge Schroeder. Oh, we have learned to work smarter,
Senator, and we have learned that when you have a volume of
cases that have repetitive issues, that there are ways to deal
with them that give adequate consideration, full consideration
to those issues and yet still permit similar cases to, once the
critical issue is decided, to be handled expeditiously. And
there are ways that we have been able to do that and we can
continue to do it.
Other courts have done the same, because the volume of
cases both in the State courts and the Federal courts has
increased and we have adjusted to it and we have been aided
greatly by technology and by new means of communication. But we
also are very concerned, as Judge Kozinski has said, about
maintaining very good relations with each other and I think we
have superb relations with each other in the Ninth Circuit.
Senator Murkowski. It makes you wonder, though, when we
count cases, it is just one, two, three, four five. But, in
fact, one immigration case might be very similar, an Alaska
lands issue that relates to laws that judges who have an
expertise in immigration cannot be possibly able to prepare in
a quick time period and I think this is where some of the
frustration lies, is that all cases are not equal in terms of
counting for caseload purposes. You have some, as was
mentioned, whether it is an antitrust case or whatever the
issue is, where we are trying to say in looking at a caseload
that a number is a number and that there is some equivalency
there and I don't think that that is necessarily the situation
that we are faced with.
It is something that when we are looking to Senator
Feinstein's concerns about how we get to parity with caseload,
that might be something that we need to review, as well, is the
types of cases that are coming to us. If the types of cases
that are coming out of Arizona and California are 85 percent
immigration-type cases, how does that mean we might want to
account for and move those cases around? Any comments on that?
Judge Kozinski. There is no doubt about it, Senator, that
Arizona and Nevada have a great deal more in common with
California than they do with Alaska. That raises the question
of what sense it makes to have a circuit that starts out at one
end of the Mexican border and ends at the other end of the
North Pole.
The beauty of the current Ninth Circuit is that there is
not a single State that has a common interest with no one in
the circuit. We have California. California has a border with
Mexico, but so does Arizona. We have water problems, issues
which I understand is not a big issue--
Senator Murkowski. We want to solve your water problems.
Judge Kozinski. Senator, you do that and you can take away
a judgeship.
[Laughter.]
Senator Murkowski. Is that a promise?
Judge Kozinski. But it is not a big issue in Montana. It is
not a big issue in Alaska. It is a huge issue and a huge shared
issue in Nevada, Arizona, and California.
Timber, frankly, is not a big issue in Arizona, I don't
think, but it is a big issue in Washington and Oregon--it is
not in Nevada, either--and in California.
The beauty of the current makeup of the Ninth Circuit is
that all of us have to be experts in some areas. I am very
proud to say that sitting right here at the front table and
behind us, including Judge Kleinfeld, each of us, I think--and
again, I don't want to brag for myself, but just to speak for
my colleagues--I consider each of them an expert in immigration
law. Now, this may seem a simple subject to you, but believe
me, it is an intricate field that requires a great deal of
expertise and a great deal of understanding. And each of my
colleagues, and I hope I also include myself, is not simply
just familiar with it, but actually knows it quite well.
Now, I think it would be a great loss, and I think that
experience learned from, in Judge O'Scannlain's case, 19 years
on the court, Judge Kleinfeld, 15 years on the court, would be
lost because there would not be very many immigration cases
coming out of the 12th Circuit. What we are doing is then
having a bunch of rookie judges deciding these cases. It may
seem easier than your conspiracy cases and than your no-
conspiracy cases, but trust me, Mr. Chairman, they are hard.
They are much harder than you would imagine.
What we have in the circuit now, where each of the judges
is a generalist and at the same time is an expert. But we have
no case, no State that has a single interest that isn't shared
by at least one other State. This is a strength, Senator. This
is a strength we should not give up.
Senator Murkowski. Let me ask you just very quickly down
the line--
Chairman Sessions. Go ahead, if you will be brief and--
Senator Murkowski. I will be very quick and I will ask
everyone to, as well.
Chairman Sessions [continuing]. If you ask your question
and the answers will be brief--
Senator Murkowski. You all have years and years of
experience on the bench. Since coming to the Ninth Circuit,
what has the increase in caseload done to your quality of life?
Judge Schroeder, we already know that you are giving up your
anniversary to be here to testify and we do appreciate that,
but what does it mean to your day?
Judge O'Scannlain. Well, a very practical answer in my
case, I came on in 1986 when we were doing about 180 cases per
judge per year, which meant that I was responsible for about 60
decisions, 60 opinions per year in the late 1980's. Now, we are
well past 500 cases per judge. We have tripled our productivity
and we have enormously expanded the amount of time that it
takes to get to maintain that.
The one thing that I will say is common to this court, but
it is no different to any other court, is that I think we have
an enormously strong work ethic and we really work very, very
hard to try to bring those numbers down. That is why it is so
embarrassing for us to be known as the slowest circuit in the
country, because it is not from any lack of effort on our part,
at least in terms of the judges that are here now.
The problem is the load. It has tripled in my lifetime. If
you go back to Judge Browning, who was appointed in 1960, it is
probably a tenfold increase in load.
Senator Murkowski. So yours has tripled?
Judge O'Scannlain. Yes.
Senator Murkowski. Judge Tallman?
Judge Tallman. The biggest supporter of the split is my
wife and it is because she never sees me. I travel, on average,
between case and court Committee work, at least half of each
month, two out of 4 weeks. And the caseload has increased by 70
percent in the 5 years that I have been on the court, 2000 to
2005. You bet that has an adverse impact on the family life of
our judges. There is a limit, there is a breaking point beyond
which machines cannot replace human endurance and families
suffer. I know your families pay a high price, as well, for
your sacrifice.
Senator Murkowski. Did you say you live in Seattle?
Judge Tallman. I do.
Senator Murkowski. And yet you said you only had 5 days
last year--
Judge Tallman. Five days. I sat hearing cases in Seattle 5
days last year. The rest of the time was in California or some
other part of the circuit, and that does not make my wife very
happy.
Senator Murkowski. Judge Schroeder or Kozinski?
Judge Schroeder. The tip of the iceberg is the time that we
spend in court hearing cases, because we do our work in the
chamber, and the court does not sit in Phoenix, so I spend all
of my time in hearing cases outside of my home chambers, but I
am able to do that because I am able to travel and I have
learned to do it.
