Testimony of
DAVID R. THOMPSON
Circuit Judge of the U. S. Court of Appeals
for the Ninth Circuit

COMMISSION ON STRUCTURAL ALTERNATIVES FOR THE
FEDERAL COURTS OF APPEALS

Public Hearing
Friday, May 29, 1998
San Francisco, California

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Testimony
David R. Thompson, Circuit Judge
United States Court of Appeals for the Ninth Circuit
Commission on Structural Alternatives
for the Federal Courts of Appeals

May 29, 1998
San Francisco, California

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Good morning. My name is David Thompson. For more than twelve years I have been a United States Circuit Judge on the Ninth Circuit Court of Appeals. Before that, I was for 28 years a practicing lawyer in San Diego, California, where my chambers are presently located. I appreciate the opportunity to appear before you today to speak in support of the Ninth Circuit remaining in its present configuration.

The Circuit should not be split. Its size and diversity are its strength. This strength enables the Circuit to dispose of its caseload expeditiously and effectively, consistent with fundamental concepts of fairness and due process. The Ninth Circuit is able to attain these goals, delivering quality justice and consistent circuit law, because of its institutions. These institutions are strong and effective because they are able to draw upon a large reservoir of talent and diversity from the Circuit's nine Western States, Guam, and the Northern Marianas Islands.

One of these institutions is the Ninth Circuit Court of Appeals. Currently this court has 28 active judgeships. Twenty-one of these positions are filled, leaving seven vacancies. The court is also served by 17 senior judges.

The active and senior judges of the Ninth Circuit Court of Appeals come from every state in the Circuit. The judges are male, female, African-American, Hispanic, Asian and Caucasian. Some are wealthy, some are not. Among them are former trial judges, trial and appellate lawyers and law professors. Some are Republicans, some are Democrats, some are liberals, and some are conservatives. Some have a particular interest in environmental issues. Some have expertise or particular interest in issues of criminal and constitutional law, business and commercial matters, copyright and trademark, and immigration and labor law.

The diversity of these judges is impressive. Is this important to a Circuit? Absolutely. As you know, circuit judges sit in panels of three. Indeed, this is the structure of every intermediate appellate law tribunal in our nation -- state or federal. We require three judges to determine whether one judge -- the trial judge -- erred. We do this because we want the combined analysis of a three-judge panel before we tell one judge, or a jury, that they were wrong. All of us understand the desirability of appellate three-judge panels.

But what if the three judges on a given panel all have similar backgrounds with similar experiences and viewpoints. Certainly the range of such a panel's view will be constricted. Recall your trial experience when confronted by witnesses who shared a common bond of kinship, friendship or association. I'm sure you remember the trial lawyer's saying: "The farmer, the farmer's wife and the hired hand are all one witness." Three appellate judges on a panel should not be "one judge." The possibility of this occurring in the Ninth Circuit is significantly reduced due to the large and diverse pool from which panel judges are drawn.

Judges of the Ninth Circuit Court of Appeals are linked by membership in their court. Judges of the district courts throughout the circuit are linked by their Conference of Chief District Judges and Conference of District Court Clerks. These institutions enable district court judges and clerks throughout the circuit to gain from the learning and expertise of a wide number of their colleagues. Techniques developed by a judge in Montana may be employed by a judge in California. Methods of case processing in the Clerk's Office in Oregon may be adopted by the Clerk's Office in Nevada. It is a truism, after all, that the wider the sampling of ideas, the greater the chance of creative innovation.

In addition to sharing information, district judges in the Ninth Circuit also share people. In a circuit the size of the Ninth, this sharing can be accomplished with less disruption than in a circuit of smaller size. Recall if you will the concept of insurance -- spread the risk. The greater the number of policy holders, the less each has to pay for a loss suffered by one of them. So it is with the district courts. In a smaller circuit, the death or disability of a district judge may be a catastrophe. Not so in the Ninth Circuit. With the number of district judges we have, we are able to shift judges to districts where they are needed, not only due to judicial vacancies, but due to excessive case loads as well. We do this regularly.

The bankruptcy judges of the Ninth Circuit are also linked by their Conference of Chief Bankruptcy Judges and Conference of Bankruptcy Court Clerks. The benefit to these judges and clerks of sharing information and expertise is similar to that of the district judges and district court clerks. Bankruptcy judges in the Ninth Circuit, however, benefit in another unique way.

The Ninth Circuit has developed what we call the Bankruptcy Workload Equalization Program. Pursuant to this program, bankruptcy judges in districts with excessive case loads transfer parts of cases to judges in other districts not so heavily burdened. Here's how it works. In a given Chapter 7 case, a bankruptcy judge from the Central District of California will transfer an adversary proceeding (which is really a case within a case) to a bankruptcy judge in Idaho. The Idaho judge will handle the adversary proceeding all the way through pretrial motions, discovery and trial. The pretrial motions and discovery will be handled by electronic processing, telephone conferencing, fax and mail. The trial will be in the "home" district where the case originated, in this illustration, the Central District of California.

Pursuant to the Bankruptcy Workload Equalization Program, 635 cases were transferred among bankruptcy judges in different districts in the Ninth Circuit during 1997; more are being transferred this year. This has provided a substantial benefit to the overloaded transferring districts, and has utilized the judicial talents of the less burdened receiving districts.

Finally, I'd like to mention the institution of the Staff Attorneys of the Ninth Circuit. These are lawyers who are stationed in San Francisco. They work for the court. Typically they are people who have recently graduated from law school, with excellent credentials. They stay with the Office of Staff Attorneys for approximately five years. Supervisors remain for a longer period. The staff attorneys are organized into units dealing with civil research, criminal research, motions, case management, and pro se work. Within these units, the attorneys develop expertise in particular areas of the law.

With the assistance of these staff attorneys, the Ninth Circuit Court of Appeals, during calendar year 1997, was able to consider carefully and process to termination 1,805 appellate cases on its screening calendar. This number is somewhat greater than in preceding years, the increase being due to an increase in case filings and the innovative case processing methods the Court has developed.

The quality of the staff attorneys' work is outstanding, similar to what you would expect from a large law firm in a good-sized metropolitan city. To be sure, an office with fewer staff attorneys, just like a smaller law firm, might provide good legal work. With the "large firm" genre of the Ninth Circuit Staff Attorneys, however, exceptional work is the norm, and it improves each year.

Another benefit from having a large office of staff attorneys is the ability of the staff to provide help to an individual judge who experiences a staffing crisis. I recently experienced such a crisis when I lost one of my law clerks for a month due to a serious illness. The staff provided help, and was able to do so with minimal disruption to its mission.

To sum up, the Ninth Circuit is a body of many parts. Today, I have discussed some of those parts -- some of its institutions. These institutions excel because of their ability to draw from a large number of talented people with diverse backgrounds and talents. If you diminish the source of that talent by reducing the size of the Circuit, you weaken the Circuit's institutions. Weaken them, and you diminish the quality of justice currently dispensed in the nine Western States, Guam and the Northern Mariana Islands.

Guam joined the Circuit in 1951. The Northern Mariana Islands joined in 1977. Except for these additions, the Ninth Circuit has maintained its present configuration for over 100 years. The case for continuing that present configuration is strong. No valid case has been made to alter it.

The Ninth Circuit Court of Appeals should not be split.