[Congressional Record Volume 146, Number 24 (Tuesday, March 7, 2000)]
[Senate]
[Pages S1233-S1235]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI (for himself, Mr. Hatch, Mr. Craig, Mr. Crapo, 
        Mr. Inhofe, and Mr. Smith of Oregon):
  S. 2184. A bill to amend chapter 3 of title 28, United States Code, 
to divide the ninth judicial circuit of the United States into two 
circuits, and for other purposes; read the first time.


     the ninth circuit court of appeals reorganization act of 2000

  Mr. MURKOWSKI. Mr. President, soon we are going to be debating 
judicial nominations in this body. I want to take this opportunity to 
address what I consider a grave problem affecting the administration of 
justice in our Nation.
  I am referring to the unwieldy Ninth Circuit Court of Appeals. Some 
will prefer the status quo, and I hope after my presentation this 
morning they will share in the recognition that the Ninth Circuit 
demands reform. The Ninth Circuit has grown so large and has drifted so 
far from prudent legal reasoning, that sweeping change is in order.
  Congress has already recognized that change is needed. In 1997, we 
commissioned a report on structural alternatives for the Federal courts 
of appeals. The Commission, chaired by former Supreme Court Justice 
Byron White, found numerous faults within the Ninth Circuit. In its 
conclusion, the Commission recommended major reforms and a drastic 
reorganization of the Circuit.
  For this reason, I, along with my distinguished colleague from 
Washington, Senator Slade Gorton, introduced S. 253, the Federal Ninth 
Circuit Reorganization Act of 1999, which would in effectuate the 
recommendations of the White commission.
  The bill would reorganize the Ninth Circuit into three regional 
divisions, designed as the northern, middle, and southern divisions, 
and a nonregional circuit division. Ideally, a more cohesive judicial 
body would emerge--one that reflects the community it serves, and holds 
a greater master of applicable, but unique, state law and state issues.
  Some in this body were not too happy with the divisional realignment. 
Perhaps a more direct and simplified solution to the problems of the 
Ninth Circuit is in order. For this reason, I, along with my colleague, 
Senator Hatch of Utah, introduced a new bill this morning, the Ninth 
Circuit Court of Appeals Reorganization Act of 2000. We are joined by 
Senator Craig, Senator Crapo, Senator Inhofe, and Senator Smith of 
Oregon.
  This bill will divide the Ninth Circuit into two independent 
circuits. The new Ninth Circuit would contain Arizona, California, and 
Nevada. A new Twelfth Circuit would be composed of Alaska, Hawaii, 
Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana 
Islands. Immediately upon enactment, the concerns of the White 
Commission will be addressed, and a more cohesive, efficient, and 
predictable judiciary will emerge.
  In this debate, let us not forget why change is in order. The Ninth 
Circuit extends from the Arctic Circle to the Mexican border. It spans 
the tropics of Hawaii and across the International Dateline to Guam and 
the Mariana Islands. Encompassing some 14 million square miles, the 
Ninth Circuit, by any means of measure, is the largest of all our U.S. 
courts of appeal. It is larger than the First, Second, Third, Fourth, 
Fifth, Sixth, Seventh, and Eighth Circuits combined.
  Let me refer to chart one because I think it makes the point that the 
Ninth Circuit serves a population of more than 50 million, almost 60 
percent more than are served by the next largest circuit court. By the 
year 2010, the Census Bureau estimates the Ninth Circuit population 
will be more than 63 million. Mind you, it is now 50 million--63 
million. That is an increase of 26 percent in just 10 years.

[[Page S1234]]

  I wonder how many people this court has to serve before Congress will 
realize the court is simply overwhelmed by its population. That is a 
fact.
  I must confess our efforts in this case are not novel. Calls to split 
the Ninth Circuit Court have been heard since 1891. More to the point, 
Congress has attempted to reorganize the Ninth Circuit since World War 
II!
  Congressional Members are not alone in advocating a split. In 1973, 
the Congressional Commission on the Revision of the Federal Court of 
Appellate System recommended that Congress split the Ninth Circuit. 
That was 1973. Unfortunately, Congress never effectuated the 
recommendations. Over the years, many legislative efforts have been 
made to correct the Ninth Circuit problems. Still, no solution. Now, in 
a new millennium, the problems of the Ninth Circuit still exist and 
have even grown worse.

