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Congress has a strategic opportunity in the next session to do what it has been discussing since long before we were appointed circuit judges by Presidents Reagan and Clinton: reorganize the 9th Circuit. Compared to the other federal appellate courts, the 9th U.S. Circuit Court of Appeals employs more than twice the average number of judges, handles almost triple the average number of appeals, and is fast approaching three times the average population served. There is no end in sight; the circuit’s caseload has risen by more than 10 percent in each of the past three years alone. In October, the House of Representatives passed and sent to the Senate a bill to restructure this goliath into three: a Mountain Circuit comprised of Arizona, Nevada, Montana and Idaho; a Pacific Northwest Circuit of Oregon, Washington and Alaska; and a new 9th Circuit of California and Hawaii, which, as reduced, would still be the largest circuit in the country in population, caseload and judges. Nevertheless, in an op-ed piece reprinted in The Recorder Nov. 19, two of our colleagues, Judges Kozinski and Thomas, spied skullduggery afoot. Congressional progress, they say, was “by stealth and procedural manipulation.” House passage last month, they say, was a “surprise move before the Nov. 2 election.” And the purpose of the split, they say, was for the “increased convenience of a few judges.” Had he lived to see it, Alexander Hamilton would not have been surprised by such intransigence. He foretold in the first essay of The Federalist Papers the natural tendency for government officials “to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold.” Contrary to our colleagues’ challenge, this largest federal judicial circuit in the nation has been the subject of lengthy and repeated hearings in the current as well as prior sessions, congressionally mandated study commissions, white papers and even passage in certain sessions by one body of Congress or the other. A substantial number of circuit and district judges support the legislation. More importantly, in statements to the White Commission, four justices of the Supreme Court have advocated restructuring as well. In any event, Congress ordains the creation and structure of federal courts; judges don’t get to do that under the Constitution. Resolving this problem should be a priority of the next Congress. By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision-making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique, and, when necessary, correct each others’ decisions. That kind of collegiality is no longer possible in a circuit of this size. The 47 judges who hear and decide 9th Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. On the 9th Circuit we sit with relative strangers, forcing us to deliberate without the benefit of really knowing or clearly understanding the perspectives of our colleagues on a panel. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague’s dispositions while simultaneously resolving one’s own assigned cases. With smaller circuits and fewer judges, we could more closely follow our colleagues’ work and better ensure consistency and predictability. Smaller circuits would also allow us to correct more of our mistakes. The 9th Circuit has grown to such a size that it cannot perform the en banc (or full court) review process that is an important error-reviewing function for every other court of appeals. Even the roughly two dozen cases that are reheard each year are not subject to a true en banc process. The 9th Circuit is simply too big to rehear an erroneous three-judge panel decision as a full court. Instead, we are the only circuit to sit on “limited” 11-judge en banc panels drawn by lot, so that a “majority” consists of six judges who may actually represent the minority view of the full court. It is unacceptable in a democracy that a mere six judges could potentially override the views of the other 22 active judges. Although the Supreme Court sits as the ultimate court of last resort, it is limited in the number of cases it can effectively hear and grants appeals from 9th Circuit decisions in no more than about 20 cases annually. Any restructuring proposal should be analyzed solely to promote effective judicial administration unaffected by Supreme Court batting averages and public perception of individual 9th Circuit decisions. Reorganizing the 9th Circuit is compelling from the standpoint of sound judicial administration. The problem has been studied long enough. Now is the time to solve it. Judge O’Scannlain, from Oregon, was appointed to the 9th Circuit by President Reagan in 1986. Judge Tallman, from Washington, was appointed by President Clinton in 2000. A portion of this article was previously published as a letter to the editor in the Nov. 23 Wall Street Journal.

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