Providing for consideration of the bill (S. 878) to authorize an additional permanent judgeship in the district of Idaho, and for other purposes.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in conditional opposition to S. 878. The reason I would oppose this bill is if the amendment offered by the gentleman from Idaho is passed by this body.

I firmly believe we should pass a judgeship bill, and I supported it, Senate bill 878, as it was reported out by the House Committee on the Judiciary. The reported bill created all new Article 3 judgeships requested by the Administrative Office of the U.S. Courts. As a result, it would provide critical assistance to many Federal district

and appeals courts currently staggering under tremendous caseloads.

As reported, S. 878 is largely noncontroversial and enjoyed bipartisan support at the House Committee on the Judiciary markup. In fact, if S. 878 were brought up on the Suspension Calendar, as it should have been, I have no doubt it would have passed on a voice vote.

Since it is so noncontroversial, we might ask ourselves why the House's valuable time must be wasted debating S. 878 under a rule. Why are we not using this valuable time to deal with the more difficult appropriations or national security bills?

The answer is that a decision has been made to turn this noncontroversial bill into campaign season cannon fodder. This noncontroversial bill comes before us on a rule in order to provide an opportunity to debate an amendment soon to be offered by the gentleman from Idaho.

The tragedy is that this tactic may result in the adoption of a highly inadvisable amendment. An adoption of this amendment, which would split the Ninth Circuit Court of Appeals into three circuits, will signal the death knell for S. 878 in the Senate.

I will discuss my reasons for opposing that amendment in some detail when it is offered, but I can state at this time that if this amendment were to pass, it would be the first time in the history of our Federal judiciary that we have split a circuit against the will of the justices of that circuit.

If the amendment is adopted, S. 878 will die in the Senate. There is no question about that.

I might also point out that S. 878, as it passed out of committee, while noncontroversial, failed to include any of the new bankruptcy judges that are very important to deal with the tremendous caseload problems in our bankruptcy courts. The Committee on the Judiciary stripped out all of the bankruptcy judgeships because the majority thought that requiring the Senate to pass the bankruptcy reform bill, which also contains authorization for those same judgeships, might be leveraged in the process. I think that is a strategy that is destined to fail and it is a failure in S. 878, in that the judges so desperately needed on the bankruptcy court are not included in this bill.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 3 minutes to the gentlewoman from California (Ms. Lofgren), a member of the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary.

Mr. Chairman, I yield 4 minutes to the gentleman from California (Mr. Schiff), a member of the Committee on the Judiciary.

Mr. Chairman, I yield 3 minutes to the gentlewoman from California (Ms. Woolsey).

Mr. Chairman, we have no further requests for time, and I yield back the balance of my time.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I thank the gentleman and I support the gentleman's amendment, but I am curious why an amendment that is being offered in order to avoid a Budget Act problem requires a waiver of the Budget Act.

Mr. Chairman, I stand up in opposition simply to state my support for the gentleman's amendment and urge its adoption.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise to express my strong opposition to the amendment offered by the gentleman from Idaho. This amendment has never been marked up in the Committee on the Judiciary. It comes out of right field, left field, whatever field. It has never been considered by the committee with jurisdiction over the Federal courts. In fact, the only process it received was a subcommittee hearing last year where the witnesses were split about its advisability.

Let me talk about some of the reasons why I think this body should reject this amendment.

The costs of implementing a three-way split of the Ninth Circuit are enormous and could not come at a worst time. The Administrative Office of U.S. Courts estimates start-up costs in excess of $131 million, incurring additional annual costs of over $20 million each year as a result of this split. The courts will be forced to incur these costs when they are in the midst of a budget crisis.

The Federal courts have already engaged in one round of staff cutbacks. Late last month, the administrative office announced a 2-year moratorium on 42 Federal courthouse construction projects as a result of the hard freeze on the judiciary budget. The administrative office has indicated that it may need to start cutting more staff if the budget situation remains the same.

The Ninth Circuit judges themselves are overwhelmingly opposed to splitting the circuit. In April of this year, Ninth Circuit judges voted 30 to nine

against division of the circuit. In light of this overwhelming opposition from the affected judges, a split of the Ninth Circuit would constitute an unprecedented interference with the judicial system. Congress has never split a circuit over the objections of the affected judges.

If the opposition of the judges themselves does not carry water, perhaps a long bipartisan list of other opponents will be more persuasive. California Governor Schwarzenegger, as the gentleman has acknowledged, wrote in April of 2004 expressing his strong opposition to this proposal. The American Bar Association, the California Academy of Appellate Lawyers, a group of prominent Republican and Democratic lawyers and a number of county and State bar associations all oppose this split.

Split proponents have the burden of proving the advisability of a split; and in my mind, it is a heavy burden. They both must prove that the current Ninth Circuit does not efficiently and effectively serve the interests of justice and that a split would solve more problems than it would create.

To date, the empirical evidence in support of this split is lacking. In fact, for each reason offered as a justification to split the Ninth Circuit, there is a compelling response that justifies an opposite conclusion.

