Lisa Murkowski

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. 628 which was introduced by Senator Stevens and is at the desk.

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the bill be read a third time and passed, the motion to reconsider be laid upon the table, and any statements relating to this matter be printed in the Record.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the Rules Committee be discharged from further consideration of House Concurrent Resolution 40 and that the Senate proceed to its immediate consideration.

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the concurrent resolution be agreed to, and the motion to reconsider be laid upon the table, without any intervening action or debate.

Mr. MURKOWSKI

Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 94, submitted earlier today by Senators Daschle and Frist.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that S. 596 be star printed with the changes that are at the desk.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, in executive session, I ask unanimous consent that the Rules Committee be discharged from further consideration of the following nominations: Michael Toner and Ellen Weintraub. I further ask consent that the Senate proceed to their consideration, the nominations be confirmed, the motions to reconsider be laid upon the table, the President be immediately notified of the Senate's action, and the Senate then resume legislative session.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Wednesday, March 19. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate resume consideration of S. Con. Res. 23, the concurrent budget resolution; provided further, that there be 30 hours remaining for debate on the resolution, with 15 hours remaining under the control of the chairman of the Budget Committee and 15 hours remaining under the control of the ranking member.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, for the information of all Senators, tomorrow the Senate will resume consideration of the Boxer amendment No. 272 relating to ANWR. Other amendments are anticipated during tomorrow's session. Therefore, rollcall votes will occur throughout tomorrow's session. The majority leader has stated the Senate will finish the budget resolution this week. Therefore, Members should expect late nights and rollcall votes throughout the week.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 93 submitted earlier today by Senators Daschle and Frist.

