by Howard Bashman
20 Questions for Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit:
"How Appealing" is very pleased that Circuit Judge Diarmuid F. O'Scannlain
of the U.S. Court of Appeals for the Ninth Circuit
has agreed to be the second participant in this Web log's newest feature, "20 Questions for the Appellate Judge."
Judge O'Scannlain joined the Ninth Circuit in September 1986, when he was just shy of the age of 50. He attended college at St. John's and law school at Harvard. His chambers are based in Portland, Oregon, and the Ninth Circuit has its headquarters in San Francisco.
Questions appear below in italics, and Judge O'Scannlain's responses follow in plain text.
1. Among active and senior Ninth Circuit Judges, you have become the leading voice in favor of splitting the court in two. How did you achieve that role, and what in your view are the three most persuasive reasons favoring a split?
The three most persuasive reasons favoring a split are: (1) size, (2) size, and (3) size. Size of the court of appeals
, present and future; size of caseload
, especially after the bulge of the last two years; and size of population
, present and projected. Let me issue the standard disclaimer that, of course, I speak only for myself and not for my court in responding to these questions.
The Ninth Circuit is by far the largest of the circuits, and is more than double the national average with respect to number of court of appeals judges, case filings, population, and geographic area. Our caseload has reached a record 11,421 filings for the 12-month period ending September 30, 2002, an increase of over 20 percent in two years; compare that with an average of 4,796 for all other circuits. (Actually we hit 12,209 filings for calendar year 2002). The next busiest circuit is not even close -- the Fifth Circuit at 8,784 filings in the same period. Our output as a court is similarly enormous. In the same period, over 5,000 cases were terminated on the merits in the Ninth Circuit; compare this to an average of 2,312 for all other circuits. During that time we published 837 precedential opinions; the sheer volume of decisions makes it difficult, for us as judges, just to stay abreast of current developments in our own law, never mind developments in other circuits or in academia. Essentially, we are losing the ability to keep track of our own precedents.
Compare this to my experience when I first came on the court in 1986. Back then, my colleagues and I were producing about 180 dispositions per judge, per year. In other words, we were each responsible for writing about 60 opinions and memorandum decisions, the equivalent of five dispositions a month. But the pressure on individual judges has relentlessly increased since then. By 2002, we averaged 492 cases per judge that year, each responsible for producing about 164 dispositions, at the rate of over 13 opinions and memorandum decisions per month. (Compare that with the Supreme Court of the United States which renders about 80 opinions a year, each justice being responsible for about 10). Somewhere along that progression, I became persuaded that we were heading for a train wreck as a court if we didn't respond to the implications of these numbers.
I don't know whether it is accurate to say I am the "leading voice" but there are many voices, both on the court and outside, who feel that we must restructure the circuit, either into two separate circuits or possibly three.
2. Your views concerning whether to divide the Ninth Circuit have evolved over the nearly seventeen years that you have served on the court, even though the court's total number of authorized active judges has remained at twenty-eight during that period. Explain how and why your views on the issue have changed.
When I first came on the court, some senators from the northwest states were very active in promoting a split of the circuit for very clearly stated political reasons, typically in reaction to specific environmental decisions. This included my own home state senator, Mark Hatfield, with whom I had many discussions. I had to tell my good friend Senator Hatfield that I disagreed with him and opposed a split of our circuit. I could not support the principle that a circuit should be restructured simply because of perceived public dissatisfaction with its jurisprudence.
My views on the issue have, of course, evolved over the years as I became persuaded that we were developing very serious administrative issues generated by the relentless increase in caseload. My views probably crystallized during the time I was pursuing an LLM in Judicial Process at the University of Virginia Law School from 1990-1992. This was a program for appellate judges, which permitted considerable opportunity for research and where, indeed, I wrote my thesis "On Governance of the Federal Judiciary," which, in turn led to much more refined notions about the role of the circuit. While the number of authorized active judges has always been 28 during my tenure, the number of senior judges increased rapidly, occasionally exceeding the number of active judges at a given time. Today, we stand at 45 total judges (senior and active) and shortly, assuming that the President's nominees will be confirmed and an impending vacancy will be promptly filled, we will reach a total of 50 judges on our court. A court of appeals with 50 judges looks, to me, more like a legislature than an appellate judicial body with error correction and law declaring responsibilities.
3. What in your opinion is the single most persuasive argument against dividing the Ninth Circuit, and what is your response to it?
