The subcommittee on courts, intellectual property and the internet will come to order. We welcome everyone here today for todays hearing bringing justice closer to the people, examining ideas for restructuring the ninth circuit and i now recognize myself for a short Opening Statement. Its been more than a decade since we last considered a bill to if you will split the ninth circuit. The ninth circuit is by far the largest circuit of the 12. Additionally, the ninth circuit hears more or less 20 of the appeals and some would say from this side of the doois throughout the various states it also is the most reversed circuit. Notwithstanding that, it is my circuit. It includes my state. And im deeply concerned today and will be until we find resolution that stripping away the other states of the ninth 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 now decades. During that time, the ninth circuit has grown and today with four vacancies there is additionally four more requested. And it would be 34 judges and we are honored to have some of those judges with us today. I am here to say im pleased to see that the fifth circuit in 1980 was done its splitting was done in less than a year, no ill affects and, in fact, passed both the house and senate by unanimous consent. I hope today to have the same result to whatever we propose. I now would its my pleasure to recognize the Ranking Member of the full committee mr. Conyers for his Opening Statement. Thank you, mr. Chairman. Members of the committee, todays hearing provides an important opportunity to examine whether the ninth 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 ninth 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 ninth 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 ninth 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 has charged about the ninth circuit is true. The ninth circuit is as well organized as any in the country. The very few ninth circuit cases the Supreme Court takes up, a significant portion are overturned. But thats true for every circuit. Several of which are overturned at higher rate than the ninth circuit. Overall, less than one tenth of 1 of the ninth 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 ninth circuit, there are several points we should keep in mind. To begin with, splitting the ninth 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 ninth 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 legislative proposals introduced this Congress Take differing approaches to dividing the ninth 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 ninth circuit would do little to improve judicial efficiency and none of the legislative proposals would actually resolve the heavy caseload problem because the clear majority of the ninth circuit cases come from california. Any circuit that includes all of california will still have the largest number of judges and appeals, and it would serve the largest population. Finally, i am particularly skeptical of any legislative proposal on sensibly intended that certain entities those oppose or question the need for such a legislative fix. Dividing the ninth 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 to study the issue concluded in 1998 that splitting the kcircuit 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 ninth circuit. I thank you, mr. Chairman. And i thank you. With that we recognize the chairman of the full committee for his Opening Statement. Mr. Goodlatte. Thank you, mr. Chairman. This morning the subcommittee will hear testimony on the longstanding issue of the vastly large ninth 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 ninth circuit has 29 authorized judgeships far exceeding the next closest circuit, the fifth with only 17 judges. The judicial conference has already asked for five additional judgeships for the ninth 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, undercut such by limiting the interactions of the entire circuit as a collective whole. In our creation of a court system below the Supreme Court, congress envisioned an appellate system that limited the initial panel to a subset of the whole circuit that was then followed by the circuit sitting as a whole hearing any further appeals. It is unfortunate that a prior Congress Author the ninth circuit to operate with 11 judge on bank panels. That masquerade as true on bank panels. This resulted in an important component of our appellate system being lost. Although the ninth circuit procedures to use true on bank panels, they have never done so despite some of the critical cases they have handled. In response to a similar crowding issue in the fifth circuit, this committee in 1980 enacted legislation to move three of its six states to a new 11th circuit and provided only a year of transition time. I highlight the fact that the legislation passed in both the house and senate by unanimous consent. The transition required by that bill occurred smoothly. Various groups studied the size of the ninth circuit. The 1998 White Commission recommended that the ninth circuit not be split but divided into three separate divisions. Whatever one may think of this commission and the recommendations it too, too, recognized the need to do something about the ninth circuit by splitting it into three divisions and conjunction with a process to resolve intradivision splits. There is not a huge logical leap between dividing the ninth circuit into three adjudicative divisions and dividing into separate circuits outright. And in response to those who might argue against this split by stating that size creates efficiencies, i would point out that no one has suggested combining other circuits to make them bigger. As this Committee Moves forward on legislation addressing issues facing the federal courts this year, i look forward to addressing the ninth circuit in addition to other issues. Thank you, mr. Chairman. I yield back. I thank the chairman. Im sorry. We now recognize the gentleman from new york, the Ranking Member of the subcommittee, mr. Nadler, for his Opening Statement. I thank the chairman. Mr. Chairman, proposals to split up the ninth Circuit Court of appeals have been floated since at least 1941. It was a bad idea at the time of pearl harbor bemains a bad idea today. They general mask the arguments with the size and the affect of judicial efficiency and on the consistency of its rulings. They say that it covers too much distance and too large a population to be effective. They argue because its so large there is administrative waste, procedural delays and the judges arent able to Work Together to produce a consistent and ration rational jurs prudence. However, the facts say otherwise. It is true that the ninth circuit is the largest in terms of physical area, population covered and caseload. With the district of alaska, hawaii and the territories of guam and northern Mariana Islands it is no surprise judges must travel great distances to serve the circuit. But we have things called jet planes and emails to minimize the disruption of any physical distance may cause. Indeed, that disruption is less today than in 1941. With californias the anchor state is unavoidable that it will cover a large population. Unless you split the state in half. A large circuit is just a fact of life. But there is simply no evidence that the ninth circuit size impede the ability to administer jurs to the people in the durs jix. To the extent of a higher backlog of pending cases compared to other circuits, more resources can be doe voted. Just yesterday, the judicial conference recommended adding five judges to reduce the workload per judge. Technology is deployed in a variety of ways to improve efficiency. Theres also no evidence to support the claim that the ninth circuit is a Renegade Court reversed circuit at the Supreme Court is wildly misleading. Given a small sample size, it is hard to conclude much from the sometimes modestly higher reversal rate, higher rate of reversal that the ninth circuit faces by the most conservative Supreme Court in many generations. Indeed, the worst numbers krooited by critics is 2 1 2 reversals per 1,000 divisions. What this debate is really all about is conservatives do not like the more liberal rulings that occasionally emerge from the ninth circuit. They believe they can manufacture new circuit to produce more conservative results. That is a very different and more dangerous matter. Like clockwork, we see proposals to split up the ninth circuit with a decision of which conservatives disagree. Overturning restrictions on abortion or gay rights, or most recently unanimous decision to uphold the stay on the muslim and frunlg ban. Just last night President Trump said at a campaign rally, people have screaming break up the ninth circuit. This is a quote. Quote, people are screaming break up the ninth circuit. Ill tell you what. That ninth circuit, you have to see. Take a look at how many times they have been overturned with their terrible decisions. Unquote. But to manipulate the federal courts in order to achieve the political ends you seek is highly inappropriate. Just as theres a nationwide movement to end jer manderring, we should resist this form of judicial gerrymandering, as well. Proponents of splitting up the ninth circuit present the vast array of reasons why. And the proposals advanced to solve the alleged harms they cite would not accomplish the results they say they want. And leave in place a large ninth circuit based in california. All while introducing uncertain into the law. While i believe that splitding up the ninth circuit is unnecessary and unwise, i appreciate the opportunity to hear from the witnesses on this issue. I would note that all three of the judges appearing today like majority of their colleagues in the ninth circuit oppose a split and the American Bar Association, and numerous other practitioners and experts