[Senate Hearing 111-553]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-553
 
  RESPONDING TO THE GROWING NEED FOR FEDERAL JUDGESHIPS: THE FEDERAL 
                         JUDGESHIPS ACT OF 2009

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



                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 30, 2009

                               __________

                          Serial No. J-111-52

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

               SHELDON WHITEHOUSE, Rhode Island, Chairman
DIANNE FEINSTEIN, California         JEFF SESSIONS, Alabama
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland         LINDSEY GRAHAM, South Carolina
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
                Sam Goodstein, Democratic Chief Counsel
                  Matt Miner, Republican Chief Counsel



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     3
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California, prepared statement.................................   145
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   165
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     1
    prepared statement...........................................   202

                               WITNESSES

O'Neill, Lawrence J., Judge, U.S. District Court for the Eastern 
  District of California, Fresno, California.....................    10
Singal, George Z., Judge, U.S. District Court for the District of 
  Maine, Portland, Maine.........................................     7
Tjoflat, Gerald B., Judge, Eleventh Circuit Court of Appeals, 
  Jacksonville, Florida..........................................    12

                         QUESTIONS AND ANSWERS

Responses of Lawrence J. O'Neill to questions submitted by 
  Senator Sessions...............................................    22
Responses of George Z. Singal to questions submitted by Senators 
  Whitehouse, Sessions, Cardin...................................    27
Responses of Gerald B. Tjoflat to questions submitted by Senator 
  Sessions.......................................................    56

                       SUBMISSIONS FOR THE RECORD

American Bar Association, Governmental Affairs Office, 
  Washington, DC, statement......................................    63
Cooke, John S., Deputy Director, Federal Judicial Center, 
  Washington, DC, statement......................................    68
Federal Bar Association, Lawrence R. Baco, San Diego, California, 
  statement......................................................   142
Jenkins, William O., Jr., Director, GAO, Washington, DC, 
  statement......................................................   149
O'Neill, Lawrence J., Judge, U.S. District Court for the Eastern 
  District of California, Fresno, California, letter and 
  statement......................................................   167
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, 
  charts.........................................................   173
Singal, George Z., Judge, U.S. District Court for the District of 
  Maine, Portland, Maine, statement..............................   175
Tjoflat, Gerald B., Judge, Eleventh Circuit Court of Appeals, 
  Jacksonville, Florida, statement...............................   190


  RESPONDING TO THE GROWING NEED FOR FEDERAL JUDGESHIPS: THE FEDERAL 
                         JUDGESHIPS ACT OF 2009

                              ----------                              


                     WEDNESDAY, SEPTEMBER 30, 2009

                               U.S. Senate,
                     Subcommittee on Administrative
                                  Oversight and the Courts,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:31 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, Chairman of the Subcommittee, presiding.
    Present: Senators Whitehouse, Cardin, and Sessions.

 OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR 
                 FROM THE STATE OF RHODE ISLAND

    Chairman Whitehouse. All right. The hearing will come to 
order. We are cleared to proceed so as not to keep three such 
distinguished members of the judiciary waiting. I am going to 
make a brief statement, and then with any luck our Ranking 
Member will have arrived, and he can make whatever opening 
statement he wishes. If for some reason I get through my 
opening statement and he is not here, I think we will just 
swear in the witnesses and begin with the testimony and 
interrupt for the Ranking Member when he arrives. So if you are 
in the middle of enormously vital and important testimony and I 
interrupt for the statement, please take no offense.
    One of our primary responsibilities here on the Senate 
Judiciary Committee, and particularly of this Subcommittee on 
Administrative Oversight and the Courts, is to make sure the 
Federal judiciary has the tools and the resources it needs to 
perform its crucial role in our constitutional structure. 
Today's hearing takes up that responsibility by considering the 
need for Federal judgeships in district and circuit courts 
across the country. We all recognize the importance of the 
Federal judiciary in the proper functioning of our democracy 
and we all want to ensure that the courts have the resources 
they need to protect our liberties and administer justice.
    The confirmation of Justice Sonia Sotomayor to the United 
States Supreme Court was the focus of great attention and much 
media coverage. That is understandable given the importance of 
our Supreme Court, but we must never forget that most of the 
judicial business in our Federal system never gets anywhere 
near the Supreme Court. Every day, Americans from all walks of 
life come to Federal district court to vindicate their legal 
rights. The rule of law depends on the prompt and proper 
resolution of those cases. Justice delayed is often justice 
denied, so district courts must be able to process cases in a 
timely manner.
    Similarly, swift redress from a circuit court is not a 
matter of politics or controversy, but of simple justice and 
effective government. Courts must have resources adequate to 
meet their high purpose. We in Congress must ensure that they 
do not lack the tools for their constitutional role.
    The Federal Judgeship Act of 2009, which was introduced by 
the Chairman of the Judiciary Committee, Senator Leahy, would 
fulfill that responsibility. That bill reflects the 
recommendations made by the Judicial Conference in March of 
2009. It would be the first comprehensive judgeships 
legislation since 1990, nearly 20 years ago, a period which has 
seen significant expansion in the workload of numerous Federal 
courts. It provides for 12 new circuit court judgeships and 51 
new district court judgeships. These recommendations are, 
understandably, very similar to the 2007 recommendations of the 
Judicial Conference that passed out of Committee last year by a 
bipartisan vote of 15-4. The Federal Judgeship Act of 2009 
should expect similar support from both sides of the aisle. I 
hope that the Judiciary Committee will consider and pass it 
soon.
    The numbers underscore the need for action. On average, 
there are 573 so-called weighted filings in the district courts 
for which new judgeships are recommended, well above the 430 
weighted filings needed to trigger a judgeship recommendation 
by the Judicial Conference. For the six circuit courts where 
new judgeships are recommended, there are an average of 802 
adjusted filings per panel, well above the 500 adjusted filings 
per panel measure used for judgeship recommendations.
    Of course, the courts do not simply consider mere 
statistics in making their judgeship recommendations. They also 
are careful to consider all the resources available to a 
district or circuit court, including senior and visiting judges 
who can contribute to sharing the workload, and the use of 
magistrate judges within statutory limits. Given the care and 
conservatism with which they have been developed, the Judicial 
Conference's recommendations deserve the utmost consideration. 
It is telling, for example, that while 77 new judgeships were 
requested by courts across the Nation, the Judicial Conference 
has recommended only 63 judgeships to Congress.
    Congress has repeatedly put off dealing with the courts' 
growing workload. Now is the time to act, and I commend 
Chairman Leahy for his leadership on the issue. The Federal 
judiciary is a beacon of principle and justice to the rest of 
the world. We must keep it that way.
    Today we will hear from Judge Singal of the District of 
Maine who is appearing on behalf of the Judicial Conference and 
will explain the 2009 judgeship recommendations made by that 
body.
    We will also hear from Judge O'Neill of the Eastern 
District of California, a district facing an overloaded docket 
despite the best efforts of the active, senior, and magistrate 
judges. I know that this has been a particular concern of my 
colleague Senator Feinstein, and it demonstrates the kind of 
pressures put on judges and the delays facing litigants as 
workloads spiral out of control.
    Finally, we will hear from Judge Tjoflat, a judge on the 
Eleventh Circuit and its former chief judge. I welcome all the 
witnesses. I look forward to your testimony, and I thank you 
all for being here today.
    Since we do not have the Ranking Member present, let me 
first inquire if the distinguished Senator from Maryland, 
Senator Cardin, would like to make an opening statement in the 
time we have available. Then we will proceed to the witnesses.

 STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. Well, Mr. Chairman, thank you very much, 
and thank you for convening this hearing, and perhaps by the 
time I finish my remarks, maybe Senator Sessions will be here 
and we can stay on schedule.
    Let me welcome our guests here today, and thank you very 
much for your service.
    I agree with the Chairman that we need to make sure we have 
adequate personnel to administer our judicial system. And I do 
not argue with the methodology that has been used in coming up 
with needed additional Federal judges.
    My concern, quite frankly, is whether we have the resources 
to support that. And I was one of those who voted against the 
bill in the last Congress. I say that because it is not just 
the new judgeships. There is a lot of additional cost that is 
associated with it, with additional personnel and facilities.
    The letter that I wrote to the Director of the 
Administrative Office in May of 2008 in response to the 
legislation last year pointed out that there would be a one-
time expense of $51 million in order to have adequate 
facilities for the new judgeships contemplated in the 
legislation. When you add to that the demands on the facilities 
related to judges' taking senior status, which it was reported 
to me we need 1.7 million additional square feet just to handle 
the judges taking senior status, you add to that the fact there 
are many vacancies in the Federal bench today, that if they 
were all filled, we do not have all that space available for 
those judgeships, it raises serious questions as to whether we 
have the resources in the budget to accommodate new judgeships.
    And then I add an issue that is particularly important to 
people in Maryland. We are not seeking additional judgeships. 
We do not have adequate space today for our bench, for our 
judiciary. We were No. 1 on the list for a new courthouse about 
8 years ago. After the attack of 9/11, we were ranked No. 1 for 
security concerns because of the way that building is 
constructed and the severe security risks that it presents.
    So, Mr. Chairman, I just really want to put on the record 
that I am concerned that if we create new judgeships, the 
needed replacement or renovations in the courthouses in 
Maryland may have to wait another couple decades, to me at 
great risk to the administration of justice to the people in 
the State of Maryland with our Federal bench.
    So I am going to be submitting some questions--I am sorry I 
cannot stay for the entire hearing--as to what steps are being 
taken in order to meet our current needs, what additional 
resources will be needed if this legislation is enacted into 
law, and what protections I have as a Senator representing the 
people of Maryland that adequate attention will be directed to 
our current facilities.
    Chairman Whitehouse. I thank the distinguished Senator from 
Maryland, and I welcome our distinguished Ranking Member, who 
has joined us. Senator Sessions?

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

    Senator Sessions. Thank you. I thank each of our witnesses 
and look forward to hearing from you. I do have an Armed 
Services Committee hearing with General Odierno, and I need to 
be there for part of that. But I appreciate your holding the 
hearing, but I have significant concerns about legislation that 
is pending to supply these judgeships.
    I think first we have got to understand that our National 
debt is reaching staggering proportions, and nearly 10 percent 
of Americans are out of work. So somewhere somehow we are going 
to have to start finding the will to say no like every mayor, 
county commission, and Governor is doing in this country, 
except us. Our ag bill was a 14-percent increase; our Interior 
bill was a 16-percent increase. Another one of these bills, 
Transportation--HUD was 23 percent. At 14 percent, the whole 
Department doubled in 5 years. I believe that we are not 
listening to the American people who are in tune with reality 
and we are in denial. We think things are just normal, and we 
have got a bunch of requests for judges, and we are just going 
to approve them. I am just telling you we do not have the 
money, first. And I know judges would like a pay raise, but I 
am concerned about that--repeat that little phrase I just made 
about the debt.
    According to the Administrative Office, the cost of 
creating each circuit judgeship is over $1.1 million for the 
first year, with recurring annual costs a little more than 
$979,000. A district judgeship costs roughly $1.2 million for 
the first year and another $981,000 for each year thereafter. 
This bill would add 12 circuit and 51 district court permanent 
judgeships. If it became law, it would cost the American 
taxpayer approximately $75 million the first year and $62 
million each year thereafter, which would go up, of course, as 
the cost-of-living raises take effect. With costs this high, I 
think it is incumbent upon us to make certain that we do not 
propose more judges than are necessary.
    Now, I do understand there are some districts, particularly 
trial courts, that probably have to have some additions. In 
addition to the cost of this legislation, the methodology is 
not proven. It is based on recommendations by the Judicial 
Conference, yet in 2003, the GAO issued a report that 
questioned the Conference's methodology for calculating 
caseloads.
    For district courts, the Judicial Conference calculated 
caseloads based on weighted filings. According to GAO, this 
methodology yields inaccurate results because the weights 
assigned to the cases: (1), assumed additional time spent on a 
case can be accurately estimated by viewing the case as a set 
of individual tasks or events; (2) include limited data on the 
time judges actually spend on specific cases; and, (3) do not 
objectively account for non-courtroom time spent on cases.
    Likewise, the Judicial Conference used adjusted filings to 
calculate the need for circuit judgeships. The GAO found no 
empirical basis to assess the accuracy of this method.
    In 2004, the Judicial Conference Committee on Judicial 
Resources approved new case weights, but the Conference 
continued to rely on consensus estimates for time spent in non-
trial proceedings and chamber activities which the GAO 
criticized as not objective.
    The GAO's concerns regarding the Conference methodology 
seemed to have been borne out by the evidence. A simple 
comparison of a circuit court workload numbers show that the 
request for judgeships and the subsequent recommendations by 
the Conference follow no uniform method and are not strictly 
based on caseloads per panel.
    For example, three of the circuit courts that requested 
additional judgeships have some of the lowest caseloads per 
panel. One of these, the Third Circuit, requested two 
additional judgeships, yet four circuits with higher 
caseloads--Fourth, Fifth, Seventh, and Eleventh--requested 
none.
    In 2008, only 2 percent of all civil cases reached the 
trial stage. This is really remarkable. And the decline in the 
number of cases actually going to trial where judges are 
committed full-time on the bench and not able to do other 
things, only 2 percent of civil cases reached the trial stage. 
According to a recent study examining the period between 1962 
and 2003, the total number of civil cases terminated rose 400 
percent, while the number of trials fell 32 percent. We are 
using magistrates better. We are using mediation more.
    In criminal cases, the story is similar. The number of 
criminal defendants during this period increased by 152 percent 
while the number of trials decreased by 32 percent. You still 
have to do guilty pleas and preside over motions. I know that. 
I am aware of that.
    I am especially interested to hear the testimony of Judge 
Tjoflat. Judge, you have never adhered to the view that bigger 
is better. Is it still true that the Eleventh Circuit carries 
the highest caseload per judge in the country?
    Judge Tjoflat. Yes.
    Senator Sessions. I just salute you for the great work that 
you and your fellow judges have done, and you have testified 
before this Committee on this subject for more than a decade. 
This is your fifth time?
    Judge Tjoflat. Fifth or sixth.
    Senator Sessions. Fifth or sixth. And I always appreciate 
your remarks, one of which was, ``Putting more cooks in the 
judicial kitchen may add some spice to the stew, but will 
ultimately ruin the taste.''
    I know magistrates participate very effectively today in 
pretrial matters and helping move cases forward. The district 
judge does sentencing and maybe has a pretrial hearing or two, 
but much of this load can be handled by magistrates. They are 
doing a great job, and we have more magistrates now. And so 
there are a lot of things that are occurring that I think the 
courts deserve credit for. They have brought efficiencies. They 
have improved productivity in every circuit in the country. We 
should not dismiss that.
    But I cannot ignore the fact that some of our judges are 
carrying a good bit heavier loads than others, and those judges 
are not asking for increased judges.
    Mr. Chairman, I look forward to proceeding with you, and I 
will just conclude by saying I really have the greatest respect 
for the Federal judiciary. I do believe that day after day you 
objectively and fairly handle cases, and that our judicial 
system is the cornerstone of American liberty and prosperity. 
We do not need to allow the system to be overwhelmed, and I am 
open to looking at any district and circuit that is in a 
crisis. And if we need more judges, I will support it, but 
particularly in this time of financial crisis, we need to look 
very carefully before we expand the courts as greatly as the 
legislation proposes.
    Chairman Whitehouse. Let me thank the Ranking Member for 
his statement. It enjoys, among many virtues, that of 
consistency. He was one of the four who voted against the 2007 
judgeships bill, along with the distinguished Senator from 
Maryland. However, 15 of us did support it, so do not let a 
discouraging word completely deflate you.
    Senator Cardin. We are ready to vote now without proxies.
    [Laughter.]
    Chairman Whitehouse. And I also very much appreciate the 
Ranking Member's very sincere and principled concern about the 
Federal deficit and where we are going. But I cannot help but 
point out that we have calculated that an $8 trillion deficit 
differential arose under the administration of President Bush. 
The policies in place at the time also led to the greatest 
economic contraction since the Great Depression, which required 
emergency intervention by the Government to protect from real 
catastrophe, beginning under the Bush administration and then 
continuing under the Obama administration. And it is, I think, 
all of our hope that once the economy turns around, we are in a 
very strong position to begin addressing the deficit issues. 
But I take a slightly different economic picture than the 
distinguished Ranking Member. When individuals and families and 
businesses and municipalities and States are all in a state of 
contraction, I subscribe more readily to the economic theory 
that the Federal Government can be a counterweight by 
diminishing the pain of families and increasing the speed of 
recovery of the economy by spending money. Had we been more 
prudent through the Bush years, we would have had more to spend 
now. But that is an economic dispute that----
    Senator Sessions. So you are complaining about Bush 
overspending and causing a recession, and now you justify the 
recession, as a means to justify even more spending. I would 
just note that, according to CBO, in the next 10 years the 
lowest deficit they project in 10 years is $600 billion, and 
Bush never had a deficit that high. The highest one he had was 
$450 billion. And he deserves some criticism, I will agree, but 
we have never seen anything like the spending that we are 
looking at now.
    Anyway, every dollar is important, even though in the 
scheme of things this is not a huge expenditure, but I think we 
have got to start looking at every single expenditure.
    Chairman Whitehouse. With that backdrop, let me now call 
first on Judge Singal. Judge George Singal has served on the 
district court for the District of Maine since 2000. He 
currently chairs the Judicial Conference Committee on Judicial 
Resources, after being appointed to that position by Justice 
John Roberts, and is testifying today on behalf of the Judicial 
Conference, the policy-setting body of the judiciary. Prior to 
taking the bench, Judge Singal practiced with the firm of 
Gross, Minsky, Mogul and Singal. He is a graduate of the 
University of Maine and the Harvard Law School.
    Welcome, Your Honor.

