[Congressional Record Volume 150, Number 124 (Tuesday, October 5, 2004)]
[House]
[Pages H8048-H8063]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              CREATING ADDITIONAL FEDERAL COURT JUDGESHIPS

  The SPEAKER pro tempore. Pursuant to House Resolution 814 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the consideration of the Senate bill, S. 
878.

                              {time}  1120


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the 
Senate bill (S. 878) to authorize an additional permanent judgeship in 
the district of Idaho, and for other purposes, with Mr. LaHood in the 
chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Wisconsin (Mr. Sensenbrenner) and 
the gentleman from California (Mr. Berman) each will control 30 
minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, the Judicial Conference of the United States reviews 
the judgeship needs of United States courts every 2 years to determine 
if any of the courts need additional judges. The Conference completed 
its last review in March of 2003, and then submitted its 
recommendations to the House and Senate Committees on the Judiciary. I 
am pleased that the bill as reported by the Committee mirrors that 
recommendation. Thus, these are judgeships being created based upon 
demonstrated need and not upon politics.
  The Judicial Conference bases its recommendations on a variety of 
factors that indicate the needs of various courts. Most importantly, it 
sets a benchmark caseload standard for considering judgeship requests 
at 430 weighted cases for individual judges on the district courts and 
500 adjusted case filings for the three-judge panels on the courts of 
appeal. Aside from the numbers, it also considers additional criteria, 
including senior judge and magistrate judge assistance, geographical 
factors, unusual caseload complexity, and temporary caseload increases 
or decreases.
  Based on these criteria, the Conference's current proposal recommends 
that Congress establish 11 new judgeships in four courts of appeal and 
46 new judgeships in 24 district courts. The Conference also recommends 
that five temporary district court judgeships created in 1990 be 
established as permanent positions. Many of these needs have existed 
for many years.
  The other body passed Senate 878 on May 22, 2003. The Senate bill 
created 12 permanent district judgeships, two temporary district 
judgeships, and a number of bankruptcy judgeships. This version of S. 
878 also converted two temporary district judgeships to permanent 
status.
  During our September 9 markup on the legislation, the Committee on 
the Judiciary revised the bill in two major ways.
  First, we added all the circuit and district judgeships recommended 
by the U.S. Judicial Conference that were not included in the Senate 
bill. This brings the total number of new judgeships in the bill to 58, 
11 circuit court seats and 47 district court seats. In addition, four 
other temporary district judgeships are converted to permanent 
judgeships.
  The Subcommittee on Courts, the Internet, and Intellectual Property 
conducted an oversight hearing on Federal judgeship needs last year, 
and we are satisfied as a committee that the submissions developed by 
the Judicial Conference are meritorious. I emphasize that all the 
judgeships in the bill before the House could more than satisfy the 
threshold requirements developed by the Judicial Conference.
  Second, all of the bankruptcy judgeships set forth in S. 878 as 
passed by the other body were stricken. These will be dealt with in the 
context of the bankruptcy reform legislation which the House has passed 
and which is currently pending before the other body.
  Mr. Speaker, whatever our occasional differences with the third 
branch, it is our responsibility to ensure that our Federal courts have 
the resources necessary to allow citizens to seek legal redress in 
civil disputes and to permit the prosecution of criminal offenses when 
appropriate. This is a basic function of government.
  I urge the Members to support the underlying text of S. 878, as well 
as the amendment that I will shortly offer to ensure that this bill 
does not run afoul of the Budget Act, based on the CBO score that 
accompanies this bill.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I rise in conditional opposition to S. 878. The reason 
I would oppose this bill is if the amendment offered by the gentleman 
from Idaho is passed by this body.
  I firmly believe we should pass a judgeship bill, and I supported it, 
Senate bill 878, as it was reported out by the House Committee on the 
Judiciary. The reported bill created all new Article 3 judgeships 
requested by the Administrative Office of the U.S. Courts. As a result, 
it would provide critical assistance to many Federal district

[[Page H8049]]

and appeals courts currently staggering under tremendous caseloads.
  As reported, S. 878 is largely noncontroversial and enjoyed 
bipartisan support at the House Committee on the Judiciary markup. In 
fact, if S. 878 were brought up on the Suspension Calendar, as it 
should have been, I have no doubt it would have passed on a voice vote.
  Since it is so noncontroversial, we might ask ourselves why the 
House's valuable time must be wasted debating S. 878 under a rule. Why 
are we not using this valuable time to deal with the more difficult 
appropriations or national security bills?
  The answer is that a decision has been made to turn this 
noncontroversial bill into campaign season cannon fodder. This 
noncontroversial bill comes before us on a rule in order to provide an 
opportunity to debate an amendment soon to be offered by the gentleman 
from Idaho.
  The tragedy is that this tactic may result in the adoption of a 
highly inadvisable amendment. An adoption of this amendment, which 
would split the Ninth Circuit Court of Appeals into three circuits, 
will signal the death knell for S. 878 in the Senate.
  I will discuss my reasons for opposing that amendment in some detail 
when it is offered, but I can state at this time that if this amendment 
were to pass, it would be the first time in the history of our Federal 
judiciary that we have split a circuit against the will of the justices 
of that circuit.
  If the amendment is adopted, S. 878 will die in the Senate. There is 
no question about that.
  I might also point out that S. 878, as it passed out of committee, 
while noncontroversial, failed to include any of the new bankruptcy 
judges that are very important to deal with the tremendous caseload 
problems in our bankruptcy courts. The Committee on the Judiciary 
stripped out all of the bankruptcy judgeships because the majority 
thought that requiring the Senate to pass the bankruptcy reform bill, 
which also contains authorization for those same judgeships, might be 
leveraged in the process. I think that is a strategy that is destined 
to fail and it is a failure in S. 878, in that the judges so 
desperately needed on the bankruptcy court are not included in this 
bill.
  Mr. Chairman, I reserve the balance of my time.

                              {time}  1130

  Mr. Chairman, I yield 3 minutes to the gentlewoman from California 
(Ms. Lofgren), a member of the Subcommittee on Courts, the Internet, 
and Intellectual Property of the Committee on the Judiciary.
  Ms. LOFGREN. Mr. Chairman, I rises today not only as a member of the 
Committee on the Judiciary but as chair of the California Democratic 
Delegation to say we need more judges, but we do not need to split the 
Ninth Circuit. It is important to know that California's Republican 
Governor, Arnold Schwarzenegger opposes the proposed split as does 
former Republican Governor Pete Wilson. Our two Democratic Senators, 
Dianne Feinstein and Barbara Boxer, also oppose the split, and the 
American Bar Association and the California Academy of Appellate 
Lawyers also oppose the split. Even the judges of the Ninth Circuit 
oppose the split by a 30-to-9 margin.
  According to the Administrative Office of the Courts, the start-up 
cost for such a split would be $131 million, and there would be an 
additional $21.7 million in extra personnel costs every year.
  Why would we waste these millions? The Ninth Circuit is not broken. 
Although the Ninth Circuit contains the largest number of judges of any 
Federal circuit, the ratio of published opinions to the number of 
judgeships is well within what is applicable to other circuits. It is 
also worth noting that the circuit judges in the Ninth Circuit take 
only 1.4 months to decide cases following argument, while the national 
average is 2.1 months.
  Despite all the rhetoric, the Ninth Circuit's reversal rates compare 
favorably with every other circuit. So I would urge my colleagues to 
oppose and vote down the amendment to split the circuit. We do need 
these judges. But join the Republican governor and the judges and the 
taxpayers, who do not want to fund this waste, in turning down this 
ill-conceived amendment to split the Ninth Circuit so that we can move 
forward and get those judges that we need.
  Mr. BERMAN. Mr. Chairman, I yield 4 minutes to the gentleman from 
California (Mr. Schiff), a member of the Committee on the Judiciary.
  Mr. SCHIFF. Mr. Chairman, I thank the gentleman for yielding me time.
  I rise with the same conditional support of S. 878 as my colleague 
from California (Mr. Berman). The base bill responds to a crisis of 
judicial vacancies in our country by authorizing a number of much-
needed judgeships.
  Since arriving at Congress, I have been very surprised by the poor 
state of relations between our branches and the absence of comity that 
has existed between the Congress and the courts. The Federal caseload 
continues to increase at a record pace, reaching record levels. 
Courthouse funding is woefully inadequate, failing to meet the needs of 
Federal courts in order to carry out their critical mission and to make 
necessary improvements in priority areas such as courthouse security.
  Judicial confirmations continue to be mired in political 
brinksmanship and judicial compensation has not kept pace with 
inflation. What is more, the Congress has now resorted to a more 
proactive attack on the judicial branch which we have seen on the floor 
of this body most recently in the form of court-stripping proposals.
  Today's action on this legislation, barring the Simpson amendment, is 
a welcome and long overdue step in recognizing our responsibility in 
Congress to support the judiciary. But I am gravely concerned about the 
potential of the Simpson amendment. It seems to fly directly in the 
face of the White Commission's report analyzing when circuits should be 
split and when they should not. The White Commission reported in 1998: 
``There is one principle that we regard as undebatable. It is wrong to 
realign circuits or not to realign them and to restructure courts or to 
leave them alone because of particular judicial decisions or particular 
judges. This rule must be faithfully honored for the independence of 
the judiciary is of constitutional dimension and requires no less.''
  The Judicial Conference of the United States periodically completes a 
review of judgeship needs. As a result of rapid increase in the 
caseloads of our courts, the conference recommended that Congress 
establish 11 new judgeships and four courts of appeals and 46 new 
judgeships and 26 district courts. It also recommended five temporary 
judgeships become permanent.
  The base bill is an important step in fulfilling that goal, and the 
House bill authorizes more than 50 new judgeships across the United 
States. However, if this bill becomes bogged down in an amendment which 
would only continue the assault on the judiciary, contravene the will 
of the judges of the circuit itself, it will be a step in the wrong 
direction. Circuit division would eliminate a number of important 
advantages that come from a large circuit. It would eliminate the 
ability to transfer judges from one district to another within the same 
circuit to deal with fluctuating caseloads. It would reduce the number 
of circuit judges available to decide the cases from the growing border 
of districts from Arizona and southern California.
  For these reasons, division of the circuit is strongly opposed by a 
bipartisan coalition of judges and officials. The judges of the Ninth 
Circuit have voted overwhelmingly 30 to 9 against division. In 
addition, California Governor Arnold Schwarzenegger strongly opposes 
any effort to break up the circuit.
  What is more, as the White Commission wrote, ``there is no persuasive 
evidence that the Ninth Circuit or any other circuit for that matter is 
not working effectively or that creating new circuits will improve the 
administration of justice in any circuit or overall. Furthermore, 
splitting the circuit would impose substantial costs of administrative 
disruption, not to mention the monetary costs of creating a new 
circuit. Accordingly, we do not recommend to Congress and the President 
that they consider legislation to split the circuit.''
  Are we going to take a bill that was one of the few positive lights 
in the relationship between the Congress and the courts and turn it 
into yet another assault on the wishes and the needs of the judiciary?

[[Page H8050]]

