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Creating Additional Federal Court Judgeships

Location: Washington, DC

CREATING ADDITIONAL FEDERAL COURT JUDGESHIPS -- (House of Representatives - October 05, 2004)


Mr. SCHIFF. 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. SCHIFF. 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.


Mr. SCHIFF. 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.

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