HONORABLE CHARLES E. WIGGINS
SENIOR JUDGE
NINTH CIRCUIT COURT OF APPEALS
Statement submitted to the
Subcommittee on Courts and Intellectual Property
of the House of Representatives
July 22, 1999
S U M M A R Y
The Ninth Circuit operates well with its present structure and boundaries. The drive to split the circuit is animated by political concerns, not by a desire to improve the federal appellate courts. Therefore, I oppose the White Commission's restructuring of the circuit as well as any other plan that would divide the circuit.
The argument that the circuit is just "too big" collapses under scrutiny. As the White Commission made clear, there is no reason to believe that the circuit is too large to administer justice fairly and effectively. In addition, modern technology has shrunk the circuit. Modern jets cover large distances in minutes or hours. We also can communicate instantaneously across vast distances, rendering face-to-face meetings less important. Finally, splitting the circuit would do little to ease the travel burden that remains.
One of the prime factors motivating proponents of a split is provincialism --the belief that judges from a state should decide cases that originate in that state. Provincialism is inconsistent with the purpose of the federal court system, which strives to interpret and apply national law uniformly. Federal law should not mutate to satisfy local constituents; federal law is the same nationwide.
Political philosophy is another factor motivating proponents of a split. This is an illegitimate motive. Tampering with the federal courts because of the political or judicial philosophies of particular judges is inconsistent with the separation of powers doctrine and the independence of the judiciary.
My name is Charles Wiggins, and I'm a Senior Judge on the Ninth Circuit, where I have served for the last fifteen years. Prior to that, I served twelve years in the House of Representatives. My primary committee assignment was the Judiciary Committee, where I served for a number of years as the ranking Republican member on the Courts and Intellectual Property subcommittee. As a member of the Judiciary Committee, I was given the privilege of serving on a variety of important, special commissions; most relevant to this hearing, I served 25 years ago as a member of the Hruska Commission. Thus, I have devoted a quarter of a century to the careful study of the jurisdiction and boundaries of the several circuits. Over this time, with the benefit of subsequent study and experience, I have concluded that some of the conclusions of the Hruska Commission were erroneous, and I can no longer support them.
I have concluded, as a result of extensive study of the subject, that the overall functioning of our appellate system will not be improved by adding further circuits to the present structure, but that the problems with the present structure are traceable to the growth in population and the expansion of subject matter jurisdiction for the circuits.
Accordingly, we must direct our efforts to narrowing the subject matter jurisdiction of the circuits, and we should attempt to reduce the number of circuits, making them larger, not smaller. Therefore, I oppose the recommendations of the White Commission, as well as any other proposals that would further subdivide the existing circuits, and I urge this body to file the White Commission's recommendations without taking action.
I will not analyze the particular shortcomings of the Commission's recommendations. Other witnesses will adequately engage in that analysis. Instead, I am going to undertake an explanation of why this Commission's recommendations are before you at all. I am satisfied that there are no cogent reasons to tamper with the physical size of the Ninth Circuit, except that it is perceived to be in the political interests of its sponsors.
I. Is the Circuit too big?
As a starting point, let me confront the foremost argument for a Division, namely that the Ninth Circuit is just "too big." Proponents of a Ninth Circuit split frequently justify their position by asserting that the circuit is just that -- "too big." This, of course, begs the question: too big for what? The key question should be whether the Ninth Circuit is too large to administer justice fairly and effectively. The answer to this question is easy - it is not. As the White Commission proclaimed "there is no persuasive evidence that the Ninth Circuit is not working effectively or that creating new circuits will improve the administration of justice in any circuit or overall."
The other potential argument is that the Ninth Circuit is "too large," not because it is unable to carry out its mission, but because administering justice over such a large territory is burdensome on both judges and litigants. I disagree with this assessment as well. Over the past century the circuit has operated effectively despite its massive boundaries, and, today, the circuit's large territory imposes fewer hardships on judges and litigants than ever before. We live in a shrunken world. As technology continues its giant leaps forward, our old way of looking at large distances becomes increasingly obsolete. Our judges no longer traverse the circuit's large distances via horseback. In the early years of this century, travel was a significant burden. For example, it took about three days to travel from Los Angeles to San Diego, yet this is a minor distance in comparison to the circuit as a whole. Likewise, a trip from San Francisco to Sacramento was itself a journey of a couple of days. But at that time there was no outcry against the size of the circuit. Only now, after we have managed to shrink, practically speaking, the distances that separate one part of our country from another, do we hear that the circuit is "too big." But this argument cannot coexist with the high technology world around us. Not only has our modern system of air travel made it easier to cover large distances, but the importance of travel itself diminishes as technology advances. Judges in San Diego or Los Angeles can communicate easily and instantaneously with judges in Boise and Fairbanks via electronic mail, fax machines, conference calls and videoconferencing. With time, many of our traditional ways of conducting court business, relying as they do on face-to-face communication, will become obsolete.
