[Congressional Record (Bound Edition), Volume 162 (2016), Part 1]
[Senate]
[Pages 1435-1438]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      EQUAL JUSTICE UNDER THE LAW

  Mr. SULLIVAN. Mr. President, I rise today to speak about a very 
important issue for our Nation's judicial system and two bills that I 
and my colleague from Montana have introduced. The bills' primary focus 
is what all of us in the Senate want, and that is equal justice under 
the law.
  One of the bills would split the dysfunctional and unwieldy U.S. 
Court of Appeals for the Ninth Circuit. The other bill would form a 
commission to evaluate the court and make recommendations based on its 
findings.
  Like a lot of us here, when I am in Washington I like to get out and 
try to get a run in in the morning and look at the beautiful monuments, 
memorials. Oftentimes I run past the U.S. Supreme Court, and I often 
look at the inscription etched on the beautiful Court there that says 
simply ``Equal justice under law.'' I think of Supreme Court

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Justice Lewis Powell's famous quote restated:

       Equal justice under the law is not merely a caption on the 
     facade of the Supreme Court building, it is perhaps the most 
     inspiring ideal of our society. It is one of the ends for 
     which our entire legal system exists. . . .

  I also think of the thousands of lawyers and judges and clerks, past 
and present, who have lived their lives attempting to fulfill its 
important ideal and how our democratic system of government is 
dependent on striving for this ideal.
  We should do everything in this body to make sure that simple 
concept--equal justice under the law--is a reality for all Americans. 
All Americans should feel assured that when we seek justice, the 
burdens we encounter, the time we encounter to achieve justice won't be 
smaller or greater depending on the part of the country in which we 
live.
  Unfortunately, that is not the case. Unfortunately, if you are a 
citizen of the United States and you live in one of the States over 
which the U.S. Court of Appeals for the Ninth Circuit has jurisdiction 
over your legal issues in the administration of justice, one in five 
Americans do not get equal justice under the law. What our bills are 
focused on doing is righting that wrong because the U.S. Court of 
Appeals for the Ninth Circuit is simply too large, its scope is too 
wide, and it has long passed its ability to provide equal justice and 
to contribute as a functional court system in the U.S. court of appeals 
Federal court system in our country.
  This is no surprise. We have known this for decades. Dividing the 
Ninth Circuit is not a new idea. In fact, not doing it is radical. If 
you look at the history of the United States, when Federal courts of 
appeals have grown in terms of population, what has happened every time 
for decades, for well over 100 years, is that when the court grows too 
big and the administration of justice grinds to a halt, the court is 
split so that you have that justice. That is the usual course of 
American history. What is not usual is the refusal to do this.
  To give a few examples, in 1973 a congressionally chartered 
Commission recommended to this body that for the administration of 
justice for American citizens, the Ninth Circuit should be split. It 
actually recommended that the Fifth and Ninth Circuit should be split. 
The Fifth Circuit was eventually split, but according to the 
Commission, the Ninth Circuit, which it said had serious difficulties 
with backlog, delay, and justice for Americans, was not split, and it 
has only gotten worse.
  To give a few facts, there are 65 million people living within the 
boundaries of the Ninth Circuit. That represents 20 percent of the 
total population of the United States--one in five Americans. That is 
almost two times as many people as there are in the next biggest 
circuit in the U.S. court of appeals system, and it is almost three 
times the average population of all the other circuits combined. It is 
not only just the size of the court.
  The caseload is what is inhibiting justice for Americans in the Ninth 
Circuit. At the end of a 12-month period last year, the Ninth Circuit 
Court of Appeals had almost 14,000 pending appeals; the next largest 
court of appeals had about 4,700. Justice delayed is justice denied.
  In previous hearings in the Senate, we found that it takes, on 
average, for the Ninth Circuit, almost 40 percent longer to dispose of 
an appeal than in any other circuit in the country. This is simply a 
function of a court that is too big and too unwieldy. Because of the 
