Posted 1:50 PM by Robert

Divide The Ninth Circuit To Make It Less Immodest

Judges Alex Kozinski and Sidney Thomas were appointed to the United States Court of Appeals for the Ninth Circuit by Presidents Reagan and Clinton, respectively. They have now scribed for the Wall Street Journal their joint explanation as to why they oppose a provision offered by Rep. Mike Simpson of Idaho, and already approved by the House, that would split the Ninth Circuit. That circuit now includes nine Western states and 56 million Americans. The proposal would replace the Ninth Circuit with three smaller circuits: (i) the new Ninth Circuit with California, Hawaii, Guam and the Northern Mariana Islands, (ii) a new 12th Circuit with Nevada, Idaho and Montana, and (iii) a new 13th Circuit with Washington, Oregon and Alaska.

The shocking weakness of the Kozinski and Thomas argument indicates strongly that Congress should immediately enact the proposal these two judges oppose and divide the Ninth Circuit - indeed, the Kozinski-Thomas article suggests the need is urgent.

Although Kozinski-Thomas insist that the issue requires more study, the need to divide the Ninth Circuit has been discussed and studied for more than thirty years. In 1973, the Commission on the Revision of the Federal Court Appellate System (sometimes called the "Hruska Commission"), was created to study and make recommendations for the federal appellate courts. It recommended that both the Fifth and Ninth Circuits be split. The Hruska Commission report noted the Ninth Circuit's "striking" size, its "serious difficulties with backlog and delay," and its "apparently inconsistent decisions by different panels of the large court." Senator Conrad Burns, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 Mont. L.R. 245 (1996), citing 62 F.R.D. 223, 224 (1973). The Hruska Commission "concluded that the creation of two new circuits is essential to afford immediate relief."

The proposed divisions of both the Fifth and Ninth Circuits were initially met with resistance, and Congress in 1978 authorized a half-way measure: large circuit courts were allowed to create "administrative units" to address size-related problems. The Fifth Circuit attempted this approach, and failed. Congress finally split the Fifth Circuit in 1980 - hiving from it what is now the Eleventh Circuit Court of Appeals. Kozinski-Thomas mostly derive their arguments from a parade of theoretical adverse effects these judges suggest might follow from a division of the Ninth Circuit: increased costs, less certainty, less uniformity. But more revealing and downright alarming, is their utter failure to examine - or even mention - that none of those adverse consequences followed the division of the Fifth Circuit only a few years ago.

The Fifth and Eleventh Circuits today, combined, are almost exactly the same size as the current Ninth Circuit. Neither the Fifth nor the Eleventh Circuits is today considered by any serious observer to be plagued by the failings that continue to burden the Ninth Circuit. The Fifth/Eleventh Circuit experience obviously provides an excellent testing ground for every single one of the theoretical adverse effects postulated by Kozinski-Thomas. Their failure to even mention that experience is testimony to the fact that the division of the old Fifth Circuit is considered to have been an unqualified success - with the cost of any of the adverse effects they hoist much more than outweighed by the benefits of the division. These two judges are well aware of that success and consensus, and their failure to mention it is shocking and nakedly disingenuous.

While the Fifth Circuit was being rationalized and its problems mitigated, the Ninth Circuit continued to bloat. Congress created the Commission on Structural Alternatives for the Federal Courts of Appeals (the "White Commission") in 1997. Although Kozinski-Thomas ignores the Hruska report entirely, they do cite misleadingly to the White Commission:

[The White Commission] thoroughly considered and rejected the idea that the Ninth should be split, finding it unnecessary and impractical, to once again study these issues. The White Commission recognized the Ninth Circuit's size-related problems, but it recommended that Congress create three regionally based administrative units within the structure of the Ninth Circuit.

But this particular White Commission recommendation was just what had failed in the Fifth Circuit, a gap which the Commission proposed bridging with additional procedures that were thankfully never adopted. The White Commission's suggestion that the Ninth Circuit not be divided was conditioned on the adoption of those procedures - which Kozinski-Thomas do not endorse or even mention. Among other things, the White Commission proposed another step of appellate review for litigants in the Ninth Circuit and the abolition of true en banc hearings. Instead, a "circuit panel" would have been empowered to correct conflicting opinions from the administrative units, possibly without briefing from the parties or a hearing. The radical, experimental approach proposed by the White Commission as the cost of retaining the current Ninth Circuit was immediately perceived by Congress as causing further delay, bloating expenses, and creating even more confusion for litigants. Congress thoroughly rejected the White Commission recommendation. None of that history is mentioned by Kozinski-Thomas, but that history renders their reliance on the White Commission all but fraudulent.

