[Congressional Record Volume 148, Number 95 (Monday, July 15, 2002)]
[Senate]
[Pages S6731-S6732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGAL SYSTEM REFORM

  Mr. MURKOWSKI. Mr. President, I wish to indicate my concern about the 
recent ruling of the Ninth Circuit Court of Appeals in regard to the 
recitation of the Pledge of Allegiance in school as unconstitutional, 
noting its reference to ``one nation under God.''
  I think we were all a bit surprised at that particular ruling. 
Perhaps for more years than I care to acknowledge, I have witnessed one 
bizarre decision after another arising from what I consider a very 
troubled court. During that time, a number of us in the Senate have 
worked to bring about fundamental reform in our legal system, including 
a wholesale restructuring of the Ninth Circuit.
  I quote from the court's decision on the pledge, and this was Judge 
Alfred T. Goodwin who wrote:

       A profession that we are a nation ``under God'' is 
     identical, for establishment clause purposes, to a profession 
     that we are a nation under Jesus, a nation under Vishnu, a 
     nation under Zeus, or a nation under no god, because none of 
     these professions can be neutral without respect to religion.

  I find that troubling because it is totally inconsistent. It tries to 
establish a parallel that there is virtually no difference whether we 
are under Zeus, under Vishnu, or under no god because, as is stated in 
the opinion, none of these professions can be neutral with respect to 
religion. This is a type of extremism carried out by individuals who 
want to eradicate any reference to religion in public life. It is 
clearly wrong. I am confident this ruling will be overturned. After 
all, it is quite common for a ruling from the Ninth Circuit to be 
overturned.

  It is fair to take a few minutes and look at the record of the Ninth 
Circuit. Part of the problem is the Ninth Circuit is simply too large. 
It extends from the Arctic Circle to the Mexican border and spans the 
tropics from Hawaii, Guam, the Marianna Islands, the International Date 
Line, back to Montana and encompasses some 14 million square miles. It 
is the largest circuit by any measure. It is larger than the First, 
Second, Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits 
combined.
  For these reasons and more, I am going to be introducing legislation 
in the balance of this Congress to split the Ninth Circuit. I will now 
be offering an amendment to all legislation for the remainder of this 
Congress to enact this commonsense legislation until such time as I can 
get a vote. I am joined by a number of our colleagues: Senators 
Stevens, Burns, Craig, Gordon Smith, Inhofe, and Crapo.
  A little history will show this is not the first attempt to solve the 
crisis of the Ninth Circuit. I believe the need for change, however, 
has never been greater. The Ninth Circuit has grown so large and has 
drifted so far from prudent legal reasoning that sweeping changes are 
in order. Congress has already recognized that the change is needed. 
Back in 1997, we commissioned a report on structural alternatives for 
the Federal court of appeals. The commission was chaired by the former 
Supreme Court Justice, Byron R. White. They found numerous faults 
within the Ninth Circuit. In its conclusion, the commission recommended 
major reforms and a drastic reorganization of the court.
  This legislation divides the Ninth Circuit into two independent 
circuits. The new Ninth would contain basically California. I 
understand there is an interest from Nevada to stay with California. 
Basically, we propose to leave the Ninth containing California and 
perhaps Nevada. A new Twelfth Circuit would be composed of the 
following: Arizona, Alaska, Hawaii, Idaho, Montana, Oregon, Washington, 
Guam, and the Northern Marianna Islands. Immediately upon enactment, 
concerns of the White commission would be addressed. A more cohesive, 
efficient, and predictable judicial group would emerge.
  The circuit serves a population of more than 54 million, almost 60 
percent more than are served by the next largest circuit. By 2010, the 
Census Bureau estimates that the population of the Ninth Circuit will 
be more than 63 million people. How many people does this court have to 
serve before the Congress of the United States realizes the Ninth 
Circuit is overwhelmed by its population? Congressional Members are not 
alone in advocating a split.
  In 1973, a congressional commission on the revision of Federal Court 
Appellate System Commission, commonly known as the Hruska Commission, 
recommended the Ninth Circuit be divided. Also that year, the American 
Bar Association adopted a resolution in support of the split. In 1990, 
the U.S. Department of Justice endorsed legislation to split the Ninth 
Circuit in a surprising reversal of the official ``no position'' 
approach it had previously assumed. That is significant in relationship 
to a fair evaluation based on facts in the White commission on the need 
for splitting the court.
  In 1995, a bill was reported from the Senate Judiciary Committee to 
go ahead and split the Ninth Circuit. There were objections. Most of 
those objections came from California and were simply based on the 
theoretical concept that California has been the headquarters of the 
Ninth, and there is a certain amount of prestige associated with having 
the largest court, so it is quite natural that there should be such a 
response from California. But it was not necessarily based on what is 
good for justice.