size and inefficiency of the court, the court has started to come up 
with creative shortcuts--questionable procedural shortcuts which I 
believe are shortchanging justice for tens of thousands of Americans 
every year in this court of appeals.
  Let me give you a few examples. Every court in the U.S. Federal 
system, in order to have uniformity of law, when they have difficult 
issues, they meet as a court in what they call an en banc meeting. This 
provides uniformity in all the courts. There is only one court that 
doesn't do that. Because it has 29 judges--much more than any other 
court--the Ninth Circuit does not meet as a whole court; therefore, 
limiting its ability to address intracircuit conflicts, with no 
uniformity in the law in the Ninth Circuit, and it is seen again and 
again and again. Further, and perhaps most alarming--again because of 
its size--the Ninth Circuit is the only court of Federal appeals where 
a nonelected, nonappointed, nonarticle II judge called an appellate 
commissioner rules on matters by the thousands that should be handled 
by article III life-tenured judges--not an appellate commissioner who 
is none of those things.
  In a 2005 congressional hearing, one of the Ninth Circuit judges 
testified ``that the appellate commissioner resolved 4,600 motions that 
would otherwise have been heard by judges.'' This is fast-food justice 
for one in five Americans who are part of the Ninth Circuit.
  This Senator plans to come down to the floor over the next several 
weeks and speak to my experience on the Ninth Circuit Court of Appeals. 
I had the opportunity--the honor--to be a judicial law clerk for one of 
the most esteemed judges, Judge Kleinfeld of Fairbanks, AK, many years 
ago, but I did see firsthand how the unwieldy size of this court of 
appeals limits justice, not just for Alaskans but for any citizen who 
is under the jurisdiction of this court.
  Chief Justice Warren Burger warned in 1970 that ``a sense of 
confidence in the courts is essential to maintain the fabric of ordered 
liberty for a free people.'' He cautioned that inefficiency and delay 
in our courts of appeals could destroy that confidence. Unfortunately, 
as it is currently constituted, the Ninth Circuit is inefficient, it 
delays, and therefore denies justice for millions of Americans, and we 
cannot allow the confidence in our system of justice to be undermined 
by continuing a court of appeals that is so large and so unwieldy. That 
is why the Senator from Montana and I intend with our bills to bring 
equal justice for all Americans.
  I turn to my colleague from Montana for his views on this very 
important issue.
  Mr. DAINES. I thank the junior Senator from Alaska, and I appreciate 
him joining me in this most important effort and also for the 
leadership he has demonstrated on this issue. As the junior Senator 
from Alaska knows, the Ninth Circuit Court is broken. It is 
overburdened and is unable to provide quality service and expeditious 
justice for the Americans it is supposed to serve.
  When we offer the Pledge of Allegiance, we close with ``and justice 
for all.'' As I frequently tell my staff, we in public service are 
ultimately in the customer service business. As U.S. Senators, our No. 
1 job is to represent and to serve the people in our States. Our courts 
should reflect the same serving mentality as they uphold their 
responsibility to justice, but when our courts are overburdened and 
overworked, it is the American people who are left underserved and 
waiting far too long for justice. Unfortunately, under the current 
structure, the Ninth Circuit Court of Appeals is unable to provide 
Americans in the West the service they deserve.
  Take a look at this chart behind me. At 64.4 million people served, 
the current Ninth Circuit is the largest circuit by population as well 
as the largest land area. As the junior Senator from Alaska will 
sometimes remind us, if they divide Alaska in two, Texas is the third 
largest State in the Nation. It is not just about the geographical size 
of the West. Look at the number of people who are served in the Ninth 
Circuit. It includes Montana, Alaska, Washington, Oregon, Idaho, 
Nevada, Arizona, California, and Hawaii, not to mention several U.S. 
territories, Guam, and the Northern Mariana Islands. That alone amounts 
to 20 percent of the Nation's population.
  Let's put this in context. That is 85 percent larger than the next 
largest circuit which serves just 34.8 million people, and this chart 
illustrates that well. Needless to say, the Ninth Circuit's caseload is 
significantly greater than any other circuit, and that means

