[Senate Hearing 109-1063]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 109-1063
 
 CREATING NEW FEDERAL JUDGESHIPS: THE SYSTEMATIC OR PIECEMEAL APPROACH 

=======================================================================

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 16, 2005

                               __________

                          Serial No. J-109-53

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                    JEFF SESSIONS, Alabama, Chairman
ARLEN SPECTER, Pennsylvania          CHARLES E. SCHUMER, New York
CHARLES E. GRASSLEY, Iowa            DIANNE FEINSTEIN, California
JON KYL, Arizona                     RUSSELL D. FEINGOLD, Wisconsin
                 William Smith, Majority Chief Counsel
                Preet Bharara, Democratic Chief Counsel






























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................   154
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   158

                               WITNESSES

Furgeson, W. Royal, Jr., District Judge for the Western District 
  of Texas, and Chairman, Committee on Judicial Resources, 
  Judicial Conference of the United States, San Antonio, Texas...     5
Galanter, Marc, Professor of Law, University of Wisconsin, 
  Madison, Wisconsin.............................................    10
Spalter, Robyn, President, Federal Bar Association, Miami, 
  Florida........................................................     9
Steele, William H., District Judge for the Southern District of 
  Alabam, Mobile, Alabama........................................     7

                               QUESTIONS

Questions to Judge Furgeson submitted by Senator Schumer.........    29
Questions to Marc Galanter submitted by Senator Schumer..........    30
Questions to Robyn Spalter submitted by Senator Schumer..........    29

                       SUBMISSIONS FOR THE RECORD

Furgeson, W. Royal, Jr., District Judge for the Western District 
  of Texas, and Chairman, Committee on Judicial Resources, 
  Judicial Conference of the United States, San Antonio, Texas, 
  prepared statement.............................................    31
Galanter, Marc, Professor of Law, University of Wisconsin, 
  Madison, Wisconsin, prepared statement and attachment..........    40
Hagel, Hon. Chuck, a U.S. Senator from the State of Nebraska, 
  prepared statement.............................................   156
Spalter, Robyn, President, Federal Bar Association, Miami, 
  Florida, prepared statement....................................   159
Steele, William H., District Judge for the Southern District of 
  Alabama, Mobile, Alabama, prepared statement...................   166


 CREATING NEW FEDERAL JUDGESHIPS: THE SYSTEMATIC OR PIECEMEAL APPROACH

                              ----------                              


                      WEDNESDAY, NOVEMBER 16, 2005

                              United States Senate,
Subcommittee on Administrative Oversight and the Courts, of 
                            the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Jeff 
Sessions, Chairman of the Subcommittee, presiding.
    Present: Senators Sessions and Schumer.

 OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 
                      THE STATE OF ALABAMA

    Chairman Sessions. The Subcommittee on Administrative 
Oversight and the Courts will come to order. I am pleased to 
convene this hearing to evaluate the process of creating new 
judgeships in the Federal judiciary, and specifically whether 
we should take a systematic or piecemeal approach to the 
process.
    Senator Schumer expected to be with us, but he is caught in 
the Capitol now and I am not sure whether he will be able to 
get back. A further complication is that commencing about now 
we will have three stacked votes, which unfortunately will mean 
probably about a 45-minute interruption. I thought what I would 
do is make my opening statement now and maybe introduce our 
guests and then probably at that time we would take our break 
and have to return. I am sorry, but we are reaching the end of 
the session. There are a lot of important votes going on and 
there is just no way to avoid that at this time.
    This Committee has not for some time addressed the 
expansion of the Federal judiciary and how we should proceed 
with it. So I am looking forward to hearing from our witnesses, 
all of whom have given generously of their time and dedicated a 
lot of personal hours to developing their well-researched 
opinions on the topics before us today.
    A question might be why are we having this hearing. Well, 
the Constitution mandates that Congress oversee the 
administration of the judicial branch and create such inferior 
courts, quote, ``as the Congress from time to time may ordain 
or establish.'' Using this constitutional provision as a 
premise, the first U.S. Congress passed the Judiciary Act of 
1789 which established the Federal judiciary. It made no 
provision for the composition or procedure for the courts and 
left that for Congress.
    The Act continues to be the mechanism from which Congress 
derives its authority to determine the proper size of the 
Federal judiciary and the optimum number of judges for the 
lower courts. When we strike the appropriate balance, we ensure 
the proper administration of justice and guarantee that all 
Americans have access to an efficient, fair judiciary, in 
accordance with our constitutional heritage. It is with this 
duty in mind that we convene today's hearing.
    If a particular court's caseload becomes too heavy, it may 
be necessary for Congress to approve additional judgeships. 
Should this be our initial response, or should we first examine 
how judges are using the resources provided them and whether 
such use is effective? Overall, we know that increases are 
normal and natural in the evolution of judicial organization. 
So this hearing is not one condemning the use of increased 
judgeships as a tool, but one that knows they are not always 
the answer.
    Congress recognized the need to create new judgeships when 
it authorized the creation of new Federal judgeships in the 
2002 Department of Justice appropriation. Section 312 of that 
Act authorized eight new permanent district court judgeships 
and seven new temporary district court judgeships. We have not 
seen an increase in circuit judgeships for almost 15 years. The 
most recent addition occurred in 1990, and prior to that seats 
had not been added since 1984. Both the Eleventh Circuit and 
the Federal Circuit have seen no increase in seats since their 
respective creations in 1980 and 1982.
    I would note that we have had chief judges from a number of 
the circuits tell us they don't want new judgeships; that they 
believe that the 10, 12, 13, 15 judges they have allows for the 
collegiality that they desire and they prefer to carry a heavy 
caseload rather than add appellate judges.
    As of October 4, 2005, there were 49 vacancies in the 
Federal judiciary, which includes the U.S. Court of Appeals, 
district courts and the Court of International Trade. 
Currently, there are 19 nominees pending and 3 pending for 
future vacancies. These vacancies constitute 5.6 percent of the 
875--871, according to DOJ--authorized judgeships in the 
Federal judiciary, and there are 15 future vacancies slated to 
open up. There is a distinct possibility that if we fill these 
vacancies expeditiously, the perceived need for new judges 
would be reduced.
    I would just note that I believe this Subcommittee and the 
full Judiciary Committee need to be more affirmative in our 
evaluation of the Federal judiciary. We tend to have someone 
from a certain State, a Senator, believe that they have a 
crisis and they want a judge and they add one to some bill that 
is moving through the legislature. We had one bill recently 
that had one new judgeship added. When it finally passed the 
Senate, ten new judgeships had been attached to it in nine 
different States, and I am not sure those were consistent with 
the recommendations of the AOC in terms of priority and need.
    So I think it is important for our Committee to do our 
homework, to be able to tell our fellow Senators that if you 
think you need a nominee, a new judgeship, we are working on 
that, we are evaluating it, and we have a fair and effective 
way to determine how many judges are needed and we have got a 
priority list for that, and try to do it in a way that is most 
professional and effective.
    According to the Administrative Office of United States 
Courts, in 2004 there were 60,505 cases filed in the United 
States courts of appeals, a 9.4-percent increase since 2000. 
Additionally, in the U.S. district courts there were 255,851 
cases, a 2.6-percent decrease from 2000. Those were civil 
cases, and there were 70,746 cases filed, a 15-percent increase 
from 2000. So we have had an increase in criminal cases since 
2000 and an actual decrease in civil filings since the year 
2000.
    Though Congress is the only body constitutionally 
authorized to create judgeships, it is the Judicial Conference, 
headed by the Chief Justice of the United States Supreme Court, 
that makes recommendations as to how many are needed. The 
Judicial Conference reviews needs biennially via a formal 
survey process. The most recent review was completed in March 
2005 and it recommended the creation of 12 courts of appeals 
judgeships and 56 district court judgeships.
    In making the recommendations, the Conference uses a formal 
survey process which involves six levels of review within the 
judiciary before it is transmitted to Congress. Those levels 
include judges of the court making the request--if judges 
indicate on the survey that additional seats are needed, the 
Judicial Conference will initiate a review to analyze all 
relevant factors--initial review of the survey results by the 
Subcommittee on Judicial Statistics of the Committee on 
Judicial Resources, reviewed by the judicial council of the 
circuit in which the court is located, and a second and final 
review by the subcommittee. The Subcommittee on Judicial 
Resources conducts a final review and passes recommendations on 
to the full committee. The whole Judicial Conference will 
review the recommendations before they are made to Congress. 
That is a pretty thorough review.
    I suspect some of the requests for judges may be because 
there is a fear that we might get them this year, but if we 
don't ask for them this year, there might be some bad years in 
the years to come and we may not get them when we really do 
need them. But, regardless, it is a fairly rigorous process, I 
think, the courts go through to make those recommendations.
    According to the Administrative Office, the cost for 
creating each circuit court judgeship is approximately $927,000 
for the first year, with recurring costs averaging $818,000. 
They don't get paid that much, but there is a lot of cost in 
creating a circuit judgeship, as there is with a district 
judgeship. A district judgeship equates roughly to $1 million 
for the first year, with recurring costs of $886,000. I would 
like to know why the district is more expensive, but we will 
maybe ask that. So it is a serious responsibility for us not to 
propose more judgeships than are needed because the taxpayers 
expect us to get the maximum result for the dollars.
    Between October 1995 and December 1998, my colleague, 
Senator Grassley, held a series of hearings addressing the 
needs of circuit judges for each circuit. During those 
hearings, we saw little consensus regarding the actual need for 
judges and whether the current statistical formulation utilized 
by the Conference is an accurate means for calculating the 
appropriate number of judges for Federal courts.
    In order to determine the caseload, the Conference assigns 
a weight to each type of case. Weighted filing statistics 
account for the different amounts of time district judges 
require in order to resolve the various types of civil and 
criminal actions. Though the Federal Judicial Center updated 
the case weights in 2004 on a national basis, weighted filings 
did not change significantly after their implementation.
    A number of judges have raised concerns about the approach 
taken to determine the need for judgeships. For example, if we 
are willing to use this formula in order to increase the size 
of the courts, should we not also implement it to determine 
when a significant decline in case filings and consolidations 
would warrant a decrease in judgeships?
    Some have even expressed concern that the formula is 
suspect, since it is virtually impossible to predict the degree 
of difficulty or time required to dispose of a case on the 
basis of case type. Another concern is that of collegiality. 
Judges like a smaller court whenever possible. If we continue 
to increase the number of judges on the Federal bench, it could 
have a negative impact on effective administration of courts 
and the uniformity of law.
    In addition to the concerns associated with the process of 
creating new judgeships, I would like for this hearing to lead 
us into an informative discussion of the resources that are 
currently available and maybe underutilized. There are several 
methods currently in use that can be expanded to help alleviate 
some of the perceived concerns with caseload.
    Among those are the use of senior judges, shared 
judgeships, inter-circuit and intra-circuit assignment of 
judges, and development of a process to recommend not filling 
vacancies or eliminating superfluous positions. Additionally, 
Judge Steele is here and he will testify about the role that 
U.S. magistrate judges play and how they can be used as a 
valuable resource in the disposition of cases.
    These are important concerns, particularly since there are 
now pending several current pieces of legislation calling for 
the creation of a number of new judges at the appellate and 
district levels. I hope that this hearing will shed some light 
on the process and give this legislative body a broader 
perspective when taking steps to further the efficient 
administration of justice.
    We have 5 minutes left on that vote, and according to 
Senate time that means a little more than 5 minutes, but not a 
lot. Since we are stacking votes, they tend to be a little 
tighter about it. So I will introduce our panel. We will have 
one panel today, which consists of four distinguished witnesses 
who have devoted time and energy in analyzing the state of our 
judiciary.
    The witnesses on this panel, starting from my left, are 
Judge W. Royal Furgeson, U.S. District Judge for the Western 
District of Texas, and the Chairman of the Judicial Conference 
Committee on Judicial Resources; Judge William H. Steele, 
United States District Judge for the Southern District of 
Alabama and a former magistrate judge in Mobile; Ms. Robyn J. 
Spalter, President of the Federal Bar Association, and an 
attorney with the firm of Kluger, Peretz, Kaplan and Berlin, in 
Miami, Florida. Finally, we will hear from Professor Marc 
Galanter, who is a Professor of Law and South Asian Studies at 
the University of Wisconsin at Madison and LSC Centennial 
Professor at the London School of Economics and Political 
Science.
    When I get back, we will hear your opening statements and 
begin with Judge Furgeson. Again, let me apologize for having 
to interrupt this hearing. I should be back, I would say, in 45 
minutes. That will be my goal. If Senators are not able to 
attend, their staff will be monitoring this. Your comments will 
be made a part of the record and it will help us establish a 
basis for making rational decisions about the size of our 
Federal judiciary.
    So at this time we will take a recess for approximately 45 
minutes.
    [Recess.]
    Chairman Sessions. The Subcommittee will come to order. I 
apologize again for having to do what they pay me to do, go 
vote. There are a lot of committees and a lot of activities, 
and they just have to call them when it is appropriate.
    We are anxious to hear your comments. We would ask you to 
try to keep those to 5 minutes. Judge Royal, we would be 
delighted to hear from you first.

