[Congressional Record Volume 163, Number 18 (Thursday, February 2, 2017)]
[Senate]
[Page S657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FLAKE (for himself and Mr. McCain):
  S. 276. A bill to amend title 28, United States Code, to divide the 
ninth judicial circuit of the United States into 2 circuits, and for 
other purposes; to the Committee on the Judiciary.
  Mr. FLAKE. Mr. President, one of the most important elements of the 
rule of law is the promise of swift access to the courts, but that 
promise has been broken in my home State of Arizona. That is because 
Arizona falls under the jurisdiction of the U.S. Court of Appeals for 
the Ninth Circuit, a circuit that is both oversized and overworked.
  With the jurisdiction encompassing 13 districts spread across nine 
States and 2 U.S. territories, the Ninth Circuit covers 1 in 5 
Americans. It hears roughly 12,000 appeals each year. The next busiest 
circuit doesn't even hear 9,000, and for the thousands of cases under 
its consideration, the average turnaround time exceeds 15 months.
  Now, if excessive delays weren't bad enough, it turns out the Ninth 
Circuit is overturned by the Supreme Court 77 percent of the time when 
the Supreme Court grants cert--77 percent of the time. That is 
obviously higher than any other court. So not only is the court 
excruciatingly slow, but in many instances it is simply wrong.
  The court, itself, is unusually large. It has 29 authorized 
judgeships. That is 12 more than the next largest circuit.
  The Ninth Circuit is so big that it can't even rehear cases as a 
whole body, like every other appeals court does. Instead, cases are 
reheard with limited en banc; these are panels of 11 judges each. That 
means that only one-third of its judges are deciding law for the entire 
court--only one-third.
  Of the States suffering under the weight of the Ninth Circuit's 
crushing backlog, Arizona shoulders a uniquely heavy burden. Per 
capita, Arizona has the busiest Federal docket in the circuit. That 
puts Arizonans at the back of an already long line just to get their 
day in court.
  As if the deluge of cases continues to fill the Ninth Circuit's 
docket, the line keeps getting longer and longer if you happen to live 
in Arizona.
  With problems like these, we are left to ask: Is the Ninth Circuit 
simply too big to succeed? If you are an Arizonan, the answer is 
unquestionably yes.
  Arizonans deserve better, and that is why today I am introducing a 
bill to break up the Ninth Circuit.
  With the support of my colleague from Arizona, John McCain, and the 
support of Gov. Doug Ducey, I have introduced the Judicial 
Administration and Improvement Act. This bill would create a new 
Twelfth Circuit by moving Arizona, as well as Alaska, Idaho, Montana, 
Nevada, and Washington, out of the Ninth Circuit. Doing so would create 
two smaller appellate courts where one dysfunctional court stood, all 
the while establishing stronger local, regional, and cultural ties. 
This would help alleviate the Ninth Circuit's enormous caseload and 
ensure a more timely and accurate judicial process for both circuits.
  Now, importantly, the bill would also free the new circuit from the 
Ninth Circuit's precedent. That means States like Arizona would be able 
to chart their own legal course, consistent with their local needs and 
traditions.
  A fair and functioning judiciary is one of the pillars of our 
democracy. Geography shouldn't limit a citizen's access to the courts.
  The Judicial Administration and Improvement Act will right this wrong 
by restoring faith in our judicial system and securing the access to 
Justice that Americans deserve.
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