Oregon State Bar Bulletin — APRIL 2004

Split Over Splitting
Impasse persists on proposal to split the 9th Circuit Court of Appeals
By Lori Irish Bauman

The 9th Circuit Court of Appeals is like no other federal circuit court. It covers a larger geographic area than any of the other 11 circuits, encompasses the largest population of any circuit, and it has by far the most judges and the largest case load. Some 30 years have passed since an active debate began on proposals to divide the 9th Circuit into two circuits. A unique mix of factors, including political polarization in Congress, have put into doubt whether the circuit will be split any time in the foreseeable future.

In the U.S. District Court in Oregon, Chief Judge Ancer L. Haggerty says that the size of the 9th Circuit has a negative impact on his work and the work of the other district court judges. It is difficult to keep up with the volume of cases which the 9th Circuit issues, and apparent conflicts between opinions issued by different panels hinder decision making in the trial courts, according to Judge Haggerty. He is not alone among Oregon’s federal judges in holding this view. Earlier this year, Judge Haggerty held a straw vote of the district court judges and magistrates, and the majority voted in favor of splitting the 9th Circuit.

One of the biggest boosters within the 9th Circuit of proposals to reorganize the court is from Oregon. Circuit Judge Diarmuid O’Scannlain first opposed the split when he was appointed to the 9th Circuit in 1986, but has since become convinced that the 9th Circuit is too large to operate effectively. Meanwhile, many lawyers and judges, including 9th Circuit Chief Judge Mary M. Schroeder, contend that the 9th Circuit is working well and should not be split.

The American Bar Association and Federal Bar Association have previously stated their opposition to dividing the circuit. Recently the FBA has considered changing its position (a factor behind Judge Haggerty’s straw poll), suggesting that interest in the 9th Circuit and a potential split seems never to completely fade away.

Things look different here
By any measure, the 9th Circuit is remarkably large. It covers nine states and two territories, encompassing more than 56 million people — about one-fifth the population of the United States. That is 25 million more people than in the next largest circuit, the Sixth. It includes vast sparsely populated regions as well as some of the largest urban areas in the country.

The court has 26 active judges, 21 senior judges and, currently, two vacancies. The combined number of judges — 47 — is significantly more than the number of active and senior judges in the next largest circuit, the Sixth, which has 28 judges.

In the year ending Sept. 30, 2003, some 12,872 appeals were filed in the 9th Circuit. That is nearly 50 percent more than the number of appeals filed in the next busiest court, the Fifth, in which 8,613 appeals were filed.

While it has been claimed that the 9th Circuit is one of the slowest to resolve appeals, Chief Judge Schroeder has contended that many factors other than the size of the court, such as the number of vacancies and the caseload mix, affect the length of time it takes to resolve an appeal. She stated in a letter opposing a recent legislative proposal to split the circuit that, while the time from completion of briefing to oral argument tends to be longer in the 9th Circuit than in other circuits, the time from oral argument to filing of a decision in the 9th Circuit tends to be comparable to the national average.

Proposals to reorganize the circuit
In the early 1970s, Congress created the Hruska Commission to study procedural and structural changes to the federal appellate courts. Among its recommended changes were division of both the Fifth and 9th Circuits because of their size. The judges of the Fifth Circuit favored a split, and in 1980 Congress agreed to create a new 11th Circuit. The 9th Circuit, meanwhile, adopted only procedural changes — including limited en banc panels — which the commission suggested to deal with its rising case load.

In the 1980s, proposals to split the circuit were prompted at least in part by dissatisfaction with the court’s environmental law decisions, such as those blocking timber sales in order to protect the northern spotted owl. Many of the proposals were introduced by members of Congress from the Northwest, who perceived that circuit judges from California were making decisions detrimental to the economic well-being of the Northwest.

