[Congressional Record Volume 147, Number 22 (Thursday, February 15, 2001)]
[Senate]
[Pages S1475-S1477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI (for himself, Mr. Stevens, Mr. Burns, Mr. Craig, 
        Mr. Crapo, Mr. Inhofe, and Mr. Smith of Oregon):
  S. 346. 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; to the Committee on the Judiciary.
  Mr. MURKOWSKI. Mr. President, I am pleased to be joined by Senators 
Stevens, Burns, Craig, Crapo, Inhofe, and Gordon Smith in introducing 
the Ninth Circuit Court of Appeals Reorganization Act of 2001. While 
this bill is not the first attempt to solve the crisis of the Ninth 
Circuit, I believe the need for change has never been greater. 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 R. White, found numerous faults within the Ninth Circuit. In its 
conclusion, the Commission recommended major reforms and a drastic 
reorganization of the Circuit.
  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. 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, 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 U.S. Circuit 
Courts of Appeal. It is larger than the First, Second, Third, Fourth, 
Fifth, Sixth, Seventh and Eleventh Circuits combined!

  The Circuit serves a population of more than 50 million people, 
almost 60 percent more than are served by the next largest circuit. By 
2010, the Census Bureau estimates that the Ninth Circuit's population 
will be more than 63 million. That's an increase of 13 million people 
in just 10 years! How many people does this court have to serve before 
Congress will realize that the Ninth Circuit is overwhelmed by its 
population?
  As I noted before, legislation to split the Ninth Circuit is 
certainly not novel. Since the day the Ninth Circuit was founded over a 
century ago, Congress has tinkered with the structure of the Circuit 
and has debated its split.
  In 1866, Congress established a newly numbered Ninth Circuit Court of 
Appeals consisting of California, Nevada,

[[Page S1476]]

and Oregon. Congress included Montana, Washington, and Idaho in the 
Circuit at the time each gained statehood. The present Ninth Circuit 
was completed by including Hawaii in 1911, Alaska in 1925, Arizona in 
1929, Guam in 1951 and the Northern Mariana Islands in 1977. During 
this period of geographic expansion, Congress determined a split of the 
Ninth Circuit to be inevitable; numerous proposals to divide the Ninth 
Circuit were debated in Congress since before World War II.
  Congressional members were not alone in advocating a split. In 1973, 
the Congressional Commission on the Revision of the Federal Court of 
Appellate System Commission, commonly known as the Hruska Commission, 
recommended that the Ninth Circuit be divided. Also that year, the 
American Bar Association adopted a resolution in support of dividing 
the Ninth Circuit. The Hruska recommendation sparked controversy 
because it called for a Circuit division that split the state of 
California in half. Instead of that radical approach, Congress, in 
1978, created the en banc proceedings as an effort to streamline the 
Ninth Circuit's docket. In 1990, the United States Department of 
Justice endorsed legislation to split the Ninth Circuit in a surprising 
reversal of the official ``no position'' approach it had previously 
assumed.
  In 1995, a bill was reported from the Senate Judiciary Committee in 
which Chairman Orrin Hatch of Utah declared in his Committee's report 
that the time for a split had arrived:

       The legislative history, in conjunction with available 
     statistics and research concerning the Ninth Circuit, 
     provides an ample record for an informed decision at this 
     point as to whether to divide the Ninth Circuit . . . Upon 
     careful consideration the time has indeed come.

  Even more recently, Supreme Court Justice Anthony M. Kennedy had 
stated his concerns regarding the size of the Ninth Circuit. Justice 
Kennedy, a former member of the Ninth Circuit for twelve years, 
testified before a Senate Appropriations subcommittee, and stated that 
he has ``increasing doubts about the wisdom of retaining, the Circuit's 
current size.'' During a House subcommittee hearing, Justice Kennedy 
had earlier voiced his reservations about the Circuit's size, saying 
that it ``is larger than it ought to be,'' and he recommended ``looking 
very hard'' at dividing the Circuit.
  Arguments in support of dividing the Ninth Circuit are both 
qualitative and quantitative. The magnitude of case filings in the 
Ninth Circuit creates a slow and cumbersome docket. Once a final brief 
is filed, it takes longer to receive a hearing or submission in the 
Ninth Circuit than any other Circuit. And, from the time of a 
lower court filing to final disposition, the Ninth Circuit is the 
second slowest Circuit in the nation.

