Honorable Byron R. White
Chairman, Commission on
Structural Alternatives for the
Federal Courts of Appeals
Washington, D.C. 20543

Dear Justice White:

Four of us have served as the Chief Judges of the Ninth Circuit over the last 22 years. Judge Schroeder has served the Ninth Circuit for almost 20 years and will be its next Chief Judge. We are intimately and thoroughly familiar with the circuit and how it functions. We join in responding to the concerns raised by Justices Kennedy, O'Connor, Scalia and Stevens.

Lest the Commission have any doubt, we reaffirm our unanimous conviction that the Ninth Circuit, including its court of appeals, performs its function exceedingly well. All of Justice Kennedy's comments point to his view that two or more smaller circuits would be better. We believe, to the contrary, that the Ninth Circuit offers the best alternative for the future organization of the intermediate appellate courts of the nation.

At the outset, Justice Kennedy suggests that "persuasive, specific justifications for retaining" the Ninth Circuit have not been presented to the Commission, and that the burden rests upon the circuit itself to demonstrate that such justifications exist. The Judicial Conference of the United States has concluded, wisely we think, that the burden is on the proponents of division, and "[c]ircuit restructuring should only occur if compelling empirical evidence demonstrates adjudicative or administrative dysfunction." Long Range Plan for the Federal Courts 44 (1995). No such evidence has been submitted to this Commission. On the contrary, the record from the bench and bar of this circuit--those most familiar with the court--overwhelmingly indicates that the circuit is performing well.

Justice Stevens states that he is just making one point--that it is his conclusion that the arguments in favor of dividing the Ninth Circuit into 2 or 3 circuits outweigh the single serious objection--that of dividing California. The testimony before the Commission presented many serious disadvantages to division and minimal advantages. The prospect of dividing California is, indeed, most undesirable. We note that if this precedent is followed, the Fifth and Eleventh Circuits will soon be facing a similar issue with regard to Texas and Florida.

Justice Kennedy's first specific concern is that the size of the circuit encourages its judges to avoid writing broadly phrased opinions. Many would argue that an intermediate appellate court, as distinguished from the Supreme Court itself, should draw its opinions narrowly, deciding only the questions before it. In this way, our judges collectively build the law of the Circuit, decision by decision. We regard the size of our circuit, the resulting diversity of its judges and their points of view, and the differing ways in which they develop their opinions, as assets in this process.

In any event, examination of our court's opinions belies Justice Kennedy's characterization. On the Ninth Circuit, as on every court, some judges write narrowly, others broadly. The narrowness or breadth of each opinion is determined by the individual choices of the author and members of the panel.

Justice Kennedy's second concern is that there is an unacceptable risk of intracircuit conflicts. There is no empirical evidence that the Ninth Circuit Court of Appeals is more subject to intracircuit conflicts than any other. Indeed, the evidence is to the contrary. See Federal Judicial Center, Structural and Other Alternatives for the Federal Courts of Appeals 93-95 (1993). Justice Kennedy suggests that our judges' inability to read every published disposition may cause "inadvertent intracircuit conflicts." The assumption that judges on a court cannot keep abreast of panel opinions is a relic of the pre-computer era. Twenty years ago, a judge who did not "keep abreast of the jurisprudence of the court" did run a risk of creating inadvertent intracircuit conflicts. Today, the decisions of the court are available to every judge and are at the desk of every law clerk within hours of filing. When relevant to a new appeal, the decisions can be readily retrieved through computerized research whether handed down ten years earlier or the day before. It is routine procedure to check for relevant decisions constantly in preparing our work.

We have developed and continue to improve a system by which the issues decided in each case are promptly identified, possible conflicts are called to the attention of the writing judges, relevant decisions are made available to other panels facing the same issue, and cases involving the same issue are placed before the same argument panel. Inadvertent conflicts are consequently very rare. And on the rare occasions when they do arise, we are quick to resolve them. Justice Kennedy suggests that we do not employ our en banc procedure frequently enough to deal with the occasional conflicts. To our collective knowledge, no en banc request based upon a real conflict has been rejected. It is thus not surprising that no critic of the circuit has pointed to the specific examples of meaningful conflicts in our case law. Because of the immediate availability of new opinions, our access to comprehensive electronic databases, and the elaborate steps taken to avoid and correct conflicts, it is not difficult for our court to minimize potential intracircuit conflicts.

Justice O'Connor suggests that we do not employ our en banc process frequently enough because only eight en bancs were resolved in the fiscal year ending September 30, 1997, and that more cases should have been heard en banc. Justice Scalia concurs, citing our reversal rate as evidence that the "error-reduction function" of en banc rehearing is not working in the Ninth Circuit. Rule 35(a) of the Federal Rules of Appellate Procedure provides:

(a) When Hearing or Rehearing in Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

Obviously, we are bound by this rule, which was approved by the Supreme Court and enacted by Congress. The Justices are, no doubt, unaware that we have a very active monitoring process among the judges of the full court. During the 1996 calendar year, there were 25 calls for en banc by judges, and the full court voted to take 12 of those cases en banc. For the 1997 calendar year, there were 39 calls for en banc by judges, and the full court voted to take 19 of those cases en banc. Each call is supported by a detailed memorandum by the calling judge, expressing the reasons for the call. The panel responds, and numerous other judges submit thoughtful legal memoranda opposing or supporting the en banc call. The full court is very involved and well-informed when it votes on whether to take a case en banc. If the full court votes not to hear the case en banc, it is a judgment of the full court under the dictates of Rule 35 that the panel opinion should stand. Perhaps if more en banc decisions are desirable, the Commission should consider suggesting a revision to Rule 35.

