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The long-running debate over the 9th Circuit can be broken down into two questions: Should the circuit be split? If so, how? Attempts to discuss sensibly the first question have been muddled and distorted by an inability to reach any agreement on the second. The difficulty — some would say impossibility — of dividing the 9th Circuit in any reasonable way distracts attention from the real problems of its court of appeals. Intense controversy has stalled congressional action for at least 35 years.
See also: Keep It Together (Points of View)
This inaction is especially frustrating because a panel of experienced judges, pursuant to Congress’ own mandate, has already devised a workable solution. Congress need only heed the recommendation of that body. HARD TO DIVIDE The problem of drawing sensible lines did not arise when the 10th Circuit was created out of the 8th, in 1929, or when the 11th Circuit was established out of the 5th, in 1980. In each of those realignments, the geography and the main sources of the appellate workload permitted division of the existing circuit into two reasonably compact territorial units, with the new courts having close to the same number of cases and judgeships. Those realignments also respected the often reiterated principle that no circuit should consist of fewer than three contiguous states. By contrast, the 9th Circuit presents a unique difficulty. The circuit, the largest by any measure, consists of nine states — Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington — plus Guam and the Northern Mariana Islands. But more than half of the circuit’s appellate business comes from California alone. Of the numerous proposals for splitting the circuit, none deals satisfactorily with this problem. The proposals either leave one of the new appellate courts with a vastly disproportionate caseload or create one geographically awkward circuit and violate the three-state principle. For example, the bill passed by the House of Representatives last year ( H.R. 4093) would leave a 9th Circuit consisting only of California, Hawaii, and the Pacific islands. The new 12th Circuit would be a seven-state shoestring running from Arizona to Alaska. Adherence to the three-state principle is important because a larger circuit strengthens the federalizing function of the regional appellate courts. By adjudicating cases over a wider, multistate jurisdiction, the appellate court increases the uniformity of federal law and guards against provincial tendencies that might appear if the court were concerned with less than three states. Moreover, having at least three states in each circuit assures that at least three congressional delegations have an interest in the well-being of the circuit and in the balanced quality of its bench, both trial and appellate. A KEY DISTINCTION The seemingly intractable 9th Circuit problem drove Congress in 1997 to create the Commission on Structural Alternatives for the Federal Courts of Appeals. Known as the White Commission after its chairman, the late Justice Byron White, it was directed to study the structure and alignment of the federal appellate courts, paying special attention to the 9th Circuit. After a year of hearings and study, the White Commission submitted its final report in December 1998. The commission developed a creative proposal that should go far toward meeting the concerns of those who advocate and those who oppose a 9th Circuit split. The report proceeds from the obvious yet constantly overlooked distinction between a federal judicial circuit and its court of appeals. A judicial circuit is a territorially defined, administrative entity with no adjudicative functions. It is run by a judicial council — headed by the chief judge and assisted by the circuit executive — which handles administrative matters for all the federal courts and judges, trial and appellate, within the circuit. Its responsibilities include assigning judges at the trial level to fill temporary needs, reviewing district court rules and jury-selection plans, reviewing and approving construction and renovation plans for court facilities, appointing bankruptcy appellate panels, resolving complaints about judicial disability and unfitness, and planning circuit conferences. The court of appeals, on the other hand, is purely an adjudicative body. It decides cases. It has no responsibility for administering the circuit. Unfortunately, many people, lawyers included, think of the circuit and its court of appeals as one and the same. For simplicity’s sake they say the 9th Circuit, when what they mean is the Court of Appeals for the 9th Circuit. But a clear understanding of this distinction is fundamental to overcoming the impasse in this debate. The White Commission identified no significant problems with the 9th Circuit as an administrative entity. Indeed, it was widely agreed that in this capacity the circuit was working well. All the serious reasons cited by advocates of a circuit split related instead to the adjudicative role of the court of appeals — i.e., the judges’ decisions and the ways in which they reached those decisions. Critics of 9th Circuit jurisprudence have assumed the only way to deal with a court they deem dysfunctional is to split the circuit in two. The White Commission report shows that problems relating to the court of appeals can be cured without splitting the circuit. The significant concerns about the Court of Appeals for the 9th Circuit all stem from the court’s exceptionally large number of judges, who, as in the other federal appellate courts, purport to operate as a single decisional unit yet sit in ever-shifting three-judge panels. The complaint is that, with 28 judgeships plus 20-odd senior judges, the court is too large to maintain collegiality. No judge can keep up with all the decisions the court renders, and thus true decisional uniformity is impossible. The judges are too numerous to hold a genuine and effective en banc hearing (the court is currently experimenting with en banc panels of 15 judges). And because of the circuit’s vast territory, many of its judges are disconnected from the regions over which they adjudicate. The White Commission’s answer was to restructure the court of appeals into several smaller decisional units. Specifically, the commission proposed the court be organized into three, semi-autonomous, adjudicative divisions — designated as Northern, Middle, and Southern. Each division would have seven to 11 judges, assigned permanently or for extended periods. Each division would have exclusive jurisdiction over appeals within its territory. And each division would be small enough to sit in a meaningful en banc. Conflicting decisions among the divisions could be resolved expeditiously, without additional briefing, by a “circuit division,” consisting of 13 judges from all three divisions and presided over by the circuit’s chief judge. The present circuit en banc would be eliminated. Administratively speaking, the 9th Circuit would be left undisturbed, thus preserving the efficiencies of a single management structure for the entire federal judiciary in the nine-state region. FUTURE SPLITS? Recognizing the distinction between a circuit and its court of appeals has long-range significance beyond the immediate concerns over the 9th Circuit. It also provides a basis for dealing with the inevitable growth of appellate business in other circuits. Because eight of the other regional circuits embrace less than six states, it will be impossible to divide them without violating the three-state principle. Instead each court of appeals could be authorized to organize itself into adjudicative divisions after it reached a certain size — say, more than 15 judgeships. Courts could design these adjudicative divisions in a variety of ways, tailoring the structure to each court’s particular caseload, territory, and judges. This solution to the 9th Circuit impasse and to the coming problems in the other federal appellate courts is all laid out in detail in the White Commission report. The commission even took pains to put its recommendations in the form of draft statutes. So all Congress need do now is copy the provisions into a bill format, hold hearings, tinker as it sees fit, and pass the bill. The long and divisive debate will at last be over.
Daniel J. Meador is a professor emeritus at the University of Virginia School of Law. From 1998 to 1999 he served as executive director of the Commission on Structural Alternatives for the Federal Courts of Appeals.

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