 STATEMENT OF HON. W. ROYAL FURGESON, U.S. DISTRICT JUDGE FOR 
   THE WESTERN DISTRICT OF TEXAS, AND CHAIRMAN, COMMITTEE ON 
 JUDICIAL RESOURCES, JUDICIAL CONFERENCE OF THE UNITED STATES, 
                       SAN ANTONIO, TEXAS

    Judge Furgeson. Thank you so much, Mr. Chairman. Good 
afternoon, Mr. Chairman. My name is Royal Furgeson and I am a 
United States District Judge for the Western District of Texas 
sitting in San Antonio. I am also the Chair of the Judicial 
Conference Committee on Judicial Resources. I am honored to be 
here today, sir, to discuss the request of the Federal 
judiciary for new judgeships.
    Before I do so, however, may I state that it is the policy 
of the judiciary to limit its growth to that number of new 
judgeships necessary to exercise appropriate Federal court 
jurisdiction. We certainly do not wish to grow for growth sake.
    Also, while there have been new judgeships, as you 
mentioned, added to our system since 1990, that year, 1990, was 
the last year that a comprehensive judgeship bill was enacted. 
Since 1990, our caseloads have increased relentlessly. For 
example, district court filings have risen 40 percent and 
circuit court filings have risen 58 percent.
    Finally, the Federal judiciary understands that our Federal 
Government has many funding demands, to include the need to 
finance our brave troops in Iraq and Afghanistan. Under the 
circumstances, we want you to know that we are doing our part 
to contain costs. There are numerous initiatives underway in 
the judiciary to look at how we can deal with escalating 
expenses. While these initiatives are ongoing and while they 
cannot be put in place overnight, you should be aware that we 
are mindful of the cost of every new judgeship and of our 
responsibility to work with the other branches of Government to 
be good stewards of our resources.
    Taking all these matters into consideration, we are asking 
for 68 new judgeships, 12 at the circuit level and 56 at the 
district level. Let me briefly describe how we have arrived at 
these numbers.
    First, there is a threshold caseload to begin the process. 
In our committee, we have developed a formula--you mentioned 
it--for evaluating district court dockets so that we can put 
all trial judges on equal footing through establishment of case 
weights. Our circuit courts also have a modified formula.
    Second, while the formulas are important to the 
consideration of new judgeships, other factors must be weighed 
to arrive at a sound measurement of each court's judgeship 
needs, and you have mentioned that as well in your statement. 
Those include looking at the number of senior judges, their 
ages and level of activity; looking at magistrate judge 
assistance, and I am delighted that one of my esteemed 
colleagues, Judge Steele, is here today to talk about some 
innovations in regard to magistrate judge assistance in the 
courts.
    We also look at geographical factors, unusual caseload 
complexity, temporary or prolonged caseload increases or 
decreases, and use of visiting judges. Our courts, when they 
begin this process, are asked to complete a comprehensive 
application that details all of these factors, and you 
mentioned that as well in your statement.
    Third, when all of this information is gathered and 
thoroughly scrubbed, then it undergoes consideration and review 
at six different levels within the judiciary, and again you 
mentioned that in your opening statement. At the beginning of 
this process this time, the courts requested 80 additional 
judgeships, permanent and temporary. Through our review 
procedure, we reduced that number to 68, and of these 68, 15 
are temporary--another indication of our conservative approach 
to new judgeships.
    Incidentally, in addition to the 68 judgeships we are 
asking for, we are also asking that three temporary judgeships 
created in 1990 be made permanent and one created in 1990 be 
extended based upon trends in those particular courts.
    Finally, and to reiterate, the long-range plan for the 
Federal courts specifically states that our judiciary is 
committed to controlling growth. Therefore, our request must be 
understood as an effort to accomplish this goal within the 
context of rising dockets. To that end, we are requesting far 
fewer judgeships than we might otherwise do.
    Since 1964, we have taken a very rigorous approach to 
vetting our request for new judgeships. As you know, this 
approach has undergone change and has become more sophisticated 
and transparent. We hope that it provides you with the 
information and assurance that you and your Committee and the 
Congress need to give our request favorable consideration.
    Mr. Chairman, thank you very much for holding this hearing 
and allowing me to testify, and by request of the Federal 
judiciary, we would ask that you introduce this judgeship 
proposal. I will be glad to answer your questions when the time 
comes.
    [The prepared statement of Judge Furgeson appears as a 
submission for the record.]
    Chairman Sessions. Thank you very much, Judge Furgeson, for 
those succinct remarks, and right on time.
    Judge Steele, it is good to have you with us. I guess in 
the interest of full disclosure, Judge Steele worked for me for 
a period of time. He was a chief assistant district attorney 
for the Democratic-elected district attorney in Mobile for many 
years, and then I was able to hire him away. Then he went into 
private practice and then the judiciary, in a very competitive 
process, selected him to be a United States magistrate judge.
    Judge, you served how many years?
    Judge Steele. Thirteen.
    Chairman Sessions. Thirteen, and won the respect of people. 
I would note also that Judge Steele has had a special ability, 
I think, for management. As an Assistant United States 
Attorney, he helped come up with a plan that greatly improved 
the entire processing of criminal cases which the judges were 
delighted with, and the prosecutors were delighted, also, and I 
think the defense bar, also.
    So, Judge Steele, it is a pleasure to have you with us 
today.

