STATEMENT OF SLADE GORTON
UNITED STATES SENATOR
BEFORE THE
COMMISSION ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS

The question of whether to split the United States Court of Appeals Court for the Ninth Circuit has been debated for a quarter of a century, ever since the "Hruska Commission" recommended in 1973 that the Circuit be split and opined that no circuit court should have more than 15 judges. In the past 25 years, I have introduced various bills to divide the Ninth Circuit, the Senate Judiciary Committee has held multiple hearings on the subject, and the Circuit, which was unwieldy in 1973, has grown even more so. I have long believed that it is past time to divide the Ninth Circuit. The real challenge to you is not in answering "whether," but "how?"

There are many reasons for my belief that a split is necessary, the most obvious being its size. The Ninth Circuit spans nine states and two territories, it covers fourteen million square miles of land and water, and is by far the largest of the regional circuits in the country. It serves a diverse population of more than 49 million people. By comparison, the next largest circuit by population, the Sixth Circuit, serves fewer than 29 million people. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million people. The Ninth Circuit also has the largest caseload of all 13 circuits. The First Circuit, Tenth Circuit, Seventh Circuit, and the D.C. Circuit combined have about the same number of cases as the Ninth Circuit. The Ninth Circuit, with 28 active judges, also far exceeds the federal circuit average, outside the Ninth, of 12.6 active judges.

Statistics on geographic size and caseload alone, however, do not make a compelling argument for splitting the circuit. The most compelling argument for the split comes from the consequence of this size; in particular, the obstacles that the size of the Circuit poses to collegiality on the Court, and to familiarity with the diverse issues, the diverse people, and the law.

In the statement submitted to this Commission, Judge Diarmuid O'Scannlain, who currently sits on the Ninth Circuit, clearly articulated the problem with the current size of the Ninth Circuit when he wrote, "The effectiveness, credibility, and efficiency of a court of appeals is intricately linked to its ability to function as a unified body." A Circuit the size of the Ninth Circuit simply cannot be a collegial body - a body that can understand the diverse regional issues that come before it; a body in which the members know the other members of the court. With 28 authorized judges on the Circuit, there are 3,276 possible combinations of three-judge panels, not including the significant number of panels including senior judges and judges sitting by designation. A judge appointed to the Ninth Circuit could serve on it for thirty years and the odds are that he or she would never serve on the same panel of three twice.

I fully agree with Judge O'Scannlain that the court of appeals plays a dual role; not only is it responsible for correcting error on appeal, it is also responsible for declaring what the law is for the circuit. There is a limit to the number of judges who can sit on a circuit, and still have the circuit efficiently and effectively perform these two critical functions. Again, I quote Judge O'Scannlain: "Consistency of law is a fundamental ingredient in the effective administration of justice. Consistency results from close, regular and frequent contact in joint decision-making, and it is the goal which binds the judges in a shared commitment to maintain the institutional integrity of circuit law." Not only does an oversized circuit make this close contact nearly impossible, the large number of opinions makes it increasingly difficult for judges to keep track of precedents within their own circuit. Judges and other individuals in an oversized circuit who seek to conform their opinions and conduct to circuit law encounter serious obstacles in simply determining what that law is.

For me, the question of whether to split the Ninth Circuit is easily answered "yes." The question of how to split the Circuit is the hard one. Selfishly, I would like to see the creation of a Pacific Northwest circuit, made up of Washington, Oregon, Idaho, Montana, Alaska, Arizona, Hawaii, Guam, and the trust territories of the Pacific. As a matter of policy, however, I think the Hruska Commission may have been correct when it recommended dividing California. I look forward to this Commission's report on the subject.