Justice Scalia indicates that a disproportionate number of cases were taken by the Supreme Court for review. However, the chart supplied by Justice Scalia shows that for the six-year period from 1992 to 1997 a total of 574 cases were argued and of those 103 were from the Ninth Circuit, which is 18% of the total. This corresponds very closely to the percentage of cases decided in the Ninth Circuit, as compared to the total in the country. For the year 1997, a total of 94 cases were argued in the Supreme Court, 17 of which were from the Ninth Circuit, which was 18%. The reversal of 14 was within the historical norm for the Court's reversals nationwide.

Justice O'Connor and Justice Scalia suggest an en banc court consisting of less than all the active judges of the court is undesirable. The Ninth Circuit adopted its present 11-judge en banc in 1980, pursuant to the authority of Congress. We have used the procedure for 18 years with virtually universal approval within our circuit. To suggest that an en banc court should include all of the court's judges misses its purpose. As Judge Merritt pointed out at the Commission's San Francisco hearing, the en banc court is not designed to be representative, just as the Supreme Court is not designed to be representative.

Rather, its purpose is to resolve conflicts and provide an answer to questions of "exceptional importance" that will be respected by judges and litigants alike. There is no suggestion within or outside our court that our en banc process does not serve these functions. Decisions of our en banc court are respected by every member of the court as acceptable resolutions of the problem involved. The full court has never exercised its expressly reserved power to review such a decision.

The Federal Courts Study Committee concluded that the Ninth Circuit's "limited en banc appears to allow more efficient use of court of appeals' resources and should be available to all the other courts of appeals." Report of the Federal Courts Study Committee 114-15 (1990); see Subcommittee to Study Circuit Size, Appellate Practice Committee, American Bar Association, Report of Federal Circuit Size, Appellate Prac. J. and Update 5 (Winter 1993). No evidence before the Commission undercuts this recommendation.

Justice Kennedy's third concern seems to be that the size of the Ninth Circuit precludes intercircuit conflicts that would arise if the circuit were divided. The universal assumption has been that dividing circuits would not resolve the problem of federal caseload growth, and the resulting rise in intercircuit conflicts would increase the burden imposed upon the Supreme Court. If one were to accept Justice Kennedy's contrary premise that intercircuit conflicts help the Supreme Court by providing fuller exploration of the issues, division of all circuits would be desirable. Before recommending acceptance of this premise, however, the Commission should carefully weigh the consequences of such a change.

Justice Kennedy's fourth suggestion is that division of the Ninth Circuit is appropriate because an increase in the present number of circuit judges is inevitable. As the material submitted to the Commission demonstrates, past efforts to prophesy the number of circuit judges that will be necessary to manage the federal caseload have been notably unsuccessful. The circuit courts have increased their productivity per judgeship many fold over the last 25 years, and continue to develop new and more effective ways to handle their business. Additional changes now being implemented in the Ninth Circuit offer further promise. We believe that the Ninth Circuit Court of Appeals can properly discharge its duties for the foreseeable future with only such moderate increases in judgeships as are well within the capacity of the court to handle.

Justice Kennedy's fifth concern is that attorneys of the highest quality will be unwilling to join a court as large as ours. There is no indication that this concern is warranted. On the contrary, the judges recently appointed and those under consideration have been drawn from a large pool of outstanding members of the bench and bar. The opportunity to participate in a court as diverse, active, and innovative as ours is a highly attractive prospect to the best in our legal profession.

Justice Kennedy's sixth concern is that a large circuit drawing judges from widely separated communities leads to loss of identification between local communities and our court and judges. One consequence of this, he suggests, is that the influence of self-serving political interests in the selection of judges will increase. We do not share Justice Kennedy's view. The filling of vacancies on the court will continue to be of intense interest to the members of the bar. We have no doubt that the active, critical participation of the bar and the public in the selection process, and the intense competition for the few openings that are available, will prevent the forces of darkness from overtaking the appointment process.

Justice Kennedy's seventh concern seems to be that the size of the circuit undermines values of federalism. Justice Kennedy fears that the relationship of our judges to their local communities is somehow diminished in a large circuit. Nearly all of the present members of our court maintain their residences in the communities from which they came, and continue regular and ongoing contact with local interests and points of view. There is no reason to assume that intermittent contact with other parts of the circuit in the course of their duties will diminish their sensitivity to local issues.

Finally, as for Justice Kennedy's proposed realignment, the record before the Commission clearly describes the serious drawbacks to the separation of the Northwest, to the isolation of Arizona, and especially to the division of California. Contrary to the suggestion of some of the Justices, division of a state between circuits would create serious problems. Even if the Court could grant certiorari and promptly resolve every explicit intercircuit conflict affecting California, even small differences in the legal standards imposed by the different circuits would create significant difficulties for state authorities and statewide corporations. For the reasons amply explored at the Commission's hearings, such proposals should not be recommended.

Respectfully submitted,

Chief Judge Procter Hug, Jr.
Chief Judge Emeritus James R. Browning
Chief Judge Emeritus Alfred T. Goodwin
Chief Judge Emeritus J. Clifford Wallace
Circuit Judge Mary M. Schroeder