[Congressional Record Volume 152, Number 33 (Wednesday, March 15, 2006)]
[Extensions of Remarks]
[Pages E367-E368]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    THE FEDERAL JUDGESHIP AND ADMINISTRATIVE EFFICIENCY ACT OF 2005

                                 ______
                                 

                        HON. MICHAEL K. SIMPSON

                                of idaho

                    in the house of representatives

                       Wednesday, March 15, 2006

  Mr. SIMPSON. Mr. Speaker, article III of the Constitution states that 
``the judicial Power of the United States, shall be vested in one 
supreme Court, and in such inferior Courts as the Congress may from 
time to time ordain and establish.'' At times in our Nation's history, 
Congress has found it necessary to realign the United States Courts of 
Appeals into more efficient and manageable circuits. Once again, it's 
time for Congress to exercise its article III powers by realigning the 
Ninth Circuit and creating a new Twelfth Circuit.
  I am pleased to be an original co-sponsor of Judiciary Chairman 
Sensenbrenner's H.R. 4093, the Federal Judgeship and Administrative 
Efficiency Act of 2005. In addition to creating additional federal 
judgeships, this legislation would divide the Ninth into two circuits. 
These would consist of a new Ninth made up of California, Hawaii, Guam 
and the Northern Marianas, and a new Twelfth with Alaska, Washington, 
Oregon, Montana, Idaho, Nevada, and Arizona.
  Mr. Speaker, this division makes sense. Putting aside any political, 
historical or emotional arguments, the numbers speak for themselves. A 
split of the Ninth Circuit is necessary because it has become 
disproportionately large and unwieldy in relation to the other eleven 
regional circuits.
  The Honorable John M. Roll, U.S. District Judge for Arizona, has 
recently provided me with updated statistics regarding the Ninth 
Circuit. This is where the Ninth Circuit stands today:
  The population of the Ninth Circuit is 58 million people. This is 
one-fifth of the population of the United States. It is also 27 million 
more people than reside in the next largest circuit.
  The Ninth Circuit consists of 9 states (including the most populous 
state), a territory, and a commonwealth. The other circuits average 
less than four states. No other circuit decides the law for 9 states.

[[Page E368]]

  As of December 31, 2005, the Ninth Circuit had nearly 17,000 pending 
cases, which represents 28 percent of all pending federal appeals.
  According to recent statistics from the Administrative Office of U.S. 
Courts, the Ninth Circuit is now the slowest circuit in the country, by 
more than 2 months, for each of its nearly 17,000 cases, from filing of 
notice of appeal to disposition.
  The Ninth Circuit has 28 authorized active circuit judgeships. The 
other 11 geographical circuits average less than 13.
  It is clear from these facts that the extraordinary growth of the 
nine western states comprising the Ninth has resulted in an 
overpopulated circuit that has become a giant among the twelve 
circuits.
  Ninth Circuit Judges O'Scannlain and Tallman hit it on the head when 
they wrote in the Wall Street Journal that ``. . . size adversely 
affects not only the speed with which justice is administered, but also 
the quality of judicial decision making. Consistent interpretation of 
the law by an appellate court requires a reasonably small body of 
judges who have the opportunity to sit and to confer together 
frequently, and who can read, critique and, when necessary, correct 
each others' decisions. That kind of collegiality is no longer possible 
in a circuit of this size.'' This statement describes precisely why we 
need to split the Ninth Circuit.
  With a fifth of the U.S. population living in the Ninth Circuit 
today, I would expect that this could easily become a fourth of the 
population. Today's 28 active Ninth Circuit judges will eventually 
become 35, then 40, 50 and so on.
  The Ninth Circuit has a history to be proud of, but how long will it 
be before those who seek to hold onto the past glory of the Ninth come 
to realize that it should not be recognized for its unique solutions 
for coping with staggering caseloads and an inability to readily sit 
all judges? Under this legislation, the new Ninth and Twelfth Circuits 
will be recognized as individual circuits that have been given a fresh 
start, fresh life, and fresh collegiality with efficiencies that allow 
judges in the new circuits to focus on case law and not case 
management.
  Opponents of a split have ascribed political motivations to my 
efforts--that I, being the author and proponent of realignment 
legislation, don't like the decisions of the Ninth Circuit. Well, the 
Ninth does make bad decisions that I don't agree with. For that matter 
judges appointed by Nixon, Reagan and both presidents Bush make bad 
decisions that I don't always agree with. Every circuit in the United 
States makes bad decisions that I don't always agree with. The 
practical effect of a court ruling is that one party will be pleased 
and the other disappointed.
  Should a circuit be realigned, or manipulated in a manner such as 
``court packing'' solely for political reasons? Absolutely not. 
However, the fact that my colleagues and I may disagree with certain 
rulings of the Ninth Circuit should not automatically disqualify us 
from seeking to realign the circuit. Ascribing political motivations to 
my colleagues and me is nothing more than a disingenuous smokescreen. 
If judges, scholars, politicians and others have spoken to me they know 
that my motivations are not political. My motivation is a desire for my 
constituents to have an efficient, expedient and manageable court that 
is able to apply a consistent interpretation of the law. In the 
meantime, my faith in the Supreme Court and its demonstrated readiness 
to overturn rulings of the Ninth Circuit, alleviates any fears that I 
have that an egregious ruling of the Ninth will not be corrected.
  Of course split opponents must throw up the smokescreen that my 
fellow colleagues and I are politically motivated. What else can they 
do? It's impossible to argue against the facts. Having one-fifth of our 
nation's citizens in one circuit while the remaining four-fifths are in 
eleven circuits does not make sense. I have yet to hear split opponents 
or scholars state why it is good for a single circuit to have one-fifth 
of the nation's citizens in one circuit when the remaining four-fifths 
are in eleven other circuits. I do not know why having 28 percent of 
all pending appeals in one circuit is a sign of an effectively working 
court. I have not heard why it is good for a circuit to have 28 active 
judgeships, which is eleven more judges than the next largest circuit 
and more than double the circuit average of 13. I don't know why it is 
good for Idahoans to have their appeals heard en banc by a partial 
number of our court of appeals' judges when citizens in the other 
eleven circuits will get a hearing before all the judges of their 
circuit. Is this fair to citizens of the Ninth? I don't believe it is.
  I look forward to reading the first article, or speech from a federal 
judge, politician or scholar that sets aside any reference to politics 
or the political motivations of others and explains why it is a good 
thing to have a single circuit with one-fifth of the nation's 
population, 28 active judgeships and a procedure for a partial number 
of judges to hear cases. I would also take the liberty of asking a 
theoretical question to that judge, politician or scholar and it goes 
like this--if you were to start from scratch and create 12 new circuits 
for our nation, would you place one-fifth of the population in just one 
of the twelve circuits? Please send a copy of that to my office here in 
Washington.
  Something else I have heard is that our efforts to split the Ninth 
Circuit are ``a threat to judicial independence''. I would like to hear 
from any federal judge, appointed for life, whether their decisions are 
being influenced based on a threat that their circuit might be 
realigned? I find it hard to believe that judges, who at times must put 
their lives on the line for our country in the face of threats and 
intimidation by criminal defendants, are scared of politicians in 
Washington, D.C. Once again, please feel free to contact my office here 
in Washington if that is the case, I promise confidentiality.