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the resolution and preamble be agreed to en bloc, the motion to reconsider be laid upon the table, and any statements relating thereto be printed in the Record, without intervening action or debate.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I rise today to speak of the contributions and service to the Nation, the U.S. Senate, to my family and myself made by Dr. Lloyd J. Ogilvie as Chaplain of the U.S. Senate, I joined the U.S. Senate just over three months ago and I am repeatedly impressed and reminded about the history and tradition of this body. The Office of the Chaplain has served the Senate each day with prayer strongly reaffirming this institution's commitment to faith in God and our recognition of God being the ultimate sovereign over this Nation. The daily guidance and reminder of our Maker helps us all keep perspective on our duties and activities as we debate and make decisions of weighty issues confronting our country. The Chaplain of the Senate has been an integral part of the U.S. Senate since 1789 when the first Senate elected the first Chaplain. The daily prayers of the Chaplains have been published over the years. In times of great turmoil and in times of the mundane the Chaplain reminds us of our obligation to keep the moral compass pointed in the right direction. This body has been brought together in times of conflict with the help of the Chaplain. Dr. Ogilvie has served us well as the sixty-first Chaplain since 1995. Just last week the U.S. Senate passed a resolution reaffirming that the term ``under God'' was an essential part of the pledge of allegiance. I am confident that Dr. Ogilvie could have contributed to our insight and debate. but there is no dispute that this body and this Nation remain under the graceful guidance of God. We have been helped to understand this grace by the spiritual guidance of Dr. Ogilvie. I have known of the Chaplain Ogilvie for longer than my service in the U.S. Senate. My parents, Senator Frank Murkowski and Nancy Murkowski, share a warm and special relationship with Dr. Ogilvie and his wife Mary. Through them I learned about Dr. Ogilvie and his compassion and commitment to his faith. They join me in sending their prayers, best wishes and expressions of warmth to him upon his retirement. Dr. Ogilvie will be missed by all his flock and all who know him in his role as Chaplain in the U.S. Senate. He has served this institution in the tradition of this body with honor and excellence.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, earlier this week, the Senate, in a 94- 0 vote, went on record expressing its unanimous opposition to last week's decision by the Ninth Circuit Court of Appeals refusing to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance. The Pledge decision rendered by the court is not an aberration. It is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. Unfortunately, citizens in the states that are within the Ninth Circuit's jurisdiction have had to contend with the court's idiosyncratic jurisprudence for decades. One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the court suggests a judicial activism that is close to the fringe of legal reasoning. And it is for that reason that the Ninth Circuit has, by far, the highest reversal rate in the country. During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed. In 1997, a startling 27 of the 28 cases brought before the Supreme Court were reversed--two-thirds by a unanimous vote. Over the last three years, one-third of all cases reversed by the Supreme Court came from the 9th Circuit. That's three times the number of reversals for the next nearest circuit. And 33 times higher than the reversal rate for the 10th Circuit Last November, on a single day, the Supreme Court summarily and unanimously reversed three Ninth Circuit decisions. In one of those three cases, the Supreme Court ruled that the circuit had overreached its authority and stated that the Court ``exceed[ed] the limits imposed on federal habeas review substitut[ing] its own judgment for that of the state court.'' One of the reasons the Ninth Circuit is reversed so often is because the circuit has become too large and unwieldy. The Circuit serves a population of more than 54 million people, almost 60 percent more than are served by the next largest circuit. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million. According to the Administrative Office of the U.S. Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. And with its huge caseload, the judges on the Court just do not have the opportunity to keep up with decisions within the circuit, let alone decisions from other circuits Another problem unique to the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full- court, en banc, cases. The Ninth Circuit sits in panels of 11. Clearly, such a procedure injects unnecessary randomness into decisions. If an en banc case is decided 6 to 5, there is no reason to think it represents the views of the majority of the court's 24 active members. In fact, some commentators believe a majority of the 24 members of the court may have disagreed with the Pledge decision, but were concerned that a random pick of 11 members of the Court to hear the case, en banc, might have resulted in the decision being affirmed. It is inconceivable to me that a circuit court could render a decision based on its concern about the potential makeup of an en banc panel. What kind of jurisprudence is that? Citizens in no other circuit face that type of coin-flip justice. That is fundamentally unfair to every single one of the 54 million people who live within the jurisdiction of the Ninth Circuit and is reason alone to restructure the circuit. It is time that Congress finally faces the fact that the Ninth Circuit is no longer a viable and functioning circuit. It is for that reason that I am today introducing the Ninth Circuit Court of Appeals Reorganization Act of 2003. I am pleased to be joined in this effort by Senators, Stevens, Burns, Craig, Crapo, Inhofe, and Smith. The bill we are introducing today would divide the Ninth Circuit into two independent circuits. The restructured Ninth Circuit would contain California, and Nevada. A new Twelfth Circuit would be composed of Alaska, Hawaii, Arizona, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands. Earlier I indicated a number of reasons why I believe the Circuit needs to be reorganized. Let us not forget the scope of this circuit and the 54 million people who live within it. The Ninth Circuit extends from the Arctic Circle to the Mexican border, spans the tropics of Hawaii and across the International Dateline to Guam and the Mariana Islands. Encompassing some 14 million square miles, the Ninth Circuit, by any means of measure, is the largest of all U.S. Circuit Courts of Appeal. It is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined! Moreover, because of the sheer magnitude of cases brought before the Court, citizens within the court's jurisdiction face unprecedented delays in getting their cases heard. Whereas the national average time to get a final disposition of an appellate case is nearly 11 months, an appeal in the Ninth Circuit takes nearly 50 percent longer--almost one year and four months. This is not the first time that Congress has recognized that the Ninth Circuit needs restructuring. Numerous proposals to divide the Ninth Circuit were debated in Congress even before World War