September 20, 2006

Statement of Senator Patrick Leahy

Ranking Member, Judiciary Committee

Hearing on "Revisiting Proposals to Split the Ninth Circuit"

September 20, 2006

There are currently three proposals before the Senate to split the Ninth Circuit, one of which goes so far as to divide the circuit into three. We reviewed similar legislation last Congress and I continue to view attempts to alter the structure of our federal judiciary with skepticism.

The Bush Administration is now firmly behind splitting the Ninth Circuit, purportedly because of its large caseload. However, none of the proposals before us will result in a fair distribution of workload among the newly-created circuits or among the existing judges. I remain very concerned that these proposals to split the Ninth Circuit are partisan attempts to gerrymander our federal courts by making geographical alterations to suit the political winds. Some may wonder why we are having this hearing in the penultimate week before the end of this congressional session. It is an election year, and unfortunately the Ninth Circuit has been a convenient scapegoat for partisan critics of the judiciary.

One significant issue that the Senior Senator from California has repeatedly raised is the substantial costs the judiciary would incur should the circuit be split. The Administrative Office of the United States Courts sent a cost estimate for implementing S. 1845 and H.R. 4093, two proposals that split the Ninth Circuit into two separate circuits. Their estimate concluded that start-up expenses alone could cost as much as $95,855,172, with recurring costs ranging from $13,140,049 to $15,914,180. In a similar estimate in May 2004, the Administrative Office determined that the judiciary could not sustain these crippling costs without receiving significant additional funding. At a time when the third branch is undergoing major budget cuts and the nation is coping with the enormous costs of war, rebuilding regions of our nation devastated by natural disasters and a growing deficit, I find the substantial costs of this legislation problematic.

Additionally, unlike the 1980 division of the Fifth Circuit, this proposed division has very little support from the judges of the Ninth Circuit. In a letter to this Committee a few months ago, 373 judges opposed the split that is being considered here today. Almost all of the circuit court judges oppose the split and only 3 of the 24 active judges favor a split. If these proposals to split the circuit were truly about the weight of the circuit's caseload, I would expect at least a majority of the judges affected would endorse one of these legislative proposals. The judges' overwhelming opposition should be taken seriously as we consider this legislation.

I thank all our witnesses for traveling so far to be with us and look forward to receiving their testimony.