Statement of James R. Browning,
United States Circuit Judge,
U.S. Court of Appeals for the Ninth Circuit,
before the Commission on Structural Alternatives
for the Federal Courts of Appeals
U.S. Courthouse, San Francisco, CA
May 29, 1998

My message is simple: "If it isn't broken" (and it isn't) "don't fix it." I add that altering a circuit's structure when the courts of the circuit are operating effectively may be destructive: "If you try, you may do more harm than good." This was the implicit conclusion of each of the three major studies of the federal appellate courts conducted during the last decade. Each advised against immediate restructuring of the federal courts of appeals, and instead recommended that the circuits continue the process of experimentation that has so dramatically increased their productivity, and that the Congress be asked to reduce their jurisdiction.

After conducting "the most comprehensive examination of the federal court system in the last half century,"⁽¹⁾ collecting extensive data, and holding hearings in nine cities, all with the assistance of several reporters, associate reporters, and other experts and staff, the Federal Courts Study Committee concluded that division of existing circuits "no longer appears practicable."⁽²⁾ The Committee "recommend[ed] no alternative structure at this point,"⁽³⁾ but encouraged greater experimentation by the courts, and greater delegation by Congress of the authority needed for such experimentation.⁽⁴⁾

Building on the work of the Federal Courts Study Committee, the Federal Judicial Center conducted a three-year study of "structural alternatives" for the courts of appeals.⁽⁵⁾ Again, it was concluded that structural changes were not then warranted, and might do more harm than good. Continued experimentation by the individual circuits and limitations on federal jurisdiction were among suggested alternative remedies.⁽⁶⁾

In 1995, after a five-year study, the Judicial Conference adopted a Long Range Plan for the Federal Courts, recognizing the need for "flexibility"; "encouraging the spirit of experimentation and innovation that has long existed in the federal courts," and recommending against realignment of a circuit's boundaries unless compelling empirical evidence demonstrates the inability of a circuit to operate efficiently.⁽⁷⁾

I believe this Commission will join its predecessors in concluding that continued experimentation by individual circuits is the key to meeting the judiciary's current problems, and that structural change is unnecessary and may be harmful.

The federal courts of appeals are not "broken"; they are working better today -- handling more appeals, more thoroughly, in a more timely manner -- than at any time in their history. No court system can claim perfection, but the system this nation has relied on for federal appellate justice for the last century is most assuredly working well.

This is evident in the Ninth Circuit. During the last decade, our Court of Appeals has been burdened by a major natural disaster, numerous judicial vacancies, and a substantial backlog of undecided cases. Despite these problems, we now have the third highest rate of dispositions per active judge among the courts of appeals; once cases are submitted to the judges, we have the fastest rate of disposition; and even with our still reduced strength, our annual terminations exceed new filings. Our vacancies are finally being filled, and we will soon again have no backlog at all. The Ninth Circuit is functioning exceedingly well.

Some disagree, asserting our court is too slow, is not collegial, is unable to maintain a consistent law of the circuit, and is dominated by California judges out of touch with the values of other states in the circuit. I have one question for those who hold these views. Where exactly is their evidence; where is the data to support their assertions? There has been no demonstration that the Ninth Circuit does not work effectively -- either generally or with specific reference to any of these criticisms.

Consider the problem of conflicting decisions. Academic studies and analyses by both the Federal Judicial Center and the Federal Courts Study Committee found no evidence that conflicts are a substantial problem in any court of appeals, including the Ninth Circuit, and no evidence at all of a correlation between consistency and circuit size.⁽⁸⁾ The apparent absence of inconsistent circuit decisions is confirmed by my own experience; I cannot recall even a single case on any recent calendar on which I have sat in which any genuine intra-circuit conflict was suggested by the parties or found by the panel.

This is not to say there are no inconsistencies, but those that occur are not numerous, egregious, or long lived. Some differences in approach and even in result are inevitable if federal law is not to become static and rote. We also understand that varying rationales for consistent decisions may pose difficulties both for trial judges drafting jury instructions and for counsel planning a client's future course of action. The court is now seeking ways to resolve this problem, and I am confident we can ameliorate this difficulty as well.