Some split proponents tout the common misperception that the Supreme Court reverses the Ninth Circuit an inordinate amount of the times. Based on this perception, they claim the Ninth Circuit is either out of touch with the rest of the country or issues an unusual number of bad decisions. The evidence does not support this assertion and, in fact, may lead to the opposite conclusion.

For the past 3 years, the reversal rate of the Ninth Circuit by the U.S. Supreme Court has compared favorably with other circuits; but even if we did not like the Ninth Circuit decisions, the gentleman's amendment does not propose shooting the justices. These judges will still be sitting on circuit courts. So it does not even achieve the goal that many of its proponents, if not the gentleman himself, seek to obtain with this amendment.

There was a reason why the leadership of the majority party decided to open up this bill for this nongermane amendment and no other nongermane amendments, and I would suggest it had nothing to do with judicial efficiency or effectiveness. It had to do with politics.

It has been noted that due to the Ninth Circuit's size, panels rarely involve the same three judges. Proponents of the split argue that the shifting nature of panels leads to inconsistent opinions. However, it can be said that the shifting nature of panels contributes to the objectivity of decision-making and makes it difficult for any one bias or philosophy to predominate. Less charitably, it could be said that the very consistency of Ninth Circuit opinions, not their inconsistency, is what split advocates find objectionable.

Split proponents note that the Ninth Circuit has almost twice as many judges as the next largest Federal circuit, serves the largest population and deals with the largest number of appeals. Split proponents cite these numbers to support the contention that the Ninth Circuit is overburdened and is simply too huge to operate efficiently. However, statistics belie those contentions. They support the opposite conclusion.

These statistics show that in recent years the Ninth Circuit handled over 207 appeals per circuit judge. When compared to other circuits, these numbers put Ninth Circuit judges in the middle of the pack with regard to the number of appeals they handle annually. Ninth Circuit judges may not be the most efficient, but they are certainly not among the least.

I am sure we will also hear a bit today about the length of time, in fact, we have heard that it takes the Ninth Circuit takes to decide individual cases. The truth is that the Ninth Circuit judges are remarkably quick at deciding cases following argument or submission. It takes the Ninth Circuit 1.4 months to file a decision following arguments, as opposed to the national average of 2.1 months. For submitted cases, it takes one-half month nationally compared with two- tenths of a month in the Ninth Circuit.

Those who raise concerns about delays in case dispositions also offer no such evidence that delays are due to circuit size. In fact, vacant judgeships constitute a more likely explanation for any delays in overall case disposition. Proof for this conclusion can be drawn from the experience of the much smaller Sixth Circuit, which has a large percentage of judicial vacancies and the longest time, in excess of the Ninth Circuit by far, in case disposition among circuits. If delays in case disposition were the keystone for splitting circuits, we would start with the Sixth.

Finally, and least credibly, some split advocates accuse the Ninth Circuit of being unduly activist. These folks believe a split would somehow curb this alleged tendency, or at least inoculate the carved- out 12th and 13th from the decisions of the old Ninth Circuit.

I reject judicial activism as a sound rationale for splitting the circuits, or for any other congressional action against the courts. If judicial activism were valid grounds for restructuring the courts, we would have to reconstitute the current U.S. Supreme Court, which has displayed its own judicial activism in crafting its doctrine of State sovereign immunity. Because judicial activism exists in the eye of the beholder, it cannot be a sound basis for restructuring courts.

In conclusion, we must ask ourselves whether the cure presented by this amendment would be worse than the supposed disease. The disruptions, costs, and uncertainty that would attend a split might turn it into a costly failure. Frankly, the best way for Congress to participate constructively in improving the Ninth Circuit would be to pass S. 878 without this amendment. The additional district and circuit judgeships this bill creates within the Ninth Circuit will help it get an even better handle on its caseload.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, may I get a sense of how much time each side has?

Mr. Chairman, I yield 5 minutes to the gentleman from California (Mr. Schiff).

Mr. Chairman, I yield myself 1 minute.

Now the mask comes off. The last line of the gentleman: They are legislating from the bench; we do not like their decisions.

Believe me, my colleagues, the original proponents of this split and many of its supporters are doing this not based on judicial efficiency, but on ideology. If you want to deal with rising population, you authorize new judgeships.

The major reason in any of the variables where the Ninth Circuit has lagged is because we have not filled the vacancies that were already authorized. You can have one circuit, you can have three circuits, you can have 10 circuits, but if you do not keep up with the growing litigation requirements by authorizing and filling those judgeships, you will have greater delays. It is a very simple equation.

Mr. Chairman, I yield 3\1/2\ minutes to the gentlewoman from Texas (Ms. Jackson-Lee), a member of the Committee on the Judiciary.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Chairman, I yield myself 1 minute.

Perhaps the most eloquent and forceful argument against the amendment being proposed and the split being proposed by the gentleman from Idaho came from the former chief judge of the Ninth Circuit, a Montana justice, Judge Browning, who felt very strongly that the interests of justice were not served by this particular split.

As I listened to the proponents of this amendment talk, the judges do not want it. The lawyers do not want it. They are not talking the merits. They are scared of the judges. We hear no clamor from the litigants about a split of the circuit. We hear no argument that there is some compelling public ground swell for this split. Some of my colleagues do not like this, and they want to ascribe motivations to people who disagree with them. They are afraid of the judges. They assume the judges are not going to act on what is in their interests. They are not going to lose their judgeships over this split. They believe justice is not served by this split.

