07/22/99 Committee on the Judiciary

STATEMENT

HON. PAMELA ANN RYMER

Member of the Commission on Structural Alternatives

for the Federal Courts of Appeal

House Judiciary Subcommittee on Courts and Intellectual Property

Thursday, July 22, 1999

EXECUTIVE SUMMARY

The White Commission was created by Congress to recommend structural alternatives for the federal courts of appeal, with particular reference to the Ninth Circuit. [p. 1]

Neither better case management, nor good administration, nor more judges can avoid the need for alternatives. [p. 2]

The reason is: Beyond a range of 11-17 judges, an appellate court is too big to function well because it can no longer sit together as a full court to rehear cases en banc; read and keep up with the court's output; sit with each other regularly; take other steps (such as pre-filing circulation of opinions) to assure the coherent, consistent, and predictable development of the law; and hold each other accountable for decisions rendered in the name of the court. [p. 3-4]

At 28 active and 19 senior judges (with 5 more requested), the Ninth Circuit's Court of Appeals has too many judges to function well. But instead of splitting the circuit-which is only an administrative entity with no adjudicative responsibilities and that "ain't broke,"-fix the court of appeals, which is an adjudicative body, that is. [p. 5-7]

Because of its size, the Ninth Circuit's Court of Appeals is the only court in the country that does not sit together as a full court to develop and maintain a coherent and consistent body of law. Instead, it delegates en banc functions to a limited en banc court of less than half of its authorized judgeships (11) that is randomly constituted on a case-by-case basis. Its members do not sit regularly with each other on panels. Also because of its size, the court's output is too great for all judges to read all of the court's decisions. Inevitably there is a toll on coherence and consistency, predictability and accountability. [p. 6-7]

A majority of the Supreme Court and one-third of the judges on the Ninth Circuit's Court of Appeals believe these realities are serious enough to warrant change. [p. 6]

The divisional concept responds to the principal concerns about the "Ninth Circuit" by producing a judicial unit that is small enough to function well yet also provides a mechanism for maintaining uniform law on issues where consistency throughout the west is important. It also respects the regional roots of the circuit system by assuring that a majority of the judges in each division reside in a district served by that division, but it retains an appropriate federalizing focus through assignment of judges from elsewhere in the circuit, a common set of rules and procedures, and the Circuit Division which may resolve squarely conflicting decisions on issues where uniformity matters to the circuit. [p. 9-10]

The divisional structure prescribed in S.253 is sensible and workable. [p. 10-11]

Asserted "disadvantages" are not difficulties but strengths. [p. 11-19]

A circuit-wide en banc process is not necessary as the divisions will sit as a full bench to decide issues of exceptional importance and to maintain coherent and consistent law in the division. Divisional decisions should not bind other divisions because that would put the court of appeals back to square one-a condition that ultimately cannot work. [p. 12]

Replacing the circuit-wide limited en banc with a divisional full court en banc will increase-not decrease-judicial participation and accountability. [p. 12-13]

The Circuit Division does not add a cumbersome new level of review, as there are no more levels than are presently available and both the parties' and the Circuit Division's work can largely be done on the existing record. Nor is the Circuit Division a collection of "Super Circuit Court Judges," since its power (to resolve square conflicts only) is considerably less than a limited en banc court's, which may take a case in order to reconsider and then resolve cases of exceptional importance, cases that pose inter-circuit conflicts, and cases that create an intra-circuit conflict. [p. 13-14]

Once up and running, the divisional structure should make it easier to organize calendars as assignments will be more stable, and it should not be more complicated to support or staff as the divisions will continue to be administered centrally. (p. 15-17)

The problem of putting parts of California into different divisions is "seriously exaggerated"; inconsistency and forum shopping opportunities exist already and will not be exacerbated by a divisional structure. That said, there is no magic to the particular divisional arrangement the Commission thinks is preferable, except that it will work now and for the foreseeable future. California could be a division by itself, but a "California" division with an adequate number of judges to handle the caseload would immediately be too large to function well. [p. 17-19]