Beginning in the 1990s, a popular perception developed that the judges of the 9th Circuit were 'out of touch,' as evidenced by the fact that they were so frequently reversed by the U.S. Supreme Court. Judge Richard Posner of the 7th Circuit studied the dozen years through 1997 and wrote in a law review article that the 9th Circuit was reversed by the Supreme Court more than any other circuit. In particular, the 9th Circuit has been viewed as dominated by liberal judges who run afoul of the more conservative Supreme Court. Of the court’s current active judges, 17 were appointed by Democratic presidents and nine by Republican presidents. In contrast, of the senior judges, 10 were appointed by Democrats and 12 by Republicans.

In recent years the circuit has fared better in the Supreme Court, with the Supreme Court reversing the 9th Circuit’s opinions at about the same rate as other circuit courts. But that change in the reversal rate has not altered the popular view of the circuit, and indeed something of a parlor game exists among court observers who keep a tally of the 9th Circuit’s reversal rate as each Supreme Court session progresses.

Congress again authorized a study of the 9th Circuit in 1997, with the creation of the White Commission. The White Commission found that, despite its size and case load, the 9th Circuit functioned effectively, and on that basis it did not recommend a split. Instead, it recommended a restructuring into three regional, semi-autonomous adjudicative units and a corresponding change in en banc procedure. This proposal found very little support within the judiciary, Congress or the bar, and soon it was dropped from consideration.

Recent high-profile cases, including the Pledge of Allegiance case and the decisions arising from the California recall election, have again focused popular attention on the 9th Circuit, and efforts to carve a new 12th Circuit out of the 9th have been revived in the current session of Congress. A bill pending in the Senate, S. 562, would create a new 12th Circuit consisting of the states of Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington, as well as the territories of Guam and the Northern Mariana Islands. It would leave within the 9th Circuit only California and Nevada. A bill in the House of Representatives, H.R. 2723, introduced in July 2003, differs in that it would place Arizona with California and Nevada in the 9th Circuit.

In introducing S. 562 in March 2003, Sen. Lisa Murkowski (R-Alaska) invoked the perception that the 9th Circuit 'has become dysfunctional and out-of-touch with American jurisprudence, common sense and constitutional values.' She linked the 9th Circuit’s reversal rate in the Supreme Court to its 'unwieldy' size and its limited en banc procedure, in which a panel of 11 randomly-selected judges — rather than the entire court — hears cases that are reviewed en banc. While Sen. Murkowski is not the first to make this connection, it is difficult to see how either of these factors would put opinions from the 9th Circuit outside the mainstream.

And, indeed, what may be the real political motivation to divide the circuit came later in Sen. Murkowski’s remarks, when she stated that it is appropriate to structure a court encompassing the states of the Pacific Northwest, one that would not be dominated by 'California judges and California judicial philosophy' — with 'California' presumably a code word for 'liberal.' Of the 13 current active judges with resident chambers in California, nine were appointed by Democratic presidents and four by Republicans. Significantly, of the 13 current active judges with resident chambers outside California, eight were appointed by Democratic presidents and five by Republicans. The numbers are closer among senior judges: Among the 12 senior judges with chambers in California, five were appointed by Democratic presidents and seven by Republicans. Likewise, among the nine senior judges with chambers outside California, five were appointed by Democrats and four by Republicans.

A subcommittee of the House Committee on the Judiciary held a hearing on the House version, H.R. 2723, last year. While some members of the subcommittee made passing reference to a political motivation for the split, the testimony focused on whether the 9th Circuit is simply too big to function effectively. Chief Judge Schroeder and Judge Alex Kozinski made statements against the split, and Judge O’Scannlain spoke in favor of it.

Arguments in favor of dividing the circuit
At the hearing in the House, Judge O’Scannlain outlined the arguments in favor of carving a 12th Circuit out of the 9th Circuit.

All of the arguments in favor of the split are tied to the circuit’s size. With 48 active and senior judges issuing some 700-800 published opinions a year, proponents say it is difficult for the judges to stay current on their colleagues’ rulings. When asked in a recent interview how he keeps up with the volume of cases, Judge O’Scannlain said, 'I don’t,' noting that it is simply impossible to read all of the slip opinions that arrive in his chambers every day. The volume of decisions makes it difficult to avoid conflicting rulings, despite systems in place within the court to group similar cases for decision.