I urge opposition to this amendment.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 1 minute to the gentleman from California (Mr. Schiff).

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I am not challenging the constitutionality of the proponent's amendment. I am challenging the wisdom of the proponent's amendment. If we do this, we are doing something unprecedented with significant adverse budgetary consequences in a fashion that will not distribute the caseload in any sense equally, that is opposed by the judges, that is opposed by the lawyers who practice in this court and, to the extent that it is ideologically motivated, foists on our poor California Republicans a circuit that they think will not serve their interests.

So I hate to see this squabble between the Idaho and Montana Republicans and the California Republicans, but the fact is this is why, even though you have the authority to draw these lines, it may not be wise to.

I urge opposition to the amendment, and I include for the Record a letter from the highly praised Ninth Circuit judge from Montana opposing the split.

United States Court of Appeals

for the Ninth Circuit,

Billings, MT, October 28, 2003.

Re: H.R. 2723

Hon. Lamar Smith, Chairman,

Subcommittee on the Courts, the Internet, and Intellectual

Property, Washington, D.C.

Dear Chairman Smith: I am a United States Circuit Judge

with chambers in Billings, Montana. I write in opposition to

H.R. 2723. I am also authorized to state that the following

Ninth Circuit Judges whose official stations are within the

boundaries of the proposed Twelfth Circuit join me in

opposing H.R. 2723: Judge Otto R. Skopil (Portland, Oregon),

Judge Betty Binns Fletcher (Seattle, Washington), and Judge

Jerome Farris (Seattle, Washington). In addition, Judge James

R. Browning (San Francisco, California), Judge Alfred T.

Goodwin (Pasadena, California), Judge Robert Boochever

(Pasadena, California) and Judge M. Margaret McKeown (San

Diego, California), whose initial official duty stations were

within the boundaries of the proposed Twelfth Circuit

(Montana, Oregon, Alaska, and Washington, respectively), have

authorized me to register their opposition to H.R. 2723. All

of these judges maintain strong connections with their former

states of residence. In particular, Judges Goodwin and

McKeown wished me to emphasize that they spend a significant

amount of time each year in the Northwest, maintain offices

there, and retain close professional relationships with the

bar and bench in Oregon and Washington, respectively.

Sincerely,

Sidney R. Thomas.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote.

Madam Speaker, I offer a motion to recommit.

In its present form, yes.

Madam Speaker, the Committee on Rules denied me and the rule denied me the opportunity to offer a variation of this amendment in committee, even though they allowed one other nongermane amendment, which we just adopted.

This amendment, I believe, addresses a serious problem in the current structure of the Federal procedures. If an

outside party complains that a Federal judge has engaged in misconduct, that party has a right to have the presiding judge entertain his complaint. If it is the district court, it is the chief judge of the district that that judge sits in; if it is the appellate court, it is the presiding judge of the circuit; and if it is the Supreme Court, it is the Chief Justice of the Supreme Court.

If the presiding judge or the chief judge does not resolve that, the complainant is entitled to a three-judge panel. That is for misconduct.

But for recusals based on an apparent conflict of interest, asking a judge to step aside and not hear a particular case, there is absolutely no process other than the judge himself who is being alleged to have not been appropriately sitting on that case because of conflicts of interest or apparent conflicts of interest; that judge gets to decide for himself. That system is not right.

What this amendment would do in order to be germane and apply as a pilot project, and Chief Justice Rehnquist himself highlighted this statutory anomaly to several U.S. Senators; these Senators had expressed concern that Justice Scalia did not recuse himself from a case in which Vice President Cheney was a named litigant. While this case was pending, Justice Scalia had taken a duck-hunting trip with the Vice President. Not only did they hunt together for several days, but Justice Scalia also traveled with the Vice President aboard Air Force 2.

In a public document explaining his refusal to recuse himself from a case involving his hunting buddy, Justice Scalia wrote that he did not believe ``his impartiality might reasonably be questioned.'' In commenting on Justice Scalia's decision, Chief Justice Rehnquist wrote to the Senators, ``There is no formal procedure for a court review of a decision of a Justice in such a case.''

While I believe that my notions of the propriety of Justice Scalia's refusal to recuse himself are not important, the opinion of the American people is important. The efficacy of our court system depends entirely on the perception that the courts will administer justice impartially. If the courts lose the trust of the people, they lose their only real power.

Reasonably or not, fairly or not, many folks around this country did question whether Justice Scalia could be impartial in a case involving a hunting buddy. It is clear that Justice Scalia's declaration of impartiality did not itself put these questions to rest. To the extent these questions persist, our court system suffers.

This motion to recommit in the new circuits established so that the motion will be in order will establish a process by which the Federal courts can design a procedure where refusals by the judge to recuse himself can be heard by other judges, thereby getting rid of the problem of the appearance of conflict of interest.

