Justice White, Members of the Commission, I am Robert C. Mueller, the President of the Federal Bar Association. The Federal Bar Association is composed of over 15,000 attorneys across the country whose primary focus is the practice of federal law. Thus, we have a deep professional interest in the delivery of justice through the Circuit Courts of Appeals. It is my purpose today to respond to the general questions posed by the Commission and to address specifically the issues related to the question whether that the Ninth Circuit Court of Appeals should be split into two or more smaller circuits.

Before yielding to the temptation to repeat failed approaches, such as circuit realignment, several new and potential developments that offer real hope for effective solutions should be analyzed.

Recent changes to the law provide promise in this area and should be given time to be evaluated. We do not know yet the impact of the new Effective Death Penalty Act or the Prison Litigation Reform Act. Those circuits that have a large number of prison condition and habeas corpus suits (e.g. the Ninth and Fifth) should see a decline in those actions.

B. Review of Social Security Actions

Another area where change in the review process would lessen the existing burden on the appellate courts involves the review of Social Security cases. We continue to believe that a claimant should have Article III review in the federal district court in the district in which the claimant resides. However, further review of the district court decision should occur in a forum having special expertise, and the Court of Appeals for the Federal Circuit seems ideally suited for that review. That Court commonly handles review of decisions arising out the federal administrative process (i.e. veterans’ benefits and employee appeals from the Merit System Protection Board). Removing Social Security cases from the dockets of the regional federal appellate courts would substantially reduce caseloads (we understand over 15% of the cases in the appellate courts involve review of agency decision), thereby lessening the need for the kind of structural alteration this Commission is now considering.

Such reform in the Social Security review process would carry an additional benefit, eliminating the need for legislation addressing the Social Security "non-acquiescence" policy. Legislation addressing that issue was introduced in the last session of Congress in H.R. 1544, the "Federal Agencies’ Compliance Act." Placing review of Social Security cases in a single appellate court would immediately solve the problem Congress perceives by providing that a single appellate court would address this body of law.

I suggest that any proposal to divide any of the present circuits should await an assessment of the impact of advances in technology. Any impediments to collegiality and the ability to confer will be obviated by advances in videoconference technology, along with electronic mail. These tools will provide the judiciary with the ability to instantly communicate drafts, discuss differences, and interact with one’s fellow judges on a real-time basis. Moreover, it is anticipated that these and similar advances will sharply reduce the time taken to process records, briefs, and other filings.

The importance of such advances should not be understated. In a very brief period of time we have progressed from electric typewriters to computers that recognize voices and transcribe dictation into written copy. We have the capability of reducing vast quantities of information to computer chips and to communicate instantly with distant geographic points. In the not so distant future, any judge of this or any other circuit will have instant access to the thinking of any other judge. The time presently spent traveling to meet and confer on opinions will be freed up for other judicial pursuits. Travel costs and processing times will be reduced markedly, with a concomitant increase in collegiality growing from the increased interaction of the judges.

New technologies also will materially change the interaction between bench and bar. The Federal Judicial Center has taken the lead by installing communications uplinks in 223 federal judicial facilities. Electronic filings, teleconference arguments, and similar advances will reduce the travel time of counsel and costs to clients. No longer will counsel be required to travel to San Francisco, Pasadena, or other distant courthouses but will be able to argue from a facility near home with immediate reaction from the bench.

We do not believe, however, that elimination of diversity jurisdiction is appropriate. One of the basic reasons for our federal court system is that it provides the citizens of the several states with an impartial forum in which to seek justice without having to contend with a so-called "home court advantage." While some commentators have urged elimination of diversity suits, the principles behind the creation of this jurisdiction far outweigh any gain to be achieved by eliminating it.

These types of considerations should be evaluated prior to falling back on answers that, in the past, have not provided solutions, such any action that divides or realigns the Ninth Circuit or any other circuit. We recognize that the structure and jurisdiction of the Circuit Courts of Appeals rests with Congress. Congress also is empowered to make such changes as best deliver justice to the people of the United States. Such changes, however, should be for proper reasons, and the integrity of the process is of utmost importance. A Circuit Court of Appeals should not be altered simply to satisfy a political philosophy or constituency.

With all this in mind, we turn to the recent proposal that sounds of the past: Division of the Ninth Circuit

The Ninth Circuit has existed in its present form for almost one hundred years. We believe that the burden of demonstrating that a split is appropriate rests with those who advocate change in the present status, and no persuasive arguments or evidence have been presented that warrant this drastic remedy.

First, a large majority of the judges of the Ninth Circuit do not support a geographic division. This is a clear distinction from the situation preceding the division of the Fifth Circuit, where the judiciary itself was overwhelmingly in favor of some reorganization. The judicial conference of the Ninth Circuit has considered this issue on two occasions and each time rejected any suggestion that division was appropriate.

Next, those most concerned with the business of the Ninth Circuit, the attorneys who practice therein, do not support the division. The state bar associations of Idaho, Montana, California, Hawaii, and Arizona, as well as the American Bar Association, have taken affirmative stands against splitting the circuit.