As the Chief Justice of the United States has said, the divisional proposal for the Ninth Circuit Court of Appeals "addresses head-on most of the significant concerns raised about that court and would do so with minimal to no disruption in the circuit's administrative structure." [p. 19]

S.253 should be enacted. [p. 19]

I appreciate the opportunity of testifying in support of the recommendations of the Commission on Structural Alternatives for the Federal Courts of Appeals which, with respect to the Ninth Circuit, are reflected in S.253, the "Ninth Circuit Reorganization Act," that provides for restructuring the Court of Appeals for the Ninth Circuit into adjudicative divisions. I was privileged to serve on the Commission chaired by retired Supreme Court Justice Byron R. White, and to work with N. Lee Cooper, the immediate past President of the American Bar Association; Hon. Gilbert S. Merritt, former Chief Judge of the Sixth Circuit and Chair of the Executive Committee of the Judicial Conference of the United States; and Hon. William D. Browning, who was Chief Judge of the District of Arizona as well as a member of the Judicial Conference of the United States and the Judicial Council of the Ninth Circuit.⁽¹⁾

In the wake of decades of concern about the size of the Ninth Circuit and a rider to the Appropriations Bill in 1997 that would have split the circuit,⁽²⁾ the Commission was established to study structural alternatives for the federal courts of appeals-with particular reference to the Ninth Circuit. Although the Ninth Circuit was a special focus of the Commission's work, its charge was broader and our recommendations with reference to the Ninth Circuit grew out of the study we undertook of the federal appellate system as a whole, its present condition and future capacity.

The most significant fact that emerged is the growth in caseload that federal courts across the country have experienced in recent years. Appellate courts have been disproportionately affected because the number of circuit judges has not kept pace with the growth. To an extent, caseload pressures are exacerbated by unfilled vacancies, but the problem is more systemic than that.

Better case management is a band-aid that helps alleviate, but does not cure, the problem. Appellate courts (including, in particular, the Ninth Circuit's) have responded to increased demand by adding staff support, tracking cases differently depending upon their difficulty, providing ADR, borrowing judges, and taking advantage of technology to coordinate consideration of related issues. At the same time, fewer appeals are orally argued and fewer result in fully reasoned, published dispositions. With all that has been accomplished, however, most courts appear close to the limit of their ability to manage the caseload more effectively and efficiently-yet still render decisions that are, and are perceived to be, fairly and fully considered by Article III judges.

Curtailing jurisdiction could also relieve caseload pressure. Indeed, all members of the Commission believe that restoring and retaining a more appropriate balance of federal and state jurisdiction is critical to enabling the federal courts to perform their core constitutional functions in the future. That said, we cannot realistically count on changes in jurisdiction to solve the caseload problem.

Another palliative is to increase the number of judges, but the problem with this solution is that at some point an appellate court becomes too large to function effectively as a single judicial decision-making unit. Unlike judges on a district court, appellate judges must work together to develop the law of the court's jurisdiction. Two-thirds of the circuit judges throughout the country (including one-third of my colleagues on the Court of Appeals for the Ninth Circuit) believe that the maximum number of judges for an appellate court to function well lies somewhere between eleven and seventeen. Beyond this range there are too many judges

To sit together as a full court en banc

To read the court's output

To sit with each other regularly

To take steps such as pre-filing circulation of proposed opinions to assure coherence and consistency, predictability and stability; and

To hold each judge accountable for decisions that are rendered in the name of the court.

Historically, when the number of circuit judges needed to deal with a circuit's increasing caseload has gone beyond a tolerable number, the circuit has been split and two new circuits have been created, each with an acceptable number of judges to handle the caseload of the newly aligned circuit (at least for a while). This happened with the "old" Fifth and Eighth Circuits earlier in the century. Inevitably until now, splitting the circuit has been seen as the way to solve the conundrum of the Ninth Circuit, thought by many to be too large in terms of judges, caseload, and population.

