Breaking up is hard to do:
A brief summary of new congressional action to split the Ninth Circuit court
By Gregory S. Fisher(1)
(Note: Footnotes in parentheses)
It's hard to imagine a court more reviled or ridiculed than the Ninth Circuit. Perhaps the Warren Court excited more agitation in its heyday, but the passions it stirred have settled with time, and even its more provocative decisions are now accepted, if not firmly embraced, by mainstream America.
The Ninth Circuit, in contrast, is dismissed by critics as a "dysfunctional" court that is "out-of-touch with American jurisprudence, common sense, and constitutional values."(2) As a result of its remarkable penchant for launching "bunker buster" opinions into the Nation's psyche, the court has been called an "ongoing spectacle,"(3) and its judges described as "ghoulish poster children for what is fundamentally dishonest about liberal judicial activism."(4)
I've been a student of the court for almost 12 years now which includes my years as a law student, time spent as a practicing member of the Bar, and a stint as a law clerk with a federal district judge in Alaska and, yes, the Ninth Circuit itself. In my personal and professional opinion, the Ninth Circuit is unfairly criticized. But I acknowledge my bias, and further concede that problems, real or perceived, do exist. And these problems have sparked yet another round of circuit re-organization proposals. On February 27, 2003, Representative Simpson ( R. Idaho) introduced H.R. 1033 to split the Ninth Circuit. Senator Murkowski (R. Alaska) introduced a parallel initiative, S. 562, in the Senate on March 6, 2003.
The purpose of this article is to briefly summarize key features of these proposed Bills, along with arguments supporting and opposing a split, in the expectation that such a summary may prove useful to members of the Bar. I also review previous reorganization efforts in order to place the latest measures into historical perspective, and propose some less-drastic options to address perceived problems affecting the Ninth Circuit without requiring a circuit split. I imply neither support nor opposition for a split.
What: Key Features
HR 1033 and S 562 are substantially similar, but not identical. They would create a new Twelfth Circuit composed of Alaska, Guam, Hawaii, Idaho, Montana, Oregon, Washington, and the Northern Mariana Islands with arguments principally heard in Seattle and Portland. In addition, under HR 1033, Arizona would shift to the Tenth Circuit, joining Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. S 562 places Arizona in the new Twelfth Circuit. The Ninth Circuit would shrink to two states, California and Nevada, under both measures.
Both HR 1033 and S 562 envision maintaining a comparable number of judges as are presently in the Ninth Circuit, but the Senate measure adds additional judges now while the House proposal increases the number of judges in 2005. The current Ninth Circuit is authorized 28 active circuit judges.(5)
With Judge Bybee's recent confirmation, there are presently 25 active circuit judges and 21 senior circuit judges for a total of 46 judges.(6) HR 1033 provides a clean split by allocating 8 judges to the new Twelfth Circuit, and 20 to the new Ninth Circuit. HR 1033 also provides for additional judges commencing February 1, 2005. At that time, the Ninth Circuit will be allocated 5 new judges (to 25) and the Twelfth Circuit will add 2 judges (to 10). S 562 allocates 13 judges to the Twelfth Circuit, and 25 to the new Ninth Circuit.
These allocations are comparable to current staffing levels. States in the proposed Twelfth Circuit currently have 8 active judges ( Judge O'Scannlain, Judge Trott, Judge T. Nelson, Judge Kleinfeld, Judge S.R. Thomas, Judge Graber, Judge Gould, and Judge Tallman),(7) and 5 senior judges (Judge Skopil, Judge Betty Fletcher, Judge Farris, Judge Beezer, and Judge Leavy).(8)
When (date and consequences)
Both HR 1033 and S 562 project an effective date of Oct. 1, 2003. HR 1033 provides that judges in the Ninth Circuit outside Arizona as of the effective date would have the election of joining the new Twelfth Circuit or remaining with the Ninth. Those judges in Arizona (including Chief Judge Schroeder, Senior Judge Canby, Judge Hawkins, and Judge Silverman) would have the choice of moving to the Tenth Circuit or staying with the Ninth Circuit. HR 1033 provides that, for 10 years after Oct. 1, 2003, the new Ninth Circuit and the Twelfth Circuit may meet in either court's jurisdiction.
