Transcripts For CSPAN3 Ninth Circuit Court Of Appeals Judges Testify On Court Restructuring 20170316

Myself. On march 29, 1973 the last combat troops were withdrawn from vietnam. When they returned to the United States these veterans like many who returned earlier were greeted with a cold and at times hostile reception. Looking back more than 50 years at the experience during the vietnam war and return home, billy two feathers who served with u. S. Army wrote my return to the states was typical of several people i talked to. Family and friends would say been a while. Others would call me names that i wont repeat. Kenneth bizby who served in vietnam wrote when i got back to my hometown no one seemed to notice that i had been away nor did they care. These accounts and others record the National Sentiment on a personal level. Their stories remind us that most returning veterans were not even acknowledged for their sacrifice and that many suffered because of it. While the nation has worked to correct this mistake over the last few decades there is more congress can do to honor our Vietnam Veterans while they have an opportunity. Today the committee has a chance to recognize, honor and thank the Service Members of the vietnam war and their sacrifice by supporting s 305, the vietnam war veterans recognition act. This bill would amend section sd to encourage display of the u. S. Flag on National Vietnam war veterans day which is honored each year on march 29. Introduced by senator toomey it passed by unanimous consent last month. Any recognition these veterans receive now is insufficient substitute for recognition when they first arrived back in the United States. While nothing can remove the pain surrounding the hollow reception one can hope that theirsic fice which continued well after the war will help ensure that this nation never abandons. It is my pleasure to recognize the gentleman from michigan for his opening statement. Thank you, chairman goodlatte for bringing up this timely legislation and i urge its swift passage. S 305 would amend current law with respect to the display of the American Flag by encouraging the display of the flag on march 29 in recognition of National Vietnam war veterans day. Over the course of that long and difficult war more than 3 million service men and women served in vietnam while some may have disagreed with the direction and purpose of that war, no one would question the sacrifice and courage of these dedicated Service Members. Currently we recognize for flag display purposes Veterans Day National korean war, veterans armicist day among other days. It is therefore a fitting tribute to those who served in vietnam that we honor them by displaying the American Flag on march 29, the day on which the last United States troops left vietnam in 1973. I hope our commitment to these and all vietnam includes insuring that they have sufficient health care and benefits that they have earned through their service. I again thank the chairman for bringing up this timely legislation and urge a swift passage. I yield back. Are there any amendments . Thank you, mr. Chairman. I rise in support of this legislation. I think it is very important that we do this to honor the veterans of the vietnam war and acknowledge a terrible mistake made. Some of us were in opposition. We thought it was that should never now and should not have been confused with respect and admiration and support for the valor of the american troops, those who volunteered and those who were drafted and fought in that war. They served valiantly and deserve all our support and honor which has nothing to do with what we think of the policy decisions made by the people then in congress or then in the presidency. That is one discussion. But the troops who fought in that war, who served their country, who show their patriotism, who sacrificed for our welfare regardless of how intelligent or unintelligent the policies may have been we must respect and celebrate their valor. We should certainly do it now. I certainly support this legislation. I yield back. Mr. Chairman. What purpose does the gentle woman seek . I certainly dont want to make an amendment or changes to this because this is an important recognition. I would note, however, that we had marines helping in the saigon until april 30 when the embassy fell and saigon fell to the communists. This is the last markup. We dont want to send it back to the senate. I dont know the march 29th date may be the official last day for u. S. Troops but there were certainly marines there on april 30. I just wanted to note that as part of the hearing because they also need to be honored. With that i would yield back. Chair thanks the gentleman. To strike last word. I want to associate myself with the gentle lady from california. The fact is that there were people until the last day including helicopter pilots who ferried off the last of the people that got out at that time and beyond. For those who served throughout the entire process inindo china i want to spoeassociate myself that. I also believe it may be a vaguely different way that we should always honor the service of the people who answer nations calls regardless of which multitude of president s and congresss made decisions to send them there. That was true then and true today. I thank the chairman for bringing this up. Are there any amendments to s 305 . Question is on the motion report the bill favorably to the house. Those in favor will say aye. Those opposed no. The bill is ordered reported favorably. Members will have two days to submit views. This concludes the business of the markup for today thanks to our members for attending. We will move immediately into a hearing. So we hope you all stay for that. As soon as we can get our witnesses seated we will begin that hearing. If the judges would do us the honor of taking their chairs, thank you. The subcommittee on courts intellectual property and the internet will come to order. The chair is authorized to declare a recess at anytime. We welcome everyone today to todays hearing examining ideas for restructuring the 9th circuit. I recognize myself for a short opening statement. It has been more than a decade since we last considered a bill to, if you will, split the 9th circuit. The 9th circuit is the largest circuit of the 12. Additionally the 9th circuit hears 20 of the appeals and some would say from this side of the day s throughout the various states that also is the most reversed circuit. Not withstanding that, it is my circuit. It includes my state. I am deeply concerned today and will be until we find resolution that stripping away the other states of the 9th circuit would still leave california as, by far, the largest circuit. So when we come together today we come together with two challenges. One, that there is no way without splitting a state to have at current california not be, if it were all by itself, the largest circuit. Secondly, we have wrestled with this for decades. During that time the 9th circuit has grown and today with four vacancies there is five more requested. If all were granted the 9th circuit would be 34 judges. We are honored to have some of those judges with us today. I am here to say i am pleased to see that the 5th circuit in 1980 splitting was done in less than a year, no ill effects and passed the house and senate by unanimous consent. I hope today to have the same result to whatever we propose. I now, it is my pleasure to recognize the Ranking Member of the full committee, mr. Conyers. Thank you, mr. Chairman. Members of the committee, todays hearing provides an important opportunity to examine whether the 9th Circuit Court of appeals is able to adequately perform its duties as it is currently structured. The hearing takes on an added importance in the wake of a series of decisions in the 9th circuit and elsewhere overturning President Trumps muslim refugee ban. Instead of coming to terms with the legal flaws with his own executive order, President Trump has chosen to attack the 9th circuit which he has said is in chaos and frankly in turmoil. Those are quotes. Last night after learning of the hawaii courts decision again rejecting his ban, he said people are screaming to break up the 9th circuit. You have to see how many times they have been overturned with their terrible decisions, end quotation. Of course, none of what the president is charged about the 9th circuit is true. The 9th circuit is as well organized as any in the country. The very few 9th circuit cases the Supreme Court takes up, a significant portion are overturned. Thats true for every circuit, several of which are overturned at a higher rate than the 9th circuit. Overall less than one10th of one percent of the 9th circuit decisions are overturned by the Supreme Court. The reality is this is not a new debate President Trump has brought us to. It is one that we have had for decades. Although i will not speculate why there continues to be such an interest by some of my conservative colleagues to divide the 9th circuit there are several points we should keep in mind. To begin with, splitting the 9th circuit would not bring justice closer to the people. Instead, it would likely result in further delay, reduced access to justice and wasted taxpayer dollars. If the 9th circuit were divided there would not be sufficient judicial resources particularly with respect to addressing the significant case load demands of the district and bankruptcy courts. Although slative proposals introduced this Congress Take differing approaches to dividing the 9th circuit and creating a new 12th circuit inevitably all of these have one common problem. Such restructuring would result in a significant financial cost to american taxpayers because millions of dollars would be needed to construct the new circuit headquarters and for other costs. Another concern i have is that splitting the 9th circuit would do little to improve judicial efficiency and none of the legislative proposals would actually resolve the heavy case load problem because the clear majority of the 9th circuit cases come from california. Any circuit that includes all of california will still have the largest number of judges and appeals and serve the largest population. Finally, i am particularly skeptical of any legislative propos proposal intended that certain entities those oppose or question the need for such a legislative fix. Dividing the 9th circuit is opposed by a majority of the judges in that circuit as well as by the bar including the American Bar Association itself. In fact, the White Commission which congress established the issue concluded in 1998 that splitting the circuit was impractical and unnecessary. So i ask my colleagues to very carefully listen to the Witnesses Today and join me in opposition to dividing the 9th circuit. I thank you. With that we recognize the chairman of the full committee for his opening statement. Thank you, mr. Chairman. This morning the subcommittee will hear testimony on the long standing issue of the vastly large 9th Circuit Court of appeals. For the past several decades the size of the circuit has continued to grow far in excess of other circuits. 