 STATEMENT OF GEORGE Z. SINGAL, JUDGE, UNITED STATES DISTRICT 
        COURT FOR THE DISTRICT OF MAINE, PORTLAND, MAINE

    Judge Singal. Thank you, Senator Whitehouse and members of 
the Committee. I am George Singal, and I am a district judge in 
the District of Maine, as well as Chair of the Judicial 
Conference Committee on Judicial Resources. I am here today to 
provide information about the judgeship needs of the United 
States courts and the process by which the Judicial Conference 
of the United States determines those needs.
    It has been nearly two decades since Congress passed 
comprehensive judgeship legislation. To enable the judiciary to 
continue serving the American people efficiently and 
effectively, the judicial workforce must be expanded. I would 
like, therefore, to thank Senator Leahy for introducing Senate 
bill 1653, the Federal Judgeship Act of 2009. I would also like 
to thank Senator Whitehouse and Senator Leahy for scheduling 
this hearing. The Judicial Conference supports S. 1653 which 
reflects the Article III judgeship recommendations of the 
Judicial Conference.
    In March of 2009, the Director of the Administrative Office 
of the United States Courts submitted and transmitted to 
Congress the judgeship recommendations of the Judicial 
Conference, which are: to create 12 additional judgeships for 
the United States courts of appeals, create 51 additional 
judgeships for the United States district court, convert five 
temporary district court judgeships to permanent positions, and 
to extend one temporary district court judgeship for an 
additional 5 years.
    The recommendations in the bill reflect needs that have 
arisen or have become acute since the last comprehensive 
judgeship bill enacted in 1990. The delay in establishing 
needed judgeships has real-life implications on litigants 
seeking justice in our courts.
    In the Southern District of Indiana, for example, where 
magistrate judges are already utilized fully, litigants seeking 
civil jury trials must generally wait approximately 18 months 
for their trials to begin even in routine cases and often face 
delays beyond that.
    In the Middle East District of Florida, where the 
population has grown rapidly, the lack of needed judgeships has 
meant that severely overburdened divisions have had to rely on 
the assistance of already busy judges in other divisions to 
process cases. To litigants, people seeking justice in our 
courts, this often means traveling several hundred miles or 
several hours to appear before a judge. And this is in a 
district that relies on six senior judges and has made full use 
of visiting judges through our process of inter-circuit 
assignments.
    And these examples are not even the courts with the very 
highest caseloads in the country where litigants also face 
delays despite our judges' efficient, diligent work.
    In the Western District of Texas, even in a non-border 
division, one judge's published docket for a typical criminal 
docket day has seven sentencings and three motion hearings in 
criminal cases, plus a civil docket call and five civil 
hearings. Another such docket showed ten sentencings, five 
motion hearings in criminal cases, and two evidentiary 
hearings.
    Due to this crushing criminal caseload, civil dockets are 
set a year in advance, and that is with judges there working 6 
to 7 days a week.
    In the Eastern District of California, which is the highest 
weighted caseload in the country, filings continue at such a 
high rate that even the assistance of 80 judges from around the 
circuit has not stemmed the overwhelming burden.
    In developing its recommendations for additional 
judgeships, the Conference uses a formal, systematic, and 
rigorous process for evaluating judgeship needs. The Judicial 
Conference conducts a new survey of judgeship needs every 2 
years. That survey involved six steps.
    First, each court that requests an additional judgeship 
submits a detailed justification to my committee's Subcommittee 
on Judicial Statistics. If a court does not request an 
additional judgeship, the Conference does not consider 
recommending an additional judgeship for that court.
    Second, the Subcommittee reviews each court's submission 
and sends its preliminary recommendation to that court and to 
the appropriate circuit judicial council and advises them to 
provide whatever information it determines will assist the 
Committee in making its final recommendations.
    Third, the circuit judicial council provides their input, 
their recommendations to the subcommittee.
    Fourth, the Subcommittee reviews the responses from the 
responses from the various courts as well as the judicial 
councils with updated caseload data and submits its 
recommendations to the Committee on Judicial Resources.
    Fifth, the Committee on Judicial Resources provides its 
recommendations to the Judicial Conference.
    And, finally, the Judicial Conference decides which request 
for judgeships it will approve and makes its recommendations to 
Congress.
    To reduce requests for additional judgeships, the judiciary 
has taken steps to maximize existing judicial resources, 
including the following: recommending temporary rather than 
permanent judgeships where that will suffice; looking at the 
use of senior judges and effective use of magistrate judges; 
using inter-circuit and intra-circuit assignment of judges; 
using alternative dispute resolution procedures; implementing 
new technologies such as videoconferencing of meetings with 
counsel, for instance; using conservative formulas to evaluate 
court judgeship requests; and recommending that vacancies not 
be filled in courts with consistently low caseloads.
    As part of this judgeship survey, courts requesting 
additional judgeships are questioned about their efforts to 
make use of all the resources they have available.
    Since the last comprehensive judgeship bill was enacted in 
1990, no additional circuit judgeships have been created, and 
only 34 additional district judgeships have been created in 
response to particular exigencies in particular districts. And 
yet caseloads have grown dramatically.
    Since fiscal year 1991, filings in the court of appeals 
have increased by 38 percent, and the national average caseload 
for a three-judge panel is over 1,000. Overall, district court 
filings have risen 31 percent. Criminal----
    Senator Sessions. Thirty-one percent over what time period?
    Judge Singal. Since 1991. Criminal felony filings have 
risen 91 percent, and civil filings have risen 22 percent. 
Today the national average weighted filing for district court 
judgeships stands at 471, but the average weighted filings for 
the courts needing additional judgeships is 575--well above the 
Conference standard of 430 for considering recommendations for 
additional judgeships.
    Twenty of the courts have weighted filings of 500 per 
judgeship or higher. Almost half of these courts have per 
judgeships filings exceeding 600.
    The Judicial Conference recognizes that there cannot be 
indefinite growth in judgeships. Growth must be limited in the 
number of new judgeships to that which is necessary to exercise 
Federal court jurisdiction. The Conference process demonstrates 
a commitment to controlling growth and shows that judgeships 
are not requested merely on numerical criteria but are 
