[Congressional Record Volume 142, Number 37 (Monday, March 18, 1996)]
[Senate]
[Pages S2219-S2235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  BALANCED BUDGET DOWNPAYMENT ACT, II

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to H.R. 3019. The clerk will report the bill.
  The bill clerk read as follows:

       A bill (H.R. 3019) making appropriations for fiscal year 
     1996 to make a further downpayment toward a balanced budget, 
     and for other purposes.

  The Senate resumed the consideration of the bill.

       Pending:
       Hatfield modified amendment No. 3466, in the nature of a 
     substitute.
       Lautenberg amendment No. 3482 (to amendment No. 3466), to 
     provide funding for programs necessary to maintain essential 
     environmental protection.
       Hatch amendment No. 3499 (to amendment No. 3466), to 
     provide funds to the District of Columbia Metropolitan Police 
     Department.
       Boxer/Murray amendment No. 3508 (to amendment No. 3466), to 
     permit the District of Columbia to use local funds for 
     certain activities.
       Gorton amendment No. 3496 (to amendment No. 3466), to 
     designate the ``Jonathan M. Wainwright Memorial VA Medical 
     Center'', located in Walla Walla, Washington.
       Simon amendment No. 3510 (to amendment No. 3466), to revise 
     the authority relating to employment requirements for 
     recipients of scholarships or fellowships from the National 
     Security Education Trust Fund.
       Simon amendment No. 3511 (to amendment No. 3466), to 
     provide funding to carry out title VI of the National 
     Literary Act of 1991, title VI of the Library Services and 
     Construction Act, and section 109 of the Domestic Volunteer 
     Service Act of 1973.
       Coats amendment No. 3513 (to amendment No. 3466), to amend 
     the Public Health Service Act to prohibit governmental 
     discrimination in the training and licensing of health 
     professionals on the basis of the refusal to undergo or 
     provide training in the performance of induced abortions.
       Bond (for Pressler) amendment No. 3514 (to amendment No. 
     3466), to provide funding for a Radar Satellite project at 
     NASA.
       Bond amendment No. 3515 (to amendment No. 3466), to clarify 
     rent setting requirements of law regarding housing assisted 
     under section 236 of the National Housing Act to limit rents 
     charged moderate income families to that charged for 
     comparable, non-assisted housing, and clarify permissible 
     uses of rental income is such projects, in excess of 
     operating costs and debt service.
       Bond amendment No. 3516 (to amendment No. 3466), to 
     increase in amount available under the HUD Drug Elimination 
     Grant Program for drug elimination activities in and around 
     federally-assisted low-income housing developments by $30 
     million, to be derived from carry-over HOPE program balances.
       Bond amendment No. 3517 (to amendment No. 3466), to 
     establish a special fund dedicated to enable the Department 
     of Housing and Urban Development to meet crucial milestones 
     in restructuring its administrative organization and more 
     effectively address housing and community development needs 
     of States and local units of government and to clarify and 
     reaffirm provisions of current law with respect to the 
     disbursement of HOME and CDBG funds allocated to the State of 
     New York.
       Lautenberg amendment No. 3518 (to amendment No. 3466), 
     relating to labor-management relations.
       Santorum amendment No. 3484 (to amendment No. 3466), 
     expressing the Sense of the Senate regarding the budget 
     treatment of federal disaster assistance.
       Santorum amendment No. 3485 (to amendment No. 3466), 
     expressing the Sense of the Senate regarding the budget 
     treatment of federal disaster assistance.
       Santorum amendment No. 3486 (to amendment No. 3466), to 
     require that disaster relief provided under this Act be 
     funded through amounts previously made available to the 
     Federal Emergency Management Agency, to be reimbursed through 
     regular annual appropriations Acts.
       Santorum amendment No. 3487 (to amendment No. 3466), to 
     reduce all Title I discretionary spending by the appropriate 
     percentage (.367%) to offset federal disaster assistance.
       Santorum amendment No. 3488 (to amendment No. 3466), to 
     reduce all Title I 'Salary and Expense' and 'Administrative 
     Expense' accounts by the appropriate percentage (3.5%) to 
     offset federal disaster assistance.
       Gramm amendment No. 3519 (to amendment No. 3466), to make 
     the availability of

[[Page S2220]]

     obligations and expenditures contingent upon the enactment of 
     a subsequent act incorporating an agreement between the 
     President and Congress relative to Federal expenditures.
       Wellstone amendment No. 3520 (to amendment No. 3466), to 
     urge the President to release already-appropriated fiscal 
     year 1996 emergency funding for home heating and other energy 
     assistance, and to express the sense of the Senate on 
     advance-appropriated funding for FY 1997.
       Bond (for McCain) amendment No. 3521 (to amendment No. 
     3466), to require that disaster funds made available to 
     certain agencies be allocated in accordance with the 
     established prioritization processes of the agencies.
       Bond (for McCain) amendment No. 3522 (to amendment No. 
     3466), to require the Secretary of Veterans Affairs to 
     develop a plan for the allocation of health care resources of 
     the Department of Veterans Affairs.
       Warner amendment No. 3523 (to amendment No. 3466), to 
     prohibit the District of Columbia from enforcing any rule or 
     ordinance that would terminate taxicab service reciprocity 
     agreements with the States of Virginia and Maryland.
       Murkowski/Stevens amendment No. 3524 (to amendment No. 
     3466), to reconcile seafood inspection requirements for 
     agricultural commodity programs with those in use for general 
     public consumers.
       Murkowski amendment No. 3525 (to amendment No. 3466), to 
     provide for the approval of an exchange of lands within 
     Admiralty Island National Monument.
       Warner (for Thurmond) amendment No. 3526 (to amendment No. 
     3466), to delay the exercise of authority to enter into 
     multiyear procurement contracts for C-17 aircraft.
       Burns amendment No. 3528 (to amendment No. 3466), to allow 
     the refurbishment and continued operation of a small 
     hydroelectric facility in central Montana by adjusting the 
     amount of charges to be paid to the United States under the 
     Federal Power Act.
       Burns amendment No. 3529 (to amendment No. 3466), to 
     provide for Impact Aid school construction funding.
       Burns amendment No. 3530 (to amendment No. 3466), to 
     establish a Commission on restructuring the circuits of the 
     United States Courts of Appeals.
       Coats (for Dole/Lieberman) amendment No. 3531 (to amendment 
     No. 3466), to provide for low-income scholarships in the 
     District of Columbia.
       Bond/Mikulski amendment No. 3533 (to amendment No. 3482), 
     to increase appropriations for EPA water infrastructure 
     financing, Superfund toxic waste site cleanups, operating 
     programs, and to increase funding for the Corporation for 
     National and Community Service (AmeriCorps).


                           Amendment No. 3530

  Mr. BURNS. Mr. President, I call up amendment No. 3530 and ask for 
its immediate consideration.
  The PRESIDING OFFICER. Is there objection to laying aside the pending 
amendment? Without objection, it is so ordered. The amendment is now 
before the Senate.


                Amendment No. 3548 to Amendment No. 3530

 (Purpose: To amend title 28, United States Code, to divide the ninth 
judicial circuit of the United States into two circuits, and for other 
                               purposes)

  Mr. BURNS. Mr. President, I send to the desk a second-degree 
amendment to amendment No. 3530 and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The bill clerk read as follows:

       The Senator from Montana [Mr. Burns], proposes an amendment 
     numbered 3548 to amendment No. 3530.

  Mr. BURNS. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. BURNS. Mr. President, I offer this amendment on behalf of the 
people of Montana. This issue was reported--in other words, dealing 
with the ninth judicial district--this issue was reported out of the 
Judiciary Committee with an 11 to 7 vote, with strong bipartisan 
support, and a conference report that was overwhelmingly recommending 
its passage.
  It has often been said that one would wonder, why is there such a 
movement to reform habeas corpus when the very idea of habeas corpus is 
as American as apple pie and hot dogs? Americans have always been 
sensitive to the rights of the accused. It has been a hallmark as long 
as this United States has been a union. But in our court of appeals, 
Mr. President, we happen to be situated, in the State of Montana, in 
the largest judicial district. It is the ninth: Montana, Idaho, 
Washington, Oregon, California, Nevada, Arizona, Hawaii, and Alaska.

  Our proposal, under this proposal to split the ninth circuit, would 
leave California, Hawaii, Guam, and the northern Mariana Islands with a 
mission of a 15-judge unit. Alaska, Arizona, Idaho, Montana, Nevada, 
Oregon, and Washington would form the new 12th circuit of 13 judges. 
The caseload would be split, and 60 percent of the present-day caseload 
would still be represented in California and Hawaii, and 40 percent of 
the present-day caseload would be in the newly formed twelfth. The 
reasons are very, very compelling for those States that would remain in 
the 9th district, after the newly formed 12th went into full operation, 
to remain there.
  In this amendment is also a section that allows a national study of 
our courts of appeals. I think that study should move on. It was 
recommended by the Senator from California, and I see her on the floor. 
It made good sense whenever the suggestion was made, and it still makes 
good sense today. But I think we already have studies. We have studies 
on the shelf, and yet, after we got the studies, nothing was done to 
address the problems.
  Let us take a look at this circuit. The ninth circuit is big, too 
big. It includes nine States, 1.4 million square miles, 45 million 
people. By comparison, the sixth judicial district serves less than 29 
million people, and every other circuit serves less than 24 million 
people.
  The Census Bureau is telling us that by the year 2010 the population 
in the ninth, if it remains in its present size, will be more than 63 
million people because of the demographics and the movement of people. 
That is a 40-percent increase in just 15 years.
  Judge O'Scannlain, of the ninth judicial district, testified, and I 
quote:

       In light of the demographic trends in our country, it is 
     clear that the population of the States in the ninth circuit, 
     and thus the caseload of the Federal judiciary sitting in 
     those States, will continue to increase at a rate 
     significantly ahead of most other regions in the country.

  The number of judges stands at 28. The fifth judicial district has 17 
judges; the first has 6 and the seventh and eighth each have 11. The 
average of the circuits, other than the ninth, is 12.6 judges. I do not 
know what they do with the other four-tenths of 1 percent. The ninth 
recently unanimously made a request from that district requesting an 
additional 10 more judges. So the prospect of even a larger ninth will 
be upon us in just a very near future.
  If you can imagine having 38 active judges, in addition to 12 senior 
status judges, on one court, that should give all of us pause. If we do 
not deal with this issue now, we will only be putting it off into the 
future. In other words, let us get started.
  Having said that, this is the situation that is existing in the 
district itself today. No. 1 is delay. The ninth is the second slowest 
of all the circuits. The chief judge himself on the circuit commented 
in his written testimony, ``It takes about 4 months longer to complete 
an appeal in our court as compared to the national median time.'' Mr. 
President, 315 days is the national median time from the filing of 
appeal to the final conclusion. In the ninth, it is 429 days.

  Other methods have been used and they come up with similar results. 
What does it do? Delay; the bigness leads to inconsistency, 
unpredictability, and I think what is more important, the lack of 
collegiality.
  The formation of the 3-judge panel, and with 28 of them there on the 
court, gives us 3,276 different combinations whenever you go up before 
the ninth district court of appeals. It is difficult for litigants to 
predict outcomes. The sheer size of the caseloads makes it increasingly 
difficult for judges to keep abreast of the decisions to avoid 
conflicting decisions.
  We will be hearing the argument there are new devices, new computer 
systems, where they have a ready library of information to where they 
be consistent with other decisions. Mr. President, that just has not 
been the case. They cannot even use what all other districts use. That 
is en banc. In other words, all the judges in that district getting 
together, listening to a case, trying to come to some consensus in the 
consistency of the law. The ninth does not even use that. Mr. 
President, 28 judges do not use that procedure to resolve intracircuit 
conflicts. Instead, they use a limited en banc procedure, forming 11-
member

[[Page S2221]]

panels--10 drawn from the list of judges plus the chief judge. The 
method permits as few as 6 of the sitting judges to dictate the outcome 
of a case contrary to a judgment of 22 others, solely depending on the 
luck of the draw.
  In summary, there was a judge in the eleventh circuit that noted what 
happens and the many ill effects you have in business courts. First, 
the dynamics of a jumbo court are such that as the court grows larger, 
the productivity of individual judges declines. Second, the clarity and 
the stability of the circuit law suffers, creating incentives to 
litigate that do not exist in jurisdictions with smaller courts. 
Finally, jumbo courts create and maintain a legal environment that is 
inhospitable to individual rights. Individuals find it more difficult 
to conform their conduct to increasingly indeterminate circuit law and 
suffer higher litigation costs to vindicate a few remaining clear 
rights to which they may claim. In other words, we go right back and we 
say it is too big.
  The conclusion is that it is inevitable that this is going to happen. 
A study of 23 years ago called for it then. I think they called for it 
and also the split of the fifth circuit at that time. The fifth circuit 
did what it was told to do or was recommended to do and it has been 
very, very successful. This is a balanced approach and allows the 
wheels to start turning where we can serve our people in the judiciary 
a lot better and more efficiently, with more consistency. It is the 
right thing to do. After all, we provide the services for our citizens. 
The infrastructure has to be there in order to get it done.
  The fifth circuit split was very, very successful. I think when we 
look at the evidence, the evidence of what is happening in all the 
other circuits, the first circuit only has 6 judges, a total population 
of 13 million people; in the ninth circuit, 28 judges, population 49 
million people, over 1.4 million square miles. It is hard to serve an 
area that big.
  I urge my colleagues to pass this amendment. We need to do it for the 
justice of the people who live and reside and do business in the ninth 
judicial district. I yield the floor and I reserve the balance of my 
time.
  Mrs. FEINSTEIN. Mr. President, I rise to oppose the amendment and 
also to raise a point of order. Prior to making the point of order, 
however, I point out that as a member of the Judiciary Committee, I do 
not believe this measure passed by an overwhelming majority. It really 
passed only on the basis of partisan lines with one exception on our 
side of the aisle.
  Essentially, this was the subject of much discussion before the 
Judiciary Committee, Mr. President. As you, yourself, know, there was 
no hearing on the bill to split the ninth circuit that is encompassed 
in this second-degree amendment. No public hearing on this proposal was 
held before the Judiciary Committee.
  Essentially, what this proposal does is take the States of Alaska, 
Washington, Oregon, Idaho, Montana, Nevada, and Arizona, split them 
from the ninth circuit, and set up their own circuit. This would leave 
the States of California and Hawaii, along with the territories of Guam 
and the northern Marianas, in their own circuit. Never before in 
history has there been a circuit comprised of fewer than three States.
  If Congress votes to divide the ninth circuit despite the 
overwhelming opposition of its bench and bar, Congress will be making, 
I believe, an irreversible decision that will have far-reaching and 
long-term implications for all circuits. Congress will be endorsing the 
view that a political division with no real data to support it is an 
acceptable way to determine circuit composition. I say it is not an 
acceptable way to determine what a circuit court of the United States 
should be.
  The fifth circuit has been held to be some kind of a model. This was 
split in 1980, following the 1973 findings of the Hruska Commission. It 
is my understanding that the fifth circuit has one of the poorest 
records with respect to delays today.
  The problems of caseload growth are nationwide problems that cannot 
be resolved by zeroing in on one circuit and wantonly, haphazardly, 
chopping it up.
  I believe that there ought to be a study of the structural aspects of 
all of the circuits. There ought to be a study of the structural 
alternatives available to the circuit courts of appeal. Qualified 
members of a commission should make recommendations to the Congress on 
circuit structure and alignment, whether and how any realignment should 
occur.
  If you recall, the Hruska Commission, a long time ago, recommended a 
split of the State of California. I think, in view of the new 
techniques that have been put into play by the ninth circuit in the 
past 23 years, this recommendation is perhaps out of date. The ninth 
circuit has made requests for new judges. These requests have not been 
honored in terms of presenting the circuit with an adequate number of 
judges to do the job.
  The State bars oppose a ninth circuit split. That is also what makes 
this a very dangerous proposal. The eleventh circuit split from the 
fifth only after all of the judges and bar associations essentially 
agreed with the proposal to create a new circuit.
  This is the opposite case. The bar associations of Arizona, of 
Nevada, of Montana, of California, and of Hawaii have all expressed 
their opposition to splitting the circuit, as did Idaho, the last time 
this split came up. I ask unanimous consent that those resolutions be 
printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. The ninth circuit judicial conference has opposed the 
split. The Judicial Council, the governing body of the ninth circuit, 
unanimously opposes a split. The Federal Bar Association has opposed 
this split.
  I ask unanimous consent, also, that their statements be printed in 
the Record at the end of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mrs. FEINSTEIN. As the distinguished Chair knows, the board of 
governors of the Arizona bar has issued a resolution against the recent 
Burns proposal, stating the following:

       The proposal cuts Arizona off from California, the State 
     with which it shares the greatest legal and economic ties.

  This bill would create a two-State circuit, with one tiny State 
dwarfed by a large State. California would have 94 percent of the new 
ninth circuit's caseload.
  It is also a very costly proposal. I find it just ironic that the 
committee would vote to spend so much for no demonstrated gain, when 
this Congress is so concerned--and I believe commendably concerned--
with reducing the costs of the judiciary.
  Splitting the ninth circuit would require duplicative offices of 
clerk of the court, circuit executive, staff attorneys, settlement 
attorneys, courtrooms, libraries, and mail and computer facilities.
  The estimated additional costs of a new or rehabilitated courthouse 
for a proposed headquarters in Phoenix range from $23 to $59.5 million. 
Both GSA and CBO have allocated startup costs at an additional $3 
million.
  GSA and CBO have estimated annual costs of duplicative staff 
positions at $1 million, and an additional $2 million for the cost of 
leasing space for the headquarters until permanent quarters could be 
made available.
  So we have duplicative staff to the tune of $1 million, and 
additional lease costs--unnecessary--of $2 million.
  If the twelfth circuit, as proposed in this second-degree amendment, 
were to be created, substantial expenses already incurred by the 
taxpayers also would be wasted. Congress has authorized, and GSA has 
already completed, an extensive post-earthquake restoration of the 
current ninth circuit headquarters building in San Francisco, at a cost 
of over $100 million. The GSA has also completed the build-out of the 
court of appeals courthouse in Pasadena. I am told that 35 percent of 
the $100 million was essentially spent on quarters for the ninth 
circuit.
  I do not believe that this effort to split the ninth circuit really 
represents a genuine effort to deal with the problems of the U.S. court 
system.
  I believe, really, it is an example of judicial gerrymandering 
because some decisions made by that court were not to the liking of 
certain people. I am aware of the fact that the Senator from Montana, 
in his press release of May 25, states:

       We are seeing an increase in legal actions against economic 
     activities in States like

[[Page S2222]]

     Montana, such as timbering, mining, and water development. 
     This threatens local economic stability, but as bad as this 
     economic backlog is, I am particularly disturbed by 
     the delays experienced by families of victims.
  The press release of the Senator from Montana also says:

       State Senator Ethel Harding, of Polson, knew firsthand the 
     pain of this kind of delay, whose daughter was murdered by 
     Duncan Meccans 20 years ago, but Meccans was put to death 
     only 2 weeks ago. The appeal ended up in the ninth circuit 
     three times over the 20-year period, and part of the delay 
     can be attributed to the heavy caseload and inefficient 
     system of the ninth circuit.

  Senator Burns' press releases illustrate the fact that, clearly, this 
effort to split the ninth circuit is politically motivated--because a 
habeas decision of the ninth circuit was not agreed with, for example. 
I respectfully submit to my distinguished colleague from Montana that 
there is habeas reform pending. I happen to support that reform. I 
submit to this body that that is the appropriate way to deal with 
habeas reform--not to gerrymander the circuit, but to pass a reform law 
that changes habeas corpus.
  Another issue that was brought out in Senator Burns' press release 
was the Montana sheriff's appeal of background checks under the Brady 
law. This was cited as further evidence of the need to split Montana 
and other northwest States from the circuit. I go into this not to 
measure the good or the bad of the decision relating to background 
checks, but simply to say that I believe this is the heart of the 
reason for the split. It is being done precipitously, without study, at 
great cost, and I believe for the wrong reasons. It, therefore, sets a 
precedent for these kinds of political maneuverings.
  Let us take a look at the ninth circuit. The ninth circuit does a 
good job. In the 23 years following the Hruska Commission report, the 
ninth circuit has become a national leader in experimentation in 
judicial administration. It is producing good results. The average 
time, from oral argument submission to disposition, is 1.9 months, or 
half a month less than the national average. In fact, the ninth circuit 
is the second most efficient circuit in deciding cases once they are 
submitted to judges.
  The ninth circuit terminates over 8,500 cases a year, almost two-
fifths more than the number it terminated 7 years ago.
  Since 1992, the number of cases pending before the ninth circuit has 
decreased annually.
  It is also the first Federal court circuit to automate its docket 
with computerized issue tracking systems that are far more 
sophisticated than anything available in 1973. These systems keep ninth 
circuit panels apprised of other panel decisions, helping them avoid 
intra-circuit conflicts.
  So the ninth circuit has pioneered a number of different 
technological and structural improvements. Additionally, it has used a 
limited en banc procedure, which has also proved effective in resolving 
potential intra-circuit conflicts. All active judges participate in the 
decision as to whether a case will go en banc. The Court's rules allow 
for rehearing by the full court at the request of either judges or 
litigants. So either a judge or a litigant can request a hearing by the 
full court.
  It should be noted that the limited en banc procedure is called upon 
very infrequently. There are only about 12 to 13 limited en banc 
decisions per year out of a total of about 4,000 written decisions.

                              [Exhibit 1]

                          State Bar of Nevada


                               resolution

       Whereas, The State Bar of Nevada, through the years, has 
     consistently supported the maintenance of the Ninth Circuit 
     as presently constituted; and
       Whereas, a question of dividing the circuit may well 
     reoccur during the present session of Congress or in the 
     discussions before the Judicial Conference;
       Now, therefore, the Board of Governors of the State Bar of 
     Nevada Resolves that the Ninth Circuit is well constituted as 
     is, promotes judicial economy, and as constituted, promotes 
     the interests of justice, and no alteration should be made 
     nor should the Ninth Judicial Circuit be divided.
       Dated: This 9th day of March, 1995.
                                                                    ____


                          State Bar of Montana


                              resolution 4

       Whereas, Montana is one of nine states and two territories 
     of the United States Court of Appeals for the Ninth Circuit; 
     and
       Whereas, the United States Court of Appeals for the Ninth 
     Circuit has provided significant guidance to all circuit 
     courts regarding issues of collegiality, maintaining 
     precedent and effectively accomplishing and administrating 
     the business of the circuit courts; and
       Whereas, the United States Court of Appeals for the Ninth 
     Circuit has been a leader in implementing Gender Equity and 
     recognizing the need to address Racial and Ethnicity concerns 
     to improve the involvement of all citizens in the 
     administration of justice; and
       Whereas, the United States Court of Appeals for the Ninth 
     Circuit has provided innovative leadership in the involvement 
     of lawyers in all functions and committees of the circuit; 
     and
       Whereas, the United States Court of Appeals for the Ninth 
     Circuit has instituted long range planning to project the 
     needs of the circuit into the upcoming century; and
       Whereas, Montana has therefore reaped significant benefit 
     from being a part of the Ninth Circuit; and
       Whereas, the Congress has once again undertaken 
     consideration of a bill to divide the circuit and to create a 
     new Twelfth Circuit which would divide out the northern tier 
     states into a new separate smaller circuit; and
       Whereas, a divided circuit would remove the numerous 
     benefits which Montana enjoys as a part of the United States 
     Court of Appeals for the Ninth Circuit with very little, if 
     any, gains; and
       Whereas, a divided circuit would result in additional one 
     time construction and division costs and increased annual 
     administrative expenses thereby straining the already 
     inadequate budget of the Judiciary, resulting in fewer funds 
     for the direct administration of justice and for Civil 
     Justice panel lawyers and other essential components of the 
     administration of justice; and
       Whereas, a division of the Ninth Circuit would not address 
     or resolve the principal problem of circuits which serve 
     rapidly growing regions, that is, the crisis of volumes of 
     filings with inadequate judicial resources to resolve them; 
     and
       Whereas, a division of the circuit would remove the present 
     opportunity to obtain the appointment of a practicing Montana 
     lawyer to current vacancies on the Ninth Circuit and would 
     significantly reduce the opportunity to appoint practicing 
     Montana lawyers to the Twelfth Circuit in the future.
       Now, therefore, be it Resolved that the State Bar of 
     Montana Opposes Passage of the Ninth Circuit Court of Appeals 
     Reorganization Act of 1995. Senate Bill 853.
       Dated this          day of June, 1995.
                                                                    ____



                                  The State Bar of California,

                             San Francisco, CA, February 26, 1996.
     Re Opposition to H.R. 2935 and Substitute Bill S. 956, Ninth 
         Circuit Court of Appeals Reorganization Act of 1995.

     Hon. Bill Baker,
     House of Representatives, Longworth Office Building, 
         Washington, DC.
       Dear Representative Baker: The Board of Governors of the 
     State Bar of California urges you to oppose H.R. 2935 and 
     substitute bill S. 956, which would split the Ninth Circuit 
     Court of Appeals, leaving California, Hawaii and the Pacific 
     territories in a new Ninth Circuit and placing the remaining 
     seven states (Alaska, Arizona, Montana, Nevada, Oregon, Utah 
     and Washington) into a new Twelfth Circuit.
       H.R. 2935 was introduced on February 5, 1996. Substitute 
     bill S. 956 was reported out of the Senate Judiciary 
     Committee on December 21, 1995. We urge you to oppose both of 
     these bills.
       The case for splitting the circuit has not been made. The 
     Ninth Circuit is the largest circuit; however, size alone 
     does not argue for its division. In fact, we believe the size 
     of the Ninth Circuit gives its residents certain advantages. 
     It is an advantage to all states bordering the West Coast to 
     have a single federal court of appeals. This single circuit 
     provides uniform and predictable case law applicable to the 
     region and crucial to Pacific Rim trade, which is of growing 
     importance to California and other Western states. Splitting 
     the region into two circuits is likely to increase inter-
     circuit conflict, forum shopping and races to the courthouse. 
     The size of the Ninth Circuit also provides greater 
     flexibility in responding to caseload growth and greater 
     diversity of judicial backgrounds as a result of judges drawn 
     from a larger area.
       The issue of caseload growth is common to courts of appeals 
     nationwide. However, repeated division of circuits in 
     response to growth is not likely to be the answer to this 
     problem and will likely create a proliferation of balkanized 
     circuits. Splitting the Ninth Circuit, ostensibly because of 
     its caseload, before considering how to respond to growing 
     filings nationwide, will complicate rather than advance 
     solutions to caseload growth.
       In an era where shrinking financial resources dictate cost-
     saving measures, a Ninth Circuit split would increase costs 
     by requiring a new circuit office, more court clerks and 
     attorneys, as well as additional courtrooms and libraries. 
     Absent a compelling argument for a split, and a clear and 
     comprehensive study on the most efficient method to 
     effectuate this division, the proposals are both premature 
     and imprudent.

[[Page S2223]]

       The Board of Governors respectfully urges you to oppose 
     H.R. 2935 and substitute bill S. 956.
           Very truly yours,
                                                  James E. Towery,
     President.
                                                                    ____


                          State Bar of Arizona


         Resolution of the Board of Governors, October 20, 1995

       This Board, in repeated resolutions, has expressed its 
     opposition to the various proposals to divide the Ninth 
     Circuit Court of Appeals and its support for maintaining the 
     Circuit as it is. A new proposal has now been raised as to 
     which the view of the Bar is desired. This new proposal would 
     divide the Circuit by creating a Ninth Circuit of California, 
     Hawaii and the Pacific Islands and a Twelfth Circuit 
     consisting of Alaska, Washington, Oregon, Idaho, Montana, 
     Nevada and Arizona. Such a plan would be extremely 
     unfortunate for Arizona and wastefully unwise as a matter of 
     judicial administration. The considerations which concern us 
     follow:
       1. The proposal cuts Arizona off from California, the state 
     with which it shares the greatest legal and economic ties. On 
     the one hand, as we have previously declared, Arizona does 
     not wish to be in a circuit dominated by California; but at 
     the same time, it needs to be in a circuit with California. 
     Our law is commonly guided by California law. The proposed 
     division puts a premium on racing for choice of forum so that 
     California and Arizona parties to a disputed business 
     transaction will each have an incentive to sue first to keep 
     the matter in ``their'' circuit; and yet this may be a matter 
     which, without fostering a race to the courthouse, might 
     never be litigated at all.
       2. The headquarters of the proposed Twelfth Circuit would 
     presumably be in Seattle. This would materially increase 
     costs and inconvenience for Arizona attorneys and litigants. 
     Airfare between Arizona and either Portland or Seattle is 
     such that this proposal will cost Arizonans at least two or 
     three times as much in every case. Flights to the Northwest 
     take twice as long as to San Francisco and are less than half 
     as frequent, giving Arizona endless burdens with so remote a 
     court.
       3. Politically the disadvantages to Arizona are 
     substantial. With the present Ninth Circuit, non-California 
     senators outnumber California senators 14 to 2, and non-
     California judges also outnumber California judges. In the 
     newly proposed Twelfth Circuit, Arizona and Nevada would be 
     outnumbered in the Senate 10 to 4, which means that the 
     judgeships and courthouses will go to the Northwest.
       4. The dollar waste is regrettable. The Ninth Circuit 
     presently has a major court building to serve the Circuit in 
     Pasadena and is in the final stages of completion of a $100 
     million post earthquake renovation of the present Circuit 
     headquarters in San Francisco, a headquarters for the entire 
     Circuit. Not only will much of the San Francisco space be 
     wasted under this proposal, but something of the kind will 
     have to be duplicated in the proposed Twelfth Circuit. There 
     will also need to be duplication of offices of Clerk, Circuit 
     Executive, computer center, mailroom and other support 
     offices.
       In the light of all these factors, the Board of Governors 
     of the State Bar of Arizona strongly recommends against the 
     proposal for a new Arizona-to-Alaska Twelfth Circuit.
                                                  Michael Kimerer,
     President.
                                                                    ____



                                 Hawaii State Bar Association,

                                    Honolulu, HI, August 21, 1995.
     Re Division of Ninth Circuit Court of Appeals (S. 956).