20 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 9th circuit has 29 authorized judgeships far exceeding the 5th with only 17 judges. The judicial conference has asked for five additional judge ships for the 9th circuit and more requests may be coming this summer. As noted by justices kennedy and thomas in their 2005 testimony before the House Appropriations committee judicial collegiality is an important component for consistent rule of law. Oversized circuits wherever they may be located under cut such by limiting the interactions of the entire circuit as a collective whole. In our creation of the court System Congress envisioned an appellate system that limited the initial panel to a subset of the whole circuit followed by the circuit sitting as a whole hearing any further appeals. It is unfortunate that aed the circuit to operate with 11 judge on bank panels that masquerade as true on bank panels which has resulted in an important component of the appellant system being lost. Although the ninth circuit has procedures to use the true on bank panels they have not done so despite the critical cases they have handled. Similar to the crowding system in the 5th circuit, they have moved three of the six states to a new 11th circuit and provided a year of transition time. I highlight the fact that the legislation passed in both the house and the senate by unanimous consent. The transition required by that bill occurred smoothly. Various groups have u studied the size of the ninth circuit, and the White Commission recommend had the ninth circuit not be formally split, but instead, divided into three adjudicative divisions. Whatever you think of the commission or the recommendations, it, too, recognized the need to do something about the ninth circuit by splitting into three divisions to resolve the intradivision splits. There is not a huge huge to divide it into three adjudicative districts, and for those who argue against the split by saying that the size creates efficiencies, i would point out that no one has suggested combining other circuit s s to make them bigger as this Committee Moves forward on the legislation addressing issues facing the federal court s this year, i look forward to addressing the ninth circuit in addition to other issues. Thank you, mr. Chairman, i yield back back. I thank the chairman. I am sorry. We recognize the gentleman from new york, the chairman of the Ranking Member of the subcommittee mr. Nadler for his opening statement. Thank you, mr. Chairman. Mr. Chairman, proposals to split up the ninth Circuit Court of ap appeal s has have been floated 1941 at least. While it was a bad idea at the time of the pearl harbor, it are remains a bad idea today. Proponents of splitting up the ninth circuit usually match the arguments with concern over the size, and the detrimental effect on the judiciary, and that it is so large that there is adm administrative waste, and procedural delays and the judges cannot Work Together to produce a rational jurisprudence, but however, the facts say otherwise. It is true that the ninth is the largest of the 11 Circuit Courts of appeal with the caseload and the area covered and the last contains alaska and gaum and marianna islands, it is true that they have to travel, and yet we have planes that can cause less pain than it was in 1941. With california as the anchor state in the circuit, unavoidable to cover a large population. Unless you split the state in half which is disastrous in the point of the judicial coherence, the large circuit is just a fact of life. But no evidence that the size has impeded the ability to administer justice to the people within the jurisdiction. To extent the of a higher backlog of cases compared to other scircuits, more resources can be assigned to help that. And just yesterday, there was a are recommended add iing an additional five circuit judges to reduce the workload. And also, a variety of ways to help promote administrative efficiency. And also, the frequently made claims with the wild and the unpredictable rulings, and even the often cited circuits, this is the most diverse sir can cut is wildly misleading. Giving the sample size to ever reach the Supreme Court, it is hard to conclude much from the higher reversal race, and the higher rate of reversal that the ninth faces with the Supreme Court in many generations. Indeed, the worst number cited by the critics is 2. 5 reversas s per 1,000 decisions. What this debate is really all about is that the conservatives dont like the more liberal rulings that emerge from the ninth circuit. They believe they can manufacturer a new circuit to get other conservative results which is a dangerous matter. Like clockwork, we see it with the splitting because of cases whether it is taking the words under god out of the pledge of allegiance or the temporary up uphold stay on President Trumps refugee ban, the circuit has long been in the sights of politicians. Last night, President Trump said at his campaign rally, people are screaming break up the and quote, people are screaming break up the ninth circuit, and i will tell you what, that ninth circuit, you have to see. Look at how many times they have been overturned with the terrible decisions, up quote, but to manipulate the political ends that you seek is highly inappropriate. Just as there is a nationwide movement to stop the gerryman r gerrymanderi gerrymandering, we should resist this form of jerry magerrymande well. The opponents of splitting up the ninth circuit will have a vast array of reasons why it must be broken up, but none of the arguments withstand the skruttny, and for them to withstand the harms they cite would not achieve the results they want. Any proposed 12th circuit would maintain a significant basis, and all while introducing the unsern certainty into the law a great taxpayer expense. While splitting it up is unnecessary and unwise, i appreciate having the opportunity to hear from all of the distinguished witnesses on this issue. I would note that all three of the judges appearing today like a majority of the ninth circuit oppose the split as does the American Bar Association and numerous practitioners and others who have studied this issue in great depth. I look forward to the judges testimony, and the testimony of the other witnesses and i yield back the balance of the time. I thank the gentleman. All members may have five legislative days to have the Opening Statements and other comments placed into the record. Without objection, we will waive other ones. Before i do that,ly recognize the gentleman from texas for the purpose of the unanimous consent. Thank you, mr. Chairman. As a member of the full committee, i ask unanimous consent to include a letter in the record with a attachment as to how the cases would be broken up if it were california in the ninth circuit and all of the other states in the circuit. Without objection, placed in the record. We have a distinguished panel here to today and the witnesses written statements will be entered into the are record in their entirety and i will ask you the summarize to give your statements in five minutes or less. I will not hold you to it, but the light will indicate that your time has expired. Additionally, excuse me, i want to thank the judges who came and in some cases stayed for the protracted period through the snowstorm to be here today. I know it is a personal sacrifice and i very much appreciate it. Before i introduce the witnesses, et it is the Committee Rule that all members be sworn, so would you all please rise, raise your right hand to be sworn. Thank you. Do you solemnly swear or affirm that the testimony that you will give to dday is the truth, the whole truth and nothing but the truth . Please be seated. And let the record indicate that all witnesses answer ed in the affirmative. Our Witnesses Today include the honorable sidney thomas, chief judge of the kout of appeals for the ninth circuit, and honorable carlos layea, the ninth Circuit Court of appeals, and the honorable alex kaczynski, circuit judge for the United States ninth circuit. You guys are critical to this of course. And we are also joined by the Professor John eastman of Chapman University school of law, and professor Brian Fitzpatrick of the Vanderbilt School of law. A and with that, we will go straight down starting with you, chief. I think that you have to turn the mic on to see the button in front. Thank you, mr. Chairman, it is a privilege to be here and thank you for the opportunity to testify. Im syd thomas and it is my privilege to serve as the chief judge of the ninth Circuit Court of appeals, but my views today are my own. The ninth circuit is effectively and innovatively manage and p provides service to the District Courts. Splitting the circuit would have a devastating effect on the western United States and cause case delay and cause expensive and unnecessary and wasteful r bureaucratic duplication. A circuit split would be costly. Under the current legislation proposals the new headquarters in phoenix could cost an estimated 136 million and required renovations in seattle could reach 50 million, and construction for new space for missoula and anchorage and those facilities would have to be staffed yearround, but only used a few weeks a year. A circuit split would result in two clerks of court to staff and executives and staff and the creation of two circuit libraries and none of that expense is necessary. Over the past decade, federal judiciary has made a concerted effort to save the taxpayer money by cost containment, and consolidation, and shared Administrative Services, kr creating a new expensive duplicative and less burt kratic structure would be a giant step in the wrong direction. When this is discussed, much of the focus is on the court of appeals, but the court of appeals is only a small part of the circuit. It includes 14 District Courts and bankruptcy courts and pretrial probation offices and these courts do the nuts and the bolts work to affect the largest number of citizens, and circuit divisions would substantially reduce the support for them. We provide support for cyber security, and disability and wellness, and resources, and court policy and many aspects. For example, the ninth circuit provides districts in need. When arizona was in a state of judicial emergency with a skyrocketing criminal docket, we could dispatch visiting judges from within the circuit to solve it. We do it a all of the time in the circuit. Since 1999 we have made 200 visiting judgeships to arizona, and 100 to idaho, and 100 to the Southern District of california, and 18 judges took cases to resolve 1,500 cases in the california eastern district, and we would not have sufficient judicial resources to mount this effort. The ninth circuit is aggressive in finding ways to are find money, and reduce the physical space, and saving the taxpayers clr 7 million in rent, and the capital review process, and the electronic voucher system have saved hundreds of thousands if not millions of dollars and the list goes on, but most of the initiatives would not be possible if the circuit were split because of the lack of personnel and money. On the appellant side, the split could increase the delay and not reduce it. The ninth circuit is known for the tin know vative and effective case management. And for example, the ninth circuit appellant resolved over 4,000 motions and 7,000 fee vouchers that otherwise would have been assigned to the judge s. The staff motions attorneys, and disposed of over 5,000 noncontroversial motions through clerk orders that would otherwise be handled by the judges. On the staff prositions, there were almost 1,400 merit appeals, and 1,300 habeas, and the pro se analyzed 5,000 cases for the jurisdictional defects. Last year the mediation settled 1,135 appeals, and that exceeded the output of many of the smaller circuits and the year before, around 1,500 appeal, and we have had Great Success with t the mediation efforts. The continuing mediation efforts rising out of the energy cases has resulted in 8. 7 bi 8. 