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As Congress continues to evaluate the issue of splitting the U.S. Court of Appeals for the 9th Circuit, Howard Bashman (“ Dividing Nine Into Two“) argues that Congress should split the 9th Circuit and not wait until a majority of its judges favor division. The reasons for division are so clear, he suggests, that judicial expertise is unnecessary to appreciate how compelling a split would be. In fact, the reasons offered for splitting the circuit are not at all compelling, and the better solution is to defer to the judgment of those active 9th Circuit judges who oppose the division. If Congress wants to address the problems facing the Court of Appeals, it has much better options than forcing a split against the wishes of the judges.
See also: Split the Difference (Points of View)
No one disputes Congress’ authority to divide federal courts with or without judicial approval. But it’s an entirely different issue whether a particular division represents sound public policy. Bashman frankly acknowledges that the 9th Circuit judges have “knowledge of that court’s internal functioning that is unavailable to most of the rest of the general public.” But he severely understates the deference due the expertise gained from discharging their enormous daily responsibilities. The degree of judicial opposition to the division is noteworthy. Only three of the 26 active judges on the 9th Circuit have publicly favored a split. This contrasts sharply with the practically unanimous support for division from the 5th Circuit’s judges a quarter-century ago. The overwhelming majority of the 9th Circuit’s active judges are not the only opponents. Others opposed to a split include the American Bar Association, the Federal Bar Association, and the Hispanic National Bar Association. Every state bar association with a current position on division (including Alaska, Arizona, Hawaii, Montana, and Washington) opposes the split, as do numerous local bar associations in the circuit’s nine states and two territories. NOT TOO LARGE A key issue often cited by critics of the 9th Circuit is the size of the court’s caseload. In 2005 approximately 16,000 appeals were filed in the 9th Circuit, triple the national average, and that number has risen 70 percent since 2001. The court decides about one-third of the national caseload. But virtually the entire spike results from President George W. Bush’s policy of “streamlining” matters at the Board of Immigration Appeals, which has served to fuel more appeals to the 9th Circuit. Congress is considering legislation that would revamp this policy or divert those immigration appeals to the Federal Circuit. If this occurs, the 9th Circuit’s problem of too many cases may go away. To be sure, the 9th Circuit requires 16 months to resolve appeals, the longest period nationwide. Yet the duration in judges’ chambers is brief — six weeks for argued cases, a period much shorter than the national average. The remaining time is given over to the court reporters’ assembling of records and the lawyers’ compiling of briefs, activities that are governed by federal appellate rules. Moreover, lawyers and parties have expressed minimal concern about the time taken to resolve cases in the 9th Circuit. The reality is that disposition times have often fluctuated, and the current problems can mainly be ascribed to (1) the four judicial vacancies and one nominee’s submission during the measurement period, and (2) the dramatic rise in immigration appeals, whose large quantity and frequent extensions are slowing down the court. The problem with judicial workloads could be ameliorated without a split. Last year, the U.S. Judicial Conference, the policy-making arm for the federal courts, asked Congress to approve seven additional judgeships to augment the current 28 active judgeships on the 9th Circuit. Unfortunately, House leaders have made these judgeships and those for the rest of the nation contingent on a split. BIG BENEFITS Contrary to the assumptions of split proponents, the size of the 9th Circuit provides advantages. The 40-plus active and senior judges bring a variety of backgrounds to the decision-making process and strengthen the tribunal. The fact that they come from many states dilutes parochialism. The goal of the federal court system is uniform, coherent law across the United States. The very size of the 9th Circuit helps foster that desired stability over much of the western United States. The 9th Circuit also serves as a sort of laboratory for experiments with administrative measures that might help other growing courts. Even proponents admit that splitting the 9th Circuit would be very costly. Startup expenses alone for the new circuit are estimated at $95 million. Plus, the cost of ongoing duplication of administrative functions is estimated at $14 million annually. The Administrative Office of the U.S. Courts, the federal courts’ administrative arm, recently declared that the judiciary “is not in a position to absorb any of the additional costs” of a 9th Circuit split. Even with all the money spent on a division, the post-split 9th Circuit would remain an outlier among the federal circuits. The current proposal is for a new 12th Circuit, consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington. The 9th Circuit would be left with California, Hawaii, Guam, and the Northern Mariana Islands. That reduced 9th Circuit would continue to