requested only after a highly critical analysis of caseload 
data and many other factors.
    Again, the Judicial Conference of the United States is 
grateful for the introduction of S. 1653, the Federal Judgeship 
Act of 2009, and appreciates the scheduling of this hearing. I 
will be happy to respond to any questions you may have.
    [The prepared statement of Judge Singal appears as a 
submission for the record.]
    Chairman Whitehouse. Thank you, Your Honor.
    We will now hear from Judge O'Neill. The Honorable Lawrence 
J. O'Neill has served as United States District Judge in the 
Eastern District of California since February 2007. Prior to 
that, he was a United States magistrate judge for 8 years. He 
previously served as a California State superior court judge 
and was a trial attorney in the civil area. Judge O'Neill 
earned his bachelor's degree in criminology from the University 
of California, his master's degree in public administration 
from Golden Gate University, and his law degree from the 
University of California Hastings College of Law.
    Judge O'Neill.

STATEMENT OF LAWRENCE J. O'NEILL, JUDGE, UNITED STATES DISTRICT 
     COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, FRESNO, 
                           CALIFORNIA

    Judge O'Neill. Thank you, Mr. Chairman, Ranking Member 
Sessions, and members of the Committee. My focus today is going 
to be on the Eastern District of California. However, I do not 
want that to indicate that we are the only district in need. 
There are districts in need and in trouble. We happen to be in 
crisis. And I, frankly, applaud the other districts who are in 
trouble coming to you now before they are in the crisis that we 
find ourselves in.
    We attempted to avoid the crisis. We were unable to do 
that. But good stewards--and I view all district judges, 
circuit court judges, all judges in the Federal system as good 
stewards. We need to make sure that if we can avoid a crisis, 
we do exactly that.
    In the Eastern District of California, we are by anyone's 
account, no matter how you do it--stats--no matter how you do 
it, we are busy. It is not enough to be busy, and we know that. 
A court must work hard, work smart, and be productive. We 
accept that responsibility.
    Our annual weighted filing per authorized judgeship in the 
Eastern District of California is 1,095 cases. The national 
average is 471. That is busy.
    Our annual termination rate per authorized judge in the 
Eastern District of California is 1,041 cases. The national 
average figure is 503. That is productive.
    The combination of being both busy and productive results 
from working smart. There is no other way to do it.
    Very briefly, I want to touch on two highlights: one, the 
make-up of our judicial officers; and, two, how those judicial 
officers are being utilized. You are entitled to know that. 
Senator Sessions made a comment in his introductory remarks 
about exactly that. It is not good enough just to be there and 
just say, ``I am busy.''
    The reason I have chosen these two issues is because we 
acknowledge that if we are not managing our resources well, 
then we should not be here asking you for more resources to 
manage poorly. I assure you, in the Eastern District of 
California that is not the case.
    We have a population of 6.735 million people, an increase 
of 1 percent in the past 12 months. Over the past 9 years in 
our district, it has contained 18 of the 25 fastest counties in 
the State of California--fastest growing counties. This is but 
one of the reasons for the enormity of the workload. Others 
include the depth and the complexity and the consistency of the 
water law problems, the enormous methamphetamine epidemic, the 
burgeoning illegal alien problem, the 19 prisons, both Federal 
and State, with prison populations exceeding 100,000 inmates 
who are not strangers to litigation. They make up, or at least 
made up this last year, 55 percent of our civil case filings.
    These are only samplings. There are other reasons.
    Excluding our bankruptcy judges in our district with its 
more than 87,000 square miles, containing 55 percent of the 
land mass of the State of California, we have six different 
judge authorized positions. It is a number that we have had 
since 1978, some 30 years ago. And I assure you that the 
numbers of cases have not remained the same.
    We have 12 magistrate judge authorized positions. One of 
the highest ratios in the country, it is a 2;1 ratio when the 
national average is 1:1.3.
    We have five senior judges, four of whom are working 100-
percent caseloads, both civil and criminal, and one of them who 
is handling a 40-percent caseload. He is in his 80's.
    There is no living senior judge in the Eastern District of 
California who is physically able who is not working, and 
working very hard.
    The magistrate judges are at full utilization. They handle 
all of the settlement conferences, the scheduling conferences, 
civil law and motion discovery disputes, Social Security 
appeals where we have a very high rate of consent, habeas 
corpus petition findings and recommendations, all initial 
appearances in criminal hearings, including detention matters, 
and misdemeanor trials. They handle all hearings including 
contested trials for infractions occurring in the 18 national 
forests and the 9 national parks in the Eastern District of 
California. They handle all of our naturalization hearings and 
are available 24 hours a day, 7 days a week to handle arrests 
and search warrants.
    Half of our magistrate judges handle the initial 
proceedings in death penalty cases, and, in addition, we make 
every effort to obtain the consent of parties in civil cases so 
that they can handle them from beginning to end.
    Multiple factors, including civil trial delays and judicial 
fatigue, play a part in the day-to-day operations of our quest 
for public access to our courts. We are indeed a busy, hard-
working, smart-working, productive, and very tired court, and 
we need your help and we need your consideration.
    Back home, right before I left, somebody from our court 
asked me the question: Aren't you just a little busy to go 
across the country to testify? And my answer to that question 
to that person is the same statement I am making to you. We in 
our district are too busy for me not to come across the country 
and testify here.
    I thank you for understanding that statement, and I am 
available for any questions that you might have.
    [The prepared statement of Judge O'Neill appears as a 
submissions for the record.]
    Chairman Whitehouse. Thank you, Judge O'Neill.
    We will now call on our final witness, Judge Tjoflat.
    Is my pronunciation anywhere close on that, by the way, 
Your Honor?
    Judge Tjoflat. It is on the mark.
    Chairman Whitehouse. Good. I appreciate that. Give me 1 
second while I find your bio.
    Judge Gerald Tjoflat was appointed to the Fifth Circuit in 
1975 and was transferred to the Eleventh Circuit when the Fifth 
Circuit was split in 1981. He has served as the Chief Judge of 
the Eleventh Circuit from 1989 to 1996 and previously served 
from 1970 to 1975 on the Middle District of Florida.
    He began his legal career in private practice and served as 
a State court judge prior to joining the Federal bench. He 
received his law degree from Duke University, and we welcome 
his testimony.

