[Congressional Record Volume 149, Number 36 (Thursday, March 6, 2003)]
[Senate]
[Pages S3319-S3321]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. MURKOWSKI (for herself, Mr. Stevens, Mr. Burns, Mr. Craig, 
        Mr. Crapo, Mr. Inhofe, and Mr. Smith):
  S. 562. A bill to amend chapter 3 of title 28, United States Code, to 
divide the Ninth Judicial Circuit of the United States into 2 circuits, 
and for other purposes; to the Committee on the Judiciary.
  Ms. MURKOWSKI. Mr. President, earlier this week, the Senate, in a 94-
0 vote, went on record expressing its unanimous opposition to last 
week's decision by the Ninth Circuit Court of Appeals refusing to 
review a three-judge panel ruling that bars children in public schools 
from voluntarily reciting the Pledge of Allegiance.
  The Pledge decision rendered by the court is not an aberration. It is 
symptomatic of a court that has become dysfunctional and out-of-touch 
with American jurisprudence, common sense, and constitutional values. 
Unfortunately, citizens in the states that are within the Ninth 
Circuit's jurisdiction have had to contend with the court's 
idiosyncratic jurisprudence for decades.
  One should not be surprised that the full Ninth Circuit refused to 
reconsider this ill-conceived decision. The recent history of the court 
suggests a judicial activism that is close to the fringe of legal 
reasoning. And it is for that reason that the Ninth Circuit has, by 
far, the highest reversal rate in the country. During the 1990s, almost 
90 percent of cases from the Ninth Circuit reviewed by the Supreme 
Court were reversed. In 1997, a startling 27 of the 28 cases brought 
before the Supreme Court were reversed--two-thirds by a unanimous vote.
  Over the last three years, one-third of all cases reversed by the 
Supreme Court came from the 9th Circuit. That's three times the number 
of reversals for the next nearest circuit. And 33 times higher than the 
reversal rate for the 10th Circuit
  Last November, on a single day, the Supreme Court summarily and 
unanimously reversed three Ninth Circuit decisions. In one of those 
three cases, the Supreme Court ruled that the circuit had overreached 
its authority and stated that the Court ``exceed[ed] the limits imposed 
on federal habeas review substitut[ing] its own judgment for that of 
the state court.''
  One of the reasons the Ninth Circuit is reversed so often is because 
the circuit has become too large and unwieldy. The Circuit serves a 
population of more than 54 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.
  According to the Administrative Office of the U.S. Courts, the Ninth 
Circuit alone accounts for more than 60 percent of all appeals pending 
for more than a year. And with its huge caseload, the judges on the 
Court just do not have the opportunity to keep up with decisions within 
the circuit, let alone decisions from other circuits
  Another problem unique to the Ninth Circuit is that it never speaks 
with one voice. All other circuits sit as one entity to hear full-
court, en banc, cases. The Ninth Circuit sits in panels of 11. Clearly, 
such a procedure injects unnecessary randomness into decisions. If an 
en banc case is decided 6 to 5, there is no reason to think it 
represents the views of the majority of the court's 24 active members.
  In fact, some commentators believe a majority of the 24 members of 
the court may have disagreed with the Pledge decision, but were 
concerned that a random pick of 11 members of the Court to hear the 
case, en banc, might have resulted in the decision being affirmed.
  It is inconceivable to me that a circuit court could render a 
decision based on its concern about the potential makeup of an en banc 
panel. What

[[Page S3320]]