Kozinski-Thomas wave away all criticism of the Ninth Circuit based on its sheer size, with the argument that "big doesn't mean inefficient ... [S]ize brings into play economies of scale, so the Ninth offers innovative and valuable services to the public that smaller circuits cannot afford." Of course, exactly what those innovative and valuable services actually are just goes unmentioned (space constraints, no doubt). Nor is any consideration given to fact that intelligent observers - such as Justice Brandeis - have generally exactly inverted this argument, and considered smaller government units to be better innovators. "It is one of the happy incidents of the federal system," Justice Louis D. Brandeis wrote in 1932, "that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." But why should Kozinski-Thomas bother to meet an argument heaved up by a lightweight like Justice Brandeis and supported by much common sense?

Contrary to the Kozinski-Thomas insinuations, criticisms of the Ninth Circuit based on its sheer size don't mindlessly equate large size with inefficiency Those critical arguments are based on copious observations that the Ninth Circuit's sheer size has, in fact, been one of the important factors makig the Circuit a mess. But comparing the mere size of the Ninth Circuit to other circuits is nonetheless revealing in many specific ways, including the following:

1. The Ninth Circuit's 56 million and rapidly growing population is more than two and one-half times greater than the other circuits, which average 20 million people.

2. The Ninth Circuit contains almost 40% of the United States, covering more than 1.3 million square miles. The other circuits average about 200,000 square miles.

3. The Ninth Circuit represents nine states and two territories, but other circuits average about three and one-half.

4. There are twenty-eight judgeships authorized in the Ninth Circuit, but other circuits average about twelve and one-half - none has more than seventeen authorized.

Do different rules apply to the Ninth Circuit than to other circuits? Do Kozinski-Thomas propose that the division of the old Fifth Circuit be undone? Why not? Couldn't all the efficiencies and "innovative and valuable services" they celebrate without much identifying be realized by consolidating all of the other circuits into circuits roughly the size of the current Ninth? The Census Bureau projects that all nine of the states located within the Ninth Circuit will fall into the top twenty growth states over the next 20 years or so. By 2025, the Ninth Circuit's population will be greater than 75 million. Is there no point at which bigger is worse? Why not just have one Circuit?

In fact, also contrary to Kozinski-Thomas, the number of judges in a circuit is widely regarded by knowledgable observers to have a huge negative effect on a circuit's ability to manage its caseload. The White Commission report advised Congress on this point in another section of that report ignored by Kozinski-Thomas as follows:

The maximum number of judges for an effective appellate court functioning as a single decisional unit is somewhere between eleven and seventeen. (White Commission Report at 29.)

It gets worse. The annual report of the federal courts, entitled Judicial Business of the United States Courts shows the Ninth Circuit to be in last place in the critical and objective measures of justice. Between 1997 and 2001, pending appeals nationwide increased by only 1% - but in the Ninth Circuit pending appeals increased by 20%. The Ninth Circuit's opinions are often uncoordinated, inconsistent and incoherent - giving rise to greater uncertainty in law than in other circuits (exactly the opposite of what Kozinski-Thomas assert), with one consequence of that uncertainty being that appeals are being filed in the Ninth Circuit at a rate more than double the national average (after all, one doesn't know what the Ninth will do - just look at their zany behavior in the California recall burlesque). The number of appeals increased by 5% nationally in 2000, but in the Ninth Circuit appeals increased by 13%. The Ninth Circuit takes much longer to issue final decisions than do other circuits: an average of almost sixteen months in the Ninth where other circuits average slightly more than ten months. The Ninth Circuit comes in dead last in time taken deciding appeals - 53% slower than the other circuits. The Ninth Circuit accounts for 60% of all appeals pending in the nation's circuit courts for more than twelve months. All of these symptoms of systemic failure of the Ninth Circuit are ignored by Kozinski-Thomas with their airy "big isn't necessarily worse" dismissal.