7 bill be refunded to the consumers and the businesses and the local governments. We have been able to achieve the success, because the ninth circuit has economy of scale, and Critical Resources which are lost in the circuit split, and one cannot divide one budget between two circuits to put substantially more tasks on the desks, and significantly reduce the staff support, and expect the faster resolution of appeals to the public. And a division would create more appellant delay, and significantly reduce the support to the jurisdictions and wastefully expensive. Can with do better . Yes, we can, and we will continue the try, but the best way to effectively administer the justice in the west and keep the justice to the people is to keep the ninth circuit h intact. Thank you, mr. Chairman. Thank you. Judge bayer. Members of the subcommittee and mr. Chairman, thank you for hearing the subject of the restructuring. Im carlos span and i have been serving since 2003 by my nomination of president george w. Bush were kconfirmed by the senate and my views here today are my own. Based mo based on my 13 years on the Appellant Court i am opposed to splitting. I would like to talk about the three topics of the advantages and answer a couple of criticisms. First, i point to the great advantage of the business and the professional communities in having a unile form body of law which covers the nine western states and the pacific islands, and it binds the courts and the litigants to the whole western earea, and this is minimizing te risk of law and intellectual property, and trademarks for instance, and the maritime trade, and the labor relations, and employment discriminations are in phoenix and seattle, and you could grasp this as an abstract advantage, and who has standing to sue on the Copyright Infringement claim is now uniform in Washington State home of the Microsoft Corporation and California Home of the Google Corporation than fox silver case. Whether an employee qualifies as a whistle ploeer whether he has or has not informed the spe superiors and informed the securities and Exchange Commission causing the same elements of proof for San Francisco and tucson. And mr. Newcombe who is the manager of the threetime world series champion San Francisco giants pointed out the you have made the case. Laugh laugh pointed out the practical effect of this predictability in his opposition to splitting the circuit back in 2006. A practical illustration of the advantage of the single western circuit would be the intellectual Property Rights and litigation over the last 30 years between microsoft based in seattle and the companies such as Apple Computer and sun microsoft systems based in the silicon valley. While this litigation proceeded before the trial courts in the Northern District of california, we were reassured by the fact that the District Court there would apply the same inter pretations of the court law because they were all part of the same circuit. The size gives foreign and domestic traderers confidence against the perception that they will be hometowned. Indeed, the advantage of a large circuit may point to a different sort of restructuring of the Appellant Courts nationwide which is a concentration of the circuits rather than the disbursal, and the size depends on the size of being framed and how tax laws are best achieved by a larger circuit. The second reason why i support retaining the present size is that judges who come to circuit with different backgrounds and experience, and this is especially true in environmental law cases where the judgment of someone who has lived and pr practiced and judged where the trees involved are actually grow growing or the streams that flow actually are, and the jobs of harvesting the trees and controlling the streams are affected. That helps to determine the analysis and the outcome. This predictable and uniformity of background and thought of judges would suffer under balkanization. And the most frequently heard criticism is the large geographic size. Mentioned by member nadler that we no longer travel between the circuits on the overnight trains and we dont wait for the postmen to bring us the decisions in the memoranda. So the size of the circuit is not a cause of any delay or any malfunction. Also as mentioned by the chief judge, the costs are unnecessary. So in conclusion, you should take into consideration the views of the people on the ground. Ask the judges of the ninth circuit if they want to be split, and you will find a very small minority saying should be split. You are overwhelming majority of the people directly involved are against the circuit split and thank you for giving me this opportunity to share my thoughts with you. It is my pleasure. Judge kaczynski. Mr. Chairman, members of the committee, real honor to be here, and real pleasure to join my good colleagues chief Justice Thomas and bayer, and my professor mr. Eastman, and my former intern mr. Fitzpatrick are and i thought that he would have learned more, but i will see if i will set him straight. And now i will rely on the written testimony which the burden is the aspect of the hearing that deals with bringing justice closer to the people. Which after all, et it is an objective that we all must share. The bottom line of the testimony is that the ninth circuit is at at the cutting edge of bringing the justice closer to the people for two reasons. One, because it was so large that our courthouses are so much further away for most of the people now in our circuit, and so we have been forced by necessary to use the advantages of modern technology to bring justice home, to make it accessible. We also have, because we are a large circuit and so many judges, a concentration of resource, unlike other courts who have smaller staffs and then have to duplicate the executive offices, and the clerk offices and the other staff, and we have Central Staff unify and resources to buy excellent equipment. Now, what this means is that if you want a litigant in the ninth circuit, you dont have to travel from honolulu or saipan or billings or fair banks or nome or phoenix to see the arguments in your case. See the judges. What you can do is to that as long as you can have a computer, you can watch the arguments anywhere in the world and in realtime and see the hearings archived, and we are the only circuit who does that, and the reason is that we have a commitment, and the concept of the open access. We also have a commitment to the idea that we are there to serve the people, and our function is to make it easier and cheaper for parties and the lawyers to take advantages of our reresources that we have available. This is a commitment that we share, and this advantage is going to be lost if were a smaller court. The concentration of resources that we have would be gone. I think that the case speaks for itself and i need not belabor it. And i want to talk about three points in the hearing, chairman goodlatte mentioned collegial y collegiality, and i want to r t reiterate, because when the circuit was split in the fifth, every single judge wrote congress and said that we must be split, but that is not the case in the ninth circuit, with two or three exceptions, literally, a few exceptions of what i have fingers on the right hand, our judges are strongly united under the idea that we should remain a sickngle circui this involvespointed by different president s, and whether it is by president clinton or me pappointed by president bush. And so that is true of all but two or three. And that should Say Something to the functionality of the court that the actual people who are involved in operating the court do not believe that the split would be of benefit, and the committee ought not to impugn upon us a fact of collegiality which does not exist. Also, the chairman also mention ed the fact that no one has talked about melding the other circuits into others, and so Cliff Wallace has been a advancing there for years, and mr. Chairman, i commend to the committee that other circuits would benefit, and other regions of the country would benefit from having the circuits the size of california. Many circuits like the first, second, third, hardly as large as to serve the state the of california would benefit from being brought together and of course, the fewer circuit conflicts of the Supreme Court to handle. You said that you would not stop me, but my time is up, and i would like to leave the idea on the table that splitting the ninth circuit is going into the wrong direction, and what this committee needs to be looking at is bringing together smaller circuits to help them to gain the efficiency and the collegiality that the ninth circuit now enjoys. Thank you. Would you put up the map of the combined circuits, please. Before the next two witnesses, your honor, sips you brought it up, we have the existing circuits including the first, second, third and which are six, four teen and four teen judges and then one less after the ninth circuit additions. A as we are going through the remainder, i do want to make sure that it is sort of a theme for today as that if the ninth circuit is too big, then the others are too small, and this would be the combination p the ninth circuit were to be left at 34 judges which is what it is recommended to go to, you would have 33313129 by combine thoerg circuits, including the first, second, third combined. The gentleman from new york told me that the sophistication of the new york cases might be a problem for the maine folks, but we will cover that at a later hearing. Mr. Chairman. Yes . If you combine the first, second and third, you would still i assume call it the second . We will do whatever the gentleman from new york wants to get his vote. However, professor eastman, on that point of privilege, we will continue. Chairman issa, thank you and members of the committee thank you for taking up this issue, and i testified before the senate more than a decade ago about the same subject, and the problem is the same as it was then. I was struck by chief Justice Thomas, and judge baes as well. I am good to hear my friend judge kaczynski talk the same about it. And so for the collegiality, we are not talking about the judges between themselves, because i have a great deal of respect for almost all of the judges, and a normal collegiality in the way we use that word, but this is something more specific, and something that Harry Edwards described in a law review, the common interest of getting the law back, and it is that collegiality that suffers the larger the course goes. We is a lot of evidence for that and testimony to that effect over the years. First circuit judge Frank Coughlin said that you can talk about Old Fashioned collegiality when the judges sat with each other. That is the type of the collegiality which can checks the tendencies of some of the judges to fly solo as judge coughlin described. We know the judges on that court. And once that the court cannot overturn him most of the time, and an extremely high number of justices. If you run the math, 3,964 come by nations of the judge panel, and add manage the senior judges, it is a whopping 17,296 different combination of the threejudge panels. The judge talked about a uniform law out there in the west, and i practice out there, and sut more like the wild west. My clients ask me what the prediction is going to be on how the ninth court rules on their case. I would say i have no idea, but maybe a better assessment once i see the random draw of the panel. Those draws are extraordinarily high in the number of combinations that you might get, and that fosters a coherent body of law. You know, if we do break the circuit up, and we end up with the conflicts on the important issues like the patents that judge bayer talked about, we might add some cases back to the Supreme Court docket, because some have complained it is too light, and so maybe that is a good thing. What i am looking for is the ability to get the law right. Extraordinary number of opinions that come out, it is hard for the practitioners to stay up with everything that is going on in the court, and i know that it is hard for the judges as well. That necessarily kree yates intrascircuit conflicts, and often times in the nuance situations that manifest themselves