I want to make it very clear. I am not coming to the conclusion that Justice Scalia had a conflict of interest; I am coming to the opinion and the conclusion which I believe strongly that someone other than Justice Scalia should be able to make this decision, just like someone other than an accused justice should be able to make the decision about whether or not there has been judicial misconduct.

We are leaving full authority to the Federal courts to design that process, but the notion that there is some appeal, some procedure, some process by which a challenge to the fairness and impartiality of a judge will be heard by someone other than the judge is a necessity.

I urge the adoption of this motion.

Unlike the judicial misconduct statute, the recusal statute currently provides no opportunity to appeal a judge's refusal to recuse himself. My amendment would have simply brought the procedures for addressing recusal and misconduct decisions into line with one another.

Chief Justice Rehnquist himself highlighted this statutory anomaly in a letter to several U.S. Senators. These Senators had expressed concern that Justice Scalia did not recuse himself from a case in which Vice President Cheney was a named litigant. While this case was pending, Justice Scalia had taken a duck-hunting trip with the Vice President. Not only did they hunt together for several days, but Justice Scalia also traveled with the Vice President aboard Air Force Two.

In a public document explaining his refusal to recuse himself from a case involving his hunting buddy, Justice Scalia wrote that he did not believe ``his impartiality might reasonably be questioned.'' In commenting on Justice Scalia's decision, Chief Justice Rehnquist noted that, ``There is no formal procedure for a Court review of a decision of a Justice in an individual case.''

What I believe about the propriety of Justice Scalia's refusal to recuse himself is unimportant. What is important, however, is the opinion of the American people. The efficacy of our court system depends entirely on the perception that the courts will administer justice impartially. If the courts lose the trust of the people, they lose their only real power.

Reasonably or not, many folks around the country did question whether Justice Scalia could be impartial in a case involving a hunting buddy. It is clear that Justice Scalia's declaration of impartiality did not, itself, put these questions to rest. To the extent these questions persist, our court system suffers.

Madam Speaker, I demand a recorded vote.

Mr. Chairman, I offer an amendment.

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.

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.

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Arizona (Mr. Renzi).

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).

Mr. Chairman, I yield 2 minutes to the gentleman from Oregon (Mr. Walden).

Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Idaho (Mr. Otter).

(Mr. OTTER asked and was given permission to revise and extend his remarks.)

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.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the Judicial Conference of the United States reviews the judgeship needs of United States courts every 2 years to determine if any of the courts need additional judges. The Conference completed its last review in March of 2003, and then submitted its recommendations to the House and Senate Committees on the Judiciary. I am pleased that the bill as reported by the Committee mirrors that recommendation. Thus, these are judgeships being created based upon demonstrated need and not upon politics.

The Judicial Conference bases its recommendations on a variety of factors that indicate the needs of various courts. Most importantly, it sets a benchmark caseload standard for considering judgeship requests at 430 weighted cases for individual judges on the district courts and 500 adjusted case filings for the three-judge panels on the courts of appeal. Aside from the numbers, it also considers additional criteria, including senior judge and magistrate judge assistance, geographical factors, unusual caseload complexity, and temporary caseload increases or decreases.

Based on these criteria, the Conference's current proposal recommends that Congress establish 11 new judgeships in four courts of appeal and 46 new judgeships in 24 district courts. The Conference also recommends that five temporary district court judgeships created in 1990 be established as permanent positions. Many of these needs have existed for many years.

The other body passed Senate 878 on May 22, 2003. The Senate bill created 12 permanent district judgeships, two temporary district judgeships, and a number of bankruptcy judgeships. This version of S. 878 also converted two temporary district judgeships to permanent status.

During our September 9 markup on the legislation, the Committee on the Judiciary revised the bill in two major ways.

First, we added all the circuit and district judgeships recommended by the U.S. Judicial Conference that were not included in the Senate bill. This brings the total number of new judgeships in the bill to 58, 11 circuit court seats and 47 district court seats. In addition, four other temporary district judgeships are converted to permanent judgeships.

The Subcommittee on Courts, the Internet, and Intellectual Property conducted an oversight hearing on Federal judgeship needs last year, and we are satisfied as a committee that the submissions developed by the Judicial Conference are meritorious. I emphasize that all the judgeships in the bill before the House could more than satisfy the threshold requirements developed by the Judicial Conference.

Second, all of the bankruptcy judgeships set forth in S. 878 as passed by the other body were stricken. These will be dealt with in the context of the bankruptcy reform legislation which the House has passed and which is currently pending before the other body.

Mr. Speaker, whatever our occasional differences with the third branch, it is our responsibility to ensure that our Federal courts have the resources necessary to allow citizens to seek legal redress in civil disputes and to permit the prosecution of criminal offenses when appropriate. This is a basic function of government.

I urge the Members to support the underlying text of S. 878, as well as the amendment that I will shortly offer to ensure that this bill does not run afoul of the Budget Act, based on the CBO score that accompanies this bill.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from New Mexico (Mr. Pearce).

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I regret that I must offer this amendment to S. 878, but its passage will avoid a problem highlighted by the Congressional Budget Office and its cost estimate for the bill.

