Because the court's size is "the problem".
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.