Man Without Qualities

Tuesday, November 30, 2004

Divide The Ninth Circuit To Make It Less Immodest III

Prior posts in the Man Without Qualities (here and here) have taken strong exception to an article in the Wall Street Journal by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas objecting to the proposed division of that Court. Now the Journal has published a letter by two other, more sensible, Ninth Circuit judges expressing exceptions substantially similar to those expressed here (albeit expressed with an appropriately more judicial, restrained tone). From the Wall Street Journal - November 23, 2004; Page A19"

Congress has a strategic opportunity to do what it has been discussing since long before we were appointed circuit judges by Presidents Reagan and Clinton: reorganize the Ninth Circuit. Compared with the other federal appellate courts, the Ninth Circuit Court of Appeals employs more than twice the average number of judges, handles almost triple the average number of appeals, and is fast approaching three times the average population served.

Last month the House passed and sent to the Senate a bill to restructure this goliath into three: a Mountain Circuit comprised of Arizona, Nevada, Montana and Idaho; a Pacific Northwest Circuit of Oregon, Washington and Alaska; and a new Ninth Circuit of California and Hawaii, which, as reduced, would still be the largest circuit in the country in population, caseload and judges. Nevertheless, in a Nov. 10 Rule of Law commentary ("Don't Split the Ninth Circuit!"), two of our colleagues, Judges Alex Kozinski and Sidney R. Thomas, spied skullduggery afoot. Congressional progress, they say, was "by stealth and procedural manipulation." House passage last month, they say, was a "surprise move before the Nov. 2 election." And the purpose of the split, they say, was for the "increased convenience of a few judges."

Contrary to our colleagues' challenge, this largest federal judicial circuit in the nation has been the subject of lengthy and repeated hearings in the current as well as prior sessions, congressionally mandated study commissions, white papers and even passage in certain sessions by one body of Congress or the other; now is the time for the Senate to act. A substantial number of circuit and district judges support the legislation. More importantly, in statements to the White Commission, four justices of the Supreme Court have advocated restructuring as well. In any event, Congress ordains the creation and structure of federal courts; judges don't get to do that under the Constitution.

By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size.

The 47 judges who hear and decide Ninth Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague's dispositions while simultaneously resolving one's own assigned cases.

Smaller circuits would allow us to correct more of our mistakes. The Ninth has grown to such a size that it cannot perform the en banc (or full court) review process that is an important error-reviewing function for every other court of appeals. Even the roughly two-dozen cases that are reheard each year are not subject to a true en banc process. The Ninth Circuit is simply too big to rehear an erroneous three-judge panel decision as a full court. Instead, we are the only circuit to sit on "limited" eleven-judge en banc panels drawn by lot, so that a "majority" consists of six judges who may actually represent the minority view of the full court. It is unacceptable in a democracy that a mere six judges could potentially override the views of the other twenty-two active judges.

Diarmuid F. O'Scannlain
Richard C. Tallman
U.S. Judges for the Ninth Circuit
Portland, Ore.

Judges O'Scannlain and Tallman demonstrate persuasively that some judges on the Ninth Circuit can get things exactly right.

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