[Congressional Record Volume 143, Number 10 (Thursday, January 30, 1997)]
[Senate]
[Pages S883-S884]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself and Mr. Reid):
  S. 248. A bill to establish a Commission on Structural Alternatives 
for the Federal Courts of Appeals; to the Committee on the Judiciary.


     THE STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS 
                  COMMISSION ESTABLISHMENT ACT OF 1997

  Mrs. FEINSTEIN. Mr. President, today, with my distinguished 
colleague, Harry Reid, I am introducing S. 248, a bill to establish a 
Commission on Structural Alternatives for the Federal Courts of 
Appeals.
  The Commission proposal emerged last year during a debate over a 
controversial bill to divide the Ninth Circuit Court of Appeals. As a 
result of that discussion, it became clear to me and the majority of my 
colleagues that there was no consensus on how best to resolve the 
problem of caseload growth in the U.S. courts. The idea of a study 
commission gained broad support and has independent merit.
  Legislation to form a study commission was approved twice by the 
Senate in the 104th Congress: in March 1996 as a stand-alone bill, and 
later in the session as part of the Senate amendments to H.R. 3610, the 
Omnibus Consolidated Appropriations Act of 1997. Although the Senate 
amendment was not included in the final version of H.R. 3610 signed by 
the President on September 23, 1996, the initial funding for the 
Commission was appropriated therein. The authorizing legislation 
deserves a speedy enactment by the 105th Congress.
  The Commission legislation we are offering today is evenhanded, fair, 
and genuinely bipartisan. It will consist of two members appointed by 
the Chief Justice of the United States, two members appointed by the 
President, two members appointed by the majority leader of the Senate, 
two members appointed by the minority leader of the Senate, two members 
appointed by the Speaker of the House of Representatives, and two 
members appointed by the minority leader of the House of 
Representatives.
  The object is to have a balanced group of individuals who will 
examine the issues fairly and give full consideration of all relevant 
perspectives. With a balanced membership, we can be confident that the 
Commission's recommendations will be given due weight by all three 
branches of the National Government.


                  BROAD SUPPORT FOR A STUDY COMMISSION

  The proposal for a study commission on Federal appellate structure 
has won enthusiastic support from prominent judges and scholars.
  To underscore the need for this legislation, as well as its 
importance, I can do no better than quote from Judge Diarmuid F. 
O'Scannlain, who has served with distinction on the Ninth Circuit since 
his appointment by President Reagan in 1986. In a recent symposium in 
the Montana Law Review, Judge O'Scannlain wrote in favor of the study 
commission bill offered last year:

       As one member of the Court of Appeals most affected, I view 
     [a study commission] as a far superior alternative to [a bill 
     that] would have immediatedly divided the Ninth Circuit. The 
     [study commission] bill also provides an historic opportunity 
     to develop a comprehensive blueprint for the structure of the 
     federal courts of appeals generally, and the Ninth Circuit in 
     particular, for the 21st Century. No comprehensive review of 
     the structure of the federal courts has been undertaken since 
     the study chaired by . . . Senator Roman Hruska of Nebraska 
     in the 1970s (the ``Hruska Commission''), and in my view such 
     a review is most timely.

  Chief Judge Proctor Hug., Jr. of the Ninth Circuit, also writing in 
the Montana Law Review symposium, observed:

       Based upon its prior experience with the academic community 
     and the benefits obtained from their insightful 
     recommendations, the Ninth Circuit strongly supported Senator 
     Dianne Feinstein's proposed legislation to establish a study 
     commission . . . to take a full and fair look at the entire 
     federal appellate system and to make recommendations to the 
     Congress for how and where to make reforms.

  Another participant in the symposium was Prof. Arthur D. Hellman of 
the University of Pittsburgh School of Law, a leading national 
authority on the Federal appellate courts. Professor Hellman wrote:

       . . . 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.

  In a similar vein, Prof. Carl Tobias of the University of Montana Law 
School, a respected scholar of Federal procedure, has written in the 
National Law Journal:

       A preferable route would be to appoint a national 
     commission to seek solutions to the problems of the appellate 
     system as it is currently constituted, and ways of handling 
     its increasing dockets with efficiency. Careful study should 
     provide sufficient information to make a fully informed 
     decision . . . The time is now ripe for Congress to authorize 
     such a study, rather than engage in piecemeal reform.


                             THE COMMISSION

  Our bill directs the Commission to study ``the present division of 
the United States into the several judicial circuits.'' Next, the 
statute calls for a study of ``the structure and alignment of the 
Federal Court of Appeals system, with particular reference to the Ninth 
Circuit.'' Finally, the Commission must ``report to the President and 
the Congress its recommendations for such

[[Page S884]]

changes in circuit boundaries or structure as may be appropriate for 
the expeditious and effective disposition of the caseload of the 
Federal Courts of Appeal, consistent with fundamental concepts of 
fairness and due process.''
  The language of the statute leaves no doubt that one task of the 
Commission would be to undertake a careful, objective analysis of the 
arguments raised by proposals to divide the ninth circuit. However, it 
is equally clear that the Commission's mandate is not limited to the 
ninth circuit or to the delineation of circuit boundaries generally. 
This reflects the fact that circuit alignment is one of a set of 
interrelated structural arrangements that govern the operation of the 
courts of appeal.
  To ensure expeditious consideration of the issues at all levels, S. 
248, contains three important deadlines. Section 2(b) requires that 
appointment of members be made within 60 days of enactment. Section 6 
requires the Commission to submit its report within 2 years of the date 
on which its seventh member is appointed. Section 7 requires that the 
Senate Judiciary Committee act on the report no later than 60 days 
after submission.
  There are three reasons why the Commission should be given 2 years in 
which to carry out its work. First, before the Commission can formulate 
its recommendations, it will have to secure informed, objective answers 
to specific and difficult questions. These questions cannot be answered 
merely through contemplation, or even by consultation with experts. 
They will require research, and research takes time.
  Second, an important part of Commission process is obtaining public 
input. In particular, at an appropriate stage in its deliberations, the 
Commission should issue a draft report for public comment. Responses 
from constituencies should be taken into account in formulating the 
final recommendations.
  Third, the 2-year timespan is supported by the experience of other 
commissions, such as the Hruska Commission of 1973 and Bankruptcy 
Commission of 1994. It may be argued that if, as with the Hruska 
Commission, the initial deadline proves unworkable, Congress can always 
extend it. But that is the wrong lesson to be drawn from the experience 
of the Hruska Commission. It is far more efficient to provide initially 
for the 2-year lifespan than to put everyone to the time and effort of 
seeking an extension later.
  Our proposed Commission will be fair, and it will have sufficient 
time to conduct a credible study. The Commission will help determine 
the proper course for the future of our national judiciary, and 
therefore I urge my distinguished colleagues to support S. 248.
  Mr. REID. Mr. President, the issue of whether to divide the Ninth 
Circuit Court of Appeals is one in which I have been very involved with 
since the initial proposal. I made clear my opposition to the proposed 
split last year, and I am still convinced that such an unnecessary and 
costly venture is unwarranted. However, I have agreed to the 
establishment of a commission to study the judicial circuits, the 
structure and alignment of the Federal court of appeals system, and to 
report to the President and the Congress its recommendations for such 
changes in the circuit boundaries or structure as may be appropriate 
for the expeditious and effective disposition of the caseload of the 
Federal courts of appeal.
  Today, Senator Feinstein and I are introducing a bill to create this 
commission. The commission makeup is fair, evenhanded, and bipartisan. 
It will consist of two members appointed by the President, two members 
appointed by the Chief Justice of the United States, two members 
appointed by the majority leader of the Senate, two members appointed 
by the minority leader of the Senate, two members appointed by the 
Speaker of the House of Representatives, and two members appointed by 
the minority leader of the House of Representatives. I think this is 
the most fair and equitable way to study this issue.
  In today's environment of fiscal belt tightening, it is crucial that 
we carefully scrutinize proposals such as splitting a judicial circuit. 
It is necessary that we curtail the development of costly Federal 
proposals and engage in studied cost-benefit analysis before we create 
new programs. There are many unanswered questions in splitting the 
Ninth Circuit Court of Appeals. What are the costs associated with such 
a division? Will this require the construction of new courthouses and 
hiring of additional judges? If so, how many and how much? And what are 
the benefits of a division? The commission we propose will answer all 
of these questions before we even consider any possible division. 
Further, the commission will examine the structure and function of all 
the Federal courts of appeal.
  This is a reasonable proposal for the establishment of a vital 
commission. I urge my colleagues to support this bill.
                                 ______