PRO SPLITTING THE NINTH - LawyersPRO SPLITTING Whether viewed from the vantage point of popula-tion,...

PROSPLITTING

Whether viewed from the vantage point of popula-tion, caseload, number of judges or number ofstates, the Ninth Circuit dwarfs all other federal cir-cuits. The time for a split has come.Notwithstanding the best efforts of the conscien-tious judges and circuit executive staff, the NinthCircuit is too big to function well, and justice suf-fers accordingly. Currently, Congress is consideringvarious proposals to divide the circuit.

The Ninth Circuit needs more judges. Thequestion, then, is whether to compound existingproblems by adding more judges to a circuit that isalready vastly disproportionate in size to every otherregional circuit court, or to finally split the circuit.

The circuit’s incredible size has resulted in sev-eral serious problems, many arising from the use ofa limited en banc system that is structurally flawed.Good intentions and hard work can’t change thecircuit’s condition. A circuit split is necessary andappropriate; serious consideration should be givento placing California in a stand-alone circuit.

The Incredible Size of the Ninth CircuitDisproportionate population.In 1891, when six sparsely populated states wereplaced in the newly formed Ninth Circuit, the pop-ulation of the entire country was only 64.4 million.1

Today, the Ninth Circuit has a population of 58million. One-fifth of the nation’s population liveswithin the Ninth Circuit (Fig. 1). According to the2000 census, Nevada and Arizona are the twofastest-growing states in the country, with increasesin population of 66.3 percent and 40 percentrespectively from 1990 to 2000.

Disproportionate physical size.The Ninth Circuit is but one of the 12 federal cir-cuits divided based on geography. Nevertheless, itconsists of nine states, one territory and one com-monwealth. No other circuit has nine states. Fivecircuits have only three states each. Almost 40

Hon. John M. Roll is a United States District Judge for theDistrict of Arizona.

The article reflects the personal views of the author. Judge Rollexpresses his appreciation to Matthew Bowman and Amy Duncanfor their research and editing assistance.

SPLIT THE NINTH CIRCUIT:It’s Time

BY HON. JOHN M. ROLL

34 A R I Z O N A AT T O R N E Y S E P T E M B E R 2 0 0 5

— continued on p. 36

THE NINTHTHE NINTH

The proposals to carve up the Ninth Circuit sufferfrom the same problem as carving up the annualturkey: No matter how you slice it, the result isless than the whole.

Breaking up the Court does not save money; iteats it up. It does not foster efficiency but rewardsduplications. And it is not necessary in order tocope with an oversized workload or bench,because neither is oversized.

Most important, it retards the administrationand delivery of justice, the serious and majesticpurpose of our courts. Somehow in the tempest ofpork barrels mixed with intransigent ideology—the two real drivers behind the breakup propos-als—delivering justice has been pushed aside bythe pettiest politics.

What the breakup would do is throw “brickand mortar” pork at Arizona, but at the expenseof an efficient federal justice system for Arizona’scitizens. What it would do is isolate Arizona intoa geographically stretched group of marginalstates with marginal issues, to the obvious detri-ment of Arizona’s non-marginal issues. What itwould do is separate Arizona from its closest eco-nomic neighbor, California, creating highly prej-udicial barriers to the growth of Arizona’s indus-tries and commerce.

Most alarming, what it would do is punishjudges for decisions that deviate from positionsadvanced by a few of the extreme right’s electedofficials. At its meanest, then, the breakup propos-als are really a full-scale attack on judicial inde-pendence, fueled by the Pledge of Allegiance deci-sion that infuriated Representative JamesSensenbrenner, Chair of the House JudiciaryCommittee. Apparently, these bully tactics aredesigned to bring the states within the NinthCircuit into line, giving them a taste of the lash fornot following Sensenbrenner’s view of the law.

Arizona is a better state than that, and we

CON

Roxie Bacon practices with Littler Mendelson Bacon & Dear inPhoenix. She is a past President of the State Bar of Arizona.

RETAIN THE NINTH CIRCUIT:An Efficient and Excellent Bench

BY ROXIE BACON

35S E P T E M B E R 2 0 0 5 A R I Z O N A AT T O R N E Y


CIRCUITCIRCUIT

SOUNDOFF: The State Bar of Arizona has a long history ofobjecting to proposals to split the Ninth Circuit. But the Barwould like to hear from its members on both sides of thequestion. To give your input, write to [email protected] send letters to the editor to [email protected].

36 A R I Z O N A AT T O R N E Y S E P T E M B E R 2 0 0 5 w w w. m y a z b a r. o r g

percent of the nation’s land mass is withinthe Ninth Circuit.

Disproportionate number of judges.The Ninth Circuit is author-ized 28 active circuit judges.The next-largest circuit has 17.Not counting the NinthCircuit, the average circuit has12.6 judges (Fig. 2).

In 1998, the Commissionon Structural Alternatives forthe Federal Courts of Appeal(“White Commission”) con-cluded that “the maximumnumber of judges for an effec-tive appellate court functioningas a single decisional unit issomewhere between elevenand seventeen.”2 The JudicialConference of the UnitedStates has requested sevenadditional active circuit judgesfor the Ninth Circuit.3

The Ninth Circuit requiresan extraordinary number ofjudges to function. As ofDecember 2004, in addition to 28authorized active circuit judge-ships, the circuit had 23 senior cir-cuit judges, 110 authorized activedistrict judges, more than 50 sen-ior district judges, 68 authorizedbankruptcy judges, and 94 author-ized full-time magistrate judges.4

It has been estimated that acourt of 50 circuit judges resultsin 19,600 different three-judgepanels.5 This potential number ofthree-judge combinations doesnot include visiting judges who sitwith the Ninth Circuit. The enor-mous number of panel combina-tions necessarily produces panel-driven results6 and causes individ-ual circuit judges to go yearsbefore sitting with each of theother circuit judges.7