     Hon. Daniel K. Inouye,
     U.S. Senate, 109 Hart Senate Office Building, Washington, DC.
       Dear Senator Inouye: The Hawaii State Bar Association Board 
     of Directors last week voted unanimously to oppose proposed 
     legislation to divide the Ninth Circuit Court of Appeals.
       Similar legislation proposed in 1989, 1991, and earlier 
     this year was also opposed by the Hawaii State Bar 
     Association. See 10/30/91 letter from Wolff to Inouye, 
     Exhibit A.
       A position paper prepared by the Office of the Circuit 
     Executive dated 6/22/95 sets forth the arguments against 
     dividing the Ninth Circuit. See Exhibit B. The Hawaii State 
     Bar Association is in agreement with those arguments and 
     would like to reiterate its concern over inconsistent law 
     that would inevitably occur as a result of a division in the 
     Ninth Circuit. As explained in Peter Wolff's 10/30/91 letter 
     to you, a different rule of law might apply to a maritime 
     case depending on whether the departure or destination point 
     was Seattle or Los Angeles.
       We hope that you will vote and lobby against the passage of 
     Senate Bill 956. If we can be of any assistance to you in 
     this matter, please do not hesitate to contact me at 547-
     6119.
           Sincerely,
                                                  Sidney K. Ayabe,
     President.
                                                                    ____


                      The Federal Bar Association


                             RESOLUTION 95-

    support for the position of the ninth circuit court of appeals 
               concerning the split of the ninth circuit

       Whereas, Congress has before it Senate Bill No. 956, which 
     is designed simply to split the Ninth Circuit Court of 
     Appeals by creating a new Twelfth Circuit comprised of the 
     District Courts for the States of Montana, Idaho, Washington, 
     Oregon and Alaska; and
       Whereas, the Ninth Circuit Judges are overwhelmingly 
     against the division of the circuit and the Ninth Circuit 
     Judicial Council, the governing body for all of the courts in 
     the Ninth Circuit, recently voted unanimously against any 
     legislation which would divide the Ninth Circuit;
       Now, therefore, be it Resolved, that the Federal Bar 
     Association states it support for the position of the United 
     States Court of Appeals for the Ninth Circuit, as expressed 
     by Chief Judge J. Clifford Wallace of the Ninth Circuit given 
     before the Senate Judiciary Committee on September 13, 1995, 
     and in the Position Paper of the Office of the Circuit 
     Executive for the United States Court for the Ninth Circuit 
     dated June 30, 1995;
       Be it further Resolved that the President of the Federal 
     Bar Association is authorized and directed to communicate 
     copies of this resolution to Senator Orrin Hatch and the 
     Senate Judiciary Committee, and Senator Dianne Feinstein 
     forthwith.
                                                                    ____



                                              Idaho State Bar,

                                                 February 7, 1990.
     Re Idaho State Bar Resolution S2-1

     Hon. James R. Browning,
     Ninth Circuit Court of Appeals, San Francisco, CA.
       Dear Judge Browning: This is in response to your inquiry 
     concerning the Idaho State Bar's position on the proposal to 
     split the 9th Circuit Court of Appeals.
       Perhaps uniquely, the Idaho State Bar is limited in its 
     ability to take political positions. Idaho Bar Commission 
     Rule 906 requires that we engage in a plebiscite of our 
     members before considering resolutions for changes of law or 
     policy. The resolution process is conducted each November.
       Resolution S2-1, considered last fall, was entitled 
     ``Bifurcation of 9th Circuit Court of Appeals,'' and was 
     circulated at the request of both of our U.S. Senators. A 
     copy of the resolution is included with this letter.
       The resolution failed by a vote of 978 to 2373.
       Please feel free to contact me if you have any questions.
           Sincerely,
                                               William A. McCurdy,
                                       President, Idaho State Bar.

                               Exhibit 2


                                         Governor Pete Wilson,

                                                 December 6, 1995.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Orrin: I have been following with interest the current 
     debate over whether to split the Ninth Circuit, and wish to 
     register my strong opposition to any split before an 
     objective study is concluded as to whether a split before an 
     objective study is concluded as to whether a split will 
     properly address the concerns that have been raised 
     concerning the size of the circuit.
       As you know, I have been on record in opposition to 
     previous bills to split the circuit on the grounds that they 
     were a form of gerrymandering which sought to cordon off some 
     judges and keep others.
       Admittedly, the Ninth Circuit handles more cases than any 
     other circuit. However, the median time for it to decide 
     appeals (14.8 months as of December 1994) is only slightly 
     higher than that for the Sixth, Seventh, and D.C. Circuits 
     and less than the Eleventh Circuit (14.8 months), and in 
     fairness, the destruction of the San Francisco courthouse in 
     the Loma Prieta earthquake is party responsible for the 
     backlog.
       Splitting the circuit, without adding more judge, will not 
     necessarily expedite the processing of the Ninth Circuit's 
     cases and may generate a number of inconsistent rulings along 
     the West Coast in areas such as admiralty, environmental law, 
     and commercial law, since the West Coast would be split, 
     under the pending proposal, into two circuits (i.e., 
     California in one, and Washington and Oregon in the other). 
     Indeed, splitting the Ninth Circuit could add an additional 
     burden on the Supreme Court, which ultimately must resolve 
     conflicts between circuits. I recognize that some concerns 
     have been raised over intra-circuit conflicts, but there is a 
     mechanism for resolving them--the en banc hearing. See 
     Fed.R.App.Pro. 35.
       Ultimately, the real issue raised in the debate over 
     splitting the Ninth Circuit appears to be one of judicial 
     gerrymandering, which seeks to cordon off some judges in one 
     circuit and keep others in another. If this is the issue, I 
     submit that the proper means to address this is through the 
     appointment of new judges who do not inspire judicial 
     gerrymandering because they share our judicial philosophy 
     that judges should not make policy judgments but interpret 
     the law, based on the purpose of the statute as expressed in 
     its language, and who respect the role of the states in our 
     federal system.
       An objective study can focus on the concerns raised about 
     the Ninth Circuit and determine whether a split is the 
     answer. For instance, reform of our habeas corpus procedures 
     and reforms which curb frivolous inmate litigation may do 
     more to address a growing caseload than splitting the 
     circuit.
       In any event, I would urge that a study be commissioned to 
     carefully examine the concerns raised about the Ninth Circuit 
     and determine whether the concerns are legitimate and whether 
     a change in the circuit's boundaries is the best method of 
     addressing them. I would be pleased to contribute one or more 
     representatives to assist with such a study.
           Sincerely,
     Pete Wilson.
                                                                    ____


[[Page S2224]]

                                            U.S. Court of Appeals,


                                                Ninth Circuit,

                                      Reno, NV, December 18, 1995.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: I am pleased that you are going to 
     carry your opposition to S. 956 to the floor of the Senate. 
     You will be speaking for more than the interests of the 
     citizens of your state. This important issue affects all of 
     the people of our nation and their united belief that there 
     must be one federal law applicable to each of us.
       As you know, I was a Republican member of the United States 
     House of Representatives from a district in southern 
     California for a period of 12 years, commencing in 1967. I 
     served continuously on the House Judiciary Committee. In 
     addition, I was a member of the Hruska Commission in 1972-73. 
     I left Congress voluntarily in 1979. In 1984, I was appointed 
     by President Reagan to the United States Court of Appeals for 
     the Ninth Circuit. I am now an active judge on that Court.
       The foregoing record of public service gives me, I believe, 
     special insights into the management of cases within the 
     existing Ninth Circuit. My understanding of the role of 
     circuit courts in our system of federal justice has changed 
     over the years from that which I held when the Hruska 
     Commission issued its final report in 1973. At that time, I 
     endorsed the recommendations of the Commission calling for a 
     division of the Fifth and Ninth Circuits. I have grown wiser 
     in the succeeding 22 years.
       The Hruska Commission was created to deal with the problem 
     of the Fifth Circuit. In recommending the division of the old 
     Fifth Circuit into a new Fifth Circuit and a new Eleventh 
     Circuit, we were responding to the united views of federal 
     judges and bar associations in the respective states, and not 
     insignificantly, the views of the late Senator Eastland, the 
     then Chairman of the Senate Judiciary Committee. The 
     recommended changes in the Fifth Circuit were ultimately 
     implemented, but those respecting the Ninth Circuit were, 
     wisely I think, not.
       You have recommended a new Commission to be appointed to 
     review and update the findings of the old Hruska Commission. 
     I endorse this recommendation. Although I strongly oppose the 
     division of the Ninth Circuit, I believe the Senate is 
     entitled to review facts, and modern case management 
     techniques, now employed within the Ninth Circuit. Moreover, 
     the continued balkanization of our circuits must be 
     confronted and the case for fewer, larger, circuits, must be 
     studied. I wish you well in this undertaking.
       The proponents of a new Twelfth Circuit have evidently 
     abandoned their often made arguments that the new circuit 
     would be needed to save excessive travel costs. No circuit 
     stretching from Tucson, Arizona, to Prudhoe Bay in Alaska 
     will support this argument.
       The majority report also contains the misleading statement 
     that the recommended division of the Ninth Circuit is not in 
     response to ideological differences between judges from 
     California and judges elsewhere in the circuit. I strongly 
     disagree that such a motive does not in fact underlie the 
     proposal for the change. Such a regionalization of the 
     circuits in accordance with state interests is wrong. There 
     is one federal law. It is enacted by the Congress, signed by 
     the President, and is to be respected in every state in the 
     union. The law in Montana and Washington is the same law as 
     exists in Maine and Vermont. It is the mission of the Supreme 
     Court to maintain one consistent federal law. I do hope that 
     you will challenge the supporters of the revision to explain 
     the reasons justifying their proposal.
           Respectfully,
                                               Charles E. Wiggins,
                                                    Circuit Judge.

  Mrs. FEINSTEIN. Mr. President, let me speak for just a moment on the 
subject of the pertinence of this amendment at this time. This 
amendment filed by the distinguished Senator from Montana is really not 
a relevant amendment, to which, if the subject of the amendment were 
known, there would clearly have been objection. The amendment carries 
an appropriation for the Judiciary, which has been funded for the 
entire fiscal year through a previous continuing resolution. That is 
the vehicle for this kind of appropriation. It is not relevant to this 
bill before us.
  So, Mr. President, on behalf of Senator Reid and myself, I raise this 
point of order.
  Mr. REID. Mr. President, will the Senator withhold for just a moment 
so that we can consult?
  Mrs. FEINSTEIN. I would be happy to withhold for a moment.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burns). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I raise this point of order that 
amendment No. 3530 is not relevant to the Hatfield substitute or to the 
House bill.
  The PRESIDING OFFICER. The point of order is well taken.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I would like to speak on the underlying 
amendment that has been offered by my friend from Montana.
  Mr. President, first of all, in reviewing the amendment, it appears 
to me that the amendment is backward. What I mean by that is that the 
amendment by my friend from Montana calls not only for the division of 
the ninth circuit but it also calls for a commission to study the 
restructuring of the circuit.
  I have spoken to the Presiding Officer of this body, I have spoken to 
the Senator from Montana, I have spoken to the Senator from California, 
who is in the Chamber, and lots of other people about this circuit and 
whether or not it should be split. I think this is a very good 
question. We should give some serious consideration to it. But it would 
seem to me that the best way for this body to do that would be to have 
a commission, one that is composed of prominent people appointed by the 
judiciary. The Chief Justice of the U.S. Supreme Court, I think, should 
be in on the appointment of people to serve on this prestigious 
commission, and the President of the United States. Of course, we 
should have legislative input into this commission.

  I think, also, the commission should have adequate staff so that they 
can report back to us in a short period of time. It seems to me, if we 
would empower this commission to go forward with the appropriate 
resources to look into the structuring of the circuits, that we, by 
next year at this time, would have all of the information at our 
disposal to make an appropriate decision.
  The Hruska commission that was impaneled some 23 years ago came up 
with some ideas that were based on some good that they have done. They 
decided that the fifth circuit and the ninth circuit should be split. I 
say to my friend, the junior Senator from Montana, that the split of 
the fifth circuit subsequently took place. The split of the ninth 
circuit has not taken place. But I say to my friend from Montana that, 
if you are going to follow the 23-year-old Hruska commission and its 
findings, you certainly will not split the ninth circuit the way they 
have done it in this bill, because what the Hruska commission said is 
that you would, in effect, cut the ninth circuit in half and have one-
half in northern California and one half in southern California and the 
rest of the circuit would be split up in a number of different ways.
  So I say to my friend from Montana and to everyone within the sound 
of my voice that I think the amendment is backward. I think we should 
have a commission to study the restructuring of the circuits, and once 
that is done, come back here and determine if, in fact, there should be 
changes in the ninth circuit and all of the rest of the circuits in the 
country, because, if you go ahead and divide the ninth circuit and 
create a twelfth circuit, you have already taken away the ability we 
have to realign some of the other circuits.
  Mr. President, if you look at this long, very narrow twelfth circuit, 
you have the chief judge, the headquarters of the court, sitting in 
Phoenix, AZ. I do not know how far away from Montana, I do not know how 
far away from Alaska, but it is away from major population centers in 
that circuit. Seattle and Portland are examples. I cannot imagine, with 
most of the cases coming from Oregon and Washington, why it would be 
fair for them to have to travel to Phoenix.
  In addition to that, Mr. President, in November 1994, after there was 
this revolution that took place with the elections in the House and, to 
a lesser degree, in the Senate, we were told that we were going to 
start saving money, that we would not be wasteful in the things that we 
spent money on. If there was ever a waste of money, it would be what we 
are trying to do here--upward of $60 million in one-time spending to 
create this new circuit and, of course, spend lots more money on a

[[Page S2225]]

yearly basis because you would have two circuits whereas in the past 
you have one circuit.
  So, Mr. President, I really believe that I should ask my friend, with 
whom I serve on the Appropriations Committee and for whom I have the 
greatest respect, to review the offering of this amendment.
  The Chair has ruled that this amendment is not germane, and it really 
is not. I appreciate the ruling of the Chair because we entered into a 
unanimous-consent agreement that there would be only relevant 
amendments. Mr. President, if, in fact, the Chair had ruled any other 
way, this place would be chaotic. There simply would be no end to floor 
procedures. There would never be another unanimous-consent agreement 
reached.

