And i now recognize myself for a short opening statement. It has been more than a decade since we last considered a bill to split the ninth circuit. The ninth circuit is by far the largest circuit of the 12. Additi additionally, the ninth circuit hears 20 of the appeals and some would say from this side of the dase from the various states its the most reversed circuit. Not withstanding that, it is my circuit. It includes my state. 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. When we come together today we come together with two challenges. One, there is no way without splitting a state to have at current california not be, if it were all by itself, the largest circuit. Seco secondly, we have wrestled with this for decades. During that time the ninth circuit has grown and today with five four vay captainsies, there is additionally five more requested. If all were granted the ninth circuit would be 34 judges. Were honored to have some of those judges with us today. I am here to say im pleased to see the fifth circuit in 1980 was done its splitting was done in less than a year, no ill effects and in fact passed both the house and senate by enthusia unanimous consent. I hope today to have the same result to whatever we propose. Its my pleasure to recognize the Ranking Member of the full committee, mr. Conyers for his statement. Thank you, mr. Chairman. Members of the committee, todays hearing provides an important opportunity to exwhethe examine whether the ninth Circuit Court of appeals is adequately able to perform its duties as it is currently structu structured. The hearing takes on importance in the wake of decisions in the ninth circuit and elsewhere, overturning President Trumps muslim refuge ban. Instead of coming to terms with the legal flaws with his own executive order, President Trump has chosen to attack the nirnt circuit which he has said is in chaos and frankly in turmoil. The 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 theyve been overturned with their terrible decisions, in quotation. 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. Thats true for every circuit, several of which are overturned at a higher rate than the ninth circuit and overall less than onetenth of 1 of the ninth circuit decisions are overturned by the Supreme Court. The realty is this is not a new debate President Trump has brought us to, one we have had for decades. Although i will not speculate why there seems to be such an interest by my conservative colleagues to divide the ninth circuit. There are several points we should keep in mind. Splitting the ninth circuit would not bring justice closer to the people. It would 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 caseload demands of the district and bankrupt coursy courts. Although legislave propols introduce this Congress Take different proposals 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 a 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 a 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 ostensibly intended to assist certain entities, when in fact those very same entities 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 circuit was impractical and unnecessarily. So i ask my colleagues to very ay and join m in to the 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 subsubcommittee will hear testimony on the long standing 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 resides in this circuit making it twice the size of any other circuit. Today, it has 29 authorized judgeships also far exceeding the next closest circuit, the fifth, with only 17 judges. The judicial conference asked for more judges and more may be coming this summer. In the 2005 testimonies before the House Appropriations committee, judicial collegiality is an important component for the consistent rule of law. Oversized circuits wherever they may be located undercut such colleaguialty by limiting the actions of the entire significant as a collective whole. In our creation of a court system below the Supreme Court, congress envisioned an appellate System Limited to the subset of the whole circuit then followed by the circuit sitting as a whole hearing any further appeals. It is unfortunate the prior judges authorized them to masquerade as true en banc panels. This has resulted in the appellate system being lost. Although they have ability to use true en banc panels they have never done so despite critical cases they have handled. Despite a similar crowding in the fifth circuit, this committee decided to move three of the six states to a new 11th circuit and provided only a year transition time. I highlight the fact the legislation passed in both the house and senate by unanimous consent. The transition required by that bill moved smoothly. Various groups have studied the circuit. The White Commission recommended the circuit not be formally split but instead divided into three separate ajudd cative divisi divisions. Whatever one may think of this commission and its recommendations it, too, recognized the need do something about the ninth circuit by fligspli splitting it into three divisions with a process to cause interdivision splits. There is not a huge leap to dividing the ninth circuit into three ajudd cative decision ofs and separate circuits outright. To those who might argue against the split by saying size creates efficien efficiencies, i would suggest no one has suggested combining the other circuits to make them bigger. As this moves to 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. Proposals to split up the ninth Circuit Court of appeals have been floating since 1971. What was a bad idea at the time of pearl harbor is a bad idea today. They generally mass their arguments and concerns over its size and concerns of the detrimental effect of efficiency and consistency of its rulings. They say it covers too much geographical distance and too Large Population to be effective. They argue because its so large there is administrative waste and procedural delays and the judges cant Work Together to produce a consistent rational jurisprudence. It says otherwise. It is true it is the largest physical area and population covered and caseload with a district that includes alaska, hawaii, territories of guam and Mariana Islands it is no surprise the judges must occasionally travel great distances to serve the entire circuit. We have things like jet planes and email to minimize disruption any physical distance may cause. That disruption is less today than 1941. It is unavoidable it will cover a Large Population unless you were to split the state in half which would be disastrous from judicial coherence, a lar circuit is a fact of life. There is no evidence the ninth circuit size impeded the ability to provide justice. To the extend there is a backlog of cases compared 0 other circuits more resources can be devoted to resolving those issues. Just recently the congress suggested adding five judges to reduce the work load per judge and using technology to help with efficiency. Saying the nirnt circuit is a Renegade Court with wild and unpredictable rulings, to say it is the most reversed court is wildly misleading. Given the smallest sample size of so many cases that ever reach the Supreme Court, it is hard to judge the high rate of reversal in many generations. The worst