Disproportionate number of cases.The Ninth Circuit hears 23 percent of allfederal circuit appeals. In 2004, 14,842cases were filed in the Ninth Circuit, where-as 63,634 cases were filed in all circuitscombined (Fig. 3). Between 2000 and

2004, the Ninth Circuit’s caseload hasincreased at a rate nearly 12 times fasterthan the average of the caseloads of all othercircuits (Fig. 4). The Ninth Circuit decides

so many cases that it is not realistically pos-sible for the circuit judges to read all of theopinions issued by their own court.8

Disproportionate time in deciding cases.According to statistics maintained by theAdministrative Office, as of December

2004, the Ninth Circuit is the second-slow-est court in deciding cases. Only the SixthCircuit, with its unique understaffing crisis,is slower. In the Ninth Circuit, the median

time from notice of appeal to dis-position is 14.3 months. Thenational average is 10.7 months.9

The Incredible Size of theNinth Circuit Has Necessitatedthe Use of an Incurably Flawed

Limited En Banc ProcedureIn every federal circuit except theNinth Circuit, decisions by three-judge panels are reheard en bancby all active circuit judges. In1978, Congress authorized circuitcourts with more than 15 activecircuit judges to hear cases enbanc with fewer than all active cir-cuit judges participating.10 In1980, the Ninth Circuit becamethe first, and remains the only, cir-cuit to adopt this limited en bancprocedure.11 The Ninth Circuitalone hears cases en banc with

only 11 active judges participating.Former Chief Judge Richard

Posner of the Seventh Circuit hasreferred to the Ninth Circuit’s use ofa “bobtailed en banc procedure” asone of the most compelling reasonswhy a split is required.12 In 1998,Justice Sandra Day O’Connor wroteto the White Commission pointingout that limited en banc courts “can-not serve the purposes of en banchearings as effectively as do the enbanc panels consisting of all activejudges that are used in other cir-cuits.”13 The Ninth Circuit experi-ence with limited en banc hearings,as shown in this article, illustrates theirreparable flaws of limited en banccourts.

Less than full participation producesodd results.

In the limited en banc procedure of theNinth Circuit, the 11-judge en banc courtconsists of 10 active circuit judges drawn tosit with the Chief Judge. Because a minori-ty of active circuit judges drawn by lot hearsNinth Circuit cases en banc, it sometimes

From: Exh. 9, Appendix to Judge Diarmuid F. O’Scannlain’s Testimony before the U.S. Senate JudiciarySubcommittee on Administrative Oversight and the Courts, April 7, 2004 (updated April 18, 2005).

From: Exh. 4, Appendix to Judge Diarmuid F. O’Scannlain’s Testimony beforethe U.S. Senate Judiciary Subcommittee on Administrative Oversight and theCourts, April 7, 2004 (updated April 18, 2005).

Fig. 1

Fig. 2


THE NINTH CIRCUIT: PROsplitting

— continued from p. 34

The Ninth Circuit’s population is 29 million more thanthe next-largest circuit.

The Ninth Circuit has 12 more authorized judgeshipsthan the next-largest circuit.


happens that judges selected to hear thecase en banc do not include any of thejudges who participated in the panel deci-sion.14 Furthermore, sometimes unanimousthree-judge panels are reversed byunanimous 11-judge en banccourts.15

The problem of close en banc votes.Using the limited en banc proce-dure, a mere six or seven judgesoften speak for the entire court,thereby deciding cases affectingone-fifth of the population of theUnited States. In 1998, the WhiteCommission stated, “Very few enbanc decisions are closely divided,so it is unlikely a full-court enbanc would produce differentresults.”16 However, since theCommission report was issued,one-third of the cases decided enbanc by the Ninth Circuit havebeen by close votes. From 1999 toJune 2005, 114 cases werereheard en banc, and 38 were decidedby 6–5 or 7–4 votes. Even NinthCircuit Judge Stephen Reinhardt, asplit opponent, has conceded,“Occasionally, the en banc vote doesnot reflect the true sentiment of themajority of the court.”17

Due to the high threshold for rehear-ings en banc, many deserving casesare denied rehearing.Because a majority of all active NinthCircuit judges must vote for rehearingen banc, many cases are never rehearddespite significant votes for rehearing.In 33 cases from 1999 to June 2005,en banc rehearings were denieddespite at least five active circuitjudges voting for rehearing. Since2002, four cases were denied rehear-ing en banc despite at least 11 activecircuit judges voting for rehearing.Newdow v. U.S. Congress, the Pledge ofAllegiance case, which was decided by a 2–1panel vote, was not reheard despite at leastnine active judges (but less than a majority)voting for rehearing en banc.18 On any othercircuit court, nine active circuit judgeswould constitute an absolute majority. Notinsignificantly, the Supreme Court unani-

mously vacated the Newdow panel decision.As a result of the unreasonable number

of votes required, many of the most impor-tant cases recently decided by the Ninth

Circuit were never reheard en banc. In addi-tion to Newdow, cases involving Afghanistanprisoners held at Guantanamo Bay, theOregon euthanasia law, medical marijuanaand alleged spies suing the CIA for back paywere all decided by three-judge panels andnever reviewed en banc.

This, in turn, has resulted in the

Supreme Court acting as a de facto en banccourt for the Ninth Circuit. Since theOctober 2000 Supreme Court term, atleast 33 Ninth Circuit cases decided by

three-judge panels were notreheard en banc but wereunanimously reversed by theUnited States Supreme Courtin written opinions. For thesecases, the Supreme Court hadto correct the panel’s errors—errors that should have beenaddressed by the Ninth Circuiten banc.

It is noteworthy that thisyear Rep. Mike Simpson(R–Idaho), in addition tointroducing alternative pro-posals to split the NinthCircuit, has proposed a bill(H.R. 1064) abolishing thelimited en banc procedure. IfH.R. 1064 is passed, all 28active authorized NinthCircuit judges will sit en banc.

