Tuesday November 24, 2009
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Ninth Circuit Court
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See also: I am a longtime co-sponsor of legislation to split the Ninth Circuit Court of Appeals. The Ninth Circuit Court of Appeals, as it now stands, is problematic in a number of ways, and because of this, our justice system itself suffers. Those who have suffered true grievances and are working through the appeals process to have the fair review allowed by our laws, are detrimentally affected.
The caseload of the Ninth Circuit Court, almost one-fifth of the entire federal appellate caseload, causes significant delays for those awaiting action by the court. In fact, in 2002, the Ninth Circuit Court had more cases pending over one year than the rest of the entire federal appellate judiciary combined. These delays cause both financial and emotional hardship for litigants and their attorneys. In some instances, these delays can lead to environmental degradation as well.
The population served by the Ninth Circuit Court encompasses almost sixty million people, across southwestern states, western states and the non-continental U.S. states and territories. California alone has more people than are served by any other circuit court. To put it in perspective, the Ninth Circuit Court's three judge panel issues decisions that bind one fifth of all Americans.
Americans depend upon our federal courts to clearly and consistently define "rule of law" under the United States Constitution, and they depend upon the impartiality and fairness of interpretation that comes from a true majority decision. These are two matters of grave concern to me with regard to the current make-up and administrative procedure of the Ninth Circuit Court of Appeals.
Another issue of far greater concern is that of consistency in Constitutional interpretation and precedence. I have very real doubts about the ability of the Ninth Circuit Court to uphold coherence and consistency in its judgments. Even one of the judges admitted that the sheer volume of judgments issued by the Court exacts a "toll on coherence and consistency, predictability and accountability." (Judge Pamela Rymer, 1999). This inconsistency leads to increased likelihood of lawsuits, increased litigation costs and an impression of arbitrary justice.
Coherency and consistency problems with judgments issued by the Ninth Circuit Court is evident in the percentage of judgments that the Supreme Court has overturned, especially in the last twelve years. From 1992 to 2003, the lowest percentage of overturned appeals was 68 percent. The highest was a telling 95 percent. The average percentage of Ninth Circuit Court decisions overturned by the Supreme Court during this time was 73.5 percent as compared to an average of 61 percent by the all the other circuit courts of appeal combined.
The current size of the Ninth Circuit Court of Appeals adversely impacts collegiality among the judges. When there are 3,000 minimum possible combinations of panels, judges do not have the opportunity to, in the words of Judge Rymer, "get a true understanding of their colleagues' jurisprudence". The size has also necessitated a number of administrative procedures that are unprecedented in the other Courts of Appeals. Of particular concern is the "en banc procedure," in which when a three judge decision is selected for an en banc review by a majority of the Ninth Circuit judges, only eleven judges are appointed to the review panel. Obviously, this means that less than one-fourth of the entire court (six judges) can bind the entire circuit with a majority en banc opinion. This cannot guarantee a judgment rendered by the majority.
A majority of Supreme Court justices favor a split of the Ninth Circuit Court, and Judge Diarmuid F. O'Scannlain of the Ninth Circuit testified that when courts grow too large, it is necessary to divide them to make them more manageable. He noted that the Ninth Circuit has virtually the same boundaries as it did in 1855.
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