  To quote the White Report again, ``Maintaining the Court of Appeals 
for the Ninth Circuit as currently aligned respects the character of 
the west as a distinct region.''
  Mr. Chairman, I urge support for the base bill and rejection of the 
Simpson amendment.
  Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman 
from New Mexico (Mr. Pearce).
  Mr. PEARCE. Mr. Chairman, I rise today in support of Senate S. 878 
which authorizes the creation of certain new U.S. circuit and district 
judgeships as well as converts temporary judgeships to permanent 
status.
  Mr. Chairman, I would like to thank the gentleman from Wisconsin (Mr. 
Sensenbrenner) and his staff for their leadership in addressing the 
urgency for additional Federal district judgeships in the United States 
District Court of New Mexico, especially in Las Cruces, New Mexico. 
This desperate judicial situation in the southern New Mexico district 
is manifest in crushing caseloads, unique geographical factors, and the 
exhaustion of judicial resources. Data indicates that the district has 
the fourth highest total criminal caseload per judgeship in the Nation 
with 739 weighted cases per judgeship. This is 46 percent higher than 
the national average and a 150 percent increase from 1996.
  This extraordinary caseload is primarily attributed to the 
geographical factors unique to the district. Immigration and narcotics 
cases are almost exclusively driving the increase, placing an 
extraordinary burden on the Las Cruces Federal Courthouse, which is 
just 50 miles away from the U.S.-Mexico border. The district has begun 
to exhaust all judicial resources. One option to handle the enormous 
caseload in Las Cruces is assigning rotating duties to district judges 
from Albuquerque and Santa Fe, requiring judges and their staffs to 
travel more than 450 miles roundtrip during the week. Many of the 
judges are even called in from other jurisdictions.
  U.S. district judges from Vermont to Kansas have presided in Las 
Cruces regularly and conclude that they have never seen a caseload as 
high as in the entire time they have been on the bench. One judge 
commented that, in 28 days, he handled more capital cases in 28 days 
than he did during an entire year in Vermont.
  The desperately needed judges provided for in this legislation will 
decrease the weighted filings by half, bringing the district on parity 
with the rest of the districts in the United States.
  Again, I thank the gentleman from Wisconsin (Mr. Sensenbrenner) for 
his fine leadership on this legislation and urge passage of S. 878.
  Mr. BERMAN. Mr. Chairman, I yield 3 minutes to the gentlewoman from 
California (Ms. Woolsey).
  Ms. WOOLSEY. Mr. Chairman, I thank the gentleman from California (Mr. 
Berman) for yielding me time.
  Mr. Chairman, I am tired of my Republican colleagues using the term 
``activist judges'' to scare citizens into believing our Federal 
judiciary has lost all credibility and seeks only to promote an 
activist liberal agenda, and I am taking this time today to tell you 
why.
  This is plainly not the truth. It is wrong, and it is illogical. In 
fact, was not it activist unelected judges who appointed the current 
President of the United States of America? The only threat these 
judges, most of whom were appointed by Republican Presidents, present 
is shutting down the Republicans ultra-conservative agenda and actually 
proving that many of the policies Republicans promote are 
unconstitutional or discriminating.
  Let us take the controversial Ninth Circuit Court as an example. 
Twenty-six judges sit on this court. My Republican colleagues talk as 
if all of these judges are out to destroy the morals of this country, 
that these judges will destroy the fabric of our families and sensor 
religious practices perhaps because our colleagues on the other side of 
the aisle believe that these judges do not believe in fundamental 
Christian values. But at least half of these judges have conservative 
leanings. And I ask, is 50 percent not enough?
  My Republican colleagues also like to insinuate the Democrats have 
appointed most of the active judges in our courts today. But they are 
mistaken. Since President Jimmy Carter was in office, Democrats have 
appointed 634 judges. Republicans have appointed 735 judges. It seems 
to me that Republicans know their policies are so radical that they 
will not stand up in court, and the only way to ensure their policies 
will stay on the books is to wipe out our jurisdiction system and erase 
our systems of checks and balances.
  Republicans are destroying the courts, undermining judges' decisions, 
bullying those who stand by the Constitution. Do not let them tell you 
they are fighting activist judges. They are just carrying out their 
paranoid control. Mr. Chairman, if the judges in this country were so 
biased, so against conservative values, how did our current President 
get appointed in the year 2000? Those judges did not seem too activist 
to Republicans at that time, did they?
  Mr. UDALL of Colorado. Mr. Chairman, I will vote against this 
amendment because I am concerned that whatever benefits it might have 
are outweighed by the costs to the taxpayers that it would entail.
  The current jurisdiction of the Ninth Circuit is certainly 
extensive--from Alaska to Hawaii, Guam, and the Commonwealth of the 
Northern Marianas and including California, Nevada, Arizona, Idaho, 
Montana, Nevada, Oregon, and Washington.
  The populations of several of these states have increased 
considerably in recent years, and it can be anticipated that the 
caseloads of the Ninth Circuit will continue to increase accordingly. 
So, there might be something to be said for realigning the judicial 
districts now included in the Ninth Circuit.
  However, I do not think that it is appropriate for the House of 
Representatives to make such an important decision on the basis of the 
very brief consideration that we are being permitted today.
  And I certainly think that before making such a serious decision, we 
should consider how it would affect the ability of the federal courts 
to do their job.
  Regarding that aspect of the matter, I think we should all pay 
careful heed to the analysis of the Administrative Office of the United 
States Courts contained in a May 14th letter from its Director, 
Leonidas Ralph Meacham, to Senator Feinstein.
  Discussing proposals to divide the Ninth Circuit in ways similar to 
that proposed in this amendment, Mr. Meacham wrote ``The judiciary is 
not in a position to absorb any of the additional costs'' that would 
result. He goes on to say that dividing the Ninth Circuit into three 
circuits--which is what this amendment would do--``would likely require 
one-time start-up funding ranging from $16.7 million to $18.9 million 
for space alterations, information technology and telecommunications 
infrastructure, furniture, and law books. In addition, a new courthouse 
would have to be built'' (and another modernized) that would cost 
millions more. Also, according to Mr. Meacham, ``The judiciary would 
also require an additional $21.7 million annually in recurring 
personnel and operating expenses.''
  At a time when our courts are already hard-pressed for funding and 
the overall federal budget is drowning in red ink, I think we should 
not lightly incur such additional costs--and certainly not on the basis 
of a mere 40 minutes of debate on this amendment.
  Instead, any measure to realign the Ninth Circuit--or any other part 
of the federal courts, for that matter--should be carefully reviewed in 
committee and then considered by the House of Representatives under 
procedures that allow full consideration of its potential benefits and 
the costs that would be involved.
  If such a measure is considered under those considerations, I will 
review it carefully and will support it if I am convinced that it 
deserves approval. However, I have not reached that conclusion about 
this amendment and so I will vote against it.
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I rise in partial support of 
the bill before the Committee of the Whole, S. 878, authorizing the 
addition of permanent judgeships in the District of Idaho and for other 
purposes. As introduced, the bill only authorized the President to 
appoint a new U.S. district judge for the District of Idaho. 
Substitutes adopted by the Senate Judiciary Committee (on May 20, 2003) 
and the full Senate (two days later) added another 15 district 
judgeships (permanent, temporary, or temporary converted to permanent), 
along with 29 permanent and seven converted (temporary-to-permanent) 
bankruptcy judgeships.
  The rule reports out of the Committee on Rules, H. Res. 814, severely 
hindered the ability of Members to improve this legislation by ruling 
only two--Republican--amendemtns in order. The amendment offered by the 
Chairman of the Judiciary Committee that would stagger the 
implementation of this legislation to accommodate budgetary needs.
  On the other hand, the amendment offered by the gentleman from Idaho 
threatens to

[[Page H8051]]

water down the 9th Circuit and effectively strip the existing courts of 
their ability to take up cases. This effect would be consistent with 
the line of court-stripping legislation that has passed in this House 
recently--the Pledge Protection Act; the Federal Marriage Amendment; 
the Marriage Protection Act.
  The amendment that was offered by the Distinguished Ranking Member of 
the Judiciary Committee that would call for increases in the pay that 
federal circuit judges receive should have been ruled in order.
  We must protect the power and discretion of the Courts and we must 
preserve the sanctity of the U.S. Constitution. The way that we 
legislate to change the makeup of the federal circuit courts will have 
a tremendous effect on the development of jurisprudence.

  The Subcommittee on Courts, the Internet, and Intellectual Property 
conducted an oversight hearing regarding federal judgeship needs on 
June 24, 2003. The Subcommittee reviewed the original request for 
additional circuit and district judgeships developed by the U.S. 
Judicial Conference and the methodology adopted to justify the 
submission.
  The Judicial Conference of the United States (Conference) reviews 
biannually the judgeship needs of all U.S. courts of appeal and U.S. 
district courts to determine if any of the courts require additional 
judges to administer civil and criminal justice in the federal court 
system. The Conference then submits its recommendations to the House 
and Senate Committees on the Judiciary. The Conference completed its 
last review in March, 2003, and submitted its recommendations to 
Congress.
  The Conference set a benchmark caseload standard for considering 
judgeship requests at 430 weighted cases per judgeship for district 
courts and 500 adjusted case filings per panel for courts of appeal. 
The Conference process takes into account additional criteria that may 
influence the judgeship needs of each court, including senior judge and 
magistrate judge assistance, geographical factors, unusual caseload 
complexity, and temporary caseload increases or decreases.
  Therefore, I support this legislation only insofar as it aids in the 
administration of justice; however, I reserve my opposition to the 
negative effects that I can have on the discretion that federal judges 
have.
  Mr. SMITH of Texas. Mr. Chairman, the Chairman did a good job of 
summarizing S. 878 so I will not repeat his description of the bill.
  I would emphasize that during my Subcommittee's oversight hearing on 
judgeship needs last year we received testimony from the Judicial 
Conference and others that supported the requests that are a part of 
this package.
  The need to create new circuit and district judgeships is real and 
speaks to our obligation to assist a coequal branch of government in 
discharging its duties on behalf of the American people.
  I urge Members to support the bill and the Sensenbrenner amendment 
that will cure a scoring problem with consideration of S. 878.
  Mr. THOMAS. Mr. Chairman, I rise today in support of S. 878, which 
would make important upgrades to the Federal judiciary's 
infrastructure. I appreciate the leadership Chairman Sensenbrenner has 
exhibited in the development of this legislation, which would establish 
58 new Federal judgeships.
  As reported by the House Committee on the Judiciary, S. 878 would 
provide 47 new Federal district court judgeships. Significantly, S. 878 
reflects legislation (H.R. 3486) that I introduced earlier this year in 
that S. 878 would convert the expired temporary judgeship in the U.S. 
District Court for the Eastern District of California temporary 
judgeship to a permanent judgeship and add three additional permanent 
judgeships.
  These additional four judgeships are much-needed as the seven judges 
in the Eastern District are currently carrying an average weighted 
caseload of 788 each, far in excess of the 430 benchmark used by the 
U.S. Judicial Conference to determine when additional permanent 
judgeships are required. Moreover, it must be noted that the judges of 
the Eastern District have exceeded that benchmark since 1998, when 
their average weighted caseload was 567. The judges of the Eastern 
District also have an average of 920 pending cases each, an increase of 
25 percent since 1998.
  In addition, the Eastern District continues to see an annual increase 
in total filings; in 2003, 5,853 cases were filed in the Eastern 
District, which is an increase of 1,139 cases from the 4,714 cases 
filed in 1998. As one would expect, the number of pending cases in the 
Eastern District has likewise increased; in 2003, there were 6,440 
cases pending, which is an increase of 1,269 since 1998.
  Accordingly, I encourage my colleagues to continue to work to quickly 
enact legislation to provide the Federal judiciary, and especially the 
Eastern District of California, with the resources necessary to 
efficiently and effectively administer justice.
  Mr. BERMAN. Mr. Chairman, we have no further requests for time, and I 
yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. All time for general debate has expired.
  Pursuant to the rule, the committee amendment in the nature of a 
substitute printed in the bill shall be considered as an original bill 
for the purpose of amendment under the 5-minute rule and shall be 
considered read.
  The text of the committee amendment in the nature of a substitute is 
as follows:

                                 S. 878

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

     SECTION 1. NEW DISTRICT JUDGESHIPS.

       The President shall appoint, by and with the advice and 
     consent of the Senate, the following:
       (1) 1 additional district judge for the northern district 
     of Alabama.
       (2) 1 additional district judge for the middle district of 
     Alabama.
       (3) 3 additional district judges for the district of 
     Arizona.
       (4) 1 additional district judge for the northern district 
     of California.
       (5) 3 additional district judges for the eastern district 
     of California.
       (6) 1 additional district judge for the central district of 
     California.
       (7) 2 additional district judges for the southern district 
     of California.
       (8) 2 additional district judges for the middle district of 
     Florida.
       (9) 4 additional district judges for the southern district 
     of Florida.
       (10) 1 additional district judge for the district of Idaho.
       (11) 1 additional district judge for the western district 
     of Missouri.
       (12) 1 additional district judge for the district of 
     Nebraska.
       (13) 2 additional district judges for the district of New 
     Mexico.
       (14) 3 additional district judges for the eastern district 
     of New York.
       (15) 1 additional district judge for the district of 
     Oregon.
       (16) 1 additional district judge for the district of South 
     Carolina.
       (17) 2 additional district judges for the eastern district 
     of Virginia.
       (18) 1 additional district judge for the district of Utah.
       (19) 1 additional district judge for the western district 
     of Washington.

     SEC. 2. CONVERSION OF TEMPORARY TO PERMANENT JUDGESHIPS.

       The existing judgeships for the eastern district of 
     California, the district of Hawaii, the district of Kansas, 
     the eastern district of Missouri, that were authorized by 
     section 203(c) of the Judicial Improvements Act of 1990 (28 
     U.S.C. 133 note; Public Law 101-650) shall, as of the date of 
     the enactment of this Act, be authorized under section 133 of 
     title 28, United States Code, and the incumbents in those 
     offices shall, as of such date of enactment, hold those 
     offices under section 133 of title 28, United States Code, as 
     amended by this Act.

     SEC. 3. TEMPORARY JUDGESHIPS.

       (a) Appointment.--The President shall appoint, by and with 
     the advice and consent of the Senate, the following:
       (1) 1 additional district judge for the northern district 
     of California.
       (2) 2 additional district judges for the central district 
     of California.
       (3) 3 additional district judges for the southern district 
     of California.
       (4) 1 additional district judge for the district of 
     Colorado.
       (5) 1 additional district judge for the middle district of 
     Florida.
       (6) 1 additional district judge for the northern district 
     of Illinois.
       (7) 1 additional district judge for the northern district 
     of Indiana.
       (8) 1 additional district judge for the southern district 
     of Indiana.
       (9) 1 additional district judge for the northern district 
     of Iowa.
       (10) 1 additional district judge for the district of New 
     Mexico.
       (11) 1 additional district judge for the eastern district 
     of New York.
       (12) 1 additional district judge for the western district 
     of New York.
       (b) Vacancies Not Filled.--(1) The first 2 vacancies in the 
     office of district judge in the central district of 
     California, occurring 10 years or more after judges are first 
     confirmed to fill both temporary judgeships created in that 
     district by subsection (a), shall not be filled.
       (2) The first 3 vacancies in the office of district judge 
     in the southern district of California, occurring 10 years or 
     more after judges are first confirmed to fill all 3 temporary 
     judgeships created in that district by subsection (a), shall 
     not be filled.
       (3) The first vacancy in the office of district judge in 
     each district named in subsection (a), other than the central 
     or southern district of California, occurring 10 years or 
     more after judges are first confirmed to fill the temporary 
     judgeship created in that district by subsection (a), shall 
     not be filled.

     SEC. 4. CONFORMING AMENDMENTS.

