[Congressional Record Volume 153, Number 24 (Thursday, February 8, 2007)]
[Senate]
[Pages S1782-S1783]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ENSIGN (for himself, Ms. Murkowski, Mr. Stevens, Mr. 
        Craig, Mr. Crapo, Mr. Inhofe, and Mr. Kyl):
  S. 525. A bill to amend title 28, United States Code, to provide for 
the appointment of additional Federal circuit judges, to divide the 
Ninth Judicial Circuit of the United States into 2 circuits, and for 
other purposes; to the Committee on the Judiciary.
  Ms. MURKOWSKI. Mr. President, I am pleased to be joined by my 
colleagues, Senators Ensign, Stevens, Kyl, Craig, Crapo, and Inhofe, in 
introducing the Circuit Court of Appeals Restructuring and 
Modernization Act of 2007.
  Our legislation will create a new Twelfth Circuit comprised of 
Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona and will 
go far in improving the efficiency and effectiveness of the current 
Ninth Circuit U.S. Court of Appeals.
  One need only look at the sheer geographic size of the Ninth Circuit 
to find reasons for reorganization. The Ninth Circuit extends from the 
Arctic Circle to the Mexican border, spans the tropics of Hawaii and 
crosses the International Dateline to Guam and the Northern Mariana 
Islands. Encompassing nine States and some 1.4 million square miles, 
the Ninth Circuit, by any means of measure, is the largest of all U.S. 
circuit courts of appeal. In fact, it is larger than the First, Second, 
Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined.
  The Ninth Circuit serves a population of nearly 60 million, almost 
twice as many as the next largest Circuit. It contains the States that 
experience the fastest growth rate in the Nation. By 2010, the Census 
Bureau estimates that the Ninth Circuit's population will be more than 
63 million--an increase which will inevitably create an even more 
daunting caseload.
  The only factor more disturbing than the geographic magnitude of the 
circuit is the magnitude of its ever-expanding docket. The Ninth 
Circuit has more cases than any other circuit. Based on figures from 
March, 2006, the Ninth Circuit had 71 percent more cases than the next 
largest circuit--that is equivalent to the caseload of the Third, 
Seventh, Eighth and Tenth Circuits combined.
  Moreover, because of the sheer magnitude of cases brought before the 
courts, citizens within the court's jurisdiction face intolerable 
delays in getting their cases heard. The median time to get a final 
disposition of an appellate case in the Ninth Circuit takes nearly 4 
months longer than the national average. Former Chief Justice Warren E. 
Burger called the Ninth Circuit's docket an ``unmanageable 
administrative monstrosity.''
  The massive size and daunting caseload of the Ninth Circuit result in 
a decrease in the ability of judges to keep abreast of legal 
developments within the circuit. The large number of judges scattered 
over the 1.4 million square miles of the circuit inevitably results in 
difficulty in reaching consistent circuit decisions. This lack of 
judicial consistency discourages settlements and leads to unnecessary 
litigation. Reversal rates by the Supreme Court remain astonishingly 
high. In 2005, 87.5 percent of the Ninth Circuit cases brought before 
the Supreme Court were reversed or vacated. In 2006, 96 percent were 
reversed or vacated.
  Another problem with the Ninth Circuit is that it is never able to 
speak with one voice. Because of its size, the Ninth Circuit is the 
only circuit where all judges do not sit in en banc, or full court, 
review of panel decisions. Rather than splitting the Ninth Circuit at 
the time the Fifth Circuit was split, Congress decided to permit the 
Ninth Circuit to test a ``limited'' en banc procedure. The limited en 
banc allows a full court to be comprised of 11 members, rather than 28. 
Therefore, 6 members of the 28 are all that is necessary for a majority 
opinion.
  Former Chief Justice Burger strongly opposed the limited en banc 
procedure:

       Six judges can now bind more than 100 Article III and 
     Article I judges, and this is simply contrary to how a court 
     should function I strongly believe the Ninth Circuit should 
     be divided.

  The legislation that I and my colleagues introduce today is the 
sensible reorganization of the Ninth Circuit. No one court can 
effectively exercise its power in an area that extends from the Arctic 
Circle to the tropics. Our legislation creates a circuit which is more 
geographically manageable, thereby significantly reducing wasted time 
and money spent on judicial travel.
  Additionally, caseloads will be much more manageable. Whatever 
circuit that contains California will always be the giant of the 
circuits, but as you can see from this chart, caseloads before the new 
Ninth Circuit and the new Twelfth Circuit are much more in line with 
other circuits. Such reductions in caseload will clearly improve 
uniformity, consistency and dependency in legal decisions.
  Additionally, this legislation is not novel. Since the day the 
circuit was established, over a century ago, there have been 
discussions to divide it. Over the last several decades, Congress has 
held hearings and debated a split and even mandated two congressional 
commissions to study the issue each of which recommended dividing the 
circuit. In fact, the scholarly White Commission, which reported to 
Congress in 1998, concluded that restructuring the Ninth Circuit would 
``increase the consistency and coherence of the law, maximize the 
likelihood of genuine collegiality, establish an effective procedure 
for maintaining uniform decisional law within the circuit, and relate 
the appellate forum more closely to the region it serves.''
  Furthermore, splitting a circuit to respond to caseload and 
population

[[Page S1783]]

growth is by no means unprecedented. Congress divided the original 
Eighth Circuit to create the Tenth Circuit in 1929 and divided the 
former Fifth Circuit to create the Eleventh Circuit in 1980.
  We have waited long enough. The 60 million residents of the Ninth 
Circuit are the persons who suffer. Many wait years before cases are 
heard and decided, prompting many to forego the entire appellate 
process. In brief, the Ninth Circuit has become a circuit where justice 
is not swift and not always served.
                                 ______