When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How
By Howard J. Bashman
Monday, April 14, 2003

The U.S. Court of Appeals for the Third Circuit is the federal appellate court in which I practice most frequently and where I had my judicial clerkship. The Third Circuit is authorized to have a total of fourteen active judges and consists of three States and the U.S. Virgin Islands.

The U.S. Court of Appeals for the Ninth Circuit, by contrast, consists of nine States plus Guam and the Northern Mariana Islands, and the Ninth Circuit is authorized to have twenty-eight active judges. Today, the Ninth Circuit is home to twenty-five active judges and twenty-one senior judges.

In March 2003, the Judicial Conference of the United States asked Congress to authorize five more permanent active judgeships and two new temporary judgeships for the Ninth Circuit, to enable that appellate court to keep up with its ever burgeoning caseload. Thus, in the near future, we could see a Ninth Circuit that consists of thirty-three or thirty-five active judges. A thirty-five judge Ninth Circuit would give that court more active judges than the federal appellate courts with the second and third largest number of judges, combined.

Based on the numbers alone, it is clear that the appropriate question to ask about splitting the Ninth Circuit is not whether or when but how. The sheer number of cases that the Ninth Circuit currently decides makes it impossible for the judges on that court to read all precedential opinions before or after they are filed. The Ninth Circuit's huge size and caseload thus deprives the judges serving on that court of the ability to have a firm grip on what that court's law happens to be.

Another very troubling aspect of the Ninth Circuit's unfortunately huge size affects that court's procedure for having the most difficult and important cases considered and resolved by the full en banc court. The Ninth Circuit is today the only federal appellate court to take advantage of a law that allows a federal appellate court with fifteen or more active judges to hear cases en banc before panels consisting of fewer than all of the court's non-recused active judges.

In the Ninth Circuit, when a case goes en banc it is assigned to an eleven-judge panel consisting of the Chief Judge and ten other randomly-selected participants. Thus, when the Ninth Circuit meets en banc, any six judges on the en banc panel can decide what law will bind the full twenty-eight judge court.

A six-judge en banc majority, it is obvious, may not reflect the will of a majority of judges on the court. Nevertheless, the Ninth Circuit has never voted to rehear before all active judges a case decided by an eleven-judge en banc panel. This is not because the eleven-judge panel always arrives at a result reflecting the will of the majority of active judges on the court. Rather, an en banc oral argument before all the active judges is viewed as simply too much for the judges and attorneys to endure.

Many proponents of a Ninth Circuit split also cite the frequency with which the Supreme Court of the United States reverses the Ninth Circuit, often unanimously. A variation of this argument points to decisions that the Ninth Circuit has issued that many see as outrageous, such as recent rulings involving the Pledge of Allegiance, the right to possess firearms, and whether a federal law prohibiting the creation and possession of child pornography violates the Commerce Clause.

For two reasons, the substance of the Ninth Circuit's rulings does not provide a persuasive reason for splitting that circuit. First, the controversial rulings in question are not clearly wrong, although they may indeed be wrong. Second, splitting the Ninth Circuit into two smaller courts fails to guarantee that similar rulings will not issue in the future, because the federal appellate judges whose rulings have proved controversial will continue to serve on one or the other of the two resulting courts.

Nevertheless, even overlooking the Ninth Circuit's reversal rate and the court's tendency to issue decisions that inflame the passions of conservatives, principles of sound judicial administration dictate that the time to divide the Ninth Circuit has arrived. A court with twenty-eight to thirty-five active judges and nearly fifty active and senior judges, in which the judges cannot stay abreast of the court's own current rulings, is a court in need of repair. And, as I have explained, the eleven-judge en banc panel procedure fails to give the active judges on that court an adequate voice in the direction that court's jurisprudence should take in the most difficult and important cases.

For me and perhaps many other observers of the Ninth Circuit, concluding that the Ninth Circuit should be divided is much easier than deciding how to accomplish that task. In alphabetical order, the Ninth Circuit today consists of the States of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington and the territories of Guam and the Northern Mariana Islands. The main difficulties arise because California dwarfs all the other States in the Ninth Circuit in terms of the number of appeals generated, and both California and Arizona continue to grow very quickly in population and appeals generated.

One proposal that has been under consideration for quite some time would place the northern half of California under the jurisdiction of one federal appellate court and the southern half under the jurisdiction of another. Even if that proposal were jurisprudentially feasible, one of the Ninth Circuit's leading proponents of a split, Circuit Judge Diarmuid F. O'Scannlain, advises that U.S. Senator Dianne Feinstein (D-Cal.) opposes the idea, which all but ensures that it will not occur.

Another idea would have California be its own, single-state circuit or would pair California with Nevada but transfer Arizona so that it would be under the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit. Law Professor Arthur D. Hellman, one of the leading authorities on the Ninth Circuit, has persuaded me that the ability of U.S. Senators to prevent the confirmation of federal circuit court nominees from their home State (take the Sixth Circuit nominee blockade now underway in the State of Michigan, for example) strongly militates against having a regional U.S. Court of Appeals that consists of fewer than three states.

Professor Hellman also reports that the Tenth Circuit is none too pleased with the prospect of expanding to include Arizona, and I imagine that most judges and lawyers in Arizona feel the same way about joining the Tenth Circuit. Moreover, in the history of our Nation, no State has moved from the jurisdiction of one preexisting federal appellate court to another preexisting federal appellate court.

Others who are very familiar with the Ninth Circuit advise me that the State of Hawaii draws much of its jurisprudence from California, and for that reason Hawaii should be put into the same circuit as California. Fortunately, Hawaii and the two island territories do not generate a significantly large amount of appellate work, so the decision where to place them can be based on what makes the most sense jurisprudentially rather than administratively.

For these reasons, I believe the division that makes the most sense and has the greatest likelihood of being accomplished is one that puts Arizona, California, Hawaii, Nevada, and the two island territories into one circuit and Alaska, Idaho, Montana, Oregon, and Washington in the other. True, the circuit that contains California and Arizona will quite probably continue to have the most judges of any federal appellate court. But it will only preside over four States, at least one of which does not produce a significant number of appeals.

In a new Ninth Circuit that consists only of Arizona, California, Hawaii, Nevada, and the two island territories, the judges should be able to read all precedential rulings either before or immediately after issuance to the public. While this new Ninth Circuit would be large enough that it could continue to elect to hear en banc cases in panels rather than by the full court, the use of en banc panels would produce results more likely to reflect the will of a majority of all active judges. And the concept of a full court en banc, in which all active judges participated, would not be as bad of a logistical nightmare in the reorganized Ninth Circuit.

Judge O'Scannlain has long argued that a federal appellate court with more than seventeen authorized active judges is simply too large to work well. As a matter of theory, he may be absolutely right.

But today we are on the verge of having a Ninth Circuit that will consist of between thirty-three and thirty-five authorized active judges, which makes it all but geographically and mathematically impossible to divide that court in a way that keeps both of the resulting circuits at or below seventeen active judges. And when political considerations enter the mix, as they must, the goal of having seventeen or fewer active judges per circuit becomes impossible to achieve.

The proposed split that I favor -- which puts Arizona, California, Hawaii, Nevada, and the island territories into one circuit and Alaska, Idaho, Montana, Oregon, and Washington into the other -- should prove politically acceptable. It makes geographic sense. And it will remedy the most significant problems now plaguing the behemoth that the Ninth Circuit is today. Now let's make it happen.


This article is reprinted with permission from the April 14, 2003 issue of The Legal Intelligencer 2003 NLP IP Company.

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