Budget rules require us to stay within a 1-year and 5-year budget authority score for direct spending. The bill as reported by the Committee on the Judiciary comports with the 1-year spending threshold imposed by the budget rule. Unfortunately, however, the 5-year score exceeds the corresponding threshold by roughly $5.5 million.

To cure this defect, I was faced with choosing either deleting meritorious circuit and district judgeships from the bill or retaining all of the judgeships while staggering their implementation over a longer period of time. I have chosen the latter option as the better of the two, and this amendment reflects that.

While some judicial districts will have to wait longer for additional judges under this plan, at least those judges will have been authorized for the relatively near future.

Assuming S. 878 is enacted, it will also be possible for a future Congress, perhaps the 109th, to provide the additional funding necessary to change the statute and accelerate the implementation dates for those judgeships that cannot be created prior to fiscal year 2005.

That said, my amendment would implement 11 circuit judgeships and convert the four temporary district judgeships to permanent seats in fiscal year 2005. Existing temporary seats do not score at all, and the related costs of the 11 circuit judgeships easily comply with the first-year threshold requirement.

For the next 5 fiscal years, through fiscal year 2010, the figure staggers the implementation of the remaining district judgeships at the rate of eight per year. In other words, eight new district judgeships are added in fiscal 2006, eight more in fiscal 2007, and so on through 2010. In the last year, fiscal year 2011, the remaining seven district judgeships are officially authorized.

I am sure that each of us could develop a different priority list detailing which judgeships would be implemented in a given fiscal year. I have tried to be fair by arranging the list based on need as defined by the Judicial Conference criteria.

We have received an informal assurance from CBO that this amendment will lower the 5-year budget authority estimate for direct spending below the $34.5 million requirement imposed on the Committee on the Judiciary. My staff has also worked closely with the Committee on the Budget on this matter, and I understand this amendment will satisfy their concerns. I appreciate their contributions to this effort.

In conclusion, I urge the Members to adopt this amendment, a necessary change that will bring us closer to authorizing the first omnibus judgeship bill since 1990.

I yield to the gentleman from California.

Reclaiming my time, I do not know.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I rise in support of the amendment offered by the gentleman from Idaho. And I know that an underlying argument on both sides of the aisle is whether one likes or dislikes the controversial decisions the Ninth Circuit has rendered from time to time. I would hope that we would disregard that and look at the statistics, that the Ninth Circuit has become unwieldy.

I agree with the gentleman from Idaho that the Ninth Circuit is going to get split sooner or later. I believe that he has an amendment to accomplish this split in the best manner possible.

Now, let us look at why the Ninth Circuit needs to be split. First, it has 48 judges already serving, seven more are created in this bill, and that is a figure that approaches twice the number of total judges in the next largest circuit.

Second, the population of the territory within the Ninth Circuit is 56 million people, and that is roughly one-fifth of the Nation's population, and 25 million more than the population of the next largest circuit. The Ninth Circuit comprises nearly 40 percent of the geographic area of the United States. So that means, to come to get your appeal heard, one, in many instances, has to travel much farther, to San Francisco, than litigants in the other circuits to get to where those circuits sit.

The Ninth Circuit has the most number of appeals filed and the highest percentage increase in number of appeals filed, the most number of appeals still pending, and the longest median time until disposition.

Now, having said all of these statistics, why should we delay in dealing with the split of the Ninth Circuit? There are some who have proposed only

one additional circuit be created, whether it includes all the States outside of California, Hawaii, Guam, and the northern Mariana Islands or whether the circuit should be divided into three pieces.

I think that what the gentleman from Idaho has done in dividing the Ninth Circuit into three, a new Ninth Circuit, a new 12th Circuit and a new 13th Circuit will make for the most efficient administration of justice.

I grant the point that most of the appeals arise from California, and that is why the gentleman's amendment has all seven of the new judges, five permanent and two temporary, sit with the newly reconstituted Ninth Circuit in the State of California. This is an idea whose time has come. If we delay adopting this amendment, we are just going to have more administrative problems caused by higher caseloads, so we might as well do it now; and I would urge the committee to support the amendment.

Madam Speaker, I rise in opposition to the motion to recommit.

Madam Speaker, this is the wrong time, the wrong procedure, and the wrong amendment to deal with what is a very legitimate problem.

If the procedure that was outlined by the gentleman from California's motion to recommit were in place at the time Justice Scalia and Vice President Cheney went on their duck-hunting trip, the other eight Justices of the Supreme Court would decide whether or not Justice Scalia could vote on the case that Vice President Cheney was a named litigant in. This can be subject to extreme misuse as people could file complaints again Justices and ask for recusals to take them out and to take their votes out if they felt that the Justices would vote the wrong way.

And the same thing under the gentleman from California's motion to recommit would apply at the district court and the Court of Appeals level, and that is whether a judge's colleagues will determine whether or not a judge has a vote on a piece of litigation that is coming before the court.

Now, I concede the fact that there is a problem that the gentleman from California (Mr. Berman) has recognized; but his solution is the wrong solution.

The correct solution is to allow the commission that has been appointed by Chief Justice Rehnquist and which is headed by Justice Steven Bryer, looking into judicial misconduct statutes and how they should be changed to come up with a recommendation that can either be enacted into law by statute or adopted as a rule of civil or criminal procedure.