  I, for example, wrote a letter to our staff here on my side of the 
floor several months ago saying if anything comes up regarding the 
splitting of the ninth circuit that I be notified. The reason I mention 
that, of course, is that this amendment was offered late at night, and, 
for whatever reason, the procedure was that this is not relevant. I am 
glad the Chair has ruled accordingly.
  I think it is appropriate, though, Mr. President, that we talk about 
the ninth circuit and whether or not this should be split. To divide 
the ninth circuit would create two geographically and demographically 
unequal units. What I mean by that is, splitting this circuit is not 
going to solve the problem. Splitting the circuit is not going to solve 
the problems that I know my friend from Montana--and, believe me, many 
of my constituents in Nevada--is concerned about. Creating two circuits 
from one without increasing judicial resources would not address the 
fundamental problems of expanding caseloads and delays. We know from 
dividing the fifth circuit in 1980 that it has resulted in no long-term 
benefits in expediting case processing.
  I, also--back to the commission aspect of it--again stress that I 
would be very happy to have this commission that we created on a 
bipartisan basis have a short time-line as to when to report back to 
us. The Hruska Commission reported back in 1973. In 1980, the fifth 
circuit was split. But, as I have mentioned, there have been no long-
term benefits in expediting case processing. That does not mean the 
split was not important and was not necessary, but if we are going to 
look at splitting the circuits to expedite case processing, that will 
not do it, especially when you consider the ninth circuit judges are 
the fastest in the Nation in disposing of cases once a panel receives 
the cases.
  Also, understand that, if you look at the western coast of the United 
States, you have the long, long State of California. But also on that 
coast you have Oregon and Washington, two extremely important States as 
far as maritime and admiralty law. One reason we have had peace and 
quiet in the admiralty and maritime law in the western part of the 
United States is because there has been one voice that has spoken about 
that most important part of our commerce. If the split took place, we 
would have one circuit ruling and deciding cases in Washington and 
Oregon; you would have another circuit deciding cases based in 
California, that great Western United States. The maritime law of that 
part of the country would be bifurcated. That is not the way it should 
be.
  It would increase the potential for inconsistent law relating to 
admiralty, commercial trade, and the utility laws on the western 
seaboard. Establishing a circuit consisting of just two States would 
defeat the federalizing function of the multistate circuit. That is the 
central purpose of the American Federal appellate process.
  Senator Feinstein talked, Mr. President, about the cost to construct 
a new twelfth circuit with its headquarters. As I have indicated, the 
estimate, among others, with the GAO is $60 million--approximately 
$59.5 million--plus $2 to $3 million in annual costs duplicating 
existing administrative functions.
  An additional headquarters would result in waste of taxpayer dollars 
spent on the recently completed $100 million earthquake rehabilitation 
in San Francisco.
  Mr. President, prior to coming back here, I was a trial lawyer, and I 
have appeared in that beautiful ninth circuit where I have argued 
cases. It is a beautiful, beautiful building, and the earthquake 
damaged that. One reason the ninth circuit does not have a better 
record of moving cases is because they had no building in which to 
work. The earthquake damaged the building so that the Ninth Circuit 
Court of Appeals could not work in it. So the money that was spent 
rehabilitating that facility, $100 million, in effect would be wasted.
  Mr. President, it is also important, I think, for me to say 
something--it is unnecessary, but in this age of political correctness, 
perhaps I should mention it. I have a son who just graduated from 
Stanford Law School last June. We are very proud of him. He is one of 
my four boys. He works as a clerk in the ninth circuit. So if I have 
any prejudice because of my son, I acknowledge that here in this 
Chamber, but I was against this split long before my son went to work 
in whatever--sometime this past summer--for one of the judges of the 
ninth circuit.
  That beautiful ninth circuit court building was restored, and I am 
happy it was restored. But let us not have any waste of it at this 
stage.
  The official bar organizations of Arizona, California, Hawaii, Idaho, 
even Montana, and Nevada, and the Federal bar associations have all 
adopted resolutions opposing any split. I think it is important we have 
input of the bar relative to this split. But I can say to my friend 
from Montana that if, in fact, we have a commission and the study comes 
out that there should be a restructuring, I would weigh that much more 
heavily than I weigh the opinion of the bar from the State of Nevada 
because the bar from the State of Nevada, even though I have great 
respect for them, are traditionalists and would not have the benefit of 
the study of what I feel would be this bipartisan Commission composed 
of people appointed by the Chief Justice, people appointed by the 
President, and people appointed from the legislative branch.
  The ninth circuit judges, I repeat, are the fastest in the Nation in 
disposing of cases once the panel receives the cases. That is pretty 
good. The ninth circuit I think--I have certainly not asked them 
individually, but I think they would welcome an independent, 
congressionally mandated study of Federal appellate courts to update 
Congress certainly before it makes any far-reaching structural changes. 
The Ninth Circuit Court of Appeals has functioned successfully in its 
present configuration for more than 100 years. The sponsors, including 
my friend from Montana and also my friend, the senior Senator from the 
State of Washington, who is one of the prime movers of this 
legislation, have cited a number of reasons for this legislation. One 
is the unmanageable caseload, a decrease in consistency of decisions 
due to size, inability to appreciate the interests of the Northwest, 
and, lastly, a decline in the performance of the circuit.
  First of all, let us talk about caseload. The ninth circuit has 
managed efficiently a caseload that is comparable on a per-judge basis 
and far exceeds in total that of other circuits. Also, as far as 
caseload, the ninth circuit has maintained a high degree of consistency 
in its case law. Also, the ninth circuit has functioned well to avoid 
regionalism by federalizing the application of national law over a wide 
geographic area, and, Mr. President, they have demonstrated a high 
level of performance in managing the caseload.

  I also say that the ninth circuit is a court that our U.S. Supreme 
Court looks to for guidance, for lack of a better word, if the Supreme 
Court looks anyplace for guidance. If there is a conflict in the ninth 
circuit and one in the tenth circuit, heavy reliance is placed upon 
precedents developed out of the ninth circuit. I think that answers one 
of the criticisms that my friend from Montana has raised.
  I think the proposals to divide the circuit have numerous drawbacks, 
including the substantial cost of setting up, as I have already 
outlined, the duplicative administrative structures and a new circuit 
headquarters. I do not think I can talk too much here about the fact 
that we are supposed to be balancing the budget, so how can we, in good 
conscience, spend $60 million with this legislation and still call for 
a study where we are going to have to do some more restructuring. It 
just does not make a lot of sense.

[[Page S2226]]

  I would also say that the loss of advantage of size really does not 
answer the question. We have strong opposition of the majority of the 
lawyers and judges in the circuit to which we have to give some 
credence. This is the ninth circuit. We cannot say we are going to 
ignore the lawyers and judges. We are talking about one of our branches 
of government, a separate but equal branch of government. With the 
potential for inconsistent law relating to admiralty, commercial trade, 
and utility law along the western seaboard, including Alaska and 
Hawaii, which I have not talked about, and the territories, it is 
important that we speak with one voice in that regard.
  An opportunity for litigants to forum shop certainly would come about 
as a result of this split. The potential for increased inner-circuit 
conflicts would place an additional burden on the U.S. Supreme Court to 
resolve these conflicts that are now handled internally within the 
circuit.
  We need hearings on this. I am willing to forego hearings. I know 
that the Judiciary Committee, of which neither sponsor of this 
legislation, and certainly not the junior Senator from Montana, is a 
member, has spent, as I understand it--I know it is true--the full 
Judiciary Committee had a single half-day hearing on this legislation 
that is now before the Senate. So I think that we really need to spend 
a little more time on this.
  I am convinced that the Commission could do a good job with all the 
many things that we have to do, especially this being a Presidential 
election year. And I know how my friend from Montana and others feel 
about it. I repeat for the third time here today that we would be 
willing to put a short time limit on how long it would take for them to 
come back with their work. We would make sure during that short time 
period that they have adequate resources to study it well.

  The proposed legislation very simply would not solve the problems of 
caseload growth and would increase the ninth circuit caseload burden. 
Here is why I say that. Throughout the United States, in all the 
circuits, the caseload has increased dramatically in proportion to the 
number of judges. Some of these figures are really startling. So the 
key problem to be addressed is the number of judges to handle the 
caseload rather than configuration of circuits.
  It is interesting here; this Senator from Nevada, a Democrat, and my 
friend, the Senator from California, who has just spoken, a Democrat, 
have always supported the Republicans in the changing of habeas corpus. 
Every time I have had a chance to vote here since I have been in the 
Senate I have supported streamlining and expediting the habeas corpus 
procedures in this country.
  That is something that would allow the ninth circuit and every other 
circuit to move on with its cases. I think it is absolutely wrong for a 
person--it does not matter how you feel about the death sentence. If 
you believe in the rule of law, it is absolutely wrong that someone be 
sentenced to death when it takes an average of 16 or 17 years from the 
time that sentence is imposed until the time the execution takes place, 
if, in fact, it ever takes place. If we want to talk about expediting 
the cases that the ninth circuit and other circuits hear, that is how 
we can do it. Let us move the habeas legislation that would streamline 
what the Federal courts hear.

  There are other things we could do. Forty percent of the cases in the 
Federal District in Nevada are cases that are initiated by prisoners. 
The majority leader, Senator Dole, and I, and others have joined in 
legislation that has passed this body, saying let us do away with that. 
If somebody has a good case, a prisoner, let him file it. But not as to 
whether or not it should be chunky peanut butter or smooth peanut 
butter, how many times can you change your underwear, whether it is 
real sponge cake or not sponge cake. These are ridiculous things that 
really turn my stomach, and that is what is taking the time of our 
Federal judiciary, hearing these ridiculous nonsense cases. It is not 
the size of the circuits, it is what they are forced to hear because 
we, as a legislative body, have not acted responsibly.
  I repeat, the key problem to be addressed is the number of judges to 
handle the caseload rather than the configuration of the circuits. From 
1978 to 1995 the number of appeals filed in the Ninth Circuit Court of 
Appeals increased by 179 percent. The number of judges increased 22 
percent. In spite of this, in spite of this, plus the earthquake that 
completely disrupted its operations, the Ninth Circuit Court of Appeals 
should receive an award, rather than being criticized for not doing 
their work well. Remember, the Ninth Circuit Court of Appeals moves its 
cases. There is no one faster in the entire circuit system in disposing 
of cases once the panel receives the cases.
  In spite of this, in spite of the 22-percent increase in judges to 
cover the 180 percent increase in caseload, and the courthouse being 
damaged and ruined, almost--it took $100 million to fix it up--they 
still managed to keep up with their work. They actually are determining 
more cases in the last 3 out of 4 years than were filed. They are not 
dropping behind, they are gaining. This is a remarkable record.
  The presumption that increasing the number of circuits would solve 
the problem of expanding Federal court caseloads is the underlying 
fallacy of my friend's amendment. I say the cases are resolved by 
judges, men and women wearing those robes, not by circuits, this 
artificial tenth or twelfth, because increasing the number of circuits 
without increasing the number of judges would only exacerbate the 
problem. What we are being asked to do here is not only not increase 
the number of judges, but build an entire new court complex, and of 
course we would have a new circuit with all of its administrative 
personnel, which we have already established would cost at least $3 
million extra a year. This would have no effect on caseload growth and 
there is no reason to believe it would be different in the proposed 
twelfth circuit than in the ninth circuit.
  In its review of circuit size, the American Bar Association Appellate 
Practice Committee--and we have to go to the American Bar Association 
or some group of lawyers. Remember, we are dealing with courts here. We 
cannot go to the American Medical Association or certified public 
accountants or the Stock Car Racers of America. We have to go to 
attorneys, no matter how people feel about attorneys. What the ABA has 
said is, ``We have found no compelling reasons why circuit courts of 
various sizes, ranging from a few judges to 50, cannot effectively meet 
the caseload challenge.''
  Indeed, for every argument in favor of smaller circuits there is an 
equally compelling argument for larger circuits. That is why I say, Mr. 
President, we are not doing this the right way. That is why it is 
important that we step back from this and let experts look at it, not 
we Senators who have preconceived ideas. Let us have the Chief Justice 
of the U.S. Supreme Court appoint some prominent people to take a look 
at this, and the President, and we as legislators should have our 
input. Equal numbers, so the judicial does not have too many on it, the 
executive does not have too many, nor do we--equally distributed 
between the legislative, judicial, and executive branches of the 
Government. I repeat, give them adequate staff, other resources, and 
have them report back to us in a reasonable period of time. That way, 
then we can make decisions as to whether it is going to be important to 
have more circuits, or have more judges, or have both.
  I believe that the administration of justice in any society, 
especially in ours, is based upon the certainty of punishment, if we 
are talking about the criminal justice system. The problem we have in 
our system, of course, is that we do not have certainty of punishment. 
I think a study of the circuit system in our country, with that in 
mind, would go a long ways to satisfying some of the questions that I 
have.
  I think it is important that we spread across this record the fact 
that the proposed legislation would be costly and it would be wasteful, 
for the reasons I have already outlined. The GSA [General Services 
Administration] has virtually completed an earthquake rehabilitation of 
this historic building in San Francisco at a cost of over $100 million. 
That renovation was designed to accommodate the administrative 
personnel of the ninth circuit as it presently exists, to meet its 
needs for

[[Page S2227]]

the foreseeable future. If we did not do that, we would waste what we 
have already done.
  We have some advantages from the size of the ninth circuit. The 
consequences are not all negative. That is why I think this panel, this 
commission we should appoint, will be instructive. The size of the 
ninth circuit, some say, is an asset that is to improve decisionmaking 
and judicial administration both within the circuit and throughout the 
Federal judiciary. There are some legal scholars who feel rather than 
splitting circuits we should be joining some of them; that there are 
built-in efficiencies. As my friend from Montana, in his statement, 
talked about one circuit--and I apologize, I do not know to which he 
was referring, but there were six appellate judges, as I recall the 
statement--maybe we should join that with another circuit. I do not 
know. But, certainly, is it not worth looking at?

