Few issues of judicial administration have been as exhaustively, and inconclusively, debated as the alignment of the Ninth Circuit Court of Appeals. Politics and judicial administration have been intertwined in the debate to a degree that the former often overshadows the latter. My remarks will focus on the issues concerning the latter and will be limited largely to the possible realignment of the Ninth Circuit. While the mission of this Commission is not limited to the Ninth Circuit Court of Appeals, that court plainly is the center of attention, and there appears to be little demand to tinker with the alignment, or with the structure, of the other circuits or to seek global reordering of the appellate system, at least in the near term.
In approaching the question whether the Ninth Circuit should be realigned, it is well to begin by asking whether there is a clear and present need to do so. No one has demonstrated that a crisis exists demanding an immediate response. The Ninth Circuit, though faced with steadily rising filings and hampered by numerous vacant judgeships (some long-standing), continues to dispose of appeals in reasonably current fashion. The workload, though rising, has not reached a level threatening a breakdown. This Commission, therefore, is not confronted with an emergency demanding urgent action.
That is not to say that the growing workload is not a problem that must be addressed. But realignment of the Ninth Circuit, or of the federal appellate system, will not reduce the number of filings or ease the workload. The relevant question is whether it will improve the administration of justice. A number of factors bear on that question.
Efficiency
Perhaps the most important of these is whether realignment will enhance the court's efficiency by speeding the disposition of appeals and enhancing workload capacity while maintaining the quality of justice. Some argue that the circuit's size causes it to be inefficient and that realignment will improve performance. But the association between circuit size and time to disposition (assuming that to be a good measure of efficiency) is weak at best. Statistics show that some circuits are more efficient and others less efficient than the Ninth but the statistics do not reflect an association between size and efficiency. The median time to disposition in the Ninth Circuit (14.3 months in 1996) is faster only than the Eleventh Circuit's but it is not significantly slower than the Sixth's with approximately half as many judgeships (16) as the Ninth.(2) The Ninth is the largest circuit geographically, but given its use of modern means of communication and transportation (which are certain to continue to improve), there is no obvious reason why geographic size should affect efficiency. If it did matter, however, splitting the Ninth Circuit would still leave two circuits encompassing large geographical areas.
Time to disposition, standing alone, is in any event an imperfect measure of efficiency. It fails to reflect the impact of other factors affecting the volume and rate of output, such as the rate of filings and merits terminations per judgeship, the number of months of vacant judgeships, and the extent of participation by senior and visiting judges. In 1996, the Ninth Circuit stood approximately at the median in the number of filings per judgeship and fifth in terminations, but it had the highest rate of vacant judgeship months (53 months, 50% higher than the next highest circuit).(3) The resulting shortage of judges has led to a shortage of panels, causing the Ninth Circuit to have the longest time from filing to hearing or submission. It is among the fastest, however, in time from hearing or submission to disposition.(4)
The seemingly inexorable growth in appellate filings (a rate of growth considerably above that in the district courts) and the resulting increase in the judicial workload, has forced all of the courts of appeals to institute improved management methods, increase support staff, and streamline procedures, as well as simply to work harder.(5) This has enabled them to keep up with their work(6) with only a modest increase in the time to disposition while maintaining the quality of their output.(7) The Ninth Circuit, in my opinion, stands out in the way in which it has responded to the exigencies of filing growth. I base that opinion on personal observation, having sat on panels in eight circuits over the past five years, and having worked on issues concerning the courts of appeals while serving as Director of the Federal Judicial Center. I have found, among other things, that the Ninth Circuit's screening system and the procedures used by its clerk's office to service hearing panels, the assignment of balanced case loads and the making of prehearing writing assignments all promote efficiency.(8) These and other procedures used by the Ninth Circuit have maximized judicial productivity and, in my experience, stand out among the circuits.