 STATEMENT OF HON. WILLIAM H. STEELE, U.S. DISTRICT JUDGE FOR 
       THE SOUTHERN DISTRICT OF ALABAMA, MOBILE, ALABAMA

    Judge Steele. Thank you for that generous introduction, and 
thank you for the opportunity to address this Committee on the 
subject of the utilization of magistrate judges and to share 
our experience regarding the utilization of magistrate judges 
in the Southern District of Alabama.
    By way of background, as you stated, I served as a 
magistrate judge in the Southern District of Alabama from 1990 
until 2003, about 13 years. About two-and-a-half years ago, I 
was appointed and began serving as a United States district 
judge. Consequently, I have witnessed the benefits of the 
magistrate judges system both from a supporting role as a 
magistrate judge and in a supported role as a district judge.
    Those are those who consider the Southern District of 
Alabama to be a pioneer district in the full utilization of 
magistrate judges. This development resulted from a set of 
unique circumstances which occurred in our district over a 
period of several years during the mid- to late 1990's.
    At this time, the Southern District was authorized and had 
serving three district judges. Historically, the Southern 
District is a busy district, and given its proximity to the 
drug corridors of south Texas, south Florida and the Gulf of 
Mexico, it is a district that sees a significant number of drug 
cases.
    Because criminal cases generally take priority over civil 
cases, and because of other considerations such as the Speedy 
Trial Act, it was necessary to move these cases through the 
criminal justice system as efficiently as possible. As a result 
of a number of factors affecting our district judges, including 
ill health, retirement, senior status and delay in replacing 
these judges, over the time the number of district judges in 
the Southern District of Alabama diminished from three active 
judges to one active judge. That judge found himself 
responsible for managing most, if not all, of the total 
criminal caseload, in addition to his own increasing civil 
caseload.
    As a result of these conditions and factors, our court 
began searching for ways to efficiently manage the civil and 
criminal dockets in an effort to avoid any substantial backlog 
and delay in the fair and effective administration of justice. 
For our district, the logical place to turn was to our 
magistrate judges.
    As this crisis developed, the magistrate judges in the 
Southern District of Alabama were already serving in their 
traditional roles, and by traditional roles I mean that these 
judges were handling all of the Section 1983 prisoner 
litigation on report and recommendation; all of the Section 
2254 habeas corpus on report and recommendation; all of the 
Social Security appeals on report and recommendation; all the 
preliminary criminal matters, such as arraignments, initial 
appearances, detention hearings, pre-trial conferences and 
discovery motions; all of the Central Violations Bureau cases, 
which include hunting and game violations, petty offenses and 
Assimilated Crime Act offenses; and all preliminary civil 
matters, such as discovery motions and the entry of scheduling 
orders.
    In an effort to relieve the district judges so that they 
could manage the criminal docket and as much of the civil 
docket as possible, the magistrate judges were asked to take on 
additional responsibilities within the limits of their 
jurisdiction. This included handling a significant number of 
civil pre-trial conference, a substantial number of civil case 
settlement conferences, jury selection in almost all of the 
criminal and civil jury cases, and an automatic assignment of a 
significant part of the civil docket which I will describe 
briefly in just a moment.
    In addition, a small number of civil dispositive motions--
for example, summary judgment and motions to dismiss--were 
referred to the magistrate judges for entry of report and 
recommendations. And on a few occasions, the magistrate judges 
were called upon to take guilty pleas.
    With regard to our automatic assignment of civil cases 
mentioned previously, pursuant to 28 U.S.C. Section 636(c), 
magistrate judges are authorized, with the consent of the 
parties, to exercise jurisdiction over all proceedings in jury 
and non-jury civil matters, and are authorized to order the 
entry of judgment in what may be called a consent case.
    In an effort to relieve the district judges, and ultimately 
the one district judge, and with the goal of avoiding a backlog 
and delay in civil cases, our court implemented a system 
wherein 25 percent of the total civil docket was automatically 
assigned to the magistrate judges.
    With the consent of the parties, a number of these cases 
were retained and disposed of by the magistrate judges, thus 
reducing the total civil caseload of the district judge.
    As a result of this expanded utilization of magistrate 
judges, in the face of a shortage of district judges, our court 
was able to weather the storm and to achieve the goal of the 
fair and efficient administration of justice in the Southern 
District of Alabama.
    Once again, thank you for the opportunity to address this 
Committee and I would be pleased to answer any questions that 
you might have.
    [The prepared statement of Judge Steele appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Judge Steele.
    An important part of the legal system are the attorneys who 
appear there and, Ms. Spalter, you represent the Federal Bar 
Association, which has a special interest in the Federal 
courts, and we are delighted to hear your perspective today.

STATEMENT OF ROBYN SPALTER, PRESIDENT, FEDERAL BAR ASSOCIATION, 
                         MIAMI, FLORIDA

    Ms. Spalter. Thank you, Mr. Chairman. As you said, I am 
President of the Federal Bar Association. I would like to thank 
you for inviting and welcoming the Federal Bar Association here 
today for this hearing. I would also like to compliment you, 
the Committee counsel and staff for working with the FBA to 
address this very vital issue.
    I will not reiterate my written statement, but will rather 
try to discuss and summarize the highlights. But I would like 
to ask you, Mr. Chairman, at this time if I could request that 
written statement be included in the record of this hearing in 
its entirety.
    Chairman Sessions. We would be pleased to and will be made 
a part of the record.
    Ms. Spalter. Thank you.
    The Federal Bar Association has 16,000 members, made up of 
lawyers and judges. We are the premier nationwide bar 
association devoted exclusively to the practice and 
jurisprudence of Federal law and the vitality of the U.S. 
Federal court system.
    We are here today to represent our members--lawyers and 
judges and parties they serve. We are here today to tell you 
why, on behalf of these Federal advocates and jurists, 
individuals and businesses they represent and serve, we 
strongly support the Judicial Conference's comprehensive 
request for new judgeships, both permanent and temporary.
    I believe everyone in this room could easily agree that 
prompt and efficient administration of justice is an integral 
component of this great country in which we live. It is not 
just a goal, it is not just an aspiration. Rather, it is the 
bedrock of our Federal system of jurisprudence. In order to 
adhere to this principle, in order to ensure prompt and 
efficient administration of justice, the creation and 
maintenance of a sufficient number of judgeships in our Federal 
courts are critical.
    The Federal Bar Association understands that there will be 
costs involved. We are cognizant of this. However, we believe 
that failure to create these judgeships now will bear its own 
cost, maybe not monetary, but critical nonetheless. Failure 
will cost us the integrity of and trust in our judicial system.
    Mr. Chairman, the problem is the caseloads are so large 
that comprehensive action has become necessary now by this 
Congress. I am not going to go into detail on numbers because 
my co-speaker here, Judge Furgeson, has done so, but I want to 
point out a few.
    Filings since 1990 have increased by approximately 40 
percent or more in the district and circuit courts. Circuit 
court cases per three-judge panel have reached 1,127--more than 
ever in history. Criminal filings have increased by 77 percent, 
and since 1992 bankruptcy filings have increased by 18.3 
percent. Now, that is the caseloads. The question is what has 
happened to the judgeships in that same period of time.
    From 1990 to present, there have been zero new circuit 
court judges. From 1990 to 2000, there have been zero new 
district judges, and from 2000 to 2005 there have been 34 new 
district judges, but they were put in districts where there 
were crises and they had reached their tipping points.
    But the Federal Bar is here and brings you another 
perspective, Mr. Chairman. We bring you a perspective from the 
ground, from the grass roots, from the lawyers practicing 
before this bench everyday, from the members of the bench 
trying to assure prompt and efficient administration of 
justice, and from our clients and citizens who believe in the 
system and just want to see it work promptly and efficiently.
    The major complaint is that it takes too long to get a case 
through the system. Even cases that could be disposed of easily 
by dispositive motion are taking longer and longer and longer 
to get a hearing. It is for all of these reasons that the 
Federal Bar Association, in order to deliver to our members and 
those they serve and to fulfill our mission, the practice 
before and vitality of our Federal court system, that we assert 
that this is a priority, a national priority. Additional 
judgeships established now comprehensively must be done in 
order to ensure the prompt and efficient administration of 
justice.
    Before I conclude, one related comment. The House is 
advancing proposals that tie together the addition of these 
judgeships and the reorganization of the Ninth Circuit. The 
Federal Bar Association believes strongly that these are two 
separate and distinct issues. Each has its own merits, 
arguments and justifications, and should be considered that 
way. We commend this Subcommittee for its approach toward 
bifurcating these two issues.
    In conclusion, I think it is apropos to say justice delayed 
is justice denied. To ensure justice isn't denied, you must 
assure that it isn't unduly delayed. This can be accomplished 
by authorizing the adequate number of new judgeships as set 
forth in the Judicial Conference's well-thought-out 
recommendations. This will protect and assure the prompt and 
efficient administration of justice and it will ensure that 
justice is not denied.
    [The prepared statement of Ms. Spalter appears as a 
submission for the record.]
    Chairman Sessions. Thank you, Ms. Spalter.
    Professor Galanter, we would be delighted to hear from you 
at this time.

