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Friday, March 24, 2006
The Ninth Circuit (Most of It, Anyway) Fires Back
Over at How Appealing, Howard links to a fascinating piece in the latest issue of Engage concerning the proposed split of the Ninth Circuit. What's particularly unusual are its authors: Thirty-three current Ninth Circuit judges. [ACSBlog also has coverage of the piece here.]
The piece is remarkable on a number of levels, and is worth a read no matter one's political persuasion or personal feelings about the size of the Ninth Circuit. Although the piece offers a point-by-point response to Judge O'Scannlain, who had earlier written in support of the split in Engage [see page 60 of this PDF] and elsewhere, it reads as if it's meant not just as a response to one of their colleagues, but as an open letter to the legal community.
From worrying about the steadily increasing size of the federal docket, to the budgetary crunch that every federal court is currently undergoing, to the extent to which increasing the number of circuits will make life harder on the U.S. Supreme Court, and so on, to call the essay by the "Gang of Thirty Three" a response to Judge O'Scannlain is to undersell what it really is -- this is a mission statement a la Jerry Maguire on the state (and, as importantly, the future) of the federal judiciary.
Two consecutive paragraphs, toward the end of the essay, stand out in particular:
We do not dispute that the increase in the federal caseload, and the appellate caseload in particular, presents a serious challenge to the orderly administration of justice. We do disagree, however, with those who would answer this challenge by breaking up what we consider to be an effective, well-organized and efficiently-run organization. Splitting the Ninth Circuit would be a costly enterprise, estimated by the Administrative Office of the United States Courts at some $96 million, plus additional costs of $16 million a year for operating two circuits rather than one. At a time of budget austerity, it seems wasteful and counterproductive to spend that ` kind of money for a net loss in efficiency.
There are, indeed, measures Congress might consider to deal with our caseload problem. In addition to adequately staffing our court by filling vacancies, Congress might look to the reasons for the increase in appellate caseloads. For example, we and the Second Circuit have suffered a huge number of filings (some six thousand cases in our court) in immigration cases. This has come as a direct result of what is known as “streamlining” on the part of the Board of Immigration Appeals, which has recently released thousands of cases from its docket after giving them only cursory review. These cases have found their way into the federal courts of appeals, and our court and the Second Circuit are the ones most directly affected by this practice. While this problem may be only temporary, Congress may well want to consider providing a more effective administrative appeal process.
In short, what I take the essay to be arguing is that there are huge problems confronting the federal courts (and the appellate courts, especially), but that these problems are not of the courts' own making, and splitting those courts that have become, in the eyes of some, "too [insert adjective here]," is not even the beginning of a solution. I couldn't agree more.
Don't get me wrong -- I've never disguised my admiration for the Ninth Circuit, or for most of its judges. But what the essay makes clear is that the fight over splitting the Ninth Circuit is about much more than just the perceived political leanings of one appellate court. What's been beneath the surface from the outset, and is now far more apparent thanks to this essay, is that under cover of the split-the-circuit issue are far more vexing and troubling questions concerning the future of federal courts. And questions, mind you, the answers to which will have ramifications for every circuit, even the one -- the First -- with fewer than ten judges. Splitting the Ninth Circuit really is a national issue, not because there actually need be national debate about the merits, but because there should be national debate about the remarkably changing relationship between the political branches and the courts, of which this is just one prominent (and partisan) symptom.
P.S. Just because I was curious (and so you may be too), here's a list of the judges, besides Judge O'Scannlain, who didn't sign on: Sneed, Alarcon, Beezer, Hall, Leavy, Trott, Fernandez, Rymer, Nelson (T.G.), Kleinfeld, Gould, Tallman, and Bybee. I'm not sure that any of these come as a surprise, although the identities of some who did join the statement sure does.
Posted by Steve Vladeck on March 24, 2006 at 03:02 AM in Steve Vladeck | Permalink
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Comments
Steve,
Do you think it was right to split the 5th Circuit back in the 1970s? I think we mostly say today that this was a good idea.
Posted by: Jolol | Mar 23, 2006 10:05:10 PM
Really interesting article. One issue that's always puzzled me is the agreed upon notion that splitting California among different circuits is not an option. The authors of this article, for all their pragmatic wisdom, seem to take this as a given. I've never understood why this is true. I realize that it would be unprecedented, since no other state is in more than one federal circuit, but is this anything more than a formal/aesthetic objection?