If legislation is necessary, we should go through the normal legislative process in looking at all of the angles of the proposed solution to make sure that what we are doing is right. I know there is a problem, but the gentleman from California (Mr. Berman) is not right. We should allow people to study this more dispassionately and thus vote down the motion to recommit.

I ask for a ``no'' vote.

Madam Speaker, I yield back the balance of my time

Mr. Chairman, I rise in partial support of the bill before the Committee of the Whole, S. 878, authorizing the addition of permanent judgeships in the District of Idaho and for other purposes. As introduced, the bill only authorized the President to appoint a new U.S. district judge for the District of Idaho. Substitutes adopted by the Senate Judiciary Committee (on May 20, 2003) and the full Senate (two days later) added another 15 district judgeships (permanent, temporary, or temporary converted to permanent), along with 29 permanent and seven converted (temporary-to-permanent) bankruptcy judgeships.

The rule reports out of the Committee on Rules, H. Res. 814, severely hindered the ability of Members to improve this legislation by ruling only two--Republican--amendemtns in order. The amendment offered by the Chairman of the Judiciary Committee that would stagger the implementation of this legislation to accommodate budgetary needs.

On the other hand, the amendment offered by the gentleman from Idaho threatens to

water down the 9th Circuit and effectively strip the existing courts of their ability to take up cases. This effect would be consistent with the line of court-stripping legislation that has passed in this House recently--the Pledge Protection Act; the Federal Marriage Amendment; the Marriage Protection Act.

The amendment that was offered by the Distinguished Ranking Member of the Judiciary Committee that would call for increases in the pay that federal circuit judges receive should have been ruled in order.

We must protect the power and discretion of the Courts and we must preserve the sanctity of the U.S. Constitution. The way that we legislate to change the makeup of the federal circuit courts will have a tremendous effect on the development of jurisprudence.

The Subcommittee on Courts, the Internet, and Intellectual Property conducted an oversight hearing regarding federal judgeship needs on June 24, 2003. The Subcommittee reviewed the original request for additional circuit and district judgeships developed by the U.S. Judicial Conference and the methodology adopted to justify the submission.

The Judicial Conference of the United States (Conference) reviews biannually the judgeship needs of all U.S. courts of appeal and U.S. district courts to determine if any of the courts require additional judges to administer civil and criminal justice in the federal court system. The Conference then submits its recommendations to the House and Senate Committees on the Judiciary. The Conference completed its last review in March, 2003, and submitted its recommendations to Congress.

The Conference set a benchmark caseload standard for considering judgeship requests at 430 weighted cases per judgeship for district courts and 500 adjusted case filings per panel for courts of appeal. The Conference process takes into account additional criteria that may influence the judgeship needs of each court, including senior judge and magistrate judge assistance, geographical factors, unusual caseload complexity, and temporary caseload increases or decreases.

Therefore, I support this legislation only insofar as it aids in the administration of justice; however, I reserve my opposition to the negative effects that I can have on the discretion that federal judges have.

Mr. Chairman, I thank the distinguished ranking member for yielding me this time, and I regretfully rise to vigorously oppose the distinguished gentleman from Idaho's amendment. I consider this similar to court stripping,

and that is the legislation that we have had over the past couple of weeks dealing with court stripping and taking away rights from the courts for reasons that are inexplicable.

Let me just cite for my colleagues a reason that has been argued by the proponent of this amendment, that the Ninth Circuit is too big, that there are too many delays. But let me just say that, in making that criticism, you might be interested in knowing that, last year, the average length of turnaround for cases before the Ninth Circuit was a month less than the average case lasted in 2002. Further, the Ninth Circuit's average turnaround time has improved 16 percent relative to the national average since 1997.

So the question would be, why would you, in complete rejection of the Governor of the State of California and the former Governor, try to restructure these courts? First of all, in a time when we are tightening our belts, when we would not even allow a simple amendment that would raise the salaries of the Federal judges to about $185,000, far less than a first associate in some of our major law firms, why would you not allow that amendment but you would in fact spend more dollars to redesign these courts?

The cost is going to be enormous. With an estimated start-up cost of about $131 million and an estimated annual recurring cost of about $22 million, this is a costly expenditure when we do not really have the dollars to do so. I would much rather spend dollars on making sure we have enough Federal judges, district judges, so that all of the petitioners and defendants can get a fair hearing in our courts.

The other thing is geography. The Ninth Circuit includes California. Although there are nine States in the Ninth Circuit, more than two- thirds of the workload of appeals is from California. There is no way to evenly divide the circuit into multiple circuits of roughly proportionate size without dividing California. The consistency of the decisions, the fairness of the decisions and the openness of the court gets undermined.

The other is, of course, history. Over the course of the extremely colorful history of the West, certain ties have developed that should be respected in circuit alignment in order to provide for continuity and stability. Arizona, for example, may at one time have seen itself as a Rocky Mountain State, but the truth today is that its economic and cultural ties are overwhelmingly closer to California. History plays a large part in it. Dividing the court simply takes away and makes the lives of judges more difficult. But the important point is that the circuits have reflected the balance of America, the fairness of America.

