[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
----------
U.S. GOVERNMENT PRINTING OFFICE
48-828 PDF WASHINGTON : 2009
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]