JESSE H. CHOPER
Earl Warren Professor of Public Law
University of California Law School
Berkeley, CA 94720-7200
Phone: 510-642-0339
FAX: 510-643-2673
EMAIL CHOPERJ @ BOALT.BERKELEY.EDU

Outline of Statement to Commission on Structural Alternatives
for the Federal Courts of Appeal
May 29, 1998

I represent no organization or constituency.

I have no special expertise in judicial administration generally or in the workings of the 9th Circuit specifically.

I appear as a professor of constitutional law who is an academic observer concerned with the effective development of federal law, and who has spoken at various times to programs of the 9th Circuit's Judicial Conference, meetings of judges of the Northern District of California, and several groups of magistrate judges and bankruptcy judges within the circuit.

Fair points can be made in favor of dividing the 9th Circuit. In particular, the 9th Circuit is largest in terms of area, population, caseload, and number of judges.

I think the last is most significant in terms of professional collegiality, not because 28 (or more) judges cannot be cordial toward one another, but because of the reduced opportunity of regular interchange and developed mutual understanding of different judges' approaches and viewpoints.

Nonetheless, good reasons must outweigh the disadvantages before radically changing an effective, albeit not perfect, institution.

I would advance three reasons for preserving the status quo:

1. There is overwhelming opposition to splitting the 9th Circuit by those most directly involved, particularly the judges themselves, as well as organized bar groups in the covered states. This reason alone should create a strong presumption against change. (Contrast the near unanimity of concerned judicial and professional opinion in favor of the two previous circuit court divisions by Congress -- the 5th in 1980 and the 8th in 1929.)

2. Although the states and territories included within the 9th Circuit encompass by far the largest geographical area and population of any circuit, these jurisdictions share significant legal interests. These include, as just a few examples that I have observed in another context, land and water issues and problems involving Indian tribes. Maintenance of one circuit promises advantages of efficiency and uniformity, especially with the 9th Circuit's system of issue coding for its cases.

3. It appears that a prominent motivation for splitting the 9th Circuit concerns judicial ideology: the court is seen as dominated by liberal, activist judges from California. While it is within Congress' constitutional power to act for this reason, this is neither a good nor an appropriate basis. It imposes significant costs, financial and otherwise, as compared to a more candid and straightforward exercise of the political branches' constitutional authority to select federal judges. Under our system of checks and balances, the President and Congress may influence a federal court's composition by choosing from a large group of highly qualified candidates with vastly different ideological preferences.