for years or decades, because of the large size. As the White Commission reported, consensus of the appellant judges throughout the country, and including a third of the ninth circuit judges, a while ago thought that the court of appeals, being a court whose members must work collegially overtime functions better with fewer judges than currently authorized for the ninth circuit. The White Commission concurred that the optimal size of the court is 7 to 17 which is roughly half of the size that we have now on the ninth circuit. It is not just the reversal rate. I want to take it up, because my colleague will talk about the statistics on the reversal rate. As judge posner pointed out, the ninth circuit had the highest summary reversal rate by far than any other court in the country. That is the outliers and the judges that can fly solo, and go unchecked with the lack of familiarity, and the meetings with each other. And so judge joe scanlon who i understand it submitted the written testimony to court, and i hope it is going to be entered into the records notes that 1 of 10 of the decisions taken up by the supreme are summary ri are rejected and with know that the court is ideologically divided and that means that there is something going on, and outlier effect, and judges flying solo on the ninth circuit which does not exist on the other courts of appeals. It is correlated and perhaps caused by the size of the court. Thank you very much. Thank you. Professor fitzpatrick. Mr. Chairman and committee j y you do have to remember that your old mentor is there and he wants you the strike somal balance of what you remember him teaching you as you dispel his opinion . Well, yes, i thank you for having me, mr. Chairman, and i was an exintern for the judge kaczynski, and clerked for his colleague judge canlscanlon. And the ninth is a fine circuit, but i believe that there ares s i have no question that if we create another sir ut cut, we have to spend money to create a new apparatus. But there are benefits to splitting the ninth circuits as well and the benefit today that i want to talk about is thele alluded to by my colleague mr. Eastman here. If we go to the smaller districts, we are reducing the number of outlier decisions that the courts make. And when i say outliers, i mean it in a conservative way. Smaller courts will lead to fewer outlier decisions. First, talk about the ninth circuits reversal rate. This is good evidence that the ninth circuit is issuing more outlier decisions. It is disputable that they have the highest ree ver sal ratef of any court in america, and it has been that way for many, many decades. When people dispute the number as chief Justice Thomas did in the testimony, they talk about the winloss rate at the Supreme Court, and given to the cases that the Supreme Court has chosen to review, the ninth circuit win loss is sometimes the best and sometimes the worst, but it is not how the serious empiricists and scholars measure the reversal rate. We look at the number of how many reverses to appeals no. Doubt that the ninth circuit is out of alignment, but it is based on the based on the percentage of the number of cases they hear. One of the written comments i have was written by judge pozner who is one of the well respected judges in the american judiciary in chicago looked at how often the ninth circuit was summarily rejected and quote, the ninth circuit has the highest reversal rate. And again, quote, the ninth circuit is at the top. And he is not the only one. I cited my written testimony, a study by dr. Kevin scott, a phd in Political Science who now works for the federal judiciary, and works in the Administrative Office of thor courts, and he too, looked at the rereversal rate, and what did he find . The frequency in which the ninth circuit is reversed is a statistical anomaly, and the ninth circuit is on its own island. Why . Because size is the reason. Math tells us that size will cause a circuit to issue more outlier decisions. Why . Because it is simple statistics. Circuits decide the cases in three judge panels, and the judge panels are randomly selected from the larger group. And you can do the numbers, and i do it in my testimony, the possibility of selecting a pabl of three with the majority of outlier judges decreases. I put up a graph of my written testimony for you. The math is not disputable. When i first raised the mathematical arguments several years ago, the last time that the split was on the table, the ninth circuits own sta statistical consultant professor david kay, a law professor at penn state, and now at arizona a state, and he wrote a note to my mathematical facts. He likes the ninth scircuit, bu he did not disa agree with the math. Professor kay said that fitzpatricks mathematics have bearing on the optimal size of the Appellant Courts. Quote, to the extent that the panels of the extreme judges are undesirable, a smaller court is superior. This is the ninth circuits own statistle cal consultant agrees that the smaller courts are superior. Nothing here has anything to do with the republicans and the democrats. It is about the optimal design of the Circuit Court. The smaller courts lead toless extreme panels. It is impossible to overcome the math with a good process. The court could see the outlier case, and reverse it. The ninth circuit is too big for the on bond, and so too many so they select 11 and you can have outliers making up the on bang personnel just like you can have three on the panel. And the on bonk personnel does not work, and bigger districts like the 11 with and the 5th arn the on bonk policies. I want to appreciate the statements statements will be recognized in the record. And for myself, i ask that the map be put back up on the board. You can pick the combined one, thank you. It will get there. And judge thomas, in your opening statement, you very wisely pointed to bureaucracy, efficiency all of the benefits that you feel bigger has. Does that mean that perhaps like judge kaminsky you would support combining these for similar sizes forrer the others to essentially reversing when the fifth was split, because right now, it is still smaller than your circuit would be if we put it together. Well, if the design is from scratch, my answer might be yes, but we have established the circuits with the established jurisprudence, and combining it now is going to wreak more havoc on the rule of law, and the existing administrative structures than if we were starting. Let me follow up. If you disagree with putting them back together, and so first, the ip credibly inefficient with six judges, and very small and represents a small population, and a small amount of caseloads. By comparison to the other circuit, and i appreciate na New Hampshire and maine have different law than new york or massachusetts, but the fact is you have mentioned that the judges, a vast majority, support staying together, and unanimously or near unanimously the judges of the fifth circuit supported breaking up. Without trying to be disrespectful, this is not your business. The business of the size of the courts, if efficiencies, and the financial contributions that the appropriators give is disproportionately our obligation. So when you say that it is on one hand more efficient to run the ninth circuit, and professor fitzpatrick says it is highly reversed, then i have a bit of ambiguity to deal with in my position which is that you say it will cost me a few Million Dollars to break up the circuit. Professor, i dont nt know if y have done this, but what does it take for the Supreme Court to take up the cases, and what are the costs for the ones they dont have time to take up and reverse and that are decided wrong and the bad law. So i would look and say, that i appreciate the dollar figures that you gave us, but those dollar figures dont add up to one bad case that is decided to go to the Supreme Court with a typical patent case is 8 or 9 mi million for each side now if it is going to go all of the way to the fed circuit, and supreme cou court, it is more. The cases that you get wrong have legal fees greater than you have described for the cost of having a few more courtrooms, wouldnt you agree . Well, i have to respectfully disagree, mr. Chairman. Have you looked at the legal bills in the case before you cost . Oh, i know they are tremendous legal bills, but first of all we are not the most reversed circuit and we have not been in the roberts erare ra, and the year before the most, and the year before the 10th, and then the year before that the 5th, and then the year before that, the 4th. Is it true that they have been doing better lately . Well, it is true they are the least reversed. And any given year, a court have a higher reversal rate, but over the run of the last year, the ninth circuit is 44 more often reversed than the next closest circuit. And let me put my questioning on the piece of the history, and the White Commission mentioned multiple times, the final report from december of 1998 and in that byron white, the justice does not call for the break up of the circuits, but he does call for the effective breakup of the circuit, because he said that we propose the ninth Circuit Court of appeals be organized into three regional adjudication divisions, alaska, idaho, montana, oregon, and eastern and western washington. The second one, the middle division would be the northern eastern california, gaum, hawaii and nevada, and northern marianas. And the southern is arizona and the central and the Southern Districts of california where i reside and basically the recommendation is to break your circuit into three circuits so that there is regional adjudication, and do you support that today . I do not. And okay, so when people are refer ing to the White Commission, he did want to break up the circuit, but in a way that you could have one set of law regardless of where it is decided, but it would achieve what professor fitzpatrick is talking about and i want to come back to you, and the time is limited so i want to get at least the organizational, and if we were to have the large ones or the smaller one, the 12 or with the existing ones, the only way to get the equivalent of the ninth circuit to be broken up to meet the requirement s ths that mentioned, the smaller, and the more predictive and not to have the random, and the numbers were staggering, i must admit, so we will have to assume that if you are following whites recommendation, and created three regionals, you would get all of the advantages that judge thomas is talking about the large and the administration, but you would get on bonks that are a able to meet and no also than 11 judges, and threejudge panels from a definable group that is similar to the other circuits today, is that correct . I believe you are absolutely right, mr. Chairman. If anyone has any further comments before we go on to the the other members, i will give you a chance, because today, when i look at one side of the body that must decide saying to break it up, and then i look at the history of the recommendation not taken in 1998, and the testimony, i find that the middle ground between break it up, and dont break it up may very well be the long ago forgotten white report. Any comments by any of you . Yes, of course, judge. As an old trial lawyer in california, let me tell you why the White Commission recommendation is not practical. If you divide california into northern and southern california, when you a apply the California Law in the diversity cases as we do all of the time especially in the insurance cases, we will have one interpretation of the California Law in San Francisco and another one in los angeles. That is not good judicial administration. Okay. By the way, when i read the white report, what i saw was that it did not prohibit the re regions from being split if