STATEMENT OF
JUDGE DAVID R. THOMPSON
OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEFORE
THE SUBCOMMITTEE
ON COURTS AND INTELLECTUAL PROPERTY
UNITED STATES HOUSE OF REPRESENTATIVES
WASHINGTON, D.C.
July 22, 1999
Mr. Chairman, Members of the Subcommittee:
My name is David Thompson. I am a Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit. My chambers are located in San Diego, California. I am also Chairman of the Ninth Circuit Court of Appeals' Evaluation Committee, and it is in that capacity that I appear before you today.
The Evaluation Committee was created by the Ninth Circuit in response to perceived concerns raised by the White Commission Report. The Committee's task, however, is part of the Ninth Circuit's ongoing annual reevaluation of its practices and procedures pursuant to its Long Range Plan. The White Commission Report simply focused the task of the Committee.
It is not the task of the Committee to quibble with the White Commission Report. The strengths and deficiencies of that report have been pointed out and analyzed by others. The task of the Evaluation Committee is to accept the perceived concerns expressed in the White Commission Report and by others and to respond to those concerns.
The Committee's mission statement was developed at its first meeting on March 23, 1999. That mission is,
To examine the existing policies, practices and administrative structure of the Ninth Circuit Court of Appeals, in order to make recommendations to its judges to improve the delivery of justice in the region it serves.
The Committee - - consisting of Ninth Circuit judges from different regions within the Circuit, as well as a representative from the district court bench, a prominent scholar of the federal appellate courts, and an experienced appellate practitioner - - has met on a number of occasions over the past months. The Committee has considered a wide variety of issues within the following categories of subjects:
CONSISTENCY OF DECISIONS
REGIONAL SENSITIVITY AND OUTREACH
COLLEGIALITY
PRODUCTIVITY
THE EN BANC PROCESS
The work of the Committee is ongoing. None of the foregoing subjects has been exhausted, although the Committee has considered and given varying degrees of study and evaluation to each.
CONSISTENCY OF DECISIONS
There is no objective evidence - - none whatsoever - - that decisions rendered by the Ninth Circuit Court of Appeals are infected with inconsistency to a degree greater than any other circuit. Because of the Ninth Circuit's size, however, the perception is that there must be inconsistencies in its decisions. How could there not be with so many panels issuing so many opinions? The answer is that there is not a significant number of inconsistencies in decisions and any conflicts that have occurred have been resolved by the Circuit's en banc process. The task of the Committee, however, is to increase the Circuit's ability to recognize potential or perceived conflicts early on and deal with them immediately. To do this the Committee is considering methods that will enable judges of the district courts and practitioners to bring perceived conflicts to the Court's attention. These methods include establishing an "electronic mailbox" to receive such communications, and participating in outreach programs to contact the bench and bar throughout the Circuit through meetings and focus group encounters.
In addition to increasing the Court's awareness of any potential conflicts in filed decisions, the Committee is experimenting with gathering data from all opinions before they are filed. To do this, the Committee will draw upon the expertise of the Ninth Circuit's staff attorneys. These attorneys are divided into areas of expertise - - criminal law, environmental law, immigration law, to name a few. The staff examines all opinions sent to the clerk's office for filing - - before the opinions are filed. The staff has been asked to identify any case that (a) expressly distinguishes one or more Ninth Circuit precedents; (b) expressly rejects one or more precedents of other circuits; (c) has a dissent; (d) holds a federal statute unconstitutional; (e) holds a state statute or initiative measure unconstitutional; or (f) holds invalid a published regulation of any agency or department of the federal government. The idea is to give the staff attorneys objective criteria with which to spot potential conflicts and sensitive decisions and call those to the court's attention. Members of the Evaluation Committee, on an individual judge volunteer basis, will examine reports from the staff to determine whether a conflict appears to be real or more likely falls within those classes of cases in which a panel typically points out differences between existing authority and the present case.
Currently, judges of the Court review opinions when they are first published in slip opinion form. Conflicts may be discovered by this process. It is anticipated, however, that the specialized work of the staff attorneys applying objective criteria will increase the Circuit's ability to identify any conflicts.