I regard it as the greatest honor and privilege one can
have, to be a United States Circuit Judge. I regard being a
United States Circuit Judge of the Ninth Circuit as the best
job that the law has to offer. I regard the diversity of the
geography, the people, the joy of working with colleagues who
are smarter than I am is wonderful, and one of the greatest
experiences I have is when I am able to travel to Alaska. I
have done so with my husband several times. It is a wonderful
place and it--
Chairman Sessions. Judge Schroeder, our vote is down to one
minute, I think--
Judge Schroeder. Excuse me.
Senator Murkowski. Thanks for the compliment. I appreciate
it.
Chairman Sessions. and they are not going to carry them
much longer. They are getting serious. Obviously, we don't
think they are real serious, but they are more serious, and so
the extra time that we sometimes have--and Judge Kozinski,
thank you--
Judge Kozinski. My answer is very simple. When I got
appointed 20 years ago, I got about 4 hours' sleep and I still
get about 4 hours' sleep. I insist on it. I don't care how hard
the work is. I am going to get my 4 hours no matter what.
[Laughter.]
Chairman Sessions. One thing I would note under the bill as
I see it that Senator Murkowski has proposed, a new Ninth
Circuit, yes, the new 12th Circuit would have 340 cases per
judge, but the new Ninth Circuit with their new judges would
have its caseload fall from 560 to 511, and that would not be
out of line with at least half a dozen other circuits.
I wish we could continue this. Our other panel, let me tell
you, sometimes we have been able to work back and forth between
the votes. I don't think--they are keeping the time tighter
now. We are supposed to have five votes. That can mean almost
an hour. Our goal would be to be back here in about 45 minutes
to have the next panel, but I am sure it will be at least 30
before we get back. I apologize.
[Recess.]
EVENING SESSION[6 p.m.]
Chairman Sessions. The Committee will come to order.
That spasm called a series of votes took longer than it
should. While Senator Murkowski and I were working away, they
were voting and we missed the first of the votes. It wasn't
close, it didn't affect any outcome, so you have to get there.
But then they slowed down. If they had moved on at that same
speed, we would have been here sooner and I apologize very much
for interrupting what has been a remarkably interesting and
important hearing, I think.
So we have our second panel. Senator Feinstein told me she
will be here. She was just voting when I was and perhaps some
of our other members will be able to return.
On this panel, we will gain more insight into the Ninth
Circuit as we will explore the possibility of housing a new
12th Circuit in Phoenix, again, without having to build a new
courthouse to do so.
We will hear from four witnesses. The first witness will be
Judge Andrew Kleinfeld, appointed to the Ninth Circuit in 1986.
Judge Kleinfeld traveled all the way from Fairbanks, Alaska. I
saw Senator Stevens just a moment ago and told him you were
here.
The second witness will be District Judge John Roll,
appointed to the United States District Court in Tucson in
1991, and we will hear from Judge Sidney R. Thomas, appointed
to the Ninth Circuit in 1995, and from Chief Judge Emeritus
Marilyn Huff, appointed to the U.S. District Court for the
Southern District of California in 1991.
Senator Murkowski, we are glad you are here. Thank you for
coming back.
Judge Kleinfeld, we will start with you, and we will try to
keep this to 5 minutes. It is getting late. But if you need
time to wrap up, that will be all right.
STATEMENT OF ANDREW J. KLEINFELD, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, FAIRBANKS, ALASKA
Judge Kleinfeld. Thank you, Mr. Chairman. I very much
appreciate your inviting us and allowing us to be heard on
this, and I am especially proud and grateful as an Alaskan to
see my fellow member of the Alaska Bar Association, Senator
Murkowski, in this august body. I really appreciate it.
The basic theme of my colleagues who oppose a split is if
it ain't broke, don't fix it. It has been just the way it is
since 1891, except that we added Hawaii to it, and that is not
that long a time and nothing much has changed that requires a
change of the Ninth Circuit.
My basic theme is, there is no reason to hold the other
States hostage to California. California is so big that it
cannot be part of a traditional appellate court. Any appellate
circuit that California is a part of has to be different from a
traditional appellate court. There is no help for that, but
there is no reason to impose it on everybody else.
The big question, I guess, if you are trying to decide
which advice to take is, is it broke? Has anything changed
since 1891? Well, five Supreme Court Justices, disinterested
persons who are more expert than anyone else in the quality of
our work, say that it is broke, the late Chief Justice
Rehnquist, Justice O'Connor, Justice Scalia, Justice Stevens,
and Justice Kennedy, who served on our court. Now, that is a
very broad spectrum of the Supreme Court. There is nothing
ideological about that group of five.
What I think is notable to them is not even the rate of
reversals, but the rate of nine-zero reversals. If a court gets
reversed five-four, there may be philosophical differences.
When you get reversed nine-zero, that is not a philosophical
difference, that is a mistake, and we are a real leader in
nine-zero reversals. That is a bad thing.
The White Commission also said that, after its considerable
study, the Ninth Circuit was too big to be a practical
appellate body. It recommended that for appellate
decisionmaking purposes, the Ninth Circuit be divided into
three divisions. My impression is that the White Commission
report--I don't really know anything about politics and you do,
but my impression is that it was dead on arrival because it
proposed to split California and it was terribly complicated,
but they just didn't think it was practical to have such a big
circuit all sitting together.
Judge Richard Posner of the Seventh Circuit did one of
those quantitative economics analyses that he is famous for and
concluded and demonstrated in his article about it that the
high error rate of the Ninth Circuit, and by error, he is
thinking nine-zip reversals, is caused by excessive size. He
looked at all courts, and basically, bigger court, more
mistakes.
Why? It is plain and simple. We are too big to rehear cases
en banc and we are too big to read each other's decisions. What
Senator Murkowski said is absolutely right. The technology
doesn't do you any good. The problem isn't getting it into our
computers, it is getting it from our computers into our heads.
They say your head size grows when you become a judge, but it
doesn't grow enough to hold everything that is coming from all
the other judges.
I suggest to you that the draws on our court, combined with
its size and its partial en banc, make the law a game of chance
in the Ninth Circuit and law should not be a game of chance,
and the Supreme Court can't fix our mistakes. Eighty cases a
year, their docket, isn't enough to fix whatever mistakes are
in 8,000 decisions of the Ninth Circuit. Too many balls are
flying at them.
