STATEMENT ON THE POSSIBLE SPLIT OF THE NINTH CIRCUIT COURT OF APPEALS

I am Lloyd D. George. I have been a district judge in Nevada for the last 14 years. Before that I was a bankruptcy judge. I am appearing on behalf of the District of Nevada. The views that I express are shared by the judges of our District. My remarks will focus primarily on the issues relating to the realignment of the Ninth Circuit. But any such discussion necessarily requires consideration of the contours of the federal judiciary as a whole.

We have given some thought to the division of the Ninth Circuit Court of Appeals with a view toward remaining objective and open-minded about the subject. We have considered (1) whether there is any rational way to justify such a division without splitting California between circuits, (2) whether a precedent of preserving and creating smaller circuits is realistic given the monumental growth of the federal judiciary, and (3) the advantages of larger circuit structures. In the final analysis, we must voice our unanimous opposition to the realignment of the Ninth Circuit.

The partitioning of larger circuits may come at the cost of an inconsistent body of federal national law, the inefficient use of taxpayers dollars, and years of temporary solutions to and delays in addressing the looming challenges of the growth of the federal judiciary. Little wonder that the American Bar Association, along with the bar associations of Arizona, California, Hawaii, Idaho, Montana and Nevada, and the Federal Bar Association, have adopted resolutions opposing the division of the Ninth Circuit. These organizations, like the judges of the District of Nevada have concluded that dividing larger circuits may translate many of the supposed shortcomings of large circuits to a national context, while at the same time defeat the advantages offered by larger circuit structures.

Most would agree that one of the fundamental purposes of the federal court system, and the courts of appeals in particular, is to apply federal law in a consistent manner. The national function of the courts of appeals is apparent in the Supreme Court's important role in settling disputed interpretations of federal law among circuits. The purpose of the federal court system, however, seems to have been almost forgotten amid the political posturing and territorial gamesmanship surrounding the possible reorganization of the Ninth Circuit Court of Appeals. Rather, what should be the driving force behind a consideration of the possible division of the Ninth Circuit is whether the mission of the federal judiciary would be best served by such a division.

Arguments articulated by those supporting a split of the Ninth Circuit often focus on the assumption that bigger is "badder." Split proponents raise the likelihood of inconsistent decisions arising from the greater number and combinations of three-judge panels in a large circuit. Proponents also maintain that a split would reduce the inefficiency inherent in bureaucracy. The rapid growth of the federal judiciary, however, creates the eventuality of larger circuit structures, and indeed, the perpetuation of many of the same characteristics that proponents of the Ninth Circuit split wish to eliminate.

The Judicial Conference of the United States has reported that 52,219 appeals were docketed in 1997. The Conference projects that by 2020, the number of appeals may reach 350,000. Under those projections, Congress would have to increase the number of judges to handle the caseloads in each circuit except one (the 1st Circuit) to a number approximating or higher than the current number of active judges in the Ninth Circuit. Three of these circuits (2nd, 5th and 11th) could have at least twice the number of judges currently active in the Ninth Circuit.

Significantly, if the projected federal court system in 2020 were structured into smaller 12- to 15-judge circuits, similar to the size of the circuits proposed in a division of the Ninth Circuit, there would be almost 40 circuits in the country. Such a proliferation of circuits may also invite the future addition of another tier of appellate courts to review the diverse and conflicting opinions of the myriad of lower circuits. Ironically, the growing number of small circuit courts could be expected to increase the likelihood of inconsistent federal decisions­indeed, a magnification to national proportions of just what critics warn are the dangers to uniform law within a circuit when the judges become numerous.

Some critics of the Ninth Circuit have also implied that large circuits have a greater chance of reversal by the United States Supreme Court. To my knowledge, however, no relationship between the mere size of a circuit and its reversal rate has been empirically documented. Indeed, reversals of Ninth Circuit decisions by the Supreme Court would seem to be more easily explained by philosophical differences, or by the Ninth Circuit's review of controversial or unsettled issues, than other factors. Therefore, the selection process of federal judges, rather than circuit size, may have a much greater impact on reversal rates.

A small-circuit approach to the federal court structure will inevitably invite the splitting of single states to reside in different circuits. For instance, the division of California is perhaps the only rational way to fairly distribute the workload in a small-circuit federal system. Statistically, eight of the active Ninth Circuit judges are in California, with four current vacancies; the remainder of the Ninth Circuit has thirteen active judges with three current vacancies. There were 5,306 federal appeals from California in 1997; the rest of the states in the circuit generated only 3,345 federal appeals. The weighted caseload per judgeship in California alone would be 481 cases, whereas the remainder of the circuit would have a weighted caseload of only 190 cases. Thus, so long as California remains intact under any circuit-splitting design, a fair apportionment of appellate workload is unlikely. Moreover, if Congress adheres to the approach of dividing larger circuits, the splitting of other large states, such as Texas, Florida and New York, must also become a contingency.