numbers cited by critics is 2 1 2 reversals per 1,000 decisions. What this debate is really all about is that conservatives do not like the more liberal rulings that occasionally emerge from the ninth circuit. They believe they can manufacture a new circuit which can produce more conservative results. That is a dangerous matter. Like clockwork when ever it produces a decision conservat e conservatives disagree. Whether it really is the pledge of allegiance should not include the words under god or restrictions of gay rights or the most recent unanimous decision to uphold a stay on President Trumps unconstitutional muslim refuge ban, the ninth circuit has long been in the sights of republican politics. Just last night, President Trump said at his campaign rally, people are screaming this is a quote people are screaming, break up the ninth circuit. That ninth circuit you have to see. Look how many times they he been overturned with their terrible decision, unquote. To manipulate the courts to achieve the political ends you seek is highly inappropriate. Just as there is a nationwide movement to end legislative gerrymandering we should resist this judicial gerrymandering as well. Proponent of splittin inting up ninth circuit, none of their arguments withstand scrutiny and the alleged harms they cite would not actually achieve the results they say they want. Any proposed 12th circuit would cover a significant distance and leave a large circuit base in california all while introducing uncertainty into the law at great 10year expense. While i believe splitting up the circuit would be unnecessary and unwise i appreciate the 2u7 opportunity to hear from our witnesses. The judges appearing today like the colleagues on the ninth circuit oppose such a split as does the American Bar Association and numerous practitioners and experts who have studied this issue at great depth. I look forward to the judges testimony and testimony of other witnesses and giyield back the balance of my time. Thank you. All members may have five legislative days to have their Opening Statements and comments placed in the record. Without objection well waive other ones. I will recognize the gentleman from texas about unanimous consent. Thank you. Id ask for unanimous consent to include in the record attachment how the cases would be broken up if it was california in the ninth circuit and all the other states in another circuit. Without objection, it will be placed in the record. Question have a zingzing distinguished panel here today. The statements will be given in their entirety and ask you to keep it at five minutes or less. I will not hold i to it but the light will indicate your time has expired. Decisi decisionly, i want to thank the judges who came and in some cases stayed for protracted period through the snowstorm to be here today. I know it was a personal sacrifice and i very much appreciate it. Before i introduce the witnesses, it is the Committee Rule all witnesses be sworn. Would you all please rise, rays your right hand to be sworn . Do you solemnly swear or affirm the testimony you give today will be the truth, the whole truth and nothing but the truth . Please be seated. Let the record indicate all witnesses answered in the affirmative. Our Witnesses Today including the honorable sidney thomas, chief judge of the United States court of appeals for the ninth circuit. The honorable carlos baya, circuit judge for the United StatesCircuit Court of appeals, ninth circuit. The honorable alex kosinski. Circuit judge to the United States ninth circuit. And Professor John eastman of championman University School of law and professor Brian Fitzpatrick of vanderbilt University School of law. With that, well go straight down, starting with you, chief. I think you have to turn your mike on the button in front. Thank you for the opportunity to testify. My name is sid thomas its my privilege to serve as 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 managed and provides Tremendous Service to the District Courts. Splitting the circuit would have a devastating effect on justice in the western United States. It would increase case delay and cause expensive unnecessary bureaucratic duplication. A split would be costly. Under legislative proposals it would cost an estimated 1 136 billion, required renovation is in seattle could reach 54 million and the construction of new space for Holding Court in las vegas, anchorage and missoula would cost about 2 million at each location. Those facilities would have to be staffed yearround and only used a few weeks a year. A split would be made to serve executives and staff and two circuit libraries. None of that is necessary. Over the past decade, the judiciary has made an effort to control costs with consolidation and shared Administrative Services create agnew expensive duplicative and unnecessary bureaucratic structure would be a giant step in the wrong direction. When a circuit split is discussed, most of the focus is on the court of appeals. The court of appeals is only a small part of our circuit. It includes 14 District Courts, Bankruptcy Courts and pretrial probation offices and they do the nuts and bolts work that affect the largest number of citizens. Circuit division would substantially reduce the services we provide to them. We provide support for cybersecurity, judicial courts and health and wellness and many other aspects. The ninth circuit resources allow the Quick Deployment of 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 do this all the time. 80 judges took 15 cases each recently to resolve 1500 cases in californias eastern district. We simply would not have sufficient resources to mount this kind of effort with a circuit split. We have been aggressive to find ways to save money. Reduce physical space saving taxpayers 7 million in rent, our capital case and Electronic System has saved hundreds of thousands of dollars and the list goes on. Most of these initiatives would not be possible if the circuit were split because we would lack personnel and money. A circuit split would significantly increase delay and not reduce it. The ninth circuit is known for effective course management. A position unique to the ninth circuit resolved over 4,000 motions and fee vouchers would otherwise have been assigned to judges. Staff motions attorneys disposed over 5,000 noncontroversial motions through clerk orders otherwise handle by judges. On staff presentation, judicial motions and screening panels resolved almost 1300 merit appeals, 1300 habeas appeals and motions and authorized cases for procedural jurisdictionsal defects. We settled 1,135 appeals and that exceeds the output of many of the smaller circuits. The year before it was 1500 appeals. Weve had Great Success request our mediation efforts. The continuing mediation efforts rising out of the California Energy blackout cases resulted in 8 8. 7 billion being refund dollars to consumers, businesses and local governments. Weve only been able to achieve the success because the ninth circuit has economies of scale and resources lost in a circuit split. One cannot divide one budget between two circuits and unnecessarily vacate staff and significantly reduce staff supportnd expect faster resoluon Better Service to the public. A Circuit Division would create more appellate delay and