  The Ninth Circuit's travel expenses are the largest in the federal 
system, and operating costs of the Ninth Circuit surpass the costs of 
all other Circuits. In 1990, Congress allocated to the Ninth Circuit 28 
active judges, which surpasses by twelve the second largest appellate 
court. This increase means that judicial travel expenses in 1996 were 
over double the amount of any other circuit. Additionally, support 
staff of the Circuit is so large and unwieldy that one appellate judge 
facetiously complained that it was ``impossible to determine who 
actually was assigned to clerk.''
  The ever-expanding docket in the Ninth Circuit creates an inherent 
difficulty in keeping abreast of legal developments within its own 
jurisdiction, rendering inconsistency in Constitutional interpretation 
within the Court. Interestingly, the statistical opportunities for 
inconsistency on a 28 panel court calculates out to be 3,276 
combinations of panels that could resolve any given issue. Former 
Oregon Senator Mark Hatfield expressed much concern about the growing 
inconsistency of the Ninth Circuit, stating that the ``increased 
likelihood of intra- 
circuit conflicts is an important justification for splitting the 
court.''
  One only needs to review the appallingly high reversal rate of Ninth 
Circuit cases to appreciate the severity of the problem. For example, 
between the years 1990 and 1995, the Ninth Circuit's average rate of 
reversal was higher than any other circuit. During its 1995-1996 
session, the Supreme Court overturned an astounding 83% of the cases 
heard from the Ninth Circuit, a figure which is 30 percent higher than 
the national average reversal rate. In the 1996-1997 session alone, an 
astounding 95% of its cases reviewed by the Supreme Court were 
overturned. This number should raise more than a few eyebrows. A split 
of the Circuit would enable a more complete and sound review, thereby 
reducing the Circuit's rate of reversal before the Supreme Court.
  Many who oppose legislation to bifurcate the Ninth Circuit, contend 
that all the Circuit needs is the appropriation of more federal dollars 
for more federal judges. However, history reveals this contention to be 
false. In fact, Congressional increases in the number of judges have 
yielded few improvements. Studies on omnibus judgeships legislation 
concluded that adding ``judges only delayed what appeared to be a 
nearly inexorable climb in appeals taken to the court'' and only served 
to further tax the judicial confirmation process.
  As early as 1954, Supreme Court Justice Felix Frankfurter warned that 
the courts' growing business could not ``be met by a steady increase in 
the number of federal judges'' because this increase was ``bound to 
depreciate the quality of the federal judiciary and thereby adversely 
affect the whole system.'' Soon after Congress divided the former Fifth 
Circuit, former Senator and Alabama Supreme Court Chief Justice, Howell 
Heflin, a Democrat from Alabama, remarked that ``Congress recognized 
that a point is reached where the addition of judges decreases the 
effectiveness of the court, complicates the administration of uniform 
law, and potentially diminishes the quality of justice within a 
Circuit.''
  Former Oregon Senator Bob Packwood believed that a circuit split 
would enable judges to achieve a greater mastery of applicable, but 
unique, state law and state issues. He believed such a mastery was 
necessary because ``burgeoning conflicts in the area of natural 
resources and the continuing expansion of international trade efforts 
will all expand the demand for judicial excellence . . . By reforming 
our courts now, they will be better able to dispense justice in a fair 
and expeditious manner.''
  I concur. The uniqueness of the Northwest, and in particular, Alaska, 
cannot be overstated. An effective appellate process demands mastery of 
state law and state issues relative to the geographic land mass, 
population and native cultures that are unique to the relevant region. 
Presently, California is responsible for almost 50 percent of the 
appellate court's filings, which means that California judges and 
California judicial philosophy dominate judicial decision on issues 
that are fundamentally unique to the Pacific Northwest. This need for 
greater regional representation is demonstrated by the fact that the 
East Coast is comprised of five federal circuits. A division of the 
Ninth Circuit will enable judges, lawyers and parties to master a more 
manageable and predictable universe of relevant caselaw.
  Further, a division of the Ninth Circuit would honor Congress' 
original intent in establishing appellate court boundaries that respect 
and reflect a regional identity. In spite of efforts to modernize the 
administration of the Ninth Circuit, its size works against the 
original purpose of its creation: the uniform, coherent and efficient 
development and application of federal law in the region. Establishing 
a circuit comprised solely of states in the Northwest region would 
adhere to Congressional intent. Alaska, Washington, Oregon, Hawaii, 
Idaho, and Montana share similar land bases, populations and economies. 
Each state contains a high percentage of public lands, fairly 
comparable populations, is financially dependent upon tourism, and is 
blessed with an abundance of natural resources. A new Twelfth Circuit, 
comprised of states of the Pacific Northwest, would respect the 
economic, historical, cultural and legal ties which philosophically 
unite this region.
  No one Court can effectively exercise its power in an area that 
extends from the Arctic Circle to the tropics. Legislation dividing the 
Ninth Circuit will create a regional commonality which will lead to 
greater uniformity and

