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Debate Club
DEBATE CLUB 11/8/04

Should the Ninth Circuit be Divided?

Jennifer Spreng and Carl Tobias debate.

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Covering nearly one-fifth of the American population, spanning nine states and two territories, and comprised of over 40 judges, the United States Court of Appeals for the Ninth Circuit is huge. Plans for splitting the circuit have been around since the 1940s, but they had gone nowhere until this October when the House of Representatives passed a bill to split the court, reducing the size of the current Ninth Circuit and creating two new federal appeals courts.

The split might be a simple solution to an administrative problem. But many people believe it's a ploy to break up a court that's perceived as liberal and that often finds its rulings overturned by the Supreme Court. While the bill passed the House by only a slim margin, it leaves the future of the court in some doubt. Should the Ninth Circuit be divided?


Jennifer Spreng, a bankruptcy attorney in Owensboro, Kentucky, served as a clerk for Ninth Circuit Judge Andrew J. Kleinfeld and has published two law review articles analyzing Ninth Circuit administration issues. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

Spreng: 11/8/04, 08:51 AM
Think "Ninth Circuit," and you are thinking big: more than twice the average number of people, judges, and appeals of the other federal circuits, and almost twice the number of people and judges as the next largest circuit! As Judge Diarmuid O'Scannlain says, "the Ninth Circuit already equals two circuits in one." It is hard to believe an institution so different from the other circuits could be dispensing the same justice other Americans receive, and in fact, it is not.

The Ninth Circuit's size has increased its already extremely busy judges' workload so that they can hardly get the job done. They face more of the high-profile and time-consuming cases requiring attention from every judge, such as the California recall election case or a death penalty appeal. Many Ninth Circuit judges spend days traveling every month from their far-flung chambers to hear cases, an imposition made worse since 9/11 and, as the average age of judges is declining, because they tend to have young, two-career families. The routine task of reading all the court's cases is now overwhelming because it produces so many. No surprise: the Ninth Circuit is consistently among the slowest in the country.

The numerous Ninth Circuit judges--and more are coming!--also do not know each other well enough to facilitate the collegial atmosphere other courts' judges insist is crucial to judicial deliberation. The best way is to hear and decide cases together, but the most recent appointees went longer than four and a half years before sitting with all their colleagues--unheard of on other circuits--though they sat with judges visiting from elsewhere to help stanch the workload bleeding.

Worse, the number of decisions, failure to read them, and never speaking with one voice through a full-court "en banc" proceeding standard in other circuits leads to unpredictable and inconsistent law, which is the widespread impression of practitioners and district judges. Published opinions in some areas may appear consistent, but 75 percent of the circuit's decisions are unpublished. No wonder lawyers say "Las Vegas is the capital of the Ninth Circuit."

The bottom line? When structural weaknesses in judicial administration affect outcomes, litigants get hurt, and Congress should take action.

The House bill creates three circuits with room to grow. California, which alone would be a large circuit, is matched with tiny Guam, Hawaii, and the Northern Marianas. The two other new circuits are Arizona, Nevada, Idaho, and Montana in one, and Alaska, Oregon, and Washington in the other.

Dissatisfaction with a few high-profile decisions is a dubious justification for splitting the circuit, but circuit-preservers can be equally guilty of result-picking. Some claim they want to keep the west's law uniform--though the east coast has five circuits--implying northern judges would decide cases differently from southern judges, and the integrity of the law has to be protected from one or the other. Yet, regionalism and political ideology are rarely the basis for judicial decisions. The sound administration of justice in the overwhelming majority of cases must trump these concerns, and a circuit split is the best way to achieve it.

Tobias: 11/8/04, 05:43 PM
Having spent the last half decade living in Las Vegas, I can verify that the city is the world capital of many phenomena; however, the Ninth Circuit is not one of them.

There are two issues central to the controversial debate over splitting the Ninth Circuit. The first question is whether the appeals court should be divided. And only after Congress definitively concludes that the Ninth Circuit must be divided should lawmakers address the second issue: What is the most effective way to split the appeals court?