That the Ninth CircuitFunctions Badly Is Well

KnownDisproportionate size might beoverlooked in a circuit that isfunctioning well. As reflectedpreviously, though, despite thevaliant efforts of the NinthCircuit judges and circuit staff,the Ninth Circuit is not.Prominent judges and legislators,from within and without theNinth Circuit, have called for asplit.

Four members of the U.S.Supreme Court have publiclycommunicated their belief that acircuit split is necessary. In 1998,Justices O’Connor (the CircuitJustice for the Ninth Circuit),Kennedy (a former Ninth Circuit

judge), Scalia and Stevens wrote to theWhite Commission in support of splittingthe Ninth Circuit. In addition, Chief JusticeRehnquist wrote to the commission toexpress his concern that the size and poorfunctioning of the circuit worked to erodepublic confidence in the judiciary.19

From: Exh. 15, Appendix to Judge Diarmuid F. O’Scannlain’s Testimony beforethe U.S. Senate Judiciary Subcommittee on Administrative Oversight and theCourts, April 7, 2004 (updated April 18, 2005).

Fig. 4

From: Exh. 12, Appendix to Judge Diarmuid F. O’Scannlain’s Testimony before the U.S. Senate JudiciarySubcommittee on Administrative Oversight and the Courts, April 7, 2004 (updated April 18, 2005).Fig. 3




The Ninth Circuit had 6,000 more filings in 2004 than thenext-busiest circuit.

The Ninth Circuit’s caseload increased nearly 12 timesfaster between 2000 and 2004 than did the average

of all other circuits.

perc

enta

ge ch

ange

16,000

14,000

12,000

10,000

8,000

6,000

4,000

2,000

0

40 A R I Z O N A AT T O R N E Y S E P T E M B E R 2 0 0 5

states outside the Ninth Circuit who sup-port a split include Senators Orrin Hatch(R–Utah) and Jeff Sessions (R–Ala.).

House Judiciary Committee ChairmanJames Sensenbrenner (R–Wis.) has repeat-edly expressed his strong support for a split,stating, “The facts are clear: The Ninth istoo big in so many ways.”22 Last October,the House of Representatives passed a billto divide the Ninth Circuit.23 As mentionedpreviously, Representative Simpson hasintroduced multiple bills to split the circuit,including two in 2005, H.R. 211 and H.R.212. Rep. Rick Renzi (R–Ariz.) also has ledsupport for a split.

In addition, the U.S. Department ofJustice, which opposed a split in 1998, thisyear announced support for a split,although it takes no position regarding

reconfiguration.

The Only Workable Solution Is To Split the Ninth Circuit

One thing is certain—no more studies areneeded.

Two congressionally created commit-tees, spanning 25 years, studied whether theNinth Circuit should be split. In 1973, theCommission on Revision of the FederalCourt Appellate System (“HruskaCommission”) recommended that theNinth Circuit be split.24 At that time, the cir-cuit had 13 active circuit judges. In 1998,though the White Commission did not rec-ommend an outright split, it did recom-mend that the circuit be subdivided intothree semi-autonomous divisions. This rec-

Ninth Circuit judges publicly recogniz-ing the necessity for splitting the circuitinclude Judges Diarmuid F. O’Scannlain,Andrew J. Kleinfeld, Richard C. Tallman,Joseph T. Sneed, Robert R. Beezer, CynthiaHolcomb Hall, Stephen Trott, Ferdinand F.Fernandez and Thomas G. Nelson. In addi-tion, First Circuit Judge Bruce M. Selya,Senior Third Circuit Judge Ruggero J.Aldisert, Fifth Circuit Judge Jerry E. Smith,Seventh Circuit Judge Frank Easterbrook,and Eleventh Circuit Judge Gerald BardTjoflat all agree that a circuit split is war-ranted. In December 2003, Judge Posnersaid that the Ninth Circuit should be split,stating, “The Ninth Circuit is performingbadly, a case reinforced by the impressionsthat almost everyone has who appearsbefore the Ninth Circuit or reads its opin-ions.”20

In April 2004, former District ofArizona Chief Judge William D. Browning(who served as one of the five members ofthe 1998 White Commission), former ChiefDistrict Judge Robert C. Broomfield (whotestified against a split in 1998), and I wrotea joint letter to Congress. Judge Browningstated that if the choice is between addingnew judges to the existing circuit or split-ting the circuit, he now supports a split ofthe Ninth Circuit. Judge Broomfield (whohas changed his view since his 1998 testi-mony) and I also expressed our support fora split of the circuit.

Senators and representatives from NinthCircuit states have recognized that the cir-cuit’s massive size poses significant prob-lems. Citing the 13 percent increase in thecircuit’s caseload from 2002 to 2003, Sen.Dianne Feinstein (D–Calif.) has acknowl-edged the need to take another look at theissue.21 On June 23, 2005, a two-way splitof the Ninth Circuit was proposed (S.1296) by Senators Ted Stevens (R–Alaska),Lisa Murkowski (R–Alaska), Jon Kyl(R–Ariz.), Larry Craig (R–Idaho), MikeCrapo (R–Idaho), Conrad Burns(R–Mont.), and Gordon Smith (R–Ore.).That same day, Sen. John Ensign (R–Nev.)proposed a three-way split (S. 1301), co-sponsored by Senators James Inhofe(R–Okla.), Tom Coburn (R–Okla.), JohnCornyn (R–Texas), and Senators Craig andCrapo. Other prominent senators from

w w w. m y a z b a r. o r g

* Source: Table B, U.S. Courts of Appeals Statistical Tables, December 2004.

** Source: Ninth Circuit AIMS Database. Due to methodological differences, the Ninth Circuit’s AIMS databaseyielded 14,842 filings for 2004, including 19 appeals of undesignated origin, while the Administrative Office identified 14,876 filings.