Seemingly lost amid the criticism of larger circuit structures, and the Ninth Circuit in particular, is the recognition of the advantages of larger circuits. Initially, the only true way to assess the efficiency of the Ninth Circuit in processing cases is to give the Circuit the opportunity to function in the way it was intended. The Ninth Circuit currently is authorized 28 active judges, but because of delays in filling vacancies, only 21 judges are on active status. Moreover, in 1997, the Judicial Conference of the United States recommended that Congress approve 10 new judgeships for the Ninth Circuit. Measuring the Ninth Circuit's effectiveness in handling its heavy caseload while it is operating with a shortage of one-fourth of its judges is simply not an accurate indicator of the Circuit's efficiency. In fact, as Senior Ninth Circuit Judge (and former Chief Judge) Clifford Wallace has observed, a more telling statistic is that the Ninth Circuit has one of the shortest intervals of any circuit in the country from the time the case is submitted to the panel to its final disposition.

Even without its full compliment of authorized judges, however, the Ninth Circuit has served as a model of how consistency of law and efficiency of administration may be achieved in a larger circuit. In his testimony before the hearings of the Commission on Structural Alternatives for the Federal Courts of Appeals on April 3, 1998, Judge Wallace noted that the Ninth Circuit has pioneered modern initiatives to overcome the perceived destabilization of precedent within such a circuit. Among the features instituted by the Ninth Circuit are (1) the use of computer technology to "cluster" cases with similar issues and assign them to the same panel, (2) advising panels of cases submitted in the last six months with the same issue, (3) review of opinions by staff law clerks to identify areas of possible inconsistencies, and (4) a streamlined en banc process, authorized by Congress, to provide an effective method to resolve intercircuit conflicts.

Moreover, as Ninth Circuit Chief Judge Procter Hug has articulated, the present structure of the Ninth Circuit has enabled the use of the Circuit's resources to develop many innovative and progressive programs. The Circuit is the first in the country to develop a written long range plan identifying goals and evaluating progress annually. The Circuit also originated the Bankruptcy Appellate Panel (BAP) to hear intermediate bankruptcy appeals. The BAP has significantly reduced the number of bankruptcy cases going to the Court of Appeals. In addition, the Circuit has developed the Bankruptcy Workload Equalization Project (BWEP), which has been a significant help to California bankruptcy courts.

The Ninth Circuit has also used its resources to become a leader in the judicial implementation of alternative dispute resolution (ADR). It has formed a committee of judges and lawyers to spearhead the expanded use of ADR in district and bankruptcy courts. The Ninth Circuit also originated the use of an Appellate Commissioner, which has expedited ruling on non-dispositive motions and attorneys fees. And the Circuit has created the Appellate Mediation Program in order to promote the settlement of cases at an early stage in the appellate process. Obviously, one of the benefits of a larger circuit is its ability to explore and experiment with innovative and progressive concepts. For example, it may be worthwhile to consider the use of panels of district judges to review appeals related to sentencings only.

The Ninth Circuit and other larger circuits have also instituted dynamic and quality circuit conferences. These conferences not only permit judges to strengthen their collegiality, but also provide training and instruction on meaningful issues of importance to judges, practitioners and litigants, such as the problems of gender, race, ethnicity and religious bias in the profession. Smaller circuits may not enjoy sufficient resources to make circuit conferences as successful. Nor may smaller circuits be as effective in integrating magistrate and bankruptcy courts into the system.

Chief Judge Hug has also remarked that creating a new court of appeals can be a costly proposition. He has pointed out that if the Ninth Circuit were divided, the administrative functions now performed by the Ninth Circuit court would have to be reorganized, and new adjudicative and administrative structures redesigned and rebuilt in another circuit headquarters. Dividing the Circuit would also entail duplicating offices of the clerk of the court, circuit executive, staff attorneys, settlement attorneys, library, courtroom, mail, and computer facilities.

Under the scenario that would locate the headquarters of the new Twelfth Circuit in Seattle, the General Services Administration in 1995 estimated that new construction would cost at least $34.6 million. Rental expenses for the new Twelfth Circuit headquarters would also increase to $2.5 million per year. It would cost tens of millions of dollars to modify the under-utilized space in the Ninth Circuit headquarters in San Francisco and the Pasadena facility (which space was just recently modified at the cost of nearly $140 million to meet the needs of the Ninth Circuit) to make it usable for other tenants. One-time start-up costs were projected by the Congressional Budget Office in 1995 to be at least $1 million to purchase new computer equipment, and at least $2 million to begin a new library for the new circuit. The cost of duplicating staff positions would be at least $1 million per year (a very conservative figure considering the salaries paid to staff attorneys and other personnel) according to the Congressional Budget Office. There are undoubtedly many other unforeseen costs of a circuit realignment.

As voiced by Judge Wallace and others, it may simply make more sense to combine circuits, rather than lose the benefits of a larger circuit, ignore the growth of the judiciary, and introduce the antithetical results caused by continued circuit-splitting. At the very least, circuit division based on arbitrary and political considerations should be put on hold until all of the ramifications of circuit divisions have been thoroughly explored with a view to the present and future contours of the federal judiciary. The Judicial Conference of the United States concluded in its long-range plan that "division of a particular circuit or realignment of circuit boundaries . . . should occur only when compelling empirical evidence demonstrates the relevant court's . . . inability to operate effectively as an adjudicative body." Perhaps the time has come to revisit the assumption that bigger is "badder," and consider whether, in the context of federal circuit management and growth, bigger may be better.