Creating Additional Federal Court Judgeships
CREATING ADDITIONAL FEDERAL COURT JUDGESHIPS -- (House of Representatives - October 05, 2004)
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Mr. SIMPSON. Mr. Chairman, I offer an amendment.
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Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume, and I thank the Committee on Rules for making this amendment in order.
Mr. Chairman, this amendment would split the Ninth Circuit Court of Appeals and, as has already been stated on this floor, there is some controversy surrounding it. This is an issue that has been discussed for several years, both in the States that are affected by the Ninth Circuit and when I was in the State legislature, I served on the Judiciary and Rules Committee, and we discussed this many times and looked at the Ninth Circuit and the potential need for splitting the Ninth Circuit.
Let me state at the outset of this, it is inevitable that the Ninth Circuit will be split. At some point in time, whether it is with this bill or some other bill in the future, the need to split the Ninth Circuit is undeniable. At some point in time, the growth is such that it is growing so rapidly that we will have to split this court.
What are the factors that we should look at that should determine when it is time to split this court? I agree with the White Commission and the statements made by the gentleman from California earlier. Looking at the decisions of a judge, there is no reason to split the court. Whether one agrees or disagrees with those decisions, that is not the reason to split a court.
The reason to split a court is for administrative purposes, and in the past there has been much debate about the liberal decisions of the Ninth Circuit and so forth; and people have wanted to get out of the Ninth Circuit for that reason. That is not my intention. My intention is because of the administration of the Ninth Circuit.
Look at these facts. The Ninth Circuit has 48 judges, a figure that is approaching twice the number of total judges as the next largest circuit. It is twice as big as the next largest circuit in terms of judges, and the Ninth Circuit represents 56 million people, roughly one-fifth of the population of the U.S. This is 5 million more people than the next largest circuit. The Ninth Circuit encompasses nearly 40 percent of the geographic area of the United States. It runs essentially from the equator to the North Pole and from the corners of Montana to Guam. It is an enormous surface area.
The Ninth Circuit also has the most number of appeals filed and the highest percentage of increases in appeals filed, the most number of appeals still pending and the longest median time until disposition of those appeals.
To address this problem, this amendment creates a new Ninth Circuit featuring California, Guam, Hawaii and the Northern Marianas Islands; a new 12th Circuit, featuring Arizona, Nevada, Idaho, and Montana; and a new 13th, featuring Alaska, Oregon, and Washington.
This legislation also allows the President to appoint five new judges to permanent Ninth Circuit seats, along with two other judges who will temporarily fill seats. These additions are consistent with requests made by the Judicial Conference and will ensure that future caseload demands made on the new Ninth Circuit will more closely mirror its new judgeship resources. The amendment further ensures that the duty stations of these judges will be California, where the demand for more judges is highest.
The creation of more judgeships in the absence of additional reform will not improve the administration of justice in the United States. This is an instance in which bigger does not mean better. We must distribute judgeships with an eye toward achieving structural coherence within each circuit. This amendment accomplishes that.
For just a minute, Mr. Chairman, let me address some of the arguments that have already been made and will be made against this bill:
First, that we are doing it just because we do not like the decisions of the Ninth Circuit. While that may have been the case in the past and some of the tactics that has been talked about in the past when this issue has been discussed, certainly that has been one of the premier points of view that some people have raised, that is not the reason to do it. I agree with the White Commission.
Second, the cost. The cost, as has been stated here, is somewhat exaggerated, and the reason for that is that it took into consideration the addition of five new additional judges and two temporary judges. Those judges will be appointed whether or not this amendment is adopted because they are in the underlying bill. So the cost of this amendment is substantially overstated by the opponents of this legislation.
Third, we have talked about Governor Schwarzenegger of California not supporting this and that we should follow our fellow Republican Governor. I can tell my colleagues that there are Republican Governors that do support this that are affected in the Ninth Circuit. The California Governor is not the only Governor in the Ninth Circuit.
The fourth is judges do not want this, that there was a vote taken and it was 30 to nine of the judges of the Ninth Circuit that did not want this split to occur. Let me tell my colleagues how that occurred. That was a straw poll that was taken of the judges. The chief justice of the Ninth Circuit knew exactly how each of those judges voted. It was not a vote in secret, and each one of those judges knew that the chief justice of the Ninth Circuit is adamantly opposed to this split. Did that influence the vote? I do not know, but I can tell my colleagues that of the nine that voted to support the split, they are registered as the nine. Of the 30 that opposed the split, some of them opposed it, some of them were undecided, and they were counted as opposing the split. So to say that it was 30 to nine, I think, is an exaggeration of the case.
The fact is we have to look at the facts that I stated here. Is it time to split this court? I think it is undeniable that it is time. Justice in the Ninth Circuit is different than it is in every other circuit in this country. We do things differently in the Ninth Circuit because it is so large.
In every other circuit, when there is an appeal of the three-judge decision en banc to the full court, all the judges of that circuit sit and listen to the case, even those on the three-judge panel, so that they can have their points of view inserted into that discussion of the case. In the Ninth Circuit, that is not the case. It is so large that they pull names out of a hat, and 10 members and the chief sit en banc. One may or may not be chosen for it. Individuals that sat on the three-judge panel and listened to it may not even be on the en banc panel; and consequently they cannot have their views inserted as to why they decided the way they did as a three-judge panel.