This and other arguments that the Ninth Circuit is "broken" rest on little more than the assumption that "big is bad" and the unsupported assertion that our Court of Appeals is "too big," or will become "too big" with inevitable growth. Such speculation is inadequate ground for structural alterations in the federal judiciary.

No one knows the optimal number of judges for the courts of appeals. When our court grew from three judges to seven in 1937, critics worried whether "a court of seven members with a wide range of ideological and jurisprudential viewpoints could provide justice across the circuit's massive geographical jurisdiction."⁽⁹⁾ Similarly, Professor Charles Alan Wright has pointed out that when he clerked on the Second Circuit in 1949 and 1950, "[i]t seemed perfectly clear" that the maximum number of judges a court of appeals could have without impairing its efficiency and unity was six ­ the number of judges then on the Second Circuit.⁽¹⁰⁾

In 1964, the Judicial Conference adopted the position that the maximum number was nine.⁽¹¹⁾ Eight years later, however, it drew the line at fifteen, leading the chairman of the Senate Judiciary Committee's Subcommittee on Improvements in Judicial Machinery to wonder "[w]hat chance [there was] that this prophecy will not prove to be like the other?"⁽¹²⁾

In 1977, Chief Justice Warren Burger suggested the maximum number was nine ­ the size of his D.C. Court of Appeals. He said: "By any measurement of logic, reason, or standards of judicial administration, [the Ninth] circuit cannot function effectively as one unit with thirteen circuit judges."⁽¹³⁾ Today, every circuit other than the First has a court of appeals of eleven or more judges. Similarly, Judge Tjoflat, former Chief Judge of the Eleventh Circuit, testified before the Commission that the maximum size of an effective appellate court was twelve judges. Yet six circuits have more than twelve judges and insist they are doing fine.

As the Ninth Circuit grew from 3 judges to 7, from 7 to 9, 9 to 13, 13 to 23, and 23 to 28, there were those who were sure the court had reached the maximum practicable size before the new judges arrived. In each case, that prediction turned out to be wrong. As Professor Wright said as to similar remarks in the Second Circuit in 1950: "When we made those comments, we were illustrating in striking fashion de Tocqueville's admonition against confusing the familiar with the necessary."⁽¹⁴⁾

The simple truth is that no one knows the maximum size a court of appeals may reach and remain effective, and we ought not to guess. What I do know is that our present court of twenty-eight is the most efficient this circuit has ever had. According to the Federal Courts Study Committee: "The Court of Appeals for the Ninth Circuit ­ a 'jumbo' circuit today ­ apparently manages effectively . . . and according to some observers is not unduly troubled by intracircuit conflicts. . . . Perhaps the Ninth Circuit represents a workable alternative to the traditional model."⁽¹⁵⁾

As Chief Judge Hug has demonstrated in his presentation to the Commission, the Ninth Circuit is not "broken" with respect to any of the bases asserted by its critics. Moreover, the Ninth Circuit has in place an effective, efficient system of continuous self-examination, which has in the past, and will in the future, permit such changes as are necessary to keep up with the changing size and character of our caseload, and the many other "unanticipated" challenges that lie ahead for the courts of appeals.⁽¹⁶⁾

Appellate justice in the Ninth Circuit is a dynamic process, not a static system. The innovations the court has adopted and the ongoing process of change it has set in motion should be preserved. The workload of every circuit will grow with its population; every circuit will eventually face the challenges the Ninth Circuit is now facing and dealing with ­ our experience, and our innovations, are relevant to every circuit.

This process of innovation should not be stifled by the imposition of "improvements" that may prove ill-suited to the differing circumstances of each circuit. Each circuit should be allowed to develop its own course. I believe this is the conclusion reached by each of the previous studies of this problem and underlies the uniform recommendation for continued experimentation by each circuit, rather than uniform change from without. I submit the Commission should resist the unquestionable temptation to suggest changes where none may be needed, and which may impede the evolutionary changes the circuits themselves will implement if permitted to do so.