Fig. 5

Caseloads in the Current and Proposed Circuits




ommendation was an attempt to implementthe White Commission’s conclusion, men-tioned previously, that the maximum num-ber of judges for a decision-making unit issomewhere between 11 and 17. In the sixyears since the White Commission made itsrecommendation, nothing has been done toimplement it. In fact, the recommendationwas greeted with disapproval by the circuitwhen it was first announced.

How To Split the CircuitProposals under consideration—2005.Congress is currently studying various con-figurations for a Ninth Circuit split. This isin keeping with its constitutional duty tocreate such lesser courts as it“may from time to timeordain and establish.” U.S.CONST. art. III, § 1.

S. 1301 and H.R. 211would place Arizona,Nevada, Idaho and Montanain a new Twelfth Circuit;Oregon, Washington andAlaska in a new ThirteenthCircuit; and California,Hawaii, Guam and theMariana Islands in the NinthCircuit. The new TwelfthCircuit would approximatethe caseload of the TenthCircuit, with room to grow(Fig. 5).

H.R. 212 would keepArizona and Nevada in theNinth Circuit withCalifornia and move the other six states to anew Twelfth Circuit. This circuit, based onthe heavy caseloads of Arizona, Nevada andCalifornia, would carry a staggering 82.9percent of the current Ninth Circuit case-load (Fig. 5). This configuration wouldplace the states with the first (California),second (Arizona), and fourth (Nevada)largest caseloads in the same circuit. What iscurrently a problem for nine states wouldbecome the problem of Arizona andNevada. Furthermore, this would continuethe woeful underrepresentation of Arizonaand the other western states in the U.S.Judicial Conference (and most of its com-mittees), where each circuit is represented.

A different two-way split, S. 1296, is

cosponsored by seven senators from theNinth Circuit. It would place Hawaii,Guam and the Northern Mariana Islands inthe new Ninth Circuit along withCalifornia. The new Twelfth Circuit wouldbe comprised of Arizona, Alaska, Idaho,Montana, Nevada, Oregon andWashington.

Another proposal yet to be formallyintroduced but likely to gain attention is atwo-way split with California as a stand-alone circuit. Creation of a new TwelfthCircuit from the remaining eight statesdeserves consideration. Although thosestates would span a considerable distance,that is a problem that already exists. Much

more important, the caseload of this newTwelfth Circuit would be about average inrelation to the other circuits. Its caseloadwould be larger than the First, Third,Seventh, Eighth, Tenth and District ofColumbia Circuits (Fig. 5). Equally impor-tant, this new circuit would allow these statesto be in a circuit with an en banc procedurethat is the norm for the rest of the country(i.e., all active circuit judges sitting en banc).

California should be a stand-alone circuit.Grouping Arizona in a new Ninth Circuitwith California would certainly disfavorArizona and would do nothing to evenly dis-tribute the caseload. Dividing Californiaamong two circuits would be unprecedented

and could cause various complications ininterpretation of California state law. With apopulation of 36 million people, Californiahas an economic, demographic and evenideological diversity unlike that of any otherstate. Only one other state has more than 20million people (Texas, with 22.5 million).Even alone as its own circuit, Californiawould become the largest circuit in thecountry (Figs. 5 & 6).

Cost is not a reason to avoid a split.Notwithstanding the numerous incurableproblems arising from the Ninth Circuit’ssize, some split opponents suggest thatdeficient justice for nearly one-fourth of all

federal appellate litigants mustcontinue because it is tooexpensive to build new circuitheadquarters.25 However, esti-mates quoted by split oppo-nents include the costs associ-ated with the creation ofseven new judgeships, a nec-essary cost with or without asplit.

In addition, the 230 N.First Avenue FederalCourthouse in Phoenix, cur-rently housing the bankruptcycourt and probation, has suf-ficient space to house thebankruptcy court, a newCircuit Executive’s Office,and all other necessary circuitoperations, at least for theshort term.

ConclusionObjective information should be the guide-post for any discussion as to whether to splitthe circuit. There is no justification, histori-cal or otherwise, for the Ninth Circuit todwarf all of the other federal circuits whilecontinuing to experience unlimited growth.This growth has been accompanied bynumerous problems, some of which areirreparable. The effort to split the circuit isnot an attack on judicial independence; it isan attempt to return to a federal judiciarythat has regional circuits of reasonably com-parable size, population and caseload. Splitthe Ninth Circuit. It’s time.


From: Exh. 20, Appendix to Judge Diarmuid F. O’Scannlain’s Testimony before the U.S. Senate JudiciarySubcommittee on Administrative Oversight and the Courts, April 7, 2004 (updated April 18, 2005); Table B3,Judicial Business of the United States Courts 2004, Administrative Office.

Fig. 6

— ENDNOTES on p. 48

AZAT



California cases overwhelm the Ninth Circuit in a mannerdrastically different than in more balanced circuits.

10,000

8,000

6,000

4,000

2,000

0

ting judges, but only 17 percent of thecaseload. And in that three-way split, thenew Thirteenth Circuit would have threestates, Alaska, Oregon and Washington,with 17 percent of the judgeships but only12 percent of the workload.

Clearly, the splits do nothing to solvethe workload that comes from having thenation’s largest population center,California, in the mix. And none of thesplits would allow continuation of the cur-rent practice of assigning judges through-out the Ninth Circuit to manage workloadsurges and ebbs quickly and efficiently.

The proposals are not “new math” butbad math, and the resulting inequitieswould not be isolated to the new Ninth butrather would have a spillover effect to allthe Circuits. Justice delayed or unduly bur-dened in the Ninth Circuit automaticallywould affect Arizona no matter what circuitArizona is plopped into because so much ofArizona’s commerce and interaction is withCalifornia. Separating ourselves artificiallyfrom the dominant player does not elimi-nate the dominant player, but just putsArizona in a very back room.