So justice is different in the Ninth Circuit. I think it should be uniform. I think the size of the judiciary in the various circuits should be more closely related than they currently are with the Ninth Circuit; and, consequently, I hope my colleagues will support this amendment, and we will finally do what we have discussed for many years, that is, split the Ninth Circuit, make justice in the West just as it is in the rest of the country.
Mr. Chairman, I reserve the balance of my time.
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Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume.
If you were to follow the arguments of the gentleman from California, maybe we should be combining the smaller circuits into larger circuits, if cost is the issue.
And it is the other side talking about judicial activism, not this side. We are talking because of administrative purposes.
Mr. Chairman, I yield 3 minutes to the gentleman from Wisconsin (Mr. Sensenbrenner), chairman of the full committee.
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Mr. SIMPSON. Mr. Chairman, I yield 2 ½ minutes to the gentleman from Arizona (Mr. Renzi).
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Mr. SIMPSON. Mr. Chairman, I yield myself 30 seconds. While I appreciate the facts from the gentleman from California's comments, the reality is that some people, as I stated in my opening statement, support this because they do not like the decisions of the Ninth Circuit. That is a reality. But as the chairman stated and I stated, that is not the reason to do it. Look at the facts. Do not vote on it based on ideology.
I would also state that it is interesting that, from that side of the aisle, there are people who do not want to split it because they do like the decisions of the Ninth Circuit, and so they want them to apply to the entire West. For the same reason that some Members on my side want it split, some people on their side do not want it split.
Mr. Chairman, I yield 2 minutes to the gentleman from Montana (Mr. Rehberg).
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Mr. SIMPSON. Mr. Chairman, I yield 2 minutes to the gentleman from Oregon (Mr. Walden).
Mr. WALDEN of Oregon. Mr. Chairman, I rise today in support of this amendment. The Ninth Circuit represents 56 million people, or roughly one-fifth of our Nation's population. This is 25 million more people than the next largest circuit; 56 million people in one circuit. It encompasses 40 percent of the geographic area of the United States. Traveling across this much land mass wastes both time and money.
The Ninth Circuit also has the most number of appeals filed and the highest percentage increase in appeals filed, the most number of appeals still pending, and the longest median time until disposition. This is an overworked, overstretched court.
In addition, since the size of the circuit inhibits greater en banc participation by the entire circuit, the Ninth has adopted a practice that allows it to sit en banc with only 11 judges. This means the plurality of those 11, six judges, can effectively determine the case law for the circuit and the remaining 20 judges who serve. All of this leads to inconsistency in case law development and uncertainty among litigants. The outcome of cases in the Ninth are frequently determined more by the composition of a given three-judge panel, not by the law of the circuit as it has evolved. This is detrimental to the law-declaring role, one of a circuit's two primary functions, the other being to correct errors on appeal.
Mr. Chairman, I commend the gentleman from Idaho who has worked tenaciously on this issue to try and bring about fairness in the distribution of the workload in the Ninth Circuit and to bring about fairness in terms of where these cases are heard. We heard from the gentleman from Montana about the need at least to have a judge come there and hear a case once in a while. I think the gentleman from California, if I heard right from the gentleman from Montana, the judge he cited moved to California in 1960 and never held a hearing in Montana. In effect, he became a Californian.
Mr. Chairman, I support this amendment.
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Mr. SIMPSON. Mr. Chairman, I yield 1 ½ minutes to the gentleman from Idaho (Mr. Otter).
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Mr. SIMPSON. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I appreciate the gentleman's concern for the squabble between the Republicans from California and the Republicans from Idaho. But I can tell the gentleman that some Republicans from California also see the need to split the Ninth Circuit. They also are concerned about not having the rest of us in the pool with them.
Let me just say this. The White Commission has been mentioned several times here, and I agree with the White Commission, as I have stated before. Splitting the court because one does not like the decisions is not the right reason to do it. If those individuals here want to split this court because they think that they are going to get better decisions out of a new court that they like better, they are going to be mighty disappointed because I can find decisions on any court anywhere in the land that I am going to disagree with. That is not a valid reason to split a court, even though there are some people who want to do it for that reason.
What I am asking the Members to do is to look past that and look at the statistics, look at the numbers, look at the facts that the reality is that it is going to be split at some time. We cannot go on with a court that is twice as large, will some day, looking at the growth rate, be three times as large as any other circuit court. According to the argument of the gentleman from California, what we should have done in 1980 when we split the Fifth Circuit was just add more judges, but we decided to split it, and, yes, all the judges there wanted to split the Fifth Circuit.
I would like to know of this 30 to nine vote that is being touted, how many of them were the undecideds that were counted in the 30. How many of them would have voted one way or another if a secret ballot was taken and they did not have to reveal who they were to the chief justice that they knew was opposed to the amendment.
I will also tell the Members that the White Commission also recognized there was something wrong with the Ninth Circuit because they recommended not a split in the Ninth Circuit, but to split it administratively, something that had not been done in any other region. They recognized that the administration of the Ninth Circuit was too large and needed to be handled differently. It was not efficient. So they recommended splitting the administration of it. Why they did not recommend splitting the court, I do not know. I think it is because it was always looked at as partisan. And I will also tell the Members that five of the nine Supreme Court Justices have made public comments about the need to split the Ninth Circuit.
I urge support for the amendment.