they had a northern around southern split, but i appreciate that. And we go to the ranking full committee, the honorable gentleman from michigan. Thank you, sir. Back to you, judge thomas. Did i get you correct when you said that supporters claimed that the reversal rate of the ninth circuit is much higher than for other circuits . Because, during the Roberts Court era, the most reversed circuit was the sixth circuit. That is true. So, now the advocates for splitting the ninth circuit is arguing that the circuit is the nations largest in terms of geography, and population and corresponding workload. Why shouldnt these factors warrant dividing the ninth circuit . Well, the current proposals dont change the dont solve the land mass problem. If you are creating a 12th that hassle 0 or more of the land mass depending on the proposal with 20 of the cases, because the traditional budgets are caseload driven, it would krcree the largest land mass with the smallest amount of money of the circuits in the nation. And correspondingly california would be underfunded having to duplicate the resources with a diminished budget. It is not a good the answer, but. [ laughter ] okay. Judge bay, when congress considered splitting the fifth circuit to the 11th, and the overwhelming number of judges and members of the bar supported splitting the circuit, and is this the case with the ninth circuit . Mr. Conyers, just the opposite is true. I think that you have in the record the 2006 letter signed by the judges there, and i was a judge there, and with the xoechgs three of the some 45 judge ss at the time, because o the senior judges also signed that letter, there were three judges who are presently also in favor of the split. As far as i know, they are the only ones in favor of the split. They have written letters to the committee, judges klinefield and scanlon and tomlin, and as far as i know the rest of the judges are against the split or agreeing with mr. Chairman who believes that it is none of their business to make it your business. Let me turn to judge thomas again. What are some of the adverse effects of splittinging the ninth scircuit on the provision of justice . Well, certainly, the increased delay on the appellant level and not increased, because we would be spliped of the ad mmin administrative innovations, and you cannot afford them. And you would have to divide the budget, and reduce the staff, and put more work on the judges desks administratively and expect them to decide the cases more quickly. The Central Point is that we would lose the delivery of the services to the public, and served at the District Courts and the bankruptcy courts. We have a consolidated effect of that. And so i have reported the smaller districts benefit ing from the advice of how to best construct the buildings. So the districts would suffer enormously if the circuit were divided. Thank you. Would you, if the ninth circuit were split, would judicial resources be duplicated . Certainly with the administrative level they would be, because we would have two clerks of court, and two executive staff, and the list is on, and it is an enormous infrastructure for the circuit to have, and so you would be unnecessarily duplicating the function, and then reducing the ability for those offices to deliver the services, because they would be doing the same functions in each circuit. And for example, you take the immediate yayer or thes now, and we have eight immediate mediato settle more of the outputt than some of the smaller circuit, and we could not afford that in smaller circuits ark and we know that from practice, the smaller circuits would not be as effective, because we would lose the Critical Mass that we would need. Yes, and finally, what are some of the costs attendant to division of the ninth circuit . Well, you start with the construction costs, because we dont have places sitting to hold court by way of legislation, so we would have to build a new headquarters in phoenix, and we have estimated that cost to be 128 million, and the renovations of mcnamora, and 2 million each for las vegas, and mazzulla and anchorage and that is the start of the costs, because obviously, increased travel when you have a circuit extending from the Arctic Circle to the sonoran dessert, and no center of gravity. Overall, the duplication would cost a significant amount of money. And finally, my last question to professor fitzpatrick, does california have the greatest share of cases among the various states and territories comprising the ninth circuit . By far, kr yes. And so could the ninth circuit be reconfigured into two circuits having roughly the same caseload without splitting california . No. I really dont see why california could not be split. There is no reason why federal law could vary from one state to another as it is currently. Thank you, mr. Chairman. Great questioning. I now go to the gentleman from georgia for his questions. Thank you. In looking at this, i have more questions. The question is that i want to move to how we go about splitting it. Justice thomas, we were discussing the last answer, but can you clarify better what we were talking about as far as the costs, because we have sort of from the question, i am not sure of the answer, but the last answer about costing in these places, and being all over, and could you clarify it for me briefly . Certainly. The current proposals call for t the creation of a 12th with a new headquarters in phoenix, and secondary headquarters in seattle. We dont have space there right now. We dont have space to hold court or visiting judge space or the space for the circuit staff. So we asked the staff and the gsa to come up with a cost estimate in phoenix, and they came up with 128 million and the same for seattle because of upgrades and infrastructure needs, and we would have to move out federal agencies from the courthouse, and the estimated cost is 54 million, and that would obviously change, but there is no place to hold the Circuit Court hearings in the settings like missoula. You can borrow a courtroom for a day, but a week . You need a courtroom, and the visiting judge chambers and infrastructure, and we have that situation in honolulu, and fortunate to be able to share with the bankruptcy court. But you need the staff to secure the facility, and based on the caseload, it is a couple of times a year. I appreciate that, but the odds of creative here, and businesses and we ought to change places all of the time, and i am not sure of the size, but i want to go to this, and one of the things that i am hearing going to the 11th circuit when it split, and i want to go back toing something that is often talked about is that the reason that we cant do the on bonk is because the justices said Good Technology and making use of it, and why cant you do that well, explain to me, if you have the good ability, and you can bring them in from the interchange, and we do it in classrooms all of the time. Is there another reason that they dont want to do the true on mot hearings . Well, it is available on the ninth to have a on bonk hearing, and as the chief Justice Thomas said in his comments that they dont need to do it. One of the things is that they dont see it is beyond me. When i served as clerk we had 11 on bonk and 11 political appointees. So i think that that if they did go full court on bonk, the reversal rate could fall because they would catch the outliers better. So if you did more on bonk, you might see the need to split the circuit, because i believe it is something that we need to look at. The dwe,question, and i want toe back, because one of the different current bill, and different ideas and not gist the ones that are mentioned pending, and what factors are priority of deciding oregon and washington going to the new ninth circuit and which states would go to the 12th as we would look forward to that . Well, it is a hard question, and lot of factors into the analysis. One of the important factors is to try to get the circuits as close as possible in terms of the number of judges for the number of reasons that we are discussing here to cut down on the number of panels to make the on bonk meaningful. If you are keeping california with the circuit, and the analysis is that you need 30 suggest pors that circuit still. I would encourage the committee to encourage a division in california either the White Commission, but i would say that it is really the elephant in the room. And i want to open it up quickly or get back to us as well, and looking back at the iowa bill that was effective in the georgia in the 5th, and the 11th when the circuit split. And what lessons could we learn from that if we had the transition to move ahead to the ninth . Well, the division of the fifth lessonsb, there was a logical division e geographically, and a proportionality of case load, and places of sitting intact, and all of the suggejudge s sup it. So it was seamless. No proportionately of the split. Either in land mass or population, and the judges do not support it. It would lack ju juries prude tall. And the judges made that decision, and it is a logical one at the time, but not lodgicl for us. I appreciate the judges opinion on that, and think they whether the judge is on the 5th or the 11th agreed or not comes down to the mat er of concern, but not also the matter of opinion on this body as well. I appreciate you coming, and with that, mr. Chairman, i yield back. We go to the Ranking Member of the subcommittee mr. Nadler. Thank you. And last night, Justice Thomas, President Trump attacked the ninth turmoil. He said people are screaming to break up the ninth circuit. You have to see how many times they have been over turned with their terrible decisions, unquote. Now less than 1 10 of the ninth circuits decisions are over turned. Do you think that gives weight to the president s opinion to the president s characterization or do you think its important that courts stand up to the executive when necessary . Judicial independence is important and i know this committee has recognized that. I would not want to comment on the president s remarks. Okay. Many supporters of legislation support a split because they perceive it to be a liberal court. If politicians were able to gerrymander new court that would be in line with their beliefs, what impact would this have for the rule of law and for the federal court system as a fair and neutral arbiter . I think it would diminish that and i hope and trust this committee would not be engaging in that kind of endeavor. I trust the chair that he would not. Thank you. And testimony was, i think it was your testimony before that it would cost 130 million to split up the circuit. Can you give us an idea what you could do with 130 million if we dedicated those fuchbds towards increasing availability of Legal Services for low income civil litigants in the ninth circuit . Well, one of the or the United States as a whole. One of the great problems we have with the Appellant Courts in the ninth circuit kout is prose litigants. We have been engaged in the prison litigation reform effort to solve the problems in the courts and providing prison staff with more effective and efficient way of doing things. We have one in sacramento and a task force. If we could use 130 million that would go a long way to solving that problem. Thank you. Judge, supporters of splitting up the ninth circuit say it lacks predictability. Professor eastman eluded to this before. Given that only 19 out of almost 12,000 cases that were terminated in all of 2016 were heard en bank, do you think that has a measurable effect on the jurisdiction of the court . It has some effect, but the important point is we have 19 cases, in fact we had 21 cases this past year. Other circuits take much fewer en banks. They take the Single Digits and low Single