The Federal Judgeship and Administrative Efficiency Act of 2005

THE FEDERAL JUDGESHIP AND ADMINISTRATIVE EFFICIENCY ACT OF 2005 -- (Extensions of Remarks - March 15, 2006)

SPEECH OF
HON. MICHAEL K. SIMPSON
OF IDAHO
IN THE HOUSE OF REPRESENTATIVES
WEDNESDAY, MARCH 15, 2006

* Mr. SIMPSON. Mr. Speaker, article III of the Constitution states that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." At times in our Nation's history, Congress has found it necessary to realign the United States Courts of Appeals into more efficient and manageable circuits. Once again, it's time for Congress to exercise its article III powers by realigning the Ninth Circuit and creating a new Twelfth Circuit.

* I am pleased to be an original co-sponsor of Judiciary Chairman SENSENBRENNER's H.R. 4093, the Federal Judgeship and Administrative Efficiency Act of 2005. In addition to creating additional federal judgeships, this legislation would divide the Ninth into two circuits. These would consist of a new Ninth made up of California, Hawaii, Guam and the Northern Marianas, and a new Twelfth with Alaska, Washington, Oregon, Montana, Idaho, Nevada, and Arizona.

* Mr. Speaker, this division makes sense. Putting aside any political, historical or emotional arguments, the numbers speak for themselves. A split of the Ninth Circuit is necessary because it has become disproportionately large and unwieldy in relation to the other eleven regional circuits.

* The Honorable John M. Roll, U.S. District Judge for Arizona, has recently provided me with updated statistics regarding the Ninth Circuit. This is where the Ninth Circuit stands today:

* The population of the Ninth Circuit is 58 million people. This is one-fifth of the population of the United States. It is also 27 million more people than reside in the next largest circuit.

* The Ninth Circuit consists of 9 states (including the most populous state), a territory, and a commonwealth. The other circuits average less than four states. No other circuit decides the law for 9 states.

* As of December 31, 2005, the Ninth Circuit had nearly 17,000 pending cases, which represents 28 percent of all pending federal appeals.

* According to recent statistics from the Administrative Office of U.S. Courts, the Ninth Circuit is now the slowest circuit in the country, by more than 2 months, for each of its nearly 17,000 cases, from filing of notice of appeal to disposition.

* The Ninth Circuit has 28 authorized active circuit judgeships. The other 11 geographical circuits average less than 13.

* It is clear from these facts that the extraordinary growth of the nine western states comprising the Ninth has resulted in an overpopulated circuit that has become a giant among the twelve circuits.

* Ninth Circuit Judges O'Scannlain and Tallman hit it on the head when they wrote in the Wall Street Journal that "..... size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size." This statement describes precisely why we need to split the Ninth Circuit.

* With a fifth of the U.S. population living in the Ninth Circuit today, I would expect that this could easily become a fourth of the population. Today's 28 active Ninth Circuit judges will eventually become 35, then 40, 50 and so on.

* The Ninth Circuit has a history to be proud of, but how long will it be before those who seek to hold onto the past glory of the Ninth come to realize that it should not be recognized for its unique solutions for coping with staggering caseloads and an inability to readily sit all judges? Under this legislation, the new Ninth and Twelfth Circuits will be recognized as individual circuits that have been given a fresh start, fresh life, and fresh collegiality with efficiencies that allow judges in the new circuits to focus on case law and not case management.

* Opponents of a split have ascribed political motivations to my efforts--that I, being the author and proponent of realignment legislation, don't like the decisions of the Ninth Circuit. Well, the Ninth does make bad decisions that I don't agree with. For that matter judges appointed by Nixon, Reagan and both presidents Bush make bad decisions that I don't always agree with. Every circuit in the United States makes bad decisions that I don't always agree with. The practical effect of a court ruling is that one party will be pleased and the other disappointed.

* Should a circuit be realigned, or manipulated in a manner such as "court packing" solely for political reasons? Absolutely not. However, the fact that my colleagues and I may disagree with certain rulings of the Ninth Circuit should not automatically disqualify us from seeking to realign the circuit. Ascribing political motivations to my colleagues and me is nothing more than a disingenuous smokescreen. If judges, scholars, politicians and others have spoken to me they know that my motivations are not political. My motivation is a desire for my constituents to have an efficient, expedient and manageable court that is able to apply a consistent interpretation of the law. In the meantime, my faith in the Supreme Court and its demonstrated readiness to overturn rulings of the Ninth Circuit, alleviates any fears that I have that an egregious ruling of the Ninth will not be corrected.

