Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) today delivered the following statement during the Committee’s markup of the Court Imbalance Restructure Concerning Updates to Impacted Tribunals (CIRCUIT) Act of 2018, H.R. 6754.  This bill modifies the structure of the Court of Appeals for the Ninth Circuit.

Chairman Goodlatte: Today the Judiciary Committee will take a major step to resolve the longstanding 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. Twenty percent of the U.S. population now resides in this circuit with nine states and two territories, making it twice the size of any other circuit.

Today, the Ninth Circuit has 29 authorized judgeships, also far exceeding the next closest circuit – the Fifth with only 17 judgeships. The Judicial Conference has asked for five additional judgeships for the Ninth Circuit which are included in this legislation.

As noted by Justices Kennedy and Thomas in their 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 collegiality by limiting the interactions of the entire circuit as a collective whole. In response to those who might argue against changes to the status quo by stating that size creates efficiencies, I would point out that no one has suggested combining other circuits to make them bigger.

It is unfortunate that a prior Congress authorized the Ninth Circuit to operate with 11 judge en banc panels that masquerade as true en banc panels. This has resulted in an important component of our appellate system being lost – that of the circuit sitting and speaking as a whole unit. Although the Ninth Circuit has procedures to use true en banc panels, they have never done so despite some of the critical cases they have handled.

In response to a similar crowding issue in the Fifth Circuit, this Committee in 1980 enacted legislation to move three of its six states to a new Eleventh Circuit, and provided only a year of transition time. I highlight the fact that the legislation to accomplish this split passed in both the House and Senate by unanimous consent. The transition required by that bill occurred very smoothly.

Various groups have studied the size of the Ninth Circuit, but have often disagreed with each other. The 1998 White Commission created by Congress recommended that the Ninth Circuit not be formally split, but instead be divided into three separate adjudicative divisions. Whatever one may think of this Commission and its recommendations, the Commission recognized the need to do something about the size of the Ninth Circuit.

The legislation before us today implements the recommendations of the White Commission and authorizes an additional five Ninth Circuit judges that have been requested by the Judicial Conference. I urge my colleagues to support this legislation to resolve a longstanding issue and provide the necessary additional resources to the Ninth Circuit.