REGIONAL SENSITIVITY AND OUTREACH
Responding to regional sensitivity, the Committee is experimenting with the regional assignment of judges. Under this process, at least one judge from the three administrative units in the Circuit - - southern, middle and northern - - will sit on a three-judge panel hearing cases that arise within that judge's "home" administrative region. Whether such a regional assignment of judges will prove to be a good or a bad idea we do not know. Those who think it's a good idea argue that it is important to have a judge from the area where a case arises sit on a panel that decides the case. Those who think it's a bad idea argue the concept of regional assignment violates the principle of random selection of judges, and that the law federal judges are called upon to apply is uniform national law.
Regional sensitivity also covers outreach to the communities served by the Ninth Circuit. For years, the Court has, on occasion, sat in various cities throughout the Circuit where the Court ordinarily does not sit. Those sittings, however, because of a lack of facilities and the difficulty in gathering enough cases from a particular region to fill a week's argument calendar, have not occurred as often as they might have. The Court is currently experimenting with holding more Court sittings in more cities. The intention is to combine these
sittings with bench-bar activities to develop communication with all areas of the circuit and find out if there are problems which the Court should confront.
COLLEGIALITY
In addressing the subject of collegiality, the first task is to define what we mean by that term. If the meaning is derived from the usual comment made of a large circuit that there are too many judges to permit the growth of a warm and fuzzy feeling among them, that, to put it bluntly, is ridiculous. To the contrary, judges in a larger circuit are not thrown together as often as in smaller circuits, thus reducing occasions for potential tension between differing and strong personalities.
If we mean by "collegiality" the ability of judges to enjoy each other's company at social gatherings, that is a non-problem because even the most ardent opponents can hit it off with one another for a limited time when they are not called upon to come to grips with issues of substance that divide them.
More aptly, I believe the issue of collegiality can be defined as the ability of judges to hammer out opinions, with knowledge of the idiosyncracies of each other enhanced by having sat together frequently. I believe this is the concept of collegiality expressed in the White Commission Report. It assumes that the law of a circuit will be more consistent (either consistently right or consistently wrong) if the judges of that court over a period of time come to some common understanding of what it will take to get at least two of three judges on a panel to agree to an opinion. This seems to be the aspect of collegiality that we, as a Committee, should be studying. In any event, we are proceeding with defining the term (which the White Commission referred to as "elusive") and determining how we should respond to the concern that collegiality, whatever it means, is lacking in a large circuit, and if it is, whether it impacts the delivery of justice to any significant degree.
PRODUCTIVITY
It has been said that to accomplish a big job doesn't necessarily require more people to do the work; it requires people to work smarter. The Ninth Circuit has taken this view to heart as it has coped with extreme vacancies in the number of its active judges. For a good portion of the past few years, the Court has operated with two-thirds or less of its full, active judge complement. The Court has 28 active judgeship slots, and only 21 are currently filled. Regardless of where the blame lies for this failure to provide the Ninth Circuit with the judges it needs to do its work, the Court has held its own. Are the Ninth Circuit judges working hard? You bet they are! The Ninth Circuit is among the fastest, if not the fastest, in filing decisions following oral argument. The challenge, however, is to work smarter.
The Evaluation Committee has under consideration the possibility of mounting an "assault" on the volume of pending cases. To do this, the Circuit would assemble panels of judges to attack certain batches of cases, those with similar issues or at least those falling within the same category of law. Panels would decide one after another of these cases as quickly as possible, perhaps hearing oral argument in combined cases which raise common issues. The Court is already doing this to some extent in its calendaring process, but the assault would involve a major effort by all judges of the Court, senior and active alike. The obvious downside of this is that to move judges from what they are currently doing to a new task may not result in any net gain. This proposal is currently under consideration.
Using some features of the "assault" concept, the Committee is currently experimenting with increasing the identification of cases with similar issues and assigning a lead case or cases to a particular panel, notifying the parties in all of the following cases that a decision affecting their case will be made by the lead case. We anticipate lawyers for parties in following cases may participate in sharpening the briefing and argument in the lead case. The lead-case concept concentrates the decisional process in one three-judge panel, rather than defusing it among a number of judges on different panels. Once a decision in the lead case is made, the following cases should settle, or at least they could be disposed of without extensive disposition time.