The proponents of Ninth Circuit division must assume the burden of proving that a split is warranted. Before Congress modifies a 113 year-old institution, which by many accounts is operating well, those who advocate change must show why this is necessary. The federal appellate system has been altered only twice since its 1891 inception. The first change was in 1929 when Congress created the present Tenth Circuit from the Eighth Circuit, while the second modification was in 1980 when Congress created the present Eleventh Circuit from the Fifth Circuit. Congress only instituted the two modifications after a strong consensus favoring change emerged among judges of, and practitioners before, those courts. That is clearly not the situation today in the Ninth Circuit, although some of its judges and some practitioners favor division.

The most critical question regarding a split's propriety is whether the Ninth Circuit delivers appellate justice. That concept admittedly eludes facile definition. However, court administration experts have used certain parameters to measure appellate justice. One is the percentage of appeals that receive oral argument. The Ninth Circuit ranks seventh among the twelve appellate courts. A second measure is the percentage of appeals that receive published opinions. The Ninth Circuit ranks eighth among the twelve courts. In short, these empirical data show the Ninth Circuit operates quite well and better than numerous other courts.

Unsubstantiated assertions cannot be a substitute for empirical data. For example, no data show Ninth Circuit judges are less collegial, while anecdotal material involving other appeals courts suggests that they may be less collegial. Moreover, the assertion that the judges do not read all the opinions lacks substantiation. Jennifer, you claim that practitioners and district judges find circuit law inconsistent and unpredictable; however, empirical studies have not found this. You and other circuit-splitting advocates have not carried the burden of showing that judicial administration weaknesses affect outcomes.

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Spreng: 11/9/04, 09:02 AM
Split proponents have no special burden to carry given the Ninth Circuit's overwhelming size. We ask only that Congress provide Westerners with same judicial institutions other citizens enjoy. Just because the Ninth Circuit has existed intact since the West was still only sparsely populated is not a reason to preserve it now.

There are more criteria than those you cite to evaluate the circuit's performance. For nine of the last ten years, the Ninth has been one of the two slowest circuits at deciding cases, hardly surprising given all the time staff spends before the judges get the cases struggling to avoid inconsistent results that arise when the right hand does not know what the left hand is deciding in this sprawling circuit. The court can only hear so many oral arguments and produce so many opinions because it relies so heavily on senior and visiting judges. The House approved seven new judges along with the split proposal, but assigning them to only one circuit will also mean judges will sit together on panels even less frequently.

Why use only empirical evidence to judge Congressional policy? "Collegiality" would seem to defy purely empirical measurement, but it is critical for a court. Perhaps the leading empirical student of the Ninth Circuit, Professor Arthur Hellman, has most recently raised that red flag of collegiality based both on studies and his immense understanding of how the Ninth Circuit really works. Ninth Circuit Judge Stephen Reinhardt wrote in 1993 that 28 active judges was already long past being a "small, collegial, judicial bod[y]." Judge O'Scannlain representing eight other judges told Congress in 2003 that the circuit's size negatively impacted collegiality. In case after case, Ninth Circuit judges called each other's work "ludicrous," "meretricious," "spin," "bizarre and horrifying," and "unworthy of any jurist," to cite a few cases. How much evidence do we need?

We could design a study to show whether Ninth Circuit judges can read all the court's decisions. Or, we could just look at the tall stack of slip opinions that arrive in each chambers with appalling relentlessness. Not surprisingly, more than one judge has honestly informed Congress he cannot keep up with the slip opinion traffic. Others say they aren't trying.

Professor Hellman tried to measure inconsistency in Ninth Circuit opinions, but you just can't take a court opinion and convert it to a statistic. He only considered direct conflicts in case holdings and not the sort of dicta, alternate holdings, subtleties and "loose language" that drive practitioners, trying to advise real clients, absolutely crazy. Moreover, he excluded all those unpublished opinions, where conceivably anything goes because they aren't precedent.

The best measure of the Ninth Circuit's consistency is what the district judges and lawyers who get paid to do this every day think. A 1987 survey asked if they agreed with the proposition, "There is consistency between [Ninth Circuit] panels considering the same issue." Fifty-nine percent of attorneys and 68 percent of district judges said "no." I doubt the result would be different today.

