[Congressional Record Volume 142, Number 37 (Monday, March 18, 1996)]
[Senate]
[Pages S2235-S2240]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BALANCED BUDGET DOWNPAYMENT ACT, II
The Senate continued with consideration of the bill.
Mr. HATFIELD. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The pending question is amendment No. 3533.
Mr. HATFIELD. Mr. President, I ask unanimous consent to temporarily
lay aside the pending amendment in order to offer an amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3551 to Amendment No. 3466
(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. HATFIELD. Mr. President, I send to the desk an amendment on
behalf of Senator Burns and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Oregon [Mr. Hatfield], for Mr. Burns,
proposes an amendment numbered 3551 to amendment No. 3466.
The PRESIDING OFFICER. Mr. President, I ask unanimous consent that
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place, insert:
TITLE IX--RESTRUCTURING OF THE CIRCUITS OF THE UNITED STATES COURTS OF
APPEALS
Subtitle A--Ninth Circuit Court of Appeals Reorganization
SEC. 901. SHORT TITLE.
This subtitle may be cited as the ``Ninth Circuit Court of
Appeals Reorganization Act of 1996''.
SEC. 902. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter before the table, by striking out
``thirteen'' and inserting in lieu thereof ``fourteen'';
(2) in the table, by striking out the item relating to the
ninth circuit and inserting in lieu thereof the following new
item:
California, Hawaii, Guam, Northern Mariana Islands.'';.................
and
(3) between the last 2 items of the table, by inserting the
following new item:
Alaska, Arizona, Idaho, Montana, Nevada, Oregon, Washington.''.........
SEC. 903. NUMBER OF CIRCUIT JUDGES.
The table in section 44(a) of title 28, United States Code,
is amended--
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
``Ninth.......................................................15'';....
and
(2) by inserting between the last 2 items at the end
thereof the following new item:
``Twelfth.....................................................13''.....
SEC. 904. PLACES OF CIRCUIT COURT.
The table in section 48 of title 28, United States Code, is
amended--
[[Page S2236]]
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
San Francisco, Los Angeles.'';.........................................
and
(2) by inserting between the last 2 items at the end
thereof the following new item:
Portland, Seattle, Phoenix.''..........................................
SEC. 905. ASSIGNMENT OF CIRCUIT JUDGES AND CLERK OF THE
COURT.
(a) Circuit Judges.--(1) Subject to paragraph (2), each
circuit judge in regular active service of the former ninth
circuit whose official duty station on March 1, 1996--
(A) was in California, Hawaii, Guam, or the Northern
Mariana Islands is assigned as a circuit judge of the new
ninth circuit; and
(B) was in Alaska, Arizona, Idaho, Montana, Nevada, Oregon,
or Washington is assigned as a circuit judge of the twelfth
circuit.
(2)(A) No more than 2 circuit judges in each of the new
ninth circuit and the twelfth circuit as assigned under
paragraph (1), may elect to be assigned to a circuit other
than the circuit so assigned.
(B) An election under this paragraph--
(i) may be only for assignment to the new ninth circuit or
the twelfth circuit; and
(ii) shall be made on the basis of seniority.
(C)(i) If the elections of circuit judges under
subparagraph (A) result in a greater number of judges for a
circuit than is provided under the amendments made under
section 903, the number of vacancies described under clause
(ii) in the office of circuit judge for such circuit shall
not be filled.
(ii) The number of vacancies referred to under clause (i)
are the number of vacancies that--
(I) first occur after the date on which such elections
become effective; and
(II) are necessary for the number of judges in such circuit
to conform with the amendments made under section 903.
(D) The judicial council of the former ninth circuit shall
administer this paragraph.
(3) If no election is made by a circuit judge under
paragraph (2), and as a result of assignments under paragraph
(1) the number of judges assigned to a circuit is not in
conformity with the amendments made under section 903, such
conformity shall be achieved by not filling the number of
vacancies in the office of circuit judge for such circuit
that--
(A) first occur after the effective date of this subtitle;
and
(B) are necessary for the number of judges in such circuit
to conform with the amendments made under section 903.