An interesting wrinkle not addressed by either HR 1033 or S 562 is the circuit residency requirement. Currently, judges are required to be residents of a jurisdiction within their respective circuit.(9) If HR 1033 is enacted, four circuit judges in Arizona, including the Ninth Circuit's current Chief Judge, would (in theory) have to move if they wanted to stay in the Ninth Circuit. Presumably, further amendment would be required to account for any judges who elected to stay with the Ninth Circuit but who lived outside its newly configured borders.
In addition to the preceding, HR 1033 provides that cases submitted (that is, briefed, argued, and ready for decision) as of Oct. 1, 2003 would not be affected. Similarly, petitions for panel rehearing or for rehearing en banc will be processed without regard for the Act. Appeals filed, but not submitted, in any of the states or territories of the new Twelfth Circuit, will be transferred to the Twelfth Circuit. Appeals filed from the District Arizona before Oct. 1, 2003 will remain with the new Ninth Circuit regardless of whether they have been submitted or not. S 562 does not address what will happen with pending appeals on its effective date.
Why: Motives and Arguments supporting and opposing a split
Efforts to split the Ninth Circuit are not new. Indeed, Congress has visited the issue with some regularity over the past thirty years.(10) Beginning with the Hruska Commission in 1972, Ninth Circuit Reorganization Acts have been studied or introduced in the House or Senate (or both) in 1972-73, 1983, 1989, 1991, 1993, 1995, 1996, 1997, 1999, and 2001.(11) Almost all sponsors and co-sponsors have come from states in the Pacific Northwest, principally but not exclusively, Washington, Oregon, Idaho, Montana, or Alaska.(12)
At one time, splitting the Ninth Circuit was perceived as solely (or primarily) a political maneuver to separate states in the Pacific Northwest from California.(13) It was widely assumed that the Ninth Circuit was dominated by liberal judges from California who were disconnected from political and social realities affecting people elsewhere.(14) More currently, proponents of a split usually identify size and efficiency as the primary factors that support breaking up the Ninth Circuit.(15)
Of those who have taken public positions supporting a split, the primary reason offered is the circuit's size. According to recent statistics released by the Administrative Office, the Ninth Circuit's filings rose to 10,342 cases during the 12 month period ending September 30, 2001, an increase of 13.1% from the previous year.(16) No other circuit comes close. In addition, proponents observe that it is difficult for judges to keep abreast of intra-circuit developments and police errors given the number of filings with corresponding published opinions.(17)
Some contend that this accounts for the high percentage of Ninth Circuit cases that are reversed by the United States Supreme Court.(18) These problems are further compounded by a limited en banc court of 11 judges necessitated by the Ninth Circuit's size.(19) For most circuits, an en banc court is composed of all active judges. In the Ninth Circuit, however, only 11 out of 25 active judges randomly selected hear cases en banc. Those supporting a split argue that the Ninth Circuit's limited en banc process makes it difficult for the circuit to identify and correct panel errors, and introduces a measure of arbitrariness into circuit-wide precedent because a minority of judges randomly selected are speaking for the full court.(20)
Opponents suggest that the current system, although admittedly not ideal, is not broken. The Ninth Circuit is current on its caseload and timely resolves pending disputes.(21) It is also noted that states in the Ninth Circuit share common interests and demographics, militating in favor of a uniform body of federal law.(22) For example, states in the Ninth Circuit share similar maritime, federal land management, natural resources, mining, and environmental concerns all implicating federal statutes or federal common law. Opponents also question the administrative costs associated with a split, and profess doubt whether reorganization will actually improve efficiency.(23)
Senator Murkowski's introductory comments merge the old and new, relying on both clear references to political motives and judicial efficiency as support for splitting the Ninth Circuit. The Pledge decision appears to have been the catalyst.(24) Decrying the Ninth Circuit's failure to take the case en banc, Senator Murkowski observed:
The Pledge Decision rendered by the court is not an aberration. It is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. Unfortunately, citizens in the states that are within the Ninth Circuit's jurisdiction have had to contend with the court's idiosyncratic jurisprudence for decades.(25)
Senator Murkowski criticized the Ninth Circuit for its high reversal rate, noting that in "the last three years, one-third of all cases reversed by the Supreme Court came from the 9th Circuit. That's three times the number of reversals for the next nearest circuit. And 33 times higher than the reversal rate for the 10th Circuit."(26) She attributed the reversal rate, in chief part, to the circuit's size and its limited en banc process. Senator Murkowski remarked:
In fact, some commentators believe a majority of the 24 members of the court may have disagreed with the Pledge decision, but were concerned that a random pick of 11 members of the Court to hear the case, en banc, might have resulted in the decision being affirmed. It is inconceivable to me that a circuit court would render a decision based on its concern about the potential makeup of an en banc panel. What kind of jurisprudence is that? Citizens in no other circuit face that type of coin-flip justice.(27)
Discussing motivations animating prior reorganization acts, Senator Murkowski stated:
The uniqueness of the Northwest, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of State law and State issues relative to the geographic land mass, population and native cultures that are unique to the relevant region. Presently, California is responsible for almost 50 percent of the appellate court's filings, which means that California judges and California judicial philosophy dominate judicial decisions on issues that are fundamentally unique to the Pacific Northwest. This need for greater regional representation is demonstrated by the fact that the East Coast is comprised of five Federal Circuits. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law.(28)
She concluded, "[a] new Twelfth Circuit, comprised of states of the Pacific Northwest, would respect the economic, historical, cultural and legal ties which philosophically unite this region."(29)
How likely?: Your 20-cent Predictive Analysis
Regardless whether one favors or opposes a circuit split–and to emphasize, I take no position--it is probable that the latest measures will not succeed. The political subtext animating Senator Murkowski's proposal is apt to give some legislators doubts. Even those who favor a circuit split usually emphasize that the circuit should not be split just because of the way certain cases are decided.(30) To do so would threaten the judiciary's independence. Moreover, although proposals introduced in the past differ to some degree, there is little to distinguish the 2003 circuit split model from its predecessors. Past is prologue.
The California delegation will have a significant role in deciding whether to split the Ninth Circuit, and unless and until California's senators and representatives perceive a need to split the circuit, it will probably be difficult to get any such measure enacted. To the extent that the Ninth Circuit's purported liberal bias is believed to affect the court's deliberation, conservative members of the California delegation will be unlikely to sever California from the Northwest states where the perception is that more conservative judges reside. Liberal members of the California delegation will be unlikely to restrict the reach and influence of their favorite circuit.
Finally, I do not intend any criticism of Senator Murkowski, but she is a new senator with no seniority. Although we may expect that Senator Murkowski will develop into an excellent senator, it is a fair question to wonder whether she will or would have the political muscle at the present time to steer such a major project through Congress. Even assuming she has the political weight, or may bank on her father's name and goodwill, or successfully ride Senator Stevens' coattails, it would seem to be a difficult year to push through a re-organization act with Congressional attention focused on Iraq and a faltering economy.
What other options exist to address problems (real or perceived)?
However, just because the political muscle may not yet exist to create a new Twelfth Circuit does not mean that problems do not exist (or are not perceived to exist) or that other potential options for correcting perceived problems should be ignored. The White Commission recommended dividing the Ninth Circuit into divisions, a sort of compromise split which failed to attract enough supporters to be enacted.(31) It therefore seems probable that intra-circuit divisions or circuit splits are unlikely to be accepted as solutions to perceived problems.