who have studied this issue in great depth. I look forward to the judges testimony and to the testimony of our other witnesses and i yield back the balance of my time. I thank the gentleman. All members may have five legislative days in order to have their Opening Statements and other comments placed in the record. Without objection, well wave other ones. Before i do that, i will recognize the gentleman from texas for a purpose of a unanimous consent. Yes, i would ask consent to include a letter in the record with an attachment as to how the cases would be broken up if it was california in the ninth circuit and other other states in another circuit. Without objection it will be placed in the record. We have a distinguished panel here today. The written statements will be ent erped in the record in the entirety. I will ask you to summarize when you 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, 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 today is the truth, the whole truth and nothing but the truth . Please be seated. Let the record indicate that all witnesses answered in the affirmative. Our Witnesses Today include the honorable sidney thomas, chief judge of the United States court of appeals for the ninth circuit. The honorable carlos bea, circuit judge for the court of appeals, the ninth circuit. And the honorable alex kozinski, 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 Vanderbilt School of law. And with that, we will go straight down starting with you, chief. I think that you have to turn your mike on. See if the button in front yes. Thank you, mr. Chairman. It is a privilege to be here and thank you for the opportunity to testify. Im sid thomas and it is my privilege to serve as the chief judge of the ninth Circuit Court of appeals but the views i express today are my own. The ninth circuit is effectively and innovatively manage and provides service to the District Courts. Splitting the circuit would have a devastating effect on the western United States. It would cause case delay and cause expensive and unnecessary and wasteful 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 54 million, and construction for new space for holding case in las vegas, 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 and 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 taxpayer money by cost containment, consolidation, and shared administrative services, creating a new, expensive, duplicative and less bureaucratic 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 our circuit. Circuit includes 14 District Courts and bankruptcy courts and pretrial probation offices and these courts do the nuts and bolts work to affect the largest number of citizens. Circuit divisions would substantially reduce the support for them. We provide support for cyber security, judicial disability and wellness, 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 were able to quickly dispatch visiting judges from within the circuit to solve it. We did this all the time in the circuit. Since 1999, we have made 200 visiting judgeships to arizona, and 300 to idaho, and 100 to the Southern District of california, and 80 judges took 50 kacases recently to resolve 1,500 cases in the california eastern district, and we would not have sufficient judicial resources to mount this effort with a circuit split. The ninth circuit is aggressive in finding ways to are find money, and reduce the physical space, and saving the taxpayers 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 these initiatives would not be possible if the circuit were split because of the lack of personnel and money. On the appellate side, the split could increase the delay and not reduce it. The ninth circuit is known for the innovative and effective case management. And for example, the ninth circuit commissioner resolved over 4,000 motions and 7,000 fee vouchers that otherwise would have been assigned to the judges. The staff motions attorneys disposed of over 5,000 noncontroversial motions through clerk orders that would otherwise be handled by judges. On the staff proposals, there were almost 1,400 merit appeals, and 1,300 habeas, and the pro se unit analyzed 5,000 cases for procedural defects. Last year the mediation settled 1,135 appeals, and that exceeded the output of many of the smaller circuits and the year before it was around 1,500 appeals and we have had Great Success with our mediation efforts. The continuing mediation efforts rising out of the California Energy blackout cases resulted in 8. 7 billion being 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 faster resolution of appeals to the public. A Circuit Division would create more appellate delay, significantly reduce the support to the jurisdictions and would be 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 intact. Thank you, mr. Chairman. Thank you. Judge bea. Good morning, mr. Chairman and im afraid the same affliction happens to every witness. Members of the subcommittee and mr. Chairman, thank you for hearing the subject of the restructuring. My name is carlos bea and i have served on the ninth circuit since october 2003 when my nomination of president george w. Bush were confirmed by the senate and the views i express here today are my own. Based on my 13 years on the Appellant Court i am opposed to bills in the senate hoppers. I would like to talk about the three topics of the advantages aft present circuit and answer a couple of criticisms. First, i point to the great advantage to our business and the professional communities in having a uniform body of law which covers the nine western states and the pacific islands, and a decision by court binds courts and litigants in the whole western area, this minimizes the risk that law of intellectual property, copyrights and trademarks, for instance, maritime trade, labor relations, employment discrimination will be different in phoenix or San Francisco or seattle. You could easily grasp this is not an an strakt advantage. Who has standing to sue on a claim is now uniform in washington state, home of Microsoft Corporation and california, home of google corporation. Thanks to our silvers case. Whether an employee qualifies as a whistleblower if he has or has not informed the superiors but has not informed the securities and exchanged commission calls for the same elements of proof in San Francisco and in tucson. Mr. Newcombe, the manager of the threetime world series champion San Francisco giants pointed out the youve made your case. 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 trial courts in the Northern District of california, we were reassured by the fact that the District Court there would apply the same interpretations of copyright law that a court in seattle would apply because theyre both part of a single federal circuit. The very size of the ninth circuit gives foreign and domestic traders 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 Appellate Courts nationwide which is a concentration of circuits rather than the dispersal. The best size depends on the size of being framed and how tax laws are best achieved by a larger circuit. A second reason why i favor retaining our present structure is we sit on panel with 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 practiced and judged where the trees involved actually grow 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 predictability and uniformity of law based on background and thought of judges would suffer under balkanization. And the most frequently heard criticism of the ninth circuit is 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 additional costs of the creation of the 12th circuit 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 whether they want to be split and i think you will find a very small minority saying should be split. The 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 kozinski. Mr. Chairman, members of the committee, its a real honor to be here, and real pleasure to join my good colleagues chief Justice Thomas and judge bea, and my professor mr. Eastman, and my former intern mr. Fitzpatrick. I thought that he would have learned more the summer i had him there but i will see if i will set him straight. And now i will rely on the written testimony which the burden addresses the aspect of the hearing that deals with bringing justice closer to the people which, after all, is an objective that we all must share. And the bottom line and the part of my testimony is the ninth circuit is at the very cutting edge of bringing justice closer to the people. And for two reasons. One of them is because our circuit is 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 such a large circuit and have so many judges, we have concentration of resources, unlike other courts who have smaller staffs and then have to duplicate certain executive office and clerks offices and other Central Staff, we have Central Staff unified and we have 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 fairbanks or nome or phoenix to see the arguments in your case. See the judges. What you can do is so long as you have a computer, you can watch our arguments anywhere in the world and in realtime and you can see the hearings archived on our website. We are the only circuit that does that and we do it because we have a commitment to the concept of 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 resources that we have available. So this is a commitment that we share, and this advantage is going to be lost if we were a smaller court. Concentration of resources that we have would be gone. I think the case speaks for itself so i need not to belabor it. And i want to talk about three points in the hearing, chairman goodlatte mentioned colee jalty and my colleagues mentioned it an i want to reiterate it. When fifth circuit was split, every single judge on the fifth circuit wrote congress and said, we