       The table contained in section 133(a) of title 28, United 
     States Code, is amended--
       (1) by amending the item relating to Alabama to read as 
     follows:

``Alabama:

[[Page H8052]]

    Northern.....................................................8 ....

    Middle.......................................................4 ....

    Southern...................................................3'';....

       (2) by amending the item relating to Arizona to read as 
     follows:

    ``Arizona.................................................15'';....

       (3) by amending the item relating to California to read as 
     follows:

``California:
    Northern....................................................15 ....

    Eastern.....................................................10 ....

    Central.....................................................28 ....

    Southern..................................................15'';....

       (4) by amending the item relating to Florida to read as 
     follows:

``Florida:
    Northern.....................................................4 ....

    Middle......................................................17 ....

    Southern..................................................21'';....

       (5) by amending the item relating to Hawaii to read as 
     follows:

    ``Hawaii...................................................4'';....

       (6) by amending the item relating to Idaho to read as 
     follows:

    ``Idaho....................................................3'';....

       (7) by amending the item relating to Kansas to read as 
     follows:

    ``Kansas...................................................6'';....

       (8) by amending the item relating to Missouri to read as 
     follows:

``Missouri:
    Eastern......................................................7 ....

    Western......................................................5 ....

    Eastern and Western........................................2'';....

       (9) by amending the item relating to Nebraska to read as 
     follows:

    ``Nebraska.................................................4'';....

       (10) by amending the item relating to New Mexico to read as 
     follows:

    ``New Mexico...............................................8'';....

       (11) by amending the item relating to New York to read as 
     follows:

``New York:
    Northern.....................................................5 ....

    Southern....................................................28 ....

    Eastern.....................................................18 ....

    Western....................................................4'';....

       (12) by amending the item relating to Oregon to read as 
     follows:

    ``Oregon...................................................7'';....

       (13) by amending the item relating to South Carolina to 
     read as follows:

    ``South Carolina..........................................11'';....

       (14) by amending the item relating to Utah to read as 
     follows:

    ``Utah.....................................................6'';....

       (15) by amending the item relating to Virginia to read as 
     follows:

``Virginia:
    Eastern.....................................................13 ....

    Western....................................................4'';....

     and
       (16) by amending the item relating to Washington to read as 
     follows:

``Washington:
    Eastern......................................................4 ....

    Western....................................................8''.....

     SEC. 5. ADDITIONAL CIRCUIT JUDGES.

       (a) Permanent Judgeships.--The President shall appoint, by 
     and with the advice and consent of the Senate, 1 additional 
     circuit judge for the first circuit court of appeals, 2 
     additional circuit judges for the second circuit court of 
     appeals, 1 additional circuit judge for the sixth circuit 
     court of appeals, and 5 additional circuit judges for the 
     ninth circuit court of appeals.
       (b) Temporary Judgeships.--
       (1) Appointment of judges.--The President shall appoint, by 
     and with the advice and consent of the Senate, 2 additional 
     circuit judges for the ninth circuit court of appeals.
       (2) Effect of vacancies.--The first 2 vacancies occurring 
     on the ninth circuit court of appeals 10 years or more after 
     judges are first confirmed to fill both temporary circuit 
     judgeships created by this subsection shall not be filled.
       (c) Number of Circuit Judges.--The table contained in 
     section 44(a) of title 28, United States Code, is amended--
       (1) by amending the item relating to the first circuit to 
     read follows:

``First........................................................7'';....

       (2) by amending the item relating to the second circuit to 
     read follows:

``Second......................................................15'';....

       (3) by amending the item relating to the sixth circuit to 
     read as follows:

``Sixth.......................................................17'';....

     and
       (4) by amending the item relating to the ninth circuit to 
     read as follows:

``Ninth.......................................................33''.....

  The CHAIRMAN. No amendment to the committee amendment is in order 
except those printed in House Report 108-723. Each amendment may be 
offered only in the order printed in the report, by a member designated 
in the report, shall be considered read, shall be debatable for the 
time specified in the report, equally divided and controlled by the 
proponent and an opponent, shall not be subject to amendment, and shall 
not be subject to a demand for division of the question.
  It is now in order to consider amendment No. 1 printed in House 
Report 108-723.


              Amendment No. 1 Offered by Mr. Sensenbrenner

  Mr. SENSENBRENNER. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 1 offered by Mr. Sensenbrenner:
       Strike sections 1 through 4 and insert the following:

     SECTION 1. NEW DISTRICT JUDGESHIPS.

       The President shall appoint, by and with the advice and 
     consent of the Senate, the following:
       (1) 1 additional district judge for the northern district 
     of Alabama, who shall be appointed no earlier than October 1, 
     2006.
       (2) 1 additional district judge for the middle district of 
     Alabama, who shall be appointed no earlier than October 1, 
     2008.
       (3) 3 additional district judges for the district of 
     Arizona, who shall be appointed no earlier than October 1, 
     2007.
       (4) 1 additional district judge for the northern district 
     of California, who shall be appointed no earlier than October 
     1, 2006.
       (5) 3 additional district judges for the eastern district 
     of California, who shall be appointed no earlier than October 
     1, 2006.
       (6) 1 additional district judge for the central district of 
     California, who shall be appointed no earlier than October 1, 
     2005.
       (7) 2 additional district judges for the southern district 
     of California, who shall be appointed no earlier than October 
     1, 2005.
       (8) 2 additional district judges for the middle district of 
     Florida, who shall be appointed no earlier than October 1, 
     2007.
       (9) 4 additional district judges for the southern district 
     of Florida, who shall be appointed no earlier than October 1, 
     2005.
       (10) 1 additional district judge for the district of Idaho, 
     who shall be appointed no earlier than October 1, 2008.
       (11) 1 additional district judge for the western district 
     of Missouri, who shall be appointed no earlier than October 
     1, 2008.
       (12) 1 additional district judge for the district of 
     Nebraska, who shall be appointed no earlier than October 1, 
     2006.
       (13) 2 additional district judges for the district of New 
     Mexico, one of whom shall be appointed no earlier than 
     October 1, 2005, and one of whom shall be appointed no 
     earlier than October 1, 2008.
       (14) 3 additional district judges for the eastern district 
     of New York, who shall be appointed no earlier than October 
     1, 2007.
       (15) 1 additional district judge for the district of 
     Oregon, who shall be appointed no earlier than October 1, 
     2010.
       (16) 1 additional district judge for the district of South 
     Carolina, who shall be appointed no earlier than October 1, 
     2008.
       (17) 1 additional district judge for the district of Utah, 
     who shall be appointed no earlier than October 1, 2008.
       (18) 2 additional district judges for the eastern district 
     of Virginia, who shall be appointed no earlier than October 
     1, 2006.
       (19) 1 additional district judge for the western district 
     of Washington, who shall be appointed no earlier than October 
     1, 2009.

     SEC. 2. CONVERSION OF TEMPORARY TO PERMANENT JUDGESHIPS.

       The existing judgeships for the eastern district of 
     California, the district of Hawaii, the district of Kansas, 
     and the eastern district of Missouri, that were authorized by 
     section 203(c) of the Judicial Improvements Act of 1990 (28 
     U.S.C. 133 note; Public Law 101-650) shall, as of the date of 
     the enactment of this Act, be authorized under section 133 of 
     title 28, United States Code, and the incumbents in those 
     offices shall, as of such date of enactment, hold those 
     offices under section 133 of title 28, United States Code, as 
     amended by this Act.

     SEC. 3. TEMPORARY JUDGESHIPS.

       (a) Appointment.--The President shall appoint, by and with 
     the advice and consent of the Senate, the following:
       (1) 1 additional district judge for the northern district 
     of California, who shall be appointed no earlier than October 
     1, 2010.
       (2) 2 additional district judges for the central district 
     of California, who shall be appointed no earlier than October 
     1, 2010.
       (3) 3 additional district judges for the southern district 
     of California, who shall be appointed no earlier than October 
     1, 2009.
       (4) 1 additional district judge for the district of 
     Colorado, who shall be appointed no earlier than October 1, 
     2009.
       (5) 1 additional district judge for the middle district of 
     Florida, who shall be appointed no earlier than October 1, 
     2010.
       (6) 1 additional district judge for the northern district 
     of Illinois, who shall be appointed no earlier than October 
     1, 2009.
       (7) 1 additional district judge for the northern district 
     of Indiana, who shall be appointed no earlier than October 1, 
     2009.
       (8) 1 additional district judge for the southern district 
     of Indiana, who shall be appointed no earlier than October 1, 
     2010.
       (9) 1 additional district judge for the northern district 
     of Iowa, who shall be appointed no earlier than October 1, 
     2010.
       (10) 1 additional district judge for the district of New 
     Mexico, who shall be appointed no earlier than October 1, 
     2008.
       (11) 1 additional district judge for the eastern district 
     of New York, who shall be appointed no earlier than October 
     1, 2009.
       (12) 1 additional district judge for the western district 
     of New York, who shall be appointed no earlier than October 
     1, 2008.
       (b) Vacancies Not Filled.--(1) The first 2 vacancies in the 
     office of district judge in the central district of 
     California, occurring

[[Page H8053]]

     10 years or more after judges are first confirmed to fill 
     both temporary judgeships created in that district by 
     subsection (a), shall not be filled.
       (2) The first 3 vacancies in the office of district judge 
     in the southern district of California, occurring 10 years or 
     more after judges are first confirmed to fill all 3 temporary 
     judgeships created in that district by subsection (a), shall 
     not be filled.
       (3) The first vacancy in the office of district judge in 
     each district named in subsection (a), other than the central 
     or southern district of California, occurring 10 years or 
     more after judges are first confirmed to fill the temporary 
     judgeship created in that district by subsection (a), shall 
     not be filled.

     SEC. 4. CONFORMING AMENDMENTS.

       (a) Amendments.--The table contained in section 133(a) of 
     title 28, United States Code, is amended--
       (1) by amending the item relating to Alabama to read as 
     follows:

``Alabama:
    Northern.....................................................8 ....

    Middle.......................................................4 ....

    Southern...................................................3'';....

       (2) by amending the item relating to Arizona to read as 
     follows:

    ``Arizona.................................................15'';....

       (3) by amending the item relating to California to read as 
     follows:

``California:
    Northern....................................................15 ....

    Eastern.....................................................10 ....

    Central.....................................................28 ....

    Southern..................................................15'';....

       (4) by amending the item relating to Florida to read as 
     follows:

``Florida:
    Northern.....................................................4 ....

    Middle......................................................17 ....

    Southern..................................................21'';....

       (5) by amending the item relating to Hawaii to read as 
     follows:

    ``Hawaii...................................................4'';....

       (6) by amending the item relating to Idaho to read as 
     follows:

    ``Idaho....................................................3'';....

       (7) by amending the item relating to Kansas to read as 
     follows:

    ``Kansas...................................................6'';....

       (8) by amending the item relating to Missouri to read as 
     follows:

``Missouri:
    Eastern......................................................7 ....

    Western......................................................6 ....

    Eastern and Western........................................2'';....

       (9) by amending the item relating to Nebraska to read as 
     follows:

    ``Nebraska.................................................4'';....

       (10) by amending the item relating to New Mexico to read as 
     follows:

    ``New Mexico...............................................8'';....

       (11) by amending the item relating to New York to read as 
     follows:

``New York:
    Northern.....................................................5 ....

    Southern....................................................28 ....

    Eastern.....................................................18 ....

    Western....................................................4'';....

       (12) by amending the item relating to Oregon to read as 
     follows:

    ``Oregon...................................................7'';....

       (13) by amending the item relating to South Carolina to 
     read as follows:

    ``South Carolina..........................................11'';....

       (14) by amending the item relating to Utah to read as 
     follows:

    ``Utah.....................................................6'';....

       (15) by amending the item relating to Virginia to read as 
     follows:

``Virginia:
    Eastern.....................................................13 ....

    Western................................................4''; and....

       (16) by amending the item relating to Washington to read as 
     follows:

``Washington:
    Eastern......................................................4 ....

    Western....................................................8''.....

       (b) Construction.--The amendments made by subsection (a) 
     shall not be construed to authorize the appointment of any 
     judge on a date earlier than that authorized for that judge 
     under section 1.

  The CHAIRMAN. Pursuant to House Resolution 814, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and a Member opposed each will control 5 
minutes.
  The gentleman from Wisconsin (Mr. Sensenbrenner) is recognized.
  Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I regret that I must offer this amendment to S. 878, 
but its passage will avoid a problem highlighted by the Congressional 
Budget Office and its cost estimate for the bill.
  Budget rules require us to stay within a 1-year and 5-year budget 
authority score for direct spending. The bill as reported by the 
Committee on the Judiciary comports with the 1-year spending threshold 
imposed by the budget rule. Unfortunately, however, the 5-year score 
exceeds the corresponding threshold by roughly $5.5 million.
  To cure this defect, I was faced with choosing either deleting 
meritorious circuit and district judgeships from the bill or retaining 
all of the judgeships while staggering their implementation over a 
longer period of time. I have chosen the latter option as the better of 
the two, and this amendment reflects that.
  While some judicial districts will have to wait longer for additional 
judges under this plan, at least those judges will have been authorized 
for the relatively near future.