The difficulty in restructuring the Ninth Circuit does not mean that other less-drastic yet constructive solutions should be ignored. In the spirit of exploring other options, I offer a few ideas that, separately or collectively, could perhaps solve some of the administrative and substantive problems either affecting or perceived as affecting the Ninth Circuit. Some of these ideas are similar to previously suggested proposals; others I have not encountered in the sources I've reviewed, and frankly do not know whether they have ever been suggested or, if they have, what response they received. I freely acknowledge that all of these ideas may be criticized. But, if nothing else, they provide options for review and study even if they are ultimately rejected.
(1) Adopt permanent or regional panels.
Currently, judges are randomly assigned to each panel for each calendar week of oral argument or screening. In theory, each 3 judge panel is composed of 3 different judges. In any given year, judges are assigned to approximately 8 argument calendars. This means that, throughout the year, judges are (in theory) sitting with different colleagues each of whom possesses his or her own judicial philosophy, work habits, skills, experiences, and personality quirks.
Random assignment may facilitate circuit-wide collegiality (as that term is correctly defined by Judge Kleinfeld).(32) However, the sheer number of potential panels that are randomly-selected makes it virtually impossible to predict with any degree of assurance just what the Ninth Circuit will do in any given case. One commentator cites sources establishing that there are over 3,000 potential panel compositions in the Ninth Circuit, not counting senior and visiting judges, while other representative circuits have less than 200 potential panels.(33) Predictability and stability are twin concepts deeply rooted in our common law tradition. As Judge Kleinfeld has previously noted, it is difficult to predict how the Ninth Circuit will analyze and resolve issues because of the number of potential panel compositions, and that number erodes stability by creating inconsistent decisions.
Moreover, in my experience, any team works most efficiently when its members know and are familiar with each other's work habits, personalities, skills, and experiences. I believe probably all or most states have fixed panels for their highest court of record.
If fixed panels were not adopted, thought should be given to composing panels by region along the lines recommended by the White Commission and others.(34) This would draw panels from pre-determined regional pools. For example, there could be a Northwest panel pool composed of judges from Alaska, Washington, Idaho, Oregon, and Montana, or a Southwest panel pool composed of circuit judges from Arizona, Nevada, and the Southern District of California.
Fixed or regional panels are not an assurance of judicial efficiency. But I believe fixed or regional panels are preferable to unlimited rotating panels particularly when the number of judges and panels results in thousands of potential panel compositions that may be randomly selected.
(2) Assign judges to dockets addressing certain subjects
Judges are expected to be general practitioners in an era of increasing specialization. One might question whether unfamiliarity with substantive law causes delay and increases error. Many state courts have assigned dockets that typically involve something as generalized as a "civil docket" or "criminal docket." All this means is that judges are assigned cases in that docket and no (or few) others.
I wonder whether it might be useful to explore assigning judges to a generalized docket; e.g., "civil," "criminal," or "administrative." Regular active judges would have first choice on a seniority basis. These docket assignments would not be permanent. Instead, such assignments would last for a pre-determined period of time–perhaps something like between 2 to 5 years–at which time judges could rotate out to different dockets.
(3) Abandon the preference for oral argument.
This would require amendment to the Federal Rules of Appellate Procedure, something that is beyond the Ninth Circuit's power. Nevertheless, I respectfully believe that it is an option warranting study. At present, there is a preference mandating oral argument unless the panel acts to submit a case on the briefs for certain reasons set forth in the rule.(35) The preference for oral argument is so strong that argument will be held if one judge on the panel deems oral argument necessary even if the parties stipulate to submit a case on the briefs.(36)
I recognize that the final arbiters of this issue must be the Article III judges who hear and decide each case. However, I respectfully question how useful oral argument can actually be for the parties or the court. Parties are only allotted 10 minutes per side for average appeals. In more complicated cases, parties may be allowed 20 minutes to argue. En banc cases are typically scheduled for 1 hour argument (30 minutes per side). If parties have had months to finalize their respective briefs, it is unlikely that 10 minutes of argument is apt to shed substantial light on the issues being reviewed. To the extent that the briefing is inadequate, or does not answer questions that one or more judges would like to have addressed, the court may direct the parties to file supplemental briefs.
