By
John P. Frank
San Francisco, California
May 29, 1998

My name is John P. Frank and I am a senior member of the bar of the state of Arizona and am on the Senior Advisory Board of the Ninth Circuit. On the basis of more than 40 years of experience here, I can testify that the Circuit does its job well. It is well administered. While the sorry failure to fill vacancies in this, the busiest circuit, has created an enormous burden and undoubtedly does harm to the Court, the bar, and to the clients, the Circuit has done a remarkable job in the face of those obstacles.

I have been one of the principal bar members resisting proposals to divide the Circuit at least since the 1980s. I have been at all national hearings on this subject since, and probably, as a professional historian as well as a lawyer, can qualify as an historian of these events.

My goal today is to tell you, historically, what this controversy is all about. A veneer has been cast over this whole enterprise of inquiry as though it had something to do with judicial administration, collegiality, case disposition, and felicitous other matters which appear to be the subject of objective analysis. The effect is that these matters may be of interest and concern to you as you conduct your deliberations, but they are totally irrelevant as to why this enterprise has been undertaken. In the belief that some historical perspective may be useful to you as you confront your decision making, I would like to put into the record this account of how you and we get here at all.

I begin with a story from the Medford, Oregon Mail Tribune of July 17, 1988, which notes that the environmental rulings of the Circuit "have evoked the wrath of [a senator from Oregon] who is publicly attacking the court and its decisions." The story continues that this senator "advocates splitting the court into separate northern and southern circuits so judges would be closer to the issues on which they rule." The story reports that the senator’s wrath is especially directed at environmental decisions of the Circuit. On May 9, 1989, a senator from Montana sponsoring a bill to divide this Circuit charged that there was bias against his state on economic matters "in the legislative branch, the executive branch, and now in the judicial branch." On introduction of the division bill of 1989, a senator from Washington said, "Northwestern states, including my state of Washington, is simply dominated by California judges, and California attitudes. We in the Northwest have developed our own interests in every aspect of the law from natural resources to international trade. Our interests cannot be fully addressed from a California perspective."

The same bill was reported in the San Francisco Recorder, a publication of the San Francisco Bar Association, on June 5, 1989, discussing the "long-running fight between the Northwest’s pro-growth developers and suppliers and the environmentalists who accuse them of raping public lands and destroying wildlife." The story continues that the senators sponsoring the bill do so on the basis that the Circuit opinions "have come down on the side of environmentalists." This was made more concrete by the senator from Oregon in the Portland Oregonian on July 1, 1989, who sought at that point to eliminate judicial review altogether on environmental matters because "the courts, particularly the 9^th Circuit Court, are trying to take over the management of public lands." A few days later the Washington Legal Times reported the same matter in much the same way.

The fundamental reason why this panel is here today is, bizarrely enough, because of the spotted owl. After a Ninth Circuit opinion limiting deforestation in order to protect this specimen of an endangered species, a senator from Oregon announced that he was "dismayed by the Ninth Circuit’s handling of this matter . . . The court has been on a wild goose chase for eight months," according to the Portland Oregonian of January 26, 1989. The same paper reported on October 22, 1989 that beneath the argument over possible division of the Circuit "there lies a deep dissatisfaction – particularly in the Northwest – with the decisions the court is making." The report was extremely explicit, referring to "some of the most controversial decisions to affect the region over the last 20 years, including major decisions concerning logging of old-growth forests, imposition of the death penalty and Indian treaty fishing rights." The story continued that the senator from Oregon was "deeply upset" by decisions "restricting logging on federal forest lands," as well as the restriction on the construction of a dam in southern Oregon on the grounds that it did not comply with the environmental laws." While the matter was fairly reported by the Oregonian, it did not sympathize with the legislation. It said, "The view we take is that if Congress wants to change the laws, they should change them, but it is wrong to sabotage the laws by creating a special court to interpret them."

I must acknowledge that I was quoted in that same story in the Oregonian in 1989 as saying, "This proposal originates in the desire to get the fisheries and forests of the Northwest out of a nationally minded court. The immediate cause of this proposal is the fact that the circuit has been enforcing the Endangered Species Act, and (the bill) is directly and expressly aimed at creating a regionally packed court which will permit a non-enforcement of federal statutes relating to the environment."