But there are downsides-and limits-to circuit splitting. For one thing, to make more, smaller circuits tends to Balkanize federal law and adversely to affect the federalizing function of a federal court of appeals. For another, everyone to look at the question has agreed that no regional circuit should have fewer than three states. This is so for reasons both of policy and practicality: a federal appellate court should be more than a single state court since it declares federal law that speaks beyond state boundaries; as such, its judges should come from, and be appointed by and with the consent of senators who are concerned about the interests of, more than one or two states. In addition, the only forum where inter-circuit conflict can be resolved is the United States Supreme Court. This makes splitting a single large state (California, for example) between two different circuits especially undesirable. Finally, there are obvious costs, both to the fiscal and legal order, in creating an entirely new, essentially duplicative, apparatus.

Thus the question Congress posed to the Commission: Are there structural alternatives for the federal courts of appeals, in particular the Court of Appeals for the Ninth Circuit? The answer is yes. Instead of splitting a circuit that "ain't broke," fix the appellate court that is.

A court of appeals is different from the circuit, and the difference is critical to the White Commission's analysis. Even though an appellate judge is a "circuit" judge and the court of appeals is commonly called the "circuit" court, the circuit is not the court of appeals or vice versa. A circuit is an administrative entity that is the governance mechanism for all courts and judges within the geographic area it covers-district courts, bankruptcy courts, and magistrate judges as well as the court of appeals. A circuit has no adjudicative role; adjudication is entirely a court function. Therefore, to the extent there are perceived problems with a court of appeals on account of the fact that it has grown too large or would be too large if an adequate number of judges were appointed to handle the caseload, the court of appeals can be restructured without the circuit being split to achieve it.

In the case of the Ninth Circuit, no one seriously questions how the circuit performs its administrative functions. The circuit's size allows for flexibility in assignment, economies of scale, and a common body of law for the Pacific Rim and the western part of the United States-all of which are positive values. But many circuit judges, lawyers who practice within the circuit, and a majority of justices on the United States Supreme Court question how the court of appeals performs its adjudicative functions.⁽³⁾ It is significantly larger than any other collegial court in this country,⁽⁴⁾ and there are serious concerns about creeping inconsistency, lack of predictability, and the absence of review of decisions by all judges on the court.

Alone among the circuits, the Ninth Circuit's Court of Appeals does not sit together en banc, as a full court, to develop and maintain a coherent and consistent body of law. By statute, federal appellate courts may go en banc for three purposes: to decide issues of exceptional importance, to resolve intra-circuit conflict, and to avoid inter-circuit conflict. Instead of a full court en banc, the Ninth Circuit's appellate court has a "limited en banc." The limited en banc court is constituted on a case-by-case basis, consisting of the Chief Judge and ten judges who are randomly drawn for the particular case. Whatever the limited en banc court decides is the law of the circuit, unless a majority of the full court votes for a rehearing by the full court-a possibility that exists in theory but has never happened in practice. In addition to limiting full court review of panel decisions to eleven judges, only 57% of the Ninth Circuit's appellate judges read all or most of the opinions of the court. This is a far lower percentage than in other circuits with smaller courts.

I believe a smaller court that can sit together regularly in panels, that can convene as a full bench to correct panel error and to maintain a body of coherent and consistent law, and that can monitor all of its output, is better for the administration of justice than a bigger court that cannot. The benefits of a smaller tribunal can be obtained without splitting the circuit, but it will take structural change to make it happen. S.253 appropriately requires the Court of Appeals for the Ninth Circuit to be restructured into adjudicative divisions, as the White Commission recommends.