Also ignored by Kozinski-Thomas is the fact, indisputable in good faith, that the Ninth Circuit has earned a national reputation as a frequently reversed court, and issues a lot of really bad law. From 1990 to 1996, the Supreme Court struck down 73% of the Ninth Circuit decisions it reviewed. The other circuits averaged 46%. Jeff Bleich, The Reversed Circuit: The Supreme Court versus the Ninth Circuit, 57 Oregon State Bar Bulletin 17 (May 1997) - in 1997, the Supreme Court reversed 27 out of 28 Ninth Circuit decisions. Between 1998 and 2001, the Supreme Court reviewed 103 Ninth Circuit cases but affirmed only 13 - unanimously reversing or vacating 26 of those Ninth Circuit decisions. The New York Times noted: "Over the last 20 years, the Court of Appeals for the Ninth Circuit has developed a reputation for being wrong more often than any other federal appeals court." Adam Liptak, Court that Ruled on Pledge often runs Afoul of Justices, N.Y. Times, July 1, 2002. The Liptak article notes that in referring to the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, Yale University law professor Akhil Amar bluntly said: "When you're not picking up the votes of anyone on the Court, something is screwy."

Professor Amar is right - and something is even screwier when two sitting judges from the Ninth Circuit write at length in the Wall Street Journal about the proposed division of their court without even mentioning its reputation for reversal and bad decisions. Kozinski-Thomas go on at length about minor costs (courthouses, files, etc) a division would impose, but those many crummy Ninth Circuit decisions impose costs on those 56 million people that utterly dwarf any of the costs Kozinski-Thomas fuss with. Breaking up the Ninth Circuit would limit the damage and costs any one of those decisions could inflict.

Perhaps Kozinski-Thomas implicitly mean to deny that their court makes much bad law. They would not be the first judges from their court to take that losing tact. Indeed, three former Chief Judges of the Ninth Circuit once denied that the Ninth Circuit has a poor track record in the Supreme Court, to which the Liptak article notes Justice Scalia replied: "There is no doubt that the Ninth Circuit has a singularly (and, I had thought, notoriously) poor record on appeal. That this is unknown to its chief judges may be yet another sign of an unmanageably oversized circuit."

Justice Scalia's comment leads to consideration to what may be the Ninth Circuit's worst size-related problem of all: judicial arrogance and willfullness. There is a widely observed pervasive arrogance about the Ninth Circuit judges - sensed even by many judges sitting on other circuits, who are generally far too diplomatic to speak of it publicly. The arrogance arises from the Ninth Circuit's sense that that circuit is so large and so distant geographically from the Supreme Court that it's members are entitled to operate with an independence of Supreme Court direction far exceeding what is claimed by the other circuits. The Supreme Court, however, does not agree.

But the Supreme Court can only profitably review a relatively few cases - and in those few cases it strives to give general direction to the lower courts. While most other circuits attempt to follow that direction, the Ninth Circuit tends often to dismiss most of the Supreme Court's direction-giving as non-controlling "dicta" and sail off in its own direction. Indeed, there are specific cases in which the Ninth Circuit has been reversed and given "direction" by the Supreme Court more than once in a single case - but in which the Ninth continued to set its own priorities (at one point, the Supreme Court actually had to forbid the Ninth Circuit from issuing further orders restricting a California execution without pre-approval by the Supreme Court). Such "multiple reversal" cases are even more troubling than the high number of unanimous reversals of the Ninth Circuit by the Supreme Court, since the "multiple reversal" cases indicate a higher degree of arrogant willfullness. Dividing the Ninth Circuit into circuits of more modest dimension would go a long way towards making Ninth Circuit judges themselves more modest personally - and perhaps inducing them to actions more in line with what the Constitution, the Congress and the Supreme Court all expect of a lower court.

In the face of all the evidence that their court is indeed bloated, unwieldy and ill managed, Judges Kozinski and Thomas nevertheless have the weird arrogance to compare that trouble tribunal to some of the most successful, brilliantly organized social entities the world has ever seen: "[B]ig doesn't mean inefficient, as we know from the performance of giant corporations such as Microsoft and Wal-Mart." This, surely, is arrogant insensitivity to one's own failing of a biblical scale. By that insensitivity, and by ignoring clearly applicable counterarguments and the successful Fifth Circuit experience, and misrepresenting the history, criticisms and difficulties of their own court, Judges Kozinski and Thomas make a strong case that there is an urgent need for a big dose of modesty in the Ninth Circuit.

Right now, right here.