The Current Ninth Circuit Is Not Too Big

I assess success in terms of goals. Therefore,before deciding if any circuit is “too big,” itis reasonable to ask, “Too big for what?”My answer tracks as follows:

Q: What is the purpose of the Ninth Circuit?

A: To deliver justice.Q: What is the relationship of size

to accomplishing that purpose?A: None has ever been shown.That is the fact. There is not a whit of

evidence showing that the Ninth Circuit’ssize is a negative in terms of the circuit’spurpose. Even the “White Commission” towhich Judge Roll refers repeatedly con-cluded that size itself is not a critical factorin appellate delay.

The experience around the nation con-firms the White Commission finding. Allcircuits have grown, and will continue togrow, to accommodate population. In fact,since 1960, when no circuit had more thannine judgeships, only the First Circuitremains in single digits. Would Judge Rollpick an arbitrary number of judges and then

require a split, regardless of facts and cir-cumstances arguing otherwise? Or would heeschew an automatic indicator in favor of anassessment based on function and purpose,and be open to having the facts demonstratethat “size by itself is not critical.”

Although size itself is not the problem,it certainly can be the solution. In the caseof the existing Ninth Circuit, and to theannoyance of its critics, its size has allowedit to become a model of efficiency.

The numbers show that the NinthCircuit is the fastest circuit in the nation inthe time taken to decide cases after submis-sion. The implementation of new case man-agement techniques have decreased thetime from last briefing to oral argument by50 percent since 2001. In fact, splitting theNinth Circuit would increase delay by cur-tailing or eliminating innovative programsthat are too expensive to duplicate in oneor two new circuits.

For example, the remarkable body ofexperienced staff attorneys in the NinthCircuit slices delays like a team of judiciousSamurai. Last year alone, staff attorneysprepared 1,421 habeas petitioners’ requestsfor a Certificate of Appealability, 89 percentof which were denied by panels, terminat-ing 1,265 cases at that stage. Staff attorneysalso presented 2,182 merits cases to screen-ing panels, resulting in termination ofanother 2,029 appeals. To put this sort ofefficiency in perspective, the District ofColumbia Circuit terminated only 1,155cases and the First Circuit only 1,643 dur-ing the same time period.

The training, experience, tools andresources available from this cadre ofexperts are far too expensive to duplicate ina split circuit. They demonstrate continu-ing efficiencies that come from consolida-tion, as seen in the work of the staff attor-ney teams, along with the:• Appellate Commissioner, who resolved

1,125 Criminal Justice Act fee vouchersand heard 4,062 substantive motions;

• Circuit Mediator, who settled 881appeals out of 977 referred to it, a 90percent success rate, more than 50 per-cent greater than any other circuit;

• Bankruptcy Appellate Panel, whichresolved 615 appeals; and

• Case Batching, a system that invento-ries cases by issues, tracking them to


have a much better federal bench and barthan that. We deserve to continue the NinthCircuit tradition of excellence that hasserved us very well from its inception ratherthan trade down for a marginal and margin-alized court whose decisions would be dic-tated by loud but painfully narrow interests.

The NumbersIt is easy to get caught in the numbersgame. Judge Roll’s article presents them ingrids and tables and narratives. But as we allknow, they can be manipulated to show justabout anything. What would Judge Rollmake of our state system, for example? Wehave 27 appellate judges and 111 trial courtjudges, without counting commissionersand justices of the peace, all of whom areadministered by the state Supreme Court.Should we break it up as being unwieldy onthe basis of numbers alone? Or should wedo the obvious; use technology to managecases and process with maximum efficiencyand then enjoy the fruits of a vigorous andinteresting docket that allows citizens toadvance issues they deem important acrossthe contiguous political bodies.

Ironically, the numbers from the pro-posed breakups of the Ninth Circuit onlyemphasize the waste and inequity thatwould result from any of the pending bills.The current proposals (a three-way split ora two-way split) yield fewer judges to carrythe disproportionately heavy caseload inthe remaining Ninth Circuit. Fox exam-ple, if the Ninth is split in two (S. 1296;H.R. 212), there would be 24 permanentjudges and two temporary ones in the newNinth, which would include California,Hawaii, Guam and the NorthernMarianas. This new Ninth would have 74percent of the judges, but 82 percent ofthe caseload, whereas the new Twelfth,with 14 judges and comprised of Alaska,Arizona, Idaho, Montana, Nevada,Oregon and Washington, would have only18 percent of the caseload but 26 percentof the judges.

In a three-way split (S. 1301), theresulting Ninth Circuit would have 60 per-cent of the judges and 71 percent of thecaseload, whereas the new Twelfth Circuitin which Arizona would be placed, alongwith Idaho, Montana and Nevada, wouldhave eight judgeships, 23 percent of the sit-

THE NINTH CIRCUIT: CONsplitting


reduce the chance of inconsistent deci-sions and to leverage precedents.Among the advantages of the current

Ninth Circuit configuration that is crucialto Arizona is the fact that it provides a sin-gle body of law for the Pacific Rim eco-nomic area, which includes Mexico. Thatbenefit is lost if the circuit is split.

What accompanies a circuit split? Forumshopping, competing or multiple legalteams representing businesses involved inmore than one circuit, intercircuit conflictover questions that cover the territory ofthe new circuits. All of this would drivebusiness away and harm the nation’s econ-omy, not just that of Arizona and the West.

Finally, in terms of managing size, Isometimes wonder if sitting judges have anyidea what has happened to the world oflawyering since they took the bench. To calla system of 28 judges “huge” when so manylaw firms are bigger than that, and manyhave staffs in excess of 1,000 people, withmultiple locations around the globe, sug-gests a parochial view of management entire-ly out of sync with what successful law firms,and the successful businesses they represent,cope with every day. Globally, business lead-ers constantly seek to consolidate and growthrough acquisitions precisely because sizeallows them to leverage “back room” opera-tions: technology, staff, budgeting, spaceand infrastructure. That is the model of theNinth Circuit, and the model of the future.