must be split. That is not the case in the ninth circuit. With two or three exceptions, e literally few exceptions than i have fingers on my right hand, our judges are strongly united on the idea that we should remain a single circuit. This is involves judges appointed by different president s. Our chief judge appointed by president clinton and i was appointed by president reagan and our junior colleague here was appointed by president w. Bush. And that is true of all of our judges but two or three. Now, that should speak something to the functionality of the court. The actual people who are involved in operating the court do not believe that a split would be of benefit, and the committee ought not impute to us a lack of congeniality that does not exist. The chairman also mentioned the fact that no one has talked about melding other circuits into larger circuits. Well, in fact, not the case. Our chief judge emare us the has been advancing the idea for years. I think other circuits would benefit and other regions of the country would benefit from having circuits the size of california. Mini circuits like the first, second and third that are hardly as large as the Central District of california would, i think, benefit from being brought together in larger circuits. And the larger the circuits, of course, the fewer circuit conflicts there would be for the Supreme Court to handle. You said you wouldnt stop me, but i see my time is up. I do want to leave this idea on the table, however, that splitting the ninth circuit is really going in the wrong direction. What this committee ought to be looking at is bringing together smaller circuits to have them help them gain the efficiency and the koe leej yalty that the ninth circuit now enjoys. Thank you. Would you put up the map of the combined circuits, please . There we go. Before the next two witnesses, your honor, since you brought it up, we have the existing circuits, including the first, second and third, which are 6, 13 and 14 judges and combined would be 33 judges, one less than the ninth circuit will be after the additions. So, as we go through the remainder, i do want to make sure and its sort of a theme for today is that if the ninth circuit is too big, then the others are too small, and this would be the combination if the ninth circuit were to be left at 34 judges which is what its recommended to go to, then you would have 3 p, 31, 29 by combining the other circuits, including the first, second and third being combined, although the gentleman from new york told me the sophistication of the new york cases might be a problem for the main folks, but well cover that at a later hearing. Mr. Chairman yes. If you combine the first, second and third, you would still we would do whatever the gentlemen from new york wants to get his vote. Anyhow, professor eastman, on that point of privilege, well continue. Thanks to all the members of the committee for taking up this important issue. I testified before the u. S. Senate more than a decade ago about the same subject, and i think the problem remains as it was then. I was struck by chief judge thomas and judge base comments thinking we ought to be here to discuss consolidation of the other circuits, i was happy to have my good friend say that explicitly. I want to focus on a part of my testimony dealing with college yalty. What were not talking about is how friendly the judges are amongst themselves. I have a great deal of respect for the judges on the ninth circuit, almost all of them. And i think they have a high level of collegiality in the normal way we use that word. Im talking about something more specific, something that judge Harry Edwards described in a pennsylvania law review article back in 2003. The common interest in getting the law right. And its that collegiality that i think suffers the larger the court goes. We have a lot of evidence for that and a lot of testimony to that effect over the years. First circuit judge frank coffin once said, increase the size of the courts, hue mail tate against old fashion collegiality existed when judges sat often with each other. Thats the kind of collegiality im talking about. It checks the sendsies of some judges to, quote, fly solo as judge coffin described. We know who those judges are on the ninth circuit. Once published the Supreme Court cant reverse him all the time. We have an extraordinarily high number of combinations on the ninth circuit. Just if you look at the active judges, and run the math, 3,653 judges of threejudge panels. Add in the existing senior judges its a 1729 different combinations of threejudge panels. Judge talked about a uniform law in the west. Well, i practice out there. I got to tell you its more like the wild west. My clients ask me my clients ask me what my prediction is on how the ninth circuit is going to rule on their case. I said, i have no idea. I might be able to give you a bert assessment once i see the random draw of the panel. And those draws, as i said, are extraordinarily high in the number of combinations you might get. That necessarily fosters an inability to have a coherent body of law. You know, if we do break the circuit up and end up with some more conflicts on important issues, like patents or environmental law, we might actually add back some more cases to the Supreme Courts docket. People complained its getting too light in recent years. Maybe thats a good thing. But the main thing im looking at is the ability to get the law right. The extraordinary number of opinions that come out. Its hard for the practitioners to keep up with everything thats going on in the court. I know its got to be hard for the judges as well. That necessarily creates intracircuit conflicts. Oftentimes in nuances decisions that dont manifest themselves for years or decades because of the large size. As the White Commission reported, consensus among appellate judges throughout the country, including about a third of the ninth circuit judges, now this was a while ago, thought that a court of appeals being a court whose members must work collegially over time to develop a consistent and coherent body of law functions more effectively with fewer judges than are currently authorized for the ninth circuit. The White Commission concluded that the optimal size of a Circuit Court was somewhere between 11 and 17, thats roughly half the size that we have on the ninth circuit now. Its not just the reversal rate. I want to take this up and i know my colleague is going to talk about the statistics on the reversal rate. As judge posner pointed out in a thorough study, the ninth circuit had the highest summary reversal rate by far over any other Circuit Court in the country. This, i think, goes to the outliers, those judges that fly solo that can be unchecked by the lack of familiarity and frequent meetings with each other. Its six times as high as the next circuit. Judge o scanlin who as i understand it submitted written testimony to the court. I hope it will be entered into the record. Notes that one and ten of the ninth circuits decisions taken up by the Supreme Court are summarily reversed without even oral argument and roughly half are dismissed unanimously this on a Supreme Court that is very ied logically divided. That demonstrates theres something going on, an outlier effect, a effect of judges flying solo on the ninth circuit that quite frequently doesnt exist on the other court of appeals. I think it is correlated and perhaps caused by the size of the court. Thank you very much. Thank you. Professor fitzpatrick. Mr. Chairman, members of the committee, thank you so much but the gentlemen will remember that your old mentor is there. He wants you to at least strike some balance of what you remember him teaching you as you dispel what his opinion is. Well, yes thank you for having me, mr. Chairman. I was an extern to judge and theres no question the ninth circuit is a very fine circuit, but i think we can have two even finer circuits if we split it. Like everything in life, there are costs and there are benefits to splitting the ninth circuit. I have no doubt that chief judge thomas is correct. If we split the ninth circuit, we have to spend more money to create another administrative apparatus in the new circuit. I dont doubt that. There are benefits as well. And the benefit i want to talk about today was eluded to by my colleague, professor eastman here. If we go to smaller circuits, we reduce the number of outlier decisions that the courts make. And when i say outlier decisions, i dont mean it in a partisan way. We can have conservative outliers, we can have liberal outliers. Smaller courts lead to fewer outlier decisions. Let me first talk about the ninth circuits reversal rate. This is good evidence that the ninth circuit is issuing more outlier decisions. It is indisputable that the ninth circuit has the highest reversal rate of any court of appeals in america and it has been that way for many, many decades. When people dispute that number, as chief judge thomas did in his testimony, they usually talk about the win loss rate of the ninth circuit at the Supreme Court. Given the cases the Supreme Court has chosen to review, the ninth circuit win loss rate is sometimes the worst, sometimes the best. But thats not how serious and pure cyst and scholars measure reversal rate. We look at how many reversals are there compared to how many underlying appeals does the court decide. Theres no doubt the ninth circuit san outlier in reversal rate. Its reversed much more often than any other circuit as a percentage of the appeals it decides. You dont have to take my word for it. There are serious scholarly studies that i site in my written testimony. One of them was written as my colleague noted by judge Richard Posner on the United States court of appeals for the seventh circuit. He sits in chicago. One of the most wellrespected judges