[Congressional Record Volume 142, Number 121 (Friday, September 6, 1996)]
[Senate]
[Pages S10018-S10019]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself and Mr. Kyl):
  S. 2058. A bill to amend chapter 3 of title 28, United States Code, 
to provide for 11 circuit judges on the U.S. Court of Appeals for the 
District of Columbia Circuit; to the Committee on the Judiciary.


               united states court of appeals legislation

 Mr. GRASSLEY. Mr. President, I introduce legislation which 
will abolish the 12th seat on the U.S. Court of Appeals for the D.C. 
circuit. This is the right thing to do. I have studied the D.C. circuit 
in depth for over a year now, and I can confidently conclude that the 
D.C. circuit does not need 12 judges.
  Last year, I chaired a hearing before the Judiciary Subcommittee on 
administrative oversight and the courts. At the hearing, Judge Lawrence 
Silberman--who sits on that court--testified that 12 judges were just 
too many. According to Judge Silberman, when the D.C. circuit has 12 
judges, there isn't enough work to go around. In fact, the main 
courtroom in the D.C. courthouse does not fit 12 judges. When there are 
12 judges, special arrangements have to be made when the court sits in 
a en banc capacity.
  Judge Silberman's testimony is supported by the steady decrease in 
new cases filed in the D.C. circuit. Since 1985, the number of new case 
filings in the D.C. circuit has declined precipitously. Even those who 
support filling the 12th seat admit this. And the D.C. circuit is only 
entitled to a maximum of 10 judges under the judicial conference's 
formula for determining how many judges should be allotted to each 
court.
  So the case against filling the 12th seat is compelling. Now that 
Judge Buckley on the D.C. circuit has taken senior status, we, in 
Congress, have a unique opportunity. Let's abolish the 12th seat.
  Abolishing the 12th seat is completely nonpartisan. If the 12th seat 
is abolished, no President--Democrat or Republican--could fill it. As 
long as the 12th seat is open, the temptation to nominate someone to 
fill the seat will be overwhelming--even with the outrageous cost to 
the American taxpayer.
  According to the Federal judges themselves, the total cost to the 
American taxpayer for a single article 3 judge is about $18 million. 
That's not chump change. That's something to look at. That's real money 
we can save.
  Here in Congress, we have downsized committees and eliminated 
entirely important support agencies like the Office of Technology 
Assessment. The same is true of the executive branch. Right now, 
Congress is considering the elimination of whole Cabinet posts. It is 
against this backdrop that, as chairman of the subcommittee with 
jurisdiction over the courts, I have been looking for ways to make sure 
that precious taxpayer dollars are spent wisely. Eliminating the 12th 
seat is an important step in the right direction.
  While some may incorrectly question Congress' authority to look into 
these matters, this legislation is, in fact, on firm constitutional 
ground. Article 3 of the Constitution gives Congress broad authority 
over the lower Federal courts. Also, the Constitution gives Congress 
the power of the purse.
  Throughout my career, I have taken this responsibility very 
seriously. I, too, am a taxpayer, and I want to make sure that taxpayer 
funds aren't wasted.
  Some may say that Congress should let judges decide how many 
judgeships should exist and how they should be allocated. I agree that 
we should defer to

[[Page S10019]]

the Judicial Conference to some degree. However, there have been 
numerous occasions in the past where Congress has added judgeships 
without the approval of the Judicial Conference. In 1990, the last time 
we created judgeships, the Congress created judgeships in Delaware, the 
District of Columbia, and Washington State without the approval of the 
Judicial Conference. In 1984, when the 12th judgeship at issue in this 
hearing was created--Congress created 10 judgeships without the prior 
approval of the Judicial Conference. It is clear that if Congress can 
create judgeships without judicial approval, then Congress can leave 
existing judgeships vacant or abolish judgeships without judicial 
approval. It would be illogical for the Constitution to give Congress 
broad authority over the lower Federal courts and yet constrain 
Congress from acting unless the lower Federal courts first gave prior 
approval.
  In conclusion, Mr. President, I ask my colleagues to support this 
legislation and pass it quickly. I hope that the President will support 
and sign this bill.

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