I live in the 5th and 11th Circuits, and I might say, I vigorously disagree with them on their civil rights decisions. They make the absolute wrong decisions, but they are the circuit courts. Even if you disagree with the Ninth Circuit, you cannot come here and cut them up and tear them up because you disagree with their philosophy, their legal decisions, the rendering of justice. We have to be better than that in America, and I would rise to oppose this amendment.

Today I rise in strong opposition to the amendment being offered by Representative Simpson which would divide the current Ninth Circuit to create three new Circuits.

I believe it is important at the outset that we understand at least three important points:

The first goes to cost. It is important to remember that we are not just talking about splitting up the judges of the existing Court of Appeals into separate courts of appeals. We are actually talking about dividing the entire and well integrated administrative structure of the Ninth Circuit to create three separate and largely duplicative administrative structures. With an estimated start-up cost of about $131 million, and an estimated annual recurring cost of about $22 million, this is both costly and wasteful. This is especially true when we face a budget crisis requiring us to lay off employees performing critical functions such as the supervision of probationers and preparation of sentencing reports.

The second point goes to geography. The Ninth Circuit includes California. Although there are nine states in the Ninth Circuit, more than two-thirds of the workload of the court of appeals is from California. There is no way to divide the circuit into multiple circuits of roughly proportionate size without dividing California. While I can understand why some might want to have a federal circuit court of appeal that was dominated by individuals from their State, today we are being asked to play politics with judicial geography and this is absolutely unacceptable in our democratic society.

Some of the proponents of this bill have argued that smaller, rural States are disadvantaged by being lumped into a circuit that contains a State the size of California with a substantial urban population base. But surely, they would not argue that Vermont and New Hampshire should be granted their emancipation from the larger, more urban States in the Second and First Circuits. Our federal bench should not be manipulated simply to make each circuit homogeneous.

The third point goes to history. Over the course of the extremely colorful history of the west, certain ties have developed that should be respected in circuit alignment in order to provide for continuity and stability. Arizona, for example, may at one time have seen itself as a rocky mountain state, but the truth today is that its economic and cultural ties are overwhelmingly closer to California than to Colorado or Wyoming. Another example is California and Nevada. Their bond is so great that they have joined ion a compact to protect Lake Tahoe. Moreover, Idaho and eastern Washington have essentially treated their district judges as interchangeable for years. The division proposed in this amendment to S. 878 would server all these ties by dividing Arizona from California, California from Nevada and Idaho from Washington.

Proponents of this split have long criticized the Ninth Circuit for its size and caseload. They might be interested to note that last year the average length of turnaround for cases before the Ninth Circuit was a month less than the average case lasted in 2002. Further, the Ninth Circuit's average turnaround time has improved 16 percent relative to the national average since 1997.

Dividing a Circuit should not take place simply to make the lives of judges or lawyers easier or cozier to reduce travel burdens. It should only take place when there is demonstrated proof that a circuit is not operating effectively and there is a consensus among the bench, the bar, and the public that they serve, that division is the appropriate remedy. Moreover, I do not see any persuasive evidence that would suggest that the Ninth Circuit is not operating effectively.

What I do not understand is why these repeated efforts to split the Ninth Circuit are pursued despite bi-partisan opposition ranging from Gov. Arnold Schwarzenegger (R-CA) to the overwhelming majority of Ninth Circuit judges, including the current Chief Judge, and Senior Judge Clifford Wallace, a former Chief Judge who was nominated by a Republican President. This irresponsible amendment would effectively take an otherwise non-controversial bill and turn it into a controversy. Whatever happened to that old adage, ``if it ain't broke, don't fix it?''

I urge my colleagues to vote ``no'' on the Simpson amendment to S. 878.

Mr. Chairman, I thank the gentleman for yielding me time.

I rise with the same conditional support of S. 878 as my colleague from California (Mr. Berman). The base bill responds to a crisis of judicial vacancies in our country by authorizing a number of much- needed judgeships.

Since arriving at Congress, I have been very surprised by the poor state of relations between our branches and the absence of comity that has existed between the Congress and the courts. The Federal caseload continues to increase at a record pace, reaching record levels. Courthouse funding is woefully inadequate, failing to meet the needs of Federal courts in order to carry out their critical mission and to make necessary improvements in priority areas such as courthouse security.

Judicial confirmations continue to be mired in political brinksmanship and judicial compensation has not kept pace with inflation. What is more, the Congress has now resorted to a more proactive attack on the judicial branch which we have seen on the floor of this body most recently in the form of court-stripping proposals.

Today's action on this legislation, barring the Simpson amendment, is a welcome and long overdue step in recognizing our responsibility in Congress to support the judiciary. But I am gravely concerned about the potential of the Simpson amendment. It seems to fly directly in the face of the White Commission's report analyzing when circuits should be split and when they should not. The White Commission reported in 1998: ``There is one principle that we regard as undebatable. It is wrong to realign circuits or not to realign them and to restructure courts or to leave them alone because of particular judicial decisions or particular judges. This rule must be faithfully honored for the independence of the judiciary is of constitutional dimension and requires no less.''

