November 2, 1998

Commission on Structural Alternatives for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, DC 20544

Dear Commission Members:

Thank you for the opportunity to review the October 1998 Tentative Draft Report. You are to be complimented on the obvious thoroughness and thoughtfulness of this Draft Report. I burden you further with my attached Statement out of a sense of professional and personal regard, for you individually, for your deserving efforts, and for the Third Branch in general.

Indeed, my own career has centered on the United States Courts of Appeals, more often than not, the courts "nobody knows." Thomas E. Baker, Rationing Justice on Appeal—The Problems of the U.S. Courts of Appeals 293 (1994). Therefore, I can appreciate the importance and the difficulty of your task.

On a footnoteworthy point, candor and not immodesty compels me to suggest that the final report identify the professors who participated in the March 1998 weekend research meeting. A footnote to the text might simply list our names and academic affiliations; it currently reads: "Early in its life, the Commission also convened a meeting with a small number of law professors in order to learn more about pertinent research and writings on the federal appellate system." Draft Report at 3. This credit line would be an appropriate disclosure for the public record.

Thank you for your consideration.

Sincerely,

Thomas E. Baker
James Madison Chair in Constitutional Law
Director, Constitutional Resource Center

Introduction: My name is Thomas E. Baker. I hold the James Madison Chair in Constitutional Law and serve as Director of the Constitutional Resource Center at Drake University Law School in Des Moines, Iowa. This statement, however, represents only my personal and individual views.

I appreciate the opportunity to review the Commission’s Tentative Draft Report ("TDR"). Thank you for considering my comments.

Much of my professional life has been devoted to the study and service of the Third Branch, in particular the United States Courts of Appeals. See generally Thomas E. Baker, Rationing Justice on Appeal—the Problems of the U.S. Courts of Appeals (1994). My instinct is that nothing I can say here will change the votes of individual members or affect the positions taken by the Commission. But I do want to go on record to note my preliminary reactions and to make a few suggestions. And I will endeavor to follow the Notice of the Chair to be "as brief as possible." TDR at i.

Splitting the Ninth Circuit: What to do about the Ninth Circuit was a primary concern for Congress to create this Commission, of course. I continue to believe that dividing the Ninth Circuit is not such a good idea, at least for now. Thomas E. Baker, On Redrawing Circuit Boundaries—Why the Proposal to Divide the United States Court of Appeals for the Ninth Circuit Is Not Such a Good Idea, 22 Ariz. St. L. J. 917 (1990). The proposed Ninth Circuit divisional arrangement, discussed below, is reason enough to maintain the present configuration of the circuit to allow for an important and valuable experiment. And since I would not generalize the divisional arrangement to the other circuits, as I make clear below, that is all the more reason for me to conclude that the division of the Ninth Circuit should be postponed. Alternatively, I defer to the Commission’s measured consideration of variations on where to divide the Ninth Circuit, in the event that congressional decision makers reject the Commission’s proposed divisional arrangement, although I cannot abide the idea of dividing California between two circuits.

I also want to add my voice to the chorus to disapprove of proposals that amount to judiciary gerrymandering. TDR at 6. There are good reasons and bad reasons to restructure the federal court system; there are sound policy reasons to divide circuits and to reassign states to different circuits, for example. But to pass off as "reforms" proposals that really are purposed to disapprove of some judges or some decisions—in order to manipulate the law of the circuit to coincide with some Senators’ political preferences—is not a congressional prerogative for it does violence to the separation of powers and the independence of the Third Branch. The proper way to change judicial interpretations of a particular federal statute is to enact legislation amending the statute. The proper way to affect the judicial philosophy of a federal bench is through exercise of the President’s nomination power and the Senate’s advice and consent authority.

Ninth Circuit Divisional Arrangement: The proposed divisional arrangement is an attractive alternative in theory but I think it is a mistake to divide California between two divisions for much the same reasons that the Commission was more than reluctant to divide the State between two new circuits. TDR at 50.