* Of course split opponents must throw up the smokescreen that my fellow colleagues and I are politically motivated. What else can they do? It's impossible to argue against the facts. Having one-fifth of our nation's citizens in one circuit while the remaining four-fifths are in eleven circuits does not make sense. I have yet to hear split opponents or scholars state why it is good for a single circuit to have one-fifth of the nation's citizens in one circuit when the remaining four-fifths are in eleven other circuits. I do not know why having 28 percent of all pending appeals in one circuit is a sign of an effectively working court. I have not heard why it is good for a circuit to have 28 active judgeships, which is eleven more judges than the next largest circuit and more than double the circuit average of 13. I don't know why it is good for Idahoans to have their appeals heard en banc by a partial number of our court of appeals' judges when citizens in the other eleven circuits will get a hearing before all the judges of their circuit. Is this fair to citizens of the Ninth? I don't believe it is.

* I look forward to reading the first article, or speech from a federal judge, politician or scholar that sets aside any reference to politics or the political motivations of others and explains why it is a good thing to have a single circuit with one-fifth of the nation's population, 28 active judgeships and a procedure for a partial number of judges to hear cases. I would also take the liberty of asking a theoretical question to that judge, politician or scholar and it goes like this--if you were to start from scratch and create 12 new circuits for our nation, would you place one-fifth of the population in just one of the twelve circuits? Please send a copy of that to my office here in Washington.

* Something else I have heard is that our efforts to split the Ninth Circuit are "a threat to judicial independence". I would like to hear from any federal judge, appointed for life, whether their decisions are being influenced based on a threat that their circuit might be realigned? I find it hard to believe that judges, who at times must put their lives on the line for our country in the face of threats and intimidation by criminal defendants, are scared of politicians in Washington, D.C. Once again, please feel free to contact my office here in Washington if that is the case, I promise confidentiality.

* Another thing I hear thrown about is an idea I like to call "judicial veto authority". What I'm hearing is that since a majority of the Ninth Circuit judges might not favor a split then it shouldn't go forward. I would ask the proponents of this idea, the proposition that sitting circuit judges need approve of a split before it goes forward, where this is found in Article III?

* I do not believe that the composition of a circuit should be determined solely out of concern for its judges, lawyers, bar associations or even politicians. It should be determined by how best the people are served within the states it encompasses. Realigning the Ninth Circuit is about better serving the people who live and work in the nine states and two territories within its boundaries. It's about providing them with better efficiencies, a more consistent interpretation of the law based on rulings made by judges who spend more time conferring directly with one another and reading each other's decisions.

* In addition, although the costs of dividing a circuit are important in these days of budgetary constraint, they should not be the reason for disregarding the benefits that would befall the citizens of nine states and two territories. Opponents of a Ninth Circuit split have made note that a new Twelfth Circuit would be costly, with some estimating as high as $21 million in additional court costs annually.

* As a member of the Budget Committee it's a wonder that we are not today seeking the savings that would come from creating five larger circuits consisting of say: the Fourth and Sixth plus Georgia; the Fifth and Tenth plus Alabama and Florida; the First, Second and Third; the Eighth and Seventh; and the Ninth alone. Combining those circuits could save us upwards of $150 million a year in operating costs alone.

* The reason we are not debating whether to create larger circuit courts of equal size to the Ninth is because it does not make sense to have large circuits. We already have one large court--the United States Supreme Court. I am told that there is a saying that goes "there is the Supreme Court, the Ninth Circuit, and the rest of the federal circuits." What we need now are 13 circuits of roughly equal proportion--not Snow Ninth and the 11 dwarfs.

* Two other things I would mention. I have yet to hear calls for returning the Fifth and Eleventh Circuits into their original circuit. From what I know, the division that was undertaken in 1981 has settled out well. Finally, for those who are committed to the "old" Ninth--they can rest easier knowing that even after shedding seven states, the "new" Ninth will remain the largest circuit in the United States.

* As we move forward with our legislation to realign the Ninth Circuit, I look forward to split opponents coming out from behind their political smokescreens and discussing the facts at hand which are indisputable--the Ninth Circuit is too large and unwieldy. No amount of technology and innovation is going to provide my constituents with the efficiency and expediency that they deserve as well. The current judges of the Ninth deserve a collegial atmosphere where they can spend time on case law and not case management.

* I appreciate the leadership Chairman SENSENBRENNER has provided in our efforts and look forward to working with him in the coming year as H.R. 4093 and the Ninth Circuit realignment become a reality.

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