Posted by: Dave | Mar 23, 2006 11:59:29 PM
Dave,
my guess at why some have difficulty with the idea of splitting California into different Circuits is the idea that part of the State could be living under one legal regime (whatever the 9th Circuit decides "the law" is), while another part of the state would have to comply with another (whatever the new 12th Circuit decides). Only an act of Congress (in some cases) or a decision by the Supreme Court could resolve the different results. While we tolerate inconsistencies between states - after all, the law changes any time you move from one state to another - the idea that crossing some imaginary line in your state could change the applicable rules is probably too much for some people to bear.
Posted by: jurisprude | Mar 24, 2006 7:47:13 AM
the biggest problem would involve state statutes. in the case of a circuit split, a statute could be held constitutional in one part of the state and unconstitutional in another.
Posted by: steve lubet | Mar 24, 2006 10:07:33 AM
This response is beautifully written and, in my mind, pretty dispositive. (full disclosure: I clerked for A. Wallace Tashima from 1998-99). Having seen first-hand how the 9th Cir. deals with a vast number of cases, opinions, en bancs, and far-flung traveling, I continue to marvel at how smoothly everything works. The 9th Cir. should be praised for its innovations as well as for the extremely hard work and long hours that its judges, law clerks, and staff put in every day--unlike some circuits I will not name. Long live the 9th circuit!
Posted by: Laura | Mar 24, 2006 12:44:13 PM
I could be wrong, but I don't think Willie Fletcher signed either (although his mother did).
Posted by: Bobbie | Mar 24, 2006 1:23:11 PM
I think jurisprude and steve hit the nail on the head with respect to the reason that people resist state-splitting. But do these objections end the issue? As jurisprude points out, we have to live under fifty-plus different legal regimes now, and people who live in Needles, CA or Reno, NV (right on state borders) have to deal with the applicability of different jurisdictions' laws on a daily basis. The notion of a state statute being unconstitutional in some parts of the state and constitutional in others also seems foreign, but is it really that different than the uncertainty that circuit splits create with respect to federal laws? These all seem like valid concerns, but they strike me as different only in degree, not in kind, from the concerns that arise inevitably in the federal courts system. Thus it seems to me that the costs of splitting California should be assessed and weighed in the course of the cost-benefit analysis regarding Ninth Circuit reform more generally, rather than (as it seems is generally done now) set aside as a non-factor because splitting any state is deemed per se unacceptable.
Posted by: Dave | Mar 24, 2006 1:28:30 PM
Bobbie -- I think Judge W. Fletcher is accounted for...
As for the state-splitting thing, I respectfully disagree with Dave; I think splitting a state is a problem of a different character than splitting the circuits. How absurd would it be for the Ninth and "Twelfth" Circuits to differ on a question of California state law? Indeed, where the California Supreme Court hadn't spoken to an issue, there could be a question of California law that divides two circuits, but over which the U.S. Supreme Court lacks jurisdiction under Section 1257... That strikes me as a compelling reason to keep contiguous states within the same circuit, independent of the concern voiced by the judges in this piece that you could have a "California Circuit," and so on.
Posted by: Steve Vladeck | Mar 24, 2006 2:39:15 PM
Jolol -- I must confess to being somewhat ignorant to the justifications for splitting the Fifth in 1981. It does seem to me, though, that there is a geographical difference between a circuit that spans the West Coast, and one that spans from El Paso to Miami, as the "old Fifth" did...
Posted by: Steve Vladeck | Mar 24, 2006 2:41:02 PM
It does indeed seem strange to imagine a world where different federal courts would have different interpretations of the same state's law. But this doesn't seem to me to raise issues analytically distinct from the ones we're used to dealing with in the federal court system, where the various circuits often proffer different readings of federal law. This can even happen within a state, as different judicial districts could render variant opinions on the same federal statute (which would ultimately be resolved by the circuit court).
The problem of inconsistent interpretation of state law may not even arise that much, since federal courts are obliged to follow a state's interpretation of its own constitution and statutes (assuming no preemption concerns are afoot). And federal courts could also ward off such conflicts by certifying questions of state law to state supreme courts.
Now I'm by no means convinced that splitting a state is a great idea; I'm just not sure I buy the reasons that people seem to want it off the table altogether. I have to confess I'm not an expert on fed courts like Steve, so if it's true that there might be limits on the ability of federal or state courts to resolve conflicts, that might indeed be a problem.
As for the Fifth/Eleventh split back in '81, it followed soon after Congress authorized an increase in the number of Fifth Circuit judges from 18 to 26 in 1978. The sense was that 26 judges was too many to have in a single circuit. Eleventh Circuit judge Tjoflat weighs in on the split in this interview with Harold Bashman:
http://20q-appellateblog.blogspot.com/2003_08_01_20q-appellateblog_archive.html#105996965614360491
Posted by: Dave | Mar 25, 2006 12:24:17 AM
I think his arguments about CA9's consistency in caselaw, etc, are something of a red herring. CA9 has an extraordinary number of unpublished decisions, and lawyers can be sanctioned for citing them. The court thus easily disposes of a large number of cases with something of a thumbs-up, thumbs-down approach without worrying about precedent or anything else.