The Commission attempts to distinguish its divisional recommendation from the 1978 experiment in the Ninth Circuit with regional divisions. TDR at 45. There was another experiment with divisions in the experience of the old Fifth Circuit before that circuit was divided into the new Fifth Circuit and the Eleventh Circuit. The Fifth Circuit experiment suggests two cautions: first, the rules of stare decisis behind the concept of the law of the circuit became so complicated that they nearly defied description; second, the hindsighted political reality was that the divisional stage of development, implemented by the judges as an administrative experiment, almost immediately precipitated the permanent statutory division of the circuit by congressional reformers. See generally Thomas E. Baker, A Postscript on Precedent in the Divided Fifth Circuit, 36 Sw. L. J. 725 (1982); Thomas E. Baker, A Primer on Precedent in the Eleventh Circuit, 34 Mercer L. Rev. 1175 (1983). So my worries are for increasing the confusion and uncertainty in the law of the Ninth Circuit and for prematurely accelerating the momentum for formal division among judges and members of Congress.

I simply do not like the departure from the venerable principle of the law of the circuit to propose that decisions made in one division would not bind other divisions. TDR at 41. There is just too much going against the proposal. The other related reservation I have about the Commission’s proposed divisional arrangement is for the Circuit Division for conflict correction. This proposal would put an end to the limited en banc mechanism that to my mind is so problematic and ineffective and that would be an improvement. But the proposal would create a rather complex and subtle rehearing procedure from panel decisions. Panels in one division would not be bound by prior panel decisions in another division but their decision to create a conflict would be reviewable by the Circuit Division for conflict resolution. Each division would continue to rehear en banc panel decisions it deemed important or mistaken. I am not as sanguine as the Commission that these distinctions are easily made and readily distinguishable. But these are relatively small worries.

Divisional Organization of all the Courts of Appeals: On balance, however, I would support the Ninth Circuit proposal because the sunset provision in the draft statute would terminate this experiment after seven years. TDC at 40. It seems to me that Congress and the Third Branch should wait and see how this divisional arrangement plays out in the Ninth Circuit before generalizing the experiment in the other circuits and further compounding the Hawthorne effect by providing for judges in the other circuits to implement variations of the proposal. Therefore, until some time and study of the Ninth Circuit proposal have passed, I would not authorize such an open-ended and variable national experiment in all the courts of appeals.

Two-Judge Panels: This is an unworthy idea. The three-judge panel long has been the federal tradition and the American norm for appellate review. Admittedly, the quorum rule of two in 28 U.S.C. § 46(d) has been on the books a long time and works an expedient justice in exceptional cases when a panel member cannot complete an appeal but that always has been understood as the exception.

In the first place (somewhat reminiscent of the tag-line from the Pace Picante Sauce TV commercial) it seems more than passing strange to pick up an idea from the New Jersey Superior Court and then recommend it to the Congress of the United States after noting that none of the other 49 States have borrowed the idea. TDR at 54. The throwaway line in the Federal Courts Study Committee Report 116 (April 2, 1990) about experimenting with two-judge panels likewise is not terribly persuasive an authority for generalizing such a pronounced departure from a central norm of appellate procedure.

One fewer perspective on the appeal might diminish the quality of the particular decision or the overall quality of appellate decision making. It might develop some subtle pressure on the part of the judges not to disagree to avoid bringing in the third judge. It might increase the untoward influence of staff attorneys and in chambers law clerks based on the background assumption that the appeal has been screened to be so straightforward or unimportant as not to be worthy of much attention from the two judges. There are many times more permutations of two-judge panels than three-judge panels thus possibly increasing the hydraulic away from consistency. We cannot know the frequency of one-one splits that would require a third judge and thus eliminate the administrative savings and uncertain procedural problems would need to be overcome to bring in a third judge.

In the second place, this experiment is not likely worth it. The Commission itself understands that the savings in judicial resources would not be a full one-third; it would amount to the time the third judge now spends reading the briefs and conferring with the other two panel members in marginal appeals. TDR at 54.

As an editing postscript to my disapproval of the two-judge recommendation, the off-hand suggestion that "one might argue that a single appellate judge might suffice to decide some appeals," TDR at 54-55, is a rhetorical excess that should be stricken from the Tentative Draft Report.