Increased productivity has already been achieved in the Ninth Circuit by the use of the Court's motions and screening calendars. Each month, a special screening panel of three judges sits in San Francisco. These special panels are deciding an average of 340 motions, and disposing of 140 appeals on the merits, every month. This is in addition to the Court's regular work. If the Court had more judges, it could increase this output. Without more judges the Court seems to be at its limit in this area, but the Committee is nonetheless trying to figure out some way to increase this aspect of the Court's productivity.
THE EN BANC PROCESS
As you know, the Ninth Circuit has a limited en banc. When a case is taken en banc, 11 judges of the Court sit as the en banc court. With the current active judge complement of 21 judges, this represents a majority of the active judges of the Court. But it does not include all of the active judges. A perceived concern is
that because all of the active judges do not sit on the en banc court, the en banc decision does not reflect the views of all judges.
In considering this perceived concern, the Committee enlisted the assistance of academic experts. These experts were drawn from a variety of disciplines. They are: Professor Linda Cohen, Department of Economics, University of California, Irvine; Professor John Ferejohn, Hoover Institute, Stanford, California; Professor Lewis Kornhauser, New York University School of Law; Professor Matt McCubbins, Department of Political Science, University of California, San Diego; and Professor Roger Noll, Department of Economics, Stanford University, California. We provided this distinguished group of scholars with copies of the White Commission Report, together with the rules, procedures and statistics relating to the Ninth Circuit's en banc court process. The findings of this group were that the Court could achieve approximately 93% representation of the views of all judges of the court if the limited en banc Court consisted of 7, yes seven judges. Increasing that number to 11 achieved a representative percentage of approximately 95%, and increasing the number to 13 increased the percentage to about 96%. This scientific report indicates there would be little to gain from the standpoint of statistical reliability by increasing the number of judges on the en banc court.
Nevertheless, the Evaluation Committee recognizes that the perception of justice is as important as justice itself. If the perception is that there should be more judges on the en banc court, increasing the number of judges on the en banc court is something the Court should consider and act upon. The Committee intends to make a recommendation to the Court on this subject at the Court's next meeting on July 27, 1999.
Another facet of the en banc process is the ease, or lack thereof, by which a case is taken en banc. Justice O'Connor has suggested that the Ninth Circuit should take more cases en banc. One way to achieve this would be to decrease the number of judges required to vote for en banc. Currently, to take a case en banc requires the affirmative vote of at least a majority of the active judges of the Court. By contrast, in the Supreme Court, certiorari is granted on the vote of four of the nine justices. Question: Should the Ninth Circuit consider adopting a formula by which four-ninths (roughly 45%) of the votes of its active judges, or some other percentage, would be enough to take a case en banc? This would require a statutory change, but the Committee is considering something along this line. As we consider the issue, however, we have in mind that increasing the number of cases taken en banc as well as increasing the number of judges on the en banc court will most assuredly increase the judges' workload - - on a Court already operating one-third below its authorized strength. This increased workload might be offset to some extent by choosing judges to sit on an en banc court to hear several cases at one time, rather than choosing judges to sit on separate en banc courts for each en banc case. To this end, the Court has adopted a procedure, on an experimental basis, for the en banc court to sit approximately quarterly throughout the year, hearing a number of cases, rather than having a different en banc court selected to hear each en banc case.
CONCLUSION
There is no "conclusion" to this statement. As stated at the outset, the work of the Evaluation Committee is ongoing. The Ninth Circuit has always been willing to re-evaluate itself and its performance, and to experiment with innovations that would lead to greater efficiency and effectiveness. Through its Evaluation Committee, this is exactly what the Ninth Circuit is doing. This can be
addressed by the Circuit with far less disruption, and at far less cost, than a whole new divisional structure.
Respectfully submitted,
David R. Thompson
Senior Circuit Judge
Ninth Circuit Court of Appeals
Chair of the Evaluation Committee