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backlogs and that means delays. Not only is it larger, it is 
disproportionately larger. On average, the Ninth Circuit has had more 
than 32 percent of all cases pending nationally. As the junior Senator 
from Alaska mentioned, it currently has over 14,000 cases pending. As 
you can see in this next chart behind me, that is three times more than 
the next closest circuit, the Fifth Circuit, which has around 4,700 
cases pending. Processing all these cases takes time; in fact, on the 
average, over the last 5 years, nearly 15 months from appeal to 
determination.
  It is time to take a serious look at how our court system can better 
serve the American people, and that is why Senator Sullivan and I have 
introduced two separate bills to address these challenges. Our bills 
would bring much needed reform, not just to the Ninth Circuit but also 
to the entire Federal circuit courts of appeals system. The Circuit 
Court of Appeals Restructuring and Modernization Act would split the 
Ninth Circuit Court of Appeals into two circuits, providing a more 
manageable balance of population and geography for both circuits so 
western Americans can be better served by our courts.
  The Federal Courts of Appeals Modernization Act would establish a 
commission to study the Federal circuit courts of appeals system and 
identify changes needed to promote an expeditious and effective 
disposition of the Ninth Circuit caseload. Keep this in mind. When we 
split the circuits into a new Ninth and the Twelfth Circuits, the Ninth 
Circuit would still have a larger caseload than any other circuit. In 
the new Ninth Circuit's jurisdiction, there would be 40.8 million 
people. It would continue to maintain its status as first in 
population. In the Twelfth Circuit's jurisdiction, this new circuit we 
would establish, there would be 24.3 million people, which makes it the 
seventh largest in population among the circuits. It is just a little 
bit below the average. Those numbers alone should make it clear reforms 
are needed.
  It is worth remembering that the challenges facing the Ninth Circuit 
have been longstanding, and the efforts to find solutions are 
bipartisan. In fact, two prior Commissions--one in 1973 and the other 
in 1988, which, by the way, was championed by California Senator Dianne 
Feinstein--both determined that the Ninth Circuit had an overly 
burdensome size and scope and suggested that changes be made with the 
structure of the Federal courts of appeals.
  It is time to move forward with concrete solutions to address this 
problem. The bills introduced by the junior Senator from Alaska and I 
will do so.
  I was trained as an engineer. As an engineer, one identifies a 
problem and most importantly finds a solution. We have a capacity 
constraint which can be alleviated. In thinking about our communities, 
as our communities grow, we need to add more schools, add more 
teachers, and add more police officers.
  We need to ensure that all Americans have access to the justice they 
deserve. It is time to split the Ninth Circuit.
  I want to thank the junior Senator from Alaska for championing this 
important issue, and I look forward to working with him to find a 
resolution.
  Mr. SULLIVAN. I thank my colleague from Montana and for his point in 
particular. The charts make a very compelling case, but I think his 
point in particular about constraints--when things get too large, they 
become an organization that cannot function.
  I think when you look at the debate that has occurred previously 
about the Ninth Circuit, somehow we have gotten to the point where it 
is some kind of radical idea to split the Ninth Circuit. But if you 
look at the history of our country, the radical idea is actually not 
splitting the Ninth Circuit. The outlier position is not to take a 
court either that has this many cases pending or that controls this 
much of the population and not do something about it.
  The history of this body, starting with the Judiciary Act of 1789 
that created three circuit courts: Eastern, Middle, and Southern--only 
a few years later, Congress acted again--in 1802, a mere 13 years 
later--and Congress doubled the number of circuit courts to six. What 
we have seen throughout our history is when this kind of situation 
exists where one court has an enormously oversized population, 
Congress--as my colleague from Montana mentioned--acts in a bipartisan 
manner, and they act for the sole reason to make sure all Americans are 
getting effective administration of justice.
  When your citizens wait longer than any other Americans and have 
delays more than any other Americans and when your court that you are 
subject to the jurisdiction of starts to create procedural shortcuts, 
not a lot of which are known--and we are going to talk about some of 