Third, notwithstanding criticism that has been leveled at the Circuit, it appears that the present structure is adequate and actually is working well to handle the caseload. Productivity of the judges is the third highest among the present circuits. The Circuit terminates sixty percent more cases than it did only eight years ago, despite the absence of approximately one-third of the authorized judges.

Fourth, it appears that the assertion that the size of the circuit undermines collegiality among the bench does not withstand close scrutiny. The letters previously filed with this Commission by the Honorable Harlington Wood and the Honorable Jane A. Restani indicate that the judges of the Circuit are professional, strive to achieve consensus, and are mindful of judicial discipline. To the extent that there are differences, it appears that they are put aside by all judges in the interest of the accomplishing the Circuit’s mission and that all members of the bench display the courtesy and professionalism reflective of the Federal judiciary.

Fifth, some of the statistics promulgated by those urging the split of the Ninth Circuit are somewhat misleading, if not viewed in the full context. For example, it has been asserted that the high number of reversals of the Ninth Circuit by the Supreme Court is an indication of problems within the Ninth Circuit. In fact, when considering the overall caseload of that Circuit, the number of reversals is comparatively quite small. Furthermore, in relation to the other circuits, the reversal rate of cases appealed to the Supreme Court is not significantly different.

It clearly appears that the size and shape of the Ninth Circuit, which is relied upon by many as support for dividing it, actually militates against such action. As Judge Diarmuid O’Scannlain noted in his statement to this Commission, almost all of the proposed reconfigurations will leave one large state, California, in a circuit with small states. Given the numbers of cases and judges from California (now well over one-half of the appeals), any realignment that forces two or more states with significantly smaller caseloads into a circuit dominated by California clearly will be unfair to those states. Moreover given the constitutional nomination and confirmation process, legislators from California would dominate smaller states in the appointment of judges to any new circuit created along these lines.

Similarly, any proposal that moves a state (e.g., Arizona or Montana) from the present Ninth Circuit appears to create greater problems than would be solved. The disruption to established case law in the state leaving the present circuit appears to more than outweigh any presumed benefit in decreased judicial workload.

The remaining possibility, splitting the State of California between two circuits, appears to be equally unworkable. This solution would have two circuit courts of appeals deciding what California law would be on a given subject. Both of the appellate functions, error correction and uniform interpretation of law, would suffer. It has been suggested that the recently enacted certification procedure would remedy this difficulty. The anecdotal evidence in other circuits, however, indicates that certification has not assisted the federal judiciary in its mission. Rather, the state courts of last resort simply have not responded to what are essentially academic questions.

Costs pose an additional problem with splitting the Circuit. It is estimated that the startup costs for a new circuit would include between $23 and $60 million for construction of new courthouse facilities and rehabilitation of existing ones, as well as another $3 million in associated costs. Further, it is estimated that operational costs will be about an additional $ 1.3 million annually.

As a side note, I am informed that the Circuit recently has rehabilitated several of its facilities at a cost of about $140 million. Those facilities might go largely unused should the Circuit be divided in the manner suggested by any of the recent proposals. Given current budgets and the push by all branches of government to conserve financial resources, any action that appears to make unwise use of existing facilities is suspect.

The Ninth Circuit has performed admirably in improving the efficiency and effectiveness of its operations. In fact, we would recommend that the other circuits review these methods to improve their own internal procedures. The Circuit has instituted a number of unique reforms that in some cases already have borne fruit and in others appear to improve the judicial process.

I would note, for instance, that under Chief Judge Hug the Circuit was the first to develop its own long range plan. It has instituted a system of issue classification to preclude intracircuit conflict and to enhance decisional cohesiveness. It is the leader in alternative dispute resolution and the use of conference resolution in cases governed by clear circuit or national precedent.

Most important to this Commission’s overall mission statement, the organization of the bankruptcy appeal panel provides a model for other circuits. The innovation resolves fact-intensive issues at a level where counsel can obtain rapid decision and, thus, eliminates the need for a full appellate decision on what are essentially error correction cases.

Earlier, I noted that the Ninth Circuit has improved its disposition rate both in terms of numbers of cases terminated and in the processing times. It also should be noted specifically that this has been achieved in the absence of almost one-third of the judges due to the failure to fill existing judicial vacancies. Of the 28 seats on the Court, only 18 active judges presently sit. Although there has been recent movement to fill perhaps as many as three of those vacancies, the absence of full time, active judges clearly impacts on the ability of any court to get its work done. When those vacancies reach the proportions of those on the Ninth Circuit, a judicial crises looms. We believe that appropriate action to fill those seats will do much to alleviate the perceived need to divide the Circuit as a means to increase efficiency.

The long range plan for the Federal Courts suggests that division of a circuit should be undertaken only as a last resort. Any recommendation by this Commission should address potential solutions short of division of any circuit at this time. The evaluation of the impact of recent changes to the law, as well as advances in technology and the shifting of certain cases from the geographic circuits, will materially affect judicial workloads. The division or realignment of any circuit should be held in abeyance until the impact of those changes, along with the improvements in technology and the confirmation of additional members of the bench, is properly assessed.

Thank you.