The proposed arrangement creates a Northern Division for the Districts of Alaska, Idaho, Montana, Oregon, and Eastern and Western Washington; a Middle Division for the Districts of Northern and Eastern California, Guam, Hawaii, Nevada, and the Northern Mariana Islands; and a Southern Division for the Districts of Arizona and Central and Southern California. Each division will consist of seven to eleven judges,⁽⁵⁾ a majority of whom are resident within the region served by the division. Judges can be drawn at random from outside the division to provide judge-power as needed, and to cross-pollinate the divisions with judges from around the circuit.⁽⁶⁾ Thus, each division will have a regional connection without losing a federal perspective. At the same time, each division is small enough for every judge to read every decision and for the division to sit comfortably together as a full bench en banc, thereby authoritatively declaring the law (and correcting errors) for districts within the division. Because this might eventually lead to divergence among divisions, the Commission recommends (and S.253 provides for) a Circuit Division to maintain circuit-wide uniformity on issues where consistency is important to the circuit but on which the divisions have taken squarely conflicting positions.⁽⁷⁾ In this respect the Circuit Division has discretion only to break a "tie" in the interest of consistency. The Circuit Division has no discretion to rehear issues of exceptional importance or to avoid inter-circuit conflict; these functions repose solely in the divisions, sitting en banc, or in the United States Supreme Court where certiorari would be available (as it is now) from panel decisions, from divisional en banc decisions, and from Circuit Division decisions.

I believe this structure responds to the principal concerns expressed about the "Ninth Circuit." It reduces the size of the judicial decision-making unit, and replaces the circuit-wide limited en banc-which does not work like a true en banc works-with a full division en banc in which all division judges have a voice and a vote. With these changes, each judge will no longer be "charged" with the output of the whole court, but can concentrate on the output of the division. All circuit judges can again be expected to read all decisions that speak for them. In this way, inconsistency and lack of predictability will be less likely and coherent development of the law more likely.

In addition, the divisional structure accomplishes three other objectives that the Commission believes are worthwhile. First, it preserves flexibility for the future. Unlike circuits, divisions and their composition can change up, down or sideways as changes in caseload require. Second, the divisional structure produces a judicial unit of suitable size yet provides a mechanism for maintaining uniform law on issues where consistency throughout the west is important. Finally, it makes the federal appellate court in the Ninth Circuit less remote to those whose lives and fortunes depend on its decisions. To some extent tension between the regional roots of circuit organization and the federalizing function of its court of appeals is inevitable, but the structure proscribed in S.253 goes a long way toward reconciling the two.

The divisional structure is sensible and workable. For sure, it has not been tried before in the form proposed and there is understandable reluctance on the part of bench and bar alike to experiment with any structural alternative.⁽⁸⁾

After all, we were brought up on stare decisis. However, the important thing is what furthers the administration of justice in the long run. The Commission's is not a perfect solution. Nor can there be one, with a state as large as California as part of the mix. However, it is a viable solution that is preferable to splitting the circuit or to letting the court of appeals grow to 40, 50, 60 or more judges. No one suggested during the course of our study how that many judges can decide cases as a court, for panels speak with authority for the court as a whole only so long as the full court is perceived to be capable of speaking for itself if it disagrees.

I am, of course, familiar with the concerns that have been expressed about how the divisional concept would work. I understand where they are coming from, because a known quantity-even a flawed one-may seem safer than an unknown one, which surely is imperfect as well. However, I disagree that the "disadvantages" are genuine difficulties.⁽⁹⁾ In reality they are strengths of the divisional structure that correspond to weaknesses of the status quo. In my view, the "disadvantages" do not come close to outweighing the advantages of the divisional structure.

The perceived disadvantages are that divisional decisions would not bind other divisions and the circuit-wide en banc would no longer exist to maintain and develop circuit law; that the Circuit Division would be an additional and cumbersome level of appellate review, resulting in additional expense and delay; the present participation of all appellate judges circuit-wide in resolving circuit law would be eliminated, and practical problems of assignment would ensue; and "splitting" California would produce different interpretations and enforcement of the law within the state. However, as I see it:

1. A circuit-wide en banc process is not effective and is not necessary to the divisional concept, since the divisions will sit as full courts to decide issues of exceptional importance and to maintain coherent and consistent law within the division. Divisional decisions should not bind other divisions because otherwise, the Court of Appeals for the Ninth Circuit is back to square one: All circuit judges would have to try to read and monitor all decisions of all divisions, and participate in the rehearing process for all of the court's output (at least up to the time a case goes to a limited en banc court).