The single most persuasive argument against division, I suppose, is "if it ain't broke, don't fix it." My response is "if it ain't broke yet, it soon will be, so why wait?" We should be proactive in planning for the future restructuring of a circuit that is already over double the average size of all others in population, geographic area, number of court of appeals judges, and, most importantly, appellate caseload. Nevertheless, the most common argument advanced for keeping the Ninth Circuit together has been the necessity for a consistent maritime law for the Pacific Rim and a single law of the West. This is not much of an argument, considering the fact that there are five circuits for the Atlantic and Gulf States. I don't think freighters are colliding more frequently off Cape Cod than they are off the Marin headlands. Nor has the fact that three circuits straddle the Southern states been deleterious to the development of the law of the South.
At bottom, the opposition to the split boils down to a sort of curious devotion to the notion of a single "Jumbo Circuit" for the West. But there's nothing sacred about the Ninth Circuit keeping its same boundaries for over 100 years. In my view, the only legitimate consideration is the optimal size and structure for judges to perform their duties. As other circuits became unwieldy because of size, they were restructured, like the Tenth carved out of the Eighth in 1929, and the Eleventh carved out of the Fifth in 1980. There is no logical reason to oppose the natural evolution of our judicial structure as we grow into a colossus.
4. In my view, at least, there seem to be three plausible proposals to split your court. One is to make California -- home to more than sixty percent of the Ninth Circuit's population and source of approximately sixty percent of the caseload -- its own circuit. The second is to put the States of Arizona, California, and Nevada in one circuit and the remaining States and Territories in the other. Under this second proposal, however, the circuit with California would have twenty active judges, which exceeds the maximum number of authorized active judges -- seventeen -- that you have said is advisable for a federal appellate court. The third proposal, sometimes called the "even split," involves putting Southern California under the jurisdiction of one federal appellate court and Northern California under the jurisdiction of another. Previously, you have expressed your preference for this third option. Do you still prefer the "even split," and how under this option would conflicting rulings that involved California be resolved?
You put your finger on the real dilemma: how to split? The honest answer is there is no ideal solution and it can't be done without adding judges. You have identified three of the four options.
Option 1: California as its own circuit
. I was originally inclined to the predominant view of the legal academy that "one cannot have a circuit with less than three states" but I am no longer persuaded. First of all, a "California only" circuit, with its four very busy district courts, has an appellate caseload which would constitute the second largest in the country (8,224 filings), only a shade behind the Fifth Circuit (8,784 filings). Next, California's population now exceeds 34 million people, which would make it, again if it were its own circuit, the most populous circuit in the country. To those who say a one-state circuit can't work, what about the District of Columbia Circuit with only one district court, compared to the State of California with four federal district courts?
Option 2: Arizona, California, Nevada
. This is probably the most frequently discussed proposal for the "new Ninth Circuit" and there is no question but that such a circuit would have to exceed 17 judges. The number 17, is, of course, an ideal maximum, which is no longer realistic in my view.
Option 3: Arizona, Southern California and Nevada
. This "even split" proposal, came from the Hruska Commission report of 1974, which was quite prescient. If northern California were put with the northwestern states and southern California were put with Nevada, Arizona and the Pacific islands, there would have been two almost exactly equal size circuits in terms of both population and caseload. Circuit equality would essentially still exist today, although the southern portion has enjoyed a faster population growth than the northern. While I still believe this option has a lot of merit and that there would be acceptable devices to solve the intra-California federal law problem, I no longer support it because of one political barrier which I respect. It is quite clear that Senator Dianne Feinstein has very strong reasons to oppose such an approach and I fully respect the wishes of the senior Senator of that state. This proposal is a political nonstarter.
Option 4: Arizona to the Tenth Circuit
. You failed to mention a fourth possibility which has been bandied about with increasing vigor in recent years. This would put Arizona with the Tenth Circuit (which has relatively light caseload per judge), make a new Ninth Circuit comprised of California and Nevada, and put the rest into a new Twelfth Circuit headquartered in Seattle or Portland. There would be some technical issues to be resolved regarding pre-realignment law affecting Arizona in its new setting, but again, the legal experts would have various solutions to that issue.
5. In July 2002, during your most recent congressional testimony on splitting the Ninth Circuit, you stated that six other Ninth Circuit judges (two active and four senior) had authorized you to say that they support a circuit split. Your remarks implied, however, that other judges on the court favor a split but are unwilling to express their support publicly. Why, as best you can tell, would some of your colleagues who favor a split be unwilling to express that position publicly?