II. In 1973, the Congressional Commission on the Revision of the Federal Court of Appellate System Commission, commonly known as the Hruska Commission, recommended that the Ninth Circuit be divided. Also that year, the American Bar Association adopted a resolution in support of dividing the Ninth Circuit. In 1995, a bill was reported from the Senate Judiciary Committee in which Chairman Orrin Hatch of Utah declared in his Committee's report that the time for a split had arrived: ``The legislative history, in conjunction with available statistics and research concerning the Ninth Circuit, provides an ample record for an informed decision at this point as to whether to divide the Ninth Circuit . . . Upon careful consideration the time has indeed come.'' In 1997, Congress commissioned a report on structural alternatives for the Federal courts of appeals. The Commission, chaired by former Supreme Court Justice Byron R. White, found numerous faults within the Ninth Circuit and recommended major reforms and a fundamental reorganization of the Circuit. On the day my legislation is enacted into law, the concerns of the White Commission will be addressed. A more cohesive, efficient, and predictable judiciary will emerge. Many who oppose legislation to reorganize the Ninth Circuit, contend that all the Circuit needs is the appropriation of more Federal dollars for more Federal judges. However, I do not believe more money will solve the inherent problems that exist in a circuit of such magnitude. As former Senator and Alabama Supreme Court Chief Justice, Howell Heflin, a Democrat from Alabama, remarked after Congress divided the former Fifth Circuit: ``congress recognized that a point is reached where the addition of judges decreases the effectiveness of the court, complicates the administration of uniform law, and potentially diminishes the quality of justice within a Circuit.'' in the case of the Ninth Circuit, there can be little doubt that we are at that point in time that former Senator Heflin cited. Former Oregon Senator Bob Packwood believed that a Ninth Circuit split would enable judges to achieve a greater mastery of applicable, but unique, State law and State issues. He believed such mastery was necessary because ``burgeoning conflicts in the area of natural resources and the continuing expansion of international trade efforts will all expand the demand for judicial excellence . . . By reforming our courts now, they will be better able to dispense justice in a fair and expeditious manner.'' I agree with the former Senator. The uniqueness of the Northwest, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of State law and State issues relative to the geographic land mass, population and native cultures that are unique to the relevant region. Presently, California is responsible for almost 50 percent of the appellate court's filings, which means that California judges and California judicial philosophy dominate judicial decisions on issues that are fundamentally unique to the Pacific Northwest. This need for greater regional representation is demonstrated by the fact that the East Coast is comprised of five Federal circuits. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law. Further, a division of the Ninth Circuit would honor Congress' original intent in establishing appellate court boundaries that respect and reflect a regional identity. In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the original purpose of its creation: the uniform, coherent and efficient development and application of Federal law in the region. Establishing a circuit comprised solely of States in the Northwest region would adhere to Congressional intent. And the State of Hawaii should rightfully be included in this circuit, for like Alaska, there are unique issues that are faced by the two States that are not part of the contiguous lower 48. A new Twelfth Circuit, comprised of states of the Pacific Northwest, would respect the economic, historical, cultural and legal ties which philosophically unite this region. No single Court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of equal justice for all. It is my hope that this Congress will finally approve this necessary reorganization. It is long overdue. I ask unanimous consent that the text of my bill be printed in the Record.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, earlier this week, the Senate, in a 94- 0 vote, went on record expressing its unanimous opposition to last week's decision by the Ninth Circuit Court of Appeals refusing to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance. The Pledge decision rendered by the court is not an aberration. It is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. Unfortunately, citizens in the states that are within the Ninth Circuit's jurisdiction have had to contend with the court's idiosyncratic jurisprudence for decades. One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the court suggests a judicial activism that is close to the fringe of legal reasoning. And it is for that reason that the Ninth Circuit has, by far, the highest reversal rate in the country. During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed. In 1997, a startling 27 of the 28 cases brought before the Supreme Court were reversed--two-thirds by a unanimous vote. Over the last three years, one-third of all cases reversed by the Supreme Court came from the 9th Circuit. That's three times the number of reversals for the next nearest circuit. And 33 times higher than the reversal rate for the 10th Circuit Last November, on a single day, the Supreme Court summarily and unanimously reversed three Ninth Circuit decisions. In one of those three cases, the Supreme Court ruled that the circuit had overreached its authority and stated that the Court ``exceed[ed] the limits imposed on federal habeas review substitut[ing] its own judgment for that of the state court.'' One of the reasons the Ninth Circuit is reversed so often is because the circuit has become too large and unwieldy. The Circuit serves a population of more than 54 million people, almost 60 percent more than are served by the next largest circuit. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million. According to the Administrative Office of the U.S. Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. And with its huge caseload, the judges on the Court just do not have the opportunity to keep up with decisions within the circuit, let alone decisions from other circuits Another problem unique to the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full- court, en banc, cases. The Ninth Circuit sits in panels of 11. Clearly, such a procedure injects unnecessary randomness into decisions. If an en banc case is decided 6 to 5, there is no reason to think it represents the views of the majority of the court's 24 active members. In fact, some commentators believe a majority of the 24 members of the court may have disagreed with the Pledge decision, but were concerned that a random pick of 11 members of the Court to hear the case, en banc, might have resulted in the decision being affirmed. It is inconceivable to me that a circuit court could render a decision based on its concern about the potential makeup of an en banc panel. What kind of jurisprudence is that? Citizens in no other circuit face that type of coin-flip justice. That is fundamentally unfair to every single one of the 54 million people who live within the jurisdiction of the Ninth