As for how to split it, my own view is you have got two
choices. You can split it into two like the bill pending and it
is just like the split of the Fifth into the Fifth and the
11th, perfectly practical, but we will be back because Nevada
and Arizona are growing so fast.
You can split into three, Alaska, Washington, and Oregon in
one circuit and the remaining States in the other, or you could
add Montana and Idaho to the Northern Circuit. It doesn't much
matter. Adding them to the Northern Circuit makes some sense
because Arizona and Nevada are the fastest growing States in
the country. If you do that, then both of those circuits become
very much like the Tenth Circuit in size.
Senator Feinstein is right that California needs a lot more
judges. We need 21 judges for California's caseload now. We
asked for ten in the fall of 1992, after asking for zero in
1990. In the fall of 1992, we asked for ten. Our caseload is
vastly greater than it was then. But it can't be a traditional
court with so many judges. It is just an address list or a data
base from which you draw courts.
Even though it has to be different from the other circuits,
there is no reason that the law and the legal system has to be
different in all those other States. What is worse is, if you
try to keep everything together, it can't be done right. Right
now, a judge on the Ninth Circuit sits in Alaska about once in
eight years. There is no way that a Ninth Circuit judge can be
sufficiently knowledgeable in the unique Federal law applicable
to Alaska, sitting that infrequently. The Alaska National
Interest Lands Conservation Act, the Alaska Native Claims
Settlement Act, Indian law is totally different in Alaska from
every place else. It can't be done. The cases are especially
big and complex.
And as for the size, I can't even call people in Phoenix on
the phone for a lot of the day because there is a 1-hour time
difference and a 2-hour time difference for half the year.
Finally, to wrap up, I have never understood why this is so
controversial. We are not talking about seceding from the
Union. This is more like splitting up a regional office of the
Veterans' Administration. If Congress split a regional office,
you would expect some squawks from the present and the future
regional administrators, whose fiefdoms were reduced, and from
people who feared a RIF or a relocation. But if it was a good
idea for the veterans, you would do it.
This is a good idea for America, and it is entirely up to
you. The stuff about how you are attacking judicial
independence, it is nonsense. It says right here in the
Constitution that the judicial powers for cases and
controversies, and it says that the power to ordain and
establish inferior courts is Congress's. You don't need our
advice and consent.
So I urge you to do it. It has been 114 years. It is about
time, now that those other States have filled in population,
lots of it, that they have a traditional appellate court to go
to.
[The prepared statement of Judge Kleinfeld appears as a
submission for the record.]
Chairman Sessions. Thank you.
We did go over, so if you could stay with us on the time.
Judge Roll?
STATEMENT OF JOHN M. ROLL, DISTRICT JUDGE, U.S. DISTRICT COURT,
DISTRICT OF ARIZONA, TUCSON, ARIZONA
Judge Roll. Good evening, Mr. Chairman and Senator
Feinstein and Senator Murkowski. First of all, on behalf of all
the members of the panel, I want to express our appreciation
for the chance to be heard. I know that the first panel was
very invigorating and I know what an inconvenience it had to be
to come back and hear us and we appreciate the opportunity to
speak to you.
I am John Roll. I am a District Judge in the District of
Arizona. I am next in line to become Chief Judge. That will be
next year. Attached to the materials that I submitted in my
written testimony is a letter from former Chief Judge Robert C.
Broomfield, and he joins with me in strongly supporting the
formation of a new 12th Circuit Court of Appeals.
He also adopts the conclusions contained in the report
concerning available space for courtrooms in Phoenix. There are
two courthouses in Phoenix, the Sandra Day O'Connor Courthouse
at 401 and the 230 North First Courthouse in Phoenix. Both of
those courthouses have adequate room to house a circuit
executive's headquarters immediately, for the immediate future.
There is not a need to construct new courthouses, and the
significance of that is, of course, the figures from the
Administrative Office which were offered earlier today describe
the need for an $84 million new courthouse in the event of a
circuit split.
For the short term and even likely for the mid-term, that
is not true. For the long term, of course, the West is growing,
and as one witness has already mentioned, Nevada is the fastest
growing State in the country by percentage and Arizona is
second, so there will be growth that will ultimately require in
the long term, perhaps, a new courthouse, but not in the short
term.
Judge Browning, another former Chief Judge from the
District of Arizona, testified before you 6 years ago. In his
testimony, he said in his work with the White Commission, he
repeatedly asked split opponents, how big is too big, and when
Judge Browning testified before you 6 years ago, the population
in the Ninth Circuit was 51.4 million people. It is now 58
million people. When Judge Browning testified before you 6
years ago, the caseload of the Ninth Circuit was under 9,000.
It is now about 16,000 cases. When he testified, the median
time for decision was 14.4, and it was among the slowest. It is
now the slowest at 15.4 months.
When he testified before you, there were 28 circuit judges
that were authorized for the Ninth Circuit. There are still 28,
but another seven are being requested and really are needed. If
seven more are added, the Ninth Circuit will become three times
the size of the average circuit, active judge circuit size for
the other circuits.
This creates some problems, all related to the limited en
banc, and I would respectfully submit and incorporate my
comments on that. I think that it is structurally flawed. The
limited en banc results in only 11 judges sitting. It will be
15 after the first of the year. The votes, as I included in my
appendix to my testimony, indicate that currently, since the
White Commission, one-third of the en banc votes are by six-to-
five or seven-to-four votes. That means six or seven judges are
speaking for a court of 28. When 15 judges sit, it will be
eight or nine judges speaking for a court of 28.
It results in some odd results. First of all, because
whether a case goes en banc is determined by whether a majority
of the judges on the court vote for the case to be heard en
banc. Our court is so large, it takes 15 votes for that to
happen. There weren't 15 votes for medical marijuana, for
euthanasia, for any number of other cases that I point out and
they were never heard.
There is, in fact, a recent case, the Bactine v. Bayer
case, that was recently decided by two-to-one. There was a
ruling by a panel that the Supreme Court's Crawford v.
Washington case would be retroactive. Nine judges, including
four circuit judges who appeared before you here today, voted
for rehearing. They said five other circuits have looked at
this already and they have concluded it is not retroactive. We
should take this en banc. They didn't have enough votes. It
will probably become one of the latest cases by the Supreme
Court to be unanimously reversed when it was decided by a panel
but never heard by the full en banc.
