[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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