Consistency
Proponents of realignment have claimed that the Ninth Circuit's size promotes intracircuit conflicts. The claim is not supported by objective evidence. The court has in place effective systems and procedures which reduce the risk of inadvertent conflicts in decisions.(9) The studies conducted by Professor Arthur Hellman found few instances in which panels reached contrary results that could not be reconciled because of factual or legal differences in the cases and found also that unpredictability is less a function of proliferation of circuit decisions than of the absence of circuit precedent closely in point.(10) The Federal Judicial Center's study found little evidence that intracircuit inconsistency is a significant problem.(11)
Some have criticized the limited en banc employed by the Ninth Circuit. It is undoubtedly a compromise compelled by the circuit's size, but it is not a persuasive argument in support of a circuit split. This is an issue that transcends the Ninth Circuit because it is reasonable to expect that other circuits will in time reach a size where a limited en banc becomes a desirable, if not necessary, expedient. If the Ninth Circuit were split, at least the circuit comprising California would probably be sufficiently large to lead it to adopt a similar procedure. Moreover, en banc decisions are insignificant in number--in 1996, 107 were issued out of a total of over 27,000 merits terminations (25 in the Ninth Circuit out of over 3,000 merits terminations).(12) The eleven out of twenty-eight judges constituting the en banc panel, randomly selected, can normally be expected to fairly represent the views of the court; the impact on circuit law of adding seventeen judges to the panel would probably be marginal. And whenever the need for a full-court en banc is sufficiently strongly felt, it remains an option under the court's procedures.
In considering whether circuit size impairs consistency, the alternatives must be weighed. Were the Ninth Circuit split, conflicts and inconsistencies could be expected to develop between the two circuits. The region of the eleven western states and territories would no longer be able to look to a single authoritative source of federal law. While this is a region of great diversity, it is also bound together by common interests--commercial, social, and environmental--that benefit from a uniform body of federal law. To cite a recent example, to save the rapidly disappearing population of chinook salmon, the federal government, in response to litigation, has proposed a comprehensive plan for protection of rivers in all the states bordering the Pacific Ocean.(13) Of course, if the split were to entail a division of California, the consequences would be egregious.
Size can take a toll on the intellectual cohesiveness of the court, although it is also argued that the infusion of outside judges provides desirable "cross-pollination."(14) In a twenty-eight judge court, assuming perfect randomization, an active judge would over time sit with the same colleague an average of twice in twenty-seven sittings (a period of slightly more than three years). In a court half that size, the frequency of sitting together--of discussing issues and deciding cases with a particular colleague--would be much greater. The reality, however, is that, to cope with a growing case load, participation by visiting and senior judges now exceed those of active judges. In 1997, the Ninth Circuit made sixty assignments of visiting judges alone, not counting senior judges.(15) So long as the press of filings compels major reliance on visiting and senior judges, which would not be affected by a split, creating two smaller circuits will not bring about a meaningful increase in the frequency of active judges sitting together. Thus, a reduction in the number of active judges in the surviving circuits would have little impact on intellectual cohesiveness.
Other Costs and Benefits
As an abstract proposition, a preference for a smaller, more compact, perhaps more collegial circuit is understandable.(16) But no principled arguments have been offered to support realignment for that purpose. It would, however, entail substantial start-up costs for duplicate headquarters and support facilities and an increase in staffing and other operating costs.(17) Economies of scale under the present structure would be lost. The size of the present circuit has enabled it to maximize the efficient use of its resources, for example, by deploying district and bankruptcy judges to take on assignments in districts impacted by heavy filing increases.
The Long View
Over the past quarter century, filings in the courts of appeals have increased from 11,600 to 52,000 (450%); while the number of judgeships doubled, filings per judgeship increased from 120 to 305 (250%).(18) There is no reason to expect an end of the growth of filings over the long term. Population, which has grown nearly sixty per cent in the past twenty-five years, is expected to increase by fifty percent by 2050.(19) The gross domestic product grew by sixty percent (in constant dollars) and economic growth is not slowing.(20) Granted that the past twenty-five years have been marked by a burst of legislation and judicial decisions that have greatly expanded the jurisdiction of the federal courts and the nature of the claims they entertain. But factors fueling growth in filings will continue to operate as the population continues to increase and become more diverse, commercial activity expands, and the pressure on resources intensifies.