Digits. Whereas, we have a truncated en bank, we are able to go en bank much more often and police our panels much more effectively than other circuits that have to fall en bank. We have worked this out mathematically, and as we know sampling is not perfect, but we often poll smaller groups to give us a good indication of what is the outcome in the larger grouped and it turns out that 11 judges outcome if you take a group of 29 judges which is the size of the active judges in the united circuit, you select a random 11, that the outcome of the 11 is almost always 90 of the time will be the same as the full group. So the professor fills patricks concerns about over predictability are not true. Your testimony points out that the majority of the judges were nominated by the democratic president s. Thus you reached the unsurprising conclusion that this is a major factor in the somewhat high reversal rate of the ninth circuit over that time. Wont the ideological makeup of courts change as new president s and governors take office . And why would you think we should make a permanent change of the structure to the ninth circuit to address a temporary issue . Youre absolutely right. My view does not in any way depend upon the current id ideological makeup of the ninth circuit. Size is not the only factor in the ninth circuits reversal rate. My testimony is simply based on neutral principles. Excuse me, your testimony was very clear that a major perhaps the major reason for the disparity is the difference in appointments and then you say but might size play a role as well . I think it might very well because mathematical theory predicts that it will. Theres no certainty. Theres no theres no evidence for that at all. You say it might very well. We know about the idea owe logic im sorry, about the political disparity. Thats clearly going to have an effect. Maybe because mathematical theory predicts it might. You have no evidence for that at all really. If i may, i do. So the same studies that show that ideology matters to reversal rate also shows that size matters. One of the things i cite in my testimony is a study by dr. Kevin scott. He works for the federal courts and he concluded that the dual factors of the ninth circuits greater size and its limited en Bank Procedure added nine reversals a year to its success in the Supreme Court. Thats what he came up with when he ran all the numbers. This is a federal judiciary guy. Lots of federal judiciary guys are wrong. On that shining note, we now go to the gentleman from utah, chairman chafitz. Thank you. I appreciate yall being here and listening to the three judges on our panel today. Thank you for your time and commitment to this country and your service to our country. We thank you for your good work. Professor eastman points out this this paper that was written by seventh circuit chief judge Richard Posner who and im going to read part of mr. Eastmans testimony here. The quality of judicial output declines as the number of judges on an appellate judge expands was the premise of or the conclusion of Richard Posners chief judge posners paper here. And im going to read again from mr. Eastmans testimony. Thus, although the fifth circuit had nearly the same caseload as the ninth circuit, the ninth circuit experienced a rate of summary reversal more than six times higher than the next busiest circuit. Now to be fair, that was looking at from 1985 to 1997, but he went on, as ninth circuit judge oscanlon, im sure im mispronouncing his name, noted in a 2013 article, quote, approximately 1 in 10 ninth circuit cases reviewed by the Supreme Court results in a summary reversal and another half are reversed unanimously in a nonsummary disposition by otherwise etiological divided court. Moreover, according to mr. Eastmans testimony, the combined reversal rate of the fifth and 11th circuit is much lower than it was before the two circuits were split from the old fifth and so the question goes, was chief judge posner wrong in his conclusion that the quality of judicial output declines as the number of judges on an ap l appellate judge expands . If he is wrong, why is he wrong . I mean, hes citing some fairly strong evidence over a 12year period. Well, i guess ill start if you dont mind. When i hear those statistics, you recall that hes talking about a period before i even joined the court 20 years ago so if you look at different periods of time on summary reversals, you actually get much different data. And i have looked at that because the subject seems to come up a fair amount because they want to use that statistic. But i think the more important question is does size affect quality of deliberation . And in the ninth circuit i would say absolutely not. And i think our deliberations now are even better than when i joined the court because of technology. We are exchanging views every single day in rapid form and we have different judges who take different interests. Some are interested in intellectual property, some are very concerned about the consistency of even our unpublished decisions, some are concerned about Bankruptcy Law and some are concerned about environmental law and all of these judges bring different perspective to the court. And we have free and robust exchanges every day in terms of the kind of collegiality that professor eastman was talking about. So i dont mean to no, go ahead. But my colleagues may have a different he looked at very statistical information and drew the conclusion that there is a direct relationship. Mr. I can tell professor fitzpatrick wants to jump in here. Go ahead. Judge posner is simply one of the most respected judges in the history of our court system. Perhaps the only federal judge that is smarter than judge posner is judge kaczynski. I think he deserves great weight when he runs the numbers and comes to the views that he does. Again, its consistent with what everyone else comes up with that looks at the data. The study by dr. Kevin scott for the federal judicial center. It all says the same thing, which is size matters. Representing i think the number is more than 65 million people, im just not buying that its faster and the support services. I mean, our population has grown over the years by tens of millions of people and there does come a time when i think you need to split. And ive got to tell you, there is a great deal of frustration with the ninth circuit. There are people that are absolutely fed up with some of these things. As a member of congress, ive got to tell you, the rulings that weve had coming out against President Trump to protect our borders and secure this nation while none of you on this panel made that decision is infuriating to us to look to the ninth circuit to see people say, well, theres, you know, 70 people here that weve got to protect and 80 people here. What about protecting the United States of america . And its the ninth circuit that is causing these problems and taking away the duties that the judiciary, the congress has given to the president of the United States to protect our borders. There are people that are outraged about this and those are specific cases with specific judges, but ive got to tell you, according to some others that i hear you on the panel, wheres the outrage . There are a lot of us that are outraged. The president was duly given by congress the authority to protect our borders and for these injunctions to come in place and prevent the president from doing his job is absolutely totally wrong. I do think, mr. Chairman, this is the right way to do this and to look at it. I do think that certainly chief Justice Posner and some of the panelists here are on the right track. I think i think being able to deal with things enblock, too, should be given heavy weight. That is clearly not happening in the ninth circuit. I yield back. Judge posner, can i venture an answer . It wont take very long. Your honor, i might some day be in your court. How could idea my you . Good answer. You know, a model is i have great deal of respect for judge posner but dick and i agree all times on all sorts of things. The model is only as good as the information you put into it. If you leave out Important Information the model gives you the wrong answer. The period in question that judge posner looked at overlooked the makeup of the two courts and the reality is late 1970s the ninth circuit moved from 13 judges to 23 judges and president carter was able to appoint 11 or 12 judges through the ninth circuit. Some of the most liberal judges the world has ever seen. Good friends of mine with whom i disagree a great deal, and they had a tremendous influence in the jurisprudence of the court at that time. At the same time, the Supreme Court was very much going in the other direction and so much of the disparity that professor fitzpatrick and judge posner refer to, you can only attribute to size if you think the judges are blank spheres. If you take into account who the judges were that populated the two courts, that explains it. Its not a question of size. Dick posners analysis, he looked at the wrong thing. He looked at size whereas really it was the composition of the panels that made the difference. Now the fact it was reversed by Supreme Court doesnt mean were wrong. Maybe the Supreme Court was wrong, at least in the view of my colleagues, but i think thats what was going on there. Well, i thank you. Im going to be forced to move on if you dont mind. We now recognize the gentleman from california for his round of questioning. And i trust that well continue this lively back and forth of, you know, size matters, it doesnt matter. Ideology matters, it doesnt matter. But i would admonish all of us that we are trying to figure out whether to split the court for reasons that should not be ideological by definition. Thank you. Thank you, mr. Chairman. I clerked on the ninth Circuit Court of appeals for late judge thomas tank. The ninth circuit had awesome judges then. It has awesome judges now. And what i want to ask first of all, thank you, judge kaczynski, for being here. My friend Beverly Hill School board member says very kind things about you. I want to ask you, as an appellate court, you have to take all cases, isnt that correct . Unlike Supreme Court, you cant decide what to pick and choose . Of course. Right. And it is no secret that states like california are just more progressive than, for example, a state like kentucky. And isnt it possible that because you have to take all cases, youre just going to get a higher proportion of cases that push the envelope, that challenge the status quo, that are more progressive and as a result some of the statistics youre seeing are because of the cases that are brought before you, is that correct . Thats certainly right. And of course i will be exacerbated if california were isolated. One of the ideas of regional circuits is that you have no single state dominates a circuit, that you have if you have a large state, you will have surrounding states that will provide other perspective. The rural perspective, the mountain perspective, the environmental perspective. And isolating california would only exacerbate the problem of which you speak. Thank you. I see many of the statistics that my colleagues bring up and theyre statistics without any meaning. I dont think the relevance is what percent does any particular circuit reverse . The relevance is the quality of opinions coming out of this circuit and are they doing some Ground Breaking opinions. For example, in 2014 when ninth circuit went out and said, you know, bloggers have the same free speech protections as traditional press, that was a pretty awesome and amazing opinion and thats the kind of things that we see out of the ninth circuit. And so i think the real statistic is what are the quality of opinions coming out . Are the judges putting down their