                              {time}  1145

  Assuming S. 878 is enacted, it will also be possible for a future 
Congress, perhaps the 109th, to provide the additional funding 
necessary to change the statute and accelerate the implementation dates 
for those judgeships that cannot be created prior to fiscal year 2005.
  That said, my amendment would implement 11 circuit judgeships and 
convert the four temporary district judgeships to permanent seats in 
fiscal year 2005. Existing temporary seats do not score at all, and the 
related costs of the 11 circuit judgeships easily comply with the 
first-year threshold requirement.
  For the next 5 fiscal years, through fiscal year 2010, the figure 
staggers the implementation of the remaining district judgeships at the 
rate of eight per year. In other words, eight new district judgeships 
are added in fiscal 2006, eight more in fiscal 2007, and so on through 
2010. In the last year, fiscal year 2011, the remaining seven district 
judgeships are officially authorized.
  I am sure that each of us could develop a different priority list 
detailing which judgeships would be implemented in a given fiscal year. 
I have tried to be fair by arranging the list based on need as defined 
by the Judicial Conference criteria.
  We have received an informal assurance from CBO that this amendment 
will lower the 5-year budget authority estimate for direct spending 
below the $34.5 million requirement imposed on the Committee on the 
Judiciary. My staff has also worked closely with the Committee on the 
Budget on this matter, and I understand this amendment will satisfy 
their concerns. I appreciate their contributions to this effort.
  In conclusion, I urge the Members to adopt this amendment, a 
necessary change that will bring us closer to authorizing the first 
omnibus judgeship bill since 1990.
  Mr. BERMAN. Mr. Chairman, will the gentleman yield?
  Mr. SENSENBRENNER. I yield to the gentleman from California.
  Mr. BERMAN. Mr. Chairman, I thank the gentleman and I support the 
gentleman's amendment, but I am curious why an amendment that is being 
offered in order to avoid a Budget Act problem requires a waiver of the 
Budget Act.
  Mr. SENSENBRENNER. Reclaiming my time, I do not know.
  Mr. Chairman, I reserve the balance of my time.
  The CHAIRMAN. Does anyone claim time in opposition?
  Mr. BERMAN. Mr. Chairman, I stand up in opposition simply to state my 
support for the gentleman's amendment and urge its adoption.
  Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Wisconsin (Mr. Sensenbrenner).
  The amendment was agreed to.
  The CHAIRMAN. It is now in order to consider amendment No. 2 printed 
in House Report 108-723.


                 Amendment No. 2 Offered by Mr. Simpson

  Mr. SIMPSON. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment No. 2 offered by Mr. Simpson:
       Insert after section 5 the following new section:

     SEC. 6. NINTH CIRCUIT REORGANIZATION.

       (a) Short Title.--This section may be cited as the ``Ninth 
     Circuit Judgeship and Reorganization Act of 2004''.
       (b) Definitions.--In this section:
       (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 section.
       (2) New ninth circuit.--The term ``new ninth circuit'' 
     means the ninth judicial circuit of the United States 
     established by the amendment made by subsection (c)(2)(A).

[[Page H8054]]

       (3) Twelfth circuit.--The term ``twelfth circuit'' means 
     the twelfth judicial circuit of the United States established 
     by the amendment made by subsection (c)(2)(B).
       (4) Thirteenth circuit.--The term ``thirteenth circuit'' 
     means the thirteenth judicial circuit of the United States 
     established by the amendment made by subsection (c)(2)(B).
       (c) Number and Composition of Circuits.--Section 41 of 
     title 28, United States Code, is amended--
       (1) in the matter preceding the table, by striking 
     ``thirteen'' and inserting ``fifteen''; and
       (2) in the table--
       (A) by striking the item relating to the ninth circuit and 
     inserting the following:

California, Guam, Hawaii, Northern Marianas Islands.'';................

       and
       (B) by inserting after the item relating to the eleventh 
     circuit the following:

Arizona, Nevada, Idaho, Montana........................................
Alaska, Oregon, Washington.''..........................................

       (d) Places of Circuit Court.--The table contained 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 after the item relating to the eleventh 
     circuit the following:

Las Vegas, Phoenix.....................................................
Portland, Seattle......................................................

       (e) Assignment of Circuit Judges.--Each circuit judge of 
     the former ninth circuit who is in regular active service and 
     whose official duty station on the day before the effective 
     date of this section--
       (1) is in California, Guam, Hawaii, or the Northern 
     Marianas Islands shall be a circuit judge of the new ninth 
     circuit as of such effective date;
       (2) is in Arizona, Nevada, Idaho, or Montana shall be a 
     circuit judge of the twelfth circuit as of such effective 
     date; and
       (3) is in Alaska, Oregon, or Washington shall be a circuit 
     judge of the thirteenth circuit as of such effective date.
       (f) Election of Assignment by Senior Judges.--Each judge 
     who is a senior circuit judge of the former ninth circuit on 
     the day before the effective date of this section may elect 
     to be assigned to the new ninth circuit, the twelfth circuit, 
     or the thirteenth circuit as of such effective date, and 
     shall notify the Director of the Administrative Office of the 
     United States Courts of such election.
       (g) Seniority of Judges.--The seniority of each judge--
       (1) who is assigned under subsection (e), or
       (2) who elects to be assigned under subsection (f),
     shall run from the date of commission of such judge as a 
     judge of the former ninth circuit.
       (h) Application to Cases.--The following apply to any case 
     in which, on the day before the effective date of this 
     section, an appeal or other proceeding has been filed with 
     the former ninth circuit:
       (1) If the matter has been submitted for decision, further 
     proceedings with respect to the matter shall be had in the 
     same manner and with the same effect as if this section 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 section been in 
     full force and effect at the time such appeal was taken or 
     other proceeding commenced, and further proceedings with 
     respect to 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 
     section, or submitted before the effective date of this 
     section and decided on or after such effective date as 
     provided in paragraph (1), shall be treated in the same 
     manner and with the same effect as though this section 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 section had not been enacted.
       (i) Temporary Assignment of Circuit Judges Among 
     Circuits.--Section 291 of title 28, United States Code, is 
     amended by adding at the end the following:
       ``(c) The chief judge of the Ninth Circuit may, in the 
     public interest and upon request by the chief judge of the 
     Twelfth Circuit or the Thirteenth Circuit, designate and 
     assign temporarily any circuit judge of the Ninth Circuit to 
     act as circuit judge in the Twelfth Circuit or Thirteenth 
     Circuit.
       ``(d) The chief judge of the Twelfth Circuit may, in the 
     public interest and upon request by the chief judge of the 
     Ninth Circuit or Thirteenth Circuit, designate and assign 
     temporarily any circuit judge of the Twelfth Circuit to act 
     as circuit judge in the Ninth Circuit or Thirteenth Circuit.
       ``(e) The chief judge of the Thirteenth Circuit may, in the 
     public interest and upon request by the chief judge of the 
     Ninth Circuit or the Twelfth Circuit, designate and assign 
     temporarily any circuit judge of the Thirteenth Circuit to 
     act as circuit judge in the Ninth Circuit or Twelfth 
     Circuit.''.
       (j) Temporary Assignment of District Judges Among 
     Circuits.--Section 292 of title 28, United States Code, is 
     amended by adding at the end the following:
       ``(f) The chief judge of the United States Court of Appeals 
     for the Ninth Circuit may in the public interest--
       ``(1) upon request by the chief judge of the Twelfth 
     Circuit or Thirteenth Circuit, designate and assign 1 or more 
     district judges within the Ninth Circuit to sit upon the 
     Court of Appeals of the Twelfth Circuit or Thirteenth 
     Circuit, or a division thereof, whenever the business of that 
     court so requires; and
       ``(2) designate and assign temporarily any district judge 
     within the Ninth Circuit to hold a district court in any 
     district within the Twelfth Circuit or Thirteenth Circuit.
       ``(g) The chief judge of the United States Court of Appeals 
     for the Twelfth Circuit may in the public interest--
       ``(1) upon request by the chief judge of the Ninth Circuit 
     or Thirteenth Circuit, designate and assign 1 or more 
     district judges within the Twelfth Circuit to sit upon the 
     Court of Appeals of the Ninth Circuit or Thirteenth Circuit, 
     or a division thereof whenever the business of that court so 
     requires; and
       ``(2) designate and assign temporarily any district judge 
     within the Twelfth Circuit to hold a district court in any 
     district within the Ninth Circuit or Thirteenth Circuit.
       ``(h) The chief judge of the United States Court of Appeals 
     for the Thirteenth Circuit may in the public interest--
       ``(1) upon request by the chief judge of the Ninth Circuit 
     or Twelfth Circuit, designate and assign 1 or more district 
     judges within the Thirteenth Circuit to sit upon the Court of 
     Appeals of the Ninth Circuit or Twelfth Circuit, or a 
     division thereof whenever the business of that court so 
     requires; and
       ``(2) designate and assign temporarily any district judge 
     within the Thirteenth Circuit to hold a district court in any 
     district within the Ninth Circuit or Twelfth Circuit.
       ``(i) Any designations or assignments under subsection (f), 
     (g), or (h) shall be in conformity with the rules or orders 
     of the court of appeals of, or the district within, as 
     applicable, the circuit to which the judge is designated or 
     assigned.''.
       (k) Administrative Coordination.--Section 332 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``(i) Any 2 contiguous circuits among the Ninth Circuit, 
     Twelfth Circuit, and Thirteenth Circuit may jointly carry out 
     such administrative functions and activities as the judicial 
     councils of the 2 circuits determine may benefit from 
     coordination or consolidation.''.
       (l) Administration.--The court of appeals for the ninth 
     circuit as constituted on the day before the effective date 
     of this section may take such administrative action as may be 
     required to carry out this section and the amendments made by 
     this section. Such court shall cease to exist for 
     administrative purposes 2 years after the date of the 
     enactment of this Act.

       Page 8, line 8, strike the period at the end and insert ``, 
     whose official duty station shall be in California.''.

       (Page 8, line 13, strike the period at the end and insert 
     ``, whose official duty station shall be in California.''.

       Strike subsection (c) of section 3.

       Insert after section 6 the following:

     SEC. 7. NUMBER OF CIRCUIT JUDGES

       The table contained in section 44(a) of title 28, United 
     States Code, is amended--
       (1) by amending the item relating to the first circuit to 
     read follows:

``First........................................................7'';....

       (2) by amending the item relating to the second circuit to 
     read follows:

``Second......................................................15'';....

       (3) by amending the item relating to the sixth circuit to 
     read as follows:

``Sixth.......................................................17'';....

     and
       (4) by amending the item relating to the ninth circuit to 
     read as follows:

``Ninth.......................................................19''.....

       (5) by inserting after the item relating to the eleventh 
     circuit the following:

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

``Thirteenth...................................................6''.....

     SEC. 8. EFFECTIVE DATE.

       (a) In General.--Except as otherwise provided in this Act, 
     this Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.
       (b) Section 6.--Section 6 and the amendments made by 
     section 6 shall take effect on the first October 1 that 
     occurs on or after 9 months after the date on which all 5 
     judges authorized to be appointed to the ninth circuit court 
     of appeals under section 5(a), and both judges authorized to 
     be appointed under section 5(b), have been appointed, by and 
     with the advice and consent of the Senate.

  The CHAIRMAN. Pursuant to House Resolution 814, the gentleman from 
Idaho (Mr. Simpson) and the gentleman from California (Mr. Berman) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Idaho (Mr. Simpson).
  Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume, 
and I thank the Committee on Rules for making this amendment in order.

[[Page H8055]]