Justice Kennedy in his letter to the White Commission said
a circuit that wants to be outside the normal scope of a
regular circuit court in the United States should bear the
heavy burden of showing that, in fact, there is a reason for
that, that there are compelling reasons, and Justice Kennedy,
who served on the Ninth Circuit, said there has been no such
showing.
If the Senate and the House leave it up to the Ninth
Circuit to decide when it is time for a split, I submit that,
as Judge Browning said, when will a circuit be too big? The
answer from the circuit will either be never or the answer will
be, we will tell you, and respectfully to the Ninth Circuit, it
is not a Ninth Circuit decision. It is a Congressional call.
Thank you.
[The prepared statement of Judge Roll appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge.
Judge Thomas?
STATEMENT OF SIDNEY R. THOMAS, CIRCUIT JUDGE, U.S. COURT OF
APPEALS FOR THE NINTH CIRCUIT, BILLINGS, MONTANA
Judge Thomas. Thank you, Mr. Chairman. I want to also thank
you and the other Senators for coming back from the vote. We
appreciate your time today and also appreciate the extra time
you are giving.
My name is Sid Thomas. I am a Circuit Judge. I have
chambers in Billings, Montana. I presently serve as the en banc
coordinator for the Ninth Circuit, the death penalty
coordinator. I sit on the Executive Committee. As I testify
here, my views are, of course, my own.
You have my written testimony and I will not repeat that,
but I did want to address a couple of issues today, and I want
to take perhaps Senator Kyl's challenge to step back a bit and
see what kind of judicial administration we want for the--how
to administer justice best in the West. If you look at the data
and step back, I think you will find that the Ninth Circuit,
and a large circuit, is the best way to administer justice
effectively.
There has been a tremendous change in the case mix of the
Federal courts, not only in the Ninth, but in particular the
Ninth, over the last 20 years. It used to be that population
growth and caseload growth were correlated. They are not. In
fact, you take away the immigration cases, our caseload has
actually decreased in the last 5 years. Every other category of
cases is decreasing. Partially, that is due to reforms from
Congress in the Prison Litigation Reform Act, the Anti-
Terrorism Act, and others. But the fact is, the caseload is
decreasing in the Ninth Circuit that is non-immigration-
related.
For some areas of the country, this has been a long-term
trend. In the Northwest, it has been completely flat for about
20 years. It has not increased, even though the population has
increased.
The reason is that we have a lot more ``pro se''s filing.
We have a lot more administrative appeals. So we cannot assume
for the future that we are going to have population increase,
caseload increase justification for additional judges.
What the case mix now means is that we need to have a
strong central staff to engage in triage and let judges do
judging. If the Ninth Circuit is split, we will take valuable
resources, we will replicate them, we will significantly
increase delay. We will not solve delay. Let me explain why
that is.
Right now, 80 percent of our cases are dealt with through
non-judicial panels, that is, cases processed through our staff
attorneys. The Ninth Circuit, because it has been able to
aggregate resources, has saved judges an enormous amount of
time in ways that other circuits have been unable to duplicate.
Let me give you a couple of examples.
We have an appellate commissioner. No other circuit has
that because they can't afford it. The appellate commissioner
resolved 4,600 motions that would have been heard by judges
last year, about 1,200 fee petitions.
Our circuit mediators resolved about 900 appeals. Now, to
put that in context, the entire output of the D.C. Circuit on
merits cases was 500 cases last year. Our mediators resolved
900 cases, and they enjoy success much greater than any other
circuit because they have critical mass.
Our staff attorneys resolved 6,000 procedural motions, and
that is done by triage to make sure that we don't have
procedural waivers, by focusing in on that. That centralized
staff is critical to handle volume.
If the Ninth Circuit is divided, no matter how it is
divided, those resources will be lost, and we know that because
we can look at other circuits and see what kind of staff
resources they have. We track cases by inventory, and so
therefore when a precedential case is made, we have resolved up
to 200 cases at a time. No other circuit has that sort of
resource.
So what is the issue now? We are looking at delay. The
Ninth Circuit hasn't been the slowest circuit over the last 10
years. The Sixth Circuit generally has, and the Second Circuit.
The White Commission found that delay is not related to size.
Our delay problem started in the early 1990's when a third
of our court was vacant. We built up a delay in that period
that Senator Kyl was talking about between submission of briefs
and oral argument. We were able to bring that fairly current
until the onslaught of immigration cases. Immigration cases
have increased 570 percent in the last few years. As I said,
our other caseload has only increased 1 percent.
If you take the resources available to us and you divide
them and you strip them, it is sort of like if you have a
restaurant where you have a slow wait staff and you think the
solution is to divide the restaurant, hire more chefs, fire a
lot of the wait staff in the kitchen, it is going to be slower.
It will be significantly slower in terms of delay.
So I think we need to put this in a broader context and
look at the assets. Now, can we do things better? Of course, we
can. If you take a look at spot delays, for example, if you
take the States of Montana and Alaska with low caseloads, we
can eliminate the spot delays in those areas fairly quickly,
and those are solutions we can do without restructuring the
Ninth Circuit.
But what will happen with the Ninth Circuit is you won't
solve any of the problems. We will still have a limited en banc
system in California because that will have over 20, 25 judges.
You will still have all of the other attendant problems that
people are discussing today. You won't have solved anything.
The better approach is to, I think, reinvent the judiciary,
make it more effective. We try to do that every year. We try to
be responsive to what your concerns are and we certainly want
to work with you in the future. But I think for the present, if
you look at the data carefully, it only supports keeping the
Ninth Circuit together. Thank you, Mr. Chairman.
[The prepared statement of Judge Thomas appears as a
submission for the record.]
Chairman Sessions. Thank you, Judge Thomas.
Judge Huff?
STATEMENT OF MARILYN L. HUFF, CHIEF JUDGE EMERITUS, U.S.
DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO,
CALIFORNIA
Judge Huff. Thank you. Last but not least, I am Marilyn
Huff, the former, immediate past Chief Judge of the Southern
District of California District Court and I am also speaking
for our current Chief Judge, Hon. Irma Gonzalez. Together, we
oppose the split of the Ninth Circuit because the split will
reduce resources for the district courts, hurt administrative
sharing, result in a waste of taxpayer money, and further
splinter enforcement of our borders.
There is a reason I am passionate on the resource issue.
Senator Feinstein knows me well, as perhaps many of you do on
this issue.