  Another thing I hear thrown about is an idea I like to call 
``judicial veto authority''. What I'm hearing is that since a majority 
of the Ninth Circuit judges might not favor a split then it shouldn't 
go forward. I would ask the proponents of this idea, the proposition 
that sitting circuit judges need approve of a split before it goes 
forward, where this is found in Article III?
  I do not believe that the composition of a circuit should be 
determined solely out of concern for its judges, lawyers, bar 
associations or even politicians. It should be determined by how best 
the people are served within the states it encompasses. Realigning the 
Ninth Circuit is about better serving the people who live and work in 
the nine states and two territories within its boundaries. It's about 
providing them with better efficiencies, a more consistent 
interpretation of the law based on rulings made by judges who spend 
more time conferring directly with one another and reading each other's 
decisions.
  In addition, although the costs of dividing a circuit are important 
in these days of budgetary constraint, they should not be the reason 
for disregarding the benefits that would befall the citizens of nine 
states and two territories. Opponents of a Ninth Circuit split have 
made note that a new Twelfth Circuit would be costly, with some 
estimating as high as $21 million in additional court costs annually.
  As a member of the Budget Committee it's a wonder that we are not 
today seeking the savings that would come from creating five larger 
circuits consisting of say: the Fourth and Sixth plus Georgia; the 
Fifth and Tenth plus Alabama and Florida; the First, Second and Third; 
the Eighth and Seventh; and the Ninth alone. Combining those circuits 
could save us upwards of $150 million a year in operating costs alone.
  The reason we are not debating whether to create larger circuit 
courts of equal size to the Ninth is because it does not make sense to 
have large circuits. We already have one large court--the United States 
Supreme Court. I am told that there is a saying that goes ``there is 
the Supreme Court, the Ninth Circuit, and the rest of the federal 
circuits.'' What we need now are 13 circuits of roughly equal 
proportion--not Snow Ninth and the 11 dwarfs.
  Two other things I would mention. I have yet to hear calls for 
returning the Fifth and Eleventh Circuits into their original circuit. 
From what I know, the division that was undertaken in 1981 has settled 
out well. Finally, for those who are committed to the ``old'' Ninth--
they can rest easier knowing that even after shedding seven states, the 
``new'' Ninth will remain the largest circuit in the United States.
  As we move forward with our legislation to realign the Ninth Circuit, 
I look forward to split opponents coming out from behind their 
political smokescreens and discussing the facts at hand which are 
indisputable--the Ninth Circuit is too large and unwieldy. No amount of 
technology and innovation is going to provide my constituents with the 
efficiency and expediency that they deserve as well. The current judges 
of the Ninth deserve a collegial atmosphere where they can spend time 
on case law and not case management.
  I appreciate the leadership Chairman Sensenbrenner has provided in 
our efforts and look forward to working with him in the coming year as 
H.R. 4093 and the Ninth Circuit realignment become a reality.

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