Proponents of a reorganization argue that, with such a large number of judges sitting on constantly changing three-judge panels, it is impossible for all of the judges to get to know each other. According to Judge O’Scannlain, the inability to develop regular working relationships with colleagues hinders the collaborative nature of an appellate judge’s work.

In addition to its other benefits, the creation of smaller circuits would decrease the time and expense of judges’ travel. A proponent of a split, Judge Andrew J. Kleinfeld, has stated that it takes more than 10 hours to travel from his chambers in Alaska for hearings at the courthouse in Pasadena.

Arguments against dividing the circuit
Some of the arguments against dividing the circuit outlined in the recent hearing flow from the dominant role which California plays in generating appeals. A pared-down 9th Circuit consisting of Arizona, California and Nevada would not in the end be significantly smaller: it would have a full 82 per cent of the caseload of the existing 9th Circuit. Meanwhile, the new 12th Circuit would start out quite small, taking only 18 per cent of the current 9th Circuit’s caseload. And while the travel burden would be less for judges in the new 9th Circuit, the nine judges of the new 12th Circuit would have the burden of hearing cases in a territory ranging from the desert Southwest, to the Arctic Circle, to Guam.

Dividing the state of California as part of the split — with northern California under the jurisdiction of one circuit and southern California under the jurisdiction of the other — could result in two relatively equally balanced caseloads, but would create the risk of conflicting interpretations of California law. This proposal is, in any event, strongly opposed by California’s congressional delegation and is not under serious consideration.

Opponents of reorganization have observed that, no matter how the division occurs, the creation of a new 12th Circuit would bring with it the significant costs of establishing a new circuit headquarters — perhaps in Portland or Seattle — and a duplicate administration system.

An argument which carries much weight against a split is 'if it ain’t broke, don’t fix it.' Judge Schroeder stated at the hearing that most 9th Circuit judges do not support the split, though she admitted there has never been a vote on the issue. In contrast, when the 11th Circuit was carved out of the 5th Circuit in 1980, the judges in the circuit uniformly favored the split.

Judge Kozinski agreed at the congressional hearing that the 9th Circuit works well in its current form. Advances in technology have enabled the court to inventory cases by issue as they are filed, in order to keep panels informed about pending cases raising the same issues. Judges can communicate effectively by email when they are at distant courthouses.

Judge Kozinski further argued for the efficiency of generating law from a large circuit: Having a substantial number of published opinions provides extensive guidance to the district courts. If the circuit is divided, issues decided in the new 9th Circuit would have to be decided again in the new 12th Circuit, doubling use of judicial resources. He also observed that there is an advantage to having uniform application of federal law over a large geographic area.

Not long ago, I spoke to a lawyer in the East Coast who was preparing for an oral argument in the 9th Circuit. We talked about how the court functions. At one point I said, 'One thing to remember about the 9th Circuit is …' But before I could finish, he interjected: '…they’re all crazy! '

'Crazy' or not, the reputation of the 9th Circuit at times does overshadow discussion of the practical reasons for and against creation of a new 12th Circuit. Because the reorganization of the circuit has been cast as an ideological issue, Congressional efforts have been at an impasse for decades. Barring unforseen political or social shifts, it is a scenario that seems unlikely to change any time soon.

Lori Irish Bauman practices appellate law at Ater Wynne, Portland, with a focus on commercial litigation and dispute resolution, contract and business tort claims, antitrust advising, administrative law and Indian law. She has experience as well with intellectual property and environmental law. She has briefed and argued appeals in the Oregon Court of Appeals, Oregon Supreme Court, U.S. Circuit Court for the 9th Circuit and the California Court of Appeals. She is licensed to practice law in Oregon and California.

© 2004 Lori Irish Bauman

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