Any Split Will Break the BankAlthough Judge Roll is in error in callingthe Ninth Circuit “huge,” he would be cor-rect in calling the cost of creating a new cir-cuit not just huge but COLOSSOLYGIGANTIC. The estimated cost of creatingeven one new circuit (and most suggestionsend up with two new circuits, so you candouble these numbers) is $100 million to$125 million dollars, with an additional $20million a year in added administrative costs.

The logistics themselves are daunting.Although currently everyone is willing,even happy, to “leave their heart in SanFrancisco” in order to attend an oral argu-ment, in one proposal, the seat of Arizona’scircuit would be Missoula. People have leftparkas and sled dogs in Missoula, but fewhearts. In another it is Portland, a place not

45S E P T E M B E R 2 0 0 5 A R I Z O N A AT T O R N E Yw w w. m y a z b a r. o r g


obviously linked to the federal issues inArizona. In another, Phoenix becomes thenew circuit head, in a gerrymandered juris-diction whose only commonality seems tobe that all states include the letter “A.”

The waste of existing resources is just asstunning. For example, the Sandra DayO’Conner Federal Court building, justbuilt, is instantly too small. If the currentnon-Arizona Ninth Circuit judges vacated ittomorrow, any proposed new circuit intowhich Arizona would be dropped would betoo big to fit, even without its administra-tive staff. And of course new circuit courtheadquarters would have to be built inPortland and Missoula, and perhaps Seattle,at equally staggering expense. Leaving asidethe capital investment, transition costs alonewould destroy the budgets for the old andnew circuits for the next decade.

At a time when we are feeling federaldeficits acutely in many critical areas, won-dering how we can fund social security orensure basic medical care for our agingpopulation and also fund a war that is soexpensive we cannot provide armored vehi-cles for our soldiers, throwing buckets ofmoney to appease disgruntled ideologuesseems not just short-sighted, but callous.

On a more operational level, there wouldbe no judicial salary increases at any level ofthe federal system, no funds to keep pacewith technological efficiencies, and no fundsto make the current courthouses moresecure for litigants, attorneys and judgeseven in the face of increasing violent attacks.

What Do the Judges on the Ninth Circuit and Other Interested Parties Think?

The judges on the Ninth Circuit opposethe division overwhelmingly. Only three ofthe 24 sitting jurists have voted in favor ofthe division. All of the Chief Judges for thelast 50 years (that’s how long this politicalbeast has been rearing its head) haveopposed it. Every State Bar in the circuitopposes it. Every Federal Bar in the circuitopposes it. All the large specialty and coun-ty bars I contacted in preparing this articleoppose it, including the Los AngelesCounty Bar, San Diego Bar, Seattle Bar andSan Francisco Bar. A slew of op-ed opinionsoppose it, including the Sacramento Bee,the Seattle Post-Intelligencer, the Los

Angeles Times and the New York Times.Perhaps the White Commission, chaired

by a Supreme Court Justice and composedof people deeply involved in the federalcourts, said it best in 1998: “There is stillno persuasive evidence that the NinthCircuit (or any other circuit, for that mat-ter) is not working effectively, or that creat-ing new circuits will improve the adminis-tration of justice in any circuit or overall.”

The En Banc Process Is Flexible and Effective

Critics claim that only 11 of the 28 author-ized circuit judgeships sit on the limited enbanc courts, hence as few as six judges candecide the law of the circuit. What is notwidely understood is that all judges of thecourt participate in the discussion aboutwhether a case should go en banc, and thatby statute, it requires the majority vote ofactive judges for a case to go en banc. Theviews of all judges are well articulatedbefore the voting begins.

A recent study showed that 33 percentof the en banc decisions were unanimous,and 75 percent of the decisions were ren-dered by a majority vote of 8 out of the 11members of the en banc court. Moreimportant, only between 20 to 25 cases aretaken en banc each year, a fraction of themore than 4,500 cases that are decided onthe merits.

It also bears noting that two judges of athree-judge panel bind a circuit in theusual course of decision-making. No criticof the Ninth Circuit is suggesting that rule,ubiquitous in the federal circuits, shouldbe changed.

Furthermore, it is a rule of court thatsets the number of judges to serve on thelimited en banc court. If it chooses to doso, the court can increase that numberthrough its rulemaking process. Statutorychanges are not required. In fact, the courthas the issue on its agenda to review pre-cisely to ensure that the court’s currentrules best serve its constituents.

The existing rules do permit a full courten banc; it has never happened because thejudges of the court have accepted the deci-sions of the limited en banc court andchose not to challenge them further.

So What’s This All About, Alfie?The facts show that there is no identifiedproblem in the administration of the circuit

or in its ability to deliver judicial services ina fair, timely and responsive manner.Because the stated motivation is a ruse, it isimportant to know what is really happen-ing. The driver behind the current attacksto break up the circuit is politics—small andmean politics.

This time the main driver isRepresentative Sensenbrenner, the Chair ofthe very powerful House JudiciaryCommittee. Sensenbrenner took the NinthCircuit “Pledge of Allegiance” case as apersonal affront. He has stated again andagain that he will use his personal power inCongress to block “any federal courtappointments,” not just those in the NinthCircuit, until the Ninth Circuit is nuked.

He is bold in his agenda. He is all aboutrevenge. In fact, he has expressed remorsethat he cannot more directly retaliate againstthose sitting judges whose opinions do nottrack his. At an address at Stanford Universityin May, Sensenbrenner stated that “Judgesshould be punished in some capacity forbehavior that does not rise to the level ofimpeachable conduct” and added that judgesshould remember that “tinkering with [fed-eral court] jurisdiction” is an option availableto Congress. He did not bother to cast evena thin veil over that threat.

