STATEMENT BEFORE THE COMMISSION
ON STRUCTURAL ALTERNATIVES
FOR THE FEDERAL COURTS OF APPEALS
by
SENIOR CIRCUIT JUDGE JOSEPH T. SNEED
My remarks are addressed to the present geographic configuration of the Ninth Circuit Court of Appeals. My position is that it should be divided. This conclusion is based on the following considerations.
The case filings in this Circuit have increased 63% in the past ten years. They were 5,490 in 1987, and 8,692 in 1997. Also, the number of motions filed in this circuit have increased. They were approximately 8,643 in 1987, and 12,028 in 1997. Our en banc hearings in 1987 were 15, and those in 1997 were only 8. The total number of habeas corpus cases was 786, which include 37 death penalty cases. The total number of prisoner petitions was 2,151. The total number of pro se appeals was 3,424. In the past several years our active judge power has substantially declined (for which Congress is largely responsible) and this further hampered the Circuit's ability to keep abreast with case filings and en banc calls.
A. Collegiality
In many respects the consequences of these facts are more important than the facts themselves. The size of the Circuit dictates that active and some senior judges spend an inordinate amount of time in travel. While much work is done without the necessity of travel by means of the telephone and e-mail, it remains true that rarely is the full court assembled in one location. The annual symposium of three or four days provides one of the few opportunities for such assembly. The Judicial Conference is too large and concerned with matters not always relevant to circuit business.
There are inescapable consequences that flow from these conditions. One is the increasing inability to disagree respectfully. Too frequently a disagreement on the law leads to sharp verbal thrusts that on occasion become infected with distinct hostility. Another is that the formal court meeting must be devoted to reporting to those judges present the activities of the Chief Judge, the Executive Committee, and various other committees of the court.
To some extent the conditions I have mentioned also exist in smaller circuits. My point is that they are made more intense by the large number of judges in the present Ninth Circuit and their vast geographic dispersal. This heightened intensity slowly undermines the obligations of collegiality and subtly excuses one's failure to perform them. Those obligations are more easily met, or perhaps one should say induced, in smaller circuits. Frequent encounters, a lunch, or an exchange of social events softens the edge of legitimate judicial differences.
It is true that to some degree appellate judges must be reasonably courteous to one another. However, when this obligation is burdened with unspoken hostility, courtesy is marked by reserve and restraint.
It is undeniable that without regard to the size of the court judges will differ in their approach to the nature of their duties. Usually this difference reveals itself in the manner in which a judge utilizes precedents. All precedents can be squeezed or stretched. Every judge sometimes resorts to both. These practices, unchecked by frequent personal encounters with each of one's colleagues, tend to generate en banc calls which can lead to intemperate remarks that further strain the obligations of courtesy.
In my opinion, a court smaller than the present Ninth Circuit will better impose a curb on these tendencies. The increasing frequency of the necessity of justifying such tendencies to a relatively small group of colleagues gradually produces a movement of all toward the center more or less satisfactory to most.
B. The En Banc Process
The reduced force of this pressure toward the center in courts the size of the Ninth Circuit increases the likelihood of resort to the en banc process. This was recognized when the Ninth Circuit was increased in size to twenty-three active judges. However, an en banc court of twenty-three judges is not practical. Then-Chief Judge Browning designed and secured approval from the Court and Congress of a limited en banc process whereby a case voted by a majority of the active judges would be placed before a panel of eleven active judges chosen by lot from among all active judges.
The element of chance in this process, while tolerable with a court of twenty-three active judges, becomes, I submit, increasingly capricious as the authorized strength of the Ninth Circuit increases. A similar en banc process of a court of forty-one, for example, very likely will not be tolerated. What then is the proper size? Certainly the en banc court should be larger than the present eleven. But how much larger? What is the proper balance between representational fairness and operational efficiency of the en banc panel? Today it would be possible to recommend that the en banc court be increased by small increments as the authorized strength of the court grows. I strongly suggest that this is an inappropriate course for this Commission to endorse.
C. Other Ameliorative Possibilities
No doubt there are procedures available now or relatively soon that would, or could, ameliorate the disadvantages of the enormous geographic area embraced by the Ninth Circuit. For example, e-mail has reduced the delays in inter-chambers communication enormously. Video conferencing would permit intra-panel conferencing as well as possibly oral arguments heard and seen by all participants without leaving their chambers or law offices. The number of appeals entitled to full scale oral argument also could be substantially reduced by practice or legislation. Indeed, in this circuit during my tenure this has been done by practice and without too much protest. Progress in this direction could be formalized by creating at the circuit level an equivalent of the Supreme Court's certiorari process. In such a system, much of the screening process would be done by staff lawyers rather than elbow clerks.
D. The Legitimacy Concern
No doubt other measures aimed at increasing our disposition capacity will be suggested in presentations to this Commission. While I cannot be dogmatic, I must suggest that many of these techniques will reduce the legitimacy of a key part of the federal judiciary--the Circuit Courts of Appeals. That legitimacy ought not to be eroded. It contributes enormously to permitting the Supreme Court to limit its grants of certiorari to very important cases secure in the knowledge that all cases from the district courts have been carefully screened for error by the circuit courts. We should not erode the legitimacy of the security on which the Supreme Court relies.
I suggest that an appropriate and relatively long-term solution is the enactment of a law dividing the Ninth Circuit and thereby creating a Twelfth Circuit consisting of the northwest states of Oregon, Washington, Idaho, Montana, and Alaska. This is not a new idea; it has been discussed at least since the 1930s. Indeed in the early 1950s then-Chief Judge Denman briefly promoted the idea for which at that time there was some support among the circuit judges from the northwestern states.
