Prayer

PRAYER

Ms. MURKOWSKI. Mr. President, I thank the Senator from Alabama for this opportunity.

I join today with my colleagues in the Senate to address the judicial confirmation process and really the procedural quagmire in which we find this body right now. I take very seriously my obligation under the Constitution to provide the advice and consent to the judicial nominations of individuals who are nominated by the President to serve on the Federal bench. I have heard repeatedly over the hours the term "rubberstamp," there is a rubberstamp approval. Those on my side of the aisle would automatically take the President's nominees. I do not take part of my job to mean that my vote is intended to be a rubberstamp of approval for the President's nominations to these critical judicial positions.

I am frustrated that after serving in the Senate for almost a year, and contrary to what some Members may assert, the Senate has not been permitted to vote up or down on the merits, on the qualifications of the individuals who are embroiled in this current dispute. Rather, we have been prevented, I have been prevented as a Member of the Senate, as an individual, from voting for or against a nomination by a legislative procedure, legislative procedural rules unique to this body.

We are engaged in the Senate in a historic session for not quite 24 hours, during which time we have heard about the nomination process, the qualifications of certain individuals to be Federal judges, the need for jobs, unemployment issues-a variety of compelling, interesting significant issues. I bring to this debate this afternoon a new issue and explain why legislation I have proposed, along with several other colleagues of the Senate, to split the Ninth Circuit Court of Appeals, why this is relevant and important to the debate today.

The Senate has debated the qualifications and character of specific individuals to serve on the Ninth Circuit. As some would argue, by invoking the Senate procedures to filibuster the current judicial nominations, those on the other side of the aisle are simply trying to ensure the balance or the mainstream ideology on the U.S. court of appeals.

But there is little doubt in my mind they seek to maintain what I perceive to be philosophical bias on the Ninth Circuit Court of Appeals. For those looking for circuit courts whose actions may raise concerns about ideology and balance, I suggest my colleagues take a close look at the U.S. Court of Appeals for the Ninth Circuit. In the makeup of who is currently serving on the Ninth Circuit, the court currently has 9 judges appointed by Republican Presidents and 17 judges appointed by Democrat Presidents. I will put the Ninth Circuit record into a historical precedent, a recent historical precedent.

During the United States Supreme Court October 1996 term, the Supreme Court found it necessary to review 28 cases decided by the Ninth Circuit. These cases from the Ninth Circuit made up approximately one-third of the Supreme Court docket despite the fact that the Supreme Court has jurisdiction over 11 other Federal circuits and over Federal questions decided in courts of all 50 states.

Of those 28 Ninth Circuit cases back in 1996, the Supreme Court reversed 27. Some could argue this reversal rate is simply the impact of a more conservative Supreme Court disagreeing with the Ninth Circuit on close questions. However, most of the reversals were unanimous. In fact, six were summary reversals. The Supreme Court did not even ask for briefing or oral arguments. The Supreme Court simply reversed the Ninth Circuit on the basis of the petition for certiorari. This lopsided reversal rate has since continued since that 1996 term.

As we compare other circuit court reversal rates, it is helpful because it puts the Ninth Circuit into a context and helps us review the balance.

In 1997, of those cases decided by the Supreme Court in a full opinion, the Supreme Court reversed or vacated four cases from the DC Circuit cases and affirmed five. Balance that against the Ninth Circuit, where in that same year the Supreme Court affirmed 3 cases from the Ninth Circuit and reversed or vacated 14.

Let's go to 1998. The Supreme Court affirmed one case from the DC Circuit, vacated one case, and reversed no DC Circuit case. In comparison to the Ninth Circuit, in 1998 the Ninth Circuit was affirmed 4 times and reversed or vacated 14 times.

1999, the Supreme Court affirmed three DC district cases and reversed or vacated no cases from that court.

In 1999, the Ninth Circuit in comparison was reversed or vacated 9 times that year and affirmed only once.

In 2000, the DC Circuit was reversed once and only had one case from that court to go up to the Supreme Court that year. The Ninth Circuit was affirmed 4 times, and in the year 2000 reversed or vacated 13 times.

Over the last 3 years, one-third of all cases reversed by the Supreme Court came from the Ninth Circuit, the circuit that my State is part of. That is 3 times the number of reversals for the next nearest circuit, and a 33 times higher reversal rate than the Tenth Circuit.

I suggest these statistics are astounding in their proportion. One of the reasons the Ninth Circuit is reversed so often is it has become too large and too unwieldy. It is a simple fact. The circuit serves a population of more than 54 million people, almost 60 percent more than served by the next largest circuit. By the year 2010, the Census Bureau estimates that the Ninth Circuit will preside over a population of more than 63 million people. According to the Administrative office of the United States Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. The shear magnitude of cases brought before the court explains why it takes nearly 50 percent longer than the national average, almost 1 year and 4 months, to get a final disposition of a case in the Ninth Circuit. It takes 5 months longer to resolve a case in the Ninth Circuit than the national average for a court of appeals, and the delay increased by a full month in 2003 compared to the time it took in the year 2001. Talk about justice delayed, this is it here in the Ninth Circuit.

With such a huge caseload, the judges cannot possibly have the opportunity to keep up with the decisions within the circuit, let alone track decisions made in other circuits. I suggest that now is not the time to have vacancies on the bench in the Ninth Circuit.

One of the individuals who is the subject of these 30 hours, Carolyn Kuhl, has been waiting for an up-or-down vote to the Ninth Circuit since June 22, 2001. There are many who believe the U.S. Court of Appeals, the Ninth Circuit, is out of touch with the mainstream. This is part of the reason that I support splitting the Ninth Circuit and part of the reason the Senate must complete the pending nominations.

We only need to look back to March of this year when the Ninth Circuit decided that the Pledge of Allegiance was unconstitutional. Talk about a very graphic example of the Ninth Circuit being out of touch with mainstream America. The Senate, by a 94-0 vote, went on record expressing unanimous opposition to the Ninth Circuit decision in Elk Grove Unified School District. The U.S. Supreme Court shortly thereafter granted certiorari and briefs to be filed before the end of the year.

Another part of the problem with the Ninth Circuit is it is never able to speak with one voice. All other courts have one entity to hear full court en banc cases. The Ninth Circuit sits in panels of 11. This system injects unnecessary arbitrariness to decisions. In an en banc decision, a case is decided 6 to 5. There is no reason to think it could actually represent the views of the majority of 24 active members of the bench. In fact, there are some commentators who have suggested that a majority of the 24 members of the Ninth Circuit may have disagreed with the pledge decision. But there was a concern that a random pick of 11 members of that circuit to hear the case en banc might have resulted in the decision being affirmed.

The time has come to fill the vacancies in the Ninth Circuit and to enact legislation to split the circuit. We have heard again many times in the Senate over the course of these hours: Justice delayed is justice denied. That is most certainly happening in the Ninth Circuit. That is happening to the individuals who are pending before the Senate seeking confirmation of their judicial appointments. Filling the current vacancies would decrease the time it takes to resolve cases and would therefore provide better administration of justice.

I see the Senator from Ohio is in the Senate, and I know he was to have a share of our side's time.