Prior witnesses have suggested the Ninth Circuit should calendar cases to be heard by circuit judges residing in the region in which the cases arise. Consideration of this proposal illustrates both the dynamic character of the Ninth Circuit's efforts to innovate and the undesirability of imposing change from without. The Ninth Circuit experimented with this approach twenty years ago. A carefully structured system of regional calendaring was adopted with the specific approval of the Chief Justice. Regional calendars were established for the northern, central and southern regions of the circuit. Each judge was assigned to a particular regional calendar according to the location of their residence chambers. Judges in each region were free to experiment with caseload management devices and make necessary intra-regional administrative decisions, but the court continued to operate through a single circuit council and circuit executive's office.

The experiment was scheduled to continue for six months, but by vote of the court was terminated after five. Although the record is somewhat sparse, the principal reasons appear to have been dissatisfaction with the loss of the opportunity to participate in the full range of cases coming before the court, and to sit with all the judges of the court. The senior judge on one of the regional units reported: "There was a pervasive feeling that collegiality on the court was fast being dissipated."

The court will be happy to submit a full account of the experiment if the Commission wishes it to do so. Alternatively, the Commission is of course welcome to examine the files reflecting the initiation of the experiment and its ultimate rejection. My strong impression from both the court's files and my own recollection is that the experience left an abiding feeling that the separation of the judges of the circuit into three separate courts was incompatible with what the judges regarded as the court's central function of creating, maintaining and applying federal law across the whole circuit.

Shortly after the regional calendaring experiment ended, the court adopted local Rule 23, which "organized [the court] into three units for administrative purposes, while continuing to function as a unit for adjudicative purposes, assigning judges to calendars from a common pool." Describing the advantages of this approach to our lawyer representatives, the Court said: "Retaining adjudicative unity will foster the collegiality and interpersonal relationships among the judges essential to maintaining a reasonably integrated and consistent law of the circuit"; at the same time, "the creation of administrative units will achieve the managerial advantages that would have arisen from smaller circuits if the Ninth Circuit actually had been split." In short, administrative units were created solely for administrative purposes. Using these regional administrative units to perform the court's adjudicative function was not intended and, it would appear from the legislative history of Section 6, may not be authorized by Congress.

In my view, Chief Justice Burger identified the main objection to any proposal to divide the Ninth Circuit along regional lines because judges from a particular region may more faithfully reflect regional interests. As the Chief Justice said, "I find [it] a very offensive statement to be made that a United States judge, having taken an oath of office, is going to be biased because of the economic conditions of his own jurisdiction."⁽¹⁷⁾ I hope you too will reject this proposal.

I am proud of the Ninth Circuit. I believe its continued existence offers our best assurance of the survival and healthy development of the federal intermediate appellate court system.

1. Report of the Federal Courts Study Committee (April 2, 1990), at 3.

2. See id. at 118.

3. Id. at 117.

4. See id. at 171-83.

5. See Federal Judicial Center, Structural and Other Alternatives for the Federal Courts of Appeals (1993), at 1.

6. See id. at 105-6, 123, 155-57.

7. See Judicial Conference of the United States, Long Range Plan for the Federal Courts (December 1995), at 13-14, 44-45.

8. See Structural and Other Alternatives, at 93-95; Arthur D. Hellman, Maintaining Consistency in the Law of the Large Circuit, in Restructuring Justice 86 (Arthur D. Hellman ed., 1990); see also Report of the Federal Courts Study Committee, at 122-23.

9. David C. Frederick, Rugged Justice 216 (1994).

10. See Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in Judicial Administration, 42 Texas L. Rev. 949, 971 (1964).

11. See 6 Bernard D. Reams, Jr., and Charles R. Haworth, Congress and the Courts: A Legislative History 1789-1977 19945, 19968 (1978); see also Wright, at 953.

12. See id.

13. Chief Justice Burger's 1977 Report to the American Bar Association, 63 ABA Journal 504, 507 (April 1997).

14. See Wright, at 971.

15. Report of the Federal Courts Study Committee, at 122-23; see Structural and Other Alternatives, at 108.

16. See Long Range Plan, at 14.

17. 137 Cong. Rec. S12183, S12277 (August 2, 1991).