Tobias: 11/9/04, 04:06 PM
Size alone does not relieve Ninth Circuit split advocates from proving the need for change in a century-old institution that is operating well. The Ninth Circuit currently delivers appellate justice to westerners which surpasses that of numerous appeals courts, in part by maintaining uniform law in areas, such as water, environmental, and Indian law, which apply across the West.

The assertion that the Ninth Circuit has been one of the two slowest in the last decade depends on the measure used. For example, data from the most recent 12-month period show the Ninth and Second Circuits tied for fastest in the nation from submission to final disposition. The Ninth Circuit has been slower by other measures, but a critical reason for this was the court's lack of a full judicial complement between 1995 and 2000. Indeed, over significant periods, the court operated without one third of its active authorized judgeships. Failure of the Senate to confirm judges obviously necessitated reliance on senior and visiting judges. However, the most recent data show Ninth Circuit reliance exceeds the national average of 22% by only 6%.

Jennifer, you ask "why use only empirical evidence to judge Congressional policy?" One critical reason for using empirical data is that public policy decisions as important as splitting appeals courts be premised on the best available evidence, rather than subjective judgments, possible misperceptions or political viewpoints. Moreover, there is no consensus regarding optimal appeals court size, that smaller courts are more collegial, or that large circuit size negatively affects collegiality. Even could the Ninth Circuit name calling be ascribed to size and lack of collegiality, the quotations seem rather mild in comparison with other examples, such as numerous dissents by Justice Scalia from majority opinions by Justice O'Connor.

It is debatable whether the "best measure of the Ninth Circuit's consistency is what the district judges and lawyers" think. Assuming that it is, the Commission on Structural Alternatives for the Federal Courts of Appeals gathered data which reflects more favorably on the court a decade after the 1987 survey you invoke. Three quarters of district judges responded "almost always" or "frequently" to 'when deciding a question of law, do you find circuit law coherent, consistent and developed enough to allow you to decide the question efficiently?" Half of the attorneys responded "not at all a problem" or "a small problem" to "for you or your clients, how big a problem is the difficulty of discerning circuit law due to conflicting precedents?"

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Spreng: 11/10/04, 09:09 AM
Wow! If only half of western attorneys today are saying conflicting Ninth Circuit precedents don't interfere with their ability to discern the circuit's law, that is a disaster that should speak volumes to Congress. Apparently not much has changed since 1987, despite an incredible amount of effort.

I am glad you discussed the time from final submission to final disposition, because it raises an example of how the Ninth Circuit provides litigants an inferior product: the role of staff.

The "final submission to final disposition" statistic makes the circuit look good until you realize what it means. "Final submission" occurs after briefing and argument, when judges start deliberation. "Final disposition" is when the court renders its decision. The statistic shows that the Ninth Circuit's judges are working faster than others--not good if you are a litigant who wants the court to deliberate and not rush to judgment to keep the stats up.

More relevant to litigants is the time between filing the appeal and receiving a decision. On this count, the Ninth Circuit is basically the slowest. Where does all the time go? To staff activity needed because of the circuit's size--ensuring consistency, making some rulings, even writing some decisions, and generally limiting the judges' workload. Bottom line: lay persons not appointed by a president are doing or supplanting things judges do in other circuits. Court administration experts enjoy studying all these Ninth Circuit-only "innovations," but Westerners ought to be wary of them.

A court is not just a case-processing unit. Its work is about real people who deserve better.

The notion that the Ninth Circuit produces a uniform law of the west forgets two realities: the Eight and Tenth Circuits that also decide those "western" issues. Besides, a "uniform law" masks the legal uncertainty circuit conflicts reveal, so that the Supreme Court may miss an opportunity to make true "uniform law." Moreover, worrying about a "uniform law" smacks of wanting to control outcomes, as I discussed Monday. What's so scary about the same judges producing a uniform law now doing it from different circuits?

