    [Senate Hearing 113-348]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-348

                       THE FEDERAL JUDGESHIP ACT OF 2013

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

                                    HEARING

                                   before the

                           SUBCOMMITTEE ON BANKRUPTCY
                                 AND THE COURTS

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 10, 2013

                                   __________

                              Serial No. J-113-27A

                                   __________

             Printed for the use of the Committee on the Judiciary

                                   ----------

                             U.S. GOVERNMENT PRINTING OFFICE

    88-957 PDF                       WASHINGTON : 2014
    -----------------------------------------------------------------------
      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

                      PATRICK J. LEAHY, Vermont, Chairman
    DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking
    CHUCK SCHUMER, New York                  Member
    DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
    SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    AL FRANKEN, Minnesota                JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
                Bruce A. Cohen, Chief Counsel and Staff Director
                     David Young, Republican Chief of Staff
                                     ------

                   Subcommittee on Bankruptcy and the Courts

                    CHRISTOPHER A. COONS, Delaware, Chairman
    DICK DURBIN, Illinois                JEFF SESSIONS, Alabama, Ranking
    SHELDON WHITEHOUSE, Rhode Island         Member
    AMY KLOBUCHAR, Minnesota             CHUCK GRASSLEY, Iowa
    AL FRANKEN, Minnesota                JEFF FLAKE, Arizona
                                         TED CRUZ, Texas
                    Ted Schroeder, Democratic Staff Director
                  Danielle Cutrona, Republican Chief of Staff

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Coons, Hon. Christopher A., a U.S. Senator from the State of
      Delaware.......................................................     1
        prepared statement...........................................    28
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
      prepared statement.............................................    30

                                   WITNESSES

    Witness List.....................................................    27
    Tymkovich, Hon. Timothy M., U.S. Circuit Judge, Tenth Circuit
      Court of Appeals, and Chair, Standing Committee on Judicial
      Resources, Judicial Conference of the U.S., Denver, Colorado...     5
        prepared statement...........................................    33
    Robinson, Hon. Sue L., U.S. District Judge, District of Delaware,
      Wilmington, Delaware...........................................     7
        prepared statement...........................................    49
    Sekulow, Jay Alan, Chief Counsel, American Center for Law and
      Justice, Washington, DC........................................     9
        prepared statement...........................................    52
    Reed, Michael H., Chair, Standing Committee on Federal Judicial
      Improvements, American Bar Association; and Partner, Pepper
      Hamilton LLP, Philadelphia, Pennsylvania.......................    11
        prepared statement...........................................    55

                                   QUESTIONS

    Questions submitted by Senator Coons for Timothy M. Tymkovich....    64
    Questions submitted by Senator Klobuchar for Timothy M. Tymkovich    65

                             QUESTIONS AND ANSWERS

    Responses of Timothy M. Tymkovich to questions submitted by
      Senators Coons and Klobuchar...................................    66

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    American Center for Law & Justice, ``Federal Judgeship Act of
      2009'', statement..............................................    73
    Baker, Marge, Exec. Vice President for Policy and Programs and
      Paul Gordon, Senior Legislative Council, People For the
      American Way, Washington, DC, statement........................    80
    Bannon, Alicia, Counsel, Brennan Center for Justice at NYU School
      of Law, New York, New York, statement..........................    83
    Brandenburg, Bert, Executive Director, Justice at Stake,
      Washington, DC, statement......................................    87
    Dubina, Joel F., U.S. Circuit Judge, U.S. Court of Appeals for
      the Eleventh Circuit, statement................................    89
    Schaeffer, Judith E., Vice President and Doug Kendall, President,
      Constitutional Accountability Center, Washington, DC, statement    94
    Tjoflat, Gerald Bard, Circuit Judge, U.S. Court of Appeals for
      the Eleventh Circuit, statement................................    99
    Wald, Patricia M., Retired Chief Judge of the D.C. Circuit Court
      of Appeals, statement..........................................   111

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government or
      other criteria determined by the Committee:

      ``Federal Judgeships: The General Accuracy of District and
        Appellate Judgeship Case-Related Workload Measures''--United
        States Government Accountability Office, available at http://
        www.gao.gov/assets/660/657661.pdf

                       THE FEDERAL JUDGESHIP ACT OF 2013

                                  ----------

                          TUESDAY, SEPTEMBER 10, 2013

                                   U.S. Senate,
             Subcommittee on Bankruptcy and the Courts,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 10:35 a.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Christopher
    A. Coons, Chairman of the Subcommittee, presiding.
        Present: Senators Coons, Sessions, and Grassley.

