Congressional Record, Volume 142 Issue 37 (Monday, March 18, 1996)

[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

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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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