  Mr. Chairman, this amendment would split the Ninth Circuit Court of 
Appeals and, as has already been stated on this floor, there is some 
controversy surrounding it. This is an issue that has been discussed 
for several years, both in the States that are affected by the Ninth 
Circuit and when I was in the State legislature, I served on the 
Judiciary and Rules Committee, and we discussed this many times and 
looked at the Ninth Circuit and the potential need for splitting the 
Ninth Circuit.
  Let me state at the outset of this, it is inevitable that the Ninth 
Circuit will be split. At some point in time, whether it is with this 
bill or some other bill in the future, the need to split the Ninth 
Circuit is undeniable. At some point in time, the growth is such that 
it is growing so rapidly that we will have to split this court.
  What are the factors that we should look at that should determine 
when it is time to split this court? I agree with the White Commission 
and the statements made by the gentleman from California earlier. 
Looking at the decisions of a judge, there is no reason to split the 
court. Whether one agrees or disagrees with those decisions, that is 
not the reason to split a court.
  The reason to split a court is for administrative purposes, and in 
the past there has been much debate about the liberal decisions of the 
Ninth Circuit and so forth; and people have wanted to get out of the 
Ninth Circuit for that reason. That is not my intention. My intention 
is because of the administration of the Ninth Circuit.
  Look at these facts. The Ninth Circuit has 48 judges, a figure that 
is approaching twice the number of total judges as the next largest 
circuit. It is twice as big as the next largest circuit in terms of 
judges, and the Ninth Circuit represents 56 million people, roughly 
one-fifth of the population of the U.S. This is 5 million more people 
than the next largest circuit. The Ninth Circuit encompasses nearly 40 
percent of the geographic area of the United States. It runs 
essentially from the equator to the North Pole and from the corners of 
Montana to Guam. It is an enormous surface area.
  The Ninth Circuit also has the most number of appeals filed and the 
highest percentage of increases in appeals filed, the most number of 
appeals still pending and the longest median time until disposition of 
those appeals.
  To address this problem, this amendment creates a new Ninth Circuit 
featuring California, Guam, Hawaii and the Northern Marianas Islands; a 
new 12th Circuit, featuring Arizona, Nevada, Idaho, and Montana; and a 
new 13th, featuring Alaska, Oregon, and Washington.
  This legislation also allows the President to appoint five new judges 
to permanent Ninth Circuit seats, along with two other judges who will 
temporarily fill seats. These additions are consistent with requests 
made by the Judicial Conference and will ensure that future caseload 
demands made on the new Ninth Circuit will more closely mirror its new 
judgeship resources. The amendment further ensures that the duty 
stations of these judges will be California, where the demand for more 
judges is highest.
  The creation of more judgeships in the absence of additional reform 
will not improve the administration of justice in the United States. 
This is an instance in which bigger does not mean better. We must 
distribute judgeships with an eye toward achieving structural coherence 
within each circuit. This amendment accomplishes that.
  For just a minute, Mr. Chairman, let me address some of the arguments 
that have already been made and will be made against this bill:
  First, that we are doing it just because we do not like the decisions 
of the Ninth Circuit. While that may have been the case in the past and 
some of the tactics that has been talked about in the past when this 
issue has been discussed, certainly that has been one of the premier 
points of view that some people have raised, that is not the reason to 
do it. I agree with the White Commission.
  Second, the cost. The cost, as has been stated here, is somewhat 
exaggerated, and the reason for that is that it took into consideration 
the addition of five new additional judges and two temporary judges. 
Those judges will be appointed whether or not this amendment is adopted 
because they are in the underlying bill. So the cost of this amendment 
is substantially overstated by the opponents of this legislation.
  Third, we have talked about Governor Schwarzenegger of California not 
supporting this and that we should follow our fellow Republican 
Governor. I can tell my colleagues that there are Republican Governors 
that do support this that are affected in the Ninth Circuit. The 
California Governor is not the only Governor in the Ninth Circuit.
  The fourth is judges do not want this, that there was a vote taken 
and it was 30 to nine of the judges of the Ninth Circuit that did not 
want this split to occur. Let me tell my colleagues how that occurred. 
That was a straw poll that was taken of the judges. The chief justice 
of the Ninth Circuit knew exactly how each of those judges voted. It 
was not a vote in secret, and each one of those judges knew that the 
chief justice of the Ninth Circuit is adamantly opposed to this split. 
Did that influence the vote? I do not know, but I can tell my 
colleagues that of the nine that voted to support the split, they are 
registered as the nine. Of the 30 that opposed the split, some of them 
opposed it, some of them were undecided, and they were counted as 
opposing the split. So to say that it was 30 to nine, I think, is an 
exaggeration of the case.
  The fact is we have to look at the facts that I stated here. Is it 
time to split this court? I think it is undeniable that it is time. 
Justice in the Ninth Circuit is different than it is in every other 
circuit in this country. We do things differently in the Ninth Circuit 
because it is so large.
  In every other circuit, when there is an appeal of the three-judge 
decision en banc to the full court, all the judges of that circuit sit 
and listen to the case, even those on the three-judge panel, so that 
they can have their points of view inserted into that discussion of the 
case. In the Ninth Circuit, that is not the case. It is so large that 
they pull names out of a hat, and 10 members and the chief sit en banc. 
One may or may not be chosen for it. Individuals that sat on the three-
judge panel and listened to it may not even be on the en banc panel; 
and consequently they cannot have their views inserted as to why they 
decided the way they did as a three-judge panel.
  So justice is different in the Ninth Circuit. I think it should be 
uniform. I think the size of the judiciary in the various circuits 
should be more closely related than they currently are with the Ninth 
Circuit; and, consequently, I hope my colleagues will support this 
amendment, and we will finally do what we have discussed for many 
years, that is, split the Ninth Circuit, make justice in the West just 
as it is in the rest of the country.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I rise to express my strong opposition to the amendment 
offered by the gentleman from Idaho. This amendment has never been 
marked up in the Committee on the Judiciary. It comes out of right 
field, left field, whatever field. It has never been considered by the 
committee with jurisdiction over the Federal courts. In fact, the only 
process it received was a subcommittee hearing last year where the 
witnesses were split about its advisability.
  Let me talk about some of the reasons why I think this body should 
reject this amendment.
  The costs of implementing a three-way split of the Ninth Circuit are 
enormous and could not come at a worst time. The Administrative Office 
of U.S. Courts estimates start-up costs in excess of $131 million, 
incurring additional annual costs of over $20 million each year as a 
result of this split. The courts will be forced to incur these costs 
when they are in the midst of a budget crisis.
  The Federal courts have already engaged in one round of staff 
cutbacks. Late last month, the administrative office announced a 2-year 
moratorium on 42 Federal courthouse construction projects as a result 
of the hard freeze on the judiciary budget. The administrative office 
has indicated that it may need to start cutting more staff if the 
budget situation remains the same.
  The Ninth Circuit judges themselves are overwhelmingly opposed to 
splitting the circuit. In April of this year, Ninth Circuit judges 
voted 30 to nine

[[Page H8056]]

against division of the circuit. In light of this overwhelming 
opposition from the affected judges, a split of the Ninth Circuit would 
constitute an unprecedented interference with the judicial system. 
Congress has never split a circuit over the objections of the affected 
judges.
  If the opposition of the judges themselves does not carry water, 
perhaps a long bipartisan list of other opponents will be more 
persuasive. California Governor Schwarzenegger, as the gentleman has 
acknowledged, wrote in April of 2004 expressing his strong opposition 
to this proposal. The American Bar Association, the California Academy 
of Appellate Lawyers, a group of prominent Republican and Democratic 
lawyers and a number of county and State bar associations all oppose 
this split.
  Split proponents have the burden of proving the advisability of a 
split; and in my mind, it is a heavy burden. They both must prove that 
the current Ninth Circuit does not efficiently and effectively serve 
the interests of justice and that a split would solve more problems 
than it would create.
  To date, the empirical evidence in support of this split is lacking. 
In fact, for each reason offered as a justification to split the Ninth 
Circuit, there is a compelling response that justifies an opposite 
conclusion.
  Some split proponents tout the common misperception that the Supreme 
Court reverses the Ninth Circuit an inordinate amount of the times. 
Based on this perception, they claim the Ninth Circuit is either out of 
touch with the rest of the country or issues an unusual number of bad 
decisions. The evidence does not support this assertion and, in fact, 
may lead to the opposite conclusion.
  For the past 3 years, the reversal rate of the Ninth Circuit by the 
U.S. Supreme Court has compared favorably with other circuits; but even 
if we did not like the Ninth Circuit decisions, the gentleman's 
amendment does not propose shooting the justices. These judges will 
still be sitting on circuit courts. So it does not even achieve the 
goal that many of its proponents, if not the gentleman himself, seek to 
obtain with this amendment.
  There was a reason why the leadership of the majority party decided 
to open up this bill for this nongermane amendment and no other 
nongermane amendments, and I would suggest it had nothing to do with 
judicial efficiency or effectiveness. It had to do with politics.

                              {time}  1200

  It has been noted that due to the Ninth Circuit's size, panels rarely 
involve the same three judges. Proponents of the split argue that the 
shifting nature of panels leads to inconsistent opinions. However, it 
can be said that the shifting nature of panels contributes to the 
objectivity of decision-making and makes it difficult for any one bias 
or philosophy to predominate. Less charitably, it could be said that 
the very consistency of Ninth Circuit opinions, not their 
inconsistency, is what split advocates find objectionable.
  Split proponents note that the Ninth Circuit has almost twice as many 
judges as the next largest Federal circuit, serves the largest 
population and deals with the largest number of appeals. Split 
proponents cite these numbers to support the contention that the Ninth 
Circuit is overburdened and is simply too huge to operate efficiently. 
However, statistics belie those contentions. They support the opposite 
conclusion.
  These statistics show that in recent years the Ninth Circuit handled 
over 207 appeals per circuit judge. When compared to other circuits, 
these numbers put Ninth Circuit judges in the middle of the pack with 
regard to the number of appeals they handle annually. Ninth Circuit 
judges may not be the most efficient, but they are certainly not among 
the least.
  I am sure we will also hear a bit today about the length of time, in 
fact, we have heard that it takes the Ninth Circuit takes to decide 
individual cases. The truth is that the Ninth Circuit judges are 
remarkably quick at deciding cases following argument or submission. It 
takes the Ninth Circuit 1.4 months to file a decision following 
arguments, as opposed to the national average of 2.1 months. For 
submitted cases, it takes one-half month nationally compared with two-
tenths of a month in the Ninth Circuit.
  Those who raise concerns about delays in case dispositions also offer 
no such evidence that delays are due to circuit size. In fact, vacant 
judgeships constitute a more likely explanation for any delays in 
overall case disposition. Proof for this conclusion can be drawn from 
the experience of the much smaller Sixth Circuit, which has a large 
percentage of judicial vacancies and the longest time, in excess of the 
Ninth Circuit by far, in case disposition among circuits. If delays in 
case disposition were the keystone for splitting circuits, we would 
start with the Sixth.
  Finally, and least credibly, some split advocates accuse the Ninth 
Circuit of being unduly activist. These folks believe a split would 
somehow curb this alleged tendency, or at least inoculate the carved-
out 12th and 13th from the decisions of the old Ninth Circuit.
  I reject judicial activism as a sound rationale for splitting the 
circuits, or for any other congressional action against the courts. If 
judicial activism were valid grounds for restructuring the courts, we 
would have to reconstitute the current U.S. Supreme Court, which has 
displayed its own judicial activism in crafting its doctrine of State 
sovereign immunity. Because judicial activism exists in the eye of the 
beholder, it cannot be a sound basis for restructuring courts.
  In conclusion, we must ask ourselves whether the cure presented by 
this amendment would be worse than the supposed disease. The 
disruptions, costs, and uncertainty that would attend a split might 
turn it into a costly failure. Frankly, the best way for Congress to 
participate constructively in improving the Ninth Circuit would be to 
pass S. 878 without this amendment. The additional district and circuit 
judgeships this bill creates within the Ninth Circuit will help it get 
an even better handle on its caseload.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume.
  If you were to follow the arguments of the gentleman from California, 
maybe we should be combining the smaller circuits into larger circuits, 
if cost is the issue.
  And it is the other side talking about judicial activism, not this 
side. We are talking because of administrative purposes.
  Mr. Chairman, I yield 3 minutes to the gentleman from Wisconsin (Mr. 
Sensenbrenner), chairman of the full committee.
  Mr. SENSENBRENNER. Mr. Chairman, I rise in support of the amendment 
offered by the gentleman from Idaho. And I know that an underlying 
argument on both sides of the aisle is whether one likes or dislikes 
the controversial decisions the Ninth Circuit has rendered from time to 
time. I would hope that we would disregard that and look at the 
statistics, that the Ninth Circuit has become unwieldy.
  I agree with the gentleman from Idaho that the Ninth Circuit is going 
to get split sooner or later. I believe that he has an amendment to 
accomplish this split in the best manner possible.
  Now, let us look at why the Ninth Circuit needs to be split. First, 
it has 48 judges already serving, seven more are created in this bill, 
and that is a figure that approaches twice the number of total judges 
in the next largest circuit.
  Second, the population of the territory within the Ninth Circuit is 
56 million people, and that is roughly one-fifth of the Nation's 
population, and 25 million more than the population of the next largest 
circuit. The Ninth Circuit comprises nearly 40 percent of the 
geographic area of the United States. So that means, to come to get 
your appeal heard, one, in many instances, has to travel much farther, 
to San Francisco, than litigants in the other circuits to get to where 
those circuits sit.
  The Ninth Circuit has the most number of appeals filed and the 
highest percentage increase in number of appeals filed, the most number 
of appeals still pending, and the longest median time until 
disposition.
  Now, having said all of these statistics, why should we delay in 
dealing with the split of the Ninth Circuit? There are some who have 
proposed only

