PUBLIC HEARING
Seattle, Washington
May 27, 1998
H. Russel Holland
United States District Judge
District of Alaska
I am an active judge of the United States District Court for the District of Alaska. I was appointed to that court in July of 1984. I served as chief judge of the district between 1988 and 1995, and in that capacity served a one-year term on the Ninth Circuit Judicial Council. I am currently a member of the Ninth Circuit Space & Security Committee.
I speak primarily for myself in these comments. However, Chief Judge James K. Singleton of the District of Alaska concurs in my view that the Ninth Circuit should not be divided. Our two senior judges have recently expressed the view that the circuit should be divided, as has our third active judge.
As my May 5, 1998, request for an appearance before the commission suggested, my comments will be divided into three segments:
I often hear that the Ninth Circuit is "too big". I doubt that geography is the primary focus of this comment. Rather, the comment seems to bespeak a belief that the Ninth Circuit has too many judges to permit any acceptable level of collegiality. Others seem to point to there being too much work, too many undecided cases, and too many decisions to keep track of as precedent.
In fact, the Ninth Circuit ought to be a great deal larger than it is, and would be but for delays in the nomination and confirmation of judges to fill vacancies on the court.(1)
The sizeable caseload of the Ninth Circuit could be divided between two circuits, but a panel of judges must still decide each case, and only a full complement of judges can do that job timely. I believe that statistics--which I encourage the Commission to obtain and analyze--will show that the Ninth Circuit is highly productive in terms of cases decided per judge. The circuit has held its own in most statistical parameters, I believe, even though it has at times been as many as eleven judges below its full complement of active judges. Incidentally, the eight to ten judges absent from the Ninth Circuit would, in the view of many, make a decent sized circuit court. That gives some practical dimension to how serious the problem has been, yet the Ninth Circuit has by and large kept its docket under control thanks to senior judges and designations of district judges to the appellate court.
Again, dividing the Ninth Circuit will not solve the problem of a court backlog or enhance the time to disposition for appeals. More judges will solve that problem.
As for collegiality, it is of course a real plus to have a court where judges work smoothly and effectively with one another. I am not prepared to say whether the Ninth Circuit is or is not deficient in this area, but I hear the complaints. I suggest that it is very dubious whether dividing the Ninth Circuit will solve problems of collegiality. For those who think a court of more than eight to twelve judges cannot be very collegial, there is no nope that division will solve the problem inasmuch as any division of the circuit is likely to result in two courts exceeding that supposed ideal.
Another oft-heard complaint about the Ninth Circuit is that it gets reversed too often, and that it is insensitive to local concerns. In fact, the Ninth Circuit had two really disappointing years before the United States Supreme Court in the last decade.
Even accepting that there is an adverse selection process at work when the Supreme Court chooses the cases which it will take, and accepting that the Ninth Circuits size necessarily means that it is likely to have more cases taken for review by the Supreme Court than any other circuit, it is truly a shock to hear that the Supreme Court has taken "X" number of cases from the Ninth Circuit, and that all but one have been reversed. The Ninth Circuit has been scolded, both orally and in writing by the justices of the Supreme Court, as regards some of the Ninth Circuits decision-making processes and its unwillingness to go en banc to solve its own problems.
In considering the quality of Ninth Circuit decisions, we need to remember that the cases in which certiorari is taken and a reversal rendered against the Ninth Circuit are but a tiny fraction of the total number of cases decided by the circuit. Because dividing a circuit does not end the term of any judge, those who are politically or philosophically out of touch with the United States Supreme Court will remain in one or another of the halves of a divided Ninth Circuit, and any two of them can still make a decision. Dividing the circuit will simply not solve the problem of judges whose political or legal philosophy leads them to make decisions which are unacceptable to some.
So, have we identified the problem? I think not. I suggest that the real problem is that many, both in and out of government, assume that the judiciary is a political institution, and therefore they seek to treat it as such. Congress and the Executive Branch are of course political institutions. They are designed and intended to be such. The judiciary, however, is supposed to be both non-partisan and apolitical.
It is a fact of life and a consequence of life tenure that some judges hold political and legal philosophies that are out of step with current culture. What is rather insidious about the subject under discussion is that any of us who make a decision can be accused of making a political decision by anyone who disagrees with us for any reason. When a decision happens to conform to the current legal culture, the judge is viewed as an insightful, forward-looking, and well-informed jurist. When the judges view is out of fashion with the current conservative culture of the country, the judge is accused of making a political decision or of being a "judicial activist", the current buzzword for those whose legal philosophy is different from that of the accuser. I suggest that this politicizing of judicial decision-making is a not too surprising extension of the politization of the judicial confirmation process. Presidents have always tended to appoint judges of their political persuasion, but more recently Congress has tended to politicize the judicial confirmation process, and I suggest that, not surprisingly, the change in focus spills over into comment on judicial decision-making.
The problem, ladies and gentlemen of the Commission, is not geography, or the size of a courts caseload, or the number of judges, or the number of reversals. The problem is essentially a political one. Those who are looking to divide the Ninth Circuit (or any other circuit which could find itself in this kind of situation) would do so not to improve the pace of judicial decision-making, but to influence the outcome of cases. Those who would divide the Ninth Circuit seek to effect a substantive change in the decisions of the court through a division of the court. Those who are most candid about the situation state that they want the circuit to be divided so that the perceived judicial liberals of California will be isolated from the Pacific Northwest.(2)
I respectfully suggest that the effort to divide the Ninth Circuit strikes at the fundamental principle of an independent judiciary. We have men and women who do not like the decisions of others, so they propose political action to isolate perceived "liberal" judges in the hope of forming a more conservative court for themselves, long after the appointment process for the judges involved was completed.