Senator Feinstein. May I interrupt you for just a moment? I
didn't have a chance to introduce Judge Huff. She is a bright
star. She is an amazing judge. I have had occasion to talk with
her and to watch her and California is very proud of her. I
just want you to know that.
Judge Huff. Thank you. I share the respect for Senator
Feinstein because she is right on this issue. This is lose-lose
on the resource issue, and this is why.
Our court already experienced a tremendous increase in
caseload and then a tragic loss of judges due to illnesses and
death and we clamored for help. We were forced to rely on
volunteer judges, which is the proposal of this split. The
volunteers are helpful, but you can only do crisis management
with volunteers. You can do no long-term planning and it
doesn't work.
The split proposals, all of them, end up with 72 percent of
the work in the circuit with California, and so the split is
not fair and it is not equitable. Because of our experience,
this is a problem.
Next, splintering enforcement of our borders. We share the
border with Arizona. This would only further exacerbate the
problems. Right now, Border Patrol can bring cases either in
Arizona or in California and we have an administrative sharing
agreement. That, on one of the split proposals, would go out
the window.
Next, the issue of administrative sharing. Because of size,
the Ninth Circuit has actually done some positive things. The
Jury Committee, one of our critical components, improving
service for jurors. Our Capital Case Committee has saved
millions of taxpayer dollars by instituting rigorous case
budgeting requirements for the lawyers. It has been wonderful.
Our Fairness Committee has promoted equal justice of the law.
And then finally, we believe our Wellness Committee has
resulted in promotion of health for our most important
resource, our people.
And then, finally, the issue of cost. Because we are going
to end up with too many cases, 72 percent of the cases in one
circuit, then it is going to unnecessarily waste taxpayer funds
to duplicate the administrative staff necessary to handle a new
circuit.
So in conclusion, I believe that it is improper at this
time to have a split of the Ninth Circuit and I note that I am
ahead of my time.
[Laughter.]
Chairman Sessions. Thank you very much, all of you.
[The prepared statement of Judge Huff appears as a
submission for the record.]
Chairman Sessions. I guess I want to say, everybody has got
numbers and everybody has facts. I remember one time in Alabama
there was a dispute within the Republican Party about whether
the Presidential electors should be given based on a winner-
take-all or a proportional representation. We heard the other
day California is still winner-take-all. So they had this big
fight and they made the most eloquent arguments. But when it
was over, everybody that was for Ronald Reagan voted for
winner-take-all because they knew he was going to get the most
votes, and everybody that was for George Bush voted the other
way because they wanted at least a few of the votes. I don't
know why that made me think of that.
[Laughter.]
Chairman Sessions. I almost want to say, why are you really
for splitting and why are you really against splitting?
Let me ask a few questions and I will pass on my time.
Judge Thomas, both you and Judge Huff say that you think
somehow there would be--you say in your written statement there
would be an increase in delays and a reduction in access to
justice.
Judge Thomas. Yes.
Chairman Sessions. That did not happen when the Fifth
split, and, in fact, they have the most efficient circuit, the
11th and the Fifth, too, are two of the most efficient,
productive circuits there are, both of which, if I am not
mistaken, the Fifth has 567 case per judge, more than the
Ninth, and the 11th has 642 cases per judge, 40 percent more
than the Ninth Circuit per judge.
So I guess I am going to ask you really honestly, why do
you all think this is going to be some bureaucratic, expensive
deal?
Judge Thomas. Well, I do really believe that and it is not
a partisan issue on our court. On a bipartisan basis, the vast
majority of our judges want to keep the circuit together and we
are talking appointees from Kennedy through Carter through
Reagan, Nixon, and George Bush.
Chairman Sessions. But is it all because of money?
Judge Thomas. No, it is not just all--and the reason, if
you look back to what happened when the Fifth was split, as I
mentioned, the case mix was so different. Every case was
argued. Every case was a real case. Now, 40 percent of our
cases are pro se and it takes a lot of staff to get through
those cases. If you have a pro se case in chambers, it takes a
lot of time for judges and for the law clerks, the available
law clerks. We have an effective pro se unit and we require
every pro se case to go through that. That is 40 percent of our
cases. That is about 5,000, 6,000 cases last year in the Ninth
Circuit alone.
So things are far different, and what I think the 11th
Circuit figures suggest is that we have some room on our court
to be even more efficient before you need to split. If you can
get those numbers up, we still have a substantial reduction--
Chairman Sessions. You want more judges, I mean--
Judge Thomas. Well, we do, but, you know, it is not the key
to get more judges. I think if--it is like too many chefs,
really, at the restaurant. If you have more judges and they are
forced to--
Chairman Sessions. Well, why do you not want to split it? I
mean, OK, you are saying we can be more efficient and we don't
need a lot more judges. But what is it that causes you to draw
back from what from my perspective is the perfectly logical
thing?
Judge Thomas. If it would solve the problems and if I
thought it would, I certainly would support it. But, in fact,
it is going--
Chairman Sessions. What problems? I mean, I am just saying
collegiality, coherence in your opinions, less reversals by the
Supreme Court, perhaps more ability to hold--we heard from the
Chief Judge--she is back there shaking her head, but we heard
from the chief judges of the Fourth Circuit, the chief judges
of the 11th Circuit passionately argue that they think 12, 13,
is really getting large, and if you get much larger than that,
you can't operate a court effectively, and they would never--
Judge Thomas. They didn't have our experience, though. We
are able to get along collegially quite well. I see my friends
and colleagues much more than I do the district court judges
who are across the alley from me. We talk all the time. We do
have a fairly close-knit circuit. So despite those fears, we
have--the 11th Circuit has survived because of their very heavy
reliance on visiting judges. That is the tradeoff they made.
They have a third of their published opinions involve visiting
judges and they decided to expand that way, which, of course,
is an option to us, but we haven't used visiting judges to the
extent that the 11th Circuit has.
Why am I really against it? Because I think we understand
that if this is split, California and the Arizona-Nevada
sections, we will be in such a deep hole, we can't dig out in
our judicial lifetime, both administratively--
Chairman Sessions. What do you mean, you can't dig out?
Judge Thomas. The caseload. Right now, we are doing quite
well with the caseloads, but if take away--
Chairman Sessions. I have already gone beyond my time, so--
Judge Thomas. But if you take away those essential tools
that we have to deal with the case management now--
Chairman Sessions. Why would they take those away?