rationals . Are they explaining to the American People what theyre doing . For the record, i know that multiple judges have imposed a block on Donald Trumps bigoted travel ban. So just today a maryland judge and a Fourth Circuit blocked Donald Trumps bigoted travel ban. Do any of you believe we should break up the Fourth Circuit . That would be a no. No instance. The other thing i think we ought to look at is in terms of how these circuits are configured. You do have efficiencies from the way ninth circuit is operated. I clerked on there and its interesting that my colleagues down the aisle dont want to have those efficiencies, but because of the way its structured i dont see any reason why we should change the ninth circuit. I think doing so would be purely for ideological reasons. But keep in mind, federal judges get paid to follow the constitution regardless of where they sit, whether they sit in maryland or in california or in washington and those federal judges have struck down or actually put a block on Donald Trumps travel ban. So its not ideological its judges across the nation have made this decision. Lets break up the ninth circuit as the president said because a judge in the ninth circuit said that his executive order was based on bigotry and unconstitutional because today the maryland judge is saying the same thing. Im waiting for the president to say lets break up the Fourth Circuit. Even if you broke up all of these circuits, if you had 50 circuits, youd still have the same number of federal appellate judges sitting there being paid to follow the constitution, youd still get the same decisions out of the 29th circuit instead of the ninth circuit. You wouldnt get any change. I think this entire hearing is sort of bizarre and useless and with that i happily yield back. I thank the gentleman. We now go to the gentleman from florida, mr. Dos santos. Thank you, and thank you members of the court and professors. Judge kaczynskis, do your court, District Court, Supreme Court have a robing authority to review political actions of the political branches . No. So it needs to require a concrete legal case or controversy, correct . Absolutely. So if the president does things, congress does things, it may end up in front of the court but there may be no way to get into the court if no one has standing to bring a legal case . Absolutely. Do you believe that article 3 courts possess the institutional competence to second guess National Security decisions made by the president or the congress . In general, not. Why . I would have to be presented with an legal issue to understand. There are certainly possibilities that the Congress Passes a through gives us authority to adjudicate such an issue, but in general courts are very poorly informed in terms of making Foreign Policy decisions. We dont have information. Certainly. Is it safe to say that there would be a difference between a court passing judgment in a proper case between whether action was lawful or constitutional versus whether it was politically wise or the correct policy, correct . I agree with you entirely. What are the checks on the courts as you understand the constitution . I mean, congress can pass a statute, maybe its president signs it, it goes beyond congresss authority, for instance, the bill of rights, you can have a case before you you can check the congress. You guys get it wrong, district gets it wrong. Supreme court gets it grievously wrong. How do the American People check bad Court Decisions zm. Well, if i may say so, when the Supreme Court speaks, by definition it gets it right. The Supreme Court interprets the constitution, thats the way thats what the constitution says. Thats the way our system works. I disagree with that. I think if you look at cases from like the dred scott decision in other states, courts are not infallible and i think that i think youre a very smart guy. I like a lot of your opinions and i think youre very principled but i really disagree with that. This is not speaking ex cathedra from this building over here. They do get it wrong. I guess your argument to me is that there is no recourse for the Supreme Court. Five to four decision, even if we think its way outside what the constitution is, theres no mechanism for us to check that, correct . Well, yes. We can amend the constitution. There is a mechanism and we can amend the constitution. We can also the Supreme Court does let me just make clear, i disagree with any number of opinions of the Supreme Court, particularly those i was reversed. I disagree with every single one of those. They got it totally wrong, but as a matter of constitutional law, the Supreme Court says thats what the constitution says youre bound by it, of course. Were bound by it and its but but the Supreme Court does reconsider its views from time to time. We saw that happened with with case bowers that held homosexual sodomy could be criminalized and 17 years later the court changed its mind and reversed course. So the court does reconsider its rulin rulings. And one possibility and one way those of us would disagree with some of the Supreme Courts rulings can seek to reverse a decision is by bringing other cases and making a stronger case and persuading the court to change its mind. That requires private parties. Thats not congress, you know, as the representative of people checking out. There are Different Things in the constitution circumscribing your jurisdiction. Heres why i think im concerned. Some of the courts in your circuit are playing a dangerous game here. When you talk about analyzing an executive action thats taken directly pursuant to a very broad congressional statute and you basically say if the president was somebody else, it would be lawful but because this president campaigned and said things that we disagree with, oh, no. Call it off. Its would the gentleman would the gentleman suspend . Ill give you back the time but consistent with the judges other role, they can answer any hypothetical question they want but nothing related to i wasnt going i was going to end with a statement. Then i apologize. But my my concern is that when thats being done and youre invoking these campaign statements, i dont see a principled way where thats going to end up making sense over the long term. And i understand theres antipathy in a country thats reflected on your courts or the current president , but that is not enough of a reason to wade into some of these sensitive matters of National Security. And so i think the courts, you know, while they think theyre saving the day from some peoples perspectives, i think they may in the long run end up under mining their proper role. I dont expect you to respond. Thats my concern. I yield back. I thank the gentleman. I might note that our former president thought Citizens United was badly decided and told the supremes in the well of the house so many people dont like decisions, but i i i side with judge kaczynski, ultimately theirs is the last word at the time they make it. With that we go to my friend us california boys have to hang together. We will hang. If some of this legislation passes, we will hang separately, i guess. With that we go to the gentle lady from california. Thank you, mr. Chairman. First, id just like to say, we often get professors, thats not to diminish your presence here today, but it is a rare day when we have justices and it is really an honor that you have come here to share your thoughts with us. And i for one appreciate it a great deal. Its great to see the faces after ive seen the names on the decisions and its really an honor to hear from you. Just getting to some of the meat of the issue. You know, mr. Eastman has testified that it takes extra time for the ninth circuit when deciding decisions. It seems to me that if thats the case, that could relate to the complicated cases that come before the ninth circuit. I come from silicon valley. There is a lot of litigation coming out of the valley thats highly technical. I think were very lucky to have very skilled District Court judges in san jose who can sort through this, but these are complicated cases. Its not, you know, a trip and fall that ends up in a diversity case. I mean, its complicated. And inefficiencies arent just related to time, its related to the complication of the case. Looking at mr. Fitzpatricks testimony, it talks about the various reversal rates, but its interesting if you look at instead of the 20 years, if you look at a ten year reversal rate using the very same methodology and data sources, my staff crunched the numbers and instead of the number that was in the testimony you come up with a 1. 84 for every 1,000 cases. If you look at the last five years its 1. 55 per 1,000, which is a little bit more but not much more than the six districts. So i think these statistics really are not very enlightening. For me as chair of the California Democratic delegation, its important to me that the state of california not be divided. You know, unless the state itself were to divide into two states, which is really not something the people of california want or the congress wants, its very important that there be a cohesive rule of law in the state of california on these diversity case decisions. I want to say there are other cases. There is value in the diversity. It would make a great deal of difference if i lost my that might make a personal difference, but in terms of the number of cases, it wouldnt materially affect it. Why make a change for no little for such a little impact. I just wanted to say, i mean, i think its unfortunate in a way, and i dont blame the chairman, im sure this was planned long before the decisions yesterday in maryland and hawaii, one of the things thats important for us to do, all of us as americans, is to defend our structure of government. And thats the judiciary, the executive and the legislative branch. Theres a lot of criticism. The president said recently i think just today that the judge who decided i dont know whether it was the hawaii or maryland judge he was criticizing had done so for political reasons. I think thats unfortunate. I mean, weve all had cases where we disagreed. I mean, i certainly have with circuit, trial court and Supreme Court decisions, but disagreeing with the outcome is very different than undercutting the rationale for the Decision Making and i think its important that we not do that. You know, yes, the president has is different the pow jero do a variety of actions by the congress and hes not power to violate the constitution. There will be a lot of 4ri9 i ga litigation. I am confident that the judges hearing this case will hear it with an open mind, with an eye on the facts and the precedence and come to the best decision that they can. And i i dont see how busting up the ninth circuit or threatening to do so sort of in retaliation for a judge in hawaii. Im not saying that that is what is intended but it might look like that and i think that that is the last thing that the congress ought to be perceived as doing because we ought to have respect for the judicial branch. I do and im sure all the members here do. So with that, mr. Chairman, i would yield back the balance of my time with thanks once again to especially the justices for coming and honoring our branch of government with their testimony. Thank you. Im going to ask unanimous consent that the gentleman from arizona, mr. Biggs, be allowed to speak even though hes not a member of the committee. Without objection it will be ordered. Additionally, i ask unanimous consent that senator flakes written statement be placed in the record at this time. Without objection so ordered. So the gentleman from arizona will follow the gentleman from arizonas written statement. Gentleman is recognized. Thank you, mr. Chairman. I do believe i am a member of this committee, at least