Though there are reasons for opposing an increase in the size of the federal judiciary, and in particular the courts of appeals, if filings continue to grow, the resulting pressures are likely to overcome those reasons in time.(21) And as the courts grow in size, fundamental questions will need to be addressed about the appropriate scope of federal jurisdiction, the relation of state and federal courts, and the nature of the appellate process. The answers must take into account the circumstances existing at the time. It therefore seems ill-advised--particularly given the short time frame for the Commission's work--for the Commission to propose changes in the structure of the courts of appeals or the appellate process.
Because two specific structural proposals have been advanced, however, I address them briefly. The first is the establishment of appellate panels in the district courts. Various models can be envisioned. One might be similar to Bankruptcy Appellate Panels, with the parties to the appeal having a choice between going to the panel or to the court of appeals. It is doubtful that this would have much of an impact since one party or the other will in most cases opt for the court of appeals. Another might be the creation of appellate divisions in the district courts, with the second appeal to the court of appeals discretionary. This model would impose substantial additional workloads on district judges, resulting in delays in civil cases, require the creation of a significant staffing structure to serve the district court appellate divisions, and would still leave the appellate courts with the burden of having to sift through all of the applications for leave to appeal. There is a large question whether district judges should hear appeals from their colleagues in the district--and how that would be perceived--or whether the appellate divisions would have to travel to other districts. If district courts were burdened with having to hear appeals as well trying their own cases, they may end up doing neither very well. Even if it were possible to significantly reduce the growth in the workload of the courts of appeals in this fashion, it would surely undermine the law declaring function of those courts. In the end, this alternative has little to offer over existing screening systems, such as that now operating in the Ninth Circuit.
Under another proposal, additional specialized courts would be established. While there was something to be said for creating a specialized court to hear appeals in patent cases, which involve particular technical expertise, as a general matter, departing from the underlying concept of generalist judges would fundamentally change the character of the federal courts. This subject has been studied, debated and written about at length. Whatever else can be said about specialized courts, it is not intuitively obvious that productivity and efficiency will be increased while the quality of justice will be maintained.
Conclusion
Though one can long for a smaller, more congenial circuit--reminiscent of what some imagine to have been the "good old days"--neither realignment nor restructuring offer a feasible road back to the past. As Judge Carolyn King of the Court of Appeals for the Fifth Circuit put it,"we have had and will have a great number of judges. That reality is simply a fact of life and something that judges would do well to recognize. There is no point in clinging to the past if the future arrived years ago."(22)
The Federal Courts Study Committee cited Edmund Burke's view that radical social reform is justifiable only as a last resort because its total impact is so difficult to predict, and Thomas Jefferson's that "moderate imperfections had better be borne with."(23) Those views are relevant here in assessing the wisdom of what would amount to radical surgery which gives no assurance of solving existing problems but risks potential harmful consequences. Also relevant is the Hruska Commission's caution that "[e]xcept for the most compelling reasons, we are reluctant to disturb institutions which have acquired not only the respect but also the loyalty of their constituents."(24) When the Eighth and Fifth Circuits were divided, Congress acted in response to the expressed wishes of the judges, the bar, and other community groups.(25) In contrast, the continued existence of the present Ninth Circuit has the overwhelming support of the judges of the circuit, bar groups within the circuit, and others in the community (including many members of Congress). The Judicial Conference of the United States concluded in its long-range plan that "division of a particular circuit or realignment of circuit boundaries . . . should occur only when compelling empirical evidence demonstrates the relevant court's . . . inability to operate effectively as an adjudicative body . . . ."(26) In the absence of such compelling empirical evidence, this valued institution should be preserved.(27)
A time will come, presumably, when restructuring of the appellate courts may become appropriate, as in 1891 with the adoption of the Evarts act. But I believe that we will know when that time has come when the demand for change is heard from the participants in the appellate process--the bar, the bench, and the public--and when a public consensus emerges on desirable alternatives.