[[Page S1477]]

consistency in the development of federal law, and will ultimately 
strengthen the constitutional guarantee of justice to all.
  While I may believe even more sweeping change is in order, I strongly 
urge that this body address the crisis in our judiciary system. It is 
the 50 million residents of the Ninth Circuit that suffer from our 
inaction. These Americans wait years before their cases are heard. And 
after these unreasonable delays, justice may not even be served by an 
over-stretched and out of touch judiciary.
  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 ask unanimous consent that the text of my bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 346

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Ninth Circuit Court of 
     Appeals Reorganization Act of 2001''.

     SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.

       Section 41 of title 28, United States Code, is amended--
       (1) in the matter before the table, by striking 
     ``thirteen'' and inserting ``fourteen''; and
       (2) in the table--
       (A) by striking the item relating to the ninth circuit and 
     inserting the following:

Arizona, California, Nevada.'';........................................

     and
       (B) by inserting between the last 2 items the following:

Alaska, Guam, Hawaii, Idaho, Montana, Northern Mariana Islands, Oregon, 
  Washington.''.

     SEC. 3. NUMBER OF CIRCUIT JUDGES.

       The table in section 44(a) of title 28, United States Code, 
     is amended--
       (1) by striking the item relating to the ninth circuit and 
     inserting the following:

``Ninth.......................................................20'';....

     and
       (2) by inserting between the last 2 items the following:

``Twelfth......................................................8''.....

     SEC. 4. PLACES OF CIRCUIT COURT.

       The table in section 48(a) of title 28, United States Code, 
     is amended--
       (1) by striking the item relating to the ninth circuit and 
     inserting the following:

San Francisco, Los Angeles.'';.........................................

     and
       (2) by inserting between the last 2 items at the end the 
     following:

Portland, Seattle.''...................................................

     SEC. 5. ASSIGNMENT OF CIRCUIT JUDGES.

       Each circuit judge in regular active service of the former 
     ninth circuit whose official station on the day before the 
     effective date of this Act--
       (1) is in Arizona, California, or Nevada is assigned as a 
     circuit judge of the new ninth circuit; and
       (2) is in Alaska, Guam, Hawaii, Idaho, Montana, Northern 
     Mariana Islands, Oregon, or Washington is assigned as a 
     circuit judge of the twelfth circuit.

     SEC. 6. 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 Act 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. 7. SENIORITY OF JUDGES.

       The seniority of each judge--
       (1) who is assigned under section 5 of this Act; or
       (2) who elects to be assigned under section 6 of this Act;

     shall run from the date of commission of such judge as a 
     judge of the former ninth circuit.

     SEC. 8. 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 Act, 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 Act 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 the 
     matter would have been submitted had this Act 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 
     Act, or submitted before the effective date of this Act and 
     decided on or after the effective date as provided in 
     paragraph (1), shall be treated in the same manner and with 
     the same effect as though this Act 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 Act had not 
     been enacted.

     SEC. 9. DEFINITIONS.

       In this Act, 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 Act;
       (2) ``new ninth circuit'' means the ninth judicial circuit 
     of the United States established by the amendment made by 
     section 2(2); and
       (3) ``twelfth circuit'' means the twelfth judicial circuit 
     of the United States established by the amendment made by 
     section 2(3).

     SEC. 10. ADMINISTRATION.

       The court of appeals for the ninth circuit as constituted 
     on the day before the effective date of this Act may take 
     such administrative action as may be required to carry out 
     this Act and the amendments made by this Act. Such court 
     shall cease to exist for administrative purposes on July 1, 
     2003.

     SEC. 11. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall become 
     effective on October 1, 2001.
                                 ______