  STATEMENT OF MARC GALANTER, PROFESSOR OF LAW, UNIVERSITY OF 
                 WISCONSIN, MADISON, WISCONSIN

    Mr. Galanter. I am very pleased to be here and have a 
chance to bring into this discussion some issues about the 
Federal judiciary that I think are very relevant.
    I want to particularly point out that when we are talking 
about the number of judges, it is very important to say what 
are these judges doing. I am particularly concerned about 
whether judges are holding trials. If you will look, you will 
see that over the past 20 years there has been a dramatic 
decline in the number of civil trials. The green here are the 
bench trials and the red are jury trials. Both have declined. 
Actually, bench trials have declined more rapidly.
    There is a similar movement in terms of criminal trials 
since 1990, which was mentioned before, at the time of the last 
major additions to the judiciary. You can see that half the 
trials have gone away. Now, there is a long-term decline in 
trials.
    Chairman Sessions. Does that amount to about a reduction by 
half?
    Mr. Galanter. A reduction by half on the criminal side and 
actually two-thirds on the civil side, compared to, say, 1995, 
civil; 1990, criminal.
    Now, there is a long-term decline. The percentage of cases 
that are getting to trial has been going down for a hundred 
years, and we can understand the reasons for that. But what is 
very striking is that since the middle-1980's the absolute 
number of trials has been falling and, as you can see, falling 
very, very rapidly. There is about one-third of the civil 
trials in the Federal courts that there were in the mid-1980's 
with fewer judges, and there are about half the criminal 
trials.
    Now, this marks a fundamental change in judging, a shift 
away from trials to case management. And when we see these 
cases depart and we know that judges really work hard, the 
question is what are they doing. Well, they are not holding 
trials. Last year, in 2004--and I am sorry I don't have the 
charts for 2004, but I would like to put those in the records, 
if I may, along with the full paper on which this is based, if 
I may.
    Chairman Sessions. We will accept that in the record.
    Mr. Galanter. Thank you.
    Last year, the average judge in Federal court held about 
ten trials, or we could say there were about ten trials for 
every sitting judge. If we go back to, say, 1990, again a date 
that was mentioned here, the average judge was holding 40 
trials. So we have gone from 40 trials per judge to 10 trials 
per judge in just 15 years. So something has really changed in 
the Federal judiciary that it seems to me this Committee might 
well want to concern itself with.
    I should add that ten trials per year now is a pretty 
generous estimate for a number of reasons. It ignores the 
senior judges and magistrates, who are an increasing band who 
actually do quite a large number of those trials. It also is a 
count of those matters that got to a stage that the 
Administrative Office calls during or after trial, and that 
means a trial began. Actually, about 20 percent of those cases 
that get there end up settling before a verdict.
    Finally, a trial is defined in the Federal system as a 
contested matter in which evidence is presented. So there is 
not only a theoretical possibility, but it actually happens 
that sometimes there is more than one trial in a case. You can 
have a Daubert hearing that is counted as a trial.
    So when I say there are only 4,000 civil trials today, that 
is with all these caveats. So the number of trials per judge is 
very low by our historic standards, and I think this marks a 
kind of fundamental change in the Federal judiciary, a shift of 
resources from preparing for trial and conducting trials to 
case management, leading to non-trial dispositions, something 
that I hope this Committee will decide it would like to 
examine.
    Thank you very much.
    [The submission of Mr. Galanter appears as a submission for 
the record.]
    Chairman Sessions. Professor Galanter, I believe you have a 
train to catch. Is that correct?
    Mr. Galanter. I do in a little while, yes.
    Chairman Sessions. Well, I will ask you a few questions 
first.
    Mr. Galanter. I would appreciate that, sir.
    Chairman Sessions. It says criminal defendants disposed of. 
Well, you have more multi-defendant cases today where four 
defendants may plead and the fifth goes to trial, but your 
chart says trials. Is it true that the aggregate number of 
trials are down? There is no confusion in that, is there?
    Mr. Galanter. Yes, the aggregate number of trials are down. 
Yes, there is that problem on counting on the criminal side. 
But this is the number of defendants who were tried, so that if 
five defendants are tried in the same case, that looks like 
five trials here, but it is not. So this again is a generous 
count of the number of trials.
    Chairman Sessions. It might not be a generous count.
    Judge Steele, are you looking at that number? If one 
defendant goes to trial, that counts as one trial, and if two 
co-defendants go to trial, that counts as two trials?
    Mr. Galanter. That is right.
    Chairman Sessions. That is a generous count.
    Mr. Galanter. I didn't do the original counting. I am just 
using the records provided by the Federal office.
    Chairman Sessions. Do you have the numbers for the number 
of days a judge is in trial?
    Mr. Galanter. I understand that the judiciary does compile 
these numbers, but I do not have them.
    Chairman Sessions. I have heard a rumor that judges have 
actually made sure they swore in the jury before they took the 
guilty plea and counted it as a trial. Have you ever heard of 
that?
    Mr. Galanter. I haven't, but I am sure you hear much more 
about this than I do.
    Judge Furgeson. Mr. Chairman.
    Chairman Sessions. Please, yes, Judge Furgeson.
    Judge Furgeson. I know I have tried multi-defendant cases. 
I don't recall on my statistics--for example, sometimes I have 
tried as many as 10 or 12. I don't recall those showing up as 
12 trials. I recall those showing up as one trial for all 12. 
So I don't know if it is exactly right that you get a trial per 
defendant even if they are all tried together.
    Mr. Galanter. Well, let me say that the Administrative 
Office keeps multiple statistical tables, and in terms of 
measuring what a judge does it seems to me that table may very 
well count them differently. What I took was the public 
information released by the Administrative Office in which they 
say how many defendants were tried that year. So in some sense, 
it is a maximum number of trials that were held.
    Now, they may not have given individual judges the benefit 
of those multiple defendants in counting what that individual 
judge did. But in the published statistics that they put out, 
they tell us that this is the number of defendants that were 
tried. So if we were to assume that every defendant had his or 
her own trial, we had about 3,500 in 2002.
    Chairman Sessions. Judge Furgeson?
    Judge Furgeson. Mr. Chairman, would you allow me to submit 
a letter--I would like to research this a little bit--submit a 
letter to you, with a carbon copy to the professor, just so--
    Chairman Sessions. I think we should work on those numbers. 
But we do know that there is no doubt, Professor--is this 
correct--that the percentage of cases disposed of short of 
trial is reaching in the high 90s? Do you have that number?
    Mr. Galanter. Well, the percentage of cases that terminate 
in trial in the Federal courts is about 1.6 percent now. Forty 
years ago, it was 11 percent. Back when the Federal Rules were 
adopted in 1938, it was something over 18 percent. It is hard 
to go back beyond 1962, but somebody actually did it for 1938. 
So we are now at 1.5, 1.7 percent, something like that.
    Chairman Sessions. And what does that say about the appeals 
that occur? I suspect that a number of the appeals are of 
agreed upon disputed questions that arise short of a trial, 
which presumably should be somewhat easier for the court of 
appeals to deal with than having to read hundreds of pages of 
transcripts and ten different issues raised on appeal.
    Mr. Galanter. Yes, I think it is true. The portion of 
appeals that are based on tried cases has been declining.
    Chairman Sessions. It would have to be down. According to 
your numbers, if it goes from 11 percent to about 2, that is 
about four-fifths down. But the appeals are not down that much, 
so the appeals are coming through some mechanism.
    Mr. Galanter. That is right, through non-trial dispositions 
of various kinds.
    Chairman Sessions. Summary judgments?
    Mr. Galanter. Summary judgments, motions to dismiss, et 
cetera.
    Chairman Sessions. Judge Steele, do you have any thoughts 
about that chart?
    Judge Steele. I think it is essential to know whether we 
are counting trials or defendants because I have noticed a 
decline in the number of multi-defendant cases over the past 5 
years. We are not getting the big drug importation cases in our 
district like we used to. So we are trying more single 
defendants. Back in 1990, we tried a lot of multi-defendant 
cases and that inflated the numbers. We may not be looking at 
the right information to make a decision.
    Mr. Galanter. Could I just add that in the large study that 
I am submitting here, there is one point at which we take all 
the criminal cases and divide them into drug, violence and 
fraud cases. The non-drug categories follow the same path of 
fewer and fewer trials as the drug ones. So there doesn't seem 
to be a big subject matter difference in this decline.
    Chairman Sessions. You have to be careful, but I distinctly 
remember as a United States Attorney when the sentencing 
guidelines were passed that there were the most egregious, 
awful predictions of no settlements and every case would go to 
trial and the system would collapse. Well, it appears in one 
sense that the real decline in the cases began with the 
sentencing guidelines.
    Mr. Galanter. Oh, yes.
    Chairman Sessions. Every situation is different, but if you 
go to trial and a judge could give you 25 years or probation 
and you weren't sure what the judge was going to give and you 
knew what the prosecutor was recommending, you might as well go 
to trial sometimes. So knowing the range that you are likely to 
get has apparently caused people to feel easier about pleas.
    Judge Furgeson, your formulation takes into account the 
filings, regardless of whether it reaches trial, and a lot of 
cases sometimes are even voluntarily dismissed, consolidated, 
or simply disappear when the plaintiffs never follow through on 
their cases.
    Would it be more accurate to base your recommendations on 
the number of cases that are ultimately decided by a judge or 
disposed of by the court?
    Judge Furgeson. That is a good question, Mr. Chairman, and 
I would just somewhat talk to you about my experience, and I 
would welcome Judge Steele's experience, too. I find most of 
the filings that come into court initially take some amount of 
judge time. Even if there is a settlement somewhere down the 
line where it just goes off your docket, it takes some amount 
of judge time.
    Also, it is very difficult sometimes--and that is why we 
re-did our weights--to take into consideration how much 
management time or effort needs to be spent in particular 
cases. When we re-did our case weighting, we found that complex 
