Filling the Federal Appellate Openings on the 9th Circuit

Throughout much of the 1990s, the United States Court of Appeals for the 9th Circuit has operated with fewer than the court\u27s complete complement of 28 active judges. Since 1995, when Republican senators representing states of the Pacific Northwest instituted a serious campaign to divide the 9th Circuit, the court has essentially functioned absent one-fourth of its membership. The large number of openings and their protracted nature, as well as a steadily expanding docket, have demanded that the 9th Circuit depend on many appellate and district court judges who are not active members of the 9th Circuit when staffing three-judge panels to hear cases. In fact, the Commission on Structural Alternatives for the Federal Courts of Appeals ( The Commission ), which recently completed a thorough study of the appellate courts, determined that 43% of panels that resolved cases after oral argument in the 9th Circuit during the 1997 fiscal year included at least one participant who was not an active judge of the court. This Commission apparently premised its major recommendation that Congress and the President require three regionally-based adjudicatory divisions for the 9th Circuit on the perception that the court may decide appeals too slowly, that circuit case law might lack consistency and coherence, that the court\u27s judges could be insufficiently collegial, and that circuit links with the regions served seem inadequate. Insofar as the deficiencies that the commissioners perceived actually exist, however, they may be ascribed more appropriately to the significant number and prolonged character of the vacancies that the court has experienced over the last half decade. Indeed, the expeditious appointment of judges to the six empty seats might obviate the necessity for implementing an untested divisional approach, which could well disrupt many efficacious aspects of 9th Circuit administration. These considerations mean that the judicial openings on the court deserve assessment. This Article undertakes that effort. Section II evaluates the national judicial vacancies problem, focusing on how circumstances in the 9th Circuit became so problematic. Section III analyzes recent developments that have permitted nearly one-quarter of the 28 active judgeships that senators and representatives have authorized for the court to remain unfilled. Finding that the burgeoning number and increasing complexity of civil and criminal appeals and the substantial difficulty of promptly appointing judges to the empty positions is seriously threatening appellate justice, Section IV offers recommendations for addressing this situation. These recommendations may also apply to other federal circuits experiencing similar judicial vacancies