It is also important to understand that splitting the circuit does very little to reduce what travel burden remains. Clearly, lawyers and judges in rural parts of Alaska, Montana or Idaho bear a more significant travel burden than do judges or lawyers in San Francisco or Los Angeles. Nevertheless, the travel burden on these parties will remain significant even after the unveiling of a circuit split. It is difficult to travel to court meetings or oral arguments from rural Alaska. But it is only marginally more difficult to travel from rural Alaska to San Francisco than it is to travel from rural Alaska to Portland, Oregon. The relatively minor additional travel time is grossly insufficient to justify a fundamental transformation of the federal appellate system.
For these reasons, I believe the cry that the circuit is "too big" collapses under close scrutiny.
II. The Problem of Provincialism
Another primary motive animating many proponents of a split I label provincialism. This is the belief that Judges from State X should decide cases from State X. Some of the key proponents of a split argue that California judges should not be deciding cases from Alaska, or Montana, or other Northwestern states. Under scrutiny, this argument shows itself, not only flawed, but even illegitimate. The United States Court of Appeals is charged primarily with interpreting and applying national law, not regional law, not state law. There is only one national law, enacted in D.C., under authority derived from the U.S. Constitution. The proponents' theory only makes sense if we believe that judges in Alaska should interpret the Constitution or federal statutes in an Alaska-friendly manner, and that California judges should interpret the same law in a California-friendly manner. But this is not the purpose of the federal judiciary. The U.S. Constitution is the same in California as it is in Alaska, it's the same in New York as in Florida. This is equally true of federal statutory law. For example, Congress did not pass, and the President did not sign, separate Americans with Disabilities Acts for Alaska and California. Thus, federal law is the same, region to region, and state to state. The goal of the federal judiciary is to achieve uniformity in interpretation, without splintered interpretations designed to favor the local constituency. National law is not an appropriate forum for regional experimentation; this is the proper exercise of state law. Where the Constitution entrusts matters to the federal government, the law applies to all and should apply uniformly to all. The uniform application of national law is harmed, not helped, when the courts of appeals are splintered into smaller adjudicative bodies in order to tailor their views to local constituencies.
Splitting a circuit to appease regional interests deprives a circuit of the diversity of background that circuits need in order to interpret and apply national law in a uniform manner. Proponents of a Ninth Circuit split often argue that judges from other parts of the circuit, particularly California, are insufficiently familiar with life in the Pacific Northwest to decide cases arising in the northwest. I disagree, first, with the claim that California judges lack sufficient familiarity with their northern neighbors to adjudicate disputes from the northern states. It is true that no judge can be intimately familiar with the culture, background, and lifestyle of every party that comes before his or her court. Some judges that have an intimate understanding of logging or fishing in the rugged northwest may be unfamiliar with the lives of inner-city Los Angelinos. The reverse is often true as well. But let us remember, federal law is not designed to appeal to a small segment of the nation, it is written to apply to all Americans. Thus, we have long recognized that more diversity, not less, is necessary for a healthy circuit. A political generation ago, the Hruska Commission was given the task of exploring the state of the circuit courts, including their boundaries. In laying out the general principles through which decisions on the circuit courts should be made, the Hruska Commission articulated a truth that we must not lose sight of today: provincialism is a danger, not a benefit, to the courts of appeals. The Hruska Commission warned that we must avoid circuit courts that "lack the diversity of background and attitude brought to a court by judges who have lived and practiced in different states." 62 F.R.D. 223, 237. The Commission rightly noted that "such diversity is a highly desirable, and perhaps essential, condition in the constitution of the federal courts." Id. As the White Commission report makes clear, this Hruska Commission finding still rings true. See White Commission Report at 49. The federal appellate courts cannot cater to local tastes or interests if they are to satisfy their function of applying a uniform body of law uniformly. That being the case, the circuit courts should be composed in a way that best accomplishes that goal, by having judges from different parts of the country and different backgrounds working together to create truly national interpretations of our national law.
The key, then, is not to break the circuit courts into small bodies that cater to local tastes. The key is to ensure that the circuit courts are comprised of judges that represent the full diversity of the circuit. The proper question is whether the different regions of the circuit are adequately represented on the court by judges from the different regions. I would argue that the present Ninth satisfies this goal. But if it does not, the remedy is to appoint and confirm judges that ensure that all regions of the circuit are adequately represented, the remedy is not to splinter the circuit into smaller bodies that cannot effectively represent broad viewpoints.
It is also important to remember that the Ninth Circuit is not the only circuit that is growing rapidly. The Judicial Conference of the United States projects that the number of filed appeals will multiply by a factor of seven in the next twenty years. See Lloyd D. George, The Split of the Ninth Circuit: Is It Really Our Best Option?, 6-Jun Nev. Law. 5. Thus, to maintain smaller 12-15 judge circuits, while still maintaining viable caseloads per judge, would require up to 40 circuits by the year 2020. Id. Maintaining uniformity in the federal law would be an almost-impossible task with such a large number of circuits. Thus, it is necessary to readjust our thinking about the federal circuit courts. The circuit courts of the future, whether we like it or not, will be large circuits. Our only hope for an effective court of appeals system lies in finding ways to make large circuits work better; the answer is not to ignore the clear growth trends and stubbornly demand the small circuits that are, more and more, becoming a relic of the past.