civil cases like patent cases, for example, were beginning to 
take more time for a judge than other cases.
    So we do try to take into consideration the fact that some 
cases will disappear from your docket and take very little 
time, and we do that through the effort to weight cases. Just 
to give you an example, student loan failure cases almost take 
no time at all. They will hit the docket and they will take 
almost no time at all. Those cases are weighted almost with a 
minuscule weight, very little weight at all. On the other hand, 
a patent case will hit your docket and take a lot of time and a 
lot of effort.
    So we try to take into consideration the problem of filings 
and how different cases resolve themselves through the case 
weight process. That is a process that went through just about 
3 years ago. We took over 300,000 court filings involving more 
than 100 judges and we went through this process of looking at 
the cases and trying to determine how better to weight them 
through the process. So it is true that some cases take much 
less time than others, but we tried to handle that through the 
weighting process.
    Chairman Sessions. It strikes me that, as Professor 
Galanter proposed, it has become more of a challenge to a judge 
to manage. Some judges use magistrates more effectively than 
others, but managing those cases--and sometimes you have a 
crisis not where the caseload is particularly grievous, but it 
may be because the judge is not a good manager. So should the 
taxpayers be concerned that they are rewarding poor management 
or lack of hard work by filling judges where there is more of a 
backlog?
    Judge Furgeson. Well, I appreciate that concern. The 
judiciary does a great deal to help judges with management. Of 
course, some judges come in from the practice. Some have been 
State court judges. Some, like Judge Steele, have been 
magistrate judges.
    I am very impressed with what Judge Steele says about his 
management of cases and how the magistrates and the district 
judges work in his court. But I have a sense, Mr. Chairman, 
that through our efforts at education and commitment that we do 
have a judiciary that by and large manages their dockets and 
their cases well. I certainly do have that sense.
    Chairman Sessions. Well, I think most do, but some are 
really good at it.
    Judge Furgeson. Oh, there is no question.
    Chairman Sessions. And a well-managed courtroom can do 
remarkable things, I think. We are just asking those questions 
because I think it is important to do so.
    While we have had an increase in case filings since 1990, 
since 2000, I believe, we have had a 2.6-percent decrease in 
civil filings. You don't dispute that?
    Judge Furgeson. No, sir. That is correct. The criminal side 
of the district bench is where the increases come from.
    Chairman Sessions. Several judges testified before our 
Subcommittee when Chairman Grassley chaired this Subcommittee 
and they argued that a mechanical formulation is not the right 
way to decide the number of appellate judges, particularly.
    Fifth Circuit Judge Higginbotham testified that a 
formulation indicating the need for 28 judges on the Fifth 
Circuit, quote, ``simply defies common sense and lacks 
credibility,'' close quote, Judge Furgeson, particularly since 
the majority of those sitting on the Fifth Circuit opposed any 
additional judges.
    The Eleventh Circuit has one of the highest caseloads in 
the country--I believe the highest--
    Judge Furgeson. It does.
    Chairman Sessions [continuing]. As does the Fifth, higher 
than the Ninth. They want seven new judges and we are prepared 
to consider giving them to them. But neither one are asking for 
more judges because they believe they could lose the uniformity 
and collegiality.
    So let me ask you, Judge Furgeson, is it wise to recommend 
additional judgeships when the court does not want them?
    Judge Furgeson. It is certainly not wise.
    Chairman Sessions. The 12 appellate judges that you 
recommend are not in those circuits?
    Judge Furgeson. They are not in Fifth and--
    Chairman Sessions. Well, then, how come we are rewarding 
those who work less--
    Judge Furgeson. Well, I am glad you ask that question.
    Chairman Sessions [continuing]. And not saluting those who 
do more?
    Judge Furgeson. First, let me say that one of my favorite 
judges is Judge Higginbotham. He is a bright and shining star 
on the Fifth Circuit and a remarkable judge and a remarkable 
person.
    I think what does happen, Mr. Chairman, is that different 
regions of the country develop different court cultures. In 
fact, there are different cultures within the bars of different 
regions of the country. What we do by asking the judges first 
to initiate these requests is we ask them if this is what they 
want to do.
    It is true that neither the Eleventh nor the Fifth have 
asked for new judges, and it is true that they carry incredibly 
heavy workloads. I think some of it has to do with the fact 
that--and you have mentioned it and I am sure Judge 
Higginbotham mentioned that there is a great interest in 
collegiality; that you need to keep courts small, especially 
appellate courts, to develop that kind of collegiality.
    There is also a strong view--and it is held in different 
degrees in different regions, but a strong view that the 
Federal court should not grow very much. And I think that is a 
sense among all Federal judges that we don't want to grow hurly 
burly or for growth sake, but there are sort of different views 
about where that cut-off is, especially in the courts of 
appeals.
    I will just give you an example. For instance, the Second 
Circuit, the circuit of Senator Schumer, has asked for new 
judges and we have certainly concurred with that request. The 
Second Circuit, along with the Ninth, is really under siege 
right now with immigration appeals, and those two circuits are 
dealing in a much more thorough way and comprehensive way with 
a heavier immigration docket than any of the other circuits in 
the United States.
    So we certainly see a real up-tick in cases for the Second 
and the Ninth, especially because of immigration issues. That 
is why, for example, we certainly concur with the request of 
the Second and Ninth Circuits for more appellate judges.
    Chairman Sessions. I will recognize Senator Schumer, and I 
am glad he was able to do with us. I would just note that 
Senator Grassley introduced today, and I cosponsored a bill to 
eliminate the 12th seat on the D.C. Circuit. You all haven't 
recommended eliminating any judgeships, I see, but its caseload 
was about one-fourth the average of the others, certainly one-
fourth of the busy circuits, and it continues to decline.
    Do you agree that we should eliminate one seat there?
    And I will say, Chuck, that the President and his crew 
wants to appoint another judge there and the only reason, I 
guess, they haven't is because Senator Grassley and I have 
objected. But I think we either ought to take off the books or 
fill it. So what is your thought about whether we need another 
judge for the Twelfth Circuit, at $1 million a year, 
approximately?
    Judge Furgeson. For the D.C. Circuit, sir?
    Chairman Sessions. Excuse me. The D.C. Circuit.
    Judge Furgeson. Instead of giving my opinion, Mr. Chairman, 
could I say that an argument can certainly be made that the 
additional 12th seat on the D.C. Circuit should not be filled 
at this time, given the workload of that circuit. I think a 
very good argument can be made to that effect.
    Chairman Sessions. Senator Schumer is a lawyer with great 
skill and expertise, and we appreciate his leadership on this 
Committee. I will recognize you at this time.
    Senator Schumer. Well, thank you, Senator, and I want to 
apologize to you and to our witnesses. It is the last week of 
session, so it is a busy week. I am on the Finance Committee. 
We have the tax bill on the floor and it has been busy, so I 
apologize.
    I am going to give a few brief remarks and leave it at 
that, but I want to thank you--
    Chairman Sessions. Chuck, the professor had a train to 
catch.
    Don't feel bad about leaving whenever you need to, 
Professor Galanter.
    Mr. Galanter. Thank you.
    Chairman Sessions. Thank you very much for your--
    Senator Schumer. Are you taking Amtrak, Professor? We are 
trying to help you.
    Chairman Sessions. We appreciate the train that comes 
through Mobile at 2 a.m. going east and 3 a.m. going west 3 
days a week.
    Senator Schumer. I hear Mobile is hopping at 2 a.m. and 3 
a.m.
    I want to thank you for having this hearing. I thank all of 
our witnesses for being here. It is very important in enacting 
laws to protect the rights of our citizens that we equip the 
lower Federal courts with sufficient judges to ensure that 
those rights are not empty rights.
    I often used to argue--I am a tough on crime guy and what 
was creating such problems in terms of the courts and people 
not being sentenced--it wasn't so much the ideology of the 
judges, but in New York State we had a lot of judges who hardly 
did any work. In those days, back in the 1970's and early 
1980's there was much less of an administrative court structure 
and it was more or less up to the judge, and they just let 
defendants delay and delay and delay and delay, and they would 
being arrested for new crimes. I guess we didn't adjudicate 
whether they actually committed them.
    So we need to have courts that are efficient. We need to 
have enough judges. This is all very important. At the same 
time, this Congress is particularly aware in recent months of 
the need to control spending. In 1993, the Federal Judicial 
Center estimated an average of $18 million spent per judgeship 
over the lifetime span of a judge's tenure on the circuit 
court. That was 1993, so obviously the number is considerably 
higher now.
    When Senator Grassley was Chairman of the Subcommittee in 
1999, he concluded--and Senator Grassley would be very good at 
this; he is very thorough and he is frugal, and at the same 
time cares about justice--that Congress should expend funds to 
fill an existing vacancy or create a new judgeship, he said, 
only after a comprehensive determination has been made that 
filling a vacancy or creating a new judgeship is absolutely 
essential for the court to properly administer justice.
    I, too, believe we have a duty to work with the Federal 
judiciary to find ways to improve efficiency. There may be ways 
to get the work done without creating a large number of 
additional judgeships, and we ought to try that first. Maybe it 
will work, maybe it won't.
    Here are some things we could do. We could help the courts 
expand and strengthen their mediation and settlement programs. 
We could explore more effective uses of staff attorneys and law 
clerks. We could improve case management systems and 
technology. All of this has gotten better over the last decade, 
but there may be a ways to go.
    Another way we can increase efficiency is to fill the 
existing vacancies, especially in the circuits and districts 
where the Judicial Conference has recommended additional 
judgeships. Two weeks ago, I was proud to sit here and nominate 
two very talented nominees--Joseph Bianco and Eric Vitaliano, 
who I recommended the President appoint to the Eastern District 
of New York. That is one of the districts the Conference has 
identified in need of judgeships. I am sure that these two 
nominees will be easily confirmed, and that is going to help.