  A single court of appeals serving a large geographic region, the 
ninth circuit, has promoted uniformity and consistency in the law and 
has facilitated trade and commerce by contributing to stability and 
orderly process.
  I again talk about admiralty and commerce under that entire western 
Pacific United States, which includes, as I have mentioned, Hawaii and 
the area out through there. We have one voice speaking about what the 
law should be. That has been very important. The court of appeals is 
strengthened and enriched, and the inevitable tendency to be parochial 
is done away with. This is because of the variety and diversity of the 
background of its judges drawn from the nine States comprising the 
circuit.
  I had a conversation with a very close friend of mine who was home 
this weekend, somebody for whom I have the greatest respect. He was 
complaining about a decision that had been reached within the past 
couple of weeks, dealing with assisted suicide. He was complaining 
about that, about, ``This judge did this.''
  I proceeded to remind my friend that it was an 11-member panel that 
decided the case, 11 judges out of the ninth circuit. They heard this 
case en banc. The decision by the majority was by 8 of the 11. The 
decision was written by that one man just because he happened to have 
drawn the assignment to write it, but seven of the other judges joined 
with him. So, in the ninth circuit more than any other circuit, there 
is not a tendency of one judge to dominate that circuit. There is not a 
tendency of two or three or four judges to dominate that circuit.
  The ninth circuit is a leader in developing innovative solutions to 
caseload and management challenges, and they have done this in many 
different ways. It served as a laboratory for experimentation in many 
other areas, including computerized docketing and case tracking 
systems, decentralized budgeting, improving tribal court relations, 
flexible judicial reassignments and effective and limited en banc 
procedures, which is--really, what they have done with en banc 
procedure in that case is really historic in nature.
  No one complains about 11 of these appellate judges sitting down and 
hearing these cases. They do it expeditiously. We have had improved 
Federal-State judicial relations. They have been far advanced with 
alternative dispute resolution and use of appellate commissioners.
  If I were going to vote today, I would vote against splitting the 
circuit, but I am not going to be voting today, Mr. President. I am 
going to be, hopefully, reviewing what has taken place on the floor.
  I see standing today my friend from Arizona, who is a fellow 
attorney. I have great respect for his legal talents and abilities. He 
was a prominent and very refined lawyer before he came here. I am 
willing to sit down and talk with him and anyone else as to what is the 
right way to go in coming up with this division. But let us not make it 
here on a Monday afternoon or by an amendment offered late at night.
  I think there is a better way to do this. I do not in any way 
criticize or think that my friend from Montana did anything improper or 
wrong. If I felt that, I would say that to him personally. I do not 
feel that is the way it is. I just feel that on multiple appropriations 
bills--five bills lumped into one--it is not the way to do it. I think 
what we should do, I repeat for the fourth time, is have a commission, 
a fair commission with a reasonably short period of time to report 
back.
  Mr. President, while we are still talking about the ninth circuit, it 
has a high degree of consistency in its case law. It would be improper 
for a circuit court of appeals to favor regional interests. This is a 
court of the land.
  Also, an objective, updated study is needed before undertaking 
piecemeal realignments of the circuit. We had the Hruska study, which 
took place 23 years ago, and it was very important that we did that. 
The effects of growth on the entire Federal appellate system needs to 
be reviewed. It can be done in a relatively short period of time with 
computerization and all the other modern methods we have at our 
disposal to get statistics.
  Yet, in the last two decades, no hearing has been held on that 
subject, nor has any commission conducted a study to determine how the 
Federal appellate system will continue to manage the continuing, 
growing influx of cases. It is not only that the ninth circuit is 
growing, the whole United States is growing. So we need to look at all 
of them.
  I repeat to my friends who feel this is the appropriate way to go--
stop and look at this. What this amendment does is call for a split of 
the ninth circuit, creating the twelfth circuit, and, at the same time, 
it calls for a commission to study restructuring. It is the wrong way 
to do it. We have already, in effect, let the cow out of the barn, 
because it makes it almost impossible to go back and pull out some of 
the resources, the assets of the twelfth and ninth circuits to help 
realign part of the other circuits if, in fact, that is necessary.
  If you look, Mr. President, at the alignment of the court system, you 
will find that the way my friend from Montana has proposed this in his 
amendment, we have a very strange-looking circuit. I do not know how 
far it is from the tip of Washington to the tip of Arizona, but I would 
say it has to be 1,000 miles or more, because I know the State of 
Nevada is 600 miles long or more. So it is probably, I would say, 1,200 
miles.
  If we are going to talk about realignment, we might want to see if it 
is appropriate that the tenth circuit remain the way it is. I think if 
we follow the findings of the Hruska Commission, or at least take that 
as a starting point, we might want to cut California right in two, if, 
in fact, there is a cut necessary. If you did that, I think there would 
be a significantly different division than my friend has here.

  Also, there are some long-time tendencies, practices, and procedures 
of which we have to be aware, and I think people need to study this. 
For example, we do not have a law school. Nevada does not have a law 
school. I do not know if there is another State in the Union that does 
not have a law school, but we do not have a law school. The vast 
majority of our lawyers are educated in California. I might say just 
offhand, I oppose the taxpayers of Nevada spending a lot of money on a 
law school. It comes up in every legislative session. I think we have 
enough law schools, and Nevada has plenty of lawyers. They are not 
having difficulty finding a place to go to school.
  I say that it is going to take a little education in Nevada--and I 
think this commission is the way to go--to have lawyers, judges find 
some rationale for splitting Nevada off from California. What the U.S. 
Senate decides in a debate of a few hours is not going to satisfy the 
court and bar in the State of Nevada.
  I think this commission that I have recommended, that was originally 
the idea of my friend from California, Senator Feinstein, is an 
appropriate way to go. I respectfully submit, Mr. President, that it is 
not the right way to go to split the circuit and then come back and 
say, ``Let's do a restructuring study.'' An objective, updated study is 
needed before undertaking piecemeal realignment of the courts.
  Some say that the Hruska Commission is outdated and the time has long 
since passed when its findings are of any merit. I do not know that to 
be the case, although there are some who feel that is the case. Arthur 
Hellman, who testified at our hearing, who is a professor and served as 
deputy executive director of the Hruska Commission 23 years ago, wrote 
in 1995:


[[Page S2228]]


       Although the Hruska Commission recommended in 1973 that the 
     ninth circuit be divided, that recommendation has been made 
     obsolete by intervening events.

  This is not some disinterested professor who was asked to look at it; 
this was the executive director of the commission.
  A former Congressman, a member of the ninth circuit, Judge Wiggins, 
who was a member of the Hruska Commission and a former Member of the 
House of Representatives on the Judiciary Committee, one of the people 
who was responsible for the Hruska Commission going forward, has 
expressed in a recent letter his opposition to a circuit division and 
supported the idea of an up-to-date new study. That is not 
unreasonable.
  Our lurching off into this is not the right way to go. Senator, now 
Governor, Pete Wilson conveyed similar sentiments in a recent letter to 
Senator Hatch. He said, among other things:

       I would urge that a study be commissioned to carefully 
     examine the concerns raised about the ninth circuit and 
     determine whether those concerns are legitimate and whether a 
     change in the circuit's boundaries is the best method of 
     addressing it.

  That is from Pete Wilson, a veteran legislator and certainly now a 
veteran administrator.
  I ask unanimous consent, Mr. President, to have the letter from 
Governor Pete Wilson printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                         Governor Pete Wilson,

                                                 December 6, 1995.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Orrin: I have been following with interest the current 
     debate over whether to split the Ninth Circuit, and wish to 
     register my strong opposition to any split before an 
     objective study is concluded as to whether a split will 
     properly address the concerns that have been raised 
     concerning the size of the circuit.
       As you know, I have been on record in opposition to 
     previous bills to split the circuit on the grounds that they 
     were a form of gerrymandering which sought to cordon off some 
     judges and keep others.
       Admittedly, the Ninth Circuit handles more cases than any 
     other circuit. However, the median time for it to decide 
     appeals (14.3 months as of December 1994) is only slightly 
     higher than that for the Sixth, Seventh, and D.C. Circuits 
     and less than the Eleventh Circuit (14.8 months), and in 
     fairness, the destruction of the San Francisco courthouse in 
     the Loma Prieta earthquake is party responsible for the 
     backlog.
       Splitting the circuit, without adding more judges, will not 
     necessarily expedite the processing of the Ninth Circuit's 
     cases and may generate a number of inconsistent rulings along 
     the West Coast in areas such as admiralty, environmental law, 
     and commercial law, since the West Coast would be split, 
     under the pending proposal, into two circuits (i.e., 
     California in one, and Washington and Oregon in the other). 
     Indeed, splitting the Ninth Circuit could add an additional 
     burden on the Supreme Court, which ultimately must resolve 
     conflicts between circuits. I recognize that some concerns 
     have been raised over intra-circuit conflicts, but there is a 
     mechanism for resolving them--the en banc hearing. See 
     Fed.R.App.Pro. 35.
       Ultimately, the real issue raised in the debate over 
     splitting the Ninth Circuit appears to be one of judicial 
     gerrymandering, which seeks to cordon off some judges in one 
     circuit and keep others in another. If this is the issue, I 
     submit that the proper means to address this is through the 
     appointment of new judges who do not inspire judicial 
     gerrymandering because they share our judicial philosophy 
     that judges should not make policy judgments but interpret 
     the law, based on the purpose of the statute as expressed in 
     its language, and who respect the role of the states in our 
     federal system.
       An objective study can focus on the concerns raised about 
     the Ninth Circuit and determine whether a split is the 
     answer. For instance, reform of our habeas corpus procedures 
     and reforms which curb frivolous inmate litigation may do 
     more to address a growing caseload than splitting the 
     circuit.
       In any event, I would urge that a study be commissioned to 
     carefully examine the concerns raised about the Ninth Circuit 
     and determine whether the concerns are legitimate and whether 
     a change in the circuit's boundaries is the best method of 
     addressing them. I would be pleased to contribute one or more 
     representatives to assist with such a study.
           Sincerely,
                                                      Pete Wilson.

  Mr. REID. Mr. President, I have indicated that Arthur Hellman, former 
deputy executive director of the Hruska Commission, is opposed to the 
split. I also ask unanimous consent to have printed in the Record a 
letter written to Senator Feinstein, dated December 5, 1995, from Prof. 
Arthur Hellman, at the University of Pittsburgh School of Law, in 
opposition.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                          University of Pittsburgh


                                                School of Law,

                                 Pittsburgh, PA, December 5, 1995.
     Re S. 956.
     Hon. Diane Feinstein,
     U.S. Senator, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Senator Feinstein: You have asked whether dividing the 
     Ninth Circuit today would interfere with Congress's ability 
     to pursue more comprehensive appellate reform in the future. 
     Plainly, it would.
       The Ninth Circuit's problems are problems that are shared, 
     in varying degrees and in differing manifestations, by all of 
     the circuits. As the American Bar Association's Standing 
     Committee on Federal Judicial Improvements emphasized in a 
     1989 report, ``the problems of the federal courts of appeals 
     . . . are problems of an entire system, which cannot be 
     solved by examining each component of the system in 
     isolation.''
       In 1990, the Federal Courts Study Committee, which included 
     among its members Senators Heflin and Grassley, concluded 
     that the Federal appellate courts were already in a ``crisis 
     of volume.'' It anticipated that ``within as few as five 
     years the nation could have to decide whether or not to 
     abandon the present circuit structure in favor of an 
     alternative structure that might better organize the more 
     numerous appellate judges needed to grapple with a swollen 
     caseload.'' The Committee's report presented several 
     ``structural alternatives,'' but it did not endorse any of 
     them; instead, it called for ``further inquiry and 
     discussion.''
       Dividing the Ninth Circuit today would significantly 
     interfere with Congress's ability to pursue the 
     reconsideration that the Study Committee urged. This is so 
     for three reasons.
       First, if a Twelfth Circuit is established--whatever its 
     configuration--the effect will be create new structural 
     arrangements and institutionalize new modes of doing 
     business. These will soon take on a life of their own, 
     reinforcing the status quo and making comprehensive reform 
     more difficult.
       Second, dividing the Ninth Circuit would set Congress on a 
     course that prefers circuit splitting to other, perhaps more 
     fruitful, measures for meeting the ``crisis'' of appellate 
     overload. Indeed, even today, the division of the Fifth 
     Circuit is being cited as a precedent for dividing the Ninth, 
     notwithstanding the many and significant differences between 
     the two situations.
       Finally, to divide the Ninth Circuit now would be to lose 
     the full benefit of a vital experiment in judicial 
     administration. As noted above, the Federal Courts Study 
     Committee presented several models of appellate 
     reorganization, but it did not endorse any of them. That is 
     quite understandable. None of the models is very attractive; 
     all have serious drawbacks.
       Over the last decade, the Ninth Circuit has undertaken a 
     remarkable range of innovations in an effort to determine 
     whether a large circuit can be made to work effectively. 
     Nothing could be more useful to Congress as it considers 
     systemic reform than to have the concrete empirical 
     information that the Ninth Circuit's experimentation will 
     provide.
       Of course, it would be wrong to conduct an experiment if 
     the ``subjects''--here, the judges, lawyers, and citizens of 
     the Ninth Circuit--were being hurt. But the evidence is 
     overwhelming that they are not. For example, bar associations 
     in five Ninth Circuit states have spoken out on S. 956. All 
     have expressed opposition to the split. Other evidence is 
     presented in Chief Judge Wallace's statement at the September 
     hearing.
       More than five years have passed since the Federal Courts 
     Study Committee issued its strong warning. Rather than divide 
     one circuit ad hoc, Congress should proceed systematically by 
     creating a new, focused commission to examine the problems of 
     the ``entire [appellate] system'' and make recommendations 
     that will serve the country for the long run.
           Sincerely,
                                                Arthur D. Hellman,
                                                 Professor of Law.