The Judicial Conference of the United States periodically completes a review of judgeship needs. As a result of rapid increase in the caseloads of our courts, the conference recommended that Congress establish 11 new judgeships and four courts of appeals and 46 new judgeships and 26 district courts. It also recommended five temporary judgeships become permanent.

The base bill is an important step in fulfilling that goal, and the House bill authorizes more than 50 new judgeships across the United States. However, if this bill becomes bogged down in an amendment which would only continue the assault on the judiciary, contravene the will of the judges of the circuit itself, it will be a step in the wrong direction. Circuit division would eliminate a number of important advantages that come from a large circuit. It would eliminate the ability to transfer judges from one district to another within the same circuit to deal with fluctuating caseloads. It would reduce the number of circuit judges available to decide the cases from the growing border of districts from Arizona and southern California.

For these reasons, division of the circuit is strongly opposed by a bipartisan coalition of judges and officials. The judges of the Ninth Circuit have voted overwhelmingly 30 to 9 against division. In addition, California Governor Arnold Schwarzenegger strongly opposes any effort to break up the circuit.

What is more, as the White Commission wrote, ``there is no persuasive evidence that the Ninth Circuit or any other circuit for that matter is not working effectively or that creating new circuits will improve the administration of justice in any circuit or overall. Furthermore, splitting the circuit would impose substantial costs of administrative disruption, not to mention the monetary costs of creating a new circuit. Accordingly, we do not recommend to Congress and the President that they consider legislation to split the circuit.''

Are we going to take a bill that was one of the few positive lights in the relationship between the Congress and the courts and turn it into yet another assault on the wishes and the needs of the judiciary?

To quote the White Report again, ``Maintaining the Court of Appeals for the Ninth Circuit as currently aligned respects the character of the west as a distinct region.''

Mr. Chairman, I urge support for the base bill and rejection of the Simpson amendment.

Mr. Chairman, first, there were the court-stripping amendments, now there are the court-splitting amendments. What will come next, the court-flogging amendments?

Why is this being sought? Well, it is argued that the amendment to split the courts, to split the circuit, is an amendment out of the necessity of improving the timeliness of the actions within the Ninth Circuit. Critics have purportedly claimed the Ninth Circuit is too big and prevents litigants from receiving timely legal redress.

In the period since 1984, when the court was last authorized new judgeships, there has been significant growth of the court's caseload. It has more than doubled. But interestingly enough, both the Fifth and the 11th Circuits have experienced similar increases in caseload growth; however, no divisions of those circuits have been contemplate or proposed.

So why is it only the Ninth Circuit? In fact, the Ninth Circuit terminated more than 10,000 cases in calendar year 2002, and has increased its efficiency year after year due to the continuing examination of case processing procedures and constant innovation. This has been accomplished despite unfilled vacancies. If the Congress and those that offer this amendment were truly concerned with timeliness, we would have filled those vacancies a long time ago.

So then what is the basis of this court-splitting, circuit-splitting amendment? Perhaps this is being sought because of an outcry of the judges within the Ninth Circuit and the members of the bench within the Ninth Circuit that they feel this has to be done, that it would improve the efficiency of the courts. But that cannot be it either, because the overwhelming opinion of the judges and the attorneys in the Ninth Circuit, as well as the statements of others concerned with this issue, having submitted written statements or given oral testimony before the commission, cut the other way.

Among those opposing the division of the Ninth Circuit were 20 out of 25 persons testifying at the Seattle hearing of the commission opposed to the split, 37 out of 38 persons testifying at the San Francisco hearing opposed to the split, and the governors of California, Washington, Oregon, and Nevada, the American Bar Association, and the Federal Bar Association all opposed the split. Plainly, this is not on outcry from those most immediately affected.

Well, it is argued that the need for consistency requires the split. But, again, the White Commission concluded, neither do we see a need to split the Ninth Circuit in order to solve problems having to do with consistency, predictability, and coherence of circuit law; there is no recognizable evidence of such a conflict. Indeed, the Circuit's use of its en bloc review process is designed to resolve and has effectively resolved precisely such conflicts.

In sum, Mr. Chairman, when they say it is about efficiency, when they say it is about consistency, and when they say it is about timeliness, it is about ideology. And as the White Commission stated, there is unanimous agreement that ideology should never be the ideology to split a circuit.

I thank the gentleman for yielding me this time.

Mr. Chairman, I just wanted to compliment my colleague on the other side for his comments about the Ninth Circuit judges being overworked and being overstretched. It is really gratifying to hear all the concern for the workload of the judges in the Ninth Circuit. That concern, I think, would carry more weight with the opposition to this bill if it were reflected historically in a desire to fill the vacancies for those overworked and overstretched judges. If there had been, I think, a stronger pattern of support for that, for dealing with the burden on the caseload in the Ninth Circuit, then there would be less inclination to think this is all about ideology. But when the gentleman goes on to say that part of this is also due to his dislike of the outcome of cases determined by the composition of these three- judge panels rather than law precedent, we get, once again, back to ideology rather than a concern over caseload or workload.

Again, for those reasons, the White Commission and the courts have historically and unanimously opposed circuit splitting over matters of ideology.