  Mr. President, justice bears the price for Congress' inaction. The 
time for action is long overdue.
  Because of the circuit's massive size, there is a natural decrease in 
the ability of the judges to keep abreast of legal developments within 
the Ninth Circuit. I encourage my colleagues to contact some of those 
judges--they will be the first to admit they cannot follow the number 
of cases pending before the court. It simply is too great a load. 
Inconsistent decisions and improper constitutional interpretations are 
not unusual.
  Let's look at the next chart. In the 1996-1997 session alone, an 
astounding 95 percent of the cases reviewed by the Supreme Court were 
overturned. This number should raise more than a few eyebrows. That is 
from 1996 and 1997. Again, 95 percent of cases reviewed by the Supreme 
Court were overturned.
  Looking at chart 2, over the past 3 years, 33 percent of all cases 
reversed by the U.S. Supreme Court arose from this troubled Ninth 
Circuit. That is three times the number of reversals for the next 
nearest circuit court, and 33 times higher than the reversal rate for 
the Tenth Circuit.
  There you have it. Compare the courts, caseloads, and the question of 
promptness in justice.
  What are these reversal cases? These are people who had their cases 
wrongly decided. They are people who had to incur great expense, wait 
unnecessary lengths of time, and risk adverse legal rulings in order to 
receive justice. No American should have to receive substandard legal 
attention based, solely on what State they live in.
  But we cannot fault the judges of the Ninth Circuit alone. We, in 
Congress, have allowed this circuit to grow to staggering proportions. 
In 1998, there were over 9,450 cases filed. It is this number that 
makes adjudication of claims unacceptably slow. Consequently justice 
suffers.
  Mr. President, we should listen to the voices of the judges who 
attempt to serve this region. Ninth Circuit Judge Diramuid O'Scannlain 
described the problem as follows:

       An appellate court must function as a unified body, and it 
     must speak with a unified voice. It must maintain and shape a 
     coherent body of law. . . . As the number of opinions 
     increase, we judges risk losing the ability to keep track of 
     precedent and the ability to know what our circuit's law is.

  ``The ability to know what our circuit's law is''--that is part of 
the problem. These judges acknowledge they don't know, and they cannot 
possibly know, because the caseload is too great.
  He said:

       In short, bigger is not necessarily better.

  He further stated:

       We [the Ninth Circuit] cannot grow without limit. . . . As 
     the number of opinions increase, we judges risk losing the 
     ability to know what our circuit's law is.

  That is the key. It has grown so fast, they don't know what the 
circuit law is.

       In short, bigger is not necessarily better. The Ninth 
     Circuit will ultimately need to be split. . . .

  Judge O'Scannlain is not alone. The very Supreme Court Justices we 
entrust to guide our Nation's jurisprudence have acknowledged and 
recommended reform for this troubled court.
  Justice Kennedy continued that:

       We have very dedicated judges on that circuit, very 
     scholarly judges . . . but I think institutionally, and from 
     the collegial standpoint, that it is too large to have the 
     discipline and control that is necessary for an effective 
     circuit.

  Judge Stevens notes:

       Arguments in favor of dividing the Circuit in either two or 
     three smaller circuits overwhelmingly outweigh the single 
     serious objection to such a change.

  But now, with this new bill we can fix the problem. And in turn, we 
can ensure that all Americans receive swift and fair adjudication of 
their claims. While I may believe even more sweeping changes are in 
order, I strongly urge this body address this crisis in our judiciary 
system.
  Mr. President, it is the 50 million residents of the Ninth Circuit 
who suffer from our inaction. These Americans wait years before their 
cases are heard. And after these unreasonable delays, justice may not 
even be served in an overstretched and out-of-touch judiciary.
  Mr. President, Congress has known about the problem in the Ninth 
Circuit for a long time. Justice has been delayed too long. The time 
for reform has come, and I urge action on this bill.
  I yield to my friend who has been recognized.
  I yield the floor.
  Mr. HATCH. Mr. President, I rise to speak this morning to discuss 
legislation that I have introduced with Senator Murkowski that would 
divide the Ninth Circuit into two manageable circuits.
  I have been told of a children's song that, with its circular and 
repetitious melody, is called ``the song without an end.'' And that 
might be an apt description of our efforts to reach some resolution 
with the nagging problem of the Ninth Circuit's boundaries.
  Indeed, I am told that calls to reexamine the boundaries of what is 
presently called the Ninth Circuit were first made more than a century 
ago. In more recent history:
  A congressional commission--the Hruska Commission--recommended a 
split of the Ninth Circuit--not just the Fifth Circuit-- in 1973;
  In 1995 I held a hearing before the Judiciary Committee to examine a 
proposal to split the circuit;
  In 1997, as part of the Commerce, Justice, State Appropriations bill, 
the Senate passed a split proposal which was ultimately replaced with a 
provision creating a commission to report on structural alternatives 
for the Federal Courts of Appeals--and the Ninth Circuit in particular; 
and
  Last year, Senator Murkowski, and others, introduced legislation to 
implement the recommendation of that commission, which would have 
maintained the circuit's structural boundaries, but partitioned its 
Court of Appeals into three semi-autonomous divisions.
  Yet here we stand, like Sisyphus with the boulder at his feet, with 
nothing to show for years of effort.
  All the while, the problems perceived in the Ninth Circuit itself 
have not disintegrated with the passage of time.
  Rather, as we look at that circuit's boundaries, what is immediately 
apparent is its gargantuan size. That factor, in itself, by no means 
justifies a remedy in the form of a change in boundaries. But it does 
serve as a necessary starting point from which to explain many of the 
criticisms that have been lodged against the circuit.
  Stretching across nine States and two territories, and constituting 
some 14 million square miles, the Ninth Circuit serves the largest U.S. 
population by far--more than 51 million people. The Ninth Circuit is 
authorized by statute to maintain 28 active Court of Appeals judges. 
The next largest circuit--the Fifth--has only 17 active judges, and 
most other circuits have 12 or fewer judges.