To splve its problems, the Ninth Circuit is constantly robbing Peter to pay Paul. For example, the solution to unacceptably heavy reliance on non-Ninth Circuit judges was fully staffing the circuit and perhaps adding judges, which exacerbated the collegiality problem discussed before. These frustrations of reform attempts have led leading academic students of the circuit such as Professor Hellman (for the first time) and Professor Daniel Meador who served as executive director of the Commission on Structural Alternatives that "almost" recommended a split to give splitting the circuit at least a serious look. At some point, the circuit just isn't worth saving if we have to work so hard to do it.

Limiting a policy discussion to "empirical data only" is a great debating tool to take unfavorable issues not amenable to numbers off the table, but when those are also the most important, citizens would probably prefer Congress to sneak a look anyway.

Tobias: 11/10/04, 06:04 PM
I am pleased to cede the remainder of my debating time to Alex Kozinski and Sidney R. Thomas. President Ronald Reagan appointed Judge Kozinski, whose chambers are in California, to the Ninth Circuit in 1985, while President Bill Clinton appointed Judge Thomas, whose chambers are in Montana, to the court in 1996. In an article in this morning's Wall Street Journal titled "Don't Split the Ninth Circuit!" the two judges articulate--with consummate wisdom, clarity, and persuasiveness--numerous arguments for maintaining the Ninth Circuit intact. Perhaps most critical, Judges Kozinski and Thomas speak from practical experience. As the two jurists astutely explain, Ninth Circuit judges--those individuals who are most familiar with the court's operation--have consistently voted against a split, most recently opposing the notion three to one.

Judges Kozinski and Thomas admonish that dividing a "federal judicial circuit is exceedingly rare," while it is a "complex process that risks seriously disrupting the administration of justice." They warn that splitting the Ninth Circuit and establishing the Twelfth and Thirteenth Circuits would be quite expensive and "enormously disruptive" for the body of law in the seven states of the two new circuits as well as for judges, litigants, lawyers, and court staff in the courts of the Twelfth and Thirteenth Circuits.

The two judges also cogently refute the size argument for splitting the Ninth Circuit. They assert that magnitude does not necessarily mean inefficiency. Indeed, Ninth Circuit size offers economies of scale, thus permitting it to afford valuable, innovative services that smaller circuits cannot offer. Illustrative are bankruptcy appellate panels, which Congress found so worthwhile that it instructed every appeals court to consider their implementation.

Jennifer, you suggest that reliance on staff and on "out-of-circuit" judges are "Ninth Circuit-only 'innovations.'" However, increasing caseloads and deficient resources mean that all twelve of the appeals courts increasingly depend on staff and on out-of-circuit judges. Indeed, several appeals courts place greater reliance on them than the Ninth Circuit, even though these courts are smaller. Insofar as docket growth and insufficient resources are difficulties that may undermine the delivery of appellate justice, the concerns are not peculiar to the Ninth Circuit. They are systemwide phenomena that warrant systemwide consideration and remediation or amelioration.

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Spreng: 11/11/04, 09:08 AM
I'll see your Judge Kozinski and Judge Thomas and raise you Judge Sneed, Judge Beezer, Judge Hall, Judge Trott, Judge O'Scannlain, Judge Fernandez, Judge T.G. Nelson, Judge Kleinfeld, and Judge Tallman. A group appointed by both Democrat and Republican presidents, of active and senior judges from California and four other states.

Unlike Judge Kozinski, none is in line to be the court's next Chief Judge. Judge Kozinski and many judges from California hear the overwhelming majority of their cases in their home city or a short shuttle flight away, and he maintains chambers near a small group that could have the collegial atmosphere other judges might like. Judge Thomas favored a split until appointed to the court. How many of us would favor dismembering our incredibly powerful court if we were members? Of course, that should not sway others' views.

These other nine judges also know the Ninth Circuit, and out of respect for the court leadership and its vehement opposition, they would be unlikely to speak out unless the situation was dire.

