Chambers of
David F. Levi
United States District Judge

6 November 1998

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

Dear Justice White and Members of the Commission:

There are two aspects of the proposal in the Commission Draft Report that I would like to address.

First, the split of California between two divisions whose decisions are not binding on each other opens the prospect that matters of the first importance to residents of the State will be subject to contrary rulings for considerable periods of time. Such matters will include State-wide government programs and policies that are of intense public interest and that have substantial effect on public and private arrangements. One need only think of some of the initiatives adopted by the electorate in recent years, and that have been subject to litigation in federal court, to realize how destabilizing it could be were there conflicting controlling decisions on such issues for any period of time. Yet under the draft proposal there is no mechanism for identifying cases that raise legal questions of State-wide importance and resolving these cases on appeal by a panel that may bind both divisions. Instead, these cases must run the gamut of divisional panels and en banc courts before reaching the Circuit Division. In my view, this process is unwieldy and time consuming, and will lead to public dissatisfaction with the appellate process and the judicial system more broadly.

Second, the composition of the Circuit Division is weighted toward more senior members of the court. Under the proposal, four members of the seven judge panel will be Chief Judges of the divisions and the Circuit. This is a break with the random assignment system that is almost uniformly followed in the federal courts and that is generally viewed as the fairest way to assign judges to cases. Chief Judges attain that rank by seniority alone. It is likely that the four judges will have been chosen at about the same time and by the same President. Thus, for significant periods time, the Circuit Division could be dominated by four judges who share the same general judicial philosophy, or at least who are perceived to, and who may be unrepresentative of the Circuit's judicial officers taken as a whole. I do not favor giving such influence over the law of the Circuit to judicial officers selected solely on the basis of when they were appointed.

Thank you very much for the opportunity to comment.

Sincerely,

David F. Levi