  Supreme Court Justice Kennedy, a former member of the Ninth Circuit 
for 12 years, testified before a Senate Appropriations Committee and 
stated he has increasing doubts about the wisdom of retaining the 
circuit's current size.
  Arguments in support of a divided Ninth Circuit are both qualitative 
and quantitative. The magnitude of cases filing in the Ninth Circuit 
creates a slow and cumbersome docket. In 2001, the caseload of the 
Ninth Circuit Court of Appeals was 10,342 filings.
  I refer now to a chart which shows the filings of the court relative 
to the Ninth Circuit. We have the various circuits: The First, Second, 
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and 
Eleventh Circuits. The Ninth has a population of 54 million; the 
caseload is 10,000 filings. The nearest would be the Eleventh Circuit. 
Clearly, the workload is significant in this court.
  I refer you now to chart 2, which shows the current size of the 
court. This gives a better understanding showing the makeup of the 
Ninth Circuit covering Alaska, Washington, Idaho, Montana, Oregon, 
California, Nevada, and Arizona. It covers a population of 54 million. 
The caseload is 10,000 cases. The Ninth Circuit area is 1.4 million 
square miles.
  It is interesting to reflect on the east coast. On the east coast, we 
have Maine, the eastern States, with their own court in red on the 
chart in the First Circuit. The green is the Second District. Third is 
in the raspberry color. The Fourth Circuit includes the Carolinas. We 
have five circuit courts covering a significant population. Clearly, 
this chart points out the difference between the size of the area of 
the Ninth and the caseload.
  I will quote from various Justices relative to their views on 
splitting the court. It is imperative we reflect on those who have 
studied this issue and evaluated it on its merits.
  From retired U.S. Supreme Court Chief Justice Warren Burger: I 
strongly believe the Ninth Circuit is far too cumbersome and it should 
be divided.
  Justice Anthony M. Kennedy:

       I have increasing doubts and increasing reservations about 
     the wisdom of retaining the ninth circuit in its historic 
     size, and with its historic jurisdiction. 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's necessary for an effective circuit.

  We go to the Honorable Diarmuid O'Scannlain, a Ninth Circuit judge:

       We--the ninth circuit--cannot grow without limit. . . . As 
     the number of opinions increases, we judges risk losing the 
     ability to know what our circuit's law is. In short, bigger 
     is not necessarily better. The ninth circuit will ultimately 
     need to be split. . . .

  Former Alabama Supreme Court Chief Justice Howell Heflin, one of our 
former colleagues:

       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

[[Page S6732]]

     diminishes the quality of justice within a Circuit.

  Last, former U.S. Senator Mark O. Hatfield, State of Oregon:

       The increased likelihood of intracircuit conflicts is an 
     important justification for splitting the court.

  These are gentlemen who have reviewed this issue and evaluated it 
objectively on its merits.
  We see here the Supreme Court agrees that reform is needed. Here is a 
quote from Justice Scalia:

       The disproportionate segment of this court's discretionary 
     docket that is consistently devoted to reviewing ninth 
     circuit judgments, and reversing them by lop-sided margins, 
     suggests that this error-reduction function is not being 
     performed effectively.

  That is a pretty strong statement on the manner in which the Ninth 
Circuit has been conducting itself. As the reference is from Justice 
Scalia, he cites a disproportionate segment of the Supreme Court's 
discretionary docket that is devoted to reviewing Ninth Circuit 
judgments reversing them by lopsided margins. That is certainly a 
critique against the Ninth Circuit's performance.
  Supreme Court Justice Sandra Day O'Connor:

       With respect to the ninth circuit in particular, in my view 
     the circuit is simply too large.

  Finally, Supreme Court Justice John Paul Stevens:

       In my opinion, the arguments in favor of dividing the 
     circuit into either two or three smaller circuits 
     overwhelmingly outweigh the single serious objection to such 
     a change.

  So there you have three Justices indicating that in their opinion the 
court is too large, there have been too many reversals coming to the 
Supreme Court. It is the criticism of the function of the court.
  Let me continue because I think it is important to reflect on just 
what these figures are, relative to the filings and the increase. The 
number of filings continues to increase in the Ninth, from 8,415 in 
1995 to 9,070 in 1998, and now 10,342 in the year 2001. We have seen 
the chart with the caseloads increasing. Here is a vivid comparison of 
the years, as this caseload jumps, particularly from 2000 to 2001, as 
one can see, in the red.
  The ever increasing, expanding docket in the Ninth Circuit creates an 
inherent difficultly 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 calculate out to 
about 3,276 combinations of panels that could resolve any given issue.

