[Congressional Record Volume 151, Number 85 (Thursday, June 23, 2005)]
[Senate]
[Pages S7289-S7290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          SUPPORT SPLITTING THE NINTH CIRCUIT COURT OF APPEALS

  Mr. CRAIG. Mr. President, I rise today to support legislation 
splitting the Ninth Circuit Court of Appeals. It is high time Congress 
took this action. For far too long, the Ninth Circuit has been bogged 
down by an immense caseload, slowing the wheels of justice. Now we have 
the opportunity to correct a problem that has been in sore need of a 
solution for decades. The people of the State of Idaho have long 
requested this action, but it is not only good for Idaho; it is good 
for the States of the West represented in the Ninth Circuit, and for 
the Nation as a whole.
  Calls for a split in the Ninth Circuit began as early as the 1930s. 
Support dwindled when the court expanded into Seattle and Portland to 
alleviate travel concerns and caseload burdens. In 1973, the Hruska 
Commission expressed concerns with the size of two circuit

[[Page S7290]]

courts: the Ninth and the Fifth. Congress compromised in 1978 by 
expanding the number of judges in both circuits. However, in 1981 the 
sheer size forced Congress to split the Fifth Circuit in two, forming 
the Eleventh Circuit and the Fifth Circuit in its current 
configuration. Interestingly, a 2003 report shows that the Ninth 
Circuit is, today, almost the same size as the Fifth and Eleventh if 
they were recombined.
  Legislation was introduced in 1989 to split the Ninth into two 
circuits, creating a new Twelfth Circuit Court of Appeals. A 1990 
report advised against the split without first attempting management 
changes to ease the caseload burden. Again in 1995, the Senate 
attempted to split the Ninth, and again in 1997.
  In 1997 the Commission on Structural Alternatives for the Federal 
Courts of Appeals, commonly referred to as the White Commission, was 
formed to determine, among other things, whether there was a need to 
split the Ninth Circuit Court of Appeals. After hearing testimony, 
taking written statements, and gathering statistical data, the 
Commission published its final report in December 1998.
  The White Commission report based its decision to oppose a split on 
the fear that population growth would put other circuits in a position 
similar to the Ninth, and that continuing to split circuits would 
eventually lead to an unwieldy kaleidoscope of law. The Commission 
instead proposed a restructuring within the circuit.
  Today, we can see the result of the repeated failure to address 
Federal circuit court growth. In 1997 there were nearly 52,000 appeals 
filed in Federal circuit courts. In 2003, there were approximately 
60,500. Of that 8,500 increase, 4,000 are in the Ninth Circuit but 
contrary to the White Commission's fear, the remaining 4,500 case 
increase is spread over the other 10 circuit courts. With this key 
Commission conclusion challenged, it is neither prudent nor fair to 
force Idahoans and other citizens of the West to wait an average of 4.5 
months longer than citizens of other districts for their cases to be 
decided.
  Although the 4.5 month wait is a critically important number, there 
are additional numbers that this Senate should take into consideration 
when evaluating this issue. For example, the Ninth Circuit has 50 
authorized judges, while the average for all other circuits is 20. 
There are more than 57 million people living within the Ninth Circuit, 
while the other Circuits average a population of just over 21 million. 
And probably the most telling statistic: the Ninth Circuit has nearly 
triple the average number of appeals filed by all other circuits. No 
wonder it takes the Ninth 4.5 months longer to resolve an appeal.
  It is worth noting that over the years, the Ninth Circuit has adopted 
a variety of management reforms aimed at coping with the circuit's 
unwieldy size. However, I submit that we have long since reached the 
point beyond which this crisis can be ``managed'' away. It is a gross 
disservice to the talented jurists and staff of the Ninth Circuit, and 
an injustice to the citizens of the States it represents, for this 
Congress to stand idly by while caseloads and waiting periods only 
increase, and increase, and increase.
  Two versions of corrective legislation are being introduced by 
Senators Murkowski and Ensign, and it is my intention to cosponsor both 
of these proposals. I pledge to do everything within my power to help 
enact a workable plan for splitting the Ninth Circuit, and I urge all 
of our colleagues in the strongest possible terms to support us in this 
effort.

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