I believe that relaxing the preference for oral argument would reduce the cost and time associated with week-long calendars especially for those judges traveling long distance to and from Pasadena and San Francisco. It would also save tax dollars. Government lawyers are often flying to California from Washington D.C. for a 10 minute oral argument in an Immigration case. I do not propose scrapping all oral argument. Instead, judges would remain free to order oral argument sua sponte, and parties could move for oral argument. Oral argument would thus be limited to those cases where it was truly needed, thereby (I believe) saving the court time and money. At a minimum, if the preference for oral argument is maintained, the court should consider scheduling telephonic oral argument.
(4) Tackle briefs as they fall ripe.
Those who have attended the Ninth Circuit's Bench and Bar program in the past have heard different Judges discuss and describe how calendar weeks are structured. For those who have missed these sessions, all filing is currently maintained in San Francisco. Court personnel ship calendar material to outlying Chambers as calendar dates approach. This means that, for each calendar week, any given 3-judge panel is getting swamped with briefs and excerpts at around the same time that work on previous calendars is being finalized making it easier to miss arguments or facts, and making judges and law clerks more prone to fall into an assembly line frame of mind. By contrast, at the district court level, most judges tackle each motion or brief (in administrative appeals) as the matter falls ripe. There is little or no delay. In short, at the district court level, Judges judge–they manage their own dockets. At the appellate level, circuit judges have much less control over what cases they will hear and resolve, and when. Admittedly, the proposal I submit here would present administrative challenges as panels would have to be selected and tracked with each appeal that fell ripe. But it is at least open to question whether a consistent river of cases would not be easier to manage than the intermittent floods that currently hit Chambers every month or two.
(5) Minority en banc acceptance.
At present, the Ninth Circuit employs a limited en banc court of 11 judges. But a majority of the regular active non-recused judges most vote to take a case en banc. As seen, a common criticism of the Ninth Circuit is that its size frustrates effective en banc review. It is too difficult to get cases re-heard en banc. I believe this could be addressed by slightly lowering the threshold needed to secure en banc review. Instead of requiring a majority of regular active non-recused judges to secure review, en banc review should be secured if 1/3 (rounded up) + 1 of the regular active non-recused judges voted in favor of review. By way of illustration, that would require 10 judges voting in favor of review with the current total of 25 active judges (1/3 of 25 is 8.3 [rounded up to 9] + 1 = 10). This is only 3 votes shy of the current requirement, but still represents a substantial number of judges supporting review. In my book, if 10 Article III judges see a problem with a particular case, that should be enough to justify further scrutiny. This formula could be revised or scrapped in favor of another–the only point is that there should be a way to secure en banc review when a substantial (if minority) number of active circuit judges wish to rehear a case. There is existing support for a rule providing for discretionary review on minority vote. The United States Supreme Court only requires 4 votes to grant a writ of certiorari.(37)
Status: where can you get additional information?
Again, I fully appreciate that one, some, or all of these ideas could be criticized for any number of reasons. But, given that efforts at radical surgery have failed, and that problems are perceived to affect the Ninth Circuit's operations, it may be time to aggressively look for less drastic forms of treatment.
As of the time this article is being submitted, both HR 1033 and S 562 have been referred to committees. Those interested in registering support or opposition may contact sponsors or co-sponsors. HR 1033 was introduced by Representative Simpson, and is currently co-sponsored by Representatives Walden, Nethercutt, Otter, and Hastings. Representative Simpson's general contact information is noted below.(38) Senator Murkowski introduced S. 562, and this measure is currently co-sponsored by Senators Stevens, Burns, Craig, Crapo, Inhofe, and Smith. Senator Murkowski's general contact information is noted below.(39) The Library of Congress' website may be used to track legislative history (http//:thomas.loc.gov).