  I have had conversations with judges on the Ninth Circuit who have 
indicated the caseload is such that it is impossible for them to 
communicate among themselves on the activities going on within the 
court, as opposed to the usual process of judges having an opportunity 
to review other judges' opinions. As a consequence, the caseload is 
simply too big to allow, not for leisure, but it is a necessity, given 
the manner in which judges reflect upon their observation.
  I would like to point out to my colleagues an article from the June 
30 New York Times entitled ``Court That Ruled on Pledge Often Runs 
Afoul of Justices.'' I would like to read highlights. Obviously, there 
is too much material in it, but specifically I quote:

     . . . judges on the court said that they did not have time to 
     read all of the decisions it issued.
       According to the commission's 1998 report, 57 percent of 
     judges in the Ninth Circuit, compared with 86 percent of 
     federal appeals court judges elsewhere, said they read most 
     or all of their court's decisions.

  That does not take place in the Ninth Circuit.

       Critics say the Ninth Circuit's procedure for full-court 
     review accounts for much of the reversal rate. All other 
     circuits sit as one to hear full-court, or en banc, cases. 
     The Ninth Circuit sits in panels of 11.
       The procedure injects randomness into decisions. If a case 
     is decided 6 to 5, there is no reason to think it represents 
     the views of the majority of the court's 23 active members.
       Critics say the Ninth Circuit's procedure for full-court 
     review accounts for much of the reversal rate. All other 
     circuits sit as one to hear full-court, or en banc, cases. 
     The Ninth Circuit sits in panels of 11.
       The procedure injects randomness into decisions. If a case 
     is decided 6 to 5, there is no reason to think it represents 
     the views of the majority of the court's 23 active members.

  One only needs to review the appallingly high reversal rate of Ninth 
Circuit cases to appreciate the severity of the problem.
  During the 1995-1996 session, the Supreme Court overturned an 
astounding 83 percent of the cases heard from the Ninth Circuit--83 
percent, Mr. President, a figure which is 30 percent higher than the 
national average reversal rate.
  In the 1996-97 session alone, an astounding 95 percent of its cases 
reviewed by the Supreme Court were overturned. This number should raise 
more than a few eyebrows.
  A split in the circuit would enable a more complete and sound review, 
thereby reducing the circuit's rate of reversal before the Supreme 
Court.
  The uniqueness of the Northwest cannot be overstated. An effective 
appellate process demands mastery of State law and State issues 
relative to geographic land mass, population, native cultures that are 
unique to the relevant region, and particularly public land issues.
  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 decisions on issues 
that are fundamentally unique to the Pacific Northwest.
  Let me show on this chart the specifics of where all the cases come 
from. Nearly half of them--46 percent--come from California; Arizona, 7 
percent; Alaska 1.3 percent; Hawaii, 1.9 percent; Idaho, Montana, 
Nevada, 5.6 percent.
  Clearly, you see the significant overwhelming evidence that most of 
the cases, of course, are from California.
  As a consequence, this need for greater regional representation is 
demonstrated by the fact that the east coast of the United States is 
composed of five Federal circuits. I wonder what the justification for 
that was. Clearly, it was justified in the sense of good judicial 
decision. But here we have on the west coast one court. The division of 
the Ninth Circuit would enable judges, lawyers, and parties to master a 
more manageable and predictable universe of relevant case law.
  Establishing a circuit comprised solely of States in the West would 
adhere certainly to congressional intent. Alaska, Washington, Oregon, 
Hawaii, Idaho, and perhaps Nevada--although I understand Nevada, in the 
minds of some, is in the State of California. In any event, we share 
similar land-based populations and economics. Each State contains a 
high percentage of public land, a fairly comparable population, is 
financially dependent on tourism and is blessed with an abundance of 
natural resources.
  In conclusion, while I may believe even more sweeping changes are in 
order, I strongly urge that this body address the crisis in our 
judiciary system. It is the 54 million residents of the Ninth Circuit 
who suffer from our inaction. These Americans wait years before their 
cases are heard, and, after those unreasonable delays, justice may not 
even be served by an overstretched 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. 
I urge action on this legislation. I will be offering it on every bill 
until we obtain a vote on this issue.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. CORZINE. Thank you, Mr. President.

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