There are now nine members of my court (including myself) who have permitted their names to be listed as supporting a split: Judges Sneed (California), Beezer (Washington), Hall (California), Trott (Idaho), Fernandez (California), T.G. Nelson (Idaho), Kleinfeld (Alaska), and Tallman (Washington).
The position of chief judge of our circuit for some reason seems to impose upon its occupant an obligation that he or she be the "Defender of the Faith," i.e., staunch opposition to any efforts to "break up our circuit." The fact that there may be pro-split judges and leaners who prefer not yet to be identified publicly may very well reflect a sensitivity to the wishes of chief judges over the years.
I should point out that our chief judge and her administrative staff have done, and continue to do, an admirable job in effectively managing the circuit in what can properly be characterized as extremely challenging circumstances. Managing the Ninth Circuit is a Herculean task, and our chief judge is to be congratulated on a magnificent job. None of us takes any delight in going against the wishes of our chief; but, on this issue, it seems to me hardly much different than expressing an independent view on the merits of a legal issue in a pending case.
6. Why has a split of the Ninth Circuit not yet happened, and when, realistically, do you expect it will happen?
For the reasons I have tried to explain in my earlier answers, a split of the Ninth Circuit is inevitable. Over the years, various proposals have passed one chamber or another. The Senate has twice passed circuit split proposals since I became a member of the court. Congressman Mike Simpson of Idaho has just introduced a bill similar to H.R. 1203 which he sponsored last session and was the subject of House Judiciary hearings last year. If more of my colleagues on the court face up to the underlying need for restructuring, it could happen very promptly, in a design exactly in accordance with the court's wishes. If the court does not officially change its policy on this issue, it is possible that Congress will pass its own split bill or hold the creation of additional judgeships hostage to a serious consideration of restructuring.
7. In April 1998, in your prepared testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals ["the White Commission"], you stated that "When a court grows too large, it is more likely to resemble a legislative body in which strong-willed individuals are prone to developing policy rather than, to paraphrase Chief Justice Marshall, saying what the law is." Can you explain more fully what you mean, and are you intending to suggest that the view an individual judge reaches on the merits of a case may depend on the size of the court on which he or she serves?
Maintaining consistency of appellate law requires an environment in which a reasonably small body of judges has the opportunity to sit together frequently. Interaction enhances understanding of one another's reasoning and decreases the possibility of misinformation and misunderstandings. The White Commission concluded that a court with more than eleven to seventeen judges lacks the ability to render consistent decisions. The Ninth Circuit currently has 45 active and senior judges, and it is soon to be 50. On a court with 50 judges, 19,600 different three-judge panels are possible. Combine this with our huge output of published decisions and maintaining consistency becomes a serious problem. The point is that our size, and our size alone, jeopardizes our decision-making consistency. As the counter-majoritarian branch of our government, precedent is the most important limitation on our judicial discretion. When our precedent is inconsistent, that limitation is lacking, and our decisions can start to resemble those of a legislative rather than judicial body.
8. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?
The press coverage of the U.S. Court of Appeals for the Ninth Circuit is most welcome, so far as I am concerned. It is true that the coverage has not always been accurate or incisive and frequently tends to be somewhat superficial. Our batting average before the Supreme Court should not, by itself, be an indicator of a dysfunctional court. On the other hand, when the Supreme Court reaches out to take 29 cases in one Term only to reverse 28 of them, perhaps it is telling us something. And, when the Supreme Court takes three of our cases and reverses them, unanimously, without oral argument, on the same day, as it did just a few months ago, I believe it is telling us something. It is reasonable to expect the press to cover such developments as well as our less controversial decisions.
9. The Ninth Circuit is the only federal appellate court to hear and decide cases en banc using panels that consist of fewer than all of the court's active judges. More specifically, the Ninth Circuit uses eleven�judge en banc panels, which would allow a mere six judges to declare what the law of the circuit should be in cases decided en banc. As you know, the White Commission concluded that the Ninth Circuit's limited en banc system is not functioning effectively. Do you agree with that conclusion, why or why not, and what changes to the present system would cause the en banc process to work more effectively?
I agree with the White Commission and I sense an increasing concern within our court about the 11-judge limited en banc device. The principal problem is that the result will always depend on the luck of the draw. There have been quite a number of 6 to 5 or 7 to 4 decisions on important issues which might not necessarily represent the views of the full court. While it is true that we do have the authority to rehear a case with the full court (24 judges at the moment or 28 if we were at full strength), there have only been two times during my tenure when such calls have been made and in neither event did the call receive a majority. I think there is very deep-seated reluctance on the part of our court to sit as a full en banc, notwithstanding the fact that we have a very elegant en banc courtroom in Pasadena with three tiers of benches and 28 chairs. Indeed, we also have a less elegant en banc courtroom with four tiers of benches and 28 chairs in San Francisco.
10. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
I won't identify a living judge but among those that I admire historically are Justice Felix Frankfurter and Judge Learned Hand. I studied Constitutional Law under Professor Paul Freund at Harvard and came through that experience with an enormously high appreciation of the craft of judging as exemplified by Judge Hand and Justice Felix Frankfurter. Apart from Judge Hand's superb craftsmanship, I admire his skepticism with respect to his proper role as an unelected judge in a democratic society, which led to his modest approach to judging, and to his advocacy of judicial restraint. On the Supreme Court, of course, Justice Frankfurter was the leading proponent of judicial self-restraint. I have always adhered to a more restrained notion of the judiciary, as did Justice Frankfurter.
11. How did you come to the attention of President Ronald Reagan in 1986 to fill a vacancy that then existed on the Ninth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?
In light of the current confirmation environment, I feel I am the luckiest member of the entire federal appellate judiciary. President Ronald Reagan called me at home on the morning of August 8, 1986 (when I was still in the shower before leaving for work). The nomination arrived in the Senate on August 11. My hearing took place on September 10 and lasted about 20 minutes, including questions from senators on both sides of the aisle. Senator Hatfield called me at home on the night of September 25 to tell me that I had been confirmed unanimously. The whole process, from presidential nomination to confirmation, took about six weeks. My heart goes out to several of my colleagues, Judges Willy Fletcher, Richard Paez and Marsha Berzon, in particular, for what they had to endure over several years. I don't think, as a lawyer in private practice in a relatively small town, that I could have survived such an extended confirmation process.
As to how I came to the President's attention, I had the privilege of meeting President Reagan and some of his senior advisors on many occasions when I was involved in his presidential campaigns and when I was Oregon Republican chairman from 1983-1986. Indeed, I had recommended someone for the vacancy but after my letter arrived in Washington, I got a call asking me (although I had no previous interest in becoming a judge) to consider the possibility instead.
12. You were born in New York City and attended college at St. John's. What caused you to become a resident of Oregon, and for those of us unfamiliar with Portland, Oregon, would you please recommend a few things that a visitor to the area should do or see?
I met my wife at Harvard Law School. We were married in Maura's home town of Tacoma, Washington a few months after I had graduated in 1963. After practicing for awhile in New York City, I took a vacation with Maura back to her parents' home, during which I talked to law firms in Seattle, Tacoma, and Portland, coming back to New York with offers from all three places. We chose Portland and came out in 1965 and have never looked back and have never regretted our decision. Portland sits almost equidistant between superb year round skiing on Mt. Hood and a delightful sea coast on the Pacific Ocean. We have spent many vacations in the high desert country of Central Oregon around Sisters, especially Black Butte Ranch, which I would highly recommend. I also recommend the spectacular Columbia River Gorge, which one can reach in about 35 to 45 minutes from downtown Portland.
13. Many of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?
Of course, I am proud that eight of my clerks will have gone on to clerk for Justices on the Supreme Court and that others are pursuing successful careers in private law practice, law teaching and public service.
I do adhere to the "law clerk hiring plan" and hope that it will be unanimously observed, although I know that there will be some evaders. I think that judges get a much better sense of the applicants' abilities by waiting the extra year. The most important qualities are the ability to write with clarity and to display very effective legal research skills. I have been blessed with applicants having exceptionally strong academic records from fine national and regional law schools.
14. Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?
There would not even be a federal appellate judicial salary issue if Congress would only maintain parity with inflation. If the salary set in the time of President Lyndon Johnson were never reset but only cost of living adjustments added in every year, there would be nothing to complain about today. Indeed, if White House Chief of Staff Don Regan (at the behest of Senator Bob Dole) had not slashed the recommendation of the salary commission from $135,000 down to $95,000 in 1987 and annual COLAs were allowed since then, all would be fine. The problem arises because while Congress routinely allows cost of living adjustments for the general federal work force it very frequently denies it to judges (and to be fair, to themselves as well) which has lead to the calls by the Chief Justice and the Volcker Commission to try to remedy the situation. "Linkage" has been a bane for the judiciary. Congress seems to feel that district judges and members of Congress salaries should always be identical. Former Senator Dole, who strongly enforced that idea when he was Senate Majority and Minority leader has recently publicly changed his mind and now supports the Volcker Commission recommendations and feels that congressional and judicial salaries should no longer be linked.