Judge Thomas. Because they aren't available. Those
resources aren't available in smaller circuits. The judiciary
budget is based on--
Chairman Sessions. Well, let us stop there. Why would they
take away what you have already got, and why would we take
money from a district court that has no real--I mean, you are
just going to try the same number of cases and they are going
to appeal the same number and it is going to go up there. Why
are you worried? I don't understand this.
Judge Huff. Could I answer?
Chairman Sessions. I think there is something more at stake
here.
Judge Huff. Could I answer that? Because of our experience,
the formula for funding the judiciary primarily comes from
number of authorized judges, not from your caseload. So if the
California circuit has 72 percent of the cases, they will not
get the same proportion of resources and so you are not able to
then have staff--
Chairman Sessions. What does that have to do with the
District Court in the Southern District of California, your
district?
Judge Huff. If the circuit is--we care about delays of our
caseload.
Chairman Sessions. Well, all right. So you are speculating
that they are not going to get enough, but this bill calls for
seven more judges for the--
Judge Huff. You could pass seven more judges tomorrow with
delinkage, which the Judicial Conference says, don't link the
two together.
Chairman Sessions. OK. So that is what you would prefer.
OK. My time is up and we have got--
Judge Thomas. May I finish, just one quick additional
answer--
Chairman Sessions. All right.
Judge Thomas [continuing]. Is that we have been talking
about the circuit court, but I think Judge Huff makes an
excellent point on the district courts because you are
splitting up the district courts, as well, and from--
Chairman Sessions. They don't work together. District
courts don't--
Judge Thomas. If I might, one of the reasons it is
important to district courts is that we have the flexibility
now, which you don't have with intracircuit--as easily with
intracircuit honing of judges. We sent judges down to help out
when they had problems in the border States in Arizona and San
Diego. We were down to one active judge in Montana and we were
parachuting judges in at the last minute, and we could do that
because we would pick up the phone and people could call
judges.
On the other hand, dealing with another circuit is entirely
different. The Tenth Circuit--Montana borders Wyoming on the
Tenth and we border the Dakotas on the Eighth. We couldn't get
any judges out of those circuits and they didn't want to come
for a lot of reasons, but one of them is, well, they say that
is different circuit law. It was too cumbersome to get through
the administrative procedure.
But because judges have relationships, they can pick up the
phone and do it, and we know there are going to be spot
problems, whether it is on the border States, whether it is
caused by the Exxon Valdez, whether it is caused by simple
judicial vacancies.
So for the district courts, it has been a great resource.
And the other thing for the district courts is smaller circuits
don't have the resources in terms of courtroom management
architects and so forth. In Montana, we have benefited greatly
because we have a circuit architect who came in and said--
Chairman Sessions. Well, those are reasons, but I don't
know. I remember that one of the best judges we used to get was
from California. He would come down to Mobile to try cases
every year because he was a National Fellow of the Camellia
Society, and when we had the camellias in season, he came down
and contributed wonderfully.
Judge Thomas. Yes. We entice people up with fly fishing in
Montana.
Chairman Sessions. People go all over the country, I know
that. They go to Miami. They line up sometimes to go try cases
there.
But my time is over. Senator Feinstein?
Senator Feinstein. Thank you, Mr. Chairman.
See, this has become so difficult because the feelings are
so strong about it and it is very hard to ferret it out. I
mean, I have two concerns. One is, anyway, let us say
California ends up with Hawaii, Guam, and the Marianas. It
still is essentially one big State with 72 percent of the
circuit, and even with the new judges, 60 percent of the
resources. That is a problem that has to be worked on. That is
unacceptable on its face.
But the thought, Judge Thomas, that you would lose those
appurtenances and technology and assets that you have as part
of a split, I don't quite--how would that happen? I mean, you
could draft a bill so that you keep them.
Judge Thomas. Well, let me explain why, and that is because
there is a formula that drives judiciary budgets and we know
what circuits can afford and what they can't afford and we know
what they can afford based on their size, and you look at what
other circuits have been able to afford and what they can't.
They have to fund essential services, clerks' offices, circuit
executive offices, human resources, procurement, so forth.
We have been able to aggregate resources and economize
because we don't need to duplicate all of those positions. You
look around the United States. No other circuit tracks cases in
inventory.
Senator Feinstein. So no other circuit--
Judge Thomas. No other circuit tracks their cases with an
inventory system. No other circuit has an appellate
commissioner. No other circuit has the success of our
mediator's office because they have some critical mass. So we
do have a model and--
Senator Feinstein. Could you put that in writing for me?
Judge Thomas. Yes.
Senator Feinstein. In other words, what the circuit
believes they would lose that they have that is indispensable
with respect to the 72 percent of the cases they would have.
Judge Thomas. Well, sure. And then to go on, it is not just
the caseload, too, it is the type of case, as you discussed
before. The death penalty cases pose a significant resource
problem for us and those would be inequitably distributed in
any circuit split.
Senator Feinstein. How many death penalty cases do you have
in a year?
Judge Thomas. Well, it varies from year to year, but I can
talk in the aggregate because we can look in the future.
Obviously, there are over 600 inmates on death row in
California. There are about 125 in Arizona. There are perhaps
70 in Nevada.
If you look at the division of the death penalty cases
alone between the different circuit configurations, if you take
the present cases that are in the Federal system, 50 percent of
the load would be California, 50 percent in Arizona, probably 1
percent or so in the Northwest if you split it that way. Long-
term, you have got 60 percent or more cases--65 percent, I
think, is the figure that will come out of California, 35
percent or so in Arizona, and those cases by our weighting
system are weighted 24. They are very complicated cases.
So it is not just the caseload. There is a disparity in
terms of case complexity and the resources needed to have that.
We are fortunate enough to have death penalty law clerks and
death penalty assistants. Judge McNamee and others, Judge
Moskowitz out of your district, have monitored the budgets of
those cases and they have saved us millions of dollars and that
is on their own time, and those are the district judges who
give of their time. Those are the kind of resources we lose
because people just don't have time anymore, and that has been
a tremendous cost savings.
So, yes, it is going to be imbalanced on the death penalty
side and also, I think it is going to be a lot more poorly
administered.
Senator Feinstein. So essentially, what you are saying is
because of your size, you have built a system which is
irreplaceable and on which you depend for any modicum of
efficiency--
Judge Thomas. Precisely.
Senator Feinstein [continuing]. So that becomes important.