  Mr. REID. Mr. President, also, I think we should look at how the 
press feels about this split throughout the Western part of the United 
States.
  I think it is fair to say that most all the press is opposed to the 
split. I say this, not based upon the newspapers being all of a liberal 
persuasion, because I think that, for example, if you take the Arizona 
Republic, I think it has been accused of a lot of things, but certainly 
it does not have a liberal bias. They wrote in an editorial on November 
10, 1995, among other things:

       The bill can best be described as a case of unwarranted 
     political meddling in the Federal judiciary . . . The bill is 
     a wolf in sheep's clothing. What it's really about is a 
     perceived liberal bias that comes from domination of the 
     district by--guess who?--California. The agenda of the bill's 
     backers is less geared toward the efficient administration of 
     justice than it is to isolate California.

  It goes on to state what a bad idea it is to split this.
  Mr. KYL. Would my friend yield for one quick question or comment on 
my

[[Page S2229]]

behalf in relation to what the Senator just said?
  Mr. REID. Mr. President, prior to doing that, I ask for the regular 
order. Mr. President, I ask for the regular order.
  The PRESIDING OFFICER (Mr. Craig). The regular order is amendment 
3533 to amendment 3482, which is the first-degree amendment to 3466.
  Mr. REID. Parliamentary inquiry. The regular order having been 
called, it is my understanding that the ability to appeal the rule of 
the Chair on germaneness is now not possible; relevancy is not 
possible.
  The PRESIDING OFFICER. Intervening business having taken place, the 
right of appeal has been lost.
  Mr. REID. Thank you, Mr. President.
  I would be happy to yield to my friend from Arizona, without losing 
my right to the floor, for purposes of a question.
  Mr. KYL. I appreciate my colleague yielding. I want to make it clear, 
since you were quoting from my hometown newspaper editorializing 
against the bill, it was not the bill that is before us today.
  Mr. REID. I appreciate that, I say to my friend from Arizona. I did 
not know that.
  Mr. KYL. That was the original bill as introduced that they were 
writing about, not the amendment of the Senator from Montana.
  Mr. REID. I thank my friend very much.
  Mr. President, we have editorials, as corrected, from the Arizona 
Republic, from the San Francisco Chronicle, the Seattle Times, the Los 
Angeles Times--and not a western newspaper, of course--the New York 
Times.

  I yield the floor, Mr. President.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I would like to comment on some of the things 
that have been said so far. I say to the Senator from California, 
Senator Feinstein, and the Senator from Nevada, who has just been 
speaking about their presentation, this is a rather complex issue. I 
certainly would begin by noting this is a matter on which reasonable 
people can differ.
  In this case I do differ, but certainly the arguments they have made 
are legitimate points to debate. I would like to get on with that 
prospect right now. The Senator from Montana has revised the original 
version of the bill as introduced, as I just pointed out to the Senator 
from Nevada, and has presented what I think now represents a division 
of the ninth circuit of appeals that would make a lot more sense than 
proposals that had earlier been made.
  As the Senator from Montana knows, there have been numerous hearings 
and numerous substitutions as to how to divide the circuit, hearings 
being conducted almost every 5 years, 1984, 1990, 1995, not to mention 
the hearing of the Hruska Commission back in 1993. I am sure the 
Senator from California winced a little bit when the Senator from 
Nevada said that Hruska recommended dividing the State of California 
into two parts.
  In any event, to the first point. The Senator from Nevada said that 
this would be a rather odd looking circuit, stretching from the tip of 
Alaska to the southern boundary of Arizona. I would note that that is 
exactly what the north and south boundaries of the ninth circuit today 
are. It stretches from the northern tip of Alaska to the southern 
boundary of Arizona.
  This new circuit would be precisely the same. What it would not have 
is the extreme western part of the trust territories, the States of 
California and Hawaii. The States of Arizona and Alaska, those would be 
made part of the new twelfth circuit. The remainder of the ninth would 
remain the same, but be part of the new twelfth circuit.
  So it does not seem to me that represents some strange division, but 
rather a commonsense way of dividing the circuit in order to operate 
more efficiently. What we are talking about is a caseload which would 
be split roughly 60 to 40, with the States of California, Hawaii, and 
the Trust Territories.
  Mr. President, to show you how much the State of California dominates 
the ninth circuit today, it dominates it by virtue of the fact that it 
has by far and away the largest amount of the caseload and the largest 
population. The ninth circuit itself represents by far and away the 
largest circuit in the country. It spans nine States and two 
territories, covering 1.4 million square miles, serving the population 
of 45 million people. The next circuit in size by way of illustration 
is the sixth circuit, serving fewer than 29 million people. Every other 
circuit serves fewer than 24 million.
  Mr. President, the Census Bureau estimates by the year 2010 the 
population of the ninth circuit will be more than 63 million, a 40-
percent increase. That is in just 15 years. Everyone who studies the 
issue understands that sooner or later that the size of the ninth 
circuit will have to be dealt with.
  As long ago as 1993 the Hruska Commission was suggesting a division 
of the circuit. In the ninth circuit there are 28 judgeships there 
today, and 13 active senior judges. The court has asked for 10 
additional judgeships, which would make 38 --excuse me--I think there 
are about 10 senior circuit judges right now. So in addition to the 28 
existing, and 13 senior judges, the court has asked for an additional 
10, which would put it close to the 50 mark in terms of the number of 
judges that would be deciding cases when those additional 10 are 
granted.

  As a result of the large number of judges in the circuit, there are 
divisions within the circuit unlike other circuits. It is impossible 
for all of the judges to know what each of the judges is deciding. It 
is also impossible for the court to sit en banc, as the Senator from 
Nevada noted.
  I will state from the beginning, that I think that the ninth circuit 
has done a good job and the presiding judges of the ninth circuit have 
done a good job under very difficult circumstances in managing the 
caseload of the circuit. They have tried to institute efficiencies 
which have enabled it to do its job notwithstanding the huge amount of 
area and population under its jurisdiction and the large number of 
cases coming to it as a result. So my discussion of the court's 
handling of its caseload is in no way meant to be a criticism, Mr. 
President. If anything I would take my hat off to the presiding judges, 
who have done a good job under the circumstances. But facts are facts.
  This is a circuit that has never been able to have an en banc hearing 
because the number of judges are simply too great. You do not have all 
26 judges or 28 judges sitting down at the same time to hear a decision 
or an argument based on a decision of the 3-judge panel, which is what 
the courts ordinarily sit on.
  As a result of the ninth circuit, you end up with 11-judge en banc 
hearings, unique among all of the other circuits. What that means is 
essentially by a luck of the draw, your decision is reviewed not by the 
entire circuit but by 11 judges in the circuit. I will come back to 
that point in just a moment.
  One of the questions about the splitting of the circuit is whether it 
would make much of a difference. I think that depends on what you 
define the problem as. A part of the problem is the large caseload.
  The Senator from Nevada makes the point that until we add more 
judges, we will not know whether that problem has been resolved. But 
that is not the only problem, Mr. President. As a matter of fact, size 
itself is just part of the problem. As I noted, adding more judges 
might help to resolve more cases, but it does not do anything about the 
problems that are cropping up in this large circuit as a result of 
judges not being able to keep track of what each other are doing and 
what the various 3-judge panels are doing. This has created 
opportunities for intracircuit conflicts. It has also meant there are 
more per curiam decisions. Judges usually write opinions. And an 
average is more than a fourth of the cases result in opinions being 
written. In the ninth circuit, it is down to about 19 percent of the 
cases that actually have opinions written.
  So with that low number of cases in which opinions are written, it is 
difficult for the judges to keep up with the decisions that have been 
made by the other three-judge panels, and it is not always the case 
they can clearly follow or clearly determine the circuit's precedent 
has been followed when cases are simply decided without the benefit of 
an opinion.
  This is also rather maddening for the litigants and for the lawyers. 
It is, I am sure, understandable that if litigants spend thousands of 
dollars to

[[Page S2230]]

take a case to the circuit and say, ``You win in the lower court and 
take it on appeal to the ninth circuit,'' and they reverse without 
opinion--all they say is, ``The case is reversed.'' You do not know why 
they reversed the case. It is more than maddening because you 
ordinarily have to make decisions based on what the law is. If the 
court has not told you why it reversed, then you are not going to know 
what you have to do in the conduct of your business or other affairs to 
comport with what the law theoretically is. It is difficult when you do 
not have an opinion telling you what you should be doing. That is one 
of the problems that lawyers have told me has caused them to be unclear 
about advice that they give their clients with respect to the question 
of whether or not to appeal in a case.
  This is very difficult for clients because you may lose a case at the 
lower level and wonder whether you should expend the time, energy and 
money to take the case to the circuit court. If it is unclear what the 
law is going to be, it is kind of a crap shoot, to use the phrase that 
a lawyer in Arizona used with me. He said, ``With so many judges, it is 
a crap shoot as to what kind of a panel you get.'' In a circuit that 
has six judges, as mentioned earlier, you have a pretty good idea of 
who will be sitting on your panel or what its likely composition will 
be. If you have a number of possibilities, as exists in this particular 
circuit, you have no idea what the composition of the court is going to 
be. There are 3,276 possible combinations of panels on this court--
3,276. It is impossible for a litigant to have any idea who the judges 
will be and, therefore, what to expect. Given the broad range of 
ideology within this particular circuit, therefore, a lawyer hardly 
knows how to advise his clients.
  Assume you have a decision from a three-judge panel. The question is, 
do you try to take it en banc? But you have no idea who the 11 en banc 
will be and whether it will be a fair reflection of the circuit. Since 
there are not as many written decisions as there are in other circuits, 
you also find it more difficult to follow the precedence of the court. 
It is more difficult for lawyers to advise their clients on whether to 
take an appeal or not in the ninth circuit than it is in most of the 
other circuits.
  Much has been made, Mr. President, of the length of time that it 
takes for a case to get to hearing, and the ninth circuit is the worst 
or second worst, depending on how you count in this regard. There has 
been a statistic cited, and I think cited by both the Senator from 
Nevada and the Senator from California, that suggests, actually this 
court is fairly quick. That is the time from the time the judges get 
the case to the time their decision is published. That is the only area 
of the nine areas in which this circuit does particularly well.
  There is a reason for that: They do not write as many opinions. It is 
fairly easy once you decide the case to notify the litigants of the 
decision if you do not have to write an opinion expressing your view. I 
suspect that is the reason why that particular statistic is one in 
which the ninth circuit looks good. Otherwise, the ninth circuit is the 
slowest from filing of the last brief to the hearing or submission of a 
case. It takes about 4 months longer to complete an appeal compared to 
the national median time. It is over 14.3 months, as I understand.

  In the other indicia of speed, the court does not fare well compared 
to the other circuits. That is something that more judges would do 
something about. You have to wonder how many judges in number you get 
to for the court still to function adequately. At the hearing we held a 
few months ago on the subject, judges from the nine-county circuit were 
asked that question, and they acknowledged there was a point at which, 
obviously, the court would have too many judges. It would be too big 
and have to be split. There was disagreement, as you might imagine, on 
exactly what the appropriate number is.
  I mentioned the fact that there is inconsistency between the panels, 
which results from the fact that there are so many different possible 
combinations in the ninth circuit. That is the thing that worries the 
attorneys for the litigants so much.
  I also think it is instructive, Mr. President, to determine how the 
Supreme Court has dealt with the opinions from the lower circuits, from 
the circuit courts in the lower courts. It may be some evidence of a 
court that is overburdened that it is reversed frequently, and in this 
regard it is interesting that the ninth circuit has one of highest 
reversible rates of any of the circuits. For example, last year in the 
cases that the U.S. Supreme Court decided in the term ending June 29, 
1995, according to the Court's records, 82 percent of the ninth circuit 
cases heard by the Court were reversed--82 percent. That is not a very 
good standard of success, I suggest, Mr. President.
  Now, lest people jump to the conclusion that this means that the 
ninth circuit cannot get it right 82 percent of the time, let me hasten 
to note that this is of the cases that the Court takes. By definition, 
the cases that the U.S. Supreme Court takes on review are the more 
difficult, the more controversial cases. So we should not believe that 
being wrong 82 percent of the time represents the full caseload of the 
court. That is not the case. We are talking about the number of cases 
that the court has been reversed in by the U.S. Supreme Court, of those 
cases taken by the Supreme Court. Again, by definition, those are going 
to be the more difficult cases. Still, being reversed 82 percent of the 
time is not a particularly good record.

  I suggest that an article recently appearing in the Wall Street 
Journal may indicate a reason why this is so. It may be that some 
members of some of the courts do not have the high regard for precedent 
that we would like to see in our circuit court judges. It may also be, 
as I noted, that this court simply is particularly burdened.
  Just a few day ago, last Friday, March 15, the Wall Street Journal 
carried an article I found fascinating but also very troubling. The 
headline of the story is, ``Bench Pressure: Federal Appeals Judge 
Embraces Liberalism in Conservative Times,'' and a subheading, ``Ninth 
Circuit's Reinhardt Discovers New Rights That Appeal to the Left.''
  The story, written by Paul Barrett of the Wall Street Journal, 
discusses a most recent ruling in which Judge Reinhardt was the author 
of a lengthy opinion, according to the Wall Street Journal, announcing 
that the terminally ill now have a right to die with the help of a 
doctor. According to the Wall Street Journal, ``The mammoth 109-page 
ruling struck down a Washington State ban on assisted suicide--the 
first such action by a Federal appeals court.''
  They quote the author of the opinion, Judge Stephen Reinhardt, as 
saying, ``I think this may be my best ever.'' The article goes on to 
discuss the record and career of this very bright, very intellectual 
and, according to the article, very liberal lawyer-judge, who the 
article says is widely respected by friend and foe as a crafty advocate 
for his left-leaning views.
  Mr. President, I do not know Judge Reinhardt or the degree to which 
his views may inform his decisions, but one indication that the ninth 
circuit might be overruled as often as it is could be reflected in the 
reported comments of Judge Reinhardt about the current U.S. Supreme 
Court, and suggests that there is perhaps not enough respect for the 
precedent coming from the U.S. Supreme Court. Remember, Mr. President, 
that the judges on the circuit courts are supposed to be not making new 
law but simply applying the precedents of the U.S. Supreme Court.
  According to this article, after discussing the fact that Judge 
Reinhardt has been somewhat criticized by some of his opinions, he says 
it has happened many times that he has been reversed by the Supreme 
Court, and then is quoted as saying, ``There's nothing I can do if that 
court is run by reactionaries.'' ``There's nothing I can do if that 
court''--meaning the U.S. Supreme Court--``is run by reactionaries.''

