Commission on Structural Alternatives
for the Federal Courts of Appeals
Thurgood Marshall Federal Judiciary Bldg.
One Columbus Circle, N.E.
Washington, D.C. 20544

Dear Justice White and Members of the Commission:

Here are my limited personal comments about the Ninth Circuit which have resulted from my service on that circuit as a visiting judge, not from any scholarly study or analysis. Since 1993 I have served six times on that court for about a week at a time in Seattle, San Francisco, and Pasadena. During those assignments I participated in the disposition of about 184 cases. In addition to service on my own court, the Seventh, I have also served on seven other circuits, but on none as extensively as on the Ninth.

I have therefore become acquainted personally with many of the Ninth Circuit judges. To date I have not met one of them I did not like and respect even when we strongly disagreed about a case. The judges are uniformly well prepared for oral argument which makes oral argument useful. Post-argument conferences are thorough and thoughtful. When the resulting drafts of proposed dispositions are circulated they are carefully considered, often resulting in helpful suggested changes and amendments usually communicated by fax or phone. I am aware of no case in which I participated which did not receive close attention before the opinion was released. The presiding judge of the panel has always been helpful to me with the circuit's procedures.

I am aware of the controversy about the size of the circuit, but I have seen no indications that its size is a handicap. To the contrary, I sense a certain amount of pride among the judges in its being the largest along with a determination to make the Ninth work better and better. The circuit has had outstanding chief judge leadership. I was advised that a recent internal poll of the judges revealed that a large majority opposed a breakup of the circuit.

In my circuit experiences size does not necessarily adversely affect working relationships among the judges, but may even enhance it. If judges don't personally see each other as often as we can on the Seventh I think there is more of a determined effort to make up for that in other ways. Ordinarily on each visit there has been an enjoyable panel dinner or lunch get-together with judges. I have always found a cordial and collegial working relationship. Even though I was an outsider I was made to feel like a member of the court. Collegiality in working relationships, I believe, is more a matter of the personalities of the judges than distance or size. I found out during World War II how far away Hawaii, Guam, and the other Pacific islands are, and later when inspecting United States Attorneys' offices in Alaska how far that was. However, now those places, along with Phoenix and Seattle, are not nearly so far because of the use of jets, phones, computers, and fax machines.

Some part of the Ninth might prefer to separate from another part for various reasons, including a preference for judges who come from communities with whom people in that area are familiar. The mixture of cultures, philosophies, and pursuits found in the Ninth is, however, representative of a changing America. We as federal judges are not like political precinct committeemen representing some particular region. We are American judges on the national scene striving under our Constitution and laws to do the best we can uniformly for the country as a whole, not just for our own home areas.

Making more than one circuit out of the Ninth would not only be costly and require many adjustments in custom, practice, and relationships, but could possibly even create more intercircuit conflicts between the new and old circuit, which the Supreme Court might have to settle. At least some of those same conflicts could likely have been worked out internally in the former one circuit without Supreme Court intervention. The old Fifth Circuit nicely survived an amputation, but that was no risky surgery in those particular circumstances as I understand it was generally favored by the judges and others.

There is no sufficient reason why en bancs should involve every judge on the court of appeals. One district judge has already considered the case, and then three appellate judges. By the time on a large court an additional proportionate share of appellate judges has considered the problem en banc the controversial issue has received more professional consideration than would be possible under any other judicial system in the world. If more review is needed in some significant cases, then the Supreme Court is available.

If disposition time is not as short as desired I doubt if the cause can be traced to the circuit's size. I have found that the pace of the work is usually the result of the individual judge's own work habits as well as internal procedures. Those things can all be improved, if necessary, without creating a new circuit. Dissatisfaction with the results a few cases out of the hundreds disposed of without controversy should not be the motivation for breaking up the circuit in an effort to try to fix what in my judgment is not broken.

My conclusion, after working in the circuit from time to time in the last few years, is that it, like most other circuits, possibly has areas needing improvement, but I have seen nothing that requires a major overhaul.

I have been very pleased and honored to have had the opportunity to serve as a visitor on the Ninth Circuit.

Sincerely,

Harlington Wood, Jr.