20 Questions for Circuit Judge O'Scannlain, U.S. Ninth Circuit Court of Appeals

How Appealing's 20 questions site | March 03, 2003 | Howard Bashman

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"How Appealing" is very pleased that Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit has agreed to be the second participant in this Web log's newest feature, "20 Questions for the Appellate Judge."

Judge O'Scannlain joined the Ninth Circuit in September 1986, when he was just shy of the age of 50. He attended college at St. John's and law school at Harvard. His chambers are based in Portland, Oregon, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge O'Scannlain's responses follow in plain text.

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1. Among active and senior Ninth Circuit Judges, you have become the leading voice in favor of splitting the court in two. How did you achieve that role, and what in your view are the three most persuasive reasons favoring a split?

The three most persuasive reasons favoring a split are: (1) size, (2) size, and (3) size. Size of the court of appeals, present and future; size of caseload, especially after the bulge of the last two years; and size of population, present and projected. Let me issue the standard disclaimer that, of course, I speak only for myself and not for my court in responding to these questions.

The Ninth Circuit is by far the largest of the circuits, and is more than double the national average with respect to number of court of appeals judges, case filings, population, and geographic area. Our caseload has reached a record 11,421 filings for the 12-month period ending September 30, 2002, an increase of over 20 percent in two years; compare that with an average of 4,796 for all other circuits. (Actually we hit 12,209 filings for calendar year 2002). The next busiest circuit is not even close -- the Fifth Circuit at 8,784 filings in the same period. Our output as a court is similarly enormous. In the same period, over 5,000 cases were terminated on the merits in the Ninth Circuit; compare this to an average of 2,312 for all other circuits. During that time we published 837 precedential opinions; the sheer volume of decisions makes it difficult, for us as judges, just to stay abreast of current developments in our own law, never mind developments in other circuits or in academia. Essentially, we are losing the ability to keep track of our own precedents.

Compare this to my experience when I first came on the court in 1986. Back then, my colleagues and I were producing about 180 dispositions per judge, per year. In other words, we were each responsible for writing about 60 opinions and memorandum decisions, the equivalent of five dispositions a month. But the pressure on individual judges has relentlessly increased since then. By 2002, we averaged 492 cases per judge that year, each responsible for producing about 164 dispositions, at the rate of over 13 opinions and memorandum decisions per month. (Compare that with the Supreme Court of the United States which renders about 80 opinions a year, each justice being responsible for about 10). Somewhere along that progression, I became persuaded that we were heading for a train wreck as a court if we didn't respond to the implications of these numbers.

I don't know whether it is accurate to say I am the "leading voice" but there are many voices, both on the court and outside, who feel that we must restructure the circuit, either into two separate circuits or possibly three.

2. Your views concerning whether to divide the Ninth Circuit have evolved over the nearly seventeen years that you have served on the court, even though the court's total number of authorized active judges has remained at twenty- eight during that period. Explain how and why your views on the issue have changed.

When I first came on the court, some senators from the northwest states were very active in promoting a split of the circuit for very clearly stated political reasons, typically in reaction to specific environmental decisions. This included my own home state senator, Mark Hatfield, with whom I had many discussions. I had to tell my good friend Senator Hatfield that I disagreed with him and opposed a split of our circuit. I could not support the principle that a circuit should be restructured simply because of perceived public dissatisfaction with its jurisprudence.

My views on the issue have, of course, evolved over the years as I became persuaded that we were developing very serious administrative issues generated by the relentless increase in caseload. My views probably crystallized during the time I was pursuing an LLM in Judicial Process at the University of Virginia Law School from 1990-1992. This was a program for appellate judges, which permitted considerable opportunity for research and where, indeed, I wrote my thesis "On Governance of the Federal Judiciary," which, in turn led to much more refined notions about the role of the circuit. While the number of authorized active judges has always been 28 during my tenure, the number of senior judges increased rapidly, occasionally exceeding the number of active judges at a given time. Today, we stand at 45 total judges (senior and active) and shortly, assuming that the President's nominees will be confirmed and an impending vacancy will be promptly filled, we will reach a total of 50 judges on our court. A court of appeals with 50 judges looks, to me, more like a legislature than an appellate judicial body with error correction and law declaring responsibilities.

3. What in your opinion is the single most persuasive argument against dividing the Ninth Circuit, and what is your response to it?

The single most persuasive argument against division, I suppose, is "if it ain't broke, don't fix it." My response is "if it ain't broke yet, it soon will be, so why wait?" We should be proactive in planning for the future restructuring of a circuit that is already over double the average size of all others in population, geographic area, number of court of appeals judges, and, most importantly, appellate caseload. Nevertheless, the most common argument advanced for keeping the Ninth Circuit together has been the necessity for a consistent maritime law for the Pacific Rim and a single law of the West. This is not much of an argument, considering the fact that there are five circuits for the Atlantic and Gulf States. I don't think freighters are colliding more frequently off Cape Cod than they are off the Marin headlands. Nor has the fact that three circuits straddle the Southern states been deleterious to the development of the law of the South.