    OPENING STATEMENT OF HON. CHRISTOPHER A. COONS, A U.S. SENATOR
                       FROM THE STATE OF DELAWARE

        Chairman Coons. Good morning. Please come to order. Welcome
    to this hearing of the Judiciary Committee's Subcommittee on
    Bankruptcy and the Courts.
        America's federal courts serve as a model for courts and
    judicial systems around the world. For a variety of reasons,
    our federal judiciary is, in my view--and I suspect some of the
    panel might agree--without equal. Presidential appointments and
    lifetime tenure insulate judges from political influence.
    Senate advice and consent helps guarantee judicial competence
    and is itself strengthened by the work of key institutional
    players such as the American Bar Association, which publishes
    nonpartisan opinions as to nominees' qualifications. And,
    fortunately, a federal judicial appointment carries with it
    sufficient prestige to lure away many talented nominees who
    might otherwise earn more in the private sector or in academic
    work. It is overall because of the quality of our judiciary
    that John Adams' vision that the United States be a Government
    of laws and not men still holds true today.
        It is the role of the judiciary to determine each case
    according to the law, not according to popularity, political
    influence, money, or the whims of the public. It is the federal
    judiciary that protects the least of us against the abuse of
    our civil rights and liberties, whether by the Government or
    another private party. We must not, however, take our federal
    judiciary for granted.
        As Chief Justice Roberts noted in his 2010 Year-End Report
    on the Judiciary, ``The judiciary depends not only on funding,
    but on its judges, to carry out its mission.'' Unfilled
    vacancies have led judges in many districts to be, and I
    continue a quote, ``burdened with extraordinary caseloads.''
        So, too, does insufficient statutory authorization for
    judgeships burden our courts. Judges on the Eastern District of
    California, which has long been recognized as one of the most
    overburdened in the Nation, would still face over 1,000
    weighted case filings per judge even if the vacancy on that
    court were filled immediately. In my own home in the District
    of Delaware, judges faced weighted filings of over 1,500 per
    judge, and there are no vacancies left to fill on that court.
        As a point of reference, the Judicial Conference generally
    believes additional judicial resources are necessary when
    weighted filings approach 500 per judgeship.
        Senior judges eligible for their pension, but willing to
    forgo potentially lucrative outside employment opportunities or
    more time with their families, continue to hear cases and are
    vital in filling the current gaps. But senior judges are, in
    effect, providing charity to our Government out of their
    commitment to public service and their colleagues and cannot be
    the foundation of a responsible long-term judicial staffing
    model.
        Overburdened judges almost by definition cannot provide the
    level of time and care and reflection they would like to for
    each case before them, especially in a time of stagnant
    compensation and high caseloads. That in combination reduces
    the esprit de corps of the judiciary and makes it marginally
    more difficult to attract the best and brightest to serve.
        Congress has not comprehensively addressed judicial
    staffing levels since 1990, 23 years ago. Over that time,
    caseloads have risen nearly 40 percent, yet authorized judicial
    staffing levels by roughly 4 percent. Put another way, trial
    court weighted filings per judgeship have risen from 386 in
    1991 to roughly 520 today.
        Those national figures mask the dire circumstances faced by
    the most burdened district, such as the Eastern District of
    Texas and the District of Delaware and the Eastern District of
    California. That is why Senator Leahy and I have introduced the
    Federal Judgeship Act of 2013. This is based on the
    recommendations of the nonpartisan Judicial Conference of the
    United States, led by Chief Justice John Roberts. It would
    create six new judgeships in two courts of appeals and 85 new
    judgeships in 29 district courts, for 91 judgeships overall.
        This bill would provide much needed relief to our
    overburdened courts, ensuring they are better prepared to
    administer justice quickly and efficiently. Increasing the
    number of judgeships will help cases move, will reduce
    uncertainty that prevents businesses from creating jobs, and
    permit every American who has been wronged their day in court
    on a reasonable timeline.
        I look forward to the testimony today of our eminently
    qualified panel, which will shed greater light on what the
    judiciary's need for additional resources is and what it would
    do if forced to go without.
        So I would like now to turn to Senator Sessions for his
    opening statement.

