Congress has directed the Commission to study the "structure and alignment of the Federal Courts of Appeals system, with particular reference to the Ninth Circuit," and to recommend "such changes in circuit boundaries or structure as may be appropriate for the expeditious and effective disposition of the caseload of the Federal Courts of Appeals." Towards that end, the Commission has invited testimony on three issues: (1) perceived problems in the federal appellate system's structure; (2) appropriate remedial measures; and (3) what is working well in the appellate courts.

The Attorneys General of three western States have submitted testimony to the Commission identifying their concerns. As the Attorney General of Oregon, I share some of those concerns. I write separately, however, because unlike my colleagues I am not convinced that dividing the Ninth Circuit will solve the problems that concern us. I reach that conclusion for two reasons. First, the problems attributed to the Ninth Circuit do not appear to be a function of its size as much as they are a function of the rapidly expanding federal caseload. Second, if the source of the problem is an expanding caseload, it is one that all circuits have or will share in the near future. Dividing the Ninth Circuit does little to answer the long-range issues the federal courts of appeals face.

Oregon shares, along with the other States in the Ninth Circuit, a concern that the court's decisions be issued promptly and that the panel decisions within the circuit be consistent. Although others have suggested that splitting the circuit will increase the speed of its decisions, it is difficult to see why that is so. The parties are primarily responsible for time it takes to brief a case. Once the briefing is completed, the time in which a case is scheduled for argument depends on the number of cases pending and the number of panels available to hear them. And the speed with which the panel decides a case has no apparent connection to the size of the circuit.

In our experience, the Ninth Circuit has generally issued panel decisions quickly after they are argued, although some cases have taken longer. It seems far more likely, however, that the length of time it takes to issue a decision is a function of the complexity of the case rather than the size of the circuit. Although Oregon has not litigated a capital case in the Ninth Circuit for some time, I appreciate the concern other western States have about the time those cases have taken. The Antiterrorism and Effective Death Penalty Act, however, should go far toward remedying those concerns. If it does not, procedural rules can be adopted to ensure that capital cases are resolved in a timely fashion. In short, I am not convinced that splitting the circuit is necessary to resolve the issue.

There may be a greater correlation between the size of the circuit and the potential for inconsistent panel decisions. The proliferation of decisions in large circuits makes it more difficult for judges to keep up with the court's work product, and increasing the number of judges increases the possibility for variation among panels. The lawyers, however, bear a large measure of responsibility for bringing relevant decisions to the panel's attention. And the greater number of published decisions the Ninth Circuit produces, along with the decisions from the other courts of appeals and the Supreme Court, go a long way toward ensuring that any panel, however constituted, will resolve a case within predictable guidelines.

In my view, the more pressing problem the federal courts of appeals face is the rapidly expanding caseload they are being asked to handle, a problem that is not limited to the Ninth Circuit. If Congress meets that problem by increasing the number of judges rather than limiting the federal courts' jurisdiction, other circuits will soon face the issue the Ninth Circuit now faces: As the number of judges increase, how can a circuit maintain the quality of its decisions and the collegiality that have been the hallmark of the federal courts of appeals?

Perhaps one answer would be to split every circuit whenever it reaches a set number of judges. Not only do the benefits of that approach seem doubtful for the reasons noted above, but the resulting problems that approach entails are substantial. Others have commented on the difficulty that a State such as California poses for any rational division of the Ninth Circuit. The problem is equally difficult for the Fifth and Second Circuits, each of which contains a similarly dominant State. Splitting circuits also multiplies administrative costs. It prevents the courts of appeals from taking advantage of economies of scale and instead requires unnecessary duplication of adminstrative services. Finally, multiplying the number of circuits runs the risk of Balkanizing what is now a national court system.

In my view, splitting the Ninth Circuit is not an answer for the larger issues that the federal courts of appeals face. Indeed, far from being a problem that needs to be solved, the Ninth Circuit may be a model for other circuits as they face the pressure of an increasing caseload and the attendant growth. The sort of internal reforms that the Ninth Circuit has adopted to improve its efficiency, to promote consistency, and to maintain the quality of its decisions may well provide direction for the other circuits as they deal with growth in the future.