The Portland Oregonian was not the only voice in the Northwest which resisted this approach. At the hearings in Washington in 1990 on the legislation, Circuit Chief Judge Goodwin, himself an Oregonian, stated that he had for fifteen years been an Oregon state judge, for two years a U.S. District judge in Oregon, and eighteen years a judge of the Ninth Circuit. He said, "California is the dominant ranking and commercial center for the West Coast. California has major ports which accommodate much of the international trade of the United States. California exports entertainment projects which, for better or for worse, influence the whole world. Yet I see no evidence that judges from Sacramento, San Francisco, Los Angeles, San Diego and other California posts dominate our court. For 17 years our chief judge was from Arizona. For the next 12 years our chief judge was from Montana. I happen to be from Oregon. If there is California domination, I am afraid Diogenes and his lantern will have to find it." As of the current time, Judge Goodwin would doubtless add that the present chief judge of the Circuit is from Nevada and that the next chief judge will be from Arizona.

This legislation to divide the Circuit did not succeed, but continued to be pressed.

On August 9, 1991, the Seattle Post Intelligence reported that the senator from that state was "particularly displeased with recent pro-environmental rulings in the Ninth Circuit court." As one of the other news reports of the region declared on June 17, 1991, "Timber-state interests are behind the push to split the circuit. They claim they are treated unfairly by federal judges from California who show more concern for the environment than for the economy of the Pacific Northwest."

The fact that the drive to divide the Circuit was for economic purposes, as these reports show, was no secret to anyone. The whole story was developed by Time Magazine in its cover story of June 25, 1990.

An odd feature of these various stories that somehow the south was discriminating against the north on environmental matters is that it was demonstrably not true. Clearly the district judges are local and they are making the first cut at the various decisions. One measure on the attitude of the Circuit is the occasional reversal of the district judges. One study showed that in the environmental cases, there were more reversals where the majority of the Circuit judges were from the northern states than the reversals by panels of whom the majority came from the southern states.

After a 1995 hearing on division, a senator from Wyoming asked a question of the Ninth Circuit witnesses. As a predicate of his question, he said, "I have found the Circuit continuously comes down on the politically correct side of environmental issues, leaving those from the West that depend on the multiple use aspects of the land to earn their living ‘empty handed.’ These decisions have significantly impacted the economies of many of our rural western states." Chief Judge Wallace responded to that question on October 12, 1995 saying, "The question seems to imply two things: that the decisions of the Ninth Circuit Court of Appeals on environmental issues are consistently ‘pro-environment’ and, I guess, that a new northwest circuit would somehow be more favorably disposed to environmental decisions that permit greater economic uses of the land. Both premises misconstrue fundamentally the actual and proper role and function of the courts in our three-branch system." A study of the 125 most recent environmental decisions by the Circuit at the same time showed that 64 of the cases had been decided in favor of pro-environmental interests and 61 against those interests. The striking point is that of the 64 pro-environmental cases, two-thirds of them had both northern and southern judges on them and almost all of the 61 cases which came down adverse to the environmental interests had both northern and southern judges on them.

The desire to create an anti-environmental court blends in with a certain xenophobia. There is jealousy which becomes hostility toward the state of California. There is not only the desire in some quarters to carve up the state, but also a spirit of repudiation.

A senator from Montana is quoted in the San Francisco Daily Journal, December 8, 1995, as supporting a split because "California thinking" dominates the court. The Recorder, September 11, 1995, attributes to the same senator the view that "the Ninth Circuit is dominated by California, too liberal on criminal justice matters, and harms the economic interests of the Northwest, particularly the timber and mining industries." A senator from Washington complained in the Congressional Record when a split bill was introduced on May 25, 1995, that "my state of Washington and our Northwestern neighbors are dominated by California judges and California judicial philosophy."

There is an astonishing blend of perception here. Anyone who thinks that Judge Wallace of California and Judge Rymer of California have the same "philosophy" as Judge Reinhardt of California is not reading the opinions!

This Commission will notice that the illustrations I have given come from the late 1980s and fairly early 1990s. You may, therefore, wonder whether your own presence here comes from later motivation and different circumstances. This would not be so. The striking fact is that for all of the drive to split the Circuit in order to advantage the resource exploitation interests, none came very close to success. There was no White Commission before now. The question arises as to whether there is somehow some independent and different factor at play today.