Hear Judge O'Scannlain, who argues that "cosmetic changes . . . can no longer suffice" and "a significant restructuring is necessary" and adding more judges "severely hampers our law-declaring role." Hear Judges Nelson and Trott, who criticize the limited en banc process in which a mere eleven judges of the twenty-eight total substitute for the full court that gathers in other circuits to hear important cases. Hear Judge Kleinfeld, who laments that the court's size sacrifices its predictability, which the great student of the appellate process, Karl Llewellyn, called the chief virtue of appellate work. Hear Judge Tallman, astounded that after three years, he still had not met all his colleagues!

Theirs are not voices in the wilderness. Supreme Court Justice Anthony Kennedy, formerly of the Ninth Circuit, says it is "too large to have the discipline and control that's necessary for an effective circuit." Justice Sandra Day O'Connor says "the circuit is simply too large." Add former Chief Justice Warren Burger and Justice John Paul Stevens to the pro-split list. Chief Judge Fred Van Sickle of the Eastern District of Washington recently observed that the court "seems to function more like a legislative body than an appellate court." You won't hear that said about other circuits!

Moreover, staff costs could decline, because layers of staff needed to manage the huge current contingent could be removed and other staff activity rendered unnecessary. And appropriate courthouses exist in the north.

You misstate my earlier argument about staff: no other circuit uses so much staff so intrusively. You have argued elsewhere that studying these innovations justifies preserving the Ninth Circuit, demonstrating how many are unique. But why not more courts, then, and more innovations? At some point an organization reaches its point of maximum efficiency from economies of scale, and efficiency starts to decline, as these judges describe. Yet here's a chilling thought: any negative footprints it leaves on justice affect a fifth of the country. At least smaller circuits would limit the damage.

Tobias: 11/11/04, 04:51 PM
You insist on returning our debate to Las Vegas. However, even amateur gamblers know that three-to-one odds are not very good. Bottom line: three out of four Ninth Circuit judges recently voted against splitting the appeals court.

While name dropping, please remember the Commission on Structural Alternatives, which Retired Supreme Court Justice Byron White chaired. The Commission unanimously, expressly, and strongly rejected a Ninth Circuit split. Chief Justice William Rehnquist appointed all five members of the Commission which Congress authorized to study the appellate system, especially the Ninth Circuit, and make recommendations for change, if warranted. After a year's study, the Commission rejected a Ninth Circuit split and recommended a divisional structure for that court. Congress never seriously considered a 1999 bill which embodied the divisional structure recommended.

Because you invoke the names of Ninth Circuit judges who favor a split, that list deserves scrutiny. Most revealing is those conspicuously absent. Absent is Ninth Circuit Judge Rymer, a Reagan appointee, who was a Commission member. Also absent are Ninth Circuit Judges Bea, Bybee, Callahan and Clifton, all of the judges whom President George W. Bush has appointed. Absent as well are former Ninth Circuit Chief Judges Browning, Wallace, and Hug as well as present Chief Judge Schroeder.

Scrutiny also reveals that seven of the eight were appointed by Republican presidents, most have assumed senior status, and most have chambers in Alaska, Idaho, Oregon and Washington. You are correct that "unlike Judge Kozinski, none is in line to be the [Ninth Circuit's] next Chief Judge." I believe, however, that a couple are in line to be Chief Judge of the new Thirteenth Circuit, which circuit-splitting proponents advocate.

I have argued that increasing caseloads and deficient resources threaten appellate justice and that this systemic problem may warrant systemic solutions. However, merely creating numerous new appeals courts is not the best remedy. For example, this solution would additionally fragment already fractured national law.

For argument's sake, let's make an enormous assumption: circuit-splitting advocates have carried the burden of proving division is necessary. What would be the best way to divide the Ninth Circuit? Many reconfigurations have been proffered, but none has proved superior or even satisfactory. One critical reason for this is California. Its substantial population generates more than half of the Ninth Circuit's caseload. Any circuit-splitting proposal must confront and resolve the California conundrum.

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Spreng: 11/12/04, 08:04 AM
I'm happy to play in Las Vegas, because I'm like the dealer for the house who knows the cards are stacked in his favor. Every year, more judges join my list; Ninth Circuit split bills move farther in Congress; the Ninth Circuit's problems become more severe; and its ultimate restructuring becomes more inevitable. The only question is how soon westerners will get relief.

