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The Federal Bar Association is vitally interested in the proposed reorganization of the Court of Appeals for the Ninth Circuit because it is the only national bar association that has as its primary focus the practice of federal law. Of the 15,000 attorneys in private and government practice across the nation who belong to the FBA, over 2,700 practice in the Ninth Circuit. With such a regional and national constituency, the FBA has its feet in both camps -- as the beneficiary of direct experience with the structure and operation of the Ninth Circuit, and as a stakeholder in the well-being of the entire federal court structure and the uniform administration of justice.

The FBA applauds the recommendation of the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission) against splitting the Ninth Circuit into two or more circuits. In our prior comments and testimony before the White Commission, the FBA strongly argued against such a split. Instead the FBA favors increased innovation and experimentation by the Ninth Circuit to arrive at solutions that advance the court’s efficiency and effectiveness. As the White Commission Report acknowledges, the Ninth Circuit long has been a crucible for experimentation in management and disposition of a growing federal court caseload. Many of the innovations employed by the Ninth Circuit in the past have proven successful, and thus, are proven mechanisms for other circuits to implement as they encounter problems associated with growth of caseload and court size.

The FBA believes that the White Commission’s proposed division of the Circuit into three semi-autonomous adjudicative units, and corresponding en banc revision, is not in the best interests of the Circuit, its adjudicatory processes, litigants appearing before it, and the interests of justice. It is not likely to increase the uniform application of federal law, and certainly not within the state of California. It is not likely to make the law more predictable. It is not likely to speed the court’s decision-making or create cost-savings for litigants. It is not likely to lead to fewer conflicts in decisional law. It is not likely to enhance the integrity of or the respect for the federal courts. Furthermore, it is not likely to ease the weight of the Ninth Circuit’s caseload, nor enhance or simplify litigation. Indeed, the proposal would in many respects accomplish the contrary. The structure and processes of a court are not its ends. They are the means to the end of serving the administration of justice. Rather than passing structure-oriented legislation that may or may not prove desirable with experience, the FBA recommends that Congress encourage and charge the Ninth Circuit to proceed with continued innovation and flexibility.

The FBA believes that the well-being of the Ninth Circuit and the federal court system are best served by increased Congressional attention to two other concerns: the assurance of timely filling of judicial vacancies; and the reversal of the trend to federalize crimes in areas traditionally reserved to the states. Both of these concerns relate directly to the capacity of courts to render justice fairly and swiftly. Indeed, we recommend that Congress, prior to the passage of any further federal criminal legislation, procedurally require of itself the generation of a "judicial impact statement" that projects the additional caseload and costs that such legislation may create.

Good afternoon, Mr. Chairman and Members of the Subcommittee. The Federal Bar Association (FBA) thanks the House Judiciary Committee, Subcommittee on Courts and Intellectual Property, for the opportunity to offer comments concerning the Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals (White Commission). We testified before the White Commission at its San Francisco hearings in May, 1998, and we offered written comments to the Commission concerning its draft report last fall.

The FBA remains vitally interested in this matter because we are the only nation-wide bar association that has, as its primary focus, the practice of federal law. Of our 15,000 members across the United States, over 2,700 of them practice in the Ninth Circuit. With those demographics, the FBA has its feet in both camps. We are the beneficiary of direct experience with the structure, caseload, adjudication and operation of the Ninth Circuit and of that Circuit's own continuing efforts to address its circumstances. At the same time, we occupy a perspective that necessarily embraces the well-being of the entire Federal Court system. In that capacity, we appreciate the opportunity to continue to help shape solutions to problems associated with growth of caseload management and adjudication as they affect the due administration of justice in the federal appellate judiciary.

At the outset, we will address the report’s proposals concerning division of the Ninth Circuit and, in the future, other circuits as they continue to grow. We also propose that Congress take certain broad actions, apart from structural initiatives, that we believe will reduce the stress on the circuit courts, regardless of their structure.

The FBA applauds the Commission’s recommendation against splitting the Ninth Circuit into two or more circuits. Both in our written statement and in our testimony before the Commission at its San Francisco hearing in May 1998, the Federal Bar Association -- like the state officials, the U.S. Department of Justice, the American Bar Association, and most of the state and local bar associations that have addressed the issue -- strongly argued against such a split.

Although eschewing splitting the Ninth Circuit, the Commission report proposes adjudicative division of the circuit, with specific and detailed suggestions for implementing that division, including a "circuit division" for resolving inter-division conflicts and a revised en banc procedure. As well, the report recommends certain experimental efforts, such as two-judge panels and district court appellate panels, to relieve decisional pressure.

As the report acknowledges, the Ninth Circuit long has been a crucible for experimentation in management and disposition of the growing federal court caseload. Many of the innovations of the Ninth Circuit have proven successful, and thus, are proven mechanisms for other circuits to implement as they encounter problems associated with growth of caseload and court size.

Indeed, even as these hearings are held, the Ninth Circuit is reexamining many of its procedures in order to experiment with innovations that might lead to greater efficiency and effectiveness. In order to do so, the Circuit has constituted a 10-member Evaluation Committee that is chaired by Senior Circuit Judge David R. Thompson and includes representatives from that

court, its district courts, the bar, and academia. The committee will examine the Circuit’s limited

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en banc process, the monitoring of panel opinions, regional considerations, and disposition times, among other issues.

