May 1, 1998

Commission on Structural Alternatives
for the Federal Courts of Appeals
One Columbus Circle, N.E.
Washington, D.C. 20544

My name is Alfred T. Goodwin, I am a senior United States Circuit Judge, appointed to the Ninth Circuit from the District of Oregon in 1971, after two years as a district judge and 15 years in the Oregon State courts, trial and appellate. I was chief judge of the circuit from June 15, 1988, until February 1, 1991 when I became a senior judge. Thank you for giving me this opportunity to testify. I speak only for myself and not for the court.

As a senior judge, I have sat in six of the other circuits, and have gained some experience in the decisional process of the panels on which I sat. I claim no expertise in the administrative functions of circuits other than my own, but the decisional process, which is the work judges do, is similar in all circuits, and appears to have nothing to do with the number of judges from whom the three judge panels are drawn.

The Commission, in its Schedule of Public hearings, poses three questions. I will try to make my remarks responsive.

Question 1, Part I.

I believe that the single, overriding problem faced by all of the federal courts, but particularly by the appellate courts, is the expansion of federal question jurisdiction at a rate of growth that greatly exceeds the growth in the supply of judges to decide these cases.

When case loads expand faster than the number of judges necessary to handle the case loads, there will be, and now is, delay, and to some extent, discontent on the part of the bar and the public with perceived loss of quality, loss of opportunity to argue cases, and discomfort with decisions that appear to be summary. These are, I think, the principal problems perceived in the performance of the courts of appeals.

The district courts, I am happy to say, appear to be solving these problems with the help of magistrate judges for civil litigation. With individual calendars, district courts can afford the litigants their day in court and continue their currently high quality of work so long as the Congress will continue to supply district judges and magistrate judges in approximate proportion to creation of new federal crimes, new entitlements, rights and remedies. I believe that the administrative boundaries of circuits are not of great importance to district judges in their case management and decisional process. As long as they are provided a reasonably predictable body of law to employ in deciding the questions before them, and as long as the circuit has enough flexibility to assign judges where needed to even the work loads among the districts, I don't think most of the district courts place circuit boundary problems at the top of their personal priority list. I didn't when I was a district judge.

The second part of the Commission's first question addresses the criteria and standards. The courts of appeals should decide all cases without delay, by applying predictable, fair, and consistent rules of law so that trial judges will know what law to follow. Circuits should attempt to apply these standards in a manner that will achieve as much uniformity nationwide as possible. No reason relevant to judicial administration has been advanced for Balkanizing the law of a region by splitting circuits so that one circuit will be known as soft on capital punishment and immigration petitions while another is known to be rigorous in following precedent. For example, the Ninth Circuit, with its nine states and two off-shore island court systems applies federal law in cases arising all around the Pacific Rim, from Dutch Harbor to Pearl Harbor, Guam, and Saipan. In the half century following World War II, the Circuit has developed a close working relationship with the off shore courts, assigning judges where needed, assisting with procurement and building services, and bringing Pacific Island judges into the Circuit's continuing education programs for judges. The institutional memory of the circuit developed over this time, first by Judge Kennedy before he left us to join the Supreme Court, and in the past dozen years by my Pacific Islands Committee, has been valuable to a wide area with diverse populations and diverse problems. For example, in the Commonwealth of the Northern Mariana Islands, you will soon be reading about some extraordinary problems in labor law and in immigration law. Some of the problems will require legislative solutions and all will eventually become judicial problems. A uniform body of national law is needed in the entire Pacific Rim; and no useful purpose will be served by dividing the area up to suit some preconceived idea of the number of judges that can function in a court of appeals. Our nation is moving rapidly toward centralized federal control of activities that were formerly thought to be subject to local and state control. There is presently no foreseeable limit to the expansion of federal court jurisdiction. Growth can be met, and standards maintained, by the collegial application of federal law by panels of Article III judges who have the time, staff support, and resources to hear oral arguments, study the briefs of counsel, and prepare written dispositions meeting those standards.