in the history of the american judiciary. He looked at how often was the ninth circuit summarily reversed by the Supreme Court. Quote, the ninth circuit has the highest rate of reversal by the Supreme Court. He looked often the ninth circuit was unanimously reversed by the Supreme Court. Quote, again, the ninth circuit is at the top. Hes not the only one. I also sited my written testimony a study by dr. Kevin scott. Hes a ph. D. In Political Science who now works for the federal judiciary. He works in the Administrative Office of the courts. He, too, looked at the ninth circuits reversal rate. What did he find . Quote, the frequency with which the ninth circuit is reversed is a statistical anomaly. The ninth circuit son its own island when it comes to reversal rate. Why . Size is the reason. Math tells us that size will cause a circuit to issue more outlier decisions. Why is that . Its simple statistics. Circuits decide cases in three judge panels. Three judge panels are randomly selected from a larger group. You can run the numbers. I do it in my written testimony. The probability of selecting a panel of three with the majority of outlier judges increases as the size of the circuit increases. I did a graph of it in my written testimony for you. The math on this is not disputable. When i first raised these mathematical arguments several years ago, the last time the split was on the table, the ninth circuits own statistical consultant, professor david kay, he is now a law professor at penn state, he was back then a law professor at arizona state. He wrote a response to my mathematical points i raised in my testimony here in ten years ago. Hes a defender of the ninth circuit. He likes the current ninth circuit, but he didnt disagree with the math. Professor kay said, quote, fitzpatricks mathematics have baring on the optimal size of Appellate Courts. Quote, to the extent that panels of extreme judges are undesirable a smaller court is superior. This is the ninth circuits own statistical consultant agrees smaller courts are superior. Nothing here has anything to do with republicans or democrats. Its about the optimal design of a Circuit Court. Smaller courts are better. Because smaller courts lead to less extreme panels. It is possible to overcome the math with a good on bonk process. A full court could see an outlier panel and take the case on bonk and reverse it. The ninth circuit is too big for a good on bonk process. Not all the judges can sit on bonk because theres so many of them. They randomly select 11 to sit on bonk and you can have outliers making up a majority of an 11person on bonk panel just like you can have outlier on a threejudge panel. The ninth circuit on bonk process doesnt work, thats why the reversal rate is so high and other bigger circuits like the 11th and the fifth dont have as high reversal rates because their on bonk process catches the outliers. Thank you, mr. Chairman. I want to thank all of you for your testimony, again your entire written statements will be placed in the record and additionally the other written statements are in the record. With that ill recognize myself for my line of questioning. I would ask that that map be put back up on the board. Pick the combined one. Thank you. It will get there. Judge thomas, in your Opening Statement you very wisely pointed to bureaucracy, efficiency, all the benefits that you feel bigger has. Does that mean that perhaps judge kaminsky you would support combining these into similar sizes for the others, essentially reversing when the fifth was split because right now its still smaller than your circuit would be if we put it back together . Well, if we were designing a circuits from scratch, my answer might be, yes. But we have established circuits with established jury is prudence. I think combining circuits now would certainly cause more wreck more havoc on the rule of law and their existing administrative structures than if we were starting from scratch. Let me follow up with go ahead. If you disagree with putting them back together, then lets go through a couple of things. First of all, that means that, for example, the first is an incredibly inefficient. It only has six judges. Its very small. It represents a small population and a small amount of case loads by comparison to the other circuits. So, i appreciate the fact that New Hampshire and maine have different law than new york or massachusetts, but the fact is that you mentioned that your judges, the vast majority, support staying together. And, of course, unanimously or nearly unanimously the judges of the fifth circuit supported breaking up. Well, without trying to be disrespectful, this is, in fact, not your business. The business of the size of the courts, the efficiencies, the financial contribution our proep ray tors give is disproportionately our obligation. And so when you say that its on one hand more efficient to run the ninth circuit as a large group and professor fitzpatrick says that it is, in fact, a 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. I dont know if professor, i dont know if youve done this, but what does it cost for the Supreme Court to take up cases . What are the costs to the ones they dont have time to take up and reverse that are decided wrong, the bad law . So, i guess i would look and say i appreciate the dollar figures you gave us, but those dollar figures probably dont add up to one bad case thats decided that goes to Supreme Court, would they . A typical patent case is 8 or 9 million for each side now. If it goes all the way to the fed circuit and Supreme Court, its more. But the cases that you get wrong, that end up in the Supreme Court, have legal fees greater than youve described as your cost of having a few more courtrooms, wouldnt you agree . Well, i have to respectfully disagree, mr. Chairman. First and i want to say have you looked at what legal bills in cases before you cost . Oh, i know theyre tremendous legal bills. But first of all, we arent the most reversed sir cut. We havent been during the roberts era. The fifth the fourth the year before the fourth lets go back professor, is that true that theyve been doing better lately . It is true theyre not as bad as they used to be, but theyre still the most reversed. Now, in any given year does a another circuit have a higher reversal rate, occasionally. Over the run of the last 20 years the ninth circuit is 44 more often reversed than the next closest circuit. Okay. Let me put my questioning on a piece of history. The White Commission, which was mentioned multiple times. Their final report from december, 1998, in that byron white does not call for breakup of the circuit. Thats right. He does call for effective breakup of the circuit. It says we propose the ninth Circuit Court of appeals be organized into three regional based adjudication divisions. Those divisions would be alaska, idaho, montana, oregon and eastern and western washington. Second one, the middle division, would be the northern eastern california, guam, hawaii, nevada and northern marianas. The southern division, which would be arizona, the central and Southern Districts of california, where i reside. Basically his recommendation was to break your circuit into three circuits so there would be regional adjudication. Do you support that today . I do not. Okay. So, when people refer to White Commission, he did support breaking up your circuit. He simply had a different way of doing it, such that you could have one set of law no matter where it was decided, but it would achieve what professor fitzpatrick is talking about im going to come back to you because time is limited and i want to make sure i get at least the organizational. If we were to have these large ones or go back go to the other smaller one, the 12. Or with the existing ones, the only way to get the equivalent of the ninth circuit being broken up to meet the requirements that you mentioned, the smaller, the more predictive, not to have the random your numbers were staggering, i must admit. So im going to just assume that if you followed whites recommendation and created three regionals, you would get all of the advantages that judge thomas is talking about of the large and the administration, but you would get on bonks that were able to meet they would be more or less 11 judges. You would have three judge panels that were from a definable group that would be similar to the other circuits that exist today, is that correct . I think youre absolutely right, mr. Chairman. Okay. So if anyone has any further comments before we go on to other members, i want to give you a chance because today, when i look at one side of the body that must decide saying break it up, and then i look at the history of a recommendation not taken in 1998, and i look at 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. Go ahead, judge. As an old trial lawyer from california, let me tell you why the White Commission recommendation is not practical. If you divide california into Northern California and southern california, when we apply California Law on diversity cases like we do all the time, well have one interpretation of California Law in San Francisco and another one in los angeles. That is not good judicial administration. Okay. By the way, i think when i read the byron the white report, what i saw was that that did not prohibit the regions from resolving their ambiguity, such that california effectively wouldnt be split if they did have, for some reason, a northern and southern split, but i appreciate that. We now go to the Ranking Member of the full committee, the honorable gentlemen from michigan. Thank you, sir. Back to you, judge thomas. Did i get you correct when you said that supporters claim 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. Thats true. So, now advocates for splitting the ninth circuit argue that the circuit is the nations