 STATEMENT OF GERALD B. TJOFLAT, JUDGE, ELEVENTH CIRCUIT COURT 
               OF APPEALS, JACKSONVILLE, FLORIDA

    Judge Tjoflat. Thank you, Mr. Chairman. I have been before 
this Committee I think five or six times. It started back about 
1994 or 1995 when the Senate was considering the bill to split 
the Ninth Circuit. And the reason why I was invited to testify 
before the Committee at that time, not as an advocate for any 
particular position, was because I was on the Fifth Circuit 
before we acquired 11 judges in 1979, and it rose from a court 
of 15 to a court of 26. And along with Judge John C. Godbold of 
Montgomery, Alabama, he and I were the spokespersons for the 
Fifth Circuit in petitioning the House and the Senate to split 
the court because we could not function as a court with 26 
judges.
    In 1979, we in the Fifth Circuit had roughly 23 or 24 
percent of the Nation's business. The Ninth Circuit was right 
behind us with maybe 21 percent, something like that. They had 
13 judges. The omnibus judgeship bill of 1979 gave them 10 
judges--they went to 23--and gave us 11--we went to 26.
    That statute authorized those two circuits to create mini 
en banc courts, that is to say, en banc courts of less than the 
majority of the judges.
    The Ninth Circuit opted to have a mini en banc court. They 
re-hear cases with 11 judges--the chief judge and ten drawn by 
lot.
    The judges of the Fifth Circuit felt that who was going to 
choose whom to be on the en banc court, and everybody was an 
Article III judge and felt that without participating on the 
full court was sort of like giving up a constitutional right of 
some sort or another. But at any rate, that is why we asked the 
Congress to divide us.
    I subsequently appeared before this Committee because not 
only that experience with a large court compared to a small 
one, but I have sat on courts of the old Fifth and Eleventh 
Circuit ranging between, say, 9 judges, because you had 
disqualifications; 10, 12, 14, 15, 17, 20, 23, 26, and have 
been deeply involved in court administration all through those 
periods of time. And so I have a pretty good idea, which is not 
shared by many other judges from the courts of appeals simply 
because they are either on small courts or they never got as 
large as we did, so you do not confront those problems.
    But the thoughts I express have been expressed by many. 
Griffin Bell, who came from the old Fifth, who was a colleague, 
the same sentiments. Judge Harvey Wilkinson of the Fourth 
Circuit, Justice Kennedy who came from the Ninth when they had 
23 to the Supreme Court.
    I have an exhibit that was not in my statement which I 
would like to be submitted if we could pass it out.
    Chairman Whitehouse. Without objection, it will be added to 
the record.
    Judge Tjoflat. Thank you, sir.
    Judge Tjoflat. Mr. Chairman, sometimes a picture is worth a 
thousand words. The numbers on the front side of this exhibit 
show courts with numbers of judges. The numbers in the second 
column show the increase in panel possibilities for an appeal, 
a three-judge court, every time an appeal is taken in a 
circuit. And the column on the right shows the number of total 
panels that would be assembled to hear those appeals.
    Now, if you would turn to the other side, this is a graph 
which depicts the numbers on the reverse side, which shows the 
number of panel possibilities as you add judges to a court of 
appeals. My concern is with the court of appeals, and I have no 
grievance with the Judicial Conference or with the Committee 
because they do what they can do given the difficulty in 
deciding how many judges ought to be on a court of appeals.
    The threshold number is 500 adjusted panel filings. That is 
where the Conference Committee starts. Our court is entitled to 
27 judges on that threshold. We have never asked for a judge 
since 1981, and when we split the Fifth Circuit, 14 judges 
happened to live in the western three States and 12 in the 
eastern three, and that is how we wound up with 14 and 12.
    For a long time on that court--and we were very intact--we 
had memories of what it was like with 26 judges. And that 
tradition has passed on down so to this day we ask for no 
judges, notwithstanding numbers and people saying you ought to 
request some more judges.
    Senator Sessions. How many do you have now, Judge?
    Judge Tjoflat. Twelve, the same 12. Different people but 
the same 12 judges.
    Here is what happens as a court of appeals increases 
judges. You have a court, say, with a dozen or 15 or whatever 
it is. And there is a backlog. So the idea is that if we have 
one more judge, we can decrease the backlog or at least meet 
it. And then there is more backlog.
    So here is what happens. As you increase judges, if you 
want to maintain--the thing a court of appeals must do is to 
maintain a stable rule of law, because if you do not have a 
stable rule of law in the circuit, you create unrest, 
instability, and create litigation. Litigation means you have 
to have more district judges. That means you are going to have 
more appeals. And you do that with the en banc function.
    The First Circuit, from where you come, Mr. Chairman--a 
simple proposition. I sat in the First Circuit in Boston one 
time in 1971 or 1972, and there were three judges on the court 
of appeals. So every time they sat, they were en banc. But, in 
any event, as you add judges, you have to keep up with the work 
product of everybody else on the court. Justice Kennedy told me 
when he left the Ninth Circuit, he spent half of his time 
keeping up with the law of the Ninth Circuit, a quarter of his 
time doing administrative work, and a quarter of the time doing 
his own work. So when you do that, what happens is the output 
of the court does not decrease because you are spending more 
time keeping the law pure, as it were. Or you can do the 
opposite. You can maintain--fight off the backlog, and then you 
sacrifice stability in the rule of law, and that in turn causes 
unrest and people basically lose their rights when the law is 
unstable.
    So the point is with the courts of appeals, if you can 
control for all factors, there is in theory a point at which, 
if you added a judge to a court of appeals, the overall 
production of the court would decrease. It would decrease 
assuming the judges are maintaining a stable rule of law 
through the en banc process.
    So the point of my remarks and the remarks of others who 
made the same point basically over the last 15 years, let us 
say, is that the courts of appeals are scarce dispute 
resolution resource. They can only get so large without 
creating instability in the rule of law, which means that you 
cannot have too many district judges, or you wind up with too 
many delays. So it is the Congress' task to decide what jobs--
--
    Chairman Whitehouse. Too many circuit judges, you meant.
    Judge Tjoflat. Yes, you have too many circuit judges. If 
you have too many circuit judges so they create instability in 
the rule of law, then Congress has to say, What jobs are we 
going to take away from the courts of appeals or the Federal 
courts? Are we going to put something in an Article I court or 
are we going to work out some other solution? But we are not 
like the State courts. The State Supreme Court can remain, like 
in Florida, seven justices. It would be seven justices when we 
had 3 million people and seven justices when we have got about 
20 million now. But that is not the case with the United States 
Courts of Appeals where you have an appeal as a matter of 
right.