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

        Senator Sessions. Thank you, Mr. Chairman, for your
    leadership and for your contribution to the Senate. Nobody
    works harder and thinks more seriously about the many issues we
    face. And I know you have been wrestling with the Syria
    question this past week also, as all of us have.
        Certainly there appears to be a need for new judgeships in
    certain areas of our country, but we have to recognize we are
    in a tight financial situation. We simply do not have the money
    to do everything that may even be good. But I do have some
    questions about where we are and the justifications for 91 new
    federal judges, each one costing approximately $1.1 million. We
    do not have the money to add 91 federal judges, and we are not
    going to add 91 federal judges. That is just not going to
    happen. And I hope you know that, and you have to understand
    that. It is okay to ask, you know, for what you would like to
    have, and all of us could, but it is just not going to happen.
        About a month ago, this Subcommittee heard testimony about
    the impact of sequestration on the courts. Judge Gibbons
    testified that the judiciary has reduced courthouse staffing
    levels in some areas, such as probation and pre-trial services.
    Some federal defender programs have been downsized and face
    some pretty tough cuts, and we have heard from them.
        While both House and Senate Appropriations Committees
    reported bills that would increase appropriations to the
    judiciary, it is unlikely there will be any resolution of
    appropriations this calendar year. Given the probability that
    flat funding will continue, we have to ask, ``Can we add a lot
    of new federal judges? ''
        Beyond costs, there are other aspects that I think we need
    to think about. There are 50 vacant judgeships with no nominee.
    As of today, 37 of the existing judicial vacancies are
    designated as presenting judicial emergencies; 26 of those are
    in circuits and districts where the bill would create new
    judgeships. Perhaps we should reassess the need for judgeships
    after those seats are filled.
        Moreover, I still have concerns about the methodology used
    by the Judicial Conference to calculate the need for
    judgeships. GAO, who we ask to do tough work for us, reported
    on these concerns in 2003, noting that the methodology used by
    the Judicial Conference does not accurately portray the actual
    amount of time judges spend on cases. In its report, GAO made a
    number of recommendations to the Judicial Conference. None of
    those recommendations have been implemented.
        GAO has not updated that report in the decade since its
    original publication, but much has changed since 2003. There
    have been a number of technological advancements since that
    time that have resulted in efficiencies elsewhere in the
    judiciary, such as automation and videoconferencing. We are
    also using a lot more mediation. I have requested GAO to
    undertake a review of the process and methodologies used by the
    Judicial Conference and the Administrative Office of Courts
    when developing a request for additional judgeships.
        It is important to understand the process the judiciary
    uses to develop its judgeship recommendations, especially
    during this time of fiscal restraint.
        So, Mr. Chairman, I would like to offer two statements for
    the record--one from Judge Joel Dubina, who I believe just
    recently stepped aside, or he may be still the chief judge of
    the Eleventh Circuit Court of Appeals. The Eleventh Circuit
    Court of Appeals has the highest caseload per judge in the
    country, and they are not asking for new judges. And Judge
    Dubina lays out, as his predecessor Judge Tjoflat did before
    this Committee on more than one occasion the advantages of a
    more collegial and smaller court, and he warns against ever
    expanding the size of the appellate courts in America. I will
    offer, Mr. Chairman, his testimony in 2009 concerning this
    issue.
        We just simply have to understand where we are, what we can
    do, how much efficiency the courts have achieved--and they have
    achieved some. We have a considerable number of senior judges
    that are carrying heavy caseloads for which we are most
    grateful, probably more than we had in 1991 for sure. And we
    have better clerk situations. Many staff attorneys are in the
    courthouses that do the prisoner appeals and other specialty
    cases such as Social Security. And so there are a lot of things
    the court has done well and should put us in a position to not
    be forced to add quite this many new judges.
        You mentioned Delaware. I see their caseload is one of the
    highest in the district in the Nation, and they are handling a
    surge of patent cases. Well, that sounds to me a real
    justification for us looking to add a judge or more to that
    district because those are the kind of things that Congress
    should respond to. We have the greatest judiciary in the world.
    I am so proud of it. Judges are working hard every day. It is
    not a retirement job anymore, if anybody ever thought it was.
        We thank you all for your good service.
        Chairman Coons. Thank you very much, Senator Sessions, and
    thank you for the recognition that the District of Delaware is
    in some ways uniquely challenged. I appreciate that input.
        Before we begin with witness testimony, I would like to ask
    all witnesses to stand while I administer the oath, which is
    the custom of this Committee. Please raise your right hands, if
    you would. Do you solemnly swear that the testimony you are
    about to give to this Committee will be the truth, the whole
    truth, and nothing but the truth, so help you God?
        Judge Tymkovich. I do.
        Judge Robinson. I do.
        Mr. Sekulow. I do.
        Mr. Reed. I do.
        Chairman Coons. Thank you. Let the record show the
    witnesses have answered in the affirmative. And also without
    objection, submit for the record both the statement and
    testimony referenced by Senator Sessions.
        [The information referred to appears as a submission for
    the record.]
        Chairman Coons. I would also like to enter into the record
    a statement from Senator Leahy, Chairman of the Judiciary
    Committee, on the Federal Judgeship Act of 2013. Without
    objection.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Chairman Coons. Our first witness today is Judge Timothy
    Tymkovich. Judge Tymkovich is a judge for the Denver-based
    Tenth Circuit Court of Appeals where he has served since 2003.
    Judge Tymkovich also serves as Chair of the Judicial
    Conference's Committee on Judicial Resources, which is tasked
    with overseeing the Conference's biannual Article III judgeship
    recommendations, which in many ways are the very foundation and
    focus of our hearing today and the basis of the bill which I
    referenced in my opening statement.
        Judge Tymkovich, welcome. Please proceed.