Posted by: iocaste | Mar 25, 2006 10:25:45 AM
Thirty years ago, I wrote an article on the legal problems of dividing a state between federal judicial circuits. 122 U. Pa. L. Rev. 1188 (1974). What prompted the article is that the Commission on Revision of the Federal Court Appellate System (Hruska Commission) recommended such a division of the Ninth Circuit. I was the Deputy Director of the Commission and had written a memorandum that was the genesis of the article. I concluded that none of the problems were insuperable. But even if the conclusion is sound, Sen. Feinstein has made clear that such proposals are unacceptable. Based on that opposition, the Senators who seek to divide the circuit have made no attempt to pursue that approach.
Posted by: Arthur D. Hellman | Mar 25, 2006 2:44:40 PM
I agree with Professor Hellman on both counts: there are several workable devices which could solve the intra-California problem but Senator Feinstein indeed laid down her marker a few years ago (which is why I have regrettably backed off from supporting the split-California version). As to the Senator's objection (she's open to other configurations) I don't understand the politics of it. One would think, that the prospect of the California Senators becoming the only members of the Senate with input (and heavy influence) into not just one but two circuits would be very attractive. It must have something to do with local California issues. The Hruska Commission (which Arthur is referring to in his post) specifically recommended in 1974 that the Northern and Eastern Districts be put into a Pacific Northwest circuit headquartered in San Francisco and the Central and Southern Districts be put into a Southwest circuit headquartered in Los Angeles. Even today, the two resulting circuits would be almost equal in size of population and caseload. Alas, that version is not on the table so we are looking at California as a starting point, "plus". The remaining eight states account for less than one-third of the current caseload and population. Incidentally, I will be responding to the Engage statement in due course.
Posted by: Diarmuid O'Scannlain | Mar 25, 2006 6:00:42 PM
Judge O’Scannlain wonders about the politics of Sen. Feinstein’s opposition to dividing California between federal judicial circuits. One might similarly wonder about her opposition to the realignment plan that now seems to have the most traction – a realignment that would create a new Ninth Circuit with only two states: California and Hawaii. Under this plan, the California Senators would have “heavy influence” over appointments to all but 1 or 2 seats on a 19-judge court. Why doesn’t Sen. Feinstein support that?
The explanation, I think, is that Sen. Feinstein realizes that the effect of the realignment would be to isolate California jurisprudentially. Judge John Minor Wisdom spoke eloquently about the “federalizing function” of the federal courts of appeals. The “new Ninth Circuit” proposed by the House and Senate bills would be little more than a “United States Court of Appeals for California.” The court would lose the diversity that it gains today from the influence of multiple Senators from nine states on the appointment of judges.
This can be seen in the appointments made by President Clinton. Clinton appointed many fine judges from California – among them, Berzon, Fisher, and W. Fletcher. But the bench is more heterogeneous because of the Clinton appointees from other states – judges like Silverman, Tallman, and Rawlinson. And the Ninth Circuit is a better court because the different legal cultures and political “tracks” are represented.
Posted by: Arthur D. Hellman | Mar 26, 2006 1:45:18 PM
There are some big egos involved. The California Senators are able to influence who is confirmed to the Ninth Circuit, and they (along with many Californians) enjoy having eight other states in California's jurisprudential orbit. Also, Judge Kozinski is in line to be chief judge of the circuit, and he prefers to be chief judge of as big a circuit as possible.
Then there's Congressman Sensenbrenner (chair of the House Judiciary Committee), who has stated that "additional judgeships are inextricably linked with splitting the Ninth Circuit and they will only move legislatively as one administrative restructuring package." Thus, the 68 new judgeships recommended by the judiciary (including 12 at the circuit court level) are being held hostage to a split.
And, President Bush would like to appoint those new judges. Something's gotta give.
Having such a large circuit as the Ninth suppresses splits of authority that would otherwise occur between the circuits created from the Ninth. So, maintaining such a large Ninth Circuit suppresses the influence of the US Supreme Court on the west coast, because the Ninth resolves its own internal splits rather than having the Supreme Court resolve them. Thus, keeping the current Ninth Circuit intact would not not only continue to place the satellite states under the thumb of California, but would also limit the power of the US Supreme Court vis a vis the Ninth Circuit states.
That is why I think the next phase in this debate will be for Supreme Court justices to start weighing in on the issue, in support of a circuit split.
Posted by: Andrew Hyman | Mar 28, 2006 12:32:42 AM
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