Unfortunately, Sensenbrenner is notalone. In a remarkably candid commentthat peels this very political onion to itsodiferous core, Sen. Lisa Murkowski(R–Alaska) told us all what really bothersthe critics of this Circuit. “You’ve got a cir-cuit that is spending 85 percent of its timeworking on immigration stuff, and herecomes an issue related to Alaska land andit’s [sic] arcane law that they have not hadan opportunity to study.” Leaving aside theobvious pro-industry bias of her remarkswhen the federal court should be, above all,objective, and leaving aside the belittling ofone of the nation’s most perplexing socialand legal issues, immigration, she suggeststhat the Ninth Circuit does not have timeto pay attention to its work.

Insulting. And untrue.Instant communication, automated case

management systems, computer-aided legalresearch, scaleable staffing models, profes-sional cadre of staff attorneys, issue trackingprograms that allow all judges to know allother cases or decisions within the circuit




dealing with the same or similar issues, video-conferencing: all keep the court on top of itsown cases and the law in other circuits. If onedoubts the skill with which information is dis-seminated not only internally but to the pub-lic, take a look at the Ninth Circuit Web site(www.ce9.uscourts.gov), a model of “con-sumer-friendly” information with links toopinions and substantive law introductions.

Senator Murkowski, you have not ashred of evidence that the Ninth Circuit isdilatory in its decisions or that it is notthoroughly educated about the facts andrecord of the cases it decides.

No Matter What Congress Does, There Will Still Be a California

Without being too cheeky, what the advo-cates of splitting the Ninth Circuit reallywant to do, in descending order of prefer-ence, is: (a) Make California go awayentirely; (b) Divide it so that its dominanceis diluted; (c) Isolate it so that no one else“catches” its profile of dynamism and con-troversy, or its “blueness.”

The primary goal of the proposals,whether two- or three-way splits, is to elim-inate California from the political and legallexicon because it is “too big, too liberaland too messy” for the current conservativeideologues to accept.

These assumptions hold less water thana Phoenix jogger in mid-July.

First, the Ninth Circuit is not a liberalbastion out of touch with the rest of thecountry, and the Supreme Court statisticsprove it.

In 2005, the Ninth Circuit took in15,392 cases. In 1,007 of those cases, 6.5percent, the losing side sought SupremeCourt review. A total of 94.5 percent ofthose who lost their appeal chose not toask the high court to reverse. Of thosewho did seek review, the Supreme Courtgranted it in 19 cases, or 1.9 percent.Because it only takes four votes to acceptreview, the Supreme Court’s review rate isitself a statement of agreement with thevast majority of the Ninth Circuit’s work.Finally, the Supreme Court reversed theNinth in 16 cases, or 1/10th of 1 percentof the Ninth’s annual caseload. And evenif you focus solely on the 1,007 cases inwhich review was sought, the “reversal”



rate is about 1.5 percent, meaning thateven in the eyes of litigants and theSupreme Court, the Ninth Circuit got it“right” 98.5 percent of the time. Nothingabout that profile sounds like a court iso-lated from the mainstream.

Liberals, whatever that may mean, donot dominate the Ninth Circuit. There are11 active judges sitting on the court inCalifornia, one of whom is originally fromWashington state. Three were appointed byRepublican presidents. Neither the six non-Republicans nor the three Republicansshare a uniform political ideology. In fact,the “Pledge of Allegiance” decision wasauthored by a Nixon appointee and notoverturned but vacated on a proceduralpoint, not the merits. As many a Presidenthas found, party affiliation by itself is nopredictor of judicial philosophy.

Second, to the extent RepresentativeSensenbrenner wishes to nudge the Courtin a particular direction, his best chance isnot in nuking it but in filling its seats.There are currently four vacancies on theNinth Circuit. Filling them gives thisAdministration great influence over the

Circuit, whereas splitting it would diffusethat same influence. This simple and obvi-ous response, of course, would actuallysolve the problem.

Alas, keeping the Ninth Circuit as awhipping post serves the true politicalinterests of its critics, and so Sensenbrennerchooses to block the very appointmentsthat could solve his “problem.” His failureto do his part in delivering judicial servicescosts the citizenry, of course. No regulartaxpayers in the Ninth Circuit need or wanthis artificial controversy.

And What About JudicialIndependence?

These attacks are not just silly politicalgames that justify our national devotionto Jon Stewart’s take on the nation’sleaders. Unfortunately, Sensenbrennerand Murkowski’s chilling statements areshockingly at odds with a bedrock ofour freedoms—a truly independentjudiciary. Re-arranging and eliminatingjudges to punish and isolate those whodisagree with an elected official is thestuff of banana republics. They are not

the stuff of a democracy founded onfree speech and a tripartite system ofchecks and balances.

Our federal courts are the forum forcitizens to bring federal legal disputes toconclusion, guided by judges or justiceswho enjoy lifetime tenure and whose pri-mary role is to protect the citizenry fromgovernment excesses by holding the lineon constitutional protections. They alsohave more mundane tasks, but at theirmost regal they are the thin but powerfulprotectors we citizens have against unbri-dled legislative and executive powers.

The White Commission, oft-quoted by Judge Roll, agreed wholly with thistruism:

There is one principle that we regard asindubitable: It is wrong to realign cir-cuits (or not realign them) and torestructure courts (or leave them alone)because of particular judicial decisionsof particular judges. This rule must befaithfully honored for the independenceof the judiciary is of constitutionaldimension and requires no less.

Seen in this light, the inclusion of


1. Russell R. Wheeler & CynthiaHarrison, Creating the FederalJudicial System 18-20 (3d ed.2005) (visited July 15, 2005)<www.fjc.gov/public/pdf.nsf/lookup/Creat3rd.pdf/$File/Creat3rd.pdf>.

2. Commission on StructuralAlternatives for the Federal Courtsof Appeals, Final Report 29(1998) [hereinafter WhiteCommission] (visited July 15,2005)<www.library.unt.edu/gpo/csaf-ca/final/appstruc.pdf>.

