Jerry-Building the Road to the Future: An Evaluation of the White Commission Report on Structural Alternatives for the Federal Courts of Appeals JOSEPH N. AKROTIRIANAKIS* PAUL GARO ARSHAGOUNI** ZAREH A. JALOTORSSIAN*** TABLE OF CONTENTS I. INTRODUCTION ...................................................................................................356 II. BACKGROUND ....................................................................................................358 A. The Ninth Circuitand the Federal Courts ofAppeals ..............................358 B. CircuitDivisions in the Twentieth Century ..............................................359 II. THE WHITE COMMISSION REPORT ......................................................................361 A. Creation of the Commission on Structural Alternatives for the Federal Courts of Appeals........................................................................ 361 B. The Commission'sProposal: Internally Divide the Ninth Circuit, But Do Not Split It into Two Separate Circuits............................................... 362 C. Alternative Solutions Consideredand Rejected by the Com m ission ..............................................................................................364 D. Rationalizingthe Commission's Recommendation................................... 368 IV. EVALUATION OF THE COMMISSION'S PROPOSAL ..................................................369 A. Enhancing Consistency and Coherency of Ninth Circuit Law ..................370 B. Improving the Ninth Circuit'sEn Banc Process....................................... 373 C. IncreasingRegional Connections............................................................. 376 1. Debunking the Myth of "CaliforniaJudging ..................................377 2. PromotingJudicial Regionalism: A Misconception of the Role of Our Federal Courts........................................................................... 378 D. Other Disadvantagesof the ProposedReorganization ............................. 379 V. COMMON CRITICISMS OF THE NINTH CIRCUIT NOT ADDRESSED BY THE COMMISSION ...................................................................................................... 381 A. The Sheer Expanse of the Ninth Circuit's BoundariesIs Reason to Divide It Only if Size Results in Other Problems...................................... 382 1. The Ninth Circuit's Size Has Not Resulted in a Lack of Expediency in Resolving Appeals ...................................................... 382 2. The Ninth Circuit's Size Has Not Caused a Loss of Collegiality Among Its Judges.............................................................................. 384 B. The Supreme Court'sReversal Rate of the Ninth Circuit......................... 385 VI. REFOCUSING THE DEBATE: THE REAL PROBLEM FACED BY THE UNITED STATES COURTS OF APPEALS .............................................................................. 387 A. The Workload Crisis:A Threat to Appellate Justice ................................ 387 B. Non-CircuitDividing Alternatives............................................................ 390 C. The Modern Ninth Circuit: A Triumph of Innovative Case Managem ent ............................................................................................. 392 VII. CONCLUSION ...................................................................................................... 395 I. INTRODUCTION For years, critics have argued that the United States Court of Appeals for the Ninth Circuit should be divided because it has grown too large to manage its caseload effectively.' They blame the Ninth Circuit's size for alleged increases in intra-circuit conflicts, inefficiency, delay, and a lack of collegiality among its judges.! In recent years, conservative congressmen in the Pacific Northwest have criticized the San Francisco- based circuit for its "liberal" rulings on everything from the environment to the death penalty? On November 26, 1997, Congress created the Commission on * Law Clerk to the Honorable Harry Pregerson, United States Court of Appeals for the Ninth Circuit; J.D., magna cum laude, 1998, Loyola Law School; B.A., cum laude, 1995, Whittier College. ** Former extem to Judge Pregerson; J.D. 1999, U.C.L.A. Law School; M.P.H., sumnma cure laude, 1994, U.C.L.A.; M.D. 1988, U.C. Irvine; B.A., magna cum laude, 1984, U.C.L.A. *** Former extem to Judge Pregerson; J.D. 1999, U.C.L.A.; B.A., summa cum laude, 1996, U.C.L.A. The authors would like to thank the following for their assistance in the preparation of this article: Judge Harry Pregerson, Cathy Catterson, Clerk, U.S. Court of Appeals for the Ninth Circuit, Shelley Levine, Serge Avakian, Peder Batalden, and the staff and editors of the San Diego Law Review. 