    Thank you for inviting me. I hope I have been of some 
little assistance in this debate, and I will answer any 
questions you might have.
    [The prepared statement of Judge Tjoflat appears as a 
submissions for the record.]
    Chairman Whitehouse. Thank you. We are delighted to have 
you here.
    It strikes me listening to your testimony, from having read 
it yesterday, that first of all it is directed primarily to the 
circuit courts, and you do not intend to bring it to bear on 
the Judicial Conference recommendations for----
    Judge Tjoflat. No.
    Chairman Whitehouse [continuing]. District judges. Correct?
    Judge Tjoflat. No.
    Judge O'Neill. And I thank you for that.
    [Laughter.]
    Chairman Whitehouse. And the second is, in its focus on 
circuit courts, if I were to summarize your recommendation, in 
a world of growing caseloads and an expanding population and 
the additional litigation that ensues, your argument is less 
that there should be fewer judges than that there should be--
than that there is an optimal number of judges per circuit in 
order to for that circuit to be most efficient, and that, 
therefore, the best way to be dealing with the burgeoning 
caseload is not to add more judges per circuit, but to add more 
judges and more circuits so that that collegiality and that 
optimal size can be maintained. I mean, if you do the math, 
that seems to follow as your recommendation.
    Judge Tjoflat. That was the task of the White Commission in 
1997, which grew out of the circuit split bill, which no action 
was taken, and the Commission was created to study the circuit 
alignment. That is the point.
    Chairman Whitehouse. Yes, got you. OK. I think I understand 
that.
    Let me ask you, Judge Singal, the methodology of the 
Judicial Conference has been questioned here, and I wonder if 
you could comment a little bit on, first of all, whether the 
methodology--what is its travel? Has it changed since the 2007 
Judicial Conference recommendations?
    Judge Singal. It has not changed since 2007. The same 
methodology is used and the same case-weighting system is used.
    Chairman Whitehouse. And that was developed years ago with 
the RAND Corporation----
    Judge Singal. Back in 2003, 2004, and the same methodology 
has been in place since then.
    I want to add, however, that the methodology that gives us 
case weighting, the 430, that we use in the district court, is 
not the end of the procedure that we use in terms of getting to 
a final recommendation. That is simply the beginning. It is not 
even--as Winston Churchill said, it is not the beginning of the 
end; it is the beginning of the beginning. After that, the----
    Chairman Whitehouse. Dunkirk, right.
    Judge Singal. Well, I hope we can avoid that.
    [Laughter.]
    Judge Singal. After that, we go through an entire review 
process, as I have indicated in my opening statement, where we 
look at the effective use of magistrate judges, the effective 
use of senior judges, the complexity of the litigation, whether 
the litigation trends in that district, for instance, are 
increasing or are temporary. We look at the issue of visiting 
judge use and many other factors.
    So in terms of the formula we use, it is the same formula 
that we presented to this Committee the last time I was here 
and was presented to the Committee each time since we developed 
it in 2003, 2004.
    Chairman Whitehouse. And do you have any reaction to the 
criticism from, I think it was, GAO and any evaluation of the 
methodology that they appear to have recommended?
    Judge Singal. Well, GAO had two criticisms of the 
methodology that related to the case-weighting system. One was 
that the Conference was using results from two electronic 
systems. I am telling you something I am sure you already are 
aware of from the vast material that has been developed and 
provided to you. But the Federal Center, Judicial Center, was 
able to develop a program that was able to integrate those two 
electronic systems.
    I might add that since that time, our electronic system is 
one. CM/ECF is a marvelous electronic system that manages our 
cases, enables me in Washington last night to work on a case in 
Portland, Maine, and have before me all of the docket entries, 
all of the pleadings. And I was able last night, in addition to 
preparing for this hearing, to issue an order because that 
information was available to me.
    By the way, it is one of the ways we survive now in the 
judiciary that we are able to do that--much to my wife's dismay 
when I am on vacation, I might add.
    The other aspect of it was the GAO's worry about the lack 
of a standard deviation and the lack of a time study under the 
new system. I feel very confident that the information provided 
to us in the electronic system that we have, the concrete 
information we have on judge time in court on evidentiary 
disputed hearings, provides us a solid basis for court time. 
The estimates given by experienced judges with regard to non-
court activities has stood the test of time.
    I want to be clear. Our of the 77 requests for judgeships 
that were given to my committee, we did not approve them all. 
We are not a rubber stamp. We approved 63 and the Conference 
approved 63.
    I want to make one other point. At the time we submitted 
our requests to this Committee and to Congress, note that one 
of the temporary judgeships that was already in place is not 
being asked to be converted to permanent. We are asking that it 
be extended for 5 years. What does that indicate? Instead of 
going whole hog saying make it permanent, we are wondering, 
Will those caseloads continue to increase in that district into 
the future?
    We are going to take it easy, and we will take a look at it 
over that period of time. So rather than make it permanent, 
rather than request making it permanent, we are holding back 
and trying to be as conservative as we can.
    Chairman Whitehouse. My time has expired, and I yield to 
the distinguished Ranking Member.
    Senator Sessions. Thank you.
    Judge Singal, I think I understood you to say that two 
different numbers you gave us, 31- and 32-percent increases in 
filings, I believe you said, since 1991?
    Judge Singal. It is 38 percent for the circuits and 31 
percent for the district courts.
    Senator Sessions. Well, about how many more magistrates do 
you have today than you had in 1991?
    Judge Singal. I cannot give you the exact figure, but there 
are many more magistrates than existed at that time.
    Senator Sessions. And you have got better computer systems.
    Judge Singal. We do.
    Senator Sessions. Most judges now are going to three law 
clerks, or some of them are giving up their secretary.
    Judge Singal. Some are.
    Senator Sessions. And some have permanent law clerks.
    Judge Singal. Some are, though we have limited that by 
Conference rule that the number of career law clerks will be 
limited in the future as a cost-saving device.
    Senator Sessions. Right. But a career law clerk can prepare 
prisoner petitions or Social Security petitions, he can become 
very skilled in helping a judge sort through the critical 
issues in a case.
    A lot of these things have happened, and overall, Mr. 
Chairman, all I am saying is that with a 31-percent increase in 
cases at the district court level or 38 on the court of 
appeals, some of that is offset by technology and better and 
larger staff.
    Second, I acknowledge that in this dynamic country that we 
have, you can have districts like Central or Eastern California 
that are having extraordinary increases, and they are not able 