    But there are still more than 30 vacancies in which the 
President has yet to name a candidate, many of which are in 
circuits and districts identified by the Conference as under-
staffed. The Conference, for instance, recommended seven in the 
Ninth Circuit; there are three vacancies there.
    In the Central District of California, four additional 
judgeships were recommended. We have five present vacancies 
without a nominee. It is not the Congress's fault; it is really 
the President in not nominating. In the District of New Jersey, 
the Conference recommended an additional judgeship. We have two 
vacancies now. So we could move the process along and we ought 
to get the White House to fill the vacancies with a little more 
speed.
    Finally, before I wrap up, I would like to say a word about 
the politics in the process. Judge Wilkinson, the former Chief 
Judge of the Fourth Circuit, a man I don't agree with on a lot 
of legal issues, in his law review article ``The Drawbacks of 
Growth in the Federal Judiciary,'' points out some of the 
incentives, legitimate and illegitimate, to create new 
judgeships.
    He writes that, quote, ``There may be pressures on elected 
officials to shift the philosophical outlook of the Federal 
judiciary by adding more judges of the President's party.'' And 
I would just remind my colleague we had four vacancies on the 
D.C. Circuit that were not filled for years when President 
Clinton was nominating and the Senate was controlled by 
Republicans. And we didn't do that; we filled vacancies once 
President Bush came in. So I probably agree that that 12th 
vacancy should not be filled, but these vacancies were existing 
a very long time and I would say you could make a plausible 
argument that politics had something to do with it.
    So, Mr. Chairman, of course, politics is an illegitimate 
reason to create new judgeships, and you and Senator Grassley 
and other Republican members of the Subcommittee, as well as, 
of course, our Chairman--we will apply the same principles in 
reviewing the Judicial Conference's request for new judgeships 
as we did when President Clinton was in the White House.
    I thank the Chair. I am not going to ask questions. I will 
submit in some writing because I have got to get back to the 
other matters at hand, but I want to thank each of our 
witnesses--Judge Furgeson, Judge Steele and Ms. Spalter, as 
well as Professor Galanter. Thank you all for being here.
    Chairman Sessions. Senator Grassley chairs the Finance 
Committee and all of us feel this pressure on cost. We want to 
do the very best for justice that we possibly can, but 
everybody in the world that I know is not being asked to do 
more for less, but actually is doing more for less, and that is 
a good thing.
    We have, of course, developed procedures through word 
processing that can be recalled from years before, rulings on 
certain matters. We have by and large two law clerks per 
district judge, three per circuit judge, I believe. So we have 
done a lot of things well.
    And then I believe the judges deserve credit for seeing the 
decline in trials. I don't think that has occurred just totally 
without the judges' participation. I think judges are working 
harder to encourage disposition of cases. Judge DuBose, a 
magistrate judge, was here yesterday, and I asked her about the 
magistrate's role in case disposition. She volunteered that 
Judge Steele, when he was a magistrate judge, in every single 
meeting with the parties asked whether or not he could help 
them facilitate the settlement of the case.
    Do you still do that, Judge Steele?
    Judge Steele. I do, yes.
    Chairman Sessions. And do you think that sort of breaks 
down some of the hostility and can increase the likelihood of 
settlements?
    Judge Steele. Certainly, I think it does, and I think the 
offer of a magistrate judge to help settle a case in many cases 
will--
    Chairman Sessions. When you say offer, you say to act as 
sort of a mediator?
    Judge Steele. Yes, act as a settlement conference judge or 
a mediator.
    Chairman Sessions. Ms. Spalter, do you think that Federal 
judges are doing a better job from the lawyer's experience in 
facilitating mediation and settlement of cases?
    Ms. Spalter. I don't think there is any doubt about that, 
Mr. Chairman. I think you see more and more of that everyday. 
One, I think it is a good thing and the lawyers appreciate it, 
but I think there is part of it that is done because the 
caseload is so large that if we tried every case, you know, 
where would we be? We would never have the ability to get 
through the process.
    Chairman Sessions. You are right about that.
    Judge Steele, it does take some time from a judge's point 
of view to help facilitate settlement. I mean, it is not as if 
you don't spend any time on that subject, I guess it is fair to 
say.
    Judge Steele. Well, it, of course, takes time in discussing 
the issues with the lawyers and to find out what it is that is 
really at stake and where the hot-button issues are that need 
to be resolved. And then if a magistrate judge is conducting a 
settlement conference, it takes a considerable amount of time 
from that judge to actually hold the conference.
    Chairman Sessions. With regard to magistrate judges, Judge 
Steele, in your experience, do you have any indication of how 
many other districts fully utilize the magistrate judges, and 
do you believe that that can lessen the caseload burden on the 
district judges if they are fully utilized?
    Judge Steele. To answer the first question, I don't have 
the numbers. I am sure the Administrative Office could produce 
those if requested. In answer to the second part of the 
question, yes, sir, the experience in the Southern District of 
Alabama was exactly that. By full utilization of magistrate 
judges, we were able to reduce the pressures and the workload 
of, at one time, our one district judge so that that judge 
could do the things that he needed to do, which was to try 
criminal cases and some civil cases, and actually be more 
effective in his case management.
    Chairman Sessions. But there is a privilege all Americans 
are given in Federal court that the fundamental issues are 
decided by an Article III lifetime-appointed Federal judge. Can 
you tell us what those basic standards are, what a magistrate 
can do and what a magistrate judge is not allowed to do?
    Judge Steele. Well, the jurisdiction of the magistrate 
judge is defined by 28 U.S.C. Section 636 and it allows a 
magistrate judge to do just about anything a district judge can 
do, except try criminal felony cases and sentence in a felony 
case. A magistrate judge is allowed to try civil cases, with 
the consent of the parties, under 636(c).
    Chairman Sessions. But only with consent of the parties?
    Judge Steele. With consent, right, but the limits of the 
jurisdiction are defined by that statute and it was our intent 
not to expand the jurisdiction of the magistrate judges in our 
district, but to fully utilize them within the limits of that 
Congressionally given jurisdiction.
    Chairman Sessions. Now that you will be assuming that Judge 
DuBose's confirmation will go forward--and she also was a 
magistrate judge, leaving you a vacancy in the magistrate 
judges' positions--I understand that you have made a decision 
about filling that vacancy. Would you share that with us--or 
the court has?
    Judge Steele. Well, the decision was not to fill the 
vacancy, and the decision was based on a number of factors, 
most of which are statistics-driven. We have experienced a 
decline in filings in our district and the crisis that we faced 
back in the mid-1990s when we went to four district judges is 
no longer upon us. So without the crisis, without the 
justification in terms of numbers, we didn't see fit to request 
that that position be filled. We want to leave it open, of 
course, in case our numbers come back up. And if they do and if 
we can justify it at that time, then we will ask that it be 
filled.
    Chairman Sessions. Well, I thank you for being frugal with 
the taxpayers' money. Some may have found otherwise.
    Judge Furgeson, do you have any thoughts about how many of 
the districts are fully utilizing the magistrates and how many 
are not? What about yours?
    Judge Furgeson. I can only talk about my district, but in 
my district I think the district judges see the magistrate 
judges as their partners in moving the dockets, and the 
relationship between the magistrate judges and the district 
judges is a very close and cooperative one. I would be 
surprised if that weren't the case through most of the United 
States. Magistrate judges are highly qualified. They are 
selected through a very careful process.
    Chairman Sessions. Would you point that out? I mean, it is 
a non-political review by the judges of the district court, is 
that not correct?
    Judge Furgeson. Yes.
    Chairman Sessions. Will you tell us how that works, 
generally?
    Judge Furgeson. Certainly. What happens is once a vacancy 
comes up, a Committee is appointed to screen applicants, and it 
is normally a blue-ribbon Committee selected by all the judges 
in the district. That Committee then takes applications. The 
applications come in, and we have had vacancies recently where 
30, 40, 50 people have applied for the job.
    Then the Committee does a very thorough job. This is all 
volunteer work by a bar committee, also with lay 
representatives. After they finish, they normally give a 
recommendation. And, Judge Steele, you can help me with this. I 
think they rate the top five people--
    Judge Steele. Top five prospects.
    Judge Furgeson [continuing]. In order of preference. My 
experience has been that almost every time the district judges 
accept the number one nominee and that person, at least I have 
certainly found in my district, is normally a very accomplished 
either lawyer or State judge who is every bit the judicial 
officer of our district judges. And we embrace our magistrate 
judges and, as I say, make them full partners in our effort.
    Chairman Sessions. Well, that certainly was not the role of 
the magistrate judge in the 1970s when I first was an Assistant 
United States Attorney. They were pretty much part-time jobs, 
often away from the main courthouse. They handled pre-trial 
criminal cases and motions, and set bail and things of that 
nature. But it has been a real revolution and I do think that 
Congress has a responsibility to ask before we fill a vacancy 
if perhaps that district could perform better if they utilized 
the magistrates completely.
    A trial is a big thing. I think we have got to look hard at 
these numbers, what they really mean, and I do think that there 
is a fear on the part of the judiciary that if they don't ask 
for enough judges, we are probably going to give half, so you 
want to be sure you ask for enough, on the theory you are not 
going to get all you ask for. And you probably should start 
early because the sooner you start, it might be years before it 
ever gets filled and then caseloads go up and down.
    But this decline in the number of cases actually going to 
trial, I do think makes a difference. Does that argue against--
how many--
    Judge Furgeson. Sixty-eight.
    Chairman Sessions [continuing]. Sixty-eight judges, Judge 
Furgeson?
    Judge Furgeson. Mr. Chairman, I don't believe it does 
because of the process we use. Remember, first, we weight the 
cases, and so we look at people who have elevated caseloads 