i was so informed. To be informed this way that im not a member is notquite shocki. I am a member of this subcommittee. I apologize. I apologize. Staff telling im not they did tell its good to be where you feel wanted. I can tell you that. I ask unanimous consent that as an important member of this committee and subcommittee that you be allowed to speak for the full five minutes. Reset the clock. Its the problem of large numbers. Youll notice that the size of the deas is the size of the ninth circuit. I do appreciate it and thank all the panelists for being here today. And when you are the last guy, as i typically am in these types of committees, even when i am on the committee, theres just so much to talk about that its peeked my interest. This really is the the largest circuit. Someone one of the judges mentioned the new the new 12th circuit was gone from the arctic circuit to the sonoran desert. Unlike the new going to the equator. This is part of the problem. This circuit represents over 60 million people, which is at least double the size of any other circuit and four times the size of the first and tenth circuits and not counting the ninth, the average federal geographical circuit has a population of 22 million. The ninth circuit counts for 1 3 of all pending appeals in the country totaling 13,000 as of the end of last year. At the same time, no other circuit had more than 5300 cases pending and last year it took the ninth more than 15 months on average to resolve a case, more than twice as long as the average circuit and more than two months longer than the next slowest circuit. When Justice Anthony kennedy sat on the ninth circuit he wrote to the commission on structural alternatives in support of circuit split. Justice kennedy noted that the any circuit that claimed the right to bind, and im quoting here, to bind nearly 1 5 of the people of the United States by decisions of its three judge panel must meet a heavy burden of persuasion. And he later said on a different occasion that i do not think its appropriate for the judges of the ninth circuit to lobby terribly hard against it, meaning a proposed split. In the 1980s the United States fifth Circuit Court of appeals was in a similar situation albeit not as grave as it is today in the ninth circuit. It had 26 authorized judges and an over burdened caseload. In fact, today the niebth circuit has nearly 94 of the population of the fifth and 11th circuits combined. At the time there were similar heightened arguments like weve heard today about the many detrimental effects of splitting the fifth. Congress succeeded in splitting it in 19d 80 through the fifth Circuit Court of appeals reauthorization act and the question that comes to my mind is who here would today argue that wed be better off without the split . Now weve actually heard some enticing proposals today and in one of the arguments or, excuse me, one of the summaries presented to us today that are referred to now, the reference was made that there are advantages to a large circuit. For instance, uniformity of tax laws is best achieved by a large circuit. And then in some issues the reference was made that maybe a smaller circuits better. So in this constant position today that maybe a larger circuit may be better leads me to ask this. Should we even have sirktsz anymore . Should we have a delineation by circuits . And if so, should you have some kind of fluctuating number of judges ascertaining or coming on depending on what the issue is of the case before you. So if its a tax case, should you have 50 50 judges deciding if its some local zoning regulation . Should you have two judges . The point is i think that to make the argument that you should adjudicate or potentially adjudicate based on the issue, which is what is suggested by this position, doesnt make a lot of sense. Theres no predictability either. Theres another statement about people on the ground. We should listen to people on the ground. That have a reference to the judges of the ninth circuit, but i live in the ninth circuit. Ive litigated and i have i have litigated as a litigant and as an appellant. Ive had cases go. Ive talked to many litigators and it is similar to what professor eastman was describing. We have no idea where we were going to go. As a client, my attorneys, very experienced with attorneys, i wont mention their names, they might have appeared before you, tell me, we have no idea because we cannot decide because the panel that we will get could be anybody. We will have to wait clearly under the panelists. By then its too late. By then its too late. It actually prevents predictability. It prevents actually due process and that is the position that i am in having led the arizona senate. Having been in the legislature where weve had cases go to the ninth circuit. We had to try to make decisions because it was taxpayers dollars that we were spending. It was virtually impossible to predict and thats the problem with a circuit the size of the ninth circuit. I realize im out of time. Theres so much to talk about and deal with each of the issues that you raised. I can get back down to this, Justice Sandra day oconnor also supported the split of the ninth circuit. These are thoughtful people who understa understand that when you live outside of california and youre dragged in over and over to that district you are at an incredible disadvantage in getting due process for your client. Thank you. Thank you. I thank the gentleman. Andy, again, im sorry i stated that. Thats okay. Thats all right. Im going to do some quick wrapups. Perhaps the minority would want a couple. Ill try to stay outside of my admonishment of others. The excuse me, judge, you had said that combining circuits would be a problem, but isnt it true that to the extent there is different case law in different circuits, that actually works to the detriment of the greater good of our country, one law, so if, in fact, you were to combine, for example, the first and the second circuits, and essentially wipe away their case law so that the precedence would be open to be considered by the larger group, would it really be any different than the equivalent of asking the Supreme Court to hear all those ambiguities and resolve them . Well, yes in this sense. If youre combining if you split a circuit, the circuit law applies to the new circuit. I understand the split being easy. I dont know that weve ever combined before, but the rhetorical question here really is at six judges would you admonish that the First Circuit is too small to be efficient and organized and meet the same set of high standards as the ninth circuit reaches . Well, my answer is that the litigants, lit gators in those circuits depend on the long history of circuit law. To the extent that there are inconsistencies in that law that creates some unpredictability in the uniformity of law and it would be undesirable, my view. What i do think is helpful is our National Initiatives to National Cost containment and shared Administrative Services to the extent we have even across circuit. I would certainly agree that we can have a separate hearing on the ability to encourage the court to use its funds more efficiently through those practices. Back to the White Commission. Im going to hit it tangentially. This is a somewhat political question so i think ill go to my friend, judge kaczynski. To the extent that political appointments do matter, and you used the Jimmie Carter appointments with some accuracy, then isnt, in fact, one of the problems not on your side of the deus but on my side the use of blue slips by senators to essentially have a veto over members that they do not like ideologically regardless of which president is choosing them, doesnt that essentially exacerbate the partisan nature of your bench . I hesitate to speak on a matter thats in the purview of another branch, but the matter is complicated because, of course, these kinds of decisions are made by the executive branch, by the president selecting nominees and then the push back well, let me ask it another way then perhaps to any of you. If, in fact, this these bodies, the house and the senate, were able to resolve the were unable to resolve the question of blue slips, then if we were to do, as the gentleman who has departed would indicate, and essentially make california an island unto itself, wouldnt we essentially create a situation in which the two Democratic Senators in california would ensure that only judges based on blue slip only judges to their liking would ever get to your seat . I think by definition what you are asking must be true. If if the only senators that the circuit involves a single state then the blue slipping power of those two senators would be essentially unlimited. Professor fitzpatrick, im going to ask you this because as i look at the for and against, and with some bias for being a californian, i look at the situation of a single state. Im sensitive to splitting a state, but im im looking at a single state solution and saying that essentially under Current Senate rules would indicate that you would have very little diversity for as long as the senators had no diversity and at least in the case of my state im with some entrepreneur pe days willing to predict that there will be no diversity for a very long time. So how would you deal with that, which is a reality of the political structure if we were to take what the gentleman, mr. Flake and mr. Biggs had suggested, and effectively split off everything but california . I think its a big problem, and i think its even a problem if youre going to throw hawaii in with california. Still, the two senators in california would have almost complete control over the circuits of judges. Thats why i really commend solutions that break california into pieces in some way or another. You cited the White Commission proposal earlier and i think there are other ways to do it. I think over the long run thats the only thing thats going to satisfy people. Judge thomas, ill put you on the spot a little bit because like all three of you, you were political appointees. You went through a process. The senators did matter. If we cannot change the structure of senators in their home state having effectively a veto, and im trying not to be partisan in any way, shape or form because if you go to arizona you end up with the exact opposite, but if we if that is a reality, isnt that something that this committee should guard against any circuit which is politically tilted . I would hope the committee would make its decision based on not ideological factors. I take confidence thats not the intent. Frankly, i dont want to opine on what congress should do internally. I was asking for your observation of the effect if there was a single state solution with lets hypothetically say if arizona were a circuit, if california were a circuit, would you by definition, two states, two very different pairs of senators, current way that the process works, and some of you have gone through the process once, some twice, do you think that you would end up with vastly different circuits and they would be one state circuits . Is that something we should generally guard against . Well, if i might answer more generally. I think one state circuits are a bad idea for a whole variety of reasons, some of which youve just identified. Okay. Any other questions . Okay. Id ask, would you all be willing to take some followup questions . A number of members were not able to get here, they had competing markups . Yes. Well leave the record open for five days plus whatever time it takes for you to respond. With that, this concludes todays hearings. Again, i want to thank all of you. The weather is clear. Your ability to get home should be unrestricted. With that we stand adjourned. Thank you. The house judiciary hearing wrapping up its work on