A. The Northwest as a "Bloodbank" for California
The late Chief Judge Chambers, then only recently appointed to the Ninth Circuit, opposed the idea at least in part because it was his firm belief that only by including the northwestern states in the circuit would sufficient judges be nominated and confirmed by the Senate of the United States to enable the Ninth Circuit to handle with dispatch the appeals that were filed by and on behalf of Californians. In his inimitable style Chief Judge Chambers put it this way: "The Northwest is the bloodbank for California."
An issue before this Commission is whether that belief remains valid. I would argue that it does not. In 1950 the population of the then existing states of the northwest was approximately 5,366,000. Today the population of those states, plus the State of Alaska, is approximately 10,826,000. The combined populations of California, Arizona, Nevada and Hawaii is now 38,524,016. Cases filed in the Ninth Circuit in 1952 originating in the northwestern states numbered 142. In 1997 the number of cases originating in those states reached 1,973. I submit that a Twelfth Circuit is justified by these numbers. It remains true that the filings originating in California and the states of Nevada, Arizona and Hawaii in 1997 are greater than those of the northwestern states. In that year they were 6,646.(1)
These numbers clearly indicate that the case filings in the suggested Twelfth Circuit are sufficient to justify its existence. Obviously the same is true of the reconfigured Ninth Circuit. The only serious issue is whether the late Chief Judge Chambers' "bloodbank" strategy remains necessary to secure enough circuit judges in the southwest four-state circuit to dispose in a timely fashion of the appeals originating in California.
I submit that the political power of California, one of the giants of the Union of States, is sufficient to provide that protection. While it has only two senators, the Arizona-Nevada-Hawaii-California Circuit would have a comfortable eight plus many congressmen to assist in protecting California's interest in securing the needed judges. The west is no longer that "area beyond the Rocky Mountains" but an area rivaling the eastern seaboard in national influence.
B. An Alternative Approach
Moreover, there exists a method by which Congress could eliminate, or substantially reduce, California's reliance on the northwest "blood bank." This Commission should press Congress to enact, contemporaneously with the creation of a northwest circuit, a provision requiring that a certain percentage of the judges of the resulting southwest Ninth Circuit be from the State of California. Under the present figures, roughly 75% of the cases filed in the Ninth Circuit, which have their source in the four states of California, Nevada, Arizona, and Hawaii, are California cases. Thus, it would be quite reasonable to provide that three out of five (60%) of the appointments should involve residents of California. No doubt were such a requirement written into the law, the Senators of these states would devise an orderly process of rotation of making their recommendations to the President. Moreover, it is likely that the percentage assigned to California would be subject to negotiation. The minimum percentage assigned to California should never be permitted to fall below one-half of the total active judge strength of the southwest circuit.
I cannot predict whether legislation structured along these lines is politically feasible. On the other hand, to release the northwest from the Ninth Circuit and simultaneously to assure California of a respectable share of Ninth Circuit appointments has considerable appeal to both the northwestern states as well as to California. Moreover, it should not antagonize Nevada, Arizona, or Hawaii.
C. A California Split Between Two Circuits
It was suggested some years ago that a portion of California remain in the Ninth Circuit and the remainder be assigned to a northwestern circuit. The inevitable differences in the interpretation of California law and the application thereto of federal statutory and constitutional law would make necessary either the creation of ponderous procedures to harmonize these conflicts or the imposition of that duty on the Supreme Court. Moreover, I would suppose that California practitioners and their clients would not welcome such a structure.
I do not favor this partitioning of California.
I have not to this point chosen to address directly the larger questions of whether, how, and, if so, when the existing structure of the Circuit Courts of Appeal should be altered. My focus on the Ninth Circuit is responsive to a significant portion of the mandate given by Congress to this Commission. Nonetheless, it is obvious that there is a link between what is proper for the Ninth Circuit and the future of Circuit Courts of Appeal in general.
It is clear that I do not support the creation of what have been called mega-circuits. In such circuits judges become mere overseers of a large staff, both within and without the chambers, in which an increasing number of cases are decided without a judge, or his or her elbow clerk, having examined the record with care. I do not argue that such practices frequently result in disaster. That would not be true. I do argue that the citizens of the United States, properly informed, would not believe that such a system amounts to equal justice to all. To forfeit the faith that equal justice exists is not a risk that should be encountered lightly.
I recognize that to downsize the geographical limits of circuits, as case filings exceed the limits of direct personal involvement of individual circuit judges, could lead to a substantial increase in the number of circuits. This in turn creates pressures for the creation of one or more judicial bodies to assist the Supreme Court in administering and establishing the law of the United States.
I regard this possibility more remote in time than the existence of mega-circuits. Therefore, at this point the downsizing of circuits to stabilize and maintain the direct involvement of circuit judges in a substantial portion of the case filings is the cautious and proper course to follow.
I close my remarks by observing that the geographic reach of the Ninth Circuit is enormous, embracing that remnant of manifest destiny, Guam, as once it did the treaty port portion of Shanghai. This enormity has an undeniable appeal to many, not excluding the judges who sit thereon. Our fascination with size is one shared by most Americans without regard to their station in life. It is part of our sense of identity.
Nonetheless, it is out of place as a factor in determining whether the Ninth Circuit should be split. Our goal should be to design an appellate structure that will most satisfactorily serve the citizens of the states of Alaska, Washington, Idaho, Montana, Oregon, California, Nevada, Arizona, Hawaii, and the Commonwealth of the Northern Marianas, and the Island of Guam. It is by that standard that the work of this Commission, as it relates to the Ninth Circuit Court of Appeals, should be judged. In that process the many virtues of the Ninth Circuit's past should not be controlling.
1. While these combined figures do not correspond to the total number of case filings in 1997, such discrepancy can be explained by the omission of case filings from Guam (61) and the Northern Mariana Islands (12).