Let me ask you another question. In terms of community of
interests, are the community of interests between California
greater with Arizona and Nevada or Oregon and Washington?
Judge Thomas. I think it depends on the issue involved. Of
course, California was the source of all of the law for the
Ninth Circuit originally, so they started with the field code.
But if you talk about, for example, the fisheries issue, the
issues concerning--any of the coastal issues, California has
more in common with those in the Northwest, going up to Alaska.
If you are talking about Native American issues, those issues
involve not only Nevada and Arizona, but in Montana. Alaska is,
as Judge Kleinfeld said, somewhat different.
Senator Feinstein. How do you respond to Judge Kleinfeld's
argument that Alaska has issues that no one else shares?
Judge Thomas. We all have issues that are unique to our
States and we take time and a lot of study to make sure that we
understand it because we are administering national law as it
affects those issues. There are acts particular to Alaska, to
be sure, but we are administering and interpreting national
statutes.
Senator Feinstein. How about water in terms of the
community of interest?
Judge Thomas. Well, there are water issues in Montana all
the way down through. The water is a critical issue that
unifies the States. Grazing issues, forestry issues, we have a
lot of issues in common among the States in the West that
aren't shared perhaps in the East but are common to all of our
States. And so the resolution of those issues in California or
Arizona or Nevada or Montana are very important and needs to be
consistently applied.
Senator Feinstein. My time is up. Thank you. Thank you very
much. Thanks, Mr. Chairman.
Chairman Sessions. Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
I want to continue along the line of questioning in terms
of the resources and the concern that if we were to split,
there would be a loss of resources. Under the legislation that
I am proposing, the new Ninth, which California would stay,
would still be the largest circuit in terms of caseload, in
terms of population area, and in terms of judges. So we are
going from a situation of being really, really, really big to
just being really big.
But you still have access, and I appreciate how the formula
works. It is complex and we are not going to try to explain it
here other than to acknowledge that there is a formulaic
equation that is out there and the authorization of the judges
is very critical in terms of the funding. But you would still
be the court or the circuit with the highest authorized number
of judges, and from what I have heard, Mr. Chairman, I think if
there is one thing that both the proponents of a split and the
opponents of a split can agree to is that more judges in the
areas of the country where we are growing the fastest would be
helpful and it is something that we should work to do.
I appreciate what you are saying about the complexity of
the cases and it goes to my point to the first panel that we
really just can't count the number of cases in looking at a
caseload, that there is a weighting that would be appropriate
depending on complexity. I think it again goes to the issues
that we have before us. We can't just look at the pie charts
and the graphs and say, well, this is what we need to do. It is
complicated. It is complex.
But I guess I will be leaving this hearing today with three
kind of findings that I have written down, and I think you
articulated this, Judge Roll. Is it broke? I think that there
are enough people in the Ninth Circuit and across the country
that are looking at this and saying, yes, it is broke. I do not
feel good telling my constituents that it is an accepted fact
that, on average, you will have to wait 15-plus months for
disposition of your case and that is just the way it is because
we happen to live in the West. I don't think we should accept
that as a given. I think we should try to do better. So how do
we do better?
And then the second thing I am walking away with is, how
big is too big, because I did hear Chief Judge Schroeder say,
maybe we are not there yet, but that she would retain an open
mind that we might 1 day get to that point in her opinion where
it was too big, too unwieldy. But when we are at a circuit that
is at 58 million and growing, and if we were to split that
circuit, you still have a circuit that has close to 38--it is
37.5 million in the new Ninth and 20 million in the 12th. The
numbers, I think, are staggering, in my opinion.
And then the third point that I am leaving with, Mr.
Chairman, is certainly the recognition and the need to do more
to assist to get additional judges out in the West.
I am talking rather than asking a question and I think we
are probably at that point in the evening where we are ready to
call it a day, but I thank you for the hearing this afternoon,
and to each and every one of you that has traveled so far and
who gives so much, who gives so much to your State, to your
circuit, to this country, I really appreciate what you do. I do
hope that we are able to sit down and really evaluate what the
options are. If this split doesn't work, doesn't make things
better, then let us look at other options, but let us not just
close the door and say, no further discussion. I think that
this has been very productive and I appreciate the testimony
that we have heard.
Thank you, Mr. Chairman.
Chairman Sessions. Thank you, Senator Murkowski.
I would just like to ask a couple of quick things before we
wrap up. Judge Roll, you studied, I know, carefully the Hruska
and the White Commission reports. Would you share with us your
comments, particularly as they relate to Judge Thomas'
evaluation of those reports? Do you have a different
perspective on them?
Judge Roll. I do, Mr. Chairman, and I believe that it was
also referred to in one of the other written statements in
opposition to the split. Senator Hruska's commission
recommended a split of the Ninth Circuit. This was previously
recommended. This was in 1973. They recommended two splits, the
Fifth Circuit and the Ninth Circuit. Only the Fifth Circuit
ended up being split.
The White Commission recommended three semi-autonomous
divisions. I think it is important to recognize that Chief
Judge Hugg, who was the chief at the time that the White
Commission's report was issued, said this is a de facto split
of the Ninth Circuit and there is no reason, there is no need
to do this. The White Commission, in fact, Judge Hugg wrote,
and I think it was the University of California-Davis Law
Review article that was published in the winter of 2000, said
the White Commission didn't meet its burden in showing that we
needed to make these changes.
I think it shows two things. First of all, I think it shows
that the White Commission was not a clean bill of health for
the Ninth Circuit and, in fact, recognized there were serious
problems. I think it also represents the attitude of some of
the people who oppose the split, which is we will tell you when
it is time for a split of the circuit.
Chairman Sessions. It is interesting, and I believe it was
Judge Kleinfeld or one of the other witnesses--the day is
long--that indicated that the Judicial Conference has moved
from opposing the split to being neutral on the split, is that
correct?
Judge Roll. That is correct.
Judge Schroeder. No, it has never opposed the split.
Chairman Sessions. Oh, it has not opposed it?
Judge Schroeder. It didn't take a position.
Judge Roll. I am sorry, Senator. My recollection is, and I
believe that it is cited in the materials, the Judicial
Conference previously did oppose a split. It is in the White
Commission report. If you look in the White Commission report,
it indicates that the Judicial Conference opposes a split. That
is my recollection.
Judge Kleinfeld. I think they said no court should be split
without its consent, but this time, they said--
Chairman Sessions. They read the connotation subsequent to
that?