based upon the weighting factor, so we are comparing apples and 
apples. Then we ask the judges themselves to fill out a very 
comprehensive survey, and in that survey they have to talk 
about utilization of magistrate judges, utilization of visiting 
judges, utilization of senior judges. They have to go through 
and give us that information.
    After that is initiated, it goes to our statistics 
subcommittee. They scrub it. It then goes to our judicial 
councils. And as you know, our judicial councils are populated 
by half appellate and half district judges, and they take a 
very careful look at those. Appellate judges are very careful 
about especially analyzing what district judge requests are. 
Then it comes back to the subcommittee, then to the full 
committee, and then to the Conference.
    As I say, our goal is not for the Federal judiciary to grow 
at a rapid rate. Judge Steele is here and he can give you his 
opinion, but my opinion is the Federal judiciary thinks that we 
have a unique position in the Constitution. We want to be 
careful about the number of judges that we have in the Nation. 
We certainly don't want to have any more than we absolutely 
need.
    I think there is a feeling in the judiciary that to add 
lots of judges in the system over time could diminish the 
special nature of the courts, and so I think we want to be very 
careful. That is why I think, for example, that you find a 
circuit like the Eleventh Circuit or like the Fifth that says 
we are carrying a very heavy workload, but we don't want to ask 
for judges.
    I sit on a border court. We probably just on weighted case 
filings could ask for, I don't know, three, four or five more 
judges. We haven't asked for any. Our goal, again, is that we 
believe that it should be a very careful process and we have 
just decided we are going to stay where we are.
    So I do believe our system of looking at formulas and then 
looking at conditions on the ground and scrubbing through a 
very careful vetting process brings us to a good number.
    Chairman Sessions. Judge, when you see those numbers like 
600 at the Eleventh Circuit or 500 for the Ninth--this is for 
the circuit now--those are weighted appeals, or not?
    Judge Furgeson. I am glad you made that differentiation. We 
have weighted numbers on the district bench. We have talked to 
our appellate judges about how they think is the best way to 
look at their cases and the only adjustment they make in raw 
case numbers is with pro se cases. A pro se case is the 
equivalent of one-third of a case.
    In other words, we will take all the pro se cases in a 
circuit on appeal. To make this easy, say there are 300 of 
them. They will count as 100 cases, and that is the only kind 
of adjustment we make at the appellate level and that is 
because in talking to our appellate judges, at least at this 
point, they think those are the only kind of adjustments that 
should be made in their caseload.
    Chairman Sessions. Well, obviously, that is not correct, as 
we both know.
    Judge Furgeson. I beg your pardon?
    Chairman Sessions. Obviously, that is not an accurate way 
of doing business because you take a big asbestos class action 
or some of these cases, it should take a lot more, I would 
think. But I did notice that the Ninth Circuit is counting 
6,000 immigration cases, that they have had an increase of 
6,000 over the last so many years, but surely those are not as 
complex as many of the other cases. Surely, they are raising 
the same issues repeatedly there. Wouldn't you agree?
    And as a practical matter, surely, on average, each case 
would take less time.
    Judge Furgeson. Let me just put it this way, Mr. Chairman: 
I am a district judge. We are--
    Chairman Sessions. I am asking you to judge the circuit 
judges. You have got a real opportunity.
    Judge Furgeson. That is right. Thank you, Mr. Chairman, on 
the record. We are guided to a great extent by what our 
appellate judges have told us. Now, I would think that you are 
exactly right that there are appeals and then there are 
appeals. What our circuit judges tell us is it all balances 
out.
    Chairman Sessions. Well, that could be true.
    Judge Furgeson. That is what they tell us.
    Chairman Sessions. But in the Ninth Circuit, I think, as I 
recall from our previous hearing on whether it should be 
divided, the other cases are down. The increase is entirely 
immigration appeals. So I think that suggests less of a crisis.
    They have a high caseload. You mentioned the Ninth Circuit. 
They are over 500 cases, where I think the Eleventh is 640 and 
the Fifth had more cases than the Ninth.
    Judge Furgeson. I have got those numbers for you if you 
would like them for the record.
    Chairman Sessions. If you have those numbers--
    Judge Furgeson. I do, for the circuits.
    Chairman Sessions. So they have a heavy caseload and we are 
trying to move legislation that would give them some new 
judges.
    Judge Furgeson. Adjusted filings per panel--the Second 
Circuit, which is asking for two, right now has 1,164 cases. 
The Ninth Circuit has 1,225 cases. You have mentioned the 
Fifth, which has adjusted filings per panel of 1,227 cases, and 
the Eleventh which has adjusted filings per panel of 1,239 
cases.
    Chairman Sessions. They are pretty close together, 
according to those numbers.
    Judge Furgeson. That is correct.
    Chairman Sessions. That is per panel?
    Judge Furgeson. Per panel, yes, sir.
    Chairman Sessions. Well, the numbers we were using were per 
judge, I think.
    Judge Furgeson. OK, and that would explain the difference.
    Chairman Sessions. The 600, 500 range for those three 
circuits. I don't know what the level is at the Second.
    Well, on the weighting, Judge Steele said he was on a 
panel, he told me earlier, on which they discussed the 
weighting and everybody had different ideas, but nobody came up 
with anything any better. Is that a fair summary of it, Judge?
    Judge Steele. I think so. I was a representative for my 
district for the Eleventh Circuit, and I think we had 
representatives from every district court in the Eleventh 
Circuit that met in Atlanta and participated in that weighting 
program. It was an open discussion about how cases should be 
weighted and I think the bottom line was that they produced a 
result which could be relied on. I think that was the bottom 
line.
    Chairman Sessions. There is no serious concern by a large 
number of judges that the weighting system is clearly 
inaccurate or fails to meet its goals?
    Judge Steele. I don't sense that there is. That is my take 
on things.
    Chairman Sessions. Judge Furgeson, do you have any thoughts 
about that? If the weighting system is wrong, then we have got 
a difficult problem.
    Judge Furgeson. I agree with Judge Steele and I am glad 
Judge Steele participated in that process. We had, as I said, 
over 100 judges and we were looking at over 300,000 different 
events in our court system.
    You know, to some extent the third branch is like the first 
branch, Mr. Chairman. We do get disagreements from time to time 
among each other, but I think there is a generally broad 
acceptance in the district courts of the weighting system and 
the legitimacy of the weighting system. That is at least my 
view.
    Chairman Sessions. There is just no doubt about it. I mean, 
personally, we had just two judges and one was newly on the 
bench and within a few weeks he had to try a 7-week trial that 
I tried, and 2 weeks of full-time motions before. A big trial 
has got to be weighted more than a guilty plea or a small 1-day 
trial.
    Do you think they fairly rate these big cases that are 
really extraordinary that can affect 6 months or maybe even a 
year of a judge's time?
    Chairman Sessions. There is no question about it, and I am 
sure Judge Steele has the same experience. I have been in trial 
in one case for 11 weeks and it really wrecks your docket to be 
in a trial like that. Again, over time, more complex cases 
require that more complex trial attention, and I do think that 
is considered in the weighting formulas. I think it does 
balance out over time.
    Chairman Sessions. Well, you could see a few more bigger 
cases, like class action that we passed that will have more of 
those going into Federal court, which I think is perfectly 
appropriate in these cases, as we designated them, that are 
utterly interstate. I mean, they involve perhaps every State in 
America. Any ruling rendered would impact the entire credit 
card system of this country or whatever it might be. I think it 
is appropriate.
    I know the judges sometimes say, well, don't give us these 
cases. But I think those are good cases to go to Federal court, 
and you may see us give you more of that as time goes by. I 
believe in States' rights and their authority to handle the 
criminal cases, the murders, the rapes, the robberies that 
occur in their communities. But some of these matters involve 
companies that could be subjected to 50 different legal tests 
or whatever. So I think you could see more of that in the 
future.
    Ms. Spalter, you mentioned increases in numbers of filings. 
I thought I heard you say from 1990, but I am not sure. What 
was the basis for your statement that the number of filings had 
increased?
    Ms. Spalter. Actually, it comes from the Judicial 
Conference's report, and I think I heard Judge Furgeson earlier 
say about the same number, about 40 percent.
    Chairman Sessions. From 1990?
    Ms. Spalter. From 1990.
    Chairman Sessions. Apparently, it peaks around 2000 and has 
decreased in some areas since then.
    Well, this has been a very interesting hearing. It is a 
matter that we need to take seriously. Perhaps this Committee 
can figure a way to be affirmative in recommending to the full 
Senate how we should proceed, what vacancies should be filled 
and in what order. But this is the political branch, I have to 
tell you, and Senators are very clever sometimes. If all you 
need to do is approve a Federal judge for them to get their 
vote, they might get a Federal judge approved, which we would 
like to reduce as much as possible.
    And, frankly, as you can see from the number of judges that 
we have added, we haven't had too many, and I have felt that 
Arizona, Southern California and Southern Florida have clearly 
demonstrated a surge in case filings in the last 15 years and 
they have gotten most of the judges. Most of the judges that 
have been added have been in those districts that I think have 
the most serious need. There may have been some aberrational 
decisions made, but fundamentally most of the resources that we 
have put out, I think, have gone to districts in need.
    Senators Grassley, Leahy and Hagel have statements that 
they have submitted for the record, and we will keep this 
record open for 1 week for additional submissions. And if you 
chose to submit anything during that time, you could.
    Senator Grassley wanted to be here. He takes an interest in 
this. If he had been here, he might have asked you about your 
trips and your vacations. His theory was if you had so much 
work to do, why do you take these trips? But he is a patriot 
who has courts as one of his highest interests. He is managing 
the tax bill on the floor right now. Otherwise, he would be 
with us.
    Do you have any other comments you would like to add at 
this time?
    Judge Furgeson. Could I ask you a question, Mr. Chairman?
    Chairman Sessions. Yes, Judge Furgeson.