those over the next several weeks--and no other court does that, you 
start to see that one in five Americans is burdened by this and 
burdened by the lack of what the Supreme Court says: ``Equal Justice 
Under Law.''
  I again thank my colleague from Montana. I know he has some views on 
what would happen again if this doesn't happen in his State or in my 
State. But this isn't just about the West; this is about all Americans. 
We all deserve the same justice.
  Just by looking at these two posters, cases pending, as I talked 
about earlier, and the time it takes to get appeals completed and the 
enormous population of just one circuit, what is clear to me is that 
the Congress needs to act.
  I am honored to be working with my good friend from Montana where we 
are offering Congress a variety of different ways to approach this--a 
commission, a bill to split the circuit.
  But I want to emphasize that this is not a radical idea; the radical 
idea that is out of step with American history is to not do something 
about this.
  Every time in America's history since the Judiciary Act of 1789 when 
this type of situation has occurred, Congress has acted, and they acted 
because they knew equal justice under the law was at stake.
  Mr. DAINES. I remember as we were raising our four children, 
sometimes it would be late at night with a sick child, and I would turn 
on ``Sesame Street'' with the child. I remember there was that ``One of 
These Things (Is Not Like the Others)'' song. As I look at that chart, 
this could be a ``Sesame Street'' illustration. One of these circuits 
is not like the others. It is such a stark contrast to what we see with 
the Ninth Circuit.
  With the disproportionate number of cases that are pending in the 
Ninth Circuit, this is not that complicated of a problem in terms of 
trying to identify where the problem lies. It is simply a factor of 
constraints, and it starts with the population chart my colleague from 
Alaska has, but then it results in a disproportionate share of cases 
coming out of that population. That is why something must be done.
  These two prior Commissions that have studied this before, the one in 
1973--which, by the way, in 1973, I was 11 years old. I was about 
``Sesame Street'' age then. At that point they said the Ninth Circuit 
had an overly burdensome size in 1973. Yet again in 1998, I am grateful 
that California Senator Dianne Feinstein was championing that 
Commission. She looked at this same issue 18 years ago and determined 
that the Ninth Circuit was overly burdened and suggested changes be 
made to the structure of the Federal courts of appeal.
  So I look forward to working with my colleague from Alaska as we have 
identified this problem and now move forward to a solution. If there is 
something we hear over and over again from the American people, it is 
this: You are not solving the problems facing this country.
  We have a problem. We have a solution. I look forward to vigorous 
discussions and continuing to get more information, and I look forward 
to the alternatives. We think this is the best solution--to split the 
Ninth, add the Twelfth Circuit. Even after that is done--you take the 
Ninth and create the new Twelfth Circuit--the Ninth Circuit will still 
be the largest circuit by population in the United States.
  I again thank the junior Senator from Alaska for taking the lead in 
this effort and look forward to continuing this discussion.

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  Mr. SULLIVAN. I appreciate my colleague's efforts as well. We will 
continue to be focused on this.
  I will end by mentioning--my colleague mentioned the Sesame Street 
adage ``One of these things is not like the other.'' But one other area 
where this is the case, as I mentioned before, is in the en banc 
procedures. That is when the courts of appeal--every one of them in the 
country with the exception of one--when they have difficult issues, 
they sit together. All the active judges sit together. This provides 
uniformity and predictability in these courts. But one of these courts 
is not like the others. The Ninth Circuit cannot do this. It is too 
big. So they have developed what is called a limited en banc review, 
which by definition is incorrect and an oxymoron because ``en banc'' 
means the whole court. So that is why you have so many opinions in this 
court that are not uniform, that are problematic, and that undermine 
the administration of justice for the one in five Americans who is 
subject to this court's jurisdiction.
  I look forward to working on this with my good friend the Senator 
from Montana and Members on both sides of the aisle. This should be a 
bipartisan issue for every Member of this body who wants to make sure 
their citizens have equal justice under the law.
  I yield the floor.

                          ____________________