3. Judicial Conference of the UnitedStates, Report of the Proceedings ofthe Judicial Conference of theUnited States, Mar. 18, 2003, at18-19 (visited July 15, 2005)<www.uscourts.gov/judconf/marc03proc.pdf>.

4. Administrative Office of the UnitedStates Courts, Reports on ArticleIII Judgeships, MagistrateJudgeships, and BankruptcyJudgeships (2004). On file withauthor.

5. Interview with Diarmuid F.O’Scannlain, Circuit Judge, UnitedStates Court of Appeals for theNinth Circuit (Mar. 3, 2003) (visit-ed July 15, 2005)

<http://legalaffairs.org/howappealing/20q>.

6. See United States v. Barona, 56 F.3d1087, 1105 (9th Cir. 1995)(Reinhardt, J., dissenting) (“Themajority’s cavalier treatment of …the question before us suggests thatpanel composition, not persuasivelegal analysis, has determined theresult in this case”); Garcia v. SpunSteak Co., 13 F.3d 296, 301 (9thCir. 1993) (Reinhardt, J., dissentingfrom denial of rehearing en banc).

7. Improving the Administration ofJustice: A Proposal to Split the NinthCircuit, Hearing Before the SenateComm. on the Judiciary, 108thCong. 18, 209 (2004) (statementof Hon. Richard Tallman, judge onthe Ninth Circuit Court ofAppeals).

8. White Commission, supra note 2, at47.

9. The Administrative Office of theUnited States Courts, Table B4,Dec. 2004. On file wih author.

10. Pub. L. No. 95-486, § 6, 92 Stat.1629 (1978).

11. Circuit Rule 35-3 of the Rules ofthe United States Court of Appealsfor the Ninth Circuit.

12. Interview with Richard A. Posner,Circuit Judge, United States Court

of Appeals for the Seventh Circuit(Dec. 1, 2003) [hereinafter JudgePosner, 20 Questions] (visited July15, 2005)<http://legalaffairs.org/howappealing/20q>.

13. Letter from Justice Sandra DayO’Connor, United States SupremeCourt, to Justice Byron R. White,Chair, Commission of StructuredAlternatives for the Federal Courtof Appeals 2 (June 23, 1998).

14. E.g., Southwest Voter RegistrationEduc. Project v. Shelley, 344 F.3d914 (9th Cir. 2003).

15. Gilbertson v. Albright, 381 F.3d965 (9th Cir. 2004); United Statesv. Doe, 366 F.3d 1069 (9th Cir.2004); Southwest Voter RegistrationEduc. Project, 344 F.3d at 914;Miller v. Gammie, 335 F.3d 889(9th Cir. 2003); United Food &Comm. Workers Union Local 1036v. NLRB, 307 F.3d 760 (9th Cir.2002).

16. White Commission, supra note 2, at35.

17. Nunes v. Ashcroft, 375 F.3d 810,818 (9th Cir. 2004) (Reinhardt, J.,dissenting).

18. 328 F.3d 466 (9th Cir. 2003).19. Letter from Chief Justice William

H. Rehnquist, United States

Supreme Court, to Justice ByronR. White, Chair, Commission onStructured Alternatives for theFederal Court of Appeals 1 (Oct.22, 1998).

20. Judge Posner, 20 Questions, supranote 12.

21. Brent Kendall, Divided JudgesArgue Whether To Split Circuit,DAILY JOURNAL (Los Angeles),April 8, 2004, at 1. See alsoJonathan D. Glater, LawmakersTrying Again To Divide NinthCircuit, N.Y. TIMES, June 19,2005, at § 1, p. 12 (quoting Sen.Dianne Feinstein: “If there is a wayto reduce the caseload of the NinthCircuit’s judges in a fair and honestmanner, … I am open to considera-tions”).

22. Sen. F. James Sensenbrenner, Jr.,Zale Lecture in Public Policy,Stanford University (May 9, 2005).

23. S. 878, 108th Cong. (2004).24. Commission on Revision of the

Federal Court Appellate System,Structure and Internal Procedures:Recommendations for Change, 62F.R.D. 223, 236 (1973).

25. Bill Blum, The Bottom Line: HowMuch Will it Cost to Break up theNinth Circuit? CAL. LAW., June2005, at 13.

endnotes (pro) — continued from p. 42



California, that diverse and colorful neigh-bor, in our circuit is not a negative, but abenefit. When we are aligned withCalifornia, we run with the big dogs: tack-ling hard issues, examining the next gener-ation of legal questions, enjoying the richlibrary of precedents, arguing before amost experienced and learned bench. Howcould we not embrace the heady mixtureof scholarship and social dynamism thatCalifornia brings to the judicial table? Dowe really think that Arizona is betterserved by passing up that intellectual ban-quet in favor of a light snack in Boise? Andsurely Idaho would feel the same about usif its federal appellate sweep were limitedto just a few small states whose common-ality is elusive at best.

ConclusionTrue or False:• The Ninth Circuit has more judges

than other circuits.• The Ninth Circuit has more territory

than other circuits.• The Ninth Circuit has more people

than other circuits. • The Ninth Circuit has California.

… Therefore, we must break up theNinth Circuit.

If this were a question on the LSAT, few ifany would miss the slip in logic. Obviously,breaking up the Ninth Circuit is a solutionin search of a problem. If that were all,Judge Roll and I could agree to disagree.But this is a very, very dangerous search.As lawyers especially trained in under-standing the precious role an independentjudiciary has in our justice system, I thinkthat we must respond. I think that it is ourjob to reject the expedient political insur-gence being made on the Ninth Circuit infavor of retaining a system that works forArizona, for the communal good of theWest, and for the constitutional mandatethat separates the powers of the threebranches of our government. Nothing lessis at stake here, and I hope and trust thatwe will answer that important call byrejecting the “nuclear option” of destroy-ing our Ninth Circuit, especially whenthere is no war.


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