Question 2

Most suggested measures are controversial. I repeat that I speak only for myself as a veteran courthouse observer, and not for my colleagues, who have a score of different opinions on what will work best. The most important remedial measure is for Congress to provide enough judgeships, nationwide, to take care of the business it expects the courts to conduct. If it does not wish to do that, it could consider reducing the growth of the case loads. The state courts and administrative agencies have considerable experience in dealing with crimes, and with workplace grievances, welfare entitlements, education, juvenile and domestic matters. In an election year, especially, this suggestion is as popular as closing military bases, but it merits serious consideration. In any realignment of circuit boundaries, Congress should make a genuine effort to equalize the work loads of judges among the districts and circuits so that the work loads of judges will not depend on the luck of geography. Judge Wallace of our court has already testified before you on this subject and I can not improve upon his prepared remarks.

Students of judicial administration may not all agree, but the perceived differences in the quality of justice between large circuits and small circuits do not appear, under objective analysis, to have much, if anything, to do with the size of the court.

I would define a small circuit as a court of nine judges, sitting in randomly mixed three-judge panels. Such a court would have few occasions to sit en banc, and when the court did take a case en banc, it would encounter little difficulty or delay in calendaring the case for reargument.

A larger circuit, with ten or more three judge panels, randomly mixed and randomly assigned throughout the geographic bounds of the circuit, would have to work out a system of timely en banc review to maintain consistency and clarity of the law of the circuit. This is accomplished in the Ninth Circuit by limiting the number of judges required to decide a case en banc.

Limited en banc has not affected the quality of the decisional work, and the delay caused by en banc reconsideration in the Ninth Circuit is not unusual for complex cases.

The "Tower of Babel" syndrome, which is said to haunt a large circuit, is dealt with at length, in a documented and nonpartisan study by Professor Arthur Hellman. Restructuring Justice, Ch. 3, (Cornell Univ. Press 1990). Because that volume has been made a part of your record, I will not here repeat what Professor Hellman, a veteran of the Hruska Commission, has so ably written. I would add only that in my experience, uncertainty in the law of the Ninth circuit, which exists in one or two subject matter areas, notably death penalty cases, and immigration asylum cases, is not the result of the size of the circuit but is the product of maverick judges who do not consider themselves bound by circuit, or for that matter, Supreme Court, precedent. The number of judges assigned to a circuit is wholly immaterial in dealing with idiosyncratic regard for precedent. The size of the circuit is equally immaterial in reference to the work habits of judges and their support staffs. They are like independent little law firms, wholly unaffected by geographic bounds. Good self discipline and performance standards are individual matters of character.

Questions about delay, consistency of decisions, and the predictability of the law of a circuit, are serious questions. They are raised by the Congress, as well as by lawyers and their clients. These need to be addressed by Congress and by the courts, but they will not be solved by shifting the boundaries of judicial circuits. If splitting circuits has anything to do with appellate quality, the United States in the next century could have as many circuits as Texas has counties.

In today's world, appellate judges generally do not routinely read every case written by every judge on their own court; much less do they attempt to keep up with the output of the publishing companies reporting decisions from other courts. Judges rely on lawyers to cite cases to them. Indifferent briefing by lawyers is a problem that judge's try to deal with by having their law clerks look up the later cases that may have been overlooked by brief writers. Again, the size of the circuit has nothing to do with the quality of briefing or of opinion writing.

Mythology has been cultivated about the Ninth Circuit, and its "Jumbo" dimensions. One myth is that a circuit as big as the Ninth can't possibly function as a collegial court. The fact is that it does function, and quite well. A true myth is that the Ninth Circuit gets reversed more than any other circuit. It should. The Ninth Circuit disposes of nearly one fifth of the nation's federal litigation. It also supplies about one fifth of the cases selected for review by the Supreme Court. If it did not record about one fifth of the reversals it might have something to brag about. Judge Jerome Farris of the Ninth Circuit recently wrote an article for the Ohio State Law Review pointing out that, proportionately, over time, the reversal rate of the Ninth Circuit in the Supreme Court follows pretty much the average of the other circuits. Apart from judges indulging their own aversion to capital punishment, reversals in other areas of the law are not remarkable. The Ninth Circuit's most recent fall was by a five to four decision.

