STATEMENT OF CHIEF JUDGE MARY M. SCHROEDER

TO THE HOUSE JUDICIARY SUBCOMMITTEE ON COURTS

LEGISLATIVE HEARING

H.R. 2723, THE “NINTH CIRCUIT COURT OF APPEALS JUDGESHIP

AND REORGANIZATION ACT OF 2003"

October 21, 2003

I appreciate the opportunity to appear before you today. My name is Mary M. Schroeder and I am Chief Judge of the United States Court of Appeals for the Ninth Circuit, a position I have held since December 2000. I was appointed to the Ninth Circuit in 1979 by President Jimmy Carter. My chambers are in Phoenix, Arizona. Appearing with me today in opposition to the bill is my colleague Alex Kozinski of Pasadena, California, who was appointed to the Ninth Circuit in 1985 by President Ronald Reagan.

Since I last appeared before you, the Senate has confirmed four new judges to our Court, and we are now nearly up to full strength. It has been a very long time since we have had our full complement of judges; for quite a few years the Court was down by as many as one-third of its authorized, active judgeships. With the confirmation of these new judges and the continuing innovative means of managing our caseload, the Court has actually materially reduced the time needed to calendar and decide cases. As a result, I have nothing but positive things to report on the Circuit’s conduct of its business since I appeared before you approximately fifteen months ago testifying in opposition to then pending legislation. There was no reason to divide the Circuit then and absolutely none now.

In the period since 1984, when the Court was last authorized new judgeships, there has been a tremendous growth in the Court’s caseload. It has more than doubled. Due to the advances in technology, such as the automated docket, computer aided legal research, instantaneous electronic mail, videoconferencing, along with the economies of scale that can be achieved in a large circuit, we have increased our efficiency and our caseload has become more, and not less, manageable. Both the Fifth and Eleventh Circuits have experienced similar increases in caseload growth. No one is calling for further divisions of those circuits, and no one should.

There have only been two instances of circuit division the history of our country. The first was in 1929 when the Eighth Circuit divided into the Eighth and Tenth Circuits; and the second was in 1980 when the old Fifth Circuit divided to create a new Eleventh Circuit. That division had the full support of a substantial majority of the affected judges and took place before the computer revolution which has transformed our country and the world, including our court systems.

Last year, this subcommittee held a hearing on HR 1203, the Ninth Circuit Court of Appeals Reorganization Act of 2001. It was brought out during that hearing, that circuit division would do away with important advantages that flow from a large circuit. Division would eliminate the ability to transfer district judges from one district to another within the same Circuit to deal with fluctuating caseloads. Division would also reduce the number of circuit judges available to decide the cases from the burgeoning border districts, of Arizona and Southern California, and the increasingly populous District of Nevada.

I turn to the provisions of this bill, HR 2723. It would divide the Ninth Circuit into two unbalanced circuits. One, consisting of Arizona, California and Nevada, would have 82% of the caseload of the existing Ninth Circuit, leaving the remaining 18% to a circuit spanning the distance from the Arctic Circle to Guam. That’s a lot of territory for 9 judges.

HR 2723 also attempts to address major problems that were pointed out at last year’s hearing, but it does not find solutions that will work. To deal with the real need for flexibility in the assignment of district judges, the bill would allow the transfer of district judges from one circuit to another, but only upon agreement of two Chief Judges, thus setting the stage for intercircuit administrative disputes. More important this would require both district and circuit judges to keep current in the law of two circuits rather than one.

To compensate for the paucity of judges in the Circuit containing California, Arizona, and Nevada, this bill purports to add judges; but if recent experience is any lesson, the additional judges will not be seen in significant numbers to do any good for a very long time. The average length of time from vacancy to confirmation of Ninth Circuit judges over the past ten years has been two and half years. Quite a few took longer than that. For example, it took more than four years for Judge Richard Paez’ confirmation to this Court; almost four years for Judge Marsha Berzon; three years for Judge Margaret McKeown; and currently Caroline Kuhl’s nomination has been pending for more than two years. It was 19 years before we got an active judge in Hawaii after Judge Herbert Choy took senior status in 1984.

Nor does the bill purport to do anything about the increase of costs resulting from the replication of existing staff resources, existing administrative personnel, and the construction of buildings. Construction costs for a new circuit headquarters would be most dramatic. As noted at last year’s hearing, there are courthouses in Seattle and Portland that are being renovated, yet neither of those buildings is being designed as a circuit headquarters. Indeed, substantial planning and design work is already underway in Seattle that would have to be undone, wasting precious taxpayer resources. Neither building has sufficient space to serve as a circuit headquarters. A third building, The Gus Solomon Courthouse in Portland, Oregon, requires substantial and costly seismic strengthening.

The most important point is this: our Circuit works well, and our foresighted efforts to deal with the critical judicial administration issues facing us in the 21st century are receiving national recognition. I will highlight one important project. Beginning more than five years ago, with my predecessor as Chief, Procter Hug of Nevada, the Circuit, through a key new committee, has worked intensively on improving the relationships of the judiciary and the media, both electronic and print, so that the public can be better informed about the operation of the federal courts and the difficult nature of the issues that they confront. It is important for people to see how our justice system works. Our achievements were illustrated three weeks ago when we permitted our En Banc proceedings in the California recall case to be telecast live on a nation wide basis. The lawyers were of superb quality, the issues of great public interest, and the judges well prepared. Much credit goes to Public Information Committee Chair, District Judge Alicemarie Stotler, of Santa Ana, California, and to District Judge Robert Lasnik of Seattle, Washington, who will succeed her.

The Ninth Circuit Court of Appeals has in fact permitted cameras in our appellate courtrooms for nearly ten years. This, we submit, is another illustration of how the Ninth Circuit is in the forefront of trying to make the public informed of the important role the federal courts play in today’s society.

In closing, I would like to emphasize that division of the circuit is not a partisan issue for our judges. For nearly 50 years, our Chief Circuit Judges appointed by the Eisenhower administration through the Reagan Administration, including the judge who is set to succeed me, have all opposed division of the circuit. A large majority of our judges similarly have opposed and continue to oppose division as serving no useful purpose related to the administration of the federal courts of the west. We urge the subcommittee to take no further action on HR 2723, and allow the Ninth Circuit to continue to devote its efforts to what it should be doing: deciding those cases that come before it in a just and prompt manner, and though the conscientious application of the Constitution and the laws of the United States.

Thank you.