largest in terms of geography, population and corresponding workload. Why shouldnt these factors warrant dividing the ninth circuit . Well, if you take the current proposals dont really change the solve the land mass problem. If you create a new 12th that has 80 or more of the land mass, depending on the proposal, with 20 of the cases. Because judicial budgets are caseload driven, it would create the largest land mass with the smallest amount of money in any of the circuits in the nation. Correspondingly, california would be underfunded for the same reason. It would have to duplicate the resources with a diminished budget. So its not a good answer. Okay. Judge baya. Yes, sir. When congress considered splitting the fifth circuit into the 11th circuit, the overwhelming majority of judges and members of the bar and the circuit supported splitting the circuit. Is this the same case with the ninth circuit . No. Mr. Conniers, just the opposite is true. I think you have in your records a 2006 letter signed by the judges of the ninth circuit then. I was a junior judge then and i signed it. With the exception of three of the some 45 judges at the time because senior judges also signed that letter, there was three judges who are presently also in favor of the split. And as far as i know, theyre the only ones in favor of the split. Theyve written letters to the committee, judges klinefeld, tallman. As far as i know, the rest of our judges are against the split or agrees with mr. With the chairman think its none of their business, its your business. Ahha. Let me turn now to judge thomas again. What are some of the adverse impacts, sir, that splitting the ninth circuit would have on the provision of justice . Well, certainly increase delay on the appellate level not decrease delay. We would be stripped of our innovative administrations. We simply couldnt afford them. You cant divide the budget, reduced staff, put more work on judges desks administratively and expect them to decide cases more quickly. In addition, i think the Central Point is that we would really lose delivery of services to the public in their served at the District Courts and bankruptcy courts. We provide consolidated and Effective Service to that. And i mentioned some of them, cyber security, wellness, support, building support, the smaller districts benefit from our advice on how best to construct buildings. So, the districts would suffer enormously if this 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. We would have two clerks of court, two and staff. Two circuit executives and staff and the list goes on. Its really an enormous infrastructure for a circuit to have. So you would be unnecessarily duplicating those functions and also reducing the ability for those offices to deliver services because they would be doing the same Service Functions in each circuit. So, for example, you take the mediators now, we have about eight mediators that settle more than the output of some smaller circuits. We couldnt afford that in smaller circuits. We know from practice that mediation efforts of some other circuits arent as successful because the lack of critical mass. We would lose the critical mas of resources that we would need. Finally, what are some of the costs attendant to a division of the ninth circuit . Well, you start with Construction Costs because we dont have places of sitting to hold court in the places designated by the legislation, we would have to build a new circuit headquarters in phoenix. We estimated that cost to be 128 million. The renovations to accommodate would be 54 million. 2 million each for holding places of court in las vegas, missoula and anchorage. Those would just be the start of the costs because obviously we would have increased travel when you have a circuit thats extends from the arctic circumstance toll the se mother ra desert and no center of gravity. Overall the duplication would cost sick ngnificant amount of money. 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, yes. And if so, could the ninth circuit be reconfigured into two circuits having roughly the same case load without splitting california . No. But i really dont see any reason why california could not be split. Theres no reason why federal law could not vary from one part of a state to another in the same way that federal law now varies from one state to another. Thats true. Thank you, mr. Chairman. Thank you. Thank you. Great questioning. I now go to the gentleman from georgia for his questions. Thank you, mr. Chairman. And looking at this, i have some more general questions. I think the questions is i want to move to is how we would go about splitting. Judge thomas, i didnt we were just discussing your last answer. Can you clarify better what you were talking about as far as cost, because we sort of from the question im not sure the answer. Maybe i just misunderstood it, but your last answer about different places being all over, clarify that briefly for me. Well, certainly. The current ledge slaft proposals call for the creation of a 12th with a new circuit headquarters in phoenix and secondary headquarters in seattle. We dont have space there right now. We dont have space to hold court. We dont have visiting judge space. We dont have space for the circuit staff. So we asked our staff and gsa to come up with a cost estimate of what that would be in phoenix and they came up with 128 million. The same was true for seattle because we have some upgrades we need to do and some infrastructure needs we would have to move out federal agencies from that courthouse. And the estimated cost from that is about 54 million. That would obviously change. Theres no places for holding Circuit Court hearings in the designated places like missoula. You can borrow a District Courtroom for a day. But if you need to sit for a week, you need a courtroom. You need visiting judge chambers and infrastructure. We have that situation in honolulu. Were fortunate to share with the bankruptcy court, but you need staffing to secure that facility. Year round it would based on case load only used a couple times a year. I appreciate that. If you are looking at creatively here, i mean, business we ought to change places all the time. Im not sure the size. One of the things i hear about this being from the 11th circuit and when it split but i want to go back to something that is often talked about the reason we cant do the on bonk, true on bonk. And the good justice were actually saying we use technology, making good use of that. Explain to me why you cant do the on bonk. You have the good technology, if you have the ability, if you dont have to bring them in, you can do them from actual interchange, we do it in classrooms all the time, is there possibly another reason why they dont want to do the true on bonk hearings . You know i really dont know why they dont. It is theoretically available in the ninth circuit to have a full court on bonk rehearing as chief judge thomas noted in his written testimony, its never been done, but its theoretically possible. Why they dont see the need to do it is beyond me. One of the things that i noted in my written testimony is when i served as a law clerk on the ninth circuit, we had an 11 judge on bonk panel with ten democratic appointees and one republican appointee. It is not a representative on bonk process. And i think if they did go full court on bonk, then the reversal rate might very well fall because they would be able to catch some of the outlier panels better. Could possibly im just asking judges if you did more on bonk you might see a need to split this circuit because i think this is something we got to look at. The question here, is one of the things i want to come back to mr. Fitzpatrick. One of the noticeable differences between current bills and one of the different ideas, not just the ones mentioned, thomas. What do you see as a priority in deciding which states namely oregon, washington going to a new ninth circuit which states would go to the 12th. I think its a hard question. Probably a lot of factors that go into that analysis. I think one of the most important factors is to try to get the circuits to be as close as possible in terms of the number of judges for some of the reasons weve been discussing here to cut down on outlier panels, to make an on bonk process more meaningful. If you keep california by itself in one circuit, the analyses suggest youre going to need over 20 judges for that circuit still. It will still be the biggest circuit out there. And so i would encourage the committee to consider some kind of division of california. If not what the chairman mentioned from the White Commission, then some other way to divide up california. Because its really the elephant in the room. And im interested and ill open it up to everyone very quickly if anyone wants to and get back to this as well. I was the district that was last affected in the area of georgia in the fifth and the 11th when the circuit split. What kind of lessons can we learn from that that would help the transition if we moved ahead with the ninth . Well, i think the lessons from the division of the fifth there was a logical division geographically. There was a proportionalty of case load. They had places of sitting in tact and all of the judges supported it. So, it was seemless. You dont have that circumstance with the ninth circuit. Theres no proportionalty in any of the splits. There are either in land mass or in population. The judges do not support it. And it would lack injury is prudential. They made that decision and it was a logical one i think at the time. Its not logical for us. I appreciate the judges opinion on that and i think like i said, i think whether the judges of the fifth or 11th actually agreed or not frankly comes down to a matter of concern but not also a matter of opinion on this body as well. With that, i yield