kind of jurisprudence is that? Citizens in no other circuit face that 
type of coin-flip justice. That is fundamentally unfair to every single 
one of the 54 million people who live within the jurisdiction of the 
Ninth Circuit and is reason alone to restructure the circuit.
  It is time that Congress finally faces the fact that the Ninth 
Circuit is no longer a viable and functioning circuit. It is for that 
reason that I am today introducing the Ninth Circuit Court of Appeals 
Reorganization Act of 2003. I am pleased to be joined in this effort by 
Senators, Stevens, Burns, Craig, Crapo, Inhofe, and Smith.
  The bill we are introducing today would divide the Ninth Circuit into 
two independent circuits. The restructured Ninth Circuit would contain 
California, and Nevada. A new Twelfth Circuit would be composed of 
Alaska, Hawaii, Arizona, Idaho, Montana, Oregon, Washington, Guam, and 
the Northern Mariana Islands.
  Earlier I indicated a number of reasons why I believe the Circuit 
needs to be reorganized. Let us not forget the scope of this circuit 
and the 54 million people who live within it. 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!
  Moreover, because of the sheer magnitude of cases brought before the 
Court, citizens within the court's jurisdiction face unprecedented 
delays in getting their cases heard. Whereas the national average time 
to get a final disposition of an appellate case is nearly 11 months, an 
appeal in the Ninth Circuit takes nearly 50 percent longer--almost one 
year and four months.
  This is not the first time that Congress has recognized that the 
Ninth Circuit needs restructuring. Numerous proposals to divide the 
Ninth Circuit were debated in Congress even before World War II.
  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.
  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.''

  In 1997, Congress 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 and recommended major reforms and a fundamental 
reorganization of the Circuit.
  On the day my legislation is enacted into law, the concerns of the 
White Commission will be addressed. A more cohesive, efficient, and 
predictable judiciary will emerge.
  Many who oppose legislation to reorganize the Ninth Circuit, contend 
that all the Circuit needs is the appropriation of more Federal dollars 
for more Federal judges. However, I do not believe more money will 
solve the inherent problems that exist in a circuit of such magnitude. 
As former Senator and Alabama Supreme Court Chief Justice, Howell 
Heflin, a Democrat from Alabama, remarked after Congress divided the 
former Fifth Circuit: ``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.'' in the case of 
the Ninth Circuit, there can be little doubt that we are at that point 
in time that former Senator Heflin cited.
  Former Oregon Senator Bob Packwood believed that a Ninth Circuit 
split would enable judges to achieve a greater mastery of applicable, 
but unique, State law and State issues. He believed such 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 agree with the former Senator. 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 decisions 
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 case law.
  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. And the State of Hawaii should 
rightfully be included in this circuit, for like Alaska, there are 
unique issues that are faced by the two States that are not part of the 
contiguous lower 48.
  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 single 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 that will lead to 
greater uniformity and consistency in the development of federal law, 
and will ultimately strengthen the constitutional guarantee of equal 
justice for all.
  It is my hope that this Congress will finally approve this necessary 
reorganization. It is long overdue.
  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. 562

       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 2003''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Former ninth circuit.--The term ``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.--The term ``new ninth circuit'' 
     means the ninth judicial circuit of the United States 
     established by the amendment made by section 3(2)(A).
       (3) Twelfth circuit.--The term ``twelfth circuit'' means 
     the twelfth judicial circuit of the United States established 
     by the amendment made by section 3(2)(C).

     SEC. 3. 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:

    ``Ninth...........................  California, Nevada.'';
 

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

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


[[Page S3321]]

     SEC. 4. 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.....................................................25'';....

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

  ``Twelfth...................................................13.''....

     SEC. 5. 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:

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

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

    ``Twelfth.........................  Portland, Seattle.''.
 

     SEC. 6. ELECTION OF ASSIGNMENT BY CIRCUIT JUDGES.

       (a) In General.--Except as provided in subsection (b) and 
     notwithstanding section 44(c) of title 28, United States 
     Code, each circuit judge who is in regular active service, 
     and 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 who elects to be assigned under 
     section 6 shall run from the date of commission of such judge 
     as a judge of the former ninth circuit.

     SEC. 8. APPLICATION TO CASES.

       (a) In General.--The provisions of the following paragraphs 
     of this subsection 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 re-hearing 
     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. ADMINISTRATION.

       (a) Actions.--The former ninth circuit as constituted on 
     the day before the effective date of this Act may take such 
     administrative actions as may be required to carry out this 
     Act and the amendments made by this Act.
       (b) Termination.--The former ninth circuit shall cease to 
     exist for administrative purposes on July 1, 2005.
       (c) Meetings.--During the 10 years following the date of 
     enactment of this Act, the new ninth circuit and the twelfth 
     circuit may meet in either circuit's jurisdiction.

     SEC. 10. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall become 
     effective on October 1, 2003.
                                 ______