There is an old saying that in making a wish, one had better be careful what is wished for lest the wish come true. Alaska has long viewed itself as under the economic thumb of Seattle interests. It would not be the least bit surprising--were the circuit divided to create a Pacific Northwest circuit--for us to next hear local railing against Seattle interests and "Washington judges" who do not understand Alaska. If Arizona is included in a divided circuit (a formulation which I believe makes little practical sense), surely we will next hear that "Arizona judges" do not understand Alaska. Or Idaho. Or Montana.
Dividing a circuit because a given constituency does not like a handful of potentially important decisions out of the thousands of decisions which are all important to someone, is just plain wrong. The resolution of a "bad" circuit decision is the function of the United States Supreme Court. And in my experience that recourse works. Where the public is not satisfied with the appellate process and certiorari is not available, there is an alternate solution--recourse to Congress. I am not so naive as to think that Congress can be expected to address every decision of the Ninth Circuit or any other circuit with which someone finds disagreement. It is not, however, the everyday decisions of the Ninth Circuit which are driving the demands for division. It is the high profile cases in the areas of environmental law, Indian law, death penalties, and so forth that are driving the demands for division. These are issues which the Supreme Court can and does address; and if it does not, Congress may be expected to do so. Political decisions about what the substantive law of the future should be are a proper role of Congress; but legislators are wrong, under our Constitution and the rule of law, when they excoriate particular judges or panels of judges and scheme to legislatively isolate particular judges for decisions which happen not to square with the political agenda of the particular Congress or the culture of the day.
The problem which I identify--the politicizing of the decision-making process--is not something which can be solved by dividing the Ninth Circuit. Dividing the circuit may quiet some for the time being. But if we continue to politicize judicial decision-making, if those who would divide the Ninth Circuit succeed, we can expect other demands for the dividing of other circuits because of their perceived political insensitivity. The continued efforts to divide the Ninth Circuit are nothing more nor less than one more thinly disguised attack on the independence of the judiciary of the United States.
In the hope that an ill wind can be harnessed to do some good, I do have some suggestions. I preface my comments with the disclaimer that I have no particular expertise in the area of appellate decision-making or administration. My comments are based upon anecdotal information, not detailed statistical or other research which I hope the Commission will undertake.
As I mentioned earlier, the Ninth Circuit has labored long under a shortage of judges. The problem of tardy decisions and large backlogs, to which some critics of the Ninth Circuit point, is a self-fulfilling accusation when the accuser has the ability to stall appointments. Increasing the transportability of appellate judges would ameliorate this situation. When a district court such as Alaska has found itself short of judges for a lengthy period of time, we have been fortunate to find the Ninth Circuit quite willing and able to provide assistance by designating judges from larger districts (such as the Central District of California) to Alaska to help. Liberalizing and enhancing the means by which appellate judges can be thusly loaned between circuits could, I believe, go a long way toward ameliorating the kind of problem faced by the Ninth Circuit when replacement judges are not timely nominated and confirmed.
Attention should be given to imposing the liberalization of en banc rules. Important, controversial issues coming before appellate courts could be decided by an enhanced panel--if not in the first instance on petition of the parties, then after the decision of a three-judge panel. I recognize that identification of "important cases" is subjective and therefore potentially difficult. Nevertheless, experienced judges can readily identify those problems which are likely to be of supreme importance to a significant number of people, and a vehicle for an enhanced panel to consider such cases is, I suggest, worthy of consideration.
The Commission might also consider a means of modifying the selection of panels. A large, fully staffed, appellate court is probably going to have multiple judges from all of the states making up the circuit. (I say "states" on purpose because some are made up of multiple districts.) I suggest that appellate courts would appear more "user friendly" if the panel selection process were structured so that at least one judge of each panel was from the state of origin of the case. I suggest this process not for criminal cases where we have national law, but rather for civil cases, perhaps limited to those which involve application of law peculiar to a given state.
In my opinion, and except for the failure of the Executive and Congress to timely fill vacancies, the Ninth Circuit is working. By that, I mean the Ninth Circuit is well administered. The size of the Ninth Circuit has in many respects been a positive factor, not a negative one. Economics of scale have allowed the Ninth Circuit to be out in front of all of the other circuits on numerous projects. The Ninth Circuit took the lead on inquiring into racial and other fairness concerns within the judiciary and the bar. The Ninth Circuit has taken the lead in the matter of planning for new courthouses and construction processes. In the latter regard, Senior Judge Coyle of the Eastern District of California and a group he assembled under the auspices of the Ninth Circuit Space & Security Committee have literally written the book on how to plan and oversee the construction of a new courthouse. They put on seminars on the subject all over the country.
A small district like Alaska has benefitted significantly by being a part of a large, powerful, and influential circuit. The circuit administration has been responsive to our needs for loaned judges when we were short, for funds when we could not fund local projects, and with consultants on various subjects. A different administration of a newly formed court might do as well by us. But I am not interested in taking the risk. I believe the taxpayers of the United States should not have shoulder the expense of two large circuits when one very large circuit is being effectively and efficiently administered.
Thank you for this opportunity to comment to the Commission. I will be attending the session in Seattle, and will be pleased to answer questions from the Commission.
1. If there is too much work, or too many undecided cases, it is because of delays in the appointment process. With computer tracking used by the Ninth Circuit, tracking prior decision on an issue is not a problem. Getting judges to follow precedent is another matter, and one which may require institutional change, but not division of a circuit court.
2. A variant of this complaint was heard last year with respect to one extraordinarily important Alaska decision. I heard from those both in and out of government that "California judges of the Ninth Circuit do not understand Alaska." In the decision I have reference to, two California judges were joined by a Montana judge; and one of the California judges really wrote a dissent, which he called a concurrence for technical reasons. That did not affect the disparaging characterization of the decision by those who disagreed with it.