  Though the size of the circuit is not in itself a reason to modify 
its boundaries, the problems resulting from the circuit's size are.
  Most notably, the massive size of the circuit's boundaries has 
confronted the circuit's judges with a real difficulty in maintaining 
the coherence of its circuit law. This is because there are enormous 
obstacles both, one, to keeping abreast of the circuit's decisions, 
and, two, to correcting those decisions that stray from the law of the 
circuit.
  With regard to the first concern, various conscientious judges on the 
Ninth Circuit have stated they are unable to read the number of 
published decisions being issued by their colleagues, given the sheer 
volume of such opinions. They have stated that frequently,

[[Page S1235]]

there is no time to do anything more than review the head notes of such 
decisions.
  This is a serious problem from which other problems ensue. Absent the 
ability of each active judge on the Ninth Circuit to read each such 
published decision, there can be no assurance that calls will be made 
for en banc review of those cases which judges believe merit rehearing 
by a larger component of the court.
  With regard to the second concern--the ability to correct decisions 
that stray from the circuit law--the large size of the Ninth Circuit 
presents a tremendous impediment. At present, a special exception has 
been made by Congress to better enable the Ninth Circuit to review 3-
judge decisions en banc, and that process--known as limited en banc--
involves the empaneling of only 11 judges, rather than the circuit's 
full complement of 28 judges.
  In my view, this system is being utilized with insufficient 
frequency. And the result is that the stated aim of Federal Rule of 
Appellate Procedure 35--to secure or maintain uniformity of the court's 
decisions--is being thwarted.
  Moreover, the mechanism is imperfect, and simple math proves the 
point. It is entirely conceivable that a limited en banc decision could 
be handed down by an 11-to-0 vote, and yet not reflect the views of a 
majority of the circuit's judges. Nor is it any answer to say that the 
Ninth Circuit's rules allow for full en banc hearings with all 28 
judges, since no such hearing has ever taken place.
  The problems with the lack of internal decisional consistency within 
the Ninth Circuit have become all too obvious. Three terms ago, the 
Ninth Circuit's reversal rate before the U.S. Supreme Court exceeded 95 
percent. It is no cause for celebration to note that during the last 
two terms, the Ninth Circuit reversal rate averaged 77 percent, and 
this term I have noted that the Ninth Circuit is not faring 
particularly well, with a record of 0 to 7 before the Supreme Court. 
What is really wrong is there are literally thousands of cases they 
hear that they are probably making the wrong decisions on that will 
never go to the Supreme Court because the Court doesn't have time to 
listen to thousands of cases from the Ninth Circuit Court of Appeals. 
So we are having all kinds of injustice out there just because of 
judges who are out of control, who are activist judges ignoring the law 
itself.

  I believe these problems will be corrected when we streamline the 
circuit, leaving two more manageable circuits in place to more 
carefully and exactingly do the work currently undertaken by one. I 
believe the system of error correction and the assurance of coherence 
of circuit law will be a more manageable task in two circuits where the 
judges of each will have one-half as many of their colleagues' opinions 
to read for compliance with and correction of their circuit law.
  To this end, Senator Murkowski and I have drafted a measure we 
believe reflects sound public policy. It would continue to denominate 
as part of the Ninth Circuit the States of California, Nevada, and 
Arizona, as well as the island territories currently within the Ninth 
Circuit. The proposal would place Hawaii and the Northwest States 
within a new Twelfth Circuit. Such a proposal results in a logical 
split. Indeed, the contours of this very proposal were set out as an 
alternative option in the final report of the Commission on Structural 
Alternatives. And it maintains geographic coherence by avoiding the 
type of gerrymandered circuit that would have resulted from the split 
proposal passed by the Senate in 1997, although I could very easily go 
for that as well.
  As a final word, I express for the record my appreciation for the 
very substantial work performed by the members and staff of the 
Commission on Structural Alternatives. Its final work product is a most 
capable report, and the Commission's work under Justice White will 
truly become part of the history of relations in this country before 
the Congress and the Judiciary.
  With that thanks, I will close my remarks on this by urging my 
colleagues to act on this sensible proposal to solve a problem that has 
persisted for far too long. There are some of our colleagues who are 
very upset at the Ninth Circuit Court of Appeals and its record of 
reversal by the Supreme Court. I just raised the issue that there may 
be thousands of cases that need to be reversed, but the Supreme Court 
doesn't have time to do that. I think they would be much more concerned 
about voting for and passing this split of the Ninth Circuit than they 
would attacking some of the judges who are up for nominations.
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