to meet that challenge.
    Now, we have had a number of court bills to add judges to 
those crisis districts, so we have not failed to respond. I do 
not know who remembers how many judges we have added----
    Judge Singal. Thirty-four.
    Senator Sessions. Thirty-four, since how long?
    Judge Singal. The last judgeship bill, so 4 percent.
    Senator Sessions. So we did our best to target the 
districts that had the biggest crisis, although, Mr. Chairman, 
this is a political body, and some of the judges may have had 
more to do with their Senator's view on it than exactly the 
caseload.
    Chairman Whitehouse. Do not further astonish me by telling 
me that seniority might have played a role.
    Senator Sessions. Perhaps, even.
    One of the things that is astounding to me, Judge Tjoflat, 
was when I first became United States Attorney in 1981, I ended 
up trying a case before Judge Cox who is now senior judge on 
the Eleventh Circuit. And it was a 5-week trial with about 2 
weeks of preliminary motions, a land bank fraud case. During 
that period of time, we had another trial that I tried that 
lasted 7 weeks. We had another trial that lasted 11 weeks, 
another trial that lasted 5 or 6 weeks. But to an astounding 
degree the number of cases actually going to trial has 
declined.
    Now, that does not mean a judge does not have anything to 
do with the case. You have to rule on pretrial motions or 
whatever. But when a judge is in a big trial, they are just 
tied to that seat. No other work can get done unless they get 
another judge basically to help him, or at night. How do you 
factor, Judge Singal, the decline in the cases actually going 
to trial, civil and criminal?
    Judge Singal. If I might, Senator, address the three areas 
you discuss: the use of staff to help, the judges that Congress 
has provided in the interim, and the number of trials.
    Judge Singal. In our district, we have three judges, and 
you have almost every 6 months a big trial lasting multiple 
weeks that really hurt that daily work of it. So how does it 
show up nationally?
    Judge Singal. Well, I was in private practice for 30 years, 
tried criminal cases, civil cases, and every kind of case there 
was, from murder cases to driving cases. Most of my cases 
settled. And most cases settled, I think 95 percent of civil 
cases settled in 1991. Probably about 96 percent settle today.
    We all know that if all the cases went to trial, our 
judiciary would stop dead in its track. We also know, as you 
said, because you have the same experience, that many of those 
cases that settled settle after most of the work has been done 
on those cases. Judges will tell you consistently they would 
much rather be in court presiding over a trial than they would 
doing summary judgment motions, which takes hours and hours and 
hours. And it is only after one side has lost the summary 
judgment motion that the case settles. The trial, were we able 
to move then to court immediately, we would have used less time 
of judicial time in some cases trying the case rather than 
dealing with all the discovery motions, all of the summary 
judgment motions, and all of the other.
    So whether the case settles or not, judges are tied up in 
terms of the amount of effort they spend----
    Senator Sessions. You would say that a judge does spend 
more time on summary judgment motions than 15 years ago?
    Judge Singal. I think that is true. Senator Sessions. I 
would suspect that is true. And that does facilitate 
settlement. In the old days, a lot of judges would carry it 
with the trial. But if you get a ruling early that your cause 
of action is invalid, maybe you settle.
    Judge Singal. As you probably know the old saying, nothing 
focuses a trial lawyer's mind like that courtroom door.
    Senator Sessions. That is right. Judge, I just want to 
point out a few things. I know that some circuits would like 
more judges, but if you look at the median current caseload it 
raises some questions. The Second Circuit seems to have the 
highest caseload. The Eleventh Circuit is second now, at least 
with caseload, but you are able, Judge Tjoflat, to dispose of 
those cases in an average of 9.3 months, which is the second 
lowest on the chart. So not only do you have the second highest 
caseload, but the second shortest disposition time, for which I 
say thank you and good work.
    On oral argument, most circuits evaluate cases before they 
set oral argument and do not set it unless they think it would 
benefit the court, which I think is good for clients because 
they have to pay their lawyers to spend weeks getting prepared 
for a 20-minute oral argument and pay their expenses in some 
highfalutin city. But if it is not necessary, it is a good 
thing not to do it, in my opinion.
    Do you think some of our circuits might benefit from being 
more cautious about the number of cases they accept for oral 
argument?
    Judge Tjoflat. I think so, and let me say that we do not 
have better judges than the other circuits, and that is not the 
reason for the decrease in the time. When we were on the Fifth 
Circuit and had all that business--this is with 15 judges--we 
had to devise a lot of procedures, which required a lot of 
collegiality, in order to process 23 percent of the cases in 
the United States.
    After the circuit split, within 2 or 3 years then the 12 of 
us had as much business as the old court had, and we were a 
forerunner, with the help of the Administrative Office and the 
Congress, in automation. I think we have been the forerunner in 
automation and other kinds of things that help save judge time, 
make judge time more valuable with parajudicial personnel doing 
the administrative kind of legwork, I will put it that way.
    It is that culture, rather than that we work any harder 
than anybody else, which accounts for the disposition times you 
are talking about, and also a good deal of attention on which 
kinds of cases really ought to have oral argument. It is pretty 
hard to have somebody fly from Seattle, Washington, to Atlanta, 
Georgia, to argue a case, and after about 3 or 4 minutes it is 
obvious that the case does not deserve argument. If you are on 
the Second Circuit in Manhattan, you can get on a subway and 
come downtown or come from Connecticut or Vermont and be cut 
off in the middle of an argument, and you have not wasted a day 
or 2 days and a couple of hotel nights. So you can get more 
oral argument and cut them off, as it were, mid-argument.
    So the circuits have traditions and operate in different 
kinds of ways, and that in my view accounts for the 
differential in some of the numbers that you have on that 
board.
    Senator Sessions. Thank you. I have let my time run over. 
Thank you all for your comments. I would just say this: I am 
generally, as you can tell, not disposed to a major increase in 
judges. I am not criticizing the President, but I think we have 
a number of vacancies we have, but we do not have that many 
nominees. And so the President has got a lot to do. He is 
having to get his team together. But some of the vacancies we 
have because we do not have nominations. I know our Chairman 
complains that we are holding up nominees, but----
    Chairman Whitehouse. I will not go there.
    Senator Sessions.--some that are controversial will get 
scrutinized, but we just did one last night that everybody 
supported, and we have done a number and we will see more. But 
only about 10 percent, I think, of the vacancies do we even 
have nominations for.
    So we can do better about that. Then we need to identify 