At bottom, the opposition to the split boils down to a sort of curious devotion to the notion of a single "Jumbo Circuit" for the West. But there's nothing sacred about the Ninth Circuit keeping its same boundaries for over 100 years. In my view, the only legitimate consideration is the optimal size and structure for judges to perform their duties. As other circuits became unwieldy because of size, they were restructured, like the Tenth carved out of the Eighth in 1929, and the Eleventh carved out of the Fifth in 1980. There is no logical reason to oppose the natural evolution of our judicial structure as we grow into a colossus.

4. In my view, at least, there seem to be three plausible proposals to split your court. One is to make California -- home to more than sixty percent of the Ninth Circuit's population and source of approximately sixty percent of the caseload -- its own circuit. The second is to put the States of Arizona, California, and Nevada in one circuit and the remaining States and Territories in the other. Under this second proposal, however, the circuit with California would have twenty active judges, which exceeds the maximum number of authorized active judges -- seventeen -- that you have said is advisable for a federal appellate court. The third proposal, sometimes called the "even split," involves putting Southern California under the jurisdiction of one federal appellate court and Northern California under the jurisdiction of another. Previously, you have expressed your preference for this third option. Do you still prefer the "even split," and how under this option would conflicting rulings that involved California be resolved?

You put your finger on the real dilemma: how to split? The honest answer is there is no ideal solution and it can't be done without adding judges. You have identified three of the four options.

Option 1: California as its own circuit. I was originally inclined to the predominant view of the legal academy that "one cannot have a circuit with less than three states" but I am no longer persuaded. First of all, a "California only" circuit, with its four very busy district courts, has an appellate caseload which would constitute the second largest in the country (8,224 filings), only a shade behind the Fifth Circuit (8,784 filings). Next, California's population now exceeds 34 million people, which would make it, again if it were its own circuit, the most populous circuit in the country. To those who say a one-state circuit can't work, what about the District of Columbia Circuit with only one district court, compared to the State of California with four federal district courts?

Option 2: Arizona, California, Nevada. This is probably the most frequently discussed proposal for the "new Ninth Circuit" and there is no question but that such a circuit would have to exceed 17 judges. The number 17, is, of course, an ideal maximum, which is no longer realistic in my view.

Option 3: Arizona, Southern California and Nevada. This "even split" proposal, came from the Hruska Commission report of 1974, which was quite prescient. If northern California were put with the northwestern states and southern California were put with Nevada, Arizona and the Pacific islands, there would have been two almost exactly equal size circuits in terms of both population and caseload. Circuit equality would essentially still exist today, although the southern portion has enjoyed a faster population growth than the northern. While I still believe this option has a lot of merit and that there would be acceptable devices to solve the intra-California federal law problem, I no longer support it because of one political barrier which I respect. It is quite clear that Senator Dianne Feinstein has very strong reasons to oppose such an approach and I fully respect the wishes of the senior Senator of that state. This proposal is a political nonstarter.

Option 4: Arizona to the Tenth Circuit. You failed to mention a fourth possibility which has been bandied about with increasing vigor in recent years. This would put Arizona with the Tenth Circuit (which has relatively light caseload per judge), make a new Ninth Circuit comprised of California and Nevada, and put the rest into a new Twelfth Circuit headquartered in Seattle or Portland. There would be some technical issues to be resolved regarding pre-realignment law affecting Arizona in its new setting, but again, the legal experts would have various solutions to that issue.

5. In July 2002, during your most recent congressional testimony on splitting the Ninth Circuit, you stated that six other Ninth Circuit judges (two active and four senior) had authorized you to say that they support a circuit split. Your remarks implied, however, that other judges on the court favor a split but are unwilling to express their support publicly. Why, as best you can tell, would some of your colleagues who favor a split be unwilling to express that position publicly?

There are now nine members of my court (including myself) who have permitted their names to be listed as supporting a split: Judges Sneed (California), Beezer (Washington), Hall (California), Trott (Idaho), Fernandez (California), T.G. Nelson (Idaho), Kleinfeld (Alaska), and Tallman (Washington).

The position of chief judge of our circuit for some reason seems to impose upon its occupant an obligation that he or she be the "Defender of the Faith," i.e., staunch opposition to any efforts to "break up our circuit." The fact that there may be pro-split judges and leaners who prefer not yet to be identified publicly may very well reflect a sensitivity to the wishes of chief judges over the years.

I should point out that our chief judge and her administrative staff have done, and continue to do, an admirable job in effectively managing the circuit in what can properly be characterized as extremely challenging circumstances. Managing the Ninth Circuit is a Herculean task, and our chief judge is to be congratulated on a magnificent job. None of us takes any delight in going against the wishes of our chief; but, on this issue, it seems to me hardly much different than expressing an independent view on the merits of a legal issue in a pending case.

6. Why has a split of the Ninth Circuit not yet happened, and when, realistically, do you expect it will happen?

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"On the other hand, when the Supreme Court reaches out to take 29 cases in one Term only to reverse 28 of them, perhaps it is telling us something."

What a genius!