(b) Clerk of the Court.--The Clerk of the Court for the
Twelfth Circuit United States Court of Appeals shall be
located in Phoenix, Arizona.
SEC. 906. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.
Each judge who is a senior judge of the former ninth
circuit on the day before the effective date of this subtitle
may elect to be assigned to the new ninth circuit or to the
twelfth circuit and shall notify the Director of the
Administrative Office of the United States Courts of such
election.
SEC. 907. SENIORITY OF JUDGES.
The seniority of each judge--
(1) who is assigned under section 905 of this subtitle; or
(2) who elects to be assigned under section 906 of this
subtitle;
shall run from the date of commission of such judge as a
judge of the former ninth circuit.
SEC. 908. APPLICATION TO CASES.
The provisions of the following paragraphs of this section
apply to any case in which, on the day before the effective
date of this subtitle, an appeal or other proceeding has been
filed with the former ninth circuit:
(1) If the matter has been submitted for decision, further
proceedings in respect of the matter shall be had in the same
manner and with the same effect as if this subtitle had not
been enacted.
(2) If the matter has not been submitted for decision, the
appeal or proceeding, together with the original papers,
printed records, and record entries duly certified, shall, by
appropriate orders, be transferred to the court to which it
would have gone had this subtitle been in full force and
effect at the time such appeal was taken or other proceeding
commenced, and further proceedings in respect of the case
shall be had in the same manner and with the same effect as
if the appeal or other proceeding had been filed in such
court.
(3) A petition for rehearing or a petition for rehearing en
banc in a matter decided before the effective date of this
subtitle, or submitted before the effective date of this
subtitle and decided on or after the effective date as
provided in paragraph (1) of this section, shall be treated
in the same manner and with the same effect as though this
subtitle had not been enacted. If a petition for rehearing en
banc is granted, the matter shall be reheard by a court
comprised as though this subtitle had not been enacted.
SEC. 909. DEFINITIONS.
For purposes of this subtitle, the term--
(1) ``former ninth circuit'' means the ninth judicial
circuit of the United States as in existence on the day
before the effective date of this subtitle;
(2) ``new ninth circuit'' means the ninth judicial circuit
of the United States established by the amendment made by
section 902(2) of this subtitle; and
(3) ``twelfth circuit'' means the twelfth judicial circuit
of the United States established by the amendment made by
section 902(3) of this subtitle.
SEC. 910. ADMINISTRATION.
The court of appeals for the ninth circuit as constituted
on the day before the effective date of this subtitle may
take such administrative action as may be required to carry
out this subtitle. Such court shall cease to exist for
administrative purposes on July 1, 1998.
SEC. 911. APPROPRIATIONS.
Of the $2,433,141,000 appropriated under the subheading
``salaries and expenses'' under the heading ``Courts of
Appeals, District Courts, and Other Judicial Services'' under
the heading ``TITLE III--THE JUDICIARY'' of this Act,
$3,000,000 shall remain available until expended for the
Twelfth Circuit Court of Appeals.
SEC. 912. EFFECTIVE DATE.
This subtitle and the amendments made by this subtitle
shall take effect 60 days after the date of the enactment of
this subtitle.
Mr. REID. Mr. President, parliamentary inquiry.
Mr. BURNS. Mr. President, I ask unanimous consent----
Mr. REID. Parliamentary inquiry.
The PRESIDING OFFICER. Does the Senator from Montana yield for a
parliamentary inquiry?
Amendment No. 3552 to Amendment No. 3551
(Purpose: To establish a Commission on restructuring the circuits of
the United States Courts of Appeals)
Mr. BURNS. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Montana [Mr. Burns] proposes an amendment
numbered 3552 to amendment No. 3551.
Mr. BURNS. Mr. President, I ask unanimous consent the reading of the
amendment be dispensed with.
Mr. REID. Mr. President, I object.
The PRESIDING OFFICER. The objection is heard. The clerk will read
the amendment.
The assistant legislative clerk continued with the reading of the
amendment.
Mr. REID. Mr. President, I join with my friend from Montana and ask
the formal reading be dispensed with.
The PRESIDING OFFICER. The only request in order is to discontinue
the reading of the amendment.
Mr. BURNS. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment add the following:
Subtitle B--Commission on Restructuring the Circuits of the United
States Courts of Appeals
SEC. 921. ESTABLISHMENT AND FUNCTIONS OF COMMISSION.
(a) Establishment.--There is established a Commission on
restructuring for the circuits of the United States Courts of
Appeals which shall be known as the ``Heflin Commission''
(hereinafter referred to as the ``Commission'').
(b) Functions.--The function of the Commission shall be
to--
(1) study the restructuring of the circuits of the United
States Courts of Appeals; and
(2) report to the President and the Congress on its
findings.
SEC. 922. MEMBERSHIP.
(a) Composition.--The Commission shall be composed of
twelve members appointed as follows:
(1) Three members appointed by the President of the United
States.
(2) Three members appointed by the President pro tempore of
the Senate.
(3) Three members appointed by the Speaker of the House of
Representatives.
(4) Three members appointed by the Chief Justice of the
United States.
(b) Chair.--The Commission shall elect a Chair and Vice
Chair from among its members.
(c) Quorum.--Seven members of the Commission shall
constitute a quorum, but three may conduct hearings.
(d) Period of Appointment; Vacancies.--Members shall be
appointed for the life of the Commission. Any vacancy in the
Commission shall not affect its powers, but shall be filled
in the same manner as the original appointment.
(e) Initial Meeting.--No later than 30 days after the date
on which all members of the Commission have been appointed,
the Commission shall hold its first meeting.
(f) Meetings.--The Commission shall meet at the call of the
Chairman.
SEC. 923. POWERS OF THE COMMISSION.
(a) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out the purposes of this subtitle.
[[Page S2237]]
(b) Information From Federal Agencies.--The Commission may
secure directly from any Federal department or agency such
information as the Commission considers necessary to carry
out the provisions of this subtitle. Upon request of the
Chairman of the Commission, the head of such department or
agency shall furnish such information to the Commission.
(c) Postal Services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(d) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
SEC 924. COMMISSION PERSONNEL MATTERS.
(a) Compensation of Members.--Each member of the Commission
who is not an officer or employee of the Federal Government
shall be compensated at a rate equal to the daily equivalent
of the annual rate of basic pay prescribed for level IV of
the Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which such member is engaged in the performance of the duties
of the Commission. All members of the Commission who are
officers or employees of the United States shall serve
without compensation in addition to that received for the
services as officers or employees of the United States.
(b) Travel Expenses.--The members of the Commission shall
be allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business in the performance of services for the Commission.
(c) Staff.--
(1) In general.--The Chairman of the Commission may,
without regard to the civil service laws and regulations,
appoint and terminate an executive director and such other
additional personnel as may be necessary to enable the
Commission to perform its duties. The employment of an
executive director shall be subject to confirmation by the
Commission.
(2) Compensation.--The Chairman of the Commission may fix
the compensation of the executive director and other
personnel without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of title 5, United States Code,
relating to classification of positions and General Schedule
pay rates, except that the rate of pay of the executive
director and other personnel may not exceed the rate payable
for level V of the Executive Schedule under section 5316 of
such title.
(d) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(e) Procurement of Temporary and Intermittent Services.--
The Chairman of the Commission may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals which do not
exceed the daily equivalent of the annual rate of basic pay
prescribed for level V of the Executive Schedule under
section 5316 of such title.
SEC 925. TERMINATION OF THE COMMISSION.
The Commission shall terminate 90 days after the date on
which the Commission submits its final report.
SEC 926. REPORT.
No later than 2 years after the date of the enactment of
this subtitle, the Commission shall submit a report to the
President and the Congress which shall contain a detailed
statement of the findings and conclusions of the Commission,
together with its recommendations for such legislation and
administrative actions as it considers appropriate.
SEC 927. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated, beginning in
fiscal year 1997, such sums as necessary to carry out the
purposes of this subtitle.
Mr. BURNS. Mr. President, we have already debated the merits of the
second-degree amendment, which establishes the commission to study the
reorganization or the probable reorganization of the courts of appeals
across this Nation. But the real emphasis should be placed upon the
first-degree amendment, which actually has something to do with the
restructuring of the ninth judicial circuit. We have already debated
the issue. Those who are opposed to the issue made their points, and
made them very well. But I think the most compelling reasons why we
should do this is that it is just a big, big circuit.
Under this proposal--that is, the first degree--to split the ninth
circuit, California, Hawaii, Guam, and the Northern Mariana Islands
would form one 15-judge unit. That would be the ninth circuit. Alaska,
Arizona, Idaho, Montana, Nevada, Oregon, and Washington would form the
new twelfth circuit of 13 judges. The caseload would be split, and the
heavy end of it would still be with the California, Hawaii, or the old
ninth. They would still, under today's procedures, have 60 percent of
the caseload, while 40 percent would go into the new twelfth circuit.
The reasons are as compelling for those States that would remain in
the ninth after the newly formed twelfth went into full operation.
The circuit is just too big--9 States, 1.4 million square miles, 45
million people. It is, by far, the largest circuit of all of the 11. By
comparison, the sixth serves less than 29 million people, and every
other circuit serves less than 24 million people. So, basically, this
is the right thing to do.
The commission, too, should move forward and get their work done, as
far as the rest of the country. We have had studies and we have had
recommendations, and now it is time to start the wheels in motion.
Mr. President, we have already debated this. I have already made the
points. I think they are very convincing on why we should do it.
I yield the floor.
Mr. REID. Mr. President, I make a point of order that the first-
degree amendment is not relevant and should not be in order in the
unanimous-consent agreement that is now on the Senate's calendar.
The PRESIDING OFFICER. The point of order is well taken.
Mr. BURNS. Mr. President, I appeal the ruling of the Chair and call
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Under the order, the vote will be put off
until tomorrow.
Mr. REID. Mr. President, we have debated this issue at some length
and because of a parliamentary situation that occurred earlier, the
vote was not taken.
Mr. President, we are on very dangerous ground procedurally here. I
say to my colleagues, the reason we enter into unanimous-consent
agreements--we, the minority--is so that we can proceed with business
in the Senate. Virtually everything that is done in the U.S. Senate is
done by a unanimous-consent agreement.
This very important legislation that we are going to complete
tomorrow, with its many amendments, is going to be completed by virtue
of the fact that a unanimous-consent agreement was arrived at between
the minority and majority.
Always in unanimous-consent agreements--I should say with rare
exception--there are amendments that are saved. The Senator from
Minnesota, or the Senator from Montana, or the Senator from Rhode
Island, or the Senator from Nevada may feel that it is a complicated
issue, and we might want to reserve an amendment. In order to get the
unanimous-consent agreement adopted, we save what is called a relevant
amendment. That says it all--a relevant amendment.
The Parliamentarian of the U.S. Senate has ruled in this instance
that the amendment offered by my friend from Montana is not relevant.
Therefore, it would set an extremely dangerous precedent if the Senate
would overrule the Parliamentarian of the Senate. The Parliamentarian
has a tremendous obligation to be fair and impartial and to rule by
virtue of the Senate precedence and traditions in the Senate. I believe
the Parliamentarian has clearly ruled in the right manner in this
instance.
Now, the reason I lay this foundation is that, if tomorrow, by virtue
of partisan vote, the Parliamentarian is overruled, we would never,
ever--the minority would never enter into another unanimous-consent
request. Why? Because we would be put on notice that any unanimous-
consent agreement would not be subject to relevancy. Why would we enter
into an agreement to that effect? Any amendment, no matter what the
subject, could be brought and be in order. I think that is wrong.
I advise my colleagues, both in the majority and in the minority--
especially the majority party--that they should vote to sustain the
Parliamentarian. Why? Because if we do not, it is going to be a long
time before there is another unanimous-consent agreement adopted
because we could not enter into one. How could we? It would mean that
no matter what we agreed to, it could be changed by a simple majority.
That is not the way it should be. We lose our rights under the
[[Page S2238]]
Senate to protect ourselves with a filibuster, where it would take 60
votes, or in a number of other parliamentary points that we reserve to
ourselves when there is not a unanimous-consent agreement that is
pending.
This amendment offered by my friend from Montana, which has been
ruled not relevant, would clearly be one of those measures. Here is a
matter that has had part of a day in a hearing, and we have had no
studies of the very complicated circuit since 1973. When that Hruska
Commission reported, they said the State of California should be cut in
the middle. This amendment maintains the State of California as an isle
unto itself. Everyone else that lives in the Western United States,
except the State of Hawaii, is thrown into the so-called twelfth
circuit. California is left alone. That is wrong.
So what I say, Mr. President, is that the majority is the majority,
and we well understand that. They have three more Senators than we
have. By virtue of that, we enter into unanimous-consent requests and
agreements all the time, recognizing that you will be fair and
impartial as it relates to relevancy, because, otherwise, there would
be no reason when a unanimous-consent agreement is entered into, as we
have here.
On H.R. 3019, the matter now before the Senate, we have here a number
of Senators who have reserved relevant amendments. That is what it
says, ``relevant.'' If it is not relevant, it has to fall. It would
certainly be wrong and set a very, very bad precedent, not only in this
Senate, but in future Senates, if somebody could come in and say, sure,
it is not relevant, but we are the majority and we will do whatever we
want.
It is wrong, by any connotation, to have the majority in effect ride
roughshod over the rules of this Senate.
Mr. President, I am part of the Senate leadership, and we meet every
Tuesday prior to our party conferences. We talk about what is going to
go on in the coming week, the best that we can. I know one of the
subjects of discussion tomorrow will be the terribly damaging precedent
that would be set if this relevancy point of order is overruled. I
think it will make for a very, very long congressional session, because
the Senate would not be what it is supposed to be.
It would mean that unanimous-consent requests, where the issue of
relevancy comes out, would mean absolutely nothing. Instead of having,
as we have in the calendar here, Senator Simon having a relevant
amendment, we would just say ``Senator Simon amendment.'' You know that
we would never get any unanimous-consent request if Senator McCain has
two relevant amendments, if it just said, ``Senator McCain amendment.''
We know when we enter into unanimous-consent requests that we can
expect there to be relevancy. And, if it is not relevant, the
Parliamentarian, the bipartisan person who has to be in this body, will
rule that it is not relevant. It is not only a protection for the
minority. It is also a protection for the majority.
I would guarantee with all of the amendments here that to allow this
unanimous-consent request to be offered--it would not have been
approved if some of the Democrats on this--Wellstone, Simon,
Lautenberg--just said, ``We want to offer these amendments,'' the
unanimous-consent request would never be approved. But that is where we
would be if this point of order is not upheld.
I suggest and recommend respectfully that this should be something
discussed in some detail rather than it being something that would be a
victory for a short period of time. It would be a terrible defeat for
the procedures in this body.
The merits of the amendment we discussed at great length today. There
has been discussion that has gone on for some period of time--a matter
of hours a day. The debate started around 3 o'clock. Here it is now
approaching 6 o'clock, and most of the debate this afternoon has been
related to this amendment.
So I think it is quite clear that to sustain the point of order is in
the best interest of the Senate. To overrule the point of order is not
in the best interests of the Senate nor this country because with this
election year approaching--not approaching, it is here--it is difficult
enough to get work done. It is difficult enough to get unanimous-
consent requests agreed to. I can tell you this does not mean there
will not be one agreed to someday or during the next 8 months. But they
will be few and far between. Because why would anyone want to enter
into a unanimous-consent request when it can be changed at the whim of
any Senator?
As I indicated, Mr. President, we have talked about the merits of
whether or not the ninth circuit should be split. And there are
arguments for and against why the amendment should be split. To show
how this amendment is headed in the wrong direction, what this
underlying legislation does is split the ninth circuit without a
hearing, without any commission, and then in the same breath says we
are going to go ahead and split the ninth circuit but we are also going
to order a commission that costs $3 million to study restructuring the
courts. This really seems somewhat unusual especially when the Federal
Government has just spent $100 million refurbishing and restructuring
the ninth circuit court building because of the earthquake that
occurred there. They did it keeping in mind the fact that the ninth
circuit administrative offices would be there.
We have another problem, of course--that this legislatively
gerrymandered new twelfth circuit starts in Alaska and goes to the
coast of Mexico with the headquarters being in Phoenix, AZ, even though
the major cities in the area, of course, are Portland and Seattle.
I respectfully say that appealing the point of order violates the
spirit of what we are trying to do here. By no stretch of the
imagination can you consider this relevant. And by no stretch of the
Parliamentarian's imagination could he rule it irrelevant. He has ruled
it not relevant, not once today but twice today. And now to even think
that the majority could come back and overrule the Parliamentarian
would leave a very bad taste in the mouths of many people.
I do not know how my colleague from California feels. But I think she
would agree with me there would never be for the remainder of this year
another unanimous-consent request that would be agreed to.
We need to study the circuit courts. Let us do so with hearings and
legislation--not through some kind of tricky parliamentary maneuver on
an appropriations bill.
I again state that the procedure before this body is the fact that we
are here today by virtue of a unanimous-consent request that allows us
to go forward with very important legislation. What is that
legislation? To fund five appropriations bills so we will not have to
have another Government shutdown. But it is clear to me that this
should not pass. It is not relevant. But if it does, it is just another
basis to cloud up this legislation. No wonder the American people are
wondering. ``What are you people doing back there? You spend $60
million in creating a new court because you do not like California? Do
you think California is too liberal, that California does not rule
right?'' This court is not California's court. It is as much Nevada's
court as it is California's. The Ninth Circuit Court of Appeals is not
California's. The headquarters of the ninth circuit is in San
Francisco. Most of the judges have been appointed by Republican
Presidents.
The problem is not the size of the ninth circuit. The problem is we
as legislators have not done enough to give the courts tools to move
cases.
As I talked about earlier today, in the Federal District of Nevada 40
percent of the cases are filed by prisoners. Why do we not do something
here to stop that nonsense? Is it important that we have Federal judges
deciding whether they should have chunky or smooth peanut butter? The
answer is no. But we as legislators have not been willing to step
forward and eliminate that. We do not want to stop prisoners from being
able to file lawsuits. We just want them to be able to file lawsuits in
a temperate, reasonable manner. We need to do something to speed up the
criminal appeals process. That would help free a lot of the court's
time. But what do the Federal circuit courts hear? They hear endless
appeals from criminals, especially those who have been convicted of
murder--appeal
[[Page S2239]]
after appeal after appeal. That is not the fault of the court because
it sits in San Francisco. They are obligated by law just as the other
courts that sit in Denver and wherever else they sit throughout the
United States--the various circuits.
I ask the Senate to confirm and affirm what the Parliamentarian has
done in this instance; that is, rule that this is not relevant. And in
so doing it will speed up the work of this Senate and this Congress. To
overrule the Parliamentarian would bring about chaos in this body.
People can say, ``Well, you know, the Senators from California and
Nevada they just feel this way. It is not important. We can overrule
them. It does not set a dangerous precedent.'' It sets a horrible
precedent.
I repeat. We simply will not be able to get anything done. Look how
hard it was to get this unanimous-consent agreement agreed to
initially. It took days. It took lots of different pieces to get this
unanimous consent agreement.
No. 9: ``Ordered that during the consideration of H.R. 3019, an act
making appropriations for fiscal year 1996 to make a further
downpayment toward a balanced budget, and for other purposes, the
following amendments be the only remaining first-degree amendments, and
that they be subject to the relevant second-degree amendments.'' Here
we go, listing all of the amendments, time that the floor staff, the
staff of the Senator from Oregon, and the staff of the Senator from
West Virginia worked to arrive at this--25 or 30 different amendments
were agreed to, all having to be relevant unless mentioned otherwise.
So I say, it is important that the position of the Parliamentarian of
the Senate, where he said this amendment was not relevant, be upheld.
To do otherwise would be to state that unanimous-consent agreements
will no longer be part of the Senate's business.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I rise in support of the concerns of
the Senator from Nevada and to reiterate those concerns. Obviously,
this is an issue which is of predominant interest to my State, a State
of 32 million people. In effect, it creates a very unbalanced
situation. We have tried to make some of those arguments in the
Chamber.
Even more importantly than that, I think it will destroy, certainly
for the rest of this session, what has been a measure of consensus on
which this body essentially predicates its movement.
Let me tell you why I believe that. As Senator Reid pointed out, the
notation in the Executive Calendar is that, for everybody who submitted
an amendment on the basis that it is relevant to the bill before it--we
take their word for it. We take their word for it, that they are not
trying to play a trick, they are not trying to put something that is
not relevant before this body.
In fact, there is a legitimate vehicle for this bill. Senator Burns'
position prevailed in the Judiciary Committee. There is a bill which
was passed out of the Judiciary Committee which is the proper vehicle
on which to discuss this. So I think the claim that to get action we
have to breach what is the word of a Member--a Member who has agreed
that an amendment is going to be relevant--is a bad claim. To proceed
with that amendment when it is found by the Chair on two occasions not
to be relevant sets a dangerous precedent. To persist with that
amendment is something that in toto destroys the opportunity for
consensus in this body.
I would say there would be no reason for anyone on this side, after
being treated in this manner, to agree to a unanimous-consent agreement
for the remainder of this session. We would be very foolish to do so,
because clearly the precedent is being set that the rights of the
minority are being abrogated right here and now, that it does not
really matter what the finding of the Chair is with respect to
relevancy, we are going to be overturned.
I find this very difficult, particularly when there is a legitimate
vehicle on which to discuss this issue. The Senator from Montana knows
that. Every member of the Judiciary Committee knows that. The issue was
discussed in committee. A bill was passed out of the committee. The
chairman of the committee and the majority leader of the Senate can
certainly schedule that bill on this floor. That is, then, an
appropriate vehicle on which to debate this.
So I am very puzzled as to why this has to be done in a precipitous
manner, at a time when most of the Members are not here, cannot hear
the arguments, and the results of which are going to cast a precedent
on the legal system of this Nation which is very large indeed, and
shatter consensus making for this body--the kind of honesty, the kind
of commitment that is necessary to achieve a unanimous-consent
agreement.
There is no incentive, certainly, for me to ever agree to a
unanimous-consent agreement for the rest of this session if something
as important to the State of California as this is going to be dealt
with in this manner. Both Senator Reid and I have met with Senator
Burns. We have indicated our agreement to proceed with a study. We have
indicated that we would shorten the time of the study from the 2 years
proposed.
I have an amendment for a study which is somewhat broader than
Senator Burns' amendment. We have agreed to cut the time in half. We
have reached out in trying to solve this in the tradition of
the Senate, which I always thought involved a certain conviviality. But
now to find out that there is just simply going to be a partisan vote,
with no chance to debate it when all the Members are here, I think is a
big mistake.
We have tried earlier, Mr. President, to indicate the deficiencies of
the amendment. We have argued about its cost. This is cost that does
not have to be incurred. A building was rehabilitated in San Francisco
with 35 percent more space provided and $100 million spent in
earthquake recovery funds to accommodate expansion and new judges for
the ninth circuit; $23 to $59 million will need to be spent for new
courthouse expansion and construction the Burns bill would require. I
indicated earlier that at least $3 million of that is entirely
duplicative. It is a duplication. At a time when we are scrambling for
every dollar, we are going to duplicate staff for a political proposal.
I pointed out that this is an unfair division. California, Hawaii,
Guam, and the North Marianas would have 62 percent of the caseload, and
Alaska, Arizona, Nevada, Washington, Oregon, Idaho, and Montana would
have only 38 percent of the caseload. The way the allocation of the
judges is structured in this, it is an unfair, unbalanced allocation of
judges. California, Guam, and the Marianas would not get 62 percent of
the judges to handle 62 percent of the caseload. They would get a
greatly reduced amount.
It is clearly a political proposal. To ram it through on an
irrelevant amendment sticks in the craw. So it is unfair at best. It is
a disproportionate allocation of cases and of judges.
Third, there has never been a hearing on this proposal. This proposal
would restructure--with no public hearing--the largest circuit in the
Nation that hears about 8,000 cases a year. There was a hearing on a
former proposal by Senator Gorton. We understood that proposal. Then
suddenly a new proposal was made in the Judiciary Committee, and there
was no public hearing.
Fourth, we have argued that there is a need for a study. The last
comprehensive study was done in 1973, by the Hruska Commission. This
was before the ninth circuit instituted many changes in its methodology
for doing business and speeding up caseload. I believe, if you really
dispassionately look at the facts, you will see that the ninth circuit
is processing cases just as fast as the dominant majority of other
circuits, certainly faster than the fifth circuit that was split in
1980 based on the Hruska Commission's recommendations.
So, we say take 2 years, have 12 members appointed in a dispassionate
way by three different entities, and fund it with $500,000, to look at
all the circuits, look at the workload across this Nation, and make
some decision.
I would like, if I might, to read from the minority report that was
filed by Senator Kennedy and myself in the Judiciary Committee on a
couple of points. One of these points that I would like to make is the
impact of having
[[Page S2240]]
one State predominate in the proposed new ninth circuit.
The majority acknowledged that California will undoubtedly
predominate in the new ninth circuit. But the majority also
insisted that this situation is not without precedent in the
court of appeals. The fact is that California would
predominate in the new Ninth Circuit Court of Appeals to a
degree that is without precedent or parallel. According to
the majority's own figures on the other circuits dominated by
one State, New York contributes 87 percent of the caseload of
the second circuit; Texas contributes only 69 percent of the
fifth circuit's caseload. In the proposed new ninth circuit,
however, 94 percent of the caseload would come from
California.
That is an inordinate amount. It has never been done before in the
history of this Nation. I would like to read one other section: ``To
divide circuits in order to accommodate regional interests''--which is
clearly what we are doing here. Let us not pretend. Every press release
indicates that this is the reason for the split--regional interests,
economic interests, criminal justice interests, the fact that a group
of people do not like some decisions. I think that is true for
everybody, for every appellate court decision that is made, there are
some people who do not like the decision.
Former Chief Justice Warren Burger, rejected such a premise for
dividing circuits as completely unacceptable, in testimony about an
earlier version of this legislation. Chief Justice Burger stated:
I find it is a very offensive statement to be made, that a
U.S. judge, having taken the oath of office, is going to be
biased because of the economic conditions of his own
jurisdiction.
Judge Charles Wiggins, Reagan appointee and former Republican Member
of Congress, recently wrote a letter criticizing the political
motivations behind the current proposal:
The majority report . . . 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 from 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.
So, we know that with no public hearing on this proposal, we have an
unprecedented, unparalleled proposal to split a court, giving the big
weight to one State in that court, over 90 percent, and to do a split
in a way that the judges are not fairly allocated. California, Hawaii,
Guam, and the Northern Marianas Islands, with 62 percent of the
caseload, will have far below the number of judges required to handle
that, and seven States with 38 percent of the caseload would have a
better allocation of judges.
This is a very serious proposal and it is being done in a way that is
of very deep concern to this Senator: In an amendment found twice to be
unrelated to the legislation contemplated by this body at that time--in
a way that most certainly is going to create a problem in terms of the
people of this side ever agreeing to a unanimous consent-request again.
So, Mr. President and Members of the Senate, I hope there would be
due consideration given to these arguments. I think this is a very
serious situation indeed, and I am hopeful that cooler heads will
prevail.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank my colleague from Nevada for his
indulgence while a make a brief statement.
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