My object in submitting this article was to briefly review key features of proposed measures to split the Ninth Circuit, along with arguments supporting and opposing a split, in the expectation that such a summary may prove useful to members of the Bar. Regardless of whether one supports or opposes a circuit split, I believe the court would welcome, and be well-served by, comments from members of the practicing Bar. I encourage my colleagues to submit their views to Senator Murkowski and Representative Simpson.
1. J.D., University of Washington (1991); B.A., with honors, State University of New York, Binghamton (1988). I welcome criticism, constructive or otherwise. Comments may be directed to me at Jaburg & Wilk, P.C., 3200 North Central Avenue, Suite 2000, Phoenix, Arizona 85012 [tel: (602) 248-1000; e-mail: email@example.com]. I am a former law clerk to the Honorable Barry G. Silverman, United States Court of Appeals Ninth Circuit, whose Chambers are in Phoenix, Arizona, and to the Honorable John W. Sedwick, Chief Judge United States District Court, Alaska. This article reflects my views, and not necessarily those of the Ninth Circuit or any Circuit or District Judge in the Ninth Circuit. Although my experiences as a district court and Ninth Circuit law clerk have necessarily shaped my views of court processes and procedures, no confidential information is disclosed in this article. Any mistakes are mine alone.
2. See Introductory remarks of Senator Lisa Murkowski, 149 Cong. Rec. S325-01, S3319 (March 6, 2003).
3. "In Zeus We Trust, Cont.," Wall Street Journal (March 3, 2003).
4. Mark Q. Rhoads, " Outside View: God Bless the 9th Circuit," UPI National Desk (March 29, 2003).
5. 28 U.S.C. § 44(a).
6. See http://www.ce9.uscourts.gov ("Court of Appeals Active and Senior Judges" table) (last visited April 8, 2003).
7. Although the Ninth Circuit's public website reflects that Judge McKeown's resident Chambers are located in Seattle, she now maintains Chambers in San Diego.
8. Judge Goodwin is from Oregon, but maintains Chambers in Pasadena, California.
9. See 28 U.S.C. § 44(c).
10. For an informative summary of reorganization history, please see Sanford Svetcov and Janelle Kellman, "The 'No Split' Split of the Ninth Circuit–The End of the World as We Know it?," 15 J. L. & Pol. 495 (1999).
11. For brief but comprehensive summaries of Congressional action, please see Jennifer E. Spreng, "The Icebox Cometh: A Former Clerk's View of the Proposed Ninth Circuit Split," 73 Wash. L. Rev. 875, 876-79, 885-93 (1998); Senator Conrad Burns, "Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue," 57 Mont. L. Rev. 245, 247-50 (1996).
12. See Jennifer E. Spreng, "Three Divisions in One Circuit? A Critique of the Recommendations from the Commission on Structural Alternatives for the Federal Courts of Appeals," 35 Idaho L. Rev. 553, 559-60 (1999).
13. See Alan B. Rabkin and George M. Duff, "The Fracture of the Ninth," 6 Nevada Lawyer 14, 15, 17 (July 1998).
14. See Aaron H. Caplan, "Malthus and the Court of Appeals: Another Former Clerk Looks at the Proposed Ninth Circuit Split," 73 Wash. L. Rev. 957, 979-81, 984-85 (1998) (arguing against a split of the Ninth Circuit).
15. See Greg Mitchell, "It's Time to Split the Circuit," The Recorder (March 21, 2003). Judge O'Scannlain recently granted Howard Bashman an interview in which he echoed similar concerns. See http://20q-appellateblog.blogspot.com (March 3, 2003) (last visited April 8, 2003).
