I refer, of course, to the Ninth Circuit. As correctly noted in this press release announcing new legislation (PDF), the Ninth Circuit covers vastly more people and vastly more area than does any other (geographic) circuit.1 Leaving aside the administrative difficulties this creates—and if the Pentagon can manage a far more complex function with far more people (and more immediate consequences to screw-ups) even as well as it has, sheer size shouldn't matter—we're left with another question: Is this inherently a bad thing?
By "inherently," I mean without respect to ideology (a concept that, I'm afraid, has escaped Mr Sensenbrenner for years). Put another way, is there a structural or prudential reason that we do not want intermediate appeals to result in nationally uniform law? Well, that depends upon how one looks at it.
- If we're concerned about federalism and the differences between various state regimes, there won't be a uniform result no matter how we structure a purely federal court of appeals. The federal courts of appeals, when deciding state-law issues, are bound by (non-procedural) decisions of the highest court of that state. Thus, if the Illinois Supreme Court holds that the Consumer Fraud Act cannot be applied by non-residents to regulate the conduct of an Illinois-based business—inconsistent with two decades of Seventh Circuit precedent, and not incidentally overruling its own prior opinion—the Seventh Circuit must thereafter follow the Illinois Supreme Court's decision. (Needless to say, I think the Illinois Supreme Court screwed up, but that's primarily because some bad facts and less-than-optimal lawyering obscured what was really going on.)
- On the other hand, for purely federal issues, why would we not want uniformity? The Federal Circuit's work with patent law has been an excellent "test" of this function. Despite some of the mistakes that the Federal Circuit has made—and there certainly have been some mistakes, such as Festo—nobody can claim that, once the Federal Circuit has spoken, there remains a circuit conflict that makes forum-shopping a necessity. Further, the experience in other nations with single intermediate courts of appeal—I'm thinking specifically of the UK, which has a population nearly equal to that within the Ninth Circuit (if a substantially smaller land area)—indicates that this can be made to work.
Traditionally, our "circuits" have been geographical. The Constitution does not require that, though; it allows Congress complete freedom to design the system of "inferior" federal courts. The one warning sign about splitting courts purely on function comes, naturally enough, from Texas. The Texas Court of Criminal Appeals is far more out of control than is any federal circuit (and I can afford to say that because I don't practice criminal appeals in Texas, and never will!). Its demonstrated disdain for US Supreme Court (and, on occasion, Fifth Circuit) disapproval of its "they must be guilty, because they were after all charged with a crime" predisposition is one of the best arguments against federalism. That the Fifth Circuit has too often followed the Texas Court of Criminal Appeals' determinations reflects, I think, more aspects of geographic loyalty (and the inherent biases built in2) than of anything else.
Perhaps splitting the Ninth Circuit and creating a new Twelfth Circuit is the answer. I don't pretend to be an expert on that, although California's own sheer size implies that the proposed remainder of the Ninth Circuit will still be too large administratively—implying that the real purpose of Sensenbrenner's legislation is to ideologically isolate it, not to make it more efficient. However, as long as we're redividing courts, we should take a look at the mechanism we use to to that division. We probably do need geographic courts of appeal to handle state-law issues; but we don't to handle the federal ones.
- Technically, the Federal Circuit covers the entire nation—but its jurisdiction is limited by the substantive nature of the case, not by where the case arose. The DC Circuit technically covers only the District of Columbia, but is the last word on administrative law in many, many instances, because one can sue any federal agency in DC.
- If only because historically, the Senators from a given state could block nominees of which they categorically disapproved, leading to both cronyism and suboptimal choices. But the flaws in the nomination and confirmation process are really Congress's problem more than the courts.'