Expressing Support for the Pledge of Alligence

EXPRESSING SUPPORT FOR THE PLEDGE OF ALLEGIANCE

Ms. MURKOWSKI. I thank the Chair.

Mr. President, I am pleased to be joined by the Republican whip, Senator McConnell, in introducing a resolution disapproving last week's Pledge of Allegiance ruling by the full Ninth Circuit Court of Appeals.
The full court refused to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance.

Last week's decision is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. The full Ninth Circuit decision on the pledge represents a type of extremism carried out by individuals who want to substitute their values in place of constitutional values. What they want to do is simply eradicate any reference to religion in public life. That is not what the First Amendment mandates.

In his dissent from the court's decision, Judge O'Scannlain, writing for six judges, called the panel decision "wrong, very wrong—wrong because reciting the Pledge of Allegiance is simply not a 'religious act' as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense."

He went on to say: "If reciting the pledge is truly 'a religious act' in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto or the singing of the national anthem," verse of which says, 'And this is our motto: In God is our trust." I believe the reasoning of Judge O'Scannlain is absolutely correct.

One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the Ninth Circuit suggests a judicial activism that is close to the fringe of legal reasoning.

During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed.
In fact, this is the court with the highest reversal rate in the country. In 1997, 27 of the 28 cases brought to the Supreme Court were reversed—two-thirds by a unanimous vote.

Over the last 3 years, one-third of all cases reversed by the Supreme Court came from the Ninth Circuit. That's three times the number of reversals for the next nearest circuit and 33 times higher than the reversal rate for the 10th Circuit.

Last November, on a single day, the Supreme Court summarily and unanimously reversed three Ninth Circuit decisions. In one of those three cases, the Supreme Court ruled that the circuit had overreached its authority and stated that the Court "exceed[ed] the limits imposed on federal habeas review .    .    . substitut[ing] its own judgment for that of the state court."
One of the reasons the Ninth Circuit is reversed so often is because the circuit has become so large and unwieldy. The circuit serves a population of more than 54 million people, almost 60 percent more than are served by the next largest circuit. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million.

According to the Administrative Office of the U.S. Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. And with its huge caseload, the judges on the court just do not have the opportunity to keep up with decisions within the circuit, let alone decisions from other circuits.

In a New York Times article last year it was pointed out that judges on the court said they did not have time to read all of the decisions issued by the court. According to a 1998 report, 57 percent of judges in the Ninth Circuit, compared with 86 percent of Federal appeals court judges elsewhere, said they read most or all of their court's decisions.

Another problem with the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full-court, or en banc, cases. The Ninth Circuit sits in panels of 11. The procedure injects randomness into decisions. If a case is decided 6 to 5, there is no reason to think it represents the views of the majority of the court's 24 active members.
Last week, some legal experts suggested that the Ninth Circuit's unique 11 member en bank panel system may have contributed to the courts' decision on the pledge. It has been suggested that even a majority of the 24 members of the court might have disagreed with the pledge decision but feared that a random pick of 11 members of the court to hear the case might have resulted in the decision being affirmed.

That is not the way the law should be interpreted by the circuit courts of this country. I believe this decision highlights the need for this Congress to finally enact legislation that will split the Ninth Circuit. It has just become dysfunctional.
Later this week I will be introducing such legislation, and I hope my colleagues on both sides of the aisle will join me in that legislation.

I yield the floor.