15. The Ninth Circuit was one of just a few federal appellate courts to participate in a pilot program for televising federal appellate court oral arguments. Did you serve on any panels whose arguments were televised, and if so what was your experience? Also, do you support or oppose the broadcasting of federal appellate court oral arguments, and why?
I do support telecasting of federal appellate court arguments and have indeed participated in several televised three-judge panels and at least one eleven-judge en banc argument. On balance, things went quite well. There is always the concern that either the oralist or a judge may be playing to the camera but on the whole, this is a relatively minor issue. I don't think "Appellate TV" will ever be a ratings threat to "Survivor" or even to "The Practice."
16. As a matter of sound judicial administration, should federal appellate courts be able to prohibit citation in briefs to a category of information -- say, unpublished, non-precedential opinions? And what are your views on the Solicitor General of the United States' proposed amendment to the Federal Rules of Appellate Procedure that would allow parties to cite to unpublished, non-precedential opinions in all federal appellate courts?
I generally subscribe to the views of my colleagues Judges Reinhardt and Kozinski, that we should maintain the distinction between unpublished (nonprecedential) dispositions and published opinions. At the moment, we publish only about 16% of our decisions. The sheer volume of our output has created an enormous task of maintaining consistency. There is no question that, in drafting the language of the disposition, opinions for publication get much more care and attention than unpublished dispositions which, in my mind, justifies the distinction between the two in this less than perfect appellate world.
17. You are of course no stranger to blockbuster rulings. In 1996, in Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996) (O'Scannlain, J., dissenting), you dissented from the denial of "full court" en banc to review further an en banc panel's decision that stuck down a Washington state statute outlawing assisted suicide. The U.S. Supreme Court thereafter unanimously reversed the decision at issue in your dissent. In Coalition for Economic Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997), you wrote the decision holding that the California Constitution's prohibition of public race and gender preferences does not violate the Equal Protection Clause of the United States Constitution. What single o'pinion of yours -- majority, concurring, dissenting, or other -- do you find to be the most memorable?
The opinions you cited would be among those that I would recall favorably. I am told that my opinion in Brookfield Communications Inc. v. West Coast Entertainment Corp.
, 174 F.3d 1036 (9th Cir. 1999), involving the intersection of trademark law and web domain name registrations, has been very widely cited and has appeared in a number of case books involving cyber law.
18. You are the author of a fascinating essay entitled "On Judicial Activism" published in Open Spaces Quarterly in 2000. You wrote there that "judicial activism encourages political interference both in the process of judging and selection of judges. One need look no further than the current battle between the White House and the Senate over judicial nominees for a glimpse of the extent to which the judicial appointments process has become politicized." Truer words may never have been spoken. What are your thoughts about the federal appellate judicial confirmation process in 2003, and what suggestions, if any, do you have concerning how the process could be improved?
Like so many of my colleagues, I am dismayed by the political infighting which has characterized the judicial confirmation process in recent years. The only suggestion I might make, which is probably in vain, is that both the Republicans and the Democrats declare a "truce" and go back to the careful reflection that seems to have prevailed in the confirmation process regardless of party prior to the last fifteen years.
19. I would be remiss if I didn't ask you about your name -- Diarmuid Fionntain O'Scannlain -- which is certainly one of the most distinctive names in the entire federal judiciary. What can you tell us about your name, and do you have any affiliation with a "Journey Through Ireland" Web site accessible online at http://www.oscannlain.com/diarmuid.htm, which I discovered while researching my questions for you?
Diarmuid was the last pagan king of Ireland who reigned about the time of St. Patrick in the Fifth Century. Fionntain is the name of a very pious monk who translated gospels with illuminated writing at the Abbey of Iona in the Irish Sea. I am a Manhattan-born son of Irish immigrants (Dad from Sligo, Mom from Derry), both of whom were strong Gaelic scholars and had the practice of speaking Gaelic at home. Indeed, my first spoken language was Gaelic. While I still have some remnants (hello, thank you, do you speak Gaelic?, prayers, etc.), I largely lost fluency when I started to go to a neighborhood school. The "Journey Through Ireland" website is owned entirely by my brother Conn, who has an Irish travel and touring business. The reference in the URL address to "Diarmuid" (which I didn't know about until now) must be to one of several tours of Ireland which are available to his clients; he has also named tours for my other brothers "Fergus" and "Colm."
20. Other than reading "How Appealing," what do you do for enjoyment and/or relaxation in your spare time?
You will have to ask my wife Maura and my eight children and my seven-plus grandchildren. They keep me busy outside of chambers.