Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) delivered the following statement during the Subcommittee on Courts, Intellectual Property, and the Internet’s hearing on restructuring the Ninth Circuit Court of Appeals.
Chairman Goodlatte: This morning, the Subcommittee will hear testimony on the longstanding issue of the vastly large Ninth Circuit Court of Appeals. For the past several decades, the size of the Circuit has continued to grow far in excess of other Circuits. Twenty percent of the U.S. population now resides in this Circuit with nine states and two territories, making it twice the size of any other Circuit.
Today, the Ninth Circuit has 29 authorized judgeships, also far exceeding the next closest Circuit – the Fifth with only 17 judges. The Judicial Conference has already asked for five additional judgeships for the Ninth Circuit and more requests may be coming this summer.
As noted by Justices Kennedy and Thomas in their 2005 testimonies before the House Appropriations Committee, judicial collegiality is an important component for the consistent rule of law. Oversized circuits, wherever they may be located, undercut such collegiality by limiting the interactions of the entire circuit as a collective whole.
In our creation of a court system below the Supreme Court, Congress envisioned an appellate system that limited the initial appellate panel to a subset of the whole Circuit that was then followed by the Circuit sitting as a whole hearing any further appeals.
It is unfortunate that a prior Congress authorized the Ninth Circuit to operate with 11 judge en banc panels that masquerade as true en banc panels. This has resulted in an important component of our appellate system being lost. Although the Ninth Circuit has procedures to use true en banc panels, they have never done so despite some of the critical cases they have handled.
In response to a similar crowding issue in the Fifth Circuit, this Committee in 1980 enacted legislation to move three of its six states to a new Eleventh Circuit, and provided only a year of transition time. I highlight the fact that the legislation passed in both the House and Senate by unanimous consent. The transition required by that bill occurred smoothly.
Various groups have studied the size of the Ninth Circuit. The 1998 White Commission recommended that the Ninth Circuit not be formally split, but instead be divided into three separate adjudicative divisions. Whatever one may think of this Commission and its recommendations, it too recognized the need to do something about the Ninth Circuit by splitting it into three divisions in conjunction with a process to resolve intra-division splits.
There is not a huge logical leap between dividing the Ninth Circuit into three adjudicative divisions and dividing into separate circuits outright. And in response to those who might argue against a split by stating that size creates efficiencies, I would point out that no one has suggested combining other Circuits to make them bigger.
As this Committee moves forward on legislation addressing issues facing the federal courts this year, I look forward to addressing the Ninth Circuit in addition to other issues.