     STATEMENT OF THE HONORABLE TIMOTHY M. TYMKOVICH, U.S. CIRCUIT
      JUDGE, TENTH CIRCUIT COURT OF APPEALS, AND CHAIR, STANDING
      COMMITTEE ON JUDICIAL RESOURCES, JUDICIAL CONFERENCE OF THE
                         U.S., DENVER, COLORADO

        Judge Tymkovich. Thank you, Chairman Coons, Ranking Member
    Sessions, and Senator Grassley. We appreciate the invitation to
    appear before the Subcommittee today.
        As Senator Coons mentioned, I am a circuit judge for the
    10th Circuit Court of Appeals located in Denver, Colorado, and
    I am Chair of the Judicial Resources Committee of the Judicial
    Conference, the committee that is responsible for developing
    our judgeship recommendations to Congress.
        I am here today to provide information about the judgeship
    needs of the federal courts and the process by which the
    Judicial Conference determines those needs.
        As Senator Coons mentioned, it has been over 20 years since
    Congress has passed comprehensive judgeship legislation. Since
    that time, filings in the district courts have risen 39
    percent, while filings in the circuit courts are up over 34
    percent. Yet the federal judiciary has seen only a 4-percent
    increase in judgeships at the district court level, and no
    circuit judges have been added since 1990.
        To ensure that the judiciary can keep on fulfilling its
    constitutionally mandated role of effectively and expeditiously
    administering justice, the judicial work force needs to be
    increased. And to that end, I would like to thank Senator Coons
    and Senator Leahy for introducing Senate bill 1385, the Federal
    Judgeship Act of 2013.
        The Judicial Conference of the United States supports S.
    1385, which reflects the Conference's Article III judgeship
    recommendations transmitted to Congress earlier this year.
    Specifically, the Conference recommended that Congress do the
    following: create five permanent judgeships and one temporary
    judgeship for the circuit courts; create 65 permanent and 20
    temporary judgeships for the district courts; and convert eight
    current temporary district court judgeships to permanent
    status. These recommendations reflect the current judgeship
    needs of the federal courts, some of which have existed since
    the last judgeship bill passed in 1990.
        The lack of additional judgeships, combined with
    significant growth in the caseload, has created enormous
    difficulties for many courts across the Nation, but it has
    reached urgent levels in at least five districts. Senator Coons
    mentioned the District of Delaware, and we will hear more about
    that district this morning from Judge Robinson.
        The Eastern District of California, the Eastern District of
    Texas, the Western District of Texas, and the District of
    Arizona are all suffering under crushing caseloads. Each of
    those courts has over 700 weighted case filings per judgeship
    over the last 3-year period while compared to our standard of
    430 weighted cases.
        As an example, the Eastern District of California has been
    dealing with these high caseloads for several years, and
    despite the use of magistrate and senior judges, with the
    assistance of over 80 visiting judges from courts throughout
    the circuit, parties seeking civil jury trials in that district
    must wait an average of about 4 years for their trials to
    begin, almost 2 years longer than the national average.
        Judge Robinson will talk about Delaware, but the increase
    in patent filings that Senator Sessions mentioned has really
    created an enormous burden on that court, with over 1,100
    weighted filings per judgeship, the most in the country
    currently.
        The districts of Arizona and Texas, of course, have
    experienced high caseloads because of their border status and
    the number of immigration cases that they face.
        These facts are not meant to diminish the needs of the
    other courts in the Conference's recommendation. They just
    highlight the need across the Nation.
        Indeed, the circumstances in those courts are not that much
    different. Unless their needs are addressed, courts throughout
    the country will be dealing with critical situations.
        That is not to say the Conference recommends or wishes an
    indefinite growth in judgeships. It recognizes that growth in
    the judiciary must be carefully limited to the number of new
    judgeships that are necessary to exercise federal court
    jurisdiction. Moreover, the Conference is mindful of the
    economic realities that Congress faces. As such, we acknowledge
    that all these judgeships may not be created in a single
    legislative vehicle and that some prioritization may have to
    occur.
        Briefly, as I mentioned in my written testimony, the
    Conference's recommendations are the result of a six-step
    biennial survey conducted at the district and circuit level. I
    detail that process in my written statement, and I will only
    highlight that the process requires a comprehensive interaction
    with the requesting courts, my committee, and the Judicial
    Conference of the United States.
        I want to emphasize that any court that does not request an
    additional judgