[Congressional Record Volume 143, Number 31 (Wednesday, March 12, 1997)]
[Senate]
[Pages S2217-S2218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL STATEMENTS

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          REVERSAL RATE OF THE NINTH CIRCUIT COURT OF APPEALS

 Mr. KYL. Mr. President, I rise to make a few remarks 
concerning the Ninth Circuit Court of Appeals and the Senate's role in 
confirming judges.
  The ninth circuit is enormous. It spans nine states and two 
territories covering 1.4 million square miles. It serves a population 
of more than 45 million people; the next largest, the sixth circuit, 
serves fewer than 29 million people, and every other Federal circuit 
serves fewer than 24 million. By 2010, the Census Bureau estimates that 
the population of the ninth circuit will be more than 63 million--a 40-
percent increase in just 15 years. Given the demographic trends in our 
country, it is clear that the population of the States in the ninth 
circuit, and thus the caseload of the Federal judiciary sitting in 
those States, will continue to increase at a rate significantly ahead 
of most other regions of the country.
  To serve its enormous population, the ninth circuit already has 28 
judgeships, making it by far the largest circuit--and, in fact, larger 
than the first U.S. Senate. The next largest circuit, the fifth 
circuit, has 17 judgeships, while the first circuit has six and the 
seventh and eighth each have 11. The average number of judgeships in 
the Federal circuits other than the ninth is 12.6. Further, the ninth 
circuit has requested an additional nine judgeships, which would take 
it to 37 active judges, in addition to senior judges.
  Unfortunately, too often the decisions reached by this circuit have 
had to be reversed on appeal. According to statistics published in the 
National Law Journal, in the last six terms of the U.S. Supreme Court--
from the 1990-91 term to the 1995-96 term--the Supreme Court reversal 
rate for the ninth circuit was 73 percent, 69 of 94 cases were 
reversed. The average reversal rate for the other circuits was 61 
percent, 268 of 442. And so far this term, the high court has 
overturned 10 of the 11 ninth circuit cases it has reviewed. Since 
circuit judges are simply supposed to apply the law enunciated by the 
Supreme Court, the obvious question is why the ninth circuit gets it 
wrong almost three-fourths of the time the Supreme Court reviews its 
decisions.
  Consider, for example, the 11 decisions handed down by the Supreme 
Court on February 18 and 19. Three of the eleven decisions reviewed 
ninth circuit cases. In all three cases, the ninth circuit was in 
conflict with other circuits. In fact, in one case, the ninth circuit 
disagreed with five other circuits. In all three cases, the Supreme 
Court unanimously reversed the ninth circuit.
  Such decisive reversals are not an aberration. Most recently, on 
March 3, in a unanimous decision by Justice Ginsburg, the Supreme Court 
reversed an

[[Page S2218]]

en banc ninth circuit decision that Arizona could not require State 
employees to speak only English on the job. The Supreme Court ordered a 
State employee's challenge to Arizona's English-only constitutional 
amendment to be dismissed as moot because the worker resigned 7 years 
ago. The high court castigated the ninth circuit. As the New York 
Times, March 4, 1997, stated, ``Justice Ginsburg was pointed in her 
criticism of how * * * the Ninth Circuit * * * handled this case.'' For 
example, Justice Ginsburg wrote, ``The ninth circuit had no warrant to 
proceed as it did.'' Previous opinions have been even more damning.
  The Supreme Court is able to review only a small number of the ninth 
circuit's decisions. Thus, in all but a tiny fraction of cases, the 
ninth circuit is the court of last resort for more than 45 million 
Americans. To have so many subject to a circuit that so often errs 
should concern us.
  Some have attributed the ninth circuit reversal rate to the unwieldy 
size of the bench. Others point to a history of judicial activism, 
sometimes in pursuit of political results. I suspect there is more than 
one reason for the problem. Whatever the case, the Senate will need to 
be especially sensitive to this problem when it provides its advise and 
consent on nominations to fill court vacancies. The nominees will need 
to demonstrate exceptional ability and objectivity. The Senate will 
obviously have an easier time evaluating candidates who have a record 
on a lower court bench. Such records are often good indications of 
whether a judge is--or is likely to be--a judicial activist, and 
whether he or she is frequently reversed. Nominees who do not have a 
judicial background or who have a more political background may be more 
difficult to evaluate.
  As President Clinton noted in response to Senator Dole's criticism--
of ``activist'' judges--in the last campaign, the Senate has as much 
responsibility as the President for those who end up being confirmed. 
We need to take that responsibility seriously --among other things, to 
begin the process of reducing the reversal rate of our largest 
circuit.

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