2. The divisional structure replaces the circuit-wide limited en banc for issues of exceptional importance with a full court divisional en banc in order to increase participation of judges in that function. The limited en banc process permits no participation in the outcome by judges who are not drawn for a limited en banc court. Because not all judges have a say in it, the limited en banc is too limited to result in a decision that truly speaks for all judges on the court. It is also a time-consuming process that is regarded by some judges as not worth the candle, particularly since the composition of the limited en banc court (unlike a true en banc) is not known when voting occurs. By contrast, under the divisional structure every divisional judge will both participate in the en banc process and be on the en banc court. In this way issues of exceptional importance will be resolved for the division by every judge on the division. This generates greater participation and closer attention to the outcome. While judges will presumably continue to review petitions for rehearing and be able to make sua sponte calls for en banc rehearing, circulate memoranda in support of or in opposition to going en banc, and (if active) vote on whether to take the case en banc, their participation will not stop at this point as it may do now. For under the divisional structure, if a matter does go en banc, each judge will be assured a place on the bench.⁽¹⁰⁾

3. Although the Circuit Division may appear at first glance to add a new level of review, it really doesn't. Today in the Ninth Circuit, a panel decision may be reheard by the panel, by a limited en banc court, and by the full court (something which hasn't happened, but could). All of this can take place without the parties wishing it to, and they can be asked to file supplemental briefs and must show up for reargument-which adds expense, and the process can unfortunately take a long time-which means delay for the litigants. Under the divisional structure, a panel decision may be reheard by the panel, by the full division, and by the Circuit Division but only if the panel decision (left in place by the full division) or the en banc decision squarely conflicts with the settled law of another division. In other words, there are precisely the same number of possible layers of review under the divisional structure as under the present limited en banc system.

In any event, if the Circuit Division takes a reasonable view of its mission-which we must assume that it will-then it is unlikely to have that much to do, for it will be the rare case that qualifies.⁽¹¹⁾

Inconsistency alone is not sufficient for Circuit Division review. There must be square and significant conflict. Each division will take care of its own inconsistencies, and inconsistencies between divisions are inconsequential (because they are not precedential outside the division) unless they directly (and deliberately) occur with respect to issues on which uniformity throughout the circuit is important. Thus, the Circuit Division's jurisdiction will not be triggered unless some division creates a square conflict on an issue where consistency matters.⁽¹²⁾ Even then, additional work for the parties (and the Circuit Division) should be minimal because the petition for rehearing in the division will have raised the conflict and the Circuit Division will already have the benefit of a fully developed record and two reasoned (but conflicting) opinions.

Accordingly, the Circuit Division is not at all a collection of "Super Circuit Court Judges."⁽¹³⁾ While serving on it, judges may have to read more petitions for rehearing than their colleagues, and upon occasion will get to break a tie. But if anything, a judge serving on the Circuit Division will be far less of a "super judge" than a judge who serves on a limited en banc court at present. Unlike limited en banc judges, Circuit Division judges will have no power to reconsider issues that are exceptionally important, or to correct wrong decisions; that will be for the divisions to do, sitting together in a true en banc.

4. At first, the divisional structure will no doubt be more complicated to staff because it is different. But there should be no more difficulty in randomly assigning a judge from Billings to Pasadena for eight panels per year for three years than in sending him randomly to Pasadena, or San Francisco, or Portland, or Seattle, or sometimes Anchorage or Honolulu during the same period. In either case that judge will have to be scheduled along with other members of the panel.⁽¹⁴⁾

The same support the Clerk's office now provides to the Court of Appeals for the Ninth Circuit will sustain the new divisional structure as well. Some internal adjustments will no doubt have to be made, but they are minor and have no significant effect on the way the court of appeals does business. Rules will be the same circuit-wide. Motions, screening, and calendaring will also be essentially the same except for being reorganized by division. The clerk's ability to identify related issues will continue to be helpful to divisional panels, especially to the extent they try to avoid conflict-as they should. Divisions would sit (and hear argument) where the court now does and the Clerk would have offices where she has offices now.

The particular divisional arrangement in S.253 works logistically. It might work better with a 13 judge cap because the caseload could be more evenly apportioned, and of course it would be easier with 33 judges than 28. But assignments are necessarily complicated at present, and making them more permanent should not add to the burden.