The answer is the only difference is that there has been some change of personnel. Let me turn precisely to the legislation which causes you to be conducting this hearing. The New York Times on September 20, 1997 reported that there had been a rider attached to a Senate appropriate bill to divide the Circuit. It says, "Similar legislation has been tried before without success. Its progress this year is largely traceable to a recent 9^th Circuit decision in which a panel of the judges, none from Alaska, decided a tax case in favor of Alaskan Indian tribes, arousing the ire of Senator Ted Stevens. The Alaskan Republican chairs the Appropriations Subcommittee, and when he gets angry his Republican colleagues pay attention. The measure’s most ardent supporters, [the senator from Montana and the senator from Washington], also Republicans, thus found themselves with a newly energized ally. Both have long wanted to have the 9^th Circuit torn apart to protect timber, mining, and other big economic interests in their states from rigorous court enforcement of environmental and other laws."

The Washington Post of September 8, 1997, in an editorial titled "Judge Shopping" discussed the rider of Senator Stevens to the Appropriation Bill. That editorial contains a number of quotations, as for example, one from the senator from Montana supporting the legislation, who said, "We are seeing an increase in legal actions against economic activities in states like Montana, such as timbering, mining and water development. This threatens local economic stability." The background of these editorials is shown in a story in the Anchorage Daily News of December 20, 1996 on the Ninth Circuit court decision on whether certain tribal areas were "Indian country." Upon reading the opinion, Senator Stevens of Alaska said, "the more I understand just how dumb people can be." He told the Anchorage Daily News that he might "renew efforts to split up the California-based 9^th Circuit appeals court."

Meanwhile, the earlier sponsors of legislation to divide the Circuit remained enthusiastic. A report on pending legislation in the American Bar Association Journal of February 1996 quoted a press release from a senator from Montana who said, "California thinking and California appeals dominate the 9^th Circuit." The same senator on September 1, 1997, as reported in the New York Times backed the proposal of Senator Stevens to divide the Circuit because he wanted judges for his state "who would be more sensitive to ‘how we manage our own resources.’"

Incidentally, the Supreme Court reversed the Ninth Circuit decision on Indian country. But meanwhile, the Stevens amendment in response to that decision passed the Senate. It was watered down in the House to result in the creation of this Commission.

The desire to create a new court in order to create different law was by no means unanimously endorsed in the Northwest or around the country. The Portland Oregonian on July 29, 1997 denounced the split of the Circuit which it said was caused because the court "has often ruled against commodity interests and for environmentalists." The Seattle Times editorial of January 5, 1996 said that the views of the senators who "believe federal judges ought to have a geographical bias and ought to respond to regional pressures" are "notions completely at odds with the idea of a national judiciary." The Washington Post on September 8, 1997 in an editorial entitled "Judge Shopping" discussed the Stevens rider to the Appropriation Bill. It repeated the quote I have given from a senator from Montana who supported the legislation because of "an increase in legal actions against economic activities in states like Montana, such as timbering, mining and water development. This threatens local economic stability." The Post editorial concluded, "The court did not make the environmental and other laws to whose application these senators object. Congress did. And Congress, not the courts, is where the effort to change the laws should be made."

I close now in 1998 with a quotation from my own testimony on March 6, 1990 before the Senate Judiciary Committee, where I represented the bar of the State of Arizona. My statement included this paragraph:

When I was a youngster studying constitutional law in 1937, the big constitutional issue before the county was court packing, or the alteration of judicial decisions by adding justices to the United States Supreme Court. The better wisdom of the country prevailed and a plan to change the law by changing the court system was abandoned. Here we have the same thing over again. With all deference to the distinguished and able senators from the Northwestern states who make this proposal, the heart of it is a dissatisfaction with decisions by the Circuit on matters relating to the environment. I respectfully submit that if we wish to have different rules of law, Congress should enact them; we should not seek to obtain them by changing the structure of the circuits.

Let me say today that the desire to cut more trees, catch more fish, and limit more Indians is not a good enough reason to blow up the courthouse.

Thank you very much for permitting me to appear.