[[Page H8057]]

one additional circuit be created, whether it includes all the States 
outside of California, Hawaii, Guam, and the northern Mariana Islands 
or whether the circuit should be divided into three pieces.
  I think that what the gentleman from Idaho has done in dividing the 
Ninth Circuit into three, a new Ninth Circuit, a new 12th Circuit and a 
new 13th Circuit will make for the most efficient administration of 
justice.
  I grant the point that most of the appeals arise from California, and 
that is why the gentleman's amendment has all seven of the new judges, 
five permanent and two temporary, sit with the newly reconstituted 
Ninth Circuit in the State of California. This is an idea whose time 
has come. If we delay adopting this amendment, we are just going to 
have more administrative problems caused by higher caseloads, so we 
might as well do it now; and I would urge the committee to support the 
amendment.
  Mr. BERMAN. Mr. Chairman, may I get a sense of how much time each 
side has?
  The CHAIRMAN. The gentleman from California has 12 minutes remaining.
  Mr. BERMAN. Mr. Chairman, I yield 5 minutes to the gentleman from 
California (Mr. Schiff).
  Mr. SCHIFF. Mr. Chairman, first, there were the court-stripping 
amendments, now there are the court-splitting amendments. What will 
come next, the court-flogging amendments?
  Why is this being sought? Well, it is argued that the amendment to 
split the courts, to split the circuit, is an amendment out of the 
necessity of improving the timeliness of the actions within the Ninth 
Circuit. Critics have purportedly claimed the Ninth Circuit is too big 
and prevents litigants from receiving timely legal redress.
  In the period since 1984, when the court was last authorized new 
judgeships, there has been significant growth of the court's caseload. 
It has more than doubled. But interestingly enough, both the Fifth and 
the 11th Circuits have experienced similar increases in caseload 
growth; however, no divisions of those circuits have been contemplate 
or proposed.
  So why is it only the Ninth Circuit? In fact, the Ninth Circuit 
terminated more than 10,000 cases in calendar year 2002, and has 
increased its efficiency year after year due to the continuing 
examination of case processing procedures and constant innovation. This 
has been accomplished despite unfilled vacancies. If the Congress and 
those that offer this amendment were truly concerned with timeliness, 
we would have filled those vacancies a long time ago.
  So then what is the basis of this court-splitting, circuit-splitting 
amendment? Perhaps this is being sought because of an outcry of the 
judges within the Ninth Circuit and the members of the bench within the 
Ninth Circuit that they feel this has to be done, that it would improve 
the efficiency of the courts. But that cannot be it either, because the 
overwhelming opinion of the judges and the attorneys in the Ninth 
Circuit, as well as the statements of others concerned with this issue, 
having submitted written statements or given oral testimony before the 
commission, cut the other way.
  Among those opposing the division of the Ninth Circuit were 20 out of 
25 persons testifying at the Seattle hearing of the commission opposed 
to the split, 37 out of 38 persons testifying at the San Francisco 
hearing opposed to the split, and the governors of California, 
Washington, Oregon, and Nevada, the American Bar Association, and the 
Federal Bar Association all opposed the split. Plainly, this is not on 
outcry from those most immediately affected.
  Well, it is argued that the need for consistency requires the split. 
But, again, the White Commission concluded, neither do we see a need to 
split the Ninth Circuit in order to solve problems having to do with 
consistency, predictability, and coherence of circuit law; there is no 
recognizable evidence of such a conflict. Indeed, the Circuit's use of 
its en bloc review process is designed to resolve and has effectively 
resolved precisely such conflicts.
  In sum, Mr. Chairman, when they say it is about efficiency, when they 
say it is about consistency, and when they say it is about timeliness, 
it is about ideology. And as the White Commission stated, there is 
unanimous agreement that ideology should never be the ideology to split 
a circuit.
  Mr. SIMPSON. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman 
from Arizona (Mr. Renzi).
  Mr. RENZI. Mr. Chairman, I thank the gentleman from Idaho for 
yielding me this time, and for his hard work and, in particular, his 
insight on this amendment; and I support the gentleman in looking 
forward to splitting up the Ninth Circuit Court, which I think is long 
overdue.
  I find the legislation to be a real positive step in that it also 
incorporates the language that we worked on which removes Arizona from 
the Ninth Circuit Court. I find it to be forward looking. It 
acknowledges the simple fact the nine States that now compromise the 
Ninth Circuit Court continue to experience phenomenal growth rates.
  Throughout the Southwest, we are seeing more and more homes being 
built, more and more people moving into the Southwest. Our population 
rates are exploding. The Ninth Circuit, as it exists today, is simply 
too big to quickly and effectively administer justice. It takes over a 
year to get even a case to be heard in the Ninth Circuit. For this 
reason alone, we need to look at splitting it up to better serve the 
needs of the citizens of the western United States.
  The new circuit map proposed by the gentleman from Idaho (Mr. 
Simpson) addresses current population trends and alleviates caseload 
backlogs. The Ninth Circuit Court's current jurisdiction encompasses 
nine States and, again, almost 56 million people, roughly 19 percent of 
the U.S. population in what, again, is the fastest growing region of 
America.
  Explosive population growth in the Ninth Circuit Court has outpaced 
the court's ability to administer justice in an efficient manner and 
the caseload is simply too big to administer efficiently.
  The opposition claims the court is efficient, but I cite this 
example. In 2002, the Ninth Circuit Court had more cases pending for 
more than a year than all other circuit courts combined. In addition, 
the circuit court is too big for judges to track the opinion of other 
judges, which results in inconsistencies and unfairness in the judicial 
process. For example, two different three-judge panels on the same day 
issued different legal standards to resolve the same issue. How are 
district judges supposed to even know which standards, which holdings, 
to follow when such confusion, when such a lack of consistency exists 
on the bench?
  I urge my colleagues to support this amendment to release us from the 
Ninth Circuit Court. They forgot to find the simplicity, they forgot to 
find the clarity you need in seeking the truth, those who continue to 
legislate from the bench, who now fight to struggle and protect the 
empire they have built to themselves.
  Mr. BERMAN. Mr. Chairman, I yield myself 1 minute.
  Now the mask comes off. The last line of the gentleman: They are 
legislating from the bench; we do not like their decisions.
  Believe me, my colleagues, the original proponents of this split and 
many of its supporters are doing this not based on judicial efficiency, 
but on ideology. If you want to deal with rising population, you 
authorize new judgeships.
  The major reason in any of the variables where the Ninth Circuit has 
lagged is because we have not filled the vacancies that were already 
authorized. You can have one circuit, you can have three circuits, you 
can have 10 circuits, but if you do not keep up with the growing 
litigation requirements by authorizing and filling those judgeships, 
you will have greater delays. It is a very simple equation.

                              {time}  1215

  Mr. Chairman, I yield 3\1/2\ minutes to the gentlewoman from Texas 
(Ms. Jackson-Lee), a member of the Committee on the Judiciary.
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished 
ranking member for yielding me this time, and I regretfully rise to 
vigorously oppose the distinguished gentleman from Idaho's amendment. I 
consider this similar to court stripping,

[[Page H8058]]

and that is the legislation that we have had over the past couple of 
weeks dealing with court stripping and taking away rights from the 
courts for reasons that are inexplicable.
  Let me just cite for my colleagues a reason that has been argued by 
the proponent of this amendment, that the Ninth Circuit is too big, 
that there are too many delays. But let me just say that, in making 
that criticism, you might be interested in knowing that, last year, the 
average length of turnaround for cases before the Ninth Circuit was a 
month less than the average case lasted in 2002. Further, the Ninth 
Circuit's average turnaround time has improved 16 percent relative to 
the national average since 1997.
  So the question would be, why would you, in complete rejection of the 
Governor of the State of California and the former Governor, try to 
restructure these courts? First of all, in a time when we are 
tightening our belts, when we would not even allow a simple amendment 
that would raise the salaries of the Federal judges to about $185,000, 
far less than a first associate in some of our major law firms, why 
would you not allow that amendment but you would in fact spend more 
dollars to redesign these courts?
  The cost is going to be enormous. With an estimated start-up cost of 
about $131 million and an estimated annual recurring cost of about $22 
million, this is a costly expenditure when we do not really have the 
dollars to do so. I would much rather spend dollars on making sure we 
have enough Federal judges, district judges, so that all of the 
petitioners and defendants can get a fair hearing in our courts.
  The other thing is geography. The Ninth Circuit includes California. 
Although there are nine States in the Ninth Circuit, more than two-
thirds of the workload of appeals is from California. There is no way 
to evenly divide the circuit into multiple circuits of roughly 
proportionate size without dividing California. The consistency of the 
decisions, the fairness of the decisions and the openness of the court 
gets undermined.
  The other is, of course, history. Over the course of the extremely 
colorful history of the West, certain ties have developed that should 
be respected in circuit alignment in order to provide for continuity 
and stability. Arizona, for example, may at one time have seen itself 
as a Rocky Mountain State, but the truth today is that its economic and 
cultural ties are overwhelmingly closer to California. History plays a 
large part in it. Dividing the court simply takes away and makes the 
lives of judges more difficult. But the important point is that the 
circuits have reflected the balance of America, the fairness of 
America.
  I live in the 5th and 11th Circuits, and I might say, I vigorously 
disagree with them on their civil rights decisions. They make the 
absolute wrong decisions, but they are the circuit courts. Even if you 
disagree with the Ninth Circuit, you cannot come here and cut them up 
and tear them up because you disagree with their philosophy, their 
legal decisions, the rendering of justice. We have to be better than 
that in America, and I would rise to oppose this amendment.
  Today I rise in strong opposition to the amendment being offered by 
Representative Simpson which would divide the current Ninth Circuit to 
create three new Circuits.
  I believe it is important at the outset that we understand at least 
three important points:
  The first goes to cost. It is important to remember that we are not 
just talking about splitting up the judges of the existing Court of 
Appeals into separate courts of appeals. We are actually talking about 
dividing the entire and well integrated administrative structure of the 
Ninth Circuit to create three separate and largely duplicative 
administrative structures. With an estimated start-up cost of about 
$131 million, and an estimated annual recurring cost of about $22 
million, this is both costly and wasteful. This is especially true when 
we face a budget crisis requiring us to lay off employees performing 
critical functions such as the supervision of probationers and 
preparation of sentencing reports.
  The second point goes to geography. The Ninth Circuit includes 
California. Although there are nine states in the Ninth Circuit, more 
than two-thirds of the workload of the court of appeals is from 
California. There is no way to divide the circuit into multiple 
circuits of roughly proportionate size without dividing California. 
While I can understand why some might want to have a federal circuit 
court of appeal that was dominated by individuals from their State, 
today we are being asked to play politics with judicial geography and 
this is absolutely unacceptable in our democratic society.
  Some of the proponents of this bill have argued that smaller, rural 
States are disadvantaged by being lumped into a circuit that contains a 
State the size of California with a substantial urban population base. 
But surely, they would not argue that Vermont and New Hampshire should 
be granted their emancipation from the larger, more urban States in the 
Second and First Circuits. Our federal bench should not be manipulated 
simply to make each circuit homogeneous.
  The third point goes to history. Over the course of the extremely 
colorful history of the west, certain ties have developed that should 
be respected in circuit alignment in order to provide for continuity 
and stability. Arizona, for example, may at one time have seen itself 
as a rocky mountain state, but the truth today is that its economic and 
cultural ties are overwhelmingly closer to California than to Colorado 
or Wyoming. Another example is California and Nevada. Their bond is so 
great that they have joined ion a compact to protect Lake Tahoe. 
Moreover, Idaho and eastern Washington have essentially treated their 
district judges as interchangeable for years. The division proposed in 
this amendment to S. 878 would server all these ties by dividing 
Arizona from California, California from Nevada and Idaho from 
Washington.
  Proponents of this split have long criticized the Ninth Circuit for 
its size and caseload. They might be interested to note that last year 
the average length of turnaround for cases before the Ninth Circuit was 
a month less than the average case lasted in 2002. Further, the Ninth 
Circuit's average turnaround time has improved 16 percent relative to 
the national average since 1997.
  Dividing a Circuit should not take place simply to make the lives of 
judges or lawyers easier or cozier to reduce travel burdens. It should 
only take place when there is demonstrated proof that a circuit is not 
operating effectively and there is a consensus among the bench, the 
bar, and the public that they serve, that division is the appropriate 
remedy. Moreover, I do not see any persuasive evidence that would 
suggest that the Ninth Circuit is not operating effectively.
  What I do not understand is why these repeated efforts to split the 
Ninth Circuit are pursued despite bi-partisan opposition ranging from 
Gov. Arnold Schwarzenegger (R-CA) to the overwhelming majority of Ninth 
Circuit judges, including the current Chief Judge, and Senior Judge 
Clifford Wallace, a former Chief Judge who was nominated by a 
Republican President. This irresponsible amendment would effectively 
take an otherwise non-controversial bill and turn it into a 
controversy. Whatever happened to that old adage, ``if it ain't broke, 
don't fix it?''
  I urge my colleagues to vote ``no'' on the Simpson amendment to S. 
878.
  Mr. SIMPSON. Mr. Chairman, I yield myself 30 seconds. While I 
appreciate the facts from the gentleman from California's comments, the 
reality is that some people, as I stated in my opening statement, 
support this because they do not like the decisions of the Ninth 
Circuit. That is a reality. But as the chairman stated and I stated, 
that is not the reason to do it. Look at the facts. Do not vote on it 
based on ideology.
  I would also state that it is interesting that, from that side of the 
aisle, there are people who do not want to split it because they do 
like the decisions of the Ninth Circuit, and so they want them to apply 
to the entire West. For the same reason that some Members on my side 
want it split, some people on their side do not want it split.
  Mr. Chairman, I yield 2 minutes to the gentleman from Montana (Mr. 
Rehberg).
  Mr. REHBERG. Mr. Chairman, I thank the gentleman from Idaho for 
taking on this issue which is something that Montana has been calling 
for since the early eighties. When we finally got an appointment to the 
Ninth Circuit, we threw a party. We had not had one since the Kennedy 
era.
  It is not about economic ties. I am not going to make the argument 
that I do not like the decisions that they make. In fact, I do not have 
to make the argument. The U.S. Supreme Court made the argument when 
they overturned 24 or 25 other cases. But there is a precedent within 
the United States for reapportioning the work, and it is called the 
United States Congress. It is no surprise that the judges do not like 
it. Who less likes reapportionment than United States Congressmen? We 
are the ones who complain the most, except in my case; I represent the