5. As Justice Stevens points out, the problem of splitting California between two circuits is "seriously exaggerated." It follows that the problem of putting parts of California into different divisions is also "seriously exaggerated." Justice Stevens explains:

It is, of course, true that occasionally there will be conflicting interpretations of both State and Federal issues that will require resolution either by use of the certification process for the former, or by our Court's review of the latter, but such temporary uncertainty is not new to the law. It would differ only in degree from the comparable uncertainty that attends conflicting rulings on state court questions in different California jurisdictions, conflicting rulings on federal questions in different federal districts within California and in different federal circuits today. In my considered opinion, the importance of this concern pales in comparison with the disadvantages associated with a circuit that is so large that even the most conscientious judge probably cannot keep abreast of her own court's output.

In short, to put parts of California into different divisions does nothing to California that California does not do to itself. California's system allows for the same inconsistency and the same forum shopping that it is said the divisional arrangement would foster. One state court of appeal is not bound by the decisions of another state court of appeal. Therefore, state law (and state court determinations of federal law) can be different depending upon where in the state one lives or does business. By the same token, the federal system has itself long tolerated inconsistent determinations of federal law by different circuits. These inconsistencies survive until settled by the United States Supreme Court, but in the meantime persons who travel or do business in different circuits simply deal with the problem. The divisional concept is unremarkable in this respect. It would neither create a forum-shopping opportunity that does not currently exist, nor subject Californians to the possibility of disagreement on the law (including constitutionality of state-wide initiatives) that does not happen already.

Even though it is possible that resolving an intra-state inter-divisional conflict might entail an extra step in the unusual situation where one of the California divisions refuses to defer to a prior divisional decision on point, the conflict would get resolved and, I believe, efficiently. Today, if a federal district court in Los Angeles decides an issue of state or federal law differently from a federal district court in San Francisco, and if the issue is appealed, it can be resolved by the Court of Appeals for the Ninth Circuit, although it may take a limited en banc court to do it. Under the divisional structure, if the same conflict were to persist after divisional review, it could be resolved by the Circuit Division. As seems clear, no alternative involving California is perfect because the "big state" problem is not easily solved.⁽¹⁵⁾ Ultimately I do not believe that it can be solved without structural change, for it is unlikely that California's contribution to caseload will greatly change. The options are at least equally, if not more unattractive. To split California between two circuits leaves the United States Supreme Court as the only forum for resolving inconsistency, whereas to put the state in different divisions of the same circuit allows for the conflict to be resolved within the circuit. Similarly, to make California its own division is problematic because the caseload and number of judges required to handle it would start the "California" division off at (or over) the top of the maximum number of judges a decisional unit should have to function well. However, recognizing the disparate caseload impact that would follow, in the short run it would be possible to make California a single division, with Arizona and Nevada in another, and the remaining states and territories a third.

No matter how configured, the divisional proposal resolves the debate about the Ninth Circuit. As the Chief Justice says of the divisional proposal for the Ninth Circuit Court of Appeals, it is "better than merely a compromise between those who have advocated a split of the circuit and those who argue for the status quo. It appears to me to address head-on most of the significant concerns raised about that court and would do so with minimal to no disruption in the circuit's administrative structure."

I therefore urge your favorable action on S.253.

1. While I am testifying as a member of the White Commission, I am also a United States Circuit Judge for the Ninth Circuit and was a district judge for the Central District of California. I currently serve on the Executive Committee of the Court of Appeals and am Administrative Unit Judge for the Southern Unit as well as a member of the Judicial Council for the Ninth Circuit. I have previously been a member of the Executive Committee of the Ninth Circuit Judicial Conference and was its Chair.

2. The rider, passed by the Senate, would have split the Circuit by establishing a new Twelfth Circuit of Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, Guam and the Northern Mariana Islands, leaving California and Nevada in the "old" Ninth.

3. Letters written by the Chief Justice and by Justices Stevens, O'Connor, Scalia, Kennedy and Breyer to the Commission are available on the Commission's web site but are attached for convenience as Exhibit A to this statement. Survey results are summarized in the Commission's Working Papers.

