My name is Robert Boochever. I am a senior United States Circuit Judge on the Ninth Circuit Court of Appeals.

It might be relevant to furnish a little of my background. In January 1946, right after service in World War II, I went to Juneau, Alaska as Assistant United States Attorney. I then was involved in private practice for twenty-five years, principally as a trial attorney in the Territory and later the State of Alaska. As appeals from the United States District Court for the Territory of Alaska went to the United States Court of Appeals for the Ninth Circuit, I had numerous occasions to appear before that court both before and after statehood. In 1972 I became a justice of the Alaska Supreme Court and was from 1975 to 1978 Chief Justice, the administrative head of the court system for the huge state. In 1980 I was the first Alaskan appointed to the United States Court of Appeals.

In 1980 the Ninth Circuit had a full complement of 28 active judges. There were 3,738 appeals filed with the Ninth Circuit in that year. In 1997 for most of the year the court functioned with only seventeen active judges and the number of appeals had increased to 8,649. A simple measure of the magnitude of the increase is that in 1980 133 appeals were filed for each active circuit judge, while last year 508 appeals were filed per judge, up over 300 percent. This increase has been moderated to a degree by the voluntary service of senior judges who generally handle substantially fewer cases than active judges. The huge increase is not limited to our circuit; most courts of appeals have experienced dramatic growth in filings per judge.

When I was first appointed to the Ninth Circuit, I was of the opinion that the Circuit was too large to function efficiently. My background was working on a five person court and it was difficult to imagine the administration of a court covering the nine western states and stretching from the end of the Aleutian Chain almost reaching Japan, to Hawaii, Montana, Idaho, and Arizona. After serving on the court and working under the various innovations simplifying administration and practically eliminating problems of inconsistent decisions, I have become convinced that a large circuit is manageable.⁽¹⁾

Others are better qualified to enumerate the administrative steps that enable the court to function well. There are three separate administrative divisions with headquarters in Pasadena, San Francisco, and Seattle, simplifying and decentralizing the handling of cases. Staff attorneys screen and weight the appeals according to their difficulty so that calendars are equalized. All the active judges serve on panels with each other the same number of times and at the different locations where the court sits. Judges are alerted by staff to similar issues involved in related cases. Also, computers instantly inform of recent decisions involving similar issues, both within the Ninth Circuit and without. The unique Ninth Circuit limited en banc of eleven judges has worked well to eliminate inconsistencies both intra- and inter-circuit. A fine staff of trained attorneys screens cases that can be handled expeditiously and works with screening and motion panels of judges to prevent delay. Staff attorneys skilled in mediation assist in settling cases by alternative dispute resolution.

Moreover, I do not believe there is a harmful loss of collegiality because of the size of the circuit. In fact our court's diversity of gender, race, and religion to an extent mirrors the strengths of our country, and would not be present in smaller homogeneous courts. The members of the court are exposed to a wide variety of views on most controversial issues. Geographic size poses little hindrance to the exchange of ideas because much sharing is accomplished by an email system. The email traffic in this circuit, which includes the frequent transmission of both light-hearted banter and deep reflections, allows judges to converse as if they were in the same chambers.

I well remember the warmth and hospitality with which I was welcomed to the court, particularly from judges appointed by presidents from a different party, to name a few, Judges Merrill, Sneed, Goodwin, and Judge (now Justice) Kennedy. When confronted with questions concerning judicial conduct I still rely on the sage advice of Judge Sneed. Of course there will occasionally be a clash of personalities, but that also occurs on much smaller courts. In fact, it is well known that at certain times in the past some Supreme Court justices would not talk to some of the other justices.

I believe much of the criticism of the size of the Ninth Circuit has resulted from a few decisions that were unpopular with some of the residents of the northern states. It is contended that judges from California, unfamiliar with less populous states, have decided cases wrongly because of that lack of familiarity. One case involved the environmental protection law limiting logging in Oregon and Washington to preserve an endangered species, the spotted owl.⁽²⁾ Yet one of the members of that panel was a former justice of the Oregon Supreme Court and still maintains a residence in that state. Another high-profile case involved fishing rights of the Quinault and other Indian tribes. The Ninth Circuit three-judge panel included a circuit and a district court judge from Oregon.⁽³⁾

I suggest the problem is not attributable to the size of the circuit so much as to the inevitability that some decisions in high profile cases are going to be unpopular with those supporting the losing side. At the same time I believe that there are problems unique to some of our states, such as Alaska, and on rare occasions judges from other areas may have difficulty relating to the idiosyncracies. I recall a 1988 case in which the court was required to construe the term "rural" as used in an Alaskan context, and was criticized by some Alaskans for what they believed to be a failure to appreciate the vast difference of most Alaskan nonurban areas when compared with the lower 48 states.⁽⁴⁾ Another case that created tensions in Alaska involved Indian rights.⁽⁵⁾ The decision, holding that the Alaska Native Claims Settlement Act did not extinguish "Indian country" with its power to govern and tax, was later reversed by the Supreme Court. The Ninth Circuit decision had created a storm of protest in Alaska, and presently there are demonstrations and unrest by Native Alaskans and their sympathizers over the Supreme Court's decision. Yet changing the configuration of the circuit would be unlikely to affect such decisions. Decisions by judges who had not lived in the state of Alaska might very well have been the same if the panel consisted of judges from the proposed new northern circuit, who may reside in the larger cities of Boise, Seattle, or Portland.

