Chairman Johnson, Ranking Member Issa, and distinguished members of the Subcommittee, thank you for holding this important hearing and for this opportunity to submit my thoughts on the structure of our judiciary.
Subcommittee on Courts, Intellectual Property, and the Internet
Committee on the Judiciary
United States House of Representatives
Despite our nation’s natural growth in population and litigation, we haven’t had new district judgeships created in nearly 20 years and new circuit judgeships in more than 30 years. I am happy to defer to the Judicial Conference on the question of how many new judgeships are needed and where, and defer to all of you regarding the political compromises and staggering of vacancies that will be necessary for any created judgeships not to be seen as “court packing” that benefits only the incumbent president’s political party. Instead I write simply to suggest that you combine this fruitful discussion with serious consideration of splitting up the Ninth Circuit—but not for political reasons. I’ve published a law review article to this effect, which I attach to this submission, and here is a summary.1
Even as that great western court has long been a bogeyman for conservatives, breaking it up would have no ideological impact, because presidents of both parties appoint judges to all federal courts. Indeed, after President Trump’s appointments, there are now five circuits with a higher ratio of Democratic‐ to Republican‐appointed judges (a rough proxy) than the Ninth.
The Ninth Circuit’s perceived ideological tilt is a function of history, not geography. In 1978, Congress added 10 judgeships to a 13‐member court, allowing President Carter to fill all those seats. Most of those judges in turn timed their taking of senior status to coincide with Democratic presidencies, so until very recently, most of those seats “stayed in the family.” It would take a long run of Republican presidencies to break a judicial‐turnover skew that’s historically been more pronounced in this court than anywhere else.
But there are other reasons for restructuring the Ninth Circuit. One is the sheer size of the court—covering 40 percent of the nation’s land mass and 20 percent of its population—and the high number of appeals it must decide, double the next‐highest circuit and triple the average.
The Ninth Circuit bears an astonishing backlog, accounting for nearly a third of all pending federal appeals.2 “Legal briefing in pending appeals … is frequently years old and contains stale case law, by the time we can get to it,” wrote Ninth Circuit Judge Richard Tallman (a Clinton appointee) in Senate testimony in 2017.3
A second problem is legal unpredictability. With 29 active judges, there are over 3,600 combinations of three‐judge panels and judges can go years before hearing cases with some colleagues. That’s before including senior judges and judges visiting from elsewhere, which the Ninth Circuit uses far more than any other court. These visitors do yeoman’s work, but they can hardly be expected to be familiar with local precedent—which is difficult enough for “home” judges given the more than 550 precedential opinions published each year.
As Judge Diarmuid O’Scannlain (a Reagan appointee) wrote in testimony at that same Senate hearing, “Such a system affords hardly enough time for Ninth Circuit judges even to stay informed about developments in our law, let alone to ensure consistency.“4 That echoed former Supreme Court Justice John Paul Stevens, who wrote in 1998 that the Ninth Circuit was “so large that even the most conscientious judge cannot keep abreast of her own court’s output.“5
Even more striking is the court’s peculiar “en banc” process. Because of its size, the Ninth Circuit uses a randomly selected 11‐judge panel rather than having all judges sit together. There’s a provision for a full‐court “super” en banc, but it’s so impractical that it’s never been used. This means that a six‐judge majority can set rules that bind 23 others.
Proponents of the status quo have emphasized the “economies of scale” from a large circuit. But if larger were inherently better, we wouldn’t have regional circuits, instead using one gargantuan court of appeals. Smaller circuits allow for more substantive knowledge of local law and more collegiality among the judges.
Nor would splitting off California, Hawaii, and the Pacific islands (and possibly Oregon) create unmanageable imbalance in a reduced Ninth Circuit. Many current circuits have one state that dwarfs the others: New York generates nearly 90 percent of cases in the Second Circuit, Texas 60 percent in the Fifth, Illinois nearly 64 percent in the Seventh, and Florida 62 percent of cases in the Eleventh (which itself was split from Fifth in 1981).
Because the Supreme Court hears so few cases, the legal buck generally stops in the circuit courts. Yet when circuit rulings are slow, inconsistent, and made by judges less familiar with local law, the quality of justice suffers.
At a House appropriations hearing in March 2007, Justices Anthony Kennedy and Clarence Thomas testified that there was a consensus among the justices that the Ninth Circuit was too large and unwieldy, and that it should be split.6 Nearly 15 years later, it’s long past time to do just that.