May 24, 1998

Commission on Structural Alternatives
for the Federal Courts of Appeals
Washington, D.C. 20544

Dear Members of the Commission:

Pursuant to the Commission's news release of February 26, 1998, I respectfully request that this statement in letter form be received in lieu of oral testimony. The diskette version is in WordPerfect 8. My statement is limited to one subject:

the unwisdom of proposals to split the Court of Appeals for the Ninth Circuit.

So that you can assess my perspective, I summarize my background. After serving as a law clerk to Supreme Court Justice Felix Frankfurter and as an Assistant United States Attorney for the District of Columbia, I became a law teacher and I have taught for the past 35 years at the University of Pennsylvania, Stanford University, and New York University. I have taught primarily federal substantive and adjective law, including criminal procedure, evidence, and seminars on issues of constitutional law and civil rights. I have written books and articles on federal habeas corpus and removal jurisdiction and practice and on federal constitutional law topics, and I have taught federal practice at workshops and training programs for legal-services and civil-rights lawyers.

Throughout these 35 years, I have been heavily involved in pro bono litigation. I have handled numerous appeals and prerogative writ proceedings in the Court of Appeals for the Ninth Circuit and have appeared before every federal court of appeals except the First and Tenth Circuits. I have practiced extensively in the Supreme Court of the United States; I have given invited lectures at the judicial conferences of three circuits; and for five years I was a member of the California Federal Selection Commission for Federal Judicial Appointments and United States Attorneys.

I have tried to review all of the proposals for dividing the Ninth Circuit and the arguments supporting them. My purpose was not to criticize them individually, but to see whether any of them overcame what seems to me to be a fundamental flaw in the idea of splitting the Circuit. None of them does; and I therefore feel that I can fairly deal with them generically ­ and thus limit my intrusion on your reading time ­ by explaining why I think that the basic notion of splitting the Ninth Circuit is misconceived.

At the core, every Circuit-splitting proposal stands or falls upon the same factual premise and the same logical proposition: the Ninth Circuit serves too big a population, has too many cases, needs too many judges; these numbers are rapidly getting even larger; therefore, such an over-sized Circuit should be broken up into smaller ones. All of the Circuit-splitting proponents' other arguments are either ancillary to this one or makeweights.⁽¹⁾ So, for example, the argument section of Senator Conrad Burns' 1996 article in favor of splitting the Ninth Circuit begins as follows:

"The Ninth Circuit spans nine States and two territories covering fourteen million square miles. It serves a population of more than forty-five million people. The next largest circuit in terms of population, the Sixth Circuit, serves fewer than twenty-nine million people; in fact, every other federal circuit serves fewer than twenty-four million people. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than sixty-three million people, which represents a forty-three percent increase in fifteen years."⁽²⁾

But this entire argument stops rather too soon, both in time and in analysis. According to the latest Census Bureau projections, the State of California alone will have a population of 49,285,000 by the year 2025.⁽³⁾ According to Senator Burns' reasoning, California should then be allocated two federal circuits within the State. And in the same year 2025, Texas (projected population = 27,183,000) will need its own circuit, while Florida (projected population = 20,710,000) will be on the verge of needing a separate circuit, too.⁽⁴⁾

Little imagination is required to see where this trend will take us. Unless the federal circuits learn how to handle populations and caseloads like those of the present Ninth Circuit without periodically subdividing like amoebae, we will end up with more than a few one-State circuits and at least a few multi-federal-circuit States. And that would be as heedless of the past as of the future. For the whole conception of a system of federal courts below the Supreme Court level has always been that these courts should be national courts, with a national outlook. Congress has created the lower federal courts and given them jurisdiction over matters of national interest precisely because they are supposed to be immune against the parochialism of the state courts⁽⁵⁾ and independent of the State-based political pressures that keep the state courts parochial.⁽⁶⁾ I do not, by the way, use the term "parochial" with any invidious connotation. The genius of the American federal system is that it has a place for both parochialism and nationalism. They are complementary. But to maintain the traditional balance of the system, national courts must keep their national perspective, just as it is altogether appropriate for local courts to keep their local character. And the federal courts are not likely to keep a national perspective when they are cabined within one State.⁽⁷⁾