NOTES:
1. Senior United States District Judge, Northern District of California; Director, Federal Judicial Center, 1990-95.
2. Federal Court Management Statistics, Administrative Office of the United States Courts 26-27 (1996).
3. Id.
4. Judicial Business of the United States Courts, Administrative Office of the United States Courts 104 (1996) ("Judicial Business").
5. See generally T. E. Baker, Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals ch. 6 (1994) (describing intramural reforms already implemented). And see infra note 17. While the number of filings and terminations in the courts of appeals is staggering, it should be kept in mind that overall approximately 40% of all terminations are procedural, of which 60% are by staff; in the Ninth Circuit, of 8,175 terminations, 3,279 were procedural and of those, 2,055 were by staff. Judicial Business, supra note 3, 111, 113.
6. Id. at 84-87.
7. The median time to disposition increased from 8.2 months in 1970 to 10.4 months in 1996. Annual Report of the Director of the Administrative Office 220 (1970) ("1970 Report"); Judicial Business, supra note 3 at 104.
8. See generally Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts, (Arthur D. Hellman ed. 1990).
9. See T. E. Baker, A Background Paper on the Circuit Boundaries of the United States Courts of Appeals, in II Federal Courts Study Committee Working Papers and Subcommittee Reports (July 1, 1990) 22 ("Baker").
10. See Federal Judicial Center Structural and Other Alternatives for the Federal Courts of Appeals 94-95 (1993) ("Structural Alternatives") and publications cited.
11. Id. at 93-94.
12. Judicial Business, supra note 3 at 45.
13. Plan to Expand Protection for Salmon, San Francisco Chronicle, February 26, 1998 sec. A, p. 3.
14. Judge Alex Kozinski, quoted in H. Mintz, Pinch-Hit Justice at the 9th Circuit, The Recorder, November 11, 1996, sec. news, p. 1.
15. Report to the Circuit Council, on file with the Office of the Circuit Executive.
16. See, e.g., G. B. Tjoflat, More Judges, Less Justice: The Case Against Expansion of the Federal Judiciary, 79 ABA Journal 10 (June/July 1993); Baker, supra note 8 at 30.
17. See S. Rep. 104-197, 104th Cong., 1st Sess. at 18 (1995) (Statement of Congressional Budget Office); Hearings on S. 956 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess. Sept. 13, 1995 (Statement of Senator Harry Reid).
18. 1970 Report, 1 supra note 6 at 97, 347; Judicial Business, supra note 3 at 16; 28 U.S.C. § 44 historical and statutory note. During the same period, filings in the district courts increased from 87,000 to 270,000 (310%) while filings per district court judgeship increased from 216 to 416 (192%). 1970 Report, supra note 6 at 123; Judicial Business, supra note 3 at 18. It is clear that the rate at which judgments in certain categories of cases, primarily criminal cases and prisoner petitions, are being appealed has increased. See R. A. Posner, The Federal Courts: Challenge and Reform 117-18, 137-38 (1996).
19. Statistical Abstract of the United States 1997, 8 (1997); B. McKibben, Immigrants Aren't the Problem, We Are, N.Y. Times, March 9, 1998, sec. A at 19.
20. Statistical Abstract of the United States 1997, 452 (in constant dollars).
21. See Imposing a Moratorium on the Number of Federal Judges, Federal Judicial Center (1993).
22. C. King, Commentary, A Matter of Conscience, 28 Hous. L. Rev. 955, 959 (1991).
23. Report of the Federal Courts Study Committee 9 (1990).
24. Report of the Commission on Revision of the Federal Court Appellate System, 62 F.R.D. 223, 228 (1973)
25. See Baker, supra note 8 at 10, 15.
26. Long Range Plan for the Federal Courts, Judicial Conference of the United States 45 (1995).
27. Structural Alternatives, supra note 9 at 155 ("[T]here can be no doubt that the [appellate] system and its judges are under stress . . . [but] it does not appear to be a stress that would be significantly relieved by structural change to the appellate system at this time.").