16. See http://www.uscourts.gov/cgi-bin/cmsa2001.pl (last visited March 8, 2003).
17. See, e.g., Testimony of Judge Andrew Kleinfeld before the Senate Judiciary Committee on July 16, 1999. Judge Kleinfeld's testimony may be accessed at the Ninth Circuit's website, http://www.ce9.uscourts.gov ("Court Restructuring Issues") (last visited April 8, 2003). I should clarify that I cite Judge Kleinfeld's testimony as representative of general concerns sometimes voiced by circuit split proponents. I do not know, and do not intend to imply, whether or not Judge Kleinfeld has any opinion concerning the new circuit reorganization acts that are the subject of this article.
18. See Senator Conrad Burns, "Dividing the Ninth Circuit Court of Appeals: A Proposition Long Overdue," 57 Mont. L. Rev. 245, 252 (1996).
21. See, e.g., Testimony of Chief Judge Procter Hug, Jr. before the Senate Judiciary Committee on July 16, 1999. Judge Hug's testimony may be accessed at the Ninth Circuit's website, http://www.ce9.uscourts.gov ("Court Restructuring Issues") (last visited April 8, 2003). I cite Judge Hug's testimony as representative of general concerns sometimes expressed by those opposing a circuit split. I do not know, and do not intend to imply, whether or not Judge Hug has any opinion concerning the new circuit reorganization acts that are the subject of this article.
22. See id.
23. Id.; see also Rabkin and Duff, supra note 12 at 16-17.
24. See Newdow v. U.S. Congress, 321 F.3d 772 (9th Cir. 2003).
25. See 149 Cong. Rec. S325-01, S3319 (March 6, 2003). Senator Murkowski's remarks may also be accessed at 2003 WL 832170 (Cong. Rec.).
27. Id. at S3319-20.
28. Id. at S3320.
30. See, e.g., Judge O'Scannlain's interview with Howard Bashman cited supra note 14.
31. For comprehensive reviews of the White Commission and its recommendations, please see Spreng, supra note 11, and Svtecov and Kellman, supra note 9.
32. See Judge Kleinfeld's testimony, supra note 16. Judge Kleinfeld instructs:
The word "collegiality" in its traditional meaning is critical to the en banc process. The word is sometimes used in contemporary speech to mean some combination of civility and bonhomie. That is not its dictionary definition. The traditional definition is "shared authority among colleagues." The word is derived from "the doctrine that bishops collectively share collegiate authority." Because we do not rehear cases as a full court, we cannot assure that our decisions represent shared authority among all our colleagues.
33. See Spreng, supra note 11 at 564 n.73.
34. See Svetcov and Kellman, supra note 9 at 507, 511-12 (for discussion).
35. See Fed. R. App. P. 34(a)(2). Reasons for submitting cases on the briefs include that " appeal is frivolous. . .the dispositive issue or issues have been authoritatively decided" or the facts and law have been adequately briefed and oral argument would not assist the court. Id.
36. See Fed. R. Civ. P. 34(f). The Circuit Advisory Committee Note provides, "Oral argument will not be vacated if any judge on the panel desires that a case be heard."
37. See Remarks by Chief Justice Rehnquist, Lecture at the Faculty of Law of the University of Guanajuato, Mexico, September 27, 2001 (discussing operations and procedures of the United States Supreme Court), available at http://www.supremecourtus.gov/publicinfo/speeches/sp_09-27-01.html (last visited April 12, 2003).
38. Representative Simpson's website is http://www.house.gov/simpson/ (last visited April 8, 2003). His office phone number in Washington D.C. is (202) 225-5531. His Boise office telephone number is (208) 334-1953. His mailing address is 1339 Longworth, Washington D.C. 20515.
39. Senator Murkowski's website is http://murkowski.senate.gov/ (last visited April 8, 2003). Her office phone number in Washington D.C. is (202) 224-6665. Her regional office phone numbers are (907) 271-3735 (Anchorage) and (907) 456-0233 (Fairbanks). Senator Murkowski's mailing address is 322 Hart Senate Office Building, Washington D.C. 20510.