particularly those district courts that have for some sort of 
unusual reason or just natural trends have resulted in a big, 
big workload, like you may have in Eastern California. We have 
found on the Arizona border some of the California circuits got 
most of the judges in the last bill. I think that was 
justified--Florida got some of the district judges. I just 
think that is the way to proceed.
    Mr. Chairman, I will work with you in good faith on it and 
identify those areas where we have got to act, and maybe we can 
keep our courts as cohesive as possible and keep the burden on 
the taxpayers as low as possible.
    Chairman Whitehouse. Well, I know you will, and it is an 
honor always to be able to work with the Ranking Member on 
these issues.
    If I could, let me ask just one last question before I 
conclude the hearing, and that is for Judge O'Neill. Your 
description of the crisis or the troubles in your district was 
quite compelling. It focused more on it from the court's eye 
view. From a litigant's eye view, either from the U.S. 
Attorney's Office or from civil litigants coming in or defense 
counsel, what are the ways in which they most experience the 
distress that your court is presently experiencing?
    Judge O'Neill. It is a delay in setting the trials. I think 
that--and I almost wish I were not a judge right now of the 
Eastern District so I could brag about the judges of the 
Eastern District. The judges of the Eastern District have 
taken----
    Chairman Whitehouse. We do that as Senators all the time, 
so go right ahead.
    [Laughter.]
    Judge O'Neill. The judges of the Eastern District truly 
have taken it upon themselves to simply continue to work harder 
and harder and harder. And I am talking about 12- and 14-hour 
days, bringing things home every single night, every single 
weekend.
    One of my biggest concerns that almost none of us voices 
often is the concern that we share as district judges for our 
senior district judges and their health. The amount of stress 
we are putting on them--and they never point it out--is 
phenomenal. And to lose just one of them is to lose 20 percent 
of their help, because we only have five of them. If we were to 
lose one person----
    Chairman Whitehouse. Again, you are back to the court's--I 
appreciate that very much, but you are back again at the 
court's eye view of the problem.
    Judge O'Neill. That is because the court----
    Chairman Whitehouse. My question had to do with from a 
litigant's eye view. You mentioned that delays in getting to 
trial obviously are a problem. Are there others, or is that----
    Judge O'Neill. The reason I am focusing on the court is 
because the court thus far has taken most of the burden, but we 
cannot continue to do that because there is nothing left. There 
are no more resources left. There is no more energy. There is 
no more time. And as a result of that, even though there have 
been some delays and it takes longer to get onto our calendars 
and our dockets, especially the civil cases that get bumped 
because of the Speedy Trial Act on the criminal side, we are 
going to be--if we do not get help and/or if we lose even one 
senior district judge, the----
    Chairman Whitehouse. You are at the break point.
    Judge O'Neill. We are. And what is going to happen then is 
that the litigants will be bearing 100 percent of that burden 
because we cannot bear any more.
    Chairman Whitehouse. Thank you very much----
    Judge O'Neill. And could I make just one last comment?
    Chairman Whitehouse. Of course. You have come all this way.
    Judge O'Neill. You know, Senator Sessions said in his 
statement, ``The court is the cornerstone of liberty and 
prosperity.'' And my colleague from the Eleventh Circuit said, 
``People lose their rights when the law is unstable.''
    The law is unstable when we do not have access to our 
courts, and that is where we are right now. We need help.
    Chairman Whitehouse. I appreciate that.
    Senator Sessions. Mr. Chairman.
    Chairman Whitehouse. Please.
    Senator Sessions. I would just note to clarify and be 
accurate, there are 74 district court vacancies in the country 
today with nine nominees pending before the Senate. And that 
will catch up some, so we are going to pick up some. We will 
get the average of----
    Chairman Whitehouse. The background checks and all----
    Senator Sessions. The background checks, and you might have 
to ask a Senator what they think of the person before they are 
nominated, and all of that, and it takes a while. But that 
vacancy rate should constrict as the President has more time 
in, unless we have nominees, a large number, that are 
controversial.
    Then I would offer for the record the GAO report called 
``Federal Judgeships: The General Accuracy of District and 
Appellate Judgeship Case-Related Workload Measures,'' and they 
note that--you know, they made recommendations in 2003, and 
they are critical that more changes have not been done to 
implement some of their suggestions, although GAO is not 
perfect either----
    Chairman Whitehouse. Without objection, the report will be 
made a matter of record.
    Senator Sessions. So I would offer that for the record.
    [The GAO report appears as a submissions for the record.]
    Senator Sessions. I thank the witnesses, and, again, I know 
there are some areas in our country that are going to need some 
relief.
    Chairman Whitehouse. Should we also add your table?
    Senator Sessions. Yes, I have got that in print here, and I 
would offer the table.
    Chairman Whitehouse. That will also be made a matter of 
record.
    [The table appears as a submission for the record.]
    Chairman Whitehouse. I also have a statement from Chairman 
Leahy that, without objection, we will add to the record.
    [The prepared statement of Chairman Leahy appears as a 
submissions for the record.]
    Chairman Whitehouse. I have a statement from Senator Dianne 
Feinstein, who, as you know, Judge O'Neill, is extraordinarily 
concerned about the situation in California, and she has a 
statement for the record which will be accepted, without 
objection.
    [The prepared statement of Senator Feinstein appears as a 
submissions for the record.]
    Chairman Whitehouse. We have a letter from the Federal Bar 
Association which will be entered into the record, without 
objection.
    [The letter appears as a submissions for the record.]
    Senator Sessions. If they have more judges, more of the 
Federal Bar attorneys might be one, 1-day.
    No, I kid. They also support more judges and higher pay. I 
used to be a member of that group.
    Chairman Whitehouse. And the Federal Judicial Center has 
also sent a letter and a report from John S. Cook, and that, 
too, will be made a matter of record, without objection.
    [The letter and report appears as a submission for the 
record.]
    Chairman Whitehouse. The record of this proceeding will 
stay open for another week, and I thank the witnesses for their 
testimony. I thank the Ranking Member for his willingness to 
work through this, and we look forward to producing some 
results from this, I hope in the not too distant future, as we 
are both former lawyers, former United States Attorneys, former 
trial lawyers, and so we are both very pleased to have three 
such distinguished members of the Federal judiciary before us.
    Senator Sessions. Thank you for a good and fair hearing, 
Mr. Chairman.
    Chairman Whitehouse. Of course. We are adjourned.
    [Whereupon, at 3:44 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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