Circuit and is reason alone to restructure the circuit. It is time that Congress finally faces the fact that the Ninth Circuit is no longer a viable and functioning circuit. It is for that reason that I am today introducing the Ninth Circuit Court of Appeals Reorganization Act of 2003. I am pleased to be joined in this effort by Senators, Stevens, Burns, Craig, Crapo, Inhofe, and Smith. The bill we are introducing today would divide the Ninth Circuit into two independent circuits. The restructured Ninth Circuit would contain California, and Nevada. A new Twelfth Circuit would be composed of Alaska, Hawaii, Arizona, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands. Earlier I indicated a number of reasons why I believe the Circuit needs to be reorganized. Let us not forget the scope of this circuit and the 54 million people who live within it. The Ninth Circuit extends from the Arctic Circle to the Mexican border, spans the tropics of Hawaii and across the International Dateline to Guam and the Mariana Islands. Encompassing some 14 million square miles, the Ninth Circuit, by any means of measure, is the largest of all U.S. Circuit Courts of Appeal. It is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined! Moreover, because of the sheer magnitude of cases brought before the Court, citizens within the court's jurisdiction face unprecedented delays in getting their cases heard. Whereas the national average time to get a final disposition of an appellate case is nearly 11 months, an appeal in the Ninth Circuit takes nearly 50 percent longer--almost one year and four months. This is not the first time that Congress has recognized that the Ninth Circuit needs restructuring. Numerous proposals to divide the Ninth Circuit were debated in Congress even before World War II. In 1973, the Congressional Commission on the Revision of the Federal Court of Appellate System Commission, commonly known as the Hruska Commission, recommended that the Ninth Circuit be divided. Also that year, the American Bar Association adopted a resolution in support of dividing the Ninth Circuit. In 1995, a bill was reported from the Senate Judiciary Committee in which Chairman Orrin Hatch of Utah declared in his Committee's report that the time for a split had arrived: ``The legislative history, in conjunction with available statistics and research concerning the Ninth Circuit, provides an ample record for an informed decision at this point as to whether to divide the Ninth Circuit . . . Upon careful consideration the time has indeed come.'' In 1997, Congress commissioned a report on structural alternatives for the Federal courts of appeals. The Commission, chaired by former Supreme Court Justice Byron R. White, found numerous faults within the Ninth Circuit and recommended major reforms and a fundamental reorganization of the Circuit. On the day my legislation is enacted into law, the concerns of the White Commission will be addressed. A more cohesive, efficient, and predictable judiciary will emerge. Many who oppose legislation to reorganize the Ninth Circuit, contend that all the Circuit needs is the appropriation of more Federal dollars for more Federal judges. However, I do not believe more money will solve the inherent problems that exist in a circuit of such magnitude. As former Senator and Alabama Supreme Court Chief Justice, Howell Heflin, a Democrat from Alabama, remarked after Congress divided the former Fifth Circuit: ``congress recognized that a point is reached where the addition of judges decreases the effectiveness of the court, complicates the administration of uniform law, and potentially diminishes the quality of justice within a Circuit.'' in the case of the Ninth Circuit, there can be little doubt that we are at that point in time that former Senator Heflin cited. Former Oregon Senator Bob Packwood believed that a Ninth Circuit split would enable judges to achieve a greater mastery of applicable, but unique, State law and State issues. He believed such mastery was necessary because ``burgeoning conflicts in the area of natural resources and the continuing expansion of international trade efforts will all expand the demand for judicial excellence . . . By reforming our courts now, they will be better able to dispense justice in a fair and expeditious manner.'' I agree with the former Senator. The uniqueness of the Northwest, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of State law and State issues relative to the geographic land mass, population and native cultures that are unique to the relevant region. Presently, California is responsible for almost 50 percent of the appellate court's filings, which means that California judges and California judicial philosophy dominate judicial decisions on issues that are fundamentally unique to the Pacific Northwest. This need for greater regional representation is demonstrated by the fact that the East Coast is comprised of five Federal circuits. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law. Further, a division of the Ninth Circuit would honor Congress' original intent in establishing appellate court boundaries that respect and reflect a regional identity. In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the original purpose of its creation: the uniform, coherent and efficient development and application of Federal law in the region. Establishing a circuit comprised solely of States in the Northwest region would adhere to Congressional intent. And the State of Hawaii should rightfully be included in this circuit, for like Alaska, there are unique issues that are faced by the two States that are not part of the contiguous lower 48. A new Twelfth Circuit, comprised of states of the Pacific Northwest, would respect the economic, historical, cultural and legal ties which philosophically unite this region. No single Court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of equal justice for all. It is my hope that this Congress will finally approve this necessary reorganization. It is long overdue. I ask unanimous consent that the text of my bill be printed in the Record.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I would like to announce for the information of the Senate and the public that a hearing has been scheduled before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources. The hearing will be held on Thursday, March 6, 2:30 p.m. in Room SD- 366 of the Dirksen Senate Office Building. The purpose of the hearing is to receive testimony on S. 212, a bill authorizing the Secretary of the Interior to cooperate with the High Plains States in conducting a hydrogeologic characterization, mapping, modeling and monitoring program for the High Plains Aquifer and for other purposes; and S. 220 and H.R. 397, bills to reinstate and extend the deadline for commencement of construction of a hydroelectric project in the State of Illinois. (Contact: Shelly Randel regarding S. 212 at 202-224-7933, Kellie Donnelly regarding S. 220 and H.R. 397 at 202-224-49360 or Jared Stubbs at 202-224-7556). Because of the limited time available for the hearings, witnesses may testify by invitation only. However, those wishing to submit written for the hearing record should send two copies of their testimony to the Subcommittee on Water and Power, Committee on Energy and Natural Resources, United States Senate, Washington, D.C. 20510-6150.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the list of 43 cosponsors be added to my resolution.