So, if we look ahead any considerable period of time, we must either go on circuit-splitting in a way that is calculated to reduce at least some federal circuits to one-State provincialism (or part-of-one-State provincialism), or we must develop techniques of federal judicial administration for retaining efficiency despite bigness or even making bigness an asset instead of a liability in judicial administration. We should not dismiss these latter ideas as impractical in a day when something of the sort has become the global rule of the road even for the automobile manufacturing industry. And, as it happens, the Ninth Circuit today ­ partly because of its size ­ stands at the forefront of creative developments and successful experiments that have increasingly demonstrated to the Nation that there are ways to be both big and efficient. These include the Ninth Circuit's pioneering Bankruptcy Appellate Panel; its effective use of staff attorneys; the training programs and uniform procedures developed by its Death Penalty Task Force; its electronic communications and case tracking systems; its settlement program and creation of a committee to promote alternative dispute resolution practices.

And that, I think, is where the proponents of Circuit-splitting have really got their lenses out of focus. To be sure, as they never tire of observing, the Ninth Circuit now has gotten quite big. Indeed, it is almost as big now as several federal circuits will necessarily become in the mid-range future. For this very reason, the Ninth Circuit now is in a position to lead the federal judiciary toward developing workable procedures for functioning well at a size that the federal circuit courts must eventually learn to live with as the only alternative to provincialism -- indeed, to Balkanization. And the Ninth Circuit is in fact meeting this challenge inventively. To bust it up at this juncture as "too big" would be staggeringly shortsighted.

Thank you very much for your willingness to receive these views.

Sincerely,

Anthony G. Amsterdam
Judge Edward Weinfeld Professor of Law
and Director of the Lawyering Program

1. For example, talk about the Ninth Circuit's geographic size is either a proxy for talking about its populousness or an irrelevancy in the wake of the revolution in worldwide communications technology in the past decade. And talk about intracircuit conflicts or about the number of Supreme Court reversals of Ninth Circuit decisions -- even if this talk were well-founded in fact, which it is not -- are manifest makeweights. Can anyone seriously imagine that splitting a circuit would be proposed as the remedy for these sorts of supposed ailments absent an assumption that the circuit's real underlying problem is too-bigness?

2. Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 MONT. L. REV. 245, 250 (1996).

3. PAUL R. CAMPBELL, POPULATION PROJECTIONS FOR STATES BY AGE, SEX, RACE, AND HISPANIC ORIGIN: 1995 TO 2025 (United States Bureau of the Census, Population Division, PPL-47) 52 (Series A) (1996).

4. Id.

5. Madison, for example, made this point in the constitutional convention just before he and Wilson moved the Committee of the Whole to authorize the national legislature to create lower federal courts. 1 FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787 125 (1911). See, e.g., Herbert Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 LAW & CONTEMP. PROB. 216 (1948).

6. Hamilton, writing in The Federalist, noted that "the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes." THE FEDERALIST, No. 81 (Warner ed. 1818) at 439. ; See, e.g., Paul J. Mishkin, The Federal "Question" in the District Courts, 53 COLUM. L. REV. 157 (1953).

7. See, e.g., Commission on Revision of the Federal Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Recommendations for Change, 62 F.R.D. 223, 231-232 (1973) [the Hruska Commission Report]; AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON FEDERAL JUDICIAL IMPROVEMENTS, REPORT, THE UNITED STATES COURTS OF APPEALS: REEXAMINING STRUCTURE AND PROCESS AFTER A CENTURY OF GROWTH 7 (1989). Judge O'Scannlain, who favors splitting the Ninth Circuit, has recognized this concern. Diarmuid F. O'Scannlain, A Ninth Circuit Split Study Commission: Now What?, 57 MONT. L. REV. 313, 318 (1996) ("creating a circuit exclusively for one state might tend to undermine the system of federalism envisioned by the Founding Fathers"). For this reason, his favored form of Circuit split is to yoke Southern California with Arizona and Nevada in one circuit and to yoke Northern California with the northwest States and the Pacific Islands in another. Id. Pursuit of this strategy as of the year 2025 ­ when the projected population of the nine States now in the Ninth Circuit will be more than 75,000,000 (see CAMPBELL, supra note 3, at 52) ­ would require dividing California among three circuits and brigading a third of the State with designated other States and/or islands in each.