[[Page H8059]]

whole State, so I cannot complain. But the State of California would 
love nothing more than to create the Supreme Court West. Back in the 
eighties when we tried to get it, all the appointments were going to 
California. We had a problem with our President at the time. We tried 
to make the argument.
  Economic ties. If you want to make the argument about economic ties, 
what social and economic ties does Montana have to California other 
than the fact they are coming up and buying our property? The biggest 
problems that we have within the State of Montana are Federal problems 
that need to be addressed as locally as possible. I give great credit 
to Justice Sid Thomas who has now brought people to Montana to hear 
these cases. Why? Because he recognized as a matter of fairness that 
Montana deserved every bit as much of a right to have those cases heard 
in Montana as it did in California.
  It makes logical sense to divide up the court. It makes logical 
sense. In the executive branch, when the populations shift, usually the 
needs shift. What do we do with the bureaucracy? And I do not mean that 
in the negative term. The bureaucracy usually moves to where the issue 
or the problem is existing. In the judiciary, it does not seem to do 
that.
  Why do the lawyers vote overwhelmingly not to split it? They are not 
stupid. They are not going to go against a judge that may someday judge 
against their case. They are covering their rear ends. So it makes 
logical sense. Montana has been asking for it. Now is the time. I thank 
the gentleman from Idaho for sponsoring this legislation.
  Mr. BERMAN. Mr. Chairman, I yield myself 1 minute.
  Perhaps the most eloquent and forceful argument against the amendment 
being proposed and the split being proposed by the gentleman from Idaho 
came from the former chief judge of the Ninth Circuit, a Montana 
justice, Judge Browning, who felt very strongly that the interests of 
justice were not served by this particular split.
  As I listened to the proponents of this amendment talk, the judges do 
not want it. The lawyers do not want it. They are not talking the 
merits. They are scared of the judges. We hear no clamor from the 
litigants about a split of the circuit. We hear no argument that there 
is some compelling public ground swell for this split. Some of my 
colleagues do not like this, and they want to ascribe motivations to 
people who disagree with them. They are afraid of the judges. They 
assume the judges are not going to act on what is in their interests. 
They are not going to lose their judgeships over this split. They 
believe justice is not served by this split.
  I urge opposition to this amendment.
  Mr. Chairman, I reserve the balance of my time.
  Mr. SIMPSON. Mr. Chairman, I yield 2 minutes to the gentleman from 
Oregon (Mr. Walden).
  Mr. WALDEN of Oregon. Mr. Chairman, I rise today in support of this 
amendment. The Ninth Circuit represents 56 million people, or roughly 
one-fifth of our Nation's population. This is 25 million more people 
than the next largest circuit; 56 million people in one circuit. It 
encompasses 40 percent of the geographic area of the United States. 
Traveling across this much land mass wastes both time and money.
  The Ninth Circuit also has the most number of appeals filed and the 
highest percentage increase in appeals filed, the most number of 
appeals still pending, and the longest median time until disposition. 
This is an overworked, overstretched court.
  In addition, since the size of the circuit inhibits greater en banc 
participation by the entire circuit, the Ninth has adopted a practice 
that allows it to sit en banc with only 11 judges. This means the 
plurality of those 11, six judges, can effectively determine the case 
law for the circuit and the remaining 20 judges who serve. All of this 
leads to inconsistency in case law development and uncertainty among 
litigants. The outcome of cases in the Ninth are frequently determined 
more by the composition of a given three-judge panel, not by the law of 
the circuit as it has evolved. This is detrimental to the law-declaring 
role, one of a circuit's two primary functions, the other being to 
correct errors on appeal.
  Mr. Chairman, I commend the gentleman from Idaho who has worked 
tenaciously on this issue to try and bring about fairness in the 
distribution of the workload in the Ninth Circuit and to bring about 
fairness in terms of where these cases are heard. We heard from the 
gentleman from Montana about the need at least to have a judge come 
there and hear a case once in a while. I think the gentleman from 
California, if I heard right from the gentleman from Montana, the judge 
he cited moved to California in 1960 and never held a hearing in 
Montana. In effect, he became a Californian.
  Mr. Chairman, I support this amendment.
  Mr. BERMAN. Mr. Chairman, I yield 1 minute to the gentleman from 
California (Mr. Schiff).
  Mr. SCHIFF. I thank the gentleman for yielding me this time.
  Mr. Chairman, I just wanted to compliment my colleague on the other 
side for his comments about the Ninth Circuit judges being overworked 
and being overstretched. It is really gratifying to hear all the 
concern for the workload of the judges in the Ninth Circuit. That 
concern, I think, would carry more weight with the opposition to this 
bill if it were reflected historically in a desire to fill the 
vacancies for those overworked and overstretched judges. If there had 
been, I think, a stronger pattern of support for that, for dealing with 
the burden on the caseload in the Ninth Circuit, then there would be 
less inclination to think this is all about ideology. But when the 
gentleman goes on to say that part of this is also due to his dislike 
of the outcome of cases determined by the composition of these three-
judge panels rather than law precedent, we get, once again, back to 
ideology rather than a concern over caseload or workload.
  Again, for those reasons, the White Commission and the courts have 
historically and unanimously opposed circuit splitting over matters of 
ideology.
  Mr. SIMPSON. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman 
from Idaho (Mr. Otter).
  (Mr. OTTER asked and was given permission to revise and extend his 
remarks.)
  Mr. OTTER. I thank my colleague and my good friend from Idaho for 
yielding me this time.
  Mr. Chairman, I had quite a few prepared remarks, but most all of the 
information that I was going to impart to this body has already been 
said time and time again about the overload of the courts; the 
workforce themselves; how many additional judges have been added; and 
the fact that we almost have twice as many judges now in the Ninth 
Circuit as there are in the next closest circuit; the geographic size 
and obviously the population all present tremendous problems for those 
of us in the Ninth Circuit.
  It was said earlier that, when Congress does not like something, and 
especially we have been investing and assigning all manner of 
responsibility and all manner of attitude to why we want to divide up 
the Ninth Circuit, I would remind the gentleman from California and the 
gentlewoman from Texas that, if you read article III of the 
Constitution, it says very clearly that the judicial system shall be 
invested in the Supreme Court and such other inferior courts as 
Congress may from time to time deem necessary. So these courts are 
indeed a creature of this Congress, and so then it falls to our 
responsibility, I think, as the gentleman from Montana clearly pointed 
out, that when we need to reapportion because of size and because of 
geography that is involved and the amount of people that are involved, 
it is necessary for this Congress to take action and this action is 
long overdue.
  Mr. Chairman, I rise today in support of the amendment my friend from 
Idaho is offering to split the Ninth Circuit Court of Appeals. It's no 
surprise that the outcome of many of the Ninth Circuit's decisions is 
inconsistent case law that results in uncertainty among litigants.
  After all, the Ninth Circuit encompasses nearly 40 percent of the 
land in the United States, stretching from Canada to Mexico and from 
Alaska to Guam. That means the Ninth Circuit must represent one out of 
every five Americans, even though there are eleven circuit courts 
handling appeals throughout the country.
  The number of people who call the Ninth Circuit home and the distance 
it takes to travel across the massive geographic area already places a 
huge burden on this court. On top of

[[Page H8060]]

that, the Ninth Circuit has more appeals filed than any other court. 
And with each new appeal the time it takes to get a decision increases.
  It's become an administrative nightmare, Mr. Chairman, but it results 
in more than just a paperwork backlog. The Ninth Circuit is simply too 
large to do an effective job, so it leaves people in my state and 
throughout the West without an effective voice in our nation's legal 
system.
  It's a liability that deserves serious consideration by us today. An 
effective and efficient court system is essential to protecting the 
freedoms that we as Americans hold dear. The checks and balances that 
safeguard our liberties are meaningless without timely rendering of 
justice.
  We must not let bureaucracy and administrative stagnation undermine 
development of coherent and consistent case law. This is an instance 
when bigger absolutely does not mean better, and it is important that 
we address this issue now.
  My friend Mr. Simpson's amendment would create two new circuit courts 
and split the up the Ninth so that each of the three courts are better 
represented both proportionally and regionally. By focusing on a 
smaller geographic area with a smaller population base, the court would 
have the opportunity to develop a body of law based on consistency, 
constitutionality and rational public policy.
  This simple solution would enable the judicial system in the West to 
render fair decisions in a timely manner and start clearing the 
enormous court backlog throughout our region. I'm proud to be working 
with Congressman Simpson on his continued effort to reshape the court 
system in the West and restore some commonsense and judicial reality to 
the federal appeals process. I strongly encourage you to vote for this 
amendment.
  Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I am not challenging the constitutionality of the 
proponent's amendment. I am challenging the wisdom of the proponent's 
amendment. If we do this, we are doing something unprecedented with 
significant adverse budgetary consequences in a fashion that will not 
distribute the caseload in any sense equally, that is opposed by the 
judges, that is opposed by the lawyers who practice in this court and, 
to the extent that it is ideologically motivated, foists on our poor 
California Republicans a circuit that they think will not serve their 
interests.
  So I hate to see this squabble between the Idaho and Montana 
Republicans and the California Republicans, but the fact is this is 
why, even though you have the authority to draw these lines, it may not 
be wise to.

                              {time}  1230

  I urge opposition to the amendment, and I include for the Record a 
letter from the highly praised Ninth Circuit judge from Montana 
opposing the split.
                                    United States Court of Appeals


                                        for the Ninth Circuit,

                                   Billings, MT, October 28, 2003.
     Re: H.R. 2723
     Hon. Lamar Smith, Chairman,
     Subcommittee on the Courts, the Internet, and Intellectual 
         Property, Washington, D.C.
       Dear Chairman Smith: I am a United States Circuit Judge 
     with chambers in Billings, Montana. I write in opposition to 
     H.R. 2723. I am also authorized to state that the following 
     Ninth Circuit Judges whose official stations are within the 
     boundaries of the proposed Twelfth Circuit join me in 
     opposing H.R. 2723: Judge Otto R. Skopil (Portland, Oregon), 
     Judge Betty Binns Fletcher (Seattle, Washington), and Judge 
     Jerome Farris (Seattle, Washington). In addition, Judge James 
     R. Browning (San Francisco, California), Judge Alfred T. 
     Goodwin (Pasadena, California), Judge Robert Boochever 
     (Pasadena, California) and Judge M. Margaret McKeown (San 
     Diego, California), whose initial official duty stations were 
     within the boundaries of the proposed Twelfth Circuit 
     (Montana, Oregon, Alaska, and Washington, respectively), have 
     authorized me to register their opposition to H.R. 2723. All 
     of these judges maintain strong connections with their former 
     states of residence. In particular, Judges Goodwin and 
     McKeown wished me to emphasize that they spend a significant 
     amount of time each year in the Northwest, maintain offices 
     there, and retain close professional relationships with the 
     bar and bench in Oregon and Washington, respectively.
           Sincerely,
                                                 Sidney R. Thomas.

  Mr. Chairman, I yield back the balance of my time.
  Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I appreciate the gentleman's concern for the squabble 
between the Republicans from California and the Republicans from Idaho. 
But I can tell the gentleman that some Republicans from California also 
see the need to split the Ninth Circuit. They also are concerned about 
not having the rest of us in the pool with them.
  Let me just say this. The White Commission has been mentioned several 
times here, and I agree with the White Commission, as I have stated 
before. Splitting the court because one does not like the decisions is 
not the right reason to do it. If those individuals here want to split 
this court because they think that they are going to get better 
decisions out of a new court that they like better, they are going to 
be mighty disappointed because I can find decisions on any court 
anywhere in the land that I am going to disagree with. That is not a 
valid reason to split a court, even though there are some people who 
want to do it for that reason.
  What I am asking the Members to do is to look past that and look at 
the statistics, look at the numbers, look at the facts that the reality 
is that it is going to be split at some time. We cannot go on with a 
court that is twice as large, will some day, looking at the growth 
rate, be three times as large as any other circuit court. According to 
the argument of the gentleman from California, what we should have done 
in 1980 when we split the Fifth Circuit was just add more judges, but 
we decided to split it, and, yes, all the judges there wanted to split 
the Fifth Circuit.
  I would like to know of this 30 to nine vote that is being touted, 
how many of them were the undecideds that were counted in the 30. How 
many of them would have voted one way or another if a secret ballot was 
taken and they did not have to reveal who they were to the chief 
justice that they knew was opposed to the amendment.
  I will also tell the Members that the White Commission also 
recognized there was something wrong with the Ninth Circuit because 
they recommended not a split in the Ninth Circuit, but to split it 
administratively, something that had not been done in any other region. 
They recognized that the administration of the Ninth Circuit was too 
large and needed to be handled differently. It was not efficient. So 
they recommended splitting the administration of it. Why they did not 
recommend splitting the court, I do not know. I think it is because it 
was always looked at as partisan. And I will also tell the Members that 
five of the nine Supreme Court Justices have made public comments about 
the need to split the Ninth Circuit.
  I urge support for the amendment.
  Mr. SMITH of Texas. Mr. Chairman, I support this amendment.
  The Ninth Circuit has become so large that unless something is done, 
it risks becoming irrelevant.
  In the past 2 years, the Courts, Internet and Intellectual Property 
Subcommittee has held two hearings on this issue.
  It is clear to me that this bill contains much-needed reforms to the 
court system.
  As has been pointed out, the Ninth Circuit is the largest in the 
country. It represents 56 million people and has 48 judges--twice the 
number of judges in the next largest circuit.
  It has gotten so big that because its size prohibits participation by 
the entire circuit, as few as six judges often determine case law for 
the entire circuit.
  This leads to inconsistent decisions and uncertainty for litigants.
  The Ninth Circuit leads all circuits in total appeals filed and 
pending.
  The increase in its workload over one and 5-year periods leads all 
circuits.
  Worst of all, it continues to rank as one of the slowest circuits in 
disposing of cases.
  Mr. Chairman, bigger court systems do not mean better justice, but 
slower justice.
  And as we know, ``justice delayed is justice denied.''
  Unless this problem is addressed, the Ninth Circuit will continue to 
grow in size but diminish in effectiveness.
  Mr. Simpson's amendment takes a common sense approach and will make 
the Ninth Circuit more efficient.
  This amendment creates a new Ninth Circuit, as well as a new Twelfth 
and Thirteenth.
  In addition, it authorizes the President to appoint five new judges 
to permanent Ninth Circuit seats and two judges to fill temporary 
seats.
  The Ninth Circuit has grown too big to take care of the people it 
serves. I urge my colleagues to support this amendment and help us 
improve the justice system in this country.