handle an immense caseload. And the projected differences between the 9th and 12th circuits would be substantial. While the new 9th Circuit would still handle more than 500 cases annually (above average), the new 12th Circuit would deal with only 317 (far below average). And the appeals of the 9th Circuit would be more complex and time-intensive because the seven states that would constitute the 12th Circuit generate less complex appeals than does California. In other words, the problems that some see with the current 9th Circuit would still exist after a division. CONSISTENCY In faulting the current 9th Circuit, Bashman asks whether the court maintains a “body of precedent that is internally cohesive” and whether its limited en banc panels appropriately substitute for having all active judges participate in en banc proceedings. But those who best know the court — the vast majority of 9th Circuit judges, many appellate counsel, and numerous bar associations — disagree, finding any lack of uniformity insufficient to support division. Independent analysis (such as that conducted by University of Pittsburgh law professor Arthur Hellman) has agreed that conflicts are not problematic enough to warrant a split. The 9th Circuit has developed many procedures to reduce potential inconsistency. Staff attorneys thoroughly review every appeal and code the issues for disposition, making it easier for the judges to identify relevant precedents and potential conflicts. When cases raising analogous questions are simultaneously ready for calendaring, they are assigned to the same panel. Moreover, the court employs its limited en banc device to minimize the putative lack of uniformity. It now rehears more appeals than previously (and more than do other courts), uses quarterly sessions that enable more en banc hearings, and is currently experimenting with a larger en banc panel — 15, rather than 11, judges. In fact, a split might even erode judicial consistency. Some observers have warned that dividing the extended Pacific coastline between tribunals would increase business expense and complexity for industries dependent on consistent commercial, maritime, and utilities law. REVERSAL RATE In arguing for a split, some advocates point to the 9th Circuit’s reversal rate by the Supreme Court over the past 10 to 15 years and deem it too high. Yet the reversal rate is not a sound reason for a split. First, whether the Supreme Court frequently disagrees with the 9th Circuit has limited relevance. The Supreme Court reviews only a very small percentage of all appellate decisions. Second, even if the frequency with which the justices overturn the 9th Circuit were more significant, the reversal rate is determined by many variables outside the circuit’s control, including the decisions that parties choose to appeal and the cases the Supreme Court chooses to hear. And the rate vacillates greatly over time. In fact, since 2001, the 9th Circuit’s reversal rate has been less than that of a few other appellate courts and essentially has matched the national averages. There’s just not much importance in reversal statistics. What is significant, however, is the ideology and partisanship that animate the push for a 9th Circuit split. Lawmakers from several Western states have long justified division by attacking 9th Circuit decisions in the fields of natural resource and environmental law, which affect the timber, mining, and agricultural industries across the region. These legislators seek a more conservative appellate bench to decide issues in their states. Both Sen. Dianne Feinstein (D-Calif.) and former California Governor and ex-Sen. Pete Wilson (R-Calif.) have characterized these views as “environmental gerrymandering.” One question for Congress is whether there is a compelling national interest in creating a new circuit for the very purpose of developing and exploiting inconsistencies in the interpretation of federal law. Indeed, the White Commission, which Congress authorized to study the courts in the late 1990s, emphatically rejected the idea of dividing a court for ideological reasons. And perhaps recognizing the unpersuasiveness of such political motivations, since 2000 advocates of the split have increasingly made their arguments in terms of court administration. In contrast to the support for a split, the opposition is bipartisan. The political views of those against the split range across a broad spectrum, including prominent conservatives such as 9th Circuit Judge Alex Kozinski, Republican Gov. Arnold Schwarzenegger (Calif.), and law professor John Yoo, formerly of the Bush administration. Finally, those pushing for a split ignore the real problem: The 9th Circuit and the other circuits must address burgeoning caseloads with static resources. The result is a two-tier system of justice, whereby 20 percent of appeals receive full consideration — namely oral arguments and published opinions — and 80 percent do not. Dividing the 9th Circuit will do nothing to fix this. Proponents of a split have failed to demonstrate that the 9th Circuit has problems difficult enough to warrant such a drastic and ill-conceived solution. Congress should be focusing its energy on a systemwide remedy for the real national problem: too few resources for too many appeals.
Carl Tobias is the Williams professor of law at the University of Richmond School of Law in Richmond, Va.

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