  Mr. President, I hope that Judge Reinhardt was kidding if he is 
suggesting that the U.S. Supreme Court is run by a bunch of 
reactionaries because those who have defended the current composition 
of the ninth circuit have correctly said that the circuit courts should 
not reflect the attitude of just their own area. That is not really how 
circuit judges should be selected because, after all, they are not 
supposed

[[Page S2231]]

to declare the law just for their area; they are supposed to be 
declaring the law of the United States as enunciated by the precedence 
of the U.S. Supreme Court, the Constitution of the United States, and 
the laws of the United States. Those are not defined by any kind of 
regionalism. So they correctly note that the judges are supposed to be 
declaring the law, informed by those three sources.
  Yet, here is a judge who at least is quoted in the Wall Street 
Journal last Friday as apparently referring to the current members of 
the U.S. Supreme Court as ``a bunch of reactionaries.'' As I said, I 
hope he was kidding. It is probably not a very judicious thing for him 
to have said, and I hope that, in retrospect, he will reflect upon that 
and perhaps pronounce himself chagrined that that perhaps off-the-cuff 
comment found its way into print. I hope that will be his reaction.
  But, as I said, it might illustrate why this circuit has been 
reversed as many times as it has been. There are stories, which I 
cannot confirm, that many of the opinions from this particular judge in 
this particular court are in some sense red-flagged for their review. 
The high percentage of cases reversed from the ninth circuit may 
suggest that that is true, and we may have a suggestion of why that is 
so.
  Now, that does not suggest that the answer to this is the split in 
the circuit. I do not make that claim here. But I do find it 
interesting that the opinion written by Judge Reinhardt in this 
particular matter, this right-to-die case, was written for an en banc 
panel which was hardly representative of the court as a whole--which 
illustrates the problem with an en banc hearing of less than the entire 
membership of the court--unique to the Ninth Circuit Court of Appeals 
and only the case because the court is too big to have all of the 
judges sitting by themselves.
  The calculations have been done here, and what we find is that in 
this particular decision, the limited en banc panel was comprised of 
six Democratic appointees and five Republican appointees. The ninth 
circuit has 15 Republican appointees and 9 Democrat appointees. So the 
limited en banc panel in the right-to-die case had 5 of the 15 
Republican appointees and 6 of the 9 Democratic appointees.
  Now, Mr. President, I am not suggesting that being appointed by a 
Democrat or a Republican President will dictate how you decide a case 
either. But I do suggest that of all of the indicators of how a case 
might be decided--the State from which a judge comes, the age of the 
judge, the sex of the judge, the race of the judge, the color of hair 
of the judge, or whatever criteria you may want to look at--the party 
of the President appointing the judge probably has more to do with the 
decisions of that judge, day in and day out, than any other single 
factor.
  Therefore, it is not irrelevant to look, in this particular case, at 
the political composition of the panel. Again, I am not suggesting that 
that is what caused the decision in this case. But it is a most 
controversial decision, the first of its kind ever, and, I suspect, the 
kind of case the Supreme Court will want to take a look at.

  My point in all of this, Mr. President, is that a court that gets so 
big that you cannot even have an en banc hearing of all of the judges, 
which can result in a skewed composition of en banc panels, can result 
in skewed decisions, can result in overruling in many, many cases. That 
is what we have found with respect to the Ninth Circuit Court of 
Appeals. So it is not just the fact that we have not given them the 10 
additional judges they want that creates a problem with a court of this 
size.
  Let me dispel some of the other notions that have crept into this 
debate so far. One is that this is going to be costly. I find it 
interesting that a Congress that frequently spends money like it is 
going out of style is suddenly concerned about cost. But let us put 
that in perspective. Justice, of course, should be one of the highest 
priorities of this Congress. I, for one, Mr. President, do not want to 
skimp when it comes to providing for justice. I have voted against a 
lot of appropriations bills since I have been in the Congress, but I 
cannot recall a bill that I voted against that funded the judiciary. I 
believe strongly in enforcing the laws of our country and ensuring the 
judiciary has what it needs.
  The cost of this particular bill, according to the General Accounting 
Office, for the construction of the new offices that would be 
necessary, is $18 million--$18.1 million to be precise. That is just 
0.68 percent, which is less than 1 percent, slightly over half of 1 
percent of the annual budget of the judiciary last year, about $2.5 
billion. Next year, we are looking at $3.1 billion. So in the year it 
will occur, it will be much less than 1 percent of the budget. There 
would be a small start-up cost of about $3 million, but that would be a 
one-time-only cost.
  It has been noted that the chambers in San Francisco and Pasadena 
have recently been renovated and that they could accommodate more 
judges. The fact is that judges of the ninth circuit today sit in, have 
chambers in, and argue cases throughout the circuit--in Phoenix, in San 
Francisco, in Pasadena, in Portland, in Seattle. That is the way it is 
done today. I think it would be nice if the judges moved to the site of 
the headquarters of the circuit and sat there and had their chambers 
there, but they fly around the country today. That is why you only have 
5 chambers in San Francisco, even though it is the headquarters of the 
circuit with 28 sitting judges, with 10 more requested. In addition, 
there are eight offices in Pasadena, the other place of primary 
headquarters of the circuit.
  So you have a situation that could accommodate additional judges as 
they are appointed, and, certainly, at least half of the 10 judges that 
have been requested would have to be assigned to California. Apparently 
the headquarters there could accommodate those judges.
  It is also noted that the bar associations of most of the States, and 
the Federal Bar Association itself, oppose the split of the circuit. 
That is not surprising, although I note that in my State of Arizona, 
there is very definitely a split. The so-called organized bar, the 
political organization, has written a letter in opposition. Of the 
lawyers and judges I have talked to, I find a real split, depending 
upon their point of view. I do not want to suggest that we should, 
however, simply follow the advice of the lawyers and the States on 
this. While I have not taken a poll of all of the lawyers in Arizona--
for my sake anyway--I do not think that would be the determining 
factor, in my view. I understand the point others have made that bar 
associations may oppose it. I do not find that to be a persuasive 
reason to not support the amendment of the Senator from Montana.

  Another question is that Phoenix is kind of out of the way. Those of 
us in Phoenix do not really think that. In any event, it is about $38 
or $39 to fly from Las Vegas, NV, to Phoenix, the home of my colleague 
from Nevada. It is pretty cheap on at least three or four of the 
airlines to get to Phoenix. It does not take very long at all. The 
point here, I think, is missed, and that is that cases are argued 
throughout the circuit. That would remain the case whether the circuit 
is split or not.
  It is also the case that the law would remain the same. I think the 
Senator from Nevada made a good point in noting that his own State did 
not have a law school and that many of the lawyers there are educated 
in California. It is important that the law remain the same. It should 
be noted here that when the fifth circuit was divided into the fifth 
and eleventh circuits, they made the decision, correctly, to keep the 
law of the previous circuit. That has been done. Our hearing indicated, 
and people who testified at our hearing indicated, that it worked very 
well. Of course, that is the way it would be done here, as well. We 
would not have to dictate that result. The judges on the circuit 
themselves would correctly make the decision as a result, even though 
the court would be split into two parts. The law that had been built up 
from the ninth circuit would, of course, continue to be the law 
governing the new twelfth circuit as well. That should not be a factor.
  Mr. President, there are several other things I think we can say 
about this. But let me simply conclude with this point. This is not 
judicial gerrymandering, because the amendment of the Senator from 
Montana would result in a division that just about evenly divides the 
judges on the court, and they could go wherever they wanted to

[[Page S2232]]

between the ninth circuit and the twelfth circuit. If you go by their 
State of origin, presumably half would go to California and the other 
half would remain or would go to the twelfth circuit in the States from 
which they come.
  So you would have a division geographically that is almost identical 
to the division that you had today. And, by the way, for those who are 
interested, the division politically would be almost identical as well. 
So both circuits would end up with just as many Republicans and 
Democrats and percentage as the court today has. And, in any event, as 
I said, this is not an effort to put all of the conservatives in one 
court and all of the liberals in another. I think that is illustrated 
by the fact that perhaps at least from public accounts one of the most 
conservative leaders on the ninth circuit and one of the most liberal 
leaders on the ninth circuit would both remain in California under the 
divisions imposed here.
  So there is not an effort at judicial gerrymandering. It is an effort 
to do finally what countless studies have suggested; that is, sooner or 
later this circuit is going to have to be divided--going back well over 
20 years. I suppose we could have another study, and I am sure it would 
be informative. But I question whether the Senate and the House would 
act on the study--at least would any time soon. And, therefore, at 
least this legislation is an attempt to get the ball rolling and make 
something happen so we do not continue to have the circumstance we have 
today.
  A study, by the way, is also I think prone to the same kind of thing 
that has occurred in the past where you have people doing the studying 
themselves. I would suggest that, if there is going to be a study, it 
should not be done by the very people who are involved; that is to say, 
the judges on the ninth circuit. There is a certain incestuousness that 
develops over time and a desire to do it the way we have been doing it, 
and liking the way it is done. It seems to me, if there is going to be 
a fresh look at this, it ought to be done by people who can with some 
expertise view the situation from some distance as well as relying upon 
the expertise of those who are on the inside.
  I think also that it should be composed of people who are not just 
the judges by also litigants, members of the bar who practice before 
the circuit, and perhaps people who have other expertise to bring to 
bear.
  But in the end, as the Constitution requires, it is the U.S. Congress 
that has the responsibility here to decide on the composition of the 
so-called lower courts. So it is our responsibility to make this 
decision, Mr. President.
  I simply want to conclude by complimenting the Senator from 
Washington, Senator Gorton, and also the Senator from Montana, Senator 
Burns, for bringing this matter to the attention of the Congress, and 
for getting the bill through the Judiciary Committee. I urge our 
colleagues to review the report of the committee. It is a good report, 
a good description of the issue I think, and they can all benefit by 
reading that report and then determine whether additional study is 
necessary, or whether it is time to take action now.
  I hope that in the comments that I have made I have made two or three 
things clear. No. 1, that I am not criticizing the court or its 
administration. As I said about four times, it has done admirably well 
under the circumstances. The circumstances are what bring the 
difficulty. I am suggesting that adding more judges is not just the 
answer to this problem. So we should not think that simply funding more 
judges will solve the problem here.
  The problem here is the point at which any circuit becomes too large 
to function in the way intended. Virtually everybody who has talked 
about this--opponents and proponents alike--agree that there is a point 
beyond which the court is too large. Many have determined that that 
point has now been reached. Others think it is around the corner a bit. 
But in any event, we all understand that that is a problem which this 
Congress has to address. So whether it is done by this legislation, or 
whether it is done by a committee, clearly one of the probable 
recommendations has to be a division.

  And the third and final point is that of all of the ways that have 
been considered to divide the court--dividing California in the middle, 
cutting off Arizona and sending it to the tenth circuit, allowing 
Nevada, California, Hawaii, and the trust territories, and perhaps 
others to constitute another circuit--a lot of different iterations 
have been proposed. The only one that has made sense to the people with 
whom I have discussed the issue in Arizona--judges, lawyers, and 
litigants--is the proposal that the Senator from Montana has presented 
to us today. And it is, therefore, that proposal and only that proposal 
which I am willing to support, and urge my colleagues, therefore, to 
consider that proposal as really the only viable alternative to the 
situation that we have today.


                           amendment no. 3533

  Mr. BOND. Mr. President I would like to take a moment to outline what 
the increases for EPA are in the Bond-Mikulski amendment which we will 
be voting on tomorrow. The amendment is a complete substitute for the 
pending Lautenberg amendment.
  First, the amendment takes the $162 million of EPA addbacks included 
in title IV of the bill, removes their contingency status, and finds 
offsets for them. These four provisions are:

                        [In millions of dollars]

Safe drinking water State revolving fund.............................50
Clean Water State revolving fund.....................................50
EPA buildings and facilities.........................................50
Program & Management.................................................12

  Second, the amendment then provides another $325 million for EPA in 
the following manner, also fully offset:

                        [In millions of dollars]

Safe Drinking water State revolving fund............................125
Clean water State revolving fund.....................................75
Superfund............................................................50
Operating programs...................................................75

  Thus the total new noncontingent funding for EPA is $487 million--all 
now fully offset. The amendment attempts to continue our ongoing 
efforts to force the EPA to set priorities and to spend their resources 
in areas of greatest need. In particular--the unfunded mandates that 
the State revolving funds are designed to address.
  In the Bond-Mikulski amendment, of the additional $487 million, the 
two State revolving funds receive $300 million; Superfund is given $50 
million; program management $87 million, and building and facilities 
the remaining $50 million.
  I believe this is a fair compromise and should be supported.
  Mr. HATFIELD. Mr. President, we are in the process of trying to clear 
some other amendments which we have--11 amendments that we had 
clearance at one time, or agreement--and other intervening actions have 
now made it impossible to adopt those amendments at this moment.
  Mr. President, I also indicate that we were here 3 hours today 
waiting for amendments, as we were most of Friday. I am very grateful 
to the Senators who have just completed the colloquy on this ninth 
circuit subject for at least bringing up one of our amendments. Very 
frankly, I have more important business pending in my office than I 
have waiting for Senators to appear on the floor and offer their 
amendments.
  I have to also say, again in the context as chairman of the 
Appropriations Committee, that we are expected to create miracles 
around here by completing this omnibus package, going to conference 
with the House of Representatives, getting that resolved, and getting 
the conference reports adopted before midnight Friday this week. I am 
not a miracle person. I cannot commit miracles. Others in history have. 
But I am not such a person.
  Also I note that the Senator from Arizona, the Senator from Idaho, 
and myself as western Senators--and the Senator from Nevada--four 
western Senators find it increasingly difficult due to the plane 
schedules to get out to the West and back. And we all would like a 3-
day workweek in order to do that. But we are here to do business. And I 
would be highly tempted to do a bedcheck vote right now of how many 
Senators are in town to do business.
  So I think it is imposing upon our time, and it is imposing upon the 
time of the requirements with the conference of the House. Therefore, 
it is an imposition on the House as well for us to then say everybody 
comes back to Washington and they will come running in here with their 
amendments on Tuesday, and they have to all be acted upon by a certain 
time on Tuesday. I

[[Page S2233]]

can see it now. They will come to Senator Byrd and myself where they do 
not have time to debate their amendments, or get them acted upon, and 
they will say, ``Include my amendment in the managers' package.''
  I am going to look with great reservation on such requests because 
that is not again the procedure by which we should enact some of these 
very important amendments or dispose of them.
  I stood here before with such pleas to my colleagues. Maybe I could 
get a going away present and have them all come immediately and we will 
complete this bill this afternoon because this is my last year to stand 
here and manage an appropriations bill. But having been gentle in my 
remarks in so urging our colleagues, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum has been noted. The 
clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATFIELD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Grams). Without objection, it is so 
ordered.