Another myth, almost a mantra, is that the size of the Ninth Circuit is the cause of delay in deciding cases. The fact is that the size of a circuit has nothing to do with the time that any three judges will consume in producing their opinion. Delay in the clerk's office is another matter. When filings increase faster than clerical staff, or we have a major earthquake, we have delay in the processing of paper. But delay in the decisional process after submission is entirely the function of the complexity of each case and the personal work habits of individual human beings. Nationwide, the distribution of speedy written decisions after submission is fairly uniform, without regard to circuit boundaries.

In the Ninth Circuit, population growth has been steady, but uneven, with great and rapid growth in, for example, postwar California, and later in Arizona and Southern Nevada. At the same time, less conspicuous growth has occurred in parts of the Pacific Northwest. For many years, district judges in the north, who were fairly current with their own work, could be sent to San Diego, Phoenix, and Los Angeles to help out with growing district court case loads in the south. Later, when the Central District (Los Angeles) had enough judges to remain fairly current, that district supplied judges for the busy but vacant district of Guam. The ability to shift judges as needed, to fit case loads in a number of districts without going to Washington for centralized dispatching of judges to distant courts has been an advantage of the Ninth, and a direct benefit of its size.

A large circuit has other advantages over a smaller administrative headquarters: economies of scale; broad diversity of judicial skills, training and background; and greater flexibility in shifting judges to meet case load needs without calling on the Chief Justice to assign visiting judges. Other than a slight reduction in travel time and fewer ceremonial demands, it is difficult to think of any case related advantages that a small circuit has over a larger one.

When the old Fifth Circuit was divided, at the unanimous request of the judges of that circuit, reasons, consistent with sound principles of judicial administration were advanced, debated, and agreed to, first by the judges, and then by both houses of Congress. If it is not already a part of the record before this Commission, I cite Barrow and Walker, A Court Divided, Yale University Press, 1988.

In the case of the Fifth Circuit, population distribution and geopolitical considerations made the division relatively simple, and provided a relatively equal case load per judge between the two new circuits. The Fifth and the Eleventh Circuits are each now disposing of as many, or more, cases than the old Fifth Circuit had on its calendar before 1980. The growth of population in the two circuits has lived up to the predictions, and the growth of the case loads per judge has remained fairly equal. No such simple and practical suggestion has been advanced for the California problem. It is very important to keep work loads reasonably equal, by supplying judges wherever needed to maintain a fair distribution of cases to judges nationwide. It would accomplish no worthwhile judicial purpose to create new circuits with a large number of judges having small case loads next door to another circuit with a smaller number of judges to deal with a larger case load. Any realignment that does not approximately equalize case loads per judge will probably fail of its purpose.

Any circuit with California in it is already categorically too big to function properly, according to the criteria set out by those who want to separate California from all or most of the remaining states that are riparian to the Pacific Ocean or are immediately contiguous to them. The California state courts now include 91 appellate judges, and that number will continue to grow. California now has eight resident active federal court of appeals judges; Oregon, with ten intermediate appellate judges in its state system, has two resident active federal appellate judges. There is no sound judicial reason why Oregon federal judges should not help decide cases originating in California. The complaints I have heard from Senators generally focus on what California judges have done to cases originating in Idaho, Montana, or Washington. These complaints, oddly, focus on death penalty cases, and in states that do not have the death penalty, they seem to focus on environmental laws and their application to extractive industries. These laws are national in application, and the Congress that enacted them probably assumed that they would be applied with nationwide consistency.

In 1891, when Nevada, Oregon, and California were placed in the Ninth Circuit, few indeed imagined that in less than a century, some 30,000,000 litigious people would choose to live in California, and that Congress and the federal courts would proceed to make a federal case out of nearly every difference of opinion that such populations can generate.

The political discontent which some of California's neighbors have communicated to their Senators, and which has resulted in legislative proposals to free the neighboring states from what are perceived to be California's problems, should be recognized and examined for whatever political solutions can be found. There is no evidence that the political unrest caused by environmental, immigration, drug and other criminal problems vexing the various states will be solved by moving states around within judicial circuits in an attempt to marginalize California.

Thank you for hearing me. I will be happy to answer questions.