Ms. MURKOWSKI. Mr. President, I think all of us can agree that last week's decision by the full Ninth Circuit refusing to review an earlier decision that bars children in public schools from voluntarily reciting the Pledge of Allegiance was fundamentally wrong. Unfortunately, citizens in the States who are within the Ninth Circuit's jurisdiction have had to contend for decades with the court's dysfunctional jurisprudence. The pledge decision highlights how out of touch this court is from common sense and constitutional values. We who live within the court's jurisdiction know that the judges on this court too often ignore the law and the Constitution and, instead, seek to substitute their values for constitutional values. I think Judge O'Scannlain, writing for six judges in dissent, said it best. He called the panel decision: wrong, very wrong--wrong because reciting the Pledge of Allegiance is simply not a ``religious act'' as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense. The judge went on to say: ``If reciting the pledge is truly `a religious act' in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto or the singing of the National Anthem,'' a verse of which says: ``And this our motto: In God is our trust.'' I have no doubt that the Supreme Court will hear the appeal of this case. And if one considers that the Ninth Circuit is the court with the highest reversal rate in the country, I expect the Court will summarily overturn this ill-conceived decision. I urge all of my colleagues to support the resolution. I ask for the yeas and nays.

Ms. MURKOWSKI. Mr. President, I yield the floor.

Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the amendment be agreed to, and the motion to reconsider be laid upon the table.

Ms. MURKOWSKI. Mr. President, I have a technical amendment at the desk to S. Res. 71. I ask unanimous consent that it be in order at this time, and I send it to the desk.

Ms. MURKOWSKI

Ms. MURKOWSKI. I thank the Chair. Mr. President, I am pleased to be joined by the Republican whip, Senator McConnell, in introducing a resolution disapproving last week's Pledge of Allegiance ruling by the full Ninth Circuit Court of Appeals. The full court refused to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance. Last week's decision is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. The full Ninth Circuit decision on the pledge represents a type of extremism carried out by individuals who want to substitute their values in place of constitutional values. What they want to do is simply eradicate any reference to religion in public life. That is not what the First Amendment mandates. In his dissent from the court's decision, Judge O'Scannlain, writing for six judges, called the panel decision ``wrong, very wrong--wrong because reciting the Pledge of Allegiance is simply not a `religious act' as the two-judge majority asserts, wrong as a matter of Supreme Court precedent properly understood, wrong because it set up a direct conflict with the law of another circuit, and wrong as a matter of common sense.'' He went on to say: ``If reciting the pledge is truly `a religious act' in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto or the singing of the national anthem,'' verse of which says, `And this is our motto: In God is our trust.'' I believe the reasoning of Judge O'Scannlain is absolutely correct. One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the Ninth Circuit suggests a judicial activism that is close to the fringe of legal reasoning. During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed. In fact, this is the court with the highest reversal rate in the country. In 1997, 27 of the 28 cases brought to the Supreme Court were reversed--two-thirds by a unanimous vote. Over the last 3 years, one-third of all cases reversed by the Supreme Court came from the Ninth Circuit. That's three times the number of reversals for the next nearest circuit and 33 times higher than the reversal rate for the 10th Circuit. Last November, on a single day, the Supreme Court summarily and unanimously reversed three Ninth Circuit decisions. In one of those three cases, the Supreme Court ruled that the circuit had overreached its authority and stated that the Court ``exceed[ed] the limits imposed on federal habeas review . . . substitut[ing] its own judgment for that of the state court.'' One of the reasons the Ninth Circuit is reversed so often is because the circuit has become so large and unwieldy. The circuit serves a population of more than 54 million people, almost 60 percent more than are served by the next largest circuit. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million. According to the Administrative Office of the U.S. Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. And with its huge caseload, the judges on the court just do not have the opportunity to keep up with decisions within the circuit, let alone decisions from other circuits. In a New York Times article last year it was pointed out that judges on the court said they did not have time to read all of the decisions issued by the court. According to a 1998 report, 57 percent of judges in the Ninth Circuit, compared with 86 percent of Federal appeals court judges elsewhere, said they read most or all of their court's decisions. Another problem with the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full-court, or en banc, cases. The Ninth Circuit sits in panels of 11. The procedure injects randomness into decisions. If a case is decided 6 to 5, there is no reason to think it represents the views of the majority of the court's 24 active members. Last week, some legal experts suggested that the Ninth Circuit's unique 11 member en bank panel system may have contributed to the courts' decision on the pledge. It has been suggested that even a majority of the 24 members of the court might have disagreed with the pledge decision but feared that a random pick of 11 members of the court to hear the case might have resulted in the decision being affirmed. That is not the way the law should be interpreted by the circuit courts of this country. I believe this decision highlights the need for this Congress to finally enact legislation that will split the Ninth Circuit. It has just become dysfunctional. Later this week I will be introducing such legislation, and I hope my colleagues on both sides of the aisle will join me in that legislation. I yield the floor.