  Amendments Nos. 3499, 3510, 3518, 3529, 3549, and 3550, En Bloc, to 
                           Amendment No. 3466

  Mr. HATFIELD. Mr. President, I have a group of amendments that have 
been cleared that I now send to the desk. I ask unanimous consent that 
they be considered en bloc, agreed to en bloc, and the motions to 
reconsider be laid upon the table.
  I emphasize, Mr. President, that these are six amendments that have 
been cleared on both sides of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendments (Nos. 3499, 3510, 3518, 3529, 3549, and 3550) were 
agreed to.
  The texts of amendments Nos. 3549 and 3550 are as follows:


                           amendment no. 3549

       On page 754, before the heading on line 5, insert:
       Sec.   . (a) In addition to the amounts made available in 
     Public Law 104-61 under the heading ``Research, Development, 
     Test and Evaluation, Defense-Wide'', $50,000,000 is hereby 
     made available to continue the activities of the 
     semiconductor manufacturing consortium known as Sematech;
       (b) Of the funds made available in Public Law 104-61 under 
     the heading ``Research, Development, Test and Evaluation, 
     Army'', $7,000,000 are rescinded;
       (c) Of the funds made available in Public Law 104-61 under 
     the heading ``Research, Development, Test and Evaluation, 
     Navy'', $12,500,000 are rescinded;
       (d) Of the funds made available in Public Law 104-61 under 
     the heading ``Research, Development, Test and Evaluation, Air 
     Force'', $16,000,000 are rescinded;
       (e) Of the funds made available in Public Law 104-61 under 
     the heading ``Research, Development, Test and Evaluation, 
     Defense-Wide'', $14,500,000 are rescinded; and
       (f) Of the funds rescinded under subsection (e) of this 
     provision, none of the reduction shall be applied to the 
     Ballistic Missile Defense Organization.
                                                                    ____



                           amendment no. 3550

    (Purpose: To provide for the transfer of funds for carrying out 
  training and activities relating to the detection and clearance of 
                  landmines for humanitarian purposes)

       Insert at the appropriate place:
       Sec.   . Of the funds appropriated in Title II of Public 
     Law 104-61, under the heading ``Overseas Humanitarian, 
     Disaster, and Civic Aid'', for training and activities 
     related to the clearing of landmines for humanitarian 
     purposes, up to $15,000,000 may be transferred to 
     ``Operations and Maintenance, Defense Wide'', to be available 
     for the payment of travel, transportation and subsistence 
     expenses of Department of Defense personnel incurred in 
     carrying out humanitarian assistance activities related to 
     the detection and clearance of landmines.


                           amendment no. 3496

  Mrs. MURRAY. Mr. President, I rise as a cosponsor of the amendment to 
change the name of the Walla Walla Veterans Medical Center in Walla 
Walla, WA, to the Jonathan M. Wainwright Memorial VA Center.
  General Wainwright was born at Fort Walla Walla and was a member of 
the 1st Cavalry after graduating from West Point. He served in France 
during World War I and was awarded the Congressional Medal of Honor in 
1945 by President Truman for his service in World War II. He spent 
nearly 4 years in a prisoner of war camp in the Philippines and was 
known as the Hero of Bataan and Corregidor. General Wainwright was a 
true war hero and won the praise and respect of all Americans.
  Mr. President, the people of Walla Walla, WA, want this name change 
to honor a war veteran and local hero. In May, they are dedicating a 
statue in his honor and would like to dedicate the name change of the 
hospital at the same time. The entire Washington State congressional 
delegation supports this change. And all of the veterans service 
organizations in Washington State support the change.
  I urge my colleagues to support changing the name of the Walla Walla 
Veterans Medical Center to the Jonathan M. Wainwright Memorial VA 
Medical Center, and to allow this war hero the recognition he so 
rightly deserves.
  Mr. HATFIELD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ASHCROFT. Mr. President, I rise to speak in regard to the matter 
under consideration, the appropriations bill, that this body is 
considering, and I ask unanimous consent to speak for 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ASHCROFT. The situation we debate today concerning our inability 
as an institution to control spending is not a situation about 
allocating spending or the responsibility to pay for spending from one 
group in our society or culture to another. We are not talking about 
whether the rich should pay for the spending or the poor should pay for 
the spending. All too frequently, we find ourselves talking about the 
displacement of the costs which we incur from our current culture to 
the culture of the future, to the next generation.
  We literally, in so many cases, find ourselves debating about the 
expenditure of the earnings of the next generation, because when we go 
into debt, we break our responsibility to pay for that which we 
consume. When we go into debt, we really ask the next generation to 
pick up the tab.
  No family in America finds its children encumbered by the debts of 
their parents. That is against the rules in our society. No parent, no 
matter how irresponsible the parent is, can cause an enforceable 
obligation to fall upon the children. We just say that is 
inappropriate. However, when it comes to us collectively as a group of 
individuals, we can spend as recklessly, apparently, as we like and 
cause the greatest of debts to fall upon the next generation.
  I find that to be unwise and counterproductive, because it means that 
instead of leaving them with assets, we are leaving the children with 
debts. That is very bad for the future of the country. I find it to be 
immoral to spend the money and resources of the next generation without 
the consent of the next generation.
  We have tried over and over again as a body here in the U.S. Senate 
to deal with this problem of recurring debt. We had the Gramm-Rudman-
Hollings Act, the Gramm-Rudman Act II, then we had the budget deals of 
1990 and 1993. We have not been able to get one Senate to bind the next 
Senate successfully with discipline.
  As a matter of fact, this past year we had a substantial debate about 
whether or not we should have a balanced budget amendment. The occupier 
of the chair and I firmly agree we need a balanced budget amendment to 
the Constitution to bind, not only ourselves, but future Senates to the 
discipline of paying for that which we consume.
  Unfortunately, there are enough Members of this body who resist that, 
saying that we should not bind future Senates, that we should not bind 
future Congresses to live with the discipline of paying for that which 
is consumed. Equally unfortunate, as a matter of fact more 
unfortunately, is the willingness of those same people to bind future 
generations to debt.
  So what we have is a Congress unwilling to bind itself to discipline 
but which finds itself more than willing to bind the next generation in 
debt. It is a kind of bondage which will restrain the next generation 
substantially in the way it consumes its resources and the way it 
allocates what spending it ought to have the right to allocate.

[[Page S2234]]

 The next generation will end up allocating that spending to the 
payment of our debts.
  It appears from this debate that we are not even able to successfully 
bind this Senate to the limits it set for itself. Every year the Senate 
passes a budget resolution to cap our spending. We passed a budget 
reconciliation act, the so-called Balanced Budget Reconciliation Act of 
1995.
  That act would have saved enough money by slowing the increase of 
spending in Government to have enabled us to reach a balanced budget by 
the year 2002, if the President had not vetoed it. We all know what 
happened. President Clinton, after alleging compellingly and 
consistently his desire for a balanced budget, had the opportunity, the 
first opportunity in a quarter century to sign one, and he vetoed it.
  As introduced, the omnibus appropriations bill might have allowed us 
to achieve the first-year target for reducing the deficit set up by the 
Balanced Budget Act of 1995, but it did not achieve that by reducing 
the rate of Federal spending as we had intended.
  Instead, this pending bill, it is my understanding, increases the 
rate of spending by displacing some of the overall savings which we had 
hoped to achieve over the next 7 years under the Balanced Budget Act. 
That means we will no longer be able to count on these funds which were 
gathered from outyears, stolen, or taken from outyears, to help balance 
the budget over the next 7 years.
  This malady, or this pathology, this consistent way of doing business 
is not a stranger to the Congress, which has always been gathering to 
itself spending, deferring from itself savings, and displacing from 
itself the payment of its responsibility.
  If that were not bad enough, look at what is happening now. I think 
it is time that we need to stand firm. It is time to prioritize 
programs, and it is time to make tough choices, protect at least our 
deficit target if not the target for slowing spending. We are somehow 
experiencing in this body a collapse of will. We cannot allow that to 
happen.
  Each time we add more spending to this bill, we push ourselves 
further away from achieving a balanced budget that we had hoped to 
achieve under the Balanced Budget Act. We are throwing away the savings 
from slower spending which we had worked so hard to achieve and we cast 
votes to achieve last year.
  We should not be spending more of the taxpayers' money that is 
included in this bill. We should be spending less. Are the spending 
limits really so onerous, are they so draconian, are these limits so 
oppressive when this bill includes a couple hundred thousand dollars 
for the expenses of the Commission for the Preservation of America's 
Heritage Abroad? Are these spending limits that we need to impose 
really onerous in this bill when they provide for hundreds of thousands 
of dollars for the purchase of passenger cars for the International 
Trade Administration bureaucrats abroad at $30,000 per vehicle 
designation, as though that is an exercise in fiscal restraint?
  During the first session of this Congress, in the deliberations 
concerning the adoption of a balanced budget amendment to the 
Constitution, we frequently heard that there was no need for us to 
amend the Constitution. Why amend the Constitution when we, as 
reasonable individuals sent here by voters who want a balanced budget, 
when we can exercise the restraint, it was said, in order to balance 
the budget, in order to provide a stable fiscal therapy for the next 
generation instead of a malady for the next generation?
  Let us just do the right thing. We do not have to have a balanced 
budget amendment to the Constitution, we were told; there is authority 
for the U.S. Congress to do what is right and to be able to live within 
our means and that we should do so immediately.
  Frankly, it is not such authority that this Congress lacks. We do 
have the authority. The truth of the matter is that we lack the 
discipline. We have not had the will, we have not had the courage. I 
see it eroding as we amend this bill over and over to add spending, and 
we do it from savings from the years in which we would need to exercise 
restraint in order to balance the budget by the year 2002.
  Money was and is the source of Government's basic power. The tale of 
history bears out this truth undeniably. The Magna Carta prescribed 
that the king could not impose taxes except through the consent of the 
Great Council. Charles I was executed because he tried to govern 
without seeking the consent of Parliament in spending public money. Let 
us not forget that the American Revolution itself was rooted in the 
relationship between taxation and representation. Very frankly, the 
taxes we are spending now are the taxes of the next generation, and 
they are not represented in this Chamber.
  Congress today does not have to vote to raise more revenue in order 
to spend more money. Unfortunately, our legislature takes the debtor's 
path of spend and beg, spend and plead, spend and borrow, and borrow 
against the future of the young people of America. Our current system 
of government lets the Government spend on credit and sign the next 
generation's name to the dotted line. When their credit card becomes 
due, it is the American people who are confronted with the dilemma. 
They can either send more money to Washington to pay the bill or 
default on the debt incurred in their name.
  When the American people expressed the belief that Government is out 
of control, as they did in the November election of 1994, they indeed 
were correct. For too long we have been out of control. This body has 
assembled to satisfy the appetites of narrow interests at the public's 
expense. Protracted deficit spending empowers the central Government 
with the means to undermine our basic liberties. The American people 
are understandably fed up with the Congress that spends the yet 
unearned wages of the next generation.
  Mr. President, deficit spending is not only a threat to our own 
prosperity here and now, but it undermines and threatens substantially 
our children's future. It is the method by which Washington's imperial 
elite has circumvented the public, the law, and the Constitution. 
Deficit spending allows beltway barons to run this country without 
regard for the people.
  Whether it is pork projects or political payoffs, the Washington 
elite know how to play the game. The playing of the game must end. We 
must develop the will, the intensity, and the capacity to enact a 
balanced budget.
  Mr. President, as a freshman Senator, I may have not yet mastered the 
rules of the Senate budget process to the same extent as many of my 
learned colleagues, but as a former Governor who balanced budgets on a 
regular basis without raising taxes, I have more experience than most 
in this Chamber at achieving a balanced budget.
  Something is wrong with the system when an amendment which increases 
spending by $3.1 billion can be brought forward for a vote while an 
amendment proposed by the junior Senator from Minnesota, Senator Grams, 
to put the savings that we achieve into a deficit lockbox instead of 
spending it on other programs, is deemed to be a violation of the 
Budget Act. It is time for us to have our House in order. It is time 
for us to have an order which allows us to be orderly in this House.
  A good friend of mine says something which is undeniably true: Your 
system is perfectly designed to give you what you are getting. It may 
not be what you are wanting or intending, but the system is giving you 
what you are getting, and it is perfectly designed to do it or you 
would not be getting that result.
  What have we been getting? Instead of discipline, we have been 
getting debt; instead of a restrained Government, we have been getting 
an intrusive Government. These are not outcomes that are lauded by 
anyone. We all know that these are outcomes which threaten not only our 
own existence, but they threaten the next generation's ability free 
people. If we do not like the outcome, if we do not like what we are 
getting from the system, it is time to change the system.
  I think it is time for us to consider the kind of remedy which has 
been brought forward by the Senator from Minnesota and the Senator from 
Arizona, together, in the lockbox provision. If we do not like what we 
are getting--debt--and we need and want discipline, we should change 
our structure in favor of discipline, rather than a

[[Page S2235]]

structure which favors debt and is prejudiced toward debt, being 
institutionalized and solidified over and over again.
  Mr. President, I thank you for allowing me the opportunity to speak. 
I want to say that because I believe this omnibus appropriations bill 
which is now before the Senate will impair our ability to reach a 
balanced budget in the year 2002, I intend to vote against it. I intend 
to vote against it because I want to vote in favor of the next 
generation and their capacity to allocate their own resources. I want 
to vote in favor of discipline and against debt. I want us to have not 
only the ability to put our House in order, I would like to have us 
enjoy the structure which would require us to keep our House in order.
  I hope that other Members of this body will similarly review the 
evidence as I have and come to a similar conclusion; a conclusion that 
it is not time for us to additionally burden the next generation, but 
to exercise the kind of restraint and discipline which will provide for 
them investment and opportunity, rather than debt.
  I thank the Chair.

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