Equal Justice Under the Law
Floor Speech
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Mr. SULLIVAN. Mr. President, I rise today to speak about a very important issue for our Nation's judicial system and two bills that I and my colleague from Montana have introduced. The bills' primary focus is what all of us in the Senate want, and that is equal justice under the law.
One of the bills would split the dysfunctional and unwieldy U.S. Court of Appeals for the Ninth Circuit. The other bill would form a commission to evaluate the court and make recommendations based on its findings.
Like a lot of us here, when I am in Washington I like to get out and try to get a run in in the morning and look at the beautiful monuments, memorials. Oftentimes I run past the U.S. Supreme Court, and I often look at the inscription etched on the beautiful Court there that says simply ``Equal justice under law.'' I think of Supreme Court Justice Lewis Powell's famous quote restated:
Equal justice under the law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. . . .
I also think of the thousands of lawyers and judges and clerks, past and present, who have lived their lives attempting to fulfill its important ideal and how our democratic system of government is dependent on striving for this ideal.
We should do everything in this body to make sure that simple concept--equal justice under the law--is a reality for all Americans. All Americans should feel assured that when we seek justice, the burdens we encounter, the time we encounter to achieve justice won't be smaller or greater depending on the part of the country in which we live.
Unfortunately, that is not the case. Unfortunately, if you are a citizen of the United States and you live in one of the States over which the U.S. Court of Appeals for the Ninth Circuit has jurisdiction over your legal issues in the administration of justice, one in five Americans do not get equal justice under the law. What our bills are focused on doing is righting that wrong because the U.S. Court of Appeals for the Ninth Circuit is simply too large, its scope is too wide, and it has long passed its ability to provide equal justice and to contribute as a functional court system in the U.S. court of appeals Federal court system in our country.
This is no surprise. We have known this for decades. Dividing the Ninth Circuit is not a new idea. In fact, not doing it is radical. If you look at the history of the United States, when Federal courts of appeals have grown in terms of population, what has happened every time for decades, for well over 100 years, is that when the court grows too big and the administration of justice grinds to a halt, the court is split so that you have that justice. That is the usual course of American history. What is not usual is the refusal to do this.
To give a few examples, in 1973 a congressionally chartered Commission recommended to this body that for the administration of justice for American citizens, the Ninth Circuit should be split. It actually recommended that the Fifth and Ninth Circuit should be split. The Fifth Circuit was eventually split, but according to the Commission, the Ninth Circuit, which it said had serious difficulties with backlog, delay, and justice for Americans, was not split, and it has only gotten worse.
To give a few facts, there are 65 million people living within the boundaries of the Ninth Circuit. That represents 20 percent of the total population of the United States--one in five Americans. That is almost two times as many people as there are in the next biggest circuit in the U.S. court of appeals system, and it is almost three times the average population of all the other circuits combined. It is not only just the size of the court.
The caseload is what is inhibiting justice for Americans in the Ninth Circuit. At the end of a 12-month period last year, the Ninth Circuit Court of Appeals had almost 14,000 pending appeals; the next largest court of appeals had about 4,700. Justice delayed is justice denied.
In previous hearings in the Senate, we found that it takes, on average, for the Ninth Circuit, almost 40 percent longer to dispose of an appeal than in any other circuit in the country. This is simply a function of a court that is too big and too unwieldy. Because of the size and inefficiency of the court, the court has started to come up with creative shortcuts--questionable procedural shortcuts which I believe are shortchanging justice for tens of thousands of Americans every year in this court of appeals.
Let me give you a few examples. Every court in the U.S. Federal system, in order to have uniformity of law, when they have difficult issues, they meet as a court in what they call an en banc meeting. This provides uniformity in all the courts. There is only one court that doesn't do that. Because it has 29 judges--much more than any other court--the Ninth Circuit does not meet as a whole court; therefore, limiting its ability to address intracircuit conflicts, with no uniformity in the law in the Ninth Circuit, and it is seen again and again and again. Further, and perhaps most alarming--again because of its size--the Ninth Circuit is the only court of Federal appeals where a nonelected, nonappointed, nonarticle II judge called an appellate commissioner rules on matters by the thousands that should be handled by article III life-tenured judges--not an appellate commissioner who is none of those things.
