An update on the Ninth Circuit debate.

• Author: Tobias, Carl
• Position: Efforts to divide federal circuit court

1. INTRODUCTION

   Several years ago, I evaluated in The Journal (1) the final report and recommendations of the Commission on Structural Alternatives for the Federal Courts of Appeals. (2) I assessed in that article both the report itself and the centerpiece of the commissioners' suggestions--a divisional arrangement for the Ninth Circuit that could also be adopted by the remaining intermediate appellate courts as they increase in size. (3) At that time, legislation intended to implement the Commission's recommendations had only recently been introduced, (4) and I suggested that Congress reject the bill. (5)

   Neither house has yet subscribed to the report's divisional approach, although numerous developments have occurred since I last analyzed it here. Perhaps most important was the legislation sponsored in March 2000 by a group of senators that would have split the Ninth Circuit (6) and the similar measures that members of both houses offered during the spring of 2001. (7) Because these events may have a significant effect on the future of the federal appellate courts, I examine here their history and potential significance. I consider at the outset the relevant developments since my last analysis in this journal. Focusing on the Ninth Circuit, I then offer a number of predictions about the future of the federal courts of appeals and make several recommendations for their improvement.

2. RECENT DEVELOPMENTS

   The Commission on Structural Alternatives for the Federal Courts of Appeals had its genesis in the most recent effort to divide the Ninth Circuit: the May 1995 campaign led by senators from several states in the Pacific Northwest. (8) They faced strong opposition. The Ninth Circuit's chief judge, Procter Hug, Jr., several other members of his court, and numerous members of Congress, including Senator Dianne Feinstein and nearly all of California's Congressional delegation, argued against possible bifurcation and proposed instead that Congress authorize a thoroughgoing assessment of the federal appellate system. (9) This opposition prevailed, and the five-member Commission was created in November 1997 to evaluate the appeals courts and to suggest improvements, if any were warranted, and its members were instructed to emphasize the Ninth Circuit. (10) Issued in December 1998, the report of the Commission on Structural Alternatives for the Federal Courts of Appeals recommended that Congress prescribe a divisional arrangement for the Ninth Circuit and authorize the other courts of appeals to implement divisional plans as they grow. (11)

   In January 1999, several senators sponsored a bill that tracked the report's recommendations, (12) but Judge Hug analyzed the proposed divisional approach, concluded that it was unworkable, and criticized it publicly. (13) He also established a Ninth Circuit Evaluation Committee consisting principally of active judges (14) and asked it to scrutinize the Ninth Circuit's work in light of concerns expressed by the members of the Commission on Structural Alternatives for the Federal Courts of Appeals and other observers of the federal courts. (15) Judge Hug also directed the committee to suggest ways in which the operations of the Ninth Circuit might be made more efficient and its procedures made easier for the public to understand and to use. (16)

   During July 1999, the applicable subcommittees of the Judiciary Committees in both houses held hearings on the Commission's recommendations and the then-pending bill. (17) Chief Judge Hug and Ninth Circuit Judge Charles Wiggins opposed each when testifying, (18) but Ninth Circuit Judge Pamela Ann Rymer, who had served on the Commission, testified on behalf of the plan and the bill. Judges Andrew Kleinfeld and Diarmuid O'Scannlain, both also of the Ninth Circuit, urged Congress to consider change for the Ninth Circuit, although neither explicitly supported the Commission's report. (19) In the week between the Senate and House hearings, Senator Feinstein proffered a measure modifying the Ninth Circuit's en banc process and requiring that at least one judge whose chambers are located in the geographic region from which a particular appeal arose would sit on the three-judge panel hearing the case. (20)

   In March 2000, the Ninth Circuit Evaluation Committee published an Interim Report that included a...