back, mr. Chairman. I thank the gentlemen. Now go to the Ranking Member of the Sub Committee for his questions. I thank the chairman. Judge thomas, last night President Trump attacked the ninth circuit, which he said is in chaos and frankly in turmoil. He said people are screaming to break up the ninth circuit. You have to see how many times they have been overturned with their terrible decisions, unquote. Now, less than one tenth of one percent of ninth circuit decisions are overturned by the Supreme Court. Do you think that statistic 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 . Well, Judicial Independence is important and i know this committee recognized that. I would not want to comment on the president s remarks. Okay. Many supporters of legislation to split up the ninth circuit are up front about the fact that they support a split because they perceive it to be a liberal court. If politicians were able to jerry mander new court that would presumably rule more in line with their political beliefs, what impact do you think that would have for the publics thought . It would diminish the public respect for the rule of law, no question about 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 of what you could do with 130 million if we dedicated those funds toward increasing availability of Legal Services for lowincome civil litigants in the ninth circuit . Well, one of the great the United States as a whole for that matter. One of the great problems we have in the Appellate Courts are pro say lit gators approaches 50 of the volume of your cases. We are weve been engaged in a prison litigation reform effort to solve the problems in the prisons and take them away from the courts and improving mediation and grievances procedures and providing prison staff with more effective and efficient ways of doing things. We had a summit in sacramento and a task force for each district. Were going to save money that way, but if we could use 130 million that would go a long way to solving that problem. Thank you. Judge, splitting up the ninth circuit argue its lack of predictability. Only a subset of 11 judges serve on any on bonk. Professor eastman eluded to this before. 19 out of almost 12,000 cases terminated were heard on bonk, do you think it has a measurable effect on the jurisdiction of the court . It has some affect, but the important point is that we had 21 cases this past year. Other circuits take much fewer on bonks, take on bonks in the Single Digits and often the low Single Digits. So where as we have truncated on bonk, we go on bonk much more often and able to go on bonk much more often and police our panels much more effectively than other circuits have to convene. We have worked this out mathematically. As we know, sampling is not perfect, but we often poll smaller groups to give us a good indication whether theres outcome in logical. 11 judges if you take a group of 29 judges the size of the actual judges on the ninth circuit, and you select at random 11, that the outcome of the 11 the almost always 90 of the time will be the same as the full group. So, the professor fitzpatricks concerns about predict ability i think are vagsly overstated. Thank you. Professor fitz pa tick you said majority were dominated by democrat president s. Thus you reach the unsurprising conclusion that this is a major factor if the somewhat high reversal rate of the ninth circuit over that time. Wont the ideological makeup of both courts change over time as new president s and governors take office and make new nominations . Why do you think we should address a temporary issue . Youre absolutely right, but my view does not in any way depend upon the current ideological makeup of the ninth circuit versus the Supreme Court. That was just a note that i made that 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. 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 evidence for that at all. You say it might very well. We know about the ideological im sorry about the political disparity in appointments thats clearly going to an v an effect. Then we have a theory 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 site in my testimony is a study by dr. Kevin scott. He works for the federal courts. He concluded that the dual factors of the ninth circuit greater size and limited on bonk procedure added nine reversals a year to its success of the Supreme Court. Thats what he came up when he ran all the numbers. Lots of judiciary guys are wrong. On that shining note, we now go to the gentleman from utah, chairman chaffetz. Thank you. I appreciate yall being here 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 pointed out by Richard Posner. Im going to read part of mr. East mans testimony here. The quality of judicial output declines as the number of judges on an Appellate Court expands was the premise of the conclusion of richard poser ins chief judge posnors paper here. Thus, although the fifth circuit had nearly the same case load 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 o scanlin, im sure im mispronouncing his name noted in a 2013 article one in tenth nine circuit cases reviewed by the Supreme Court results in a summary reversal, end quote. Another half are reversed unanimously in a nonsummary disposition by otherwise ideological divided court. More over, according to mr. Eastmans testimony the combined reversal rate of the fifth and tlechbt circuit is much lower than it was before the two circuits were split from the old fifth. And so, the question goes, it was chief judge posner wrong in his conclusion that the quality of judicial output declines as the number of judges on an Appellate Court expands . And if he is wrong, why is he wrong . I mean, hes siting some fairly strong evidence over a 12year period . Well, i guess ill start, if you dont mind. Of course when i hear the statistics you recall 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. 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. 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 our even our unpublished decisions. Some are concerned about bankruptcy law. And some are concerned about of environmental law. And all of thesespective to the court. We have free and robust exchanges everyday in terms of the kind of collegiality that professor eastman was talking about. So, i think go ahead. My colleagues may have a different looked at very statistical information and drew the conclusion there is a direct relationship. I can tell professor fitzpatrick wants to jump in here. Go ahead. Judge posne rerks is simply one of the most respected judges in the history of our court system, perhaps the only federal judge that is mart smarter than judge posner is judge kazinsky, he deserves great weight when he runs the numbers and comes to the vus he does. Its consistent with everyone else that has looked at the data. Again, the study by dr. Kevin scott for the federal judicial center. It all says the same thing, which is size matters. And representing some i think the number is more than 65 million people, im just not buying that its faster and support services i 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. I got to tell you, there is 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, i 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 70 people here that we 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 committee, 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 i got to tell you, according to some others i hear on this panel say, where is the outrage . There are a lot of us that are outraged. The president was duly given by congress the authority to protect our borders. 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 look at it. I do think certainly chief Justice Posner and some of the panelists here are on the right track. I think being able to deal with things in block, too, should be given heavy weight and that is clearly not happening in the ninth circuit. I yield back. Mr. Chairman sh ive been compared to judge posner, i can give an answer. It wont take very long. Your honor, how could i deny you . I might some day in your court. Good answer. A model is i have great deal of respect for judge posner, but we disagree all the time on all sorts of things. The model is only as good as the inputs you put into it. If you leave out important considerations, the model is going to give you the wrong answer. The period in question that judge posner looked at, overlooked the makeup of the two courts. And the reality is that in 19 late 1970s the ninth circuit moved from 13 judges to 23 judges and president carter was able to appoint 11 or 12 judges to 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 the other direction. And so, much of the disparity that professor fitzpatrick and judge posner refer to, you can only attribute the size if you think the judges are blank spheres. If you take into account who the judges were, the two courts, that explains it. Its not a question of size. Problem with dicks analysis is he looked at the wrong thing. He looked at size where as really it was the composition of the panels that made the difference. Now the fact that they were reversed by the Supreme Court was wrong. It may mean the Supreme Court was wrong at least in the view of my colleagues. I think thats whats going on there. I thank you. Im going to force to move on, if you dont mind. We now recognize the gentleman from california for his round of questioning. 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 a ninth Circuit Court of appeals for a late judge thomas tang. The ninth circuit has awesome judges then. It has awesome judges now. And what i want to ask first of all, thank you, judge for being here. My friend Beverly HillsSchool 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 . Supreme court, you cant decide to pick and choose. Of course. 