The White Commission’s report proposes several creative structural approaches and additional mechanisms for grappling with many of these same issues. They seem to serve three overarching principles that the Commission has concluded are desirable in conceiving a circuit structure and operation.

In our view, however, the proposals that are designed to implement these principles create issues that suggest caution and flexibility. For instance, it well might be that legal issues of unique regional concern within a circuit can be resolved more satisfactorily by judges from within that region, though that would not seem to be a given. The much larger portion of appellate issues and caseload, however, are not regionally unique. Experience with the specific division structure proposed in the report might well reflect some achievement of greater sensitivity in resolution of essentially regional issues. At the same time, experience also might demonstrate that the price of achieving this –- occasioned by lack of inter-division stare decisis and of meaningful en banc

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review -- is a significant compromise of jurisprudential integrity of the circuit as an institutional structure.

In an effort, at least in part, to accommodate regionalism, the White Commission's report, and now the implementing bill in the Senate, S.253, propose a system that is convoluted and unwieldy. A circuit structure of multiple, semi-autonomous adjudicative units with their separate en banc processes and an appellate division to resolve potential "square conflicts" actually seems to go in the wrong direction.

A sound proposal for reform should countenance swifter administration of justice, uniform decisions and application of federal law, fewer conflicts, less cost to the litigants, and increased predictability. Splitting the decisional function within the circuit -- with little intra-circuit accountability for uniformity and precedent and with a concomitant layering of additional intra-circuit review in an effort, though likely futile, to correct these flaws -- does none of this.

We will not burden these comments with exhaustive discussion of these and other concerns. Neither will we reiterate the numerous significant criticisms of the division approach that others –- including the large majority of chief judges of the other circuits -- have addressed. Suffice to say at this point that, at a minimum, they raise yellow flags that signal caution.

The White Commission report offers Congress a vision that looks beyond the present and well into the future. Such a vision, however, must recognize and reflect on the risk of significant adverse harm, not just the possibility of improvement in certain areas. Congress must take care to acknowledge that, as creative and positive as any particular scheme or structure might seem to be, only experience will prove the point.

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Based on this realization, we urge that Congress build upon the Ninth Circuit’s tradition as a crucible for change and experimentation and transform it into a laboratory that will illuminate for itself and other circuits the rocky roads, as well as the smooth and promising ones. Congressional focus on the Ninth Circuit over the last five years seems to have provided appropriate stimulus for that circuit to be ever bolder in its rulemaking to respond to the need for sound reform. These continuing efforts and the work of the Evaluation Committee should be given a fair opportunity to succeed before a potentially wrenching structural approach is embraced.

To the extent that Congress may feel compelled to legislatively ensure continuing focus on reform within the circuit, we suggest that Congress enact legislation that will authorize the Ninth Circuit to implement sensible initiatives, including reform of the en banc process, in an effort to determine, in practice, what does and does not work.

The structure and processes of a court are not the ends. They are the means to the end of serving the principles identified by the White Commission that are implicit in its recommendations. Rather than pass legislation that would pour concrete around a new structure that may or may not prove desirable with experience, the FBA recommends that Congress permit -- even charge -- the Ninth Circuit to blaze the trail through experiment and flexibility. In this manner, the judges and practitioners of the Ninth Circuit can discover the most efficient and effective appellate structure and procedure, for the sake not just of the Ninth Circuit but of those that follow. Make no mistake -- it is the future of the entire federal judiciary and the citizens that it serves that is at stake.

In our written and oral presentations to the White Commission, the Federal Bar Association urged the Commission to note for the attention of the Congress and the President the vital importance to the health of the federal judiciary and the well-being of all our citizens in promptly filling judicial vacancies. No structural innovation will work if judges are not appointed to already-existing, Congressionally approved judicial seats (to say nothing of reasonable expansion of those seats on certain courts).

Although the House of Representatives institutionally does not play a role in that process, we recognize that Members of this chamber provide important input into both the nomination and confirmation of individual judges. In that context, we respectfully urge that Members of the House exert all available influence to ensure timely filling of judicial vacancies. Empty seats on the bench ill serve our Nation just as surely as vacant seats in the Congress.

Additionally, in our testimony before the White Commission, the Federal Bar Association discussed with the Commission the importance of focusing attention on the impact on the judiciary of the proliferation of new federal criminal statutes. Surely, there are appropriate occasions for federalization of a crime -- occasions in which a federal statute would not merely duplicate a state statute, but where some additional aspect makes federal treatment appropriate. But crimes that adequately are addressed in state courts do not belong in federal courts.

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In the course of considering the issues involved in the White Commission’s report, we urge Congress to acknowledge the substantial impact that its actions in this regard have on federal court caseloads. Before Congress passes another single new criminal statute, we urge Congress to require of itself a "judicial impact statement" that projects the additional caseload and costs that such legislation will create.

The Federal Bar Association offers these comments and suggestions in the spirit of assisting Congress in grappling with these important questions. We remain available to be of service to the Subcommittee on this and other matters concerning the courts and the administration of justice. Thank you for the opportunity to appear before you today.