STATEMENT TO THE COMMISSION
ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS

William L. Dwyer
United States District Judge
Western District of Washington

It may help the Commission, in evaluating this statement, to know something of my personal history. I am a Seattle native. I grew up here; went to public schools, college, and law school here (except for a final year of law school in New York); practiced here as a trial lawyer for thirty years; and have served here as a federal district judge for the past ten and a half years. My wife and I, three grown children, and five grandchildren all live here. I am as firmly rooted in Seattle as the trees on the courthouse lawn ­ in fact, I was planted before they were. I care deeply about the Pacific Northwest, its future, and its position in the federal judicial system.

I am speaking only for myself, not for anyone else, but I do not believe there is any widespread sentiment among the bar or the public in favor of splitting off the Northwest from the rest of the Ninth Circuit. Nor should there be.

For many years I have observed the Ninth Circuit at work ­ as a trial lawyer arguing appeals, as a district judge whose decisions are reviewed, and as a visiting judge sitting with the Court of Appeals (each time with a different panel). Obviously, I do not agree with every decision. But I have always been well impressed, and still am, with the Court's fairness, intellectual rigor, and fidelity to precedent. The well-known diversity among the judges is a strength rather than a weakness -- just as it is among the population at large. The Ninth Circuit does its work well; it is a great institution with a distinguished history, and it should not lightly be abandoned.

Some of the circuit-dividing sentiment no doubt arises from fear of California, which is big, populous, and, contains Los Angeles. But California is here to stay, and should be embraced rather than feared. I don't believe there is any such thing as a "California mentality" among the appellate judges who come from, or are based in, that state. Those judges range from conservative to liberal (to use two terms of doubtful clarity), from shy to assertive, from fluent to cryptic. They comprise a wide variety of talents, insights, and life experiences. The Northwest should not lose their valuable contributions to justice, or those of judges from other parts of the circuit. And we should consider not just what we gain from California but what it gains from us. Not being a court of appeals judge, I am free to say that judges from the Northwest have contributed mightily to the success of the Ninth Circuit. They should continue to do so.

The states of the Far West share much in history, culture, economics, and the environment. They need a unified body of federal law. To deprive them of that ­ especially now, with interstate and Pacific Ocean commerce rapidly growing ­ would be a disastrous mistake.

Most of the current pro-division sentiment seems to arise from unhappiness over a few appellate decisions out of many thousands recently decided. There could hardly be a poorer reason to break up a judicial circuit. In the scale of history, every judge serves only for a brief time and is soon replaced. Whatever dissatisfaction exists over particular decisions will soon be resolved with no structural changes whatever -- as happened sixty years ago in the wake of the ill-advised plan to pack the Supreme Court. And it should be recognized that altering geographical boundaries in an attempt to create "home town" federal circuits would probably bring into play the law of unintended consequences: sooner or later, the results would dismay the proponents of circuit-splitting as much as anyone else.

There is nothing to suggest that efficiency, or any other value of judicial administration, would justify dividing the Circuit. In this era of burgeoning caseloads, circuits are bound to add judges. The Ninth, as the largest, although short-handed, has done a fine job of managing a big caseload, maintaining coherence, and affording en banc review when needed. Its procedural innovations are well known and have benefitted the entire judiciary.

Noting that the Commission is interested in processes as well as structure, I offer one suggestion for consideration by all the circuits. Delay is a universally-recognized obstacle to appellate justice. I believe that a measure of avoidable delay occurs because the federal courts of appeals write too much. While the British appellate system, by our lights, is "too oral," ours can fairly be called "too written." (Useful comparisons of the two systems are found in Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis (Buffalo: William S. Hein & Co., Inc., 1990) and Frank M. Coffin, On Appeal: Courts, Lawyering, and Judging (New York: W.W. Norton & Co., 1994)). If trial judges took everything under advisement and wrote about it later, as appellate judges tend to do, we would have a hard time keeping up with the work. I do not suggest that we emulate the British system, which is indeed "too oral." But perhaps our courts of appeals could profitably take a page from the British book by deciding some cases from the bench with a brief oral statement of reasons. If that were done when a post-argument conference showed the outcome to be clear and simple and unanimous, the time-consuming steps of drafting, circulating, rewriting, and filing a non-precedential written decision could be avoided. The ABA Standards Relating to Appellate Courts (1994), at Section 3.36, say that "such a procedure should be used with great caution," but that "[e]xperiment with decision by oral opinion should continue." I agree on both counts, and recommend that the federal courts explore this way of promoting efficiency and timeliness.

This is of course but one idea, out of many that could be advanced, for incremental change. I hope that the Commission will adopt the conservative approach of recommending that the circuits continue to make procedural improvements while remaining geographically intact.