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 going to get a higher proportion of cases that push the envelope, that challenge the s s s s s quo, th are more progressive. And as a result, some of the statistics youre seeing is because of the cases that are brought before you, is that correct . Thats certainly right. Of course it would 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 prospective. The rural perspective the mountain perspective, the environmental perspective. And isolating california would only exacerbate the problem of which you speak. Thank you. Because i see many of the statistics that my colleagues on the other side bring up, and they are statistics without any meaning. I dont think the relevance is what percent does any particular circuit get reversed. I think the relevance the quality of the opinions coming out of this circuit and are they doing some groundbreaking opinions. For example in 2014, when ninth circuit went out and said, you know, bhloggers have the same free speech protections as free speech press. Thats the kind of things we see out of the ninth circuit. So i think the real statistic is what are the quality of the opinions coming out. Are the judges putting down the rationals . Are they explaining to the American People what they are doing. For the record, i note 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 for the witnesses. Im melding it. 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 the ninth circuit is operated. I clerked on their and its interesting that my colleagues on 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 that have made this decision. So i think its strange to say lets break up the ninth circuit as the president said last night because a judge in the ninth circuit said that his executive order was based on bigotry and unconstitutional. Because today the maryland judge said the same thing. Im waiting for the president to say lets break up the Fourth Circuit. Even if you broke up all these circuits f you had 50 circuits, you still have the same number of federal appellate judges sitting there being paid to follow the constitution. You would still get the same decisions, it would just be out of the 29th circuit instead of the ninth circuit. You wouldnt get any change in the law thats coming outs. I think this entire hearing is sort of bizarre and useless. With that, i happily yield back. I thank the gentlemen. Now go to the gentlemen from florida, mr. Dossantos. Thank you, mr. Chairman and thanks to the professors and members of the court. Judge, do courts, your court, District Court, Supreme Court just have a roving authority to review actions of the political branchs . No. So, it needs to require a concrete legal case or controversy, correct . Absolutely. So, if the president does things, congress does things, may end up in front of the court properly, but there may just be no way people can get into court for you guys to adjudicate if no one has standing to bring a legal case, right . Absolutely. Do you believe that article 3 courts process 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 actual legal issue to understand i mean, there are certainly possibilities that Congress Passes a law that 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. And so is it safe to say 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 . Congress can pass a statute, maybe president signs it, it goes beyond congresss authority, you are fringe the bill of rights you can have a case before you and effectively check the congress through a concrete case. You guys get it wrong. Your District Court gets it wrong. Supreme court gets it just agree vously wrong. How do the American People check bad Court Decisions . Well, if i may say so, when the Supreme Court speaks by definition it gets it right. If the Supreme Court interprets the constitution, thats the way thats the way the constitution says. Thats the way our system works. I disagree with that. You look at the dred scott decision and other cases, courts are not infallible. Youre a very smart guy. I like a lot of your opinions. I think youre very principled but i really disagree with that. This is not speaking exkath dra from this building over here. They do get it wrong and i guess your argument to me is that there is no recourse for the Supreme Court. 54 decision, even if we think its way outside what the constitution is, theres no mechanism for us to check that, correct . Well, yes, the amend the constitution. Theres a mechanism. Amend the constitution. We can also, the Supreme Court does and let me just make clear, i disagree with any number of opinions of the Supreme Court, particularly those where 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. Yes. You as a circuit judge are bound by it, of course. Were bound by it and its but the Supreme Court does reconsider itself views from time to time. We saw that happen with case bowers hard work that held that homosexual sodomy was could be criminalized. And 17 years later the court changed its mind and reversed course. So, the court does reconsider its rulings. One possibility and one way in which those of us who disagree with Supreme Courts some of the Supreme Courts courts rulings can seek to avert the situation is by bringing other cases and making a stronger case and per situating the court to change its mind. That requires private parties. Thats not congress as the representatives of the people checking. There are things in the constitution circsi circumscribr jurisdiction. When youre talking about an action taken pursuant to a broad statute and you 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 suspend . Ill give you back the time. Consistent with the judges other role, they can answer any hypothetical they want, but nothing related to i was going to end with a statement. Then i apologize. My concern is, 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 an pip aantipathy for the Court President but that is not enough of a reason to wade into some of these sensitive matters of National Security. So i think the courts, while they think theyre saving the day from some peoples perspectives, i they think they may end up in the long run undermining, you know, their proper role. I dont expect them to respond. Im concerned. 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 side with judge kozinksi, ultimately theirs is the last word at the time that they make it. Us california boys have to hang together. We will hang. If some of this legislation passes, we will hang separately, i guess. With that well go to the gentlelady, ms. Lofgren. Thank you, mr. Chairman. We often get professors, not to diminish your presence here today, but it is a rare day that we have justices and its an honor that you have come here to share your thoughts with us. I for one appreciate it a great deal. Its great to see the faces after ive seen the names on the decisions. 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. 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 tenyear 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. And 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 sixth district. So i think these statistics really are not very enlightening. And for me as chair of the California Democratic delegation, its important to me. The state of california not be divided. Unless the state of california divides into two states, which is not something the people of california wants or the congress wants, its very important that there be a cohesive rule of law on the state of california diversity decisions. I think justices bea and kozinksi mentioned that earlier. You could theoretically take montana and idaho out but it wouldnt materially make a difference. I think judge kozinksi said there is value in diversity. It might make a difference if i lost my mom. It might make a personal difference, but it wouldnt materially affect it, why make a change for such little impact. I just wanted to say, i think its unfortunate in a way, i dont blame the chairman, im sure there 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, you know, the judiciary, the executive, and the legislative branch. And theres a lot of criticism, the president just said recently, i think just today, that the judge who decided i dont know whether it was the hawaii or maryland judge he was citing, 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 decisionmaking. And i think its important that we not do that. You know, yes, the president has is given the power to do a variety of actions by the congress. Hes not given the power to violate the constitution. And theres certainly there will be a lot of litigation. Well see in the end what the decision is. But i for one am confident that the judges who will be hearing this case will hear it with an open mind, with an eye on the facts and the precedents, and come to the best decision that they can. And 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. The 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 of the committee is actually quite shocking. I apologize. Not a member of the subcommittee. I am a member of the subcommittee. Anyway i apologize. I apologize. That is staff and im not blaming staff, but they did tell me its good to be where you feel wanted. 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. We will reset the clock. Its the problem of large numbers. Thats it. Youll notice the size of the dais is about the size of the ninth circuit. Thank you, mr. Chairman. I appreciate and thank all the panelists for being here today. 