1. See David G. Savage, Panel Urges Realignment ofAppeals Court, L.A. TIMES, Oct. 8, 1998, at A3. 2. See Conrad Bums, Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue, 57 MONT. L. REV. 245, 250-51 (1996). 3. See 9th Circuit Split It in 3, Panel Says, ARIz. DAILY STAR, Oct. 8, 1998, at 9A; Savage, supra note 1, at A3. [VOL. 36: 355, 1999] Jerry-Buildingthe Road SAN DIEGO LAW REVIEW Structural Alternatives for the Federal Courts of Appeals.4 The Commission was headed by the Honorable Byron R. White, retired Associate Justice of the United States Supreme Court. It was charged with studying the structure of the federal courts of appeals, focusing on whether the Ninth Circuit should be divided On December 18, 1998, the Commission issued its report and recommended an unprecedented reorganization of the Ninth Circuit.' The Commission recommended that Congress reorganize the Ninth Circuit into Northern, Middle and Southern divisions. Under the proposed plan, a majority of each division's judges would reside within the division's borders,7 and each division would have exclusive jurisdiction to hear appeals from lower courts and administrative agencies within its bounds. The Commission considered and rejected proposals to divide the Ninth Circuit into two separate circuits and thereby create a new Twelfth Circuit.8 On January 19, 1999, Senators Frank H. Murkowski and Slade Gorton introduced the Federal Ninth Circuit Reorganization Act of 1999.9 The bill is verbatim the model act proposed by the White Commission. This Article critically analyzes the Commission's recommendation. Part II reviews the history and background of the debate whether the Ninth Circuit should be divided. Part Ell examines the Commission's findings. Part IV evaluates the Commission's proposal and the reasons the Commission offers in support of its recommendation. Part V discusses criticisms of the Ninth Circuit that the Commission did not address and analyzes whether those criticisms justify the Ninth Circuit's division. Part VI examines the ways in which the Ninth Circuit has innovated to deal with increasing workloads and suggests that these 4. See COMM'N ON STRUCTURAL ALTERNATIVES FOR THE FED. COURTS OF APPEALS, PUB L. No. 105-119, FINAL REPORT 1 (1998) [hereinafter REPORT]. 5. See id. 6. See id. at iii. 7. See COMM'N ON STRUCTURAL ALTERNATIVES FOR THE FED. COURTS OF APPEALS, TENTATIVE DRAFr REPORT 41 (1998) [hereinafter DRAFT REPORT]. A minority of each division's judges would also reside outside the division's borders. See id. 8. See id. at 39. 9. Federal Ninth Circuit Reorganization Act of 1999, S. 253, 106th Cong. The asserted purpose of Senate Bill 253 is "[t]o provide for the reorganization of the Ninth Circuit Court of Appeals, and for other purposes." Id. Murkowski is a Republican Senator from Alaska and Gorton is a Republican Senator from Washington. Both Senators have previously endorsed bills to split the Ninth Circuit. 10. This Article addresses the recommendations of the Final Report. innovations are solutions to problems that will soon become common to all federal courts of appeals. II. BACKGROUND A. The Ninth Circuitand the Federal Courts of Appeals The present arrangement of the federal courts of appeals can be traced to the Judiciary Act of 1789." The 1789 Act created a federal judicial district and a one-judge district court in each of the then-eleven states.'2 The Act divided the eleven districts into three "circuit courts" and thereby created an intermediate tier of federal courts with limited appellate duties.'3 These original circuit courts were the principal federal trial courts. They heard major federal criminal cases, diversity actions, and civil cases in which the United States was a party.'4 The circuit courts had no judges of their own. Rather, they were presided over by three-judge panels composed of one district judge and two Supreme Court Justices who "rode circuit."'5 The original circuit courts had some appellate jurisdiction to review "specified categories of district court decisions."'6 The United States Supreme Court, however, functioned as the primary appellate court.'7 Congress eventually created circuit judgeships which assumed the role previously played by Supreme Court Justices, whose circuit riding was reduced to a symbolic minimum.'8 By 1866, Congress had realigned the circuit courts' boundaries 11. Act of Sept. 24, 1789, ch. 20, § 1, 1 Stat. 73; Thomas E. Baker, On Redrawing Circuit Boundaries. Why the Proposal to Divide the United States Court of Appealsfor the Ninth Circuit Is Not Such a Good Idea, 22 ARIz. ST. L.J. 917, 919 (1990). The Judiciary Act was passed pursuant to Congress' power to vest "[t]he judicial power of the United States" in lower federal courts that Congress may