No one should be surprised senior judges, who travel to other circuits and experience how they operate, jump on the split bandwagon. Or that Chief Judges don't want the circuit dismembered on their watch. The Commission for Structural Alternatives "opposed" a split but recommended dividing the Ninth Circuit into three fairly autonomous divisions, arguably just a halfway house on the way. Judge O'Scannlain was once a likely chief judge of a new circuit, but as he explained in recent Congressional testimony, he is no longer qualifies under the rules. His successor as a "potential chief judge" has backed a split for more than eight years and may even be in line for the chief judgeship of the current Ninth.

Of course more northern judges back a split. They and the citizens of their states suffer most in the current configuration. Judge Richard Tallman of Seattle says that he was surprised when he was confirmed in 2000 how little of his work would involve the Pacific northwest. In 2004, he says he was assigned to hear a mere seven days of oral argument in northwest cases but probably eight to ten weeks hearing cases in and from California, Arizona, and Nevada. The northwest's judges are essentially on perpetual loan to the south, yet southern judges are frequently assigned to northern cases, sometimes without the sensitivity of their colleagues who understand better the local rules, practices, and legal mores. Moreover, the north contains smaller states and cities, and a different, more intimate, legal culture. Yet they lack a court that understands the way their world works.

I have supported creating an "Icebox Circuit" of Alaska, Idaho, Montana, Oregon, and Washington, but the House's current proposal has several meritorious features, such as creating the smallest possible circuit containing an undivided California by matching with it a handful of other tiny jurisdictions. The three-way split also gives the new circuits room to grow, though keeping Idaho and Montana in the same circuit as Arizona fails to relieve those judges' travel problem.

The debate over splitting the Ninth Circuit is about what we think appellate courts should do and how we think they should do it. Workload, collegiality, predictability, travel, consistency, and regionalism are part of it, but they are only the tip of a deeper question: Do we want our appellate courts to be large, bureaucratic, case-processing institutions or smaller, human-scale, deliberative bodies? Every year, the Ninth Circuit becomes more and more like the former, but the rest of our circuit courts cling to the latter. I am confident the American people prefer this option.

Tobias: 11/12/04, 05:20 PM
Increasing caseloads and deficient resources are systemic problems which threaten the delivery of appellate justice in all twelve regional circuits, not only the Ninth Circuit. For example, last year, filings increased six percent, to 60,847 in the federal appeals courts. Moreover, the federal courts assert that they have been underfunded for the last four years. That situation will be exacerbated if Congress imposes a "hard freeze" by leaving funding at the fiscal 2004 level.

These phenomena are not new. They have prevailed for several decades. One response that Congress has applied to address docket growth is creating additional judgeships. However, the number of new judicial positions has not kept pace with mounting caseloads, while some appeals courts have opposed the authorization of more judgeships for their courts.

The regional circuits have principally relied on three responses to increasing appeals and deficient resources. The courts have granted fewer oral arguments and published opinions. For example, in the last year, fewer than a third of appeals nationwide received oral argument, while fewer than a fifth received published opinions. The Fourth Circuit "led" the nation in both categories. The court granted argument in 19% of its appeals and published opinions in 9% of the cases. Third, the appellate courts have relied more substantially on non-judicial employees, especially staff attorneys. A fourth possible response would be increased appellate judgeships. Indeed, the Judicial Conference judgeships staffing model, which is premised on expert, conservative estimates of appeals and resources, suggests the appellate courts are short 80 judgeships. That number is almost half the judicial complement presently authorized. However, several courts oppose this remedy, while some observers believe that having too many judges can impose problems, such as bureaucratization, which you mention, Jennifer.

These are national, systemwide phenomena that may warrant systemic solutions. Splitting the Ninth Circuit, which is operating well, will not address those phenomena. Empirical data show, and anecdotal information suggests, that the Ninth Circuit's judges are more committed than judges of numerous other courts to granting litigants some form of written decision and to having judges, not staff, resolve appeals. More specifically, the Ninth Circuit issues a higher percentage of published opinions than four other appeals courts.

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