[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.
____________________