Furthermore, smaller circuits cannot allay the concerns expressed by many proponents of a split. Many split proponents, particularly those from the Northwest, claim that their states are dominated by California. Again, I disagree with this assertion. But even if they are right, splitting the Ninth Circuit sets a bad precedent for those smaller states that are concerned with the dominance of a larger neighbor. Splitting the Ninth may remove Alaska from under California's real or imagined dominance, but only at the expense of those smaller states left in the Ninth. Whatever states remain tied to California, most likely Nevada, Arizona, maybe Hawaii, will be more dominated by California than Alaska or Montana ever were, because the other smaller states that once comprised the circuit have left, taking their judges with them. The only answer to large state dominance in the circuits is larger circuits, where many smaller states can balance one large one. The Ninth is not the only rapidly growing circuit. Soon Congress will have to decide whether to divide a number of others. If Congress is concerned with the dominance of large states, it must set an important precedent by keeping the Ninth Circuit together. Otherwise, many other small states may soon find themselves in splintered circuits of their own, joined with a large and dominant neighbor and without any other small states that can provide balance to their circuit.
III. Political Philosophy
The final motivation behind a circuit split is even more troublesome than provincialism. There is a perception among many conservatives that our circuit is a "liberal" circuit that is out-of-touch with the Supreme Court and the other circuits. I strongly believe that this characterization is unfair. As one intimately familiar with the judges on the Ninth Circuit, I can say with confidence that our circuit is diverse, with a few liberals, a few conservatives, and many moderates. But however you view the philosophy of the Ninth, splitting the circuit for political reasons is illegitimate and would, in any case, be ineffectual in promoting the political philosophies of its proponents.
Let me first address the illegitimacy of a political restructuring of the circuit. We have long recognized, ever since President Roosevelt's attempt to pack the Supreme Court with favorable justices, if not before, that it is illegitimate for the political branches to alter fundamentally the character of the federal judiciary for political reasons. The Constitution is clear; the federal judiciary is an apolitical body, separate and equal to the political branches and unaccountable to them. Article III serves as a constant reminder that the federal judiciary cannot be played with to accomplish political whims, it cannot be punished because of a judge's political views. Elected officials have come and gone. As the old were replaced by the new, the prevailing political views on Capitol Hill often changed. Time has had the same effect on the federal judiciary. As old judicial personalities were replaced by new judges, prevailing judicial philosophies have often changed. What has remained constant throughout the century is the effectiveness with which the Ninth Circuit has administered justice. To alter significantly the structure of the federal judiciary because of disagreements with some judges' political views cuts to the heart of judicial independence, and fundamentally strains the separation of powers that animates our Constitution. Under our constitutional system, it is the interplay between the President and the Senate that places federal judges on the bench and, consequently, gives a district, a circuit, or the Supreme Court a liberal, conservative, or moderate character. These elected officials must then live with the results of the political process until they can alter the character of the courts through this political process. Over the long term, this process serves the country well.
Second, speaking practically, and setting aside the illegitimacy of restructuring the federal judiciary for political reasons, splitting the Ninth Circuit because of its perceived "liberal" character will not achieve the goals of its conservative proponents. Splitting the circuit does not replace "liberal" judges with "conservative" judges. The same judges will still occupy the appellate bench, and they will still produce decisions consistent with their judicial views. Thus, a split for political reasons cannot reduce the number of "liberal" decisions, nor can it increase the number of "conservative" ones. The theory, then, must be that a split will create a new circuit with a more conservative bent in the Northwest, while leaving California to its liberal judges. This theory is fundamentally flawed. Speaking as one intimately familiar with the court and its judges, I can say with a great deal of certainty that a Northwestern circuit will have a character very similar to that of the Ninth Circuit as it presently stands. There is no Mason-Dixon line in this circuit. Chopping California off from the Northwest will create two circuits, but it will not create a conservative circuit and a liberal circuit.
IV. Conclusion
In conclusion, the White Commission's recommendations, and any other plan to split the Ninth Circuit, are inherently flawed. First, because of a rapidly increasing population, the demand for circuit judges will continue to rise dramatically. If we are to maintain uniformity in our federal appellate system, the circuit courts of the future will be large circuits; splintering our appellate system into a multitude of small circuits can only increase conflict, not uniformity. Thus, we must search for ways to make large circuits work better, primarily by reducing the subject matter jurisdiction of the circuit courts to make case loads more manageable. Second, the reasons given for a Ninth Circuit split collapse under scrutiny. The circuit is not "too big." Though large, it allows for the fair and effective administration of justice. And practically speaking, the circuit gets smaller every day with every technological leap forward. Finally, the motives animating circuit split proposals are illegitimate. Provincialism is a misguided motive because it jeopardizes the federal courts' duty to administer national law uniformly. Likewise, splitting a circuit because of the political philosophies of some federal judges threatens the separation of powers upon which our governmental system is based. I therefore urge the Committee to maintain the circuit's present structure.