    Judge Furgeson. There was some controversy--that may not be 
the right word--there was just some question about how we count 
trials. I take it, though, that that is not a major issue here 
and there would be no necessity here for me to submit any 
papers on that. If you needed some more information--I just 
wasn't clear that the professor was absolutely correct about 
how we count trials, for example, if you have a multi-defendant 
case, if you count every defendant or not. So if there is no 
necessity of clearing up that little dispute, I won't make any 
submission on that.

    Chairman Sessions. Well, we would be delighted if you have 
anything to offer on it. It does appear that you have more than 
a 50-percent decline in actual trials in criminal, and maybe 
more than that in civil, which does impact, I believe, how we 
evaluate the number of judges that should be added to the 
judiciary. But feel free to offer anything and you are not 
obligated to.

    Judge Furgeson. And I do agree with the professor's overall 
point that there is clearly a decline in trials, and so this 
would be probably just a minor issue. And with your permission, 
I won't add anything to that.

    Chairman Sessions. Would you like to briefly speculate why?

    Judge Furgeson. I would be interested to hear my other 
panelists about that. I think there are several reasons. The 
Supreme Court had a trilogy of cases back in the early 1980's--
I think it was the early 1980's--where they talked about a 
different view toward summary judgments.

    When I first started practicing, it was like nobody grants 
summary judgments; you just don't grant them. The Supreme Court 
in the Celotex case and some of those other cases said, no, 
summary judgments are not disfavored; if there is an 
appropriate failure of proof, you need to grant summary 
judgments. And I think after that Federal courts began to grant 
more summary judgments. And those, by the way, are the basis 
for, as you suggested, some of the appeals that go up in the 
circuit.

    I think, too, there has been a movement toward arbitration 
and mediation. Many large companies now when they sign 
contracts with each other put in binding arbitration 
requirements, and so that takes the cases out of the court.

    Often, I will get a case that will be filed in my court and 
the other side will say, wait a minute, there is a binding 
arbitration clause in that case. So I will have to then stay 
the case, require arbitration, and then enter an order 
approving the arbitration after it is finished. That means no 
trial under any circumstances. So I think those are two of the 
reasons why.

    There is a different mix of cases now. You know, cases are 
sometimes more complex and sometimes it is very difficult for 
those people to finally take the risk of going to trial in a 
really complex case. And sometimes it just depends on the 
jurisdiction. I used to handle the Pecos division way out in 
the middle of nowhere in Texas. I tried 25 or 30 jury trials a 
year out there. I mean, we were trying them right and left. I 
get to San Antonio and I am lucky to get, you know, ten jury 
trials a year. Sometimes, it has to do with the culture of a 
particular jurisdiction. So it is several different reasons and 
my panelists may have some other ideas about that.

    Chairman Sessions. Those are interesting thoughts. I think 
all are very relevant.

    Judge Steele, do you have anything to add?

    Judge Steele. I would agree with Judge Furgeson, and I 
might add also that I think better case management by district 
judges and by the court in its entirety is also responsible for 
a reduction in trials. I think we see that. We have early 
intervention in cases, or earlier intervention in cases with 
regard to settlement conferences, and just the fact that the 
cases are more closely managed and the discovery issues are 
resolved early on so that there is not this continuing battle 
about what is at stake in a case. The parties are able to see 
what the issues are and focus on the issues much earlier and 
then resolve them themselves in most cases.

    With regard to criminal cases, I agree with you that I 
think the sentencing guidelines had a substantial effect on the 
number of criminal cases that would go to trial. But I also 
would be interested to see the long-term effect of the Booker 
v. Fanfan decision on that because I think in the Southern 
District of Alabama we are seeing more criminal cases go to 
trial right now, for a couple of reasons, but I think the 
defendants are more willing to roll the dice if they think they 
can later convince a judge that you don't have to follow the 
guidelines now and you can give me a break on the sentence. So 
I would be interested to see the long-term effect of that 
decision.

    Chairman Sessions. I wouldn't be surprised about that. I 
won't ask you to comment, but one thing, I think, that occurred 
that almost never occurred in State court but I believe is 
occurring a lot in Federal court is partial summary judgment, 
where a judge will say, well, those causes of action--three of 
the six you have got are no good, there is no basis for those; 
we will go to trial on only those three.

    Do you think that sometimes, Judge Steele, would facilitate 
settlement of the case?

    Judge Steele. Absolutely, and I have seen it time and time 
again where that decision by a district judge to eliminate 
certain claims forces settlement. You know, the parties start 
talking a little more seriously about what is at stake.

    Chairman Sessions. As long as a plaintiff still has dreams 
that they might prevail.

    Ms. Spalter, do you have any comments or thoughts on that?

    Ms. Spalter. I do, Mr. Chairman, if I might. I believe that 
one of the reasons we are seeing fewer trials is the rising 
costs of civil litigation. And it is interesting because I 
think part of the rising cost is attributable to the fact that 
it takes longer to get to trial and I think that is caused by 
the increase in the criminal cases, which, of course, 
statutorily require that they trump civil cases many times.

    In fact, I have heard anecdotally in traveling just in my 
short time so far as President of the Federal Bar Association 
stories like that. I heard one just recently where a division 
of a district is short-handed and so, in fact, some cases in 
that division end up being tried by a judge in the division 
here. For instance, it happened to be the inland empire of 
California, and then they may get a magistrate assigned from 
Los Angeles. Well, the client is going to pay for that.

    So there is a rising cost, in general, of this that is 
going to the clients, and I do think that rising cost then 
circles around and also is one of the reasons for the reduction 
in trials.

    Chairman Sessions. You know, there was a real concern about 
the time the sentencing guidelines--I know it was a concern in 
the Southern District of Alabama when they were short of 
judges, but my impression is the case data does not show 
delayed disposition of cases across the board. Are there any 
numbers on that? Does either one of you know that?

    Judge Furgeson. I do believe there are numbers and I think 
you are pretty much on. I don't believe nationwide there has 
been a big change from time of filing to time of disposition. 
Now, in some districts that may be different, especially 
districts which may get really heavily burdened with criminal 
cases. The Southern District of California would be one of 
them.

    Chairman Sessions. Well, these are all very important 
issues. I would say this with certainty and with the greatest 
respect: I believe we have a marvelous Federal judiciary. I 
think they work hard and I think they work their staffs hard. I 
think they produce justice as well as we can produce it day 
after day, and I believe, from the Administrative Office on 
down, they have been encouraged to manage better. Better 
management has allowed the judiciary to handle more cases than 
they ever have before, and we would really be in a crisis today 
had that not happened if we were still disposing of cases as we 
did 25 years ago.

    So we are interested in making sure that those districts 
that have the needs get them filled. We will be discussing that 
more and maybe we can get some done this year or next.

    Thank you so much. If there is nothing further to come 
before our Subcommittee, we will stand in adjournment.

    [Whereupon, at 4:49 p.m., the Subcommittee was adjourned.]
    [Questions and submissions follows.]

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