4. "Collegial" in this context does not mean friendly or sociable or enjoying one another's company. Nor does it connote that judges get along personally or agree on the law. Rather, a "collegial" court is one that must work together, over time, to develop a consistent, coherent, and predictable body of law for the jurisdiction.

5. You may wish to consider whether a cap of 13 is preferable given the size of the caseload and its distribution within the circuit.

6. Judges drawn for out-of-division service would not move to that division; they would simply travel to that division's place of holding court, as circuit judges do now when they are assigned to an argument calendar that convenes at a location where they do not live.

7. The Circuit Division would be composed of the Chief Judge and six to twelve other judges drawn equally but randomly from each division. They would serve on the Circuit Division for a term of three years as well as their own division.

8. As the Commission's Final Report explains, the Ninth Circuit's previous experiment with regional calendaring was so totally different that no pertinent conclusions can be drawn from it. Likewise, the "old" Fifth Circuit's experience is dissimilar in that it operated through divisions only in transition. But the step is nevertheless not radical in the Ninth Circuit, for it already has Administrative Units, Northern, Middle and Southern.

9. Chief Judge Hug has succinctly summarized them in his Analysis of the Final Commission Report (January 11, 1999), which I believe has been circulated to your Committee and to other members of Congress.

10. Chief Judge Hug's Analysis suggests a related disadvantage, that resolution of conflict by the Circuit Division would be by thirteen judges, not representative of the full court or even proportionately representative of the divisions. The short answer is that 13 out of 28 is more "representative" than 11 out of 28, which is how the limited en banc court is currently composed. But the real point is that the Circuit Division (unlike the present limited en banc court) will have limited power-its only authority will be to weigh in on one side or the other of a square conflict. That assignment could well be done by fewer even than 13 because two entire divisions will already have fully considered the issue.

11. Only 10% of limited en bancs in the last ten years have been to correct a conflict.

12. The Commission assumed that all divisions will be bound by current Ninth Circuit law even though S.253 does not require continuation of Ninth Circuit precedent, because it is reasonable to suppose that the Ninth Circuit Court of Appeals would so provide by rule.

The Chief Judge's Analysis suggests there may be two other, related glitches in the statutory scheme. One is the inability of the Circuit Division to modify the first conflicted case when it has become final. However, this is no different from an en banc court's power under the present regime. A limited en banc court may only decide the case in front of it, but once it does it overrules prior inconsistent authority. The same would be true of a Circuit Division decision that adopts the second inconsistent opinion; that rule would become the law circuit-wide and prior authority (including the first conflicted case) would be overruled. The second problem has to do with what happens if a division overrules an existing precedent, in that it would not be binding circuit-wide unless there is a case in another division that is in conflict and can be modified. However, the division that overruled existing Ninth Circuit precedent (that is binding elsewhere) would itself create a conflict that the Circuit Division could resolve.

13. See Analysis of the Final Commission Report by Chief Judge Procter Hug, Jr. (January 11, 1999), p. 22.

14. The Chief Judge's Analysis suggests two other problems. First, that resident judges within a division who are assigned to another division would have no say in the en banc consideration of panel decisions within the division of their residence. While true, this doesn't matter. Where a judge's chambers is located is irrelevant to the law of the division on which that judge serves. Each division will speak for every judge sitting on the division and every judge sitting on the division will have a say in its decisions. It will also be the case under the divisional structure that a majority of the judges on each division will always be a resident in the division, yet no individual judge is (or should be) guaranteed a spot on the division in which he or she lives. The second problem has to do with designation of the presiding divisional judge, which might turn out to be a brand new judge or a judge who is not a division resident. However, the senior active judge traditionally presides on all panels, no matter how recently confirmed. Since presiding at divisional en bancs is the divisional presiding judge's only role, it seems logical for the senior active judge within the division to be so designated.

15. California produces approximately 4,000 appeals annually, or 60% of the circuit's appellate work. Thirteen of the authorized judgeships are held (or may be held if present nominees are appointed) by California residents.