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In 1999, former Chief Judge William D. Browning of the District of Arizona, who served as one of five members of the White Commission, testified before the Senate Judiciary Committee that he had repeatedly asked opponents of a 9th U.S. Circuit Court of Appeals split: When will the 9th Circuit be too big? He said that no answer was ever forthcoming. (The White Commission, whose formal title was the Commission on Structural Alternatives for the Federal Courts of Appeals, was originally led by former Justice Byron R. White.) Although the 9th Circuit is only one of 12 geographical federal circuit courts, whether viewed from the vantage point of population, caseload or number of authorized judgeships, the 9th Circuit has no equal. 58 million people live within the 9th Circuit. This is one-fifth of the population of the United States. It is also 27 million more people than reside in the next largest circuit. The 9th Circuit consists of nine states (including the most populous state), a territory and a commonwealth. The other circuits average fewer than four states. No other circuit, of course, decides the law for nine states. Massive caseload As of Dec. 31, 2005, the 9th Circuit had nearly 17,000 pending cases, which represents 28% of all pending federal appeals. To see the impact of so many cases, one need look no further than the most recent statistics from the Administrative Office of U.S. Courts. The 9th Circuit is now the slowest circuit in the country, by more than two months, for each of its nearly 17,000 cases, from filing of notice of appeal to disposition (the only measurement that really matters to litigants). When the White Report was issued in 1998, the 9th Circuit’s caseload was about 8,600 appeals and its population was 51,453,880. The 9th Circuit has 28 authorized active circuit judgeships. The other 11 geographical circuits average fewer than 13. Because it has so many judges, the 9th Circuit must conduct its en banc hearings with fewer than all active circuit judges-far fewer. Justice Sandra Day O’Connor wrote to the White Commission, stating that the limited en banc could not serve the purposes of a full en banc. Although the commission, in 1998, observed that “few cases” are closely decided en banc in the 9th Circuit, since the White Commission Report was issued, more than one-third of the 9th Circuit’s en banc decisions have been by 6-5 or 7-4 votes. The recent modest increase in the number of participants from 11 to 15 judges will merely result in a large number of 8-7 and 9-6 votes, with eight or nine judges speaking for a court of 28 authorized active circuit judges. In addition to O’Connor, justices John Paul Stevens, Antonin Scalia and Anthony M. Kennedy (who served on the 9th Circuit) wrote to the White Commission in support of a circuit split. Scalia pointed out the disproportionate number of unanimous reversals of the 9th Circuit by the Supreme Court. Since the White Report, the 9th Circuit has been unanimously reversed in written opinions at least 53 times. Nearly all of these reversals were cases never heard en banc. Because of its disproportionate size, the 9th Circuit states are woefully under-represented in the Judicial Conference of the United States and its various committees. The cost of a split is far less than opponents have projected, due in part to the availability of existing courtroom space. S. 1845, co-sponsored by several senators including seven from states in the 9th Circuit, and H.R. 4093 would divide the 9th Circuit into two circuits. The new 9th Circuit would include Hawaii and California, Guam and the Northern Mariana Islands. The new 12th Circuit would consist of the other seven states in the current 9th Circuit: Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington. It is a sound proposal. The new 9th Circuit would automatically become the nation’s largest circuit (any circuit with an undivided California will be the largest circuit). It may choose to continue with a limited en banc procedure-but at least the seven states of the new 12th Circuit would be able to return to the same full en banc system enjoyed by every other circuit but the current 9th. The new 12th Circuit’s caseload would be of about average size. Senator Arlen Specter, R-Pa., recently sponsored legislation that would transfer all pending appeals from the Board of Immigration Appeals to the U.S. Court of Appeals for the Federal Circuit. While nearly every circuit would benefit from this, the 9th Circuit would receive a windfall-its caseload would be reduced by more than 6,000 pending cases. Should both Specter’s proposal and S. 1845/H.R. 4093 be enacted, with the 6,000 immigration cases excised, the new 9th Circuit, would keep 60% of the current 9th Circuit caseload and have 61% of the judges allotted to the new 9th and 12th circuits. The new 12th Circuit would have 40% of the current caseload and 39% of the allotted judges. This is not about Congress interfering with judicial independence. It is about Congress exercising its constitutional duty under Article III to create such lesser courts “as the Congress may from time to time ordain and establish.” When will the 9th Circuit be too big? If Congress lets the 9th Circuit answer that question, the answer will be “Never!!” John M. Roll is a U.S. district judge in the District of Arizona.

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