[[Page H8061]]

  Americans for the most part have retained faith in our judiciary 
because they believe it applies the rule of law, from traffic court to 
the Supreme Court, when adjudicating legal disputes.
  I hope we are able to return to the Ninth Circuit an ability to 
discharge its civic functions on behalf of the American people.
  The CHAIRMAN. All time for debate has expired.
  The question is on the amendment offered by the gentleman from Idaho 
(Mr. Simpson).
  The question was taken; and the Chairman announced that the ayes 
appeared to have it.


                             Recorded Vote

  Mr. BERMAN. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 205, 
noes 194, not voting 33, as follows:

                             [Roll No. 492]

                               AYES--205

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonilla
     Bonner
     Boozman
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Camp
     Cantor
     Capito
     Carter
     Chabot
     Chocola
     Coble
     Cole
     Collins
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Flake
     Foley
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goodlatte
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hyde
     Issa
     Istook
     Jenkins
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (OK)
     Manzullo
     McCotter
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     Porter
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weller
     Whitfield
     Wicker
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--194

     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Becerra
     Bell
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bono
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Butterfield
     Calvert
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Carson (OK)
     Case
     Castle
     Chandler
     Clyburn
     Conyers
     Cooper
     Costello
     Cox
     Cramer
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     DeLauro
     Deutsch
     Dicks
     Dooley (CA)
     Doyle
     Dreier
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Frost
     Gilchrest
     Gonzalez
     Gordon
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Herseth
     Hill
     Hinchey
     Hinojosa
     Holden
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (IL)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Lucas (KY)
     Lynch
     Maloney
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNulty
     Meehan
     Meek (FL)
     Menendez
     Michaud
     Miller (NC)
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Pelosi
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Royce
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Simmons
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Wilson (NM)
     Woolsey
     Wu
     Wynn

                             NOT VOTING--33

     Abercrombie
     Ackerman
     Boehlert
     Brown, Corrine
     Buyer
     Cannon
     Clay
     Delahunt
     DeMint
     Dingell
     Doggett
     Forbes
     Gephardt
     Goode
     Greenwood
     Hastings (FL)
     Hoeffel
     Isakson
     John
     Kucinich
     Lampson
     Majette
     Meeks (NY)
     Millender-McDonald
     Nethercutt
     Norwood
     Payne
     Portman
     Sullivan
     Tauzin
     Terry
     Towns
     Weldon (PA)

                              {time}  1306

  Ms. BALDWIN and Messrs. CARDOZA, SCOTT of Georgia, DAVIS of 
Tennessee, and BERRY changed their vote from ``aye'' to ``no.''
  Messrs. GUTKNECHT, GERLACH, THOMAS, ROHRABACHER, NUNES, OSE, LEWIS of 
California, GARY G. MILLER of California, McKEON, CUNNINGHAM, 
RADANOVICH, and GALLEGLY, and Mrs. JOHNSON of Connecticut changed their 
vote from ``no'' to ``aye.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.
  The CHAIRMAN. There being no other amendments, the question is on the 
committee amendment in the nature of a substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mrs. 
Biggert) having assumed the chair, Mr. LaHood, Chairman of the 
Committee of the Whole House on the State of the Union, reported that 
that Committee, having had under consideration the Senate bill (S. 878) 
to authorize an additional permanent judgeship in the district of 
Idaho, and for other purposes; pursuant to House Resolution 814, he 
reported the Senate bill back to the House with an amendment adopted by 
the Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on any amendment to the committee 
amendment in the nature of a substitute adopted in the Committee of the 
Whole? If not, the question is on the amendment.
  The amendment was agreed to.
  The SPEAKER pro tempore. The question is on the third reading of the 
Senate bill.
  The Senate bill was ordered to be read a third time, and was read the 
third time.


                Motion to Recommit Offered by Mr. Berman

  Mr. BERMAN. Madam Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. BERMAN. In its present form, yes.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. BERMAN moves to recommit the bill S. 878 to the 
     Committee on the Judiciary with instructions that the 
     Committee report the same back to the House forthwith with 
     the following amendment:
       In section 6(h) of the bill, add the following new 
     paragraph at the end:
       (4) If the matter is one involving a judge who has refused 
     the request of a party to a proceeding to disqualify himself 
     or herself pursuant to a recusal, any appeal of that decision 
     shall be had in such court.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Berman) is recognized for 5 minutes in support of his 
motion.
  Mr. BERMAN. Madam Speaker, the Committee on Rules denied me and the 
rule denied me the opportunity to offer a variation of this amendment 
in committee, even though they allowed one other nongermane amendment, 
which we just adopted.
  This amendment, I believe, addresses a serious problem in the current 
structure of the Federal procedures. If an

[[Page H8062]]

outside party complains that a Federal judge has engaged in misconduct, 
that party has a right to have the presiding judge entertain his 
complaint. If it is the district court, it is the chief judge of the 
district that that judge sits in; if it is the appellate court, it is 
the presiding judge of the circuit; and if it is the Supreme Court, it 
is the Chief Justice of the Supreme Court.
  If the presiding judge or the chief judge does not resolve that, the 
complainant is entitled to a three-judge panel. That is for misconduct.
  But for recusals based on an apparent conflict of interest, asking a 
judge to step aside and not hear a particular case, there is absolutely 
no process other than the judge himself who is being alleged to have 
not been appropriately sitting on that case because of conflicts of 
interest or apparent conflicts of interest; that judge gets to decide 
for himself. That system is not right.
  What this amendment would do in order to be germane and apply as a 
pilot project, and Chief Justice Rehnquist himself highlighted this 
statutory anomaly to several U.S. Senators; these Senators had 
expressed concern that Justice Scalia did not recuse himself from a 
case in which Vice President Cheney was a named litigant. While this 
case was pending, Justice Scalia had taken a duck-hunting trip with the 
Vice President. Not only did they hunt together for several days, but 
Justice Scalia also traveled with the Vice President aboard Air Force 
2.
  In a public document explaining his refusal to recuse himself from a 
case involving his hunting buddy, Justice Scalia wrote that he did not 
believe ``his impartiality might reasonably be questioned.'' In 
commenting on Justice Scalia's decision, Chief Justice Rehnquist wrote 
to the Senators, ``There is no formal procedure for a court review of a 
decision of a Justice in such a case.''
  While I believe that my notions of the propriety of Justice Scalia's 
refusal to recuse himself are not important, the opinion of the 
American people is important. The efficacy of our court system depends 
entirely on the perception that the courts will administer justice 
impartially. If the courts lose the trust of the people, they lose 
their only real power.
  Reasonably or not, fairly or not, many folks around this country did 
question whether Justice Scalia could be impartial in a case involving 
a hunting buddy. It is clear that Justice Scalia's declaration of 
impartiality did not itself put these questions to rest. To the extent 
these questions persist, our court system suffers.
  This motion to recommit in the new circuits established so that the 
motion will be in order will establish a process by which the Federal 
courts can design a procedure where refusals by the judge to recuse 
himself can be heard by other judges, thereby getting rid of the 
problem of the appearance of conflict of interest.
  I want to make it very clear. I am not coming to the conclusion that 
Justice Scalia had a conflict of interest; I am coming to the opinion 
and the conclusion which I believe strongly that someone other than 
Justice Scalia should be able to make this decision, just like someone 
other than an accused justice should be able to make the decision about 
whether or not there has been judicial misconduct.
  We are leaving full authority to the Federal courts to design that 
process, but the notion that there is some appeal, some procedure, some 
process by which a challenge to the fairness and impartiality of a 
judge will be heard by someone other than the judge is a necessity.
  I urge the adoption of this motion.
  Unlike the judicial misconduct statute, the recusal statute currently 
provides no opportunity to appeal a judge's refusal to recuse himself. 
My amendment would have simply brought the procedures for addressing 
recusal and misconduct decisions into line with one another.
  Chief Justice Rehnquist himself highlighted this statutory anomaly in 
a letter to several U.S. Senators. These Senators had expressed concern 
that Justice Scalia did not recuse himself from a case in which Vice 
President Cheney was a named litigant. While this case was pending, 
Justice Scalia had taken a duck-hunting trip with the Vice President. 
Not only did they hunt together for several days, but Justice Scalia 
also traveled with the Vice President aboard Air Force Two.
  In a public document explaining his refusal to recuse himself from a 
case involving his hunting buddy, Justice Scalia wrote that he did not 
believe ``his impartiality might reasonably be questioned.'' In 
commenting on Justice Scalia's decision, Chief Justice Rehnquist noted 
that, ``There is no formal procedure for a Court review of a decision 
of a Justice in an individual case.''
  What I believe about the propriety of Justice Scalia's refusal to 
recuse himself is unimportant. What is important, however, is the 
opinion of the American people. The efficacy of our court system 
depends entirely on the perception that the courts will administer 
justice impartially. If the courts lose the trust of the people, they 
lose their only real power.
  Reasonably or not, many folks around the country did question whether 
Justice Scalia could be impartial in a case involving a hunting buddy. 
It is clear that Justice Scalia's declaration of impartiality did not, 
itself, put these questions to rest. To the extent these questions 
persist, our court system suffers.
  Mr. SENSENBRENNER. Madam Speaker, I rise in opposition to the motion 
to recommit.
  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) is recognized for 5 minutes.
  Mr. SENSENBRENNER. Madam Speaker, this is the wrong time, the wrong 
procedure, and the wrong amendment to deal with what is a very 
legitimate problem.
  If the procedure that was outlined by the gentleman from California's 
motion to recommit were in place at the time Justice Scalia and Vice 
President Cheney went on their duck-hunting trip, the other eight 
Justices of the Supreme Court would decide whether or not Justice 
Scalia could vote on the case that Vice President Cheney was a named 
litigant in. This can be subject to extreme misuse as people could file 
complaints again Justices and ask for recusals to take them out and to 
take their votes out if they felt that the Justices would vote the 
wrong way.
  And the same thing under the gentleman from California's motion to 
recommit would apply at the district court and the Court of Appeals 
level, and that is whether a judge's colleagues will determine whether 
or not a judge has a vote on a piece of litigation that is coming 
before the court.

                              {time}  1315

  Now, I concede the fact that there is a problem that the gentleman 
from California (Mr. Berman) has recognized; but his solution is the 
wrong solution.
  The correct solution is to allow the commission that has been 
appointed by Chief Justice Rehnquist and which is headed by Justice 
Steven Bryer, looking into judicial misconduct statutes and how they 
should be changed to come up with a recommendation that can either be 
enacted into law by statute or adopted as a rule of civil or criminal 
procedure.
  If legislation is necessary, we should go through the normal 
legislative process in looking at all of the angles of the proposed 
solution to make sure that what we are doing is right. I know there is 
a problem, but the gentleman from California (Mr. Berman) is not right. 
We should allow people to study this more dispassionately and thus vote 
down the motion to recommit.
  I ask for a ``no'' vote.
  Madam Speaker, I yield back the balance of my time
  The SPEAKER pro tempore (Mrs. Biggert). Without objection, the 
previous question is ordered on the motion to recommit.
  There was no objection
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.


                             Recorded Vote

  Mr. BERMAN. Madam Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX, the Chair 
will reduce to 5 minutes the minimum time for any electronic vote on 
the question of passage.
  The vote was taken by electronic device, and there were--ayes 190, 
noes 216, not voting 26, as follows:

                             [Roll No. 493]

                               AYES--190

     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Becerra
     Bell
     Berkley

[[Page H8063]]


     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Carson (OK)
     Case
     Chandler
     Clay
     Clyburn
     Conyers
     Cooper
     Costello
     Cramer
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Frost
     Gonzalez
     Gordon
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Herseth
     Hill
     Hinchey
     Hinojosa
     Holden
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Lucas (KY)
     Lynch
     Maloney
     Markey
     Marshall
     Matheson
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McIntyre
     McNulty
     Meehan
     Meek (FL)
     Menendez
     Michaud
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Pelosi
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Stenholm
     Strickland
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NOES--216

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole
     Collins
     Cox
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Flake
     Foley
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Goodlatte
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hyde
     Issa
     Istook
     Jenkins
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lucas (OK)
     Manzullo
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller (NC)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Ney
     Northup
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--26

     Abercrombie
     Boehlert
     Brown, Corrine
     Cannon
     DeMint
     Forbes
     Gephardt
     Goode
     Greenwood
     Hastings (FL)
     Hoeffel
     Isakson
     John
     Kucinich
     Lampson
     Majette
     Matsui
     Meeks (NY)
     Millender-McDonald
     Nethercutt
     Norwood
     Payne
     Portman
     Tauzin
     Terry
     Weldon (PA)


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mrs. Biggert) (during the vote). Members are 
reminded that there are 2 minutes remaining in this vote.

                              {time}  1336

  Messrs. DUNCAN, SOUDER and SHAYS changed their vote from ``aye'' to 
``no.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.

                          ____________________