District Court Appellate Panels: I wholeheartedly endorse the proposal to authorize experimental DCAP’s of two district judges and one circuit judge with only a subsequent discretionary review in the court of appeals. TDR at 55-56. This is an idea whose time has come.

Court historians will see a resemblance to the First Judiciary Act of 1789, which created a district court with limited trial jurisdiction and a circuit court with a combination of original and appellate jurisdiction. The now-rarely-convened three-judge district court and the current bankruptcy appellate panels are somewhat analogous. More importantly, present practice suggests this proposal will work: in recent years district judges have been sitting on three-judge hearing panels in upwards of 20 percent of the merits appeals in the numbered circuits.

The Commission sounds the right note of caution, however, to call for experimentation with DCAP’s followed by careful monitoring and reporting.

General Discretionary Review: The Commission’s discussion of general discretionary review is illuminating and serves to advance the debate among court-experts. By distinguishing between the Supreme Court’s certiorari authority and what the Tentative Draft Report labels the "Virginia type" of discretionary review, the Commission has contributed an important clarification and focus to that debate that will help inform future discussion.

I agree with the Commission’s rejection of a certiorari authority for the courts of appeals. TDR at 62. But I respectfully disagree with the Commission’s conclusion to wait-and-see about the Virginia type of discretionary review. TDR at 63. The contemporary reality of today’s federal appellate procedures—screenings, summary calendars, decisions without opinions, unpublished opinions, et cetera—cumulatively amount to a de facto system of discretionary review. The procedural shortcuts and intramural reforms already implemented by the judges in the courts of appeals violate the spirit if not the letter of the de jure appeal as of right statute, 28 U.S.C. § 1291. It would benefit the federal appellate system to recognize this reality and to formalize and nationalize appellate procedures.

Miscellaneous Recommendations: Due to a combination of lack of expertise or experience or because I have not yet satisfactorily thought through my position on the matter, I will not comment on several important aspects of the Tentative Draft Report: Bankruptcy Appeals; the Federal Circuit and its potential; and the dissenting statement of Judge Merritt and Justice White.

A Minor Stylistic Point: I repeat the minor stylistic point made in my cover letter. Candor and not immodesty compels me to suggest that the final report identify the professors who participated in the March 1998 weekend research meeting. A footnote to the text might simply list our names and academic affiliations; it currently reads: "Early in its life, the Commission also convened a meeting with a small number of law professors in order to learn more about pertinent research and writings on the federal appellate system." TDR at 3. This credit line would be an appropriate disclosure for the public record.

Conclusion: The Tentative Draft Report represents the best thinking of a talented and experienced and dedicated group of Commissioners and staff, informed by broad study and developed with an eye towards judicial and congressional politics. It serves to defend judicial independence. It moves the debate far away from the infinite regress of past congresses to add judgeships and to split circuits without a grand design. It analyzes and guides a conscientious member of Congress through the thirty-plus year debate over the Ninth Circuit. It broadens its scope to include all the courts of appeals and their future. It focuses the seemingly endless academic discussion of proposed reforms by drafting implementing statutes that will be introduced as bills in anticipation of hearings and eventually the passage of legislation. It advances the debate over the future of the federal courts on several critical subjects.

All this was accomplished with small numbers and in a short time and the members of the Commission and their staff deserve our kudos.

But one more report—even one more excellent report—is not the goal of those of us concerned with the future of the federal courts. "The Constitution tasks Congress with the responsibility to design a new federal court structure for the twenty-first century." Thomas E. Baker, A Proposal that Congress Create a Commission on Federal Court Structure, 14 Miss. Coll. L. Rev.271, 289 (1994).

It is incumbent on the members of the Commission—joined by friends of the Third Branch—to keep these ideas in front of Congress as it performs this constitutional responsibility.

Thomas E. Baker
James Madison Chair in Constitutional Law
Director, Constitutional Resource Center
Drake University Law School
Des Moines, Iowa 50309
thomas.baker@drake.edu