Statements on Introduced Bills and Joint Resolutions S562

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Ms. MURKOWSKI (for herself, Mr. STEVENS, Mr. BURNS, Mr. CRAIG, Mr. CRAPO, Mr. INHOFE, and Mr. SMITH):

S. 562. A bill to amend chapter 3 of 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.

Ms. MURKOWSKI. Mr. President, earlier this week, the Senate, in a 94-0 vote, went on record expressing its unanimous opposition to last week's decision by the Ninth Circuit Court of Appeals refusing to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance.

The Pledge decision rendered by the court is not an aberration. It is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. Unfortunately, citizens in the states that are within the Ninth Circuit's jurisdiction have had to contend with the court's idiosyncratic jurisprudence for decades.

One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the court suggests a judicial activism that is close to the fringe of legal reasoning. And it is for that reason that the Ninth Circuit has, by far, the highest reversal rate in the country. During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed. In 1997, a startling 27 of the 28 cases brought before the Supreme Court were reversed—two-thirds by a unanimous vote.

Over the last three years, one-third of all cases reversed by the Supreme Court came from the 9th 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 too 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

Another problem unique to the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full-court, en banc, cases. The Ninth Circuit sits in panels of 11. Clearly, such a procedure injects unnecessary randomness into decisions. If an en banc 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.

In fact, some commentators believe a majority of the 24 members of the court may have disagreed with the Pledge decision, but were concerned that a random pick of 11 members of the Court to hear the case, en banc, might have resulted in the decision being affirmed.

It is inconceivable to me that a circuit court could render a decision based on its concern about the potential makeup of an en banc panel. What kind of jurisprudence is that? Citizens in no other circuit face that type of coin-flip justice. That is fundamentally unfair to every single one of the 54 million people who live within the jurisdiction of the Ninth Circuit and is reason alone to restructure the circuit.

It is time that Congress finally faces the fact that the Ninth Circuit is no longer a viable and functioning circuit. It is for that reason that I am today introducing the Ninth Circuit Court of Appeals Reorganization Act of 2003. I am pleased to be joined in this effort by Senators, STEVENS, BURNS, CRAIG, CRAPO, INHOFE, and SMITH.

The bill we are introducing today would divide the Ninth Circuit into two independent circuits. The restructured Ninth Circuit would contain California, and Nevada. A new Twelfth Circuit would be composed of Alaska, Hawaii, Arizona, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands.

Earlier I indicated a number of reasons why I believe the Circuit needs to be reorganized. Let us not forget the scope of this circuit and the 54 million people who live within it. The Ninth Circuit extends from the Arctic Circle to the Mexican border, spans the tropics of Hawaii and across the International Dateline to Guam and the Mariana Islands. Encompassing some 14 million square miles, the Ninth Circuit, by any means of measure, is the largest of all U.S. Circuit Courts of Appeal. It is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined!

Moreover, because of the sheer magnitude of cases brought before the Court, citizens within the court's jurisdiction face unprecedented delays in getting their cases heard. Whereas the national average time to get a final disposition of an appellate case is nearly 11 months, an appeal in the Ninth Circuit takes nearly 50 percent longer—almost one year and four months.
This is not the first time that Congress has recognized that the Ninth Circuit needs restructuring. Numerous proposals to divide the Ninth Circuit were debated in Congress even before World War II.

In 1973, the Congressional Commission on the Revision of the Federal Court of Appellate System Commission, commonly known as the Hruska Commission, recommended that the Ninth Circuit be divided. Also that year, the American Bar Association adopted a resolution in support of dividing the Ninth Circuit.

In 1995, a bill was reported from the Senate Judiciary Committee in which Chairman ORRIN HATCH of Utah declared in his Committee's report that the time for a split had arrived: "The legislative history, in conjunction with available statistics and research concerning the Ninth Circuit, provides an ample record for an informed decision at this point as to whether to divide the Ninth Circuit... Upon careful consideration the time has indeed come."

In 1997, Congress commissioned a report on structural alternatives for the Federal courts of appeals. The Commission, chaired by former Supreme Court Justice Byron R. White, found numerous faults within the Ninth Circuit and recommended major reforms and a fundamental reorganization of the Circuit.

On the day my legislation is enacted into law, the concerns of the White Commission will be addressed. A more cohesive, efficient, and predictable judiciary will emerge.

Many who oppose legislation to reorganize the Ninth Circuit, contend that all the Circuit needs is the appropriation of more Federal dollars for more Federal judges. However, I do not believe more money will solve the inherent problems that exist in a circuit of such magnitude. As former Senator and Alabama Supreme Court Chief Justice, Howell Heflin, a Democrat from Alabama, remarked after Congress divided the former Fifth Circuit: "congress recognized that a point is reached where the addition of judges decreases the effectiveness of the court, complicates the administration of uniform law, and potentially diminishes the quality of justice within a Circuit." in the case of the Ninth Circuit, there can be little doubt that we are at that point in time that former Senator Heflin cited.

Former Oregon Senator Bob Packwood believed that a Ninth Circuit split would enable judges to achieve a greater mastery of applicable, but unique, State law and State issues. He believed such mastery was necessary because "burgeoning conflicts in the area of natural resources and the continuing expansion of international trade efforts will all expand the demand for judicial excellence... By reforming our courts now, they will be better able to dispense justice in a fair and expeditious manner."

I agree with the former Senator. The uniqueness of the Northwest, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of State law and State issues relative to the geographic land mass, population and native cultures that are unique to the relevant region. Presently, California is responsible for almost 50 percent of the appellate court's filings, which means that California judges and California judicial philosophy dominate judicial decisions on issues that are fundamentally unique to the Pacific Northwest. This need for greater regional representation is demonstrated by the fact that the East Coast is comprised of five Federal circuits. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law.

Further, a division of the Ninth Circuit would honor Congress' original intent in establishing appellate court boundaries that respect and reflect a regional identity. In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the original purpose of its creation: the uniform, coherent and efficient development and application of Federal law in the region. Establishing a circuit comprised solely of States in the Northwest region would adhere to Congressional intent. And the State of Hawaii should rightfully be included in this circuit, for like Alaska, there are unique issues that are faced by the two States that are not part of the contiguous lower 48.

A new Twelfth Circuit, comprised of states of the Pacific Northwest, would respect the economic, historical, cultural and legal ties which philosophically unite this region.

No single Court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of equal justice for all.

It is my hope that this Congress will finally approve this necessary reorganization. It is long overdue.