In a 2005 congressional hearing, one of the Ninth Circuit judges testified ``that the appellate commissioner resolved 4,600 motions that would otherwise have been heard by judges.'' This is fast-food justice for one in five Americans who are part of the Ninth Circuit.
This Senator plans to come down to the floor over the next several weeks and speak to my experience on the Ninth Circuit Court of Appeals. I had the opportunity--the honor--to be a judicial law clerk for one of the most esteemed judges, Judge Kleinfeld of Fairbanks, AK, many years ago, but I did see firsthand how the unwieldy size of this court of appeals limits justice, not just for Alaskans but for any citizen who is under the jurisdiction of this court.
Chief Justice Warren Burger warned in 1970 that ``a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people.'' He cautioned that inefficiency and delay in our courts of appeals could destroy that confidence. Unfortunately, as it is currently constituted, the Ninth Circuit is inefficient, it delays, and therefore denies justice for millions of Americans, and we cannot allow the confidence in our system of justice to be undermined by continuing a court of appeals that is so large and so unwieldy. That is why the Senator from Montana and I intend with our bills to bring equal justice for all Americans.
I turn to my colleague from Montana for his views on this very important issue.
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Mr. SULLIVAN. I thank my colleague from Montana and for his point in particular. The charts make a very compelling case, but I think his point in particular about constraints--when things get too large, they become an organization that cannot function.
I think when you look at the debate that has occurred previously about the Ninth Circuit, somehow we have gotten to the point where it is some kind of radical idea to split the Ninth Circuit. But if you look at the history of our country, the radical idea is actually not splitting the Ninth Circuit. The outlier position is not to take a court either that has this many cases pending or that controls this much of the population and not do something about it.
The history of this body, starting with the Judiciary Act of 1789 that created three circuit courts: Eastern, Middle, and Southern--only a few years later, Congress acted again--in 1802, a mere 13 years later--and Congress doubled the number of circuit courts to six. What we have seen throughout our history is when this kind of situation exists where one court has an enormously oversized population, Congress--as my colleague from Montana mentioned--acts in a bipartisan manner, and they act for the sole reason to make sure all Americans are getting effective administration of justice.
When your citizens wait longer than any other Americans and have delays more than any other Americans and when your court that you are subject to the jurisdiction of starts to create procedural shortcuts, not a lot of which are known--and we are going to talk about some of those over the next several weeks--and no other court does that, you start to see that one in five Americans is burdened by this and burdened by the lack of what the Supreme Court says: ``Equal Justice Under Law.''
I again thank my colleague from Montana. I know he has some views on what would happen again if this doesn't happen in his State or in my State. But this isn't just about the West; this is about all Americans. We all deserve the same justice.
Just by looking at these two posters, cases pending, as I talked about earlier, and the time it takes to get appeals completed and the enormous population of just one circuit, what is clear to me is that the Congress needs to act.
I am honored to be working with my good friend from Montana where we are offering Congress a variety of different ways to approach this--a commission, a bill to split the circuit.
But I want to emphasize that this is not a radical idea; the radical idea that is out of step with American history is to not do something about this.
Every time in America's history since the Judiciary Act of 1789 when this type of situation has occurred, Congress has acted, and they acted because they knew equal justice under the law was at stake.
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Mr. SULLIVAN. I appreciate my colleague's efforts as well. We will continue to be focused on this.
I will end by mentioning--my colleague mentioned the Sesame Street adage ``One of these things is not like the other.'' But one other area where this is the case, as I mentioned before, is in the en banc procedures. That is when the courts of appeal--every one of them in the country with the exception of one--when they have difficult issues, they sit together. All the active judges sit together. This provides uniformity and predictability in these courts. But one of these courts is not like the others. The Ninth Circuit cannot do this. It is too big. So they have developed what is called a limited en banc review, which by definition is incorrect and an oxymoron because ``en banc'' means the whole court. So that is why you have so many opinions in this court that are not uniform, that are problematic, and that undermine the administration of justice for the one in five Americans who is subject to this court's jurisdiction.
I look forward to working on this with my good friend the Senator from Montana and Members on both sides of the aisle. This should be a bipartisan issue for every Member of this body who wants to make sure their citizens have equal justice under the law.
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