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 has c piqued my interest. This really is the largest circuit. One of the judges mentioned the new 12th circuit was going from the Arctic Circle to the Sonoran Desert unlike the current ninth circuit which runs from the Arctic Circle to the equator. This is part of the problem. The circuit represents over 60 million people, which is at least double the size of any other circuit, 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 accounts for more than onethird of all pending appeals in the country, totaling about 13,000 as of the end of last year. At the same time, no other circuit had more than 5300 cases pending. And last near it took 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 in support of circuit split. Justice kennedy noted that any circuit that claimed the right to bind, and im quoting here, to bind nearly one fifth of the people of the United States by decisions of its threejudge panel must meet a heavy burden of persuasion. And he later said on a different occasion that i do think its appropriate for the judges of the ninth circuit to lobby terribly hard against it, meaning a proposed split. By 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 authored judges a large caseload. At the time, there were similar heightened arguments that weve heard, like weve heard today, about the many detrimental effects of splitting the fifth. Congress succeeded in splitting it in 1980 through the court of appeals reauthorization act. And the question that comes to my mind is, who here today would argue that we would 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 circuit is better. So and this constant position today that maybe a larger circuit may be better, leads me to ask this. Should we even have circuits anymore . Should we have 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 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. Another statement was made about people on the ground, that we should listen to people on the ground. And that was a reference to the judges of the ninth circuit. But i live in the ninth circuit. Ive litigated and ive litigated as a litigant and as an appellant. Ive had cases go. Ive talked to many litigators. Its similar to what professor eastman was describing. We had no idea where we were going to go. As a client, my attorneys, very experienced attorneys, i wont mention their names, they might have appeared before you, would 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, on who the panel is, and its too late, by then its too late. It actually prevents predictability, it prevents due process. And that is the position that i am in. Having led the Arizona Senate for a number of years, 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 we were spending, and it was virtually impossible to predict. And thats the problem with a circuit the size of the ninth circuit. I just when i realize im out of time, but theres just so much to talk about with regard to this, and to deal with each one of the issues that you raise. But i just can get back down to this. Justice Sandra Day Oconnor also supported a split of the ninth circuit. These are thoughtful people who 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. So thank you. Thanks, mr. Chairman. I thank the gentleman. And andy, again, im sorry. Its all right. Im going to do some quick wrapups. Perhaps the minority will want a couple. And im try to stay outside of my admonishment of others. Judge thomas, you had said that combining circuits would be a problem. But isnt it true that to the extent that 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, make it as though you were in a third circuit, so that the precedence would then be essentially open to be considered again 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 you are combining if you split a circuit, the circuit law applies to the new circuit. Sure. 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 that the ninth circuit reaches . Well, my answer is that the litigants and litigate eors dep on the long history of circuit law. To the extent there are inconsistencies in that law, that creates some unpredictability in the uniformity of law. It would be undesirable in my view. What i do think is helpful is our national initiatives, 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 fund more efficiently through those practices. Back to the White Commission, and im going to hit it tangentially, this is a somewhat political question, so i think ill go to my friend judge kozinksi. To the extent that political appointments do matter, and you used the jimmy carter appointments with some accuracy, then isnt in fact one of the problems, not on your side of the dais 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 that is in the purview of another branch. But the matter is quite complicated, because of course these kinds of decisions are made by the executive branch, by the president selecting nominees, and then pushback from let me ask it in another way, then, perhaps to any of you. If in fact these bodies, the house and the senate, were able to resolve 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 californian 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 the only senators that the circuit involved just 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 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 trepidation 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 gentlemen, mr. Flake and mr. Biggs suggested, and effectively split off everything but california . I think its a big problem. 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 judges. Thats why i really commend solutions that break california into pieces in some way or another. And you cited the White Commission proposal earlier. And i think there are other ways to do it. But i think that 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 essentially in their home state having effectively a veto, and im trying to not to be partisan in any way, shape, or form, if you go to arizona you end up with the exact opposite, but if that is a reality, isnt that something that this committee should guard against, any circuit which would be essentially politically tilted, if we could do it . Well, i would hope the committee would make the decision based on nonideological factors. I take comfort from the chairmans remarks that thats not the intent. And frankly, i just dont want to opine on what congress should do internally. I have to leave that to you. I was asking actually for your observation of the effect if there were was a single state solution with lets hypothetically say if arizona were a circuit and 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 you would end up with vastly different circuits, and they would be onestate circuits . And is that something we should generally guard against . Well, if i might answer more generally, i think onestate circuits are a bad idea for a whole variety of reasons, some of which youve just identified. Okay. Any other questions . Okay. I would ask, would you all be willing to take some followup questions . A number of members why not able to get here, they tell competing markups. Of course. 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. [ room noise ] well have more live Coverage Later today when the house ways and Means Committee considers legislation that would require the treasury secretary to provide President Trumps tax returns and other Financial Information from 2006 to 2015. Well have the hearing live at 4 00 p. M. Eastern here on cspan3. You can also join us online, streaming live at cspan. Org or listen live on the free cspan radio app. In case you missed it. On cspan, the National Coordinator for Child Exploitation prevention during the obama administration. I used to think the hardest thing i would have have to do was look into the eyes of a child and listen to her story about being abused. I was wrong. The hardest thing i ever had to do was watch their abuse. Sometimes still photos, sometimes video, sometimes with sound. All heartwrenching. And even now impossible to forget. Agriculture secretary nominee sonny perdue. Farmers are really struggling to be profitable, hold on. Sometimes even the best farmers are not able to produce a product even with the best production capabilities they may have. So i think trade is really the answer. Msnbcs Chris Matthews at the First Amendment awards dinner. The truth contained in hard news, the truth that arrives on the front page or the straight news broadcast, thats what contains the politician. Thats what stops the overreach in power. And thats what the country takes seriously. And thats what matters this hour, this week, this time in our lives. Treasury secretary Steve Mnuchin on comprehensive tax reform. The goals of tax reform, okay, which are about creating a middle income tax cut, about creating personal tax simplification and making u. S. Businesses competitive, okay, where we have very high business tax rate and worldwide income. You know, were able to take the tax code and redesign things. Pfizers ceo ian read on pharmaceutical costs. No one is using our medications on the exchanges, because the exchanges dont provide them access. I think we do need to Reform Health care, the way its delivered. And the consequences will benefit patients. Epa administrator scott pruitt on environmental policy. There are exciting things going on with respect to Clean Coal Technology across the globe. Theres exciting things going on in the nuclear space. But not here. Most of that is happening in europe presently because of the disincentives that weve put into play in this country with respect to nuclear. If you really care about some of these environment concerns, nuclear ought to be in the mix. Cspan programs are available at cspan. Org, on our home page, and by searching the video library. Congressman zucker, when did you get involved in politics and why . So i was a Small Business owner for 25 years. And really didnt anticipate that at first i served in the state senate. I didnt anticipate that i would do that, nor do i anticipate that i would be serving in congress. I ran a business for 25 years. We grew a company into several hundred eye