Statement of Hon. Mary M. Schroeder
Submitted to the Commission on Structural Alternatives For the Federal Courts
of Appeals
May 29, 1998, San Francisco, California
My name is Mary Schroeder, and I have been a judge of the United States Court of
Appeals for the Ninth Circuit since 1979. I am presently next in line to serve as Chief Judge.
Before joining the Circuit Court, I was a Judge on the Arizona Court of Appeals for Division I,
which at that time had nine judges. I treasure the relationships I had there, but I have no desire to
return to a small appellate court.
While I speak only for myself, I am in full agreement with the statements of our past and
present Chief Judges on the operation of the circuit and the court. Both are functioning well.
Because of my place in the batting order of Chief Judges, I have been a close observer of the
circuit's operation, and I am able to talk about a subject that the Chiefs will not.
The survival and success of the circuit is attributable to the outstanding leadership we have
had over the last decades. Judge Browning gave us the guidance and administrative ingenuity that
brought us from a court of 13 to a court of 28, and won him the Devitt Award. Judge Goodwin
inspired us to survive a devastating earthquake that eventually required us to move all the court's
records and 90% of its personnel three timeswithout sacrificing a single court calendar. Judges
Wallace and Hug brought us back to our physical home at 7th and Mission and have coped with
the acute difficulties of operating a court with 25-35% of its judgeships vacant.
Dating back to the era of Judge Chambers' resourcefulness in the 60's, our Chief Judges
have had to rally the troops to address a bewildering and often unpredictable series of proposals
to slice the circuit into pieces. The proposals have seemed to me to have been motivated by a
desire on the part of some regional interests to control the kind of judges who will determine the
federal law applicable to that region, without regard to the need to administer our system of
justice fairly throughout the western United States. Fortunately our Chiefs and the vast majority
of our circuit and district judges have not lost sight of that need.
A flaw in each proposal is inevitably its positioning of California. The reality is that
California has never had enough judges to handle the cases it generates. Any new circuit
containing California would have a per judge case load staggeringly larger than the load carried by
Ninth Circuit judges, while the judges in any other newly aligned circuit would have
comparatively little to do. Deserving a special word is the proposal to put Arizona and the Pacific
Northwest in one circuit, without California and its San Francisco hub. A circuit with two
population centers -- Portland-Seattle and Tucson-Phoenix -- 1,500 miles apart, and nothing in
between would give many judges more time in the air than on the bench. Dividing California into
different circuits would compound the administrative problems of all the courts and leave the
lawyers and clients guessing about choices of law and forum.
You have heard quite a bit about the past in these hearings. Federal judges yearn for the
days of Learned Hand when relatively few judges handled the issues of that day in a leisurely
fashion. Judge Wallace called it a "preference for small court culture" that is "advanced only by
federal judges". The issues of those days -- before the civil rights revolution, environmental
protection, and Gideon v. Wainwright -- are not our issues. That country -- with population,
commerce and communications concentrated east of the Mississippi -- is not our country. As
Judge Wood of the Seventh Circuit said to you, "The mixture of cultures, philosophies and
pursuits found in the Ninth is ...representative of a changing America."
Courts must evolve to meet those changes. The court of appeals of nine judges I left in
l979 now has 18. There are more appellate judges in the relatively small court system of the state
of Arizona than judges of the Ninth Circuit.
My concern is for the future. Old barriers are breaking down. The Iron Curtain has fallen.
Europe will have a transnational currency. There is even hope for softening the hard lines that
divide Ireland. The Internet and satellite communications span the world without regard to
national boundaries. Transnational mediation and arbitration are common. The notion that the
federal court system of the United States, the finest in the world, should set out to create more
artificial divisions, so that judges need process less rather than more information, reflects a
mindset of the distant past.
As our judges become more computer literate and our court technology eventually catches
up to the rest of the world, our judges should find it easier to harmonize decisions within a circuit
and with other circuits. I agree with Judge Carolyn King of the 5th circuit who told you that the
real problems in maintaining consistency in the law of a circuit are created not by the size of the
court but by judges who don't want to respect prior law. Gerrymandering courts will not solve
that problem.
The Ninth circuit is an extraordinarily resilient institution which deserves positive recognition. It has overcome obstacles no other court within memory has had to face, from violent earthquakes to unending vacancies. None of those problems have had anything to do with structure and none will be solved by restructuring geographical alignment.
I thank you for the attention you have given me and your willingness to undertake this important task.