Judge Roll. Yes.
Chairman Sessions. Let me ask you, Judge Roll, about a
housing plan in Phoenix. Your Appendix E is very helpful on
that subject. It lays out four alternatives that could be
pursued at very little cost. You also include your letter from
Judge Broomfield, which agrees with the findings of the housing
plan alternatives report. Why would Judge Broomfield's report
be worthy of particular weight?
Judge Roll. Well, Judge Broomfield was the Chair of the
Space and Facilities Committee at the time that the U.S.
Courthouse Design Guide was actually formulated and he is
intimately familiar with it. As the presiding judge in Maricopa
County on the Superior Court and also the Chief Judge in the
District of Arizona, he has been involved in courthouse
construction projects, including in the Sandra Day O'Connor
Courthouse. And, of course, he has gained great familiarity
with courthouse construction projects and courthouse needs
through his work as the Chair of the Space and Facilities
Committee.
I can't imagine anyone deserving of more weight when he
says, first of all, that there is available space in either 230
or 401 in Phoenix, and secondly, that the estimates that were
previously given about how much space was required are about
20,000-plus square feet high.
Judge Kleinfeld. Senator Sessions, could I add just a word
to that?
Chairman Sessions. Yes, and would you, if you would like to
share a thought about the AOC's report--
Judge Kleinfeld. I do.
Chairman Sessions [continuing]. Which I thought
breathtakingly tilted.
Judge Kleinfeld. I do. I--
Chairman Sessions. Would you agree with that?
Judge Kleinfeld. Well, here is the thing. You have got a
unique opportunity right now for an odd, coincidental reason.
Three district courts in critical places--Seattle, Portland,
and Arizona--have just moved into new courthouses. What that
leaves you with is three empty or nearly empty courthouses in
the critical places to put circuit headquarters, whether you
split it two ways or three ways. You can do it basically for
free, or close to it by Federal Government standards.
[Laughter.]
Chairman Sessions. Well stated.
Judge Kleinfeld. If you look at page six of the AO's
report, of the exhibits attached to it, here is the gem. Bottom
line, $94,698,936. Line if you go up a ways, new courthouse
construction, $84,394,500. You will need to do that if you
split the Ninth Circuit in 5 years because those abandoned
courthouses, either they are going to be filled up or they are
going to be excessed. My chambers is in a former Federal
district courthouse that was excessed. It is now commercial
space. But if you do it now, you don't need to spend $95
million. You can spend $5 or $10 million.
Chairman Sessions. I also was frankly troubled by the fact
they threw in the proposal of seven new judges, which are
probably needed for the circuit anyway, as a cost of the split.
I mean, I don't think you--so there are several things that
made those costs look high.
Judge Kleinfeld, tell me, as I understand it
mathematically, there are 15,000 possible combinations of
judges on the Ninth Circuit today who might become a panel to
hear a given case. Would you share with us your thoughts about
why that makes uniformity and coherence in the circuit more
difficult?
Judge Kleinfeld. Well, the greatest scholar of the common
law process was Carl Lewellen, a professor at the University of
Chicago. What he explained in his treatise and his many other
writings was that the key to it is reckonability. All the law
cannot be made by a court for any jurisdiction.
Now, when I was a practicing lawyer in Alaska, I could
predict what our Supreme Court would do, not just on the basis
of its precedents, but because by reading its opinions, I knew
the minds of each of the justices and I knew what they were
going to do when they didn't have a precedent and I knew when
they were going to abandon a precedent. So it means that my
clients could avoid paying me a lot of money to litigate things
because the outcomes were very predictable. Good lawyers were
not surprised much.
When you have got these tens of thousands of possible
combinations of judges and a gigantic, philosophically
disparate court, when you basically just have a data base from
which judges are drawn randomly, until you know your panel, you
don't know the outcome.
As far as consistency and coherence goes, if we can't even
read each other's decisions, how can we be consistent and
coherent, and for the unpublished ones, it wouldn't matter if
we did read them because they are so terse. We don't put in the
explanations and the facts. You wouldn't know if they were
consistent or not.
Chairman Sessions. But you publish 670 a year. Is it
realistically practical for a practicing attorney who wants to
keep up with the circuit to read those advance sheets, read
those opinions?
Judge Kleinfeld. Justice Kennedy said that when he was then
Judge Kennedy on the Ninth Circuit, it was impossible, and that
was back when we were a lot smaller. The other justices who
wrote letters said they didn't see how it was possible.
Chairman Sessions. Well--
Judge Thomas. If I might add one thing, Senator, though,
the Eighth Circuit has more published opinions than we do total
and only 11 judges, and the Seventh Circuit just has about the
same number. So size isn't necessarily related to number of
opinions. The attorneys and the judges on both the Eighth and
the Seventh Circuit have to read the same number of opinions we
do.
Chairman Sessions. But it would be rather obvious that they
are publishing more opinions than you are--
Judge Thomas. On a percentage basis.
Chairman Sessions [continuing]. Which I salute you for not
over-publishing. I think it is a bane on the law to have too
many cases published. I really do. But I assume you pare that
number down pretty close to as low as you can get. Maybe you
could reduce the number of public opinions, but a published
opinion does have value, and as big as you are, you are going
to have to have a lot.
Thank you for all of your interest. I absolutely believe
that the American rule of law is the basis for our liberty and
our economic prosperity, our freedom, and it sets us apart from
the rest of the world. We can have international corporations
come into Alabama or California and feel like they will get a
fair day in court, that nobody is going to be able to demand a
bribe, nobody is going to be able to confiscate their property
or take their profits without due process of law. They feel
comfortable investing here, coming to this country. American
citizens feel like if they get in trouble with the law, they
will have a fair day in court. We need to protect that
heritage.
I believe personally that we could probably reach those
goals with smaller circuits, but we obviously have a different
opinion on it. I have enjoyed the hearing very much. I thank
each of you for the hard work you have gone to to give us the
best information that you can.
Senators Murkowski and Ensign and Kyl have all said that
they want to be open to how to do this. I think they are pretty
firmly convinced we need to do something, but they are open-
minded about how to do it. I will be looking to the Senators
from the circuit to give us leadership, but at some point, we
just need to do the right thing for the American people and
that is about all we can do.
Thank you very much. Have a good day. The Subcommittee is
adjourned.
[Whereupon, at 7:01 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
[Additional material is being retained in the Committee
files.]
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