The nature of an appellate court's functions is bound to result in certain decisions about which people hold strongly divergent views. Good appellate counsel and the development of a complete record should be able to alert the panel to unique local circumstances. I believe the few controversial decisions do not justify placing limits on the size of a circuit. If a panel which does not have a judge who was appointed from the region from which the case arises is considered to be a problem, it can easily be solved. Although I do not believe it is necessary, a statute or rule of the court could require that at least one judge on the panel be from one of the three administrative divisions that includes the state of origin. Then the northern states could be assured of having a judge from that area on cases directly affecting them.

On the more general subject of the proposals to split the Ninth Circuit, if the limit on circuit size is fifteen active judges, as some have suggested, any split of the Ninth Circuit without the highly disadvantageous solution of dividing California is not going to accomplish that goal.

I have referred to the tremendous increase in cases since the time I have been on the court. As long as our population grows and Congress enacts new laws, particularly those federalizing what were formerly state offenses or creating new federal claims, the number of appeals will require the appointment of more judges. If the circuits are to be limited, say to fifteen judges, it will not be long before the increase in the number of circuits will make it impossible for the Supreme Court to perform its function of resolving conflicts between the circuits.

Another appellate court between the circuit courts and the Supreme Court has already been proposed. I believe this additional level of administration and bureaucracy is the last thing needed by our court system, with the current duration and expense of litigation.

While the function of this Commission may be construed broadly, there is no specific reference in the Act establishing the Commission to a study of the jurisdiction of the courts of appeals. It is hard to envision any comprehensive study of the structure of the courts of appeals, however, that does not include a hard look at their jurisdiction. At the present time, the court of appeals' jurisdiction, already broad, continues to grow as Congress includes more crimes and claims that can be filed and prosecuted in the federal district courts and administrative agencies. The sheer number of appeals will continue to mushroom unless the jurisdictional scope of the federal courts is stabilized or reduced.

The Federal Judicial Center and the Judicial Conference Committee on Long Range Planning have acknowledged that the ultimate source of the volume of cases in the court of appeals was federal jurisdiction.⁽⁶⁾ Unless we achieve some sensible limitations on federal criminal and civil jurisdiction, the debate over the future of the Ninth Circuit is only the first in what will become an endless series of controversies regarding the size of the courts of appeals and the case burden on its judges. The alternative to narrowing jurisdiction is an ever increasing case load requiring substantially more judges and either larger courts of appeals or the Balkanization of our system into many small circuits. Judging from my experience on the Ninth Circuit, increasing the number of judges on the circuits seems much the better solution. The prioritizing of the types of appeals requiring adjudication by an Article III judge should be the starting point of any jurisdictional study. Constitutional issues, construction of certain types of federal statutes, direct appeals of federal criminal convictions, and interstate or international disputes seem fundamental. The most promising proposals for jurisdictional control include the creation of administrative courts of appeals, and introducing certiorari or discretionary jurisdiction for the courts of appeals over those decisions and other limited subjects. The Bankruptcy Appellate Panel in the Ninth Circuit provides a good example of a specialized court that does not compromise the litigants' access to a meaningful appeal, and usually terminates the case.

Those opposing any limits on our jurisdiction express concern that, especially in civil cases, most limitations would exclude the least powerful and poorest litigants.⁽⁷⁾ Yet administrative appellate panels in cases involving federal or railway employees' workplace injuries or denials of social security benefits, with the circuit courts having discretion whether to hear a further appeal, may well prevent injustice.

The limits of my presentation prohibit an in-depth analysis of this complex problem and the numerous proposals for jurisdictional reform. I suggest the Commission request additional time to focus on this all-important issue, or, in the alternative, recommend that Congress establish a special commission to study federal appellate jurisdiction.

In conclusion, I urge the Commission oppose the division of the Ninth Circuit Court of Appeals, which functions well considering the tremendous number of cases it reviews. I also urge that efforts be made to reduce the work of the appellate courts by changing their jurisdiction without interfering with the primary issues that should be adjudicated by Article III judges.

1. ¹ See A. Hellman, Dividing the Ninth Circuit: An Idea Whose Time Has Not Yet Come, 57 Mont. L. Rev. 261 (1996).

2. ² See Seattle Audubon Soc'y v. Robertson, 914 F.2d 1311 (9th Cir. 1990).

3. ³ United States v. State of Washington, 520 F.2d 676 (9th Cir. 1975).

4. ⁴ Kenaitze Indian Tribe v. State of Alaska, 860 F.2d 312 (9th Cir. 1988).

5. ⁵ State of Alaska v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286 (9th Cir. 1996).

6. ⁶ Federal Judicial Center, Structural and Other Alternatives for the Federal Courts of Appeals 141 (1993); Judicial Conference Committee on Long Range Planning, Proposed Long Range Plan for the Federal Courts 21-36 (1995).

7. ⁷ See Stephen Reinhardt, Surveys Without Solutions: Another Study of the United States Courts of Appeals, 73 Tex. L. Rev. 1505, 1516 (1995).