Ms. MURKOWSKI. Mr. President, I send a resolution to the desk and ask unanimous consent that it be held at the desk. Before the Chair rules, I add that it is my hope, and the hope of many Members on this side of the aisle, that we can get this resolution cleared for adoption today.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, during his State of the Union speech this week, President Bush emphasized the importance of local and charitable initiatives that help define the character of the many communities that make up the mosaic of our country. I have come to the floor today to discuss a community tradition that is unique to many of Alaska's remote villages and which should be recognized and supported by the Federal Government. Subsistance whaling is vital to the survival of several Alaska Native communities. In many of our remote villages, the whale hunt is a tradition that has been carried on over many millennia. As part of that tradition, it is the custom that the captain of the hunt make all provisions for the meals, wages and equipment costs associated with the hunt. After the hunt, the Captain is repaid in whale meat and muktuk, which is blubber and skin. However, as part of the tradition, the Captain donates a substantial portion of the whale to his village in order to help the community survive the harsh winter. While the International Whaling Commission, IWC, has banned commercial whaling, it has specifically recognized the cultural significance of whaling to the Alaska Native community and has allowed them to continue the seasonal hunt. The IWC recognizes that the traditional whale hunt is not carried on for financial gain. Although the hunt generates no financial gain to the whaling captain, the captain incurs real expenses. Since the whaling captain is not engaged in a business, he is not permitted to deduct the costs he incurs from his taxes. In order to maintain the traditional hunt and to offset some of the costs incurred by the Captain, I am today introducing legislation that would allow the captain to claim a charitable deduction of up to $10,000 to help defray the costs associated with providing this community service. I want to point out that if the Captain incurred all of these expenses and then donated the whale meat to a local charitable organization, the Captain would almost certainly be able to deduct the costs he incurred in outfitting the boat for the charitable purpose. However, the cultural significance of the Captain's sharing the whale with the community would be lost. Moreover, since there is no commercial market for whale meat because of the international whaling bank, there is no way to set the value of such a charitable contribution. This is a very modest proposal and I urge my colleagues to support this measure. I ask unanimous consent that the text of the bill be printed in the Record.

Ms. MURKOWSKI

Ms. MURKOWSKI. Mr. President, I rise to introduce a bill to establish the Denali Transportation System. This bill in intended to help create in the same beneficial transportation system in Alaska as exists for every other State in the Union. It is patterned after a similar effort adopted years ago for the Appalachian region, which has demonstrated beyond any doubt that transportation investment is wise investment. The bill authorizes the Secretary of Transportation to establish a program to fund the costs of construction of the Denali Transportation System, at a level of $450 million per year from Fiscal Year 2004 through Fiscal Year 2009. As new roads are constructed, they will become part of the National Highway System. As my colleagues are aware, Alaska's ability to develop a strong economy for the benefit of the State and the nation is deeply impaired by the lack of transportation. This affects all aspects of life in the 49th State, from the delivery of fuel and essential services to individuals and families in our many remote villages, to our ability to develop Alaska's abundance of valuable natural resources. Only our major cities have modern roadways, and many of those remain isolated. No State, or its citizens, can prosper without adequate transportation systems. In much of the country, such systems have been in place since before the American Revolution, and have been constantly changing, adapting and being upgraded ever since. In much of Alaska, in contrast, residents are still forced to travel between communities by boat, or on frozen rivers, just as they did when the Territory of Alaska was first purchased from Imperial Russia. In this day, and age, such a situation is completely unacceptable. It is a lasting mark of neglect, and it is past time to rectify it. The Denali Transportation System will provide far greater benefits than costs. As we enter an era where gigantic natural changes are occurring in the Arctic environment, and ice-free maritime transportation through the Arctic Ocean is expected to become a reality within decades, it is critical that we begin to prepare ourselves for those changes. Adequate transportation connections to, and within, America's only Arctic State are imperative. As we debate a Federal budget during a time when the economy is struggling, let us not forget that the key to long-term prosperity is wise investment. Investing in Alaska is investing wisely. We have incomparable resources and vigorous citizens. It is time we have the transportation system that will allow those assets to be used as they should. Mr. President, I ask unanimously consent that the text of the bill be printed in the Record.