The Commission poses a broad range of questions about the "problems or difficulties" in the structure of the federal appellate system. Dividing the Ninth Judicial Circuit has been offered as an answer to some of these problems. Because of the importance of the matter to Western litigants and their attorneys, I will focus my statement on my reasons for advising against circuit division.

First, the points stated by Chief Judge Hug in his recent paper "The Ninth Circuit Functions Well and Should Not be Divided" are persuasive. It is as concise and authoritative a précis of the views of the constituents of this circuit as the Commission is likely to find, and it deserves to be studied with care and respect. The Report of the ABA Working Group on Structural Alternatives for the Federal Courts, adopted April 24, 1998, deserves similarly close attention.

Second, from the viewpoint of a practitioner rather than a judge, lawyers and litigants are deeply concerned about the possibility of having the law in our region (which includes all of the vital Pacific Rim trade area) develop in inconsistent ways. This would enormously complicate our work not only as advocates, but as advisors trying to help our clients conform their present and future conduct to the law. This effect would be significantly worse if (following some proposals including that of the Hruska Commission) California itself were to be divided between two circuits, with the accompanying Balkanizing nightmare for California business, residents and government. But even without splitting our state, splitting our circuit would be quite bad enough.

Third, speaking both as a federal appellate practitioner and as an active participant in Ninth Circuit institutions, a compelling case would need to be made in order to justify dismemberment of a body which has flourished in its existing form (except for the addition of Guam) since 1929. It is certainly true that the volume of cases filed in the Ninth Circuit poses technical challenges, but these challenges have been skillfully met so that our Circuit Court has become a model of institutional change. And the pressure of new filings is not increasing as inexorably as before-- indeed the rate of increase in the Ninth Circuit’s caseload, which had been running about 7% a year, has fallen into the 2-3% range for the past two years.

The question is not whether there are difficulties in managing a large circuit. Everyone recognizes that the size of the Ninth Circuit poses challenges not present, for example, in the First Circuit. The real questions are whether splitting the circuit will do much toward solving those difficulties, and whether such benefits as a split might offer would justify either the difficulties the split itself would cause, or the loss of the positive advantages both of a large circuit and of institutional continuity.

To take the first aspect first, there is no point in splitting the circuit, only to duplicate existing problems on a smaller scale. If the circuit were to be split roughly in accordance with its caseload, so that (as for example with the approximate 2:1 split suggested in 1995) the rump Ninth Circuit were left with 2/3 of its caseload and 2/3 of its judges, and a new Twelfth Circuit were created with the remaining 1/3 of the judges and 1/3 of the caseload, there would then be two circuits with exactly the same caseload pressures as now exist. If the judges and the caseload were not divided in the same proportions, then judges and litigants would have an easier time of it in some states and a harder time in others. Neither response makes any sense as a solution to caseload pressures. The same analysis holds for virtually any statistical measure of volume. As former Chief Judge Goodwin has noted, "[t]he problem is not structure, but workload. Creating more regional circuits would not diminish the work, but merely divide it."

There are several approaches to problems of volume. One is to add more judges (or at least fill authorized vacancies) rather than divide the existing judges into two circuits. As the Chief Justice has recently urged, the President should act promptly to fill the existing vacancies, and the Senate should act on them within a reasonable time. At the very least, the circuit court should be allowed to function at full authorized strength for a significant period. And the current request for additional circuit judgeships should be promptly approved, and these new positions promptly filled by the President and the Senate.

A second approach to problems of volume focuses on reducing demand for circuit review. This approach is hard to implement, because most of the devices available for doing so are arguably bad policy for other reasons. Nevertheless, restricting federal jurisdiction would eventually reduce the volume of federal appellate filings. So would limiting the right of appeal, by certiorari or by establishing district court appellate panels. So would siphoning off particular types of actions into specialized systems, on the model of the reformed bankruptcy court system or the Federal Circuit-- immigration, social security, taxation, and habeas corpus actions are often mentioned as candidates for such treatment. Whatever the merits of these proposals (and there are many others), they need to be considered for national application, as remedies for a crisis in volume which affects the whole system, not just our circuit. There are also inherent limits to circuit-splitting as a response to increased filings. As Thomas Gee asked in 1978, "[A]re we to continue the splitting process until it becomes mincing, with a United States Court of Appeals for the Houston Metropolitan Area?" What then would become of the federalizing function of the circuit courts: avoiding a parochial viewpoint at the circuit level by including several states within each judicial circuit?

A third approach to problems of volume is more efficient use of existing resources. The Ninth Circuit has long been an acknowledged leader among the circuits in developing new, innovative techniques in this area. An outstanding example is its appellate mediation program, which for two years now has significantly ameliorated caseload pressures by settling approximately 20% of civil appeals (not counting habeas corpus or pro se cases, but including many of the more complex cases). This has significantly reduced the number of merit determinations required of our judges.

In 1971 the Judicial Conference of the United States "endorsed the conclusion of its Committee on Court Administration that a court of more than 15 would be ‘unworkable.’" But that has not by any means proved to be the case. The virtuosity of the Ninth Circuit leadership in adapting to new technology and new conditions has repeatedly shown the pessimistic forecasts of pro-split advocates to be unfounded. For example, in 1973 the Hruska Commission stated that the division of the Ninth Circuit into territorially based administrative units could not possibly be a useful reform. But the reform was made anyway, and it has been a meaningful advance in circuit efficiency.

To take another example, many commentators have urged as a reason for splitting the circuit that a large number of judges leads to a large number of possible panels, with a supposedly concomitant increase in intra-circuit conflicts. But when Professor Hellman examined this question empirically, he found that there was no significant increase in intra-circuit conflicts, and such apparent conflicts as existed were largely attributable to factors (such as factual disparities and absence of circuit precedent on point) unrelated to the size of the circuit. Similarly, the unwieldiness of full en banc review in a large court was primarily responsible for the decision of the judges of the old Fifth Circuit to seek division. But the judges of the Ninth Circuit chose instead to experiment with limited en banc panels, and this has worked so well that the provision for further review by the full court has never been invoked. Circuit statistics show only 24 cases in the 18 years from 1980 to 1997 where intracircuit conflict was even a partial reason for granting en banc review.

More cases mean more opinions. But limiting publication of decisions which only restate settled law or apply it to fact-specific grounds for appeal not only reduces the risk of intra-circuit conflict but saves judicial time by limiting the volume of opinions members of the court need to read to stay current on the law of the circuit. Classification-based methods of case management equalize demands on panels by routing cases to separate tracks according to the weight and novelty of the issues involved, and minimize research demands and intra-circuit conflicts by "clustering" appeals on similar issues in similar panels. This system also avoids conflicts by notifying deliberating panels of pending decisions by prior panels. The Court’s rotating executive committee and restructured circuit council reduce administrative demands on judicial time. The circuit is a pioneer in innovative use of modern electronic communications methods to streamline panel deliberations. Examples could be multiplied.

Further experiments (for example the current program using appellate commissioners for motion and fee practice, and possible future use of video conferencing for en banc hearings and deliberations) can be expected to keep the Ninth Circuit the nation’s most creative judicial laboratory. Thus to divide the Ninth Circuit "would be to lose the benefit of an experiment in judicial administration that has not yet been allowed to run its full course, an experiment that may be critical to understanding the future of the federal appellate courts." For the future may as easily lie with fewer, larger appellate courts (the "jumbo" model) than with an ever-increasing number of smaller ones. Since the partition of the old Fifth Circuit, the Ninth Circuit has become, as former Chief Judge Browning put it, "the only remaining laboratory in which to test whether the values of a large circuit can be preserved." It would be unwise to partition the Ninth Circuit (particularly before vacancies are filled), if for no other reason than to preserve a working model of a large appellate court. As Professor Hellman has written, "[o]ver the last decade, the Ninth Circuit has undertaken a remarkable range of innovations in an effort to determine whether a large circuit can be made to work effectively. Nothing could be more useful to Congress as it considers future systemic reform than to have the concrete empirical information that the Ninth Circuit’s experimentation will provide."

Even within the present structure of the appellate courts, while there are undoubtedly institutional advantages to a small circuit, there are advantages to a large circuit also. Benefits of smaller circuit courts are offset by the reciprocal need to have more of them. For every gain from division, there would be a corresponding loss. For example, improved collegiality would be offset by lost diversity. Savings on travel would be offset by duplication of facilities. Lessening of intra-circuit conflicts (if any) would be balanced by an increase in inter-circuit conflicts, which given the restricted docket of the Supreme Court would be harder to resolve. Decreased volume of decisions would be offset by a diminution of the "federalizing function" of the courts of appeals. The supposed increase in predictability resulting from fewer panels would be offset by decreased predictability due to a smaller universe of in-circuit cases on point. Eliminating "California influence" from the new Twelfth Circuit (even if that were desirable) would be offset by its increase in the restructured Ninth. Marginal efficiencies throughout the system would likely be offset by marginal inefficiencies. And the advantage of a unified body of law for the Pacific region would be lost with no corresponding benefit.

Thus, splitting the circuit is unlikely to lead to a net improvement, either in the quantity or the quality of federal appellate justice in the West. Some issues (like the circuit’s reversal rate) are red herrings, unaffected by the crisis in volume and would likewise be unaffected by a split. With other issues, which are related to volume, either matters would remain roughly the same, but in smaller units, or institutional advantages would be at least balanced, and possibly outweighed, by institutional disadvantages. Proponents of a split have not shown either national or genuine regional benefits sufficient to justify dismembering the Ninth Circuit. Accordingly, the opinion of the bench and bar in the circuit (which opposes a split) ought to be a useful guide. This is a critical difference between the present situation and the split of the Fifth Circuit in 1980. There the local circuit judges unanimously favored the split; and their wishes were respected. The same respect should be afforded here, where most of the circuit judges (as well as district judges and bar associations) oppose it.

Congressional leaders from the Northwest have introduced legislation to split the Ninth Circuit almost every year for the past ten years. The proponents of these measures have never succeeded in justifying them and they failed. However the boundaries are drawn, the proposed new circuit is inevitably centered on the Northwest. The actual concern of the proponents of a split seems to be with the substantive law of the circuit (largely as it relates to economic issues such as fishing, logging, mining and Native American rights) rather than with the efficient operation of the circuit court. But everyone (even proponents of a split) formally acknowledge that circuit boundaries should not be tampered with for political purposes. The Commission would be wise to resist firmly any arguments for circuit division not based entirely on the fair and efficient administration of justice.

To conclude, it is a very grave matter to dismember an institution which has flourished (and indeed provided a national model) within its present boundaries for almost 70 years. Those who wish to do this have an especially heavy burden to show why dismemberment must be imposed from the center, against the wishes of almost all constituents of the institution. This burden cannot be met merely by showing that there are problems. Hardly any institutions function without problems, especially those (like all federal courts including the proposed Twelfth Circuit) subject to demands which increase for reasons beyond their control. To carry their burden, the partisans of such a drastic and potentially damaging change must also show that the change they propose will solve these problems without substituting new ones, and that these problems cannot be solved in a way which preserves the institution they say they are trying to benefit. The aura of inevitability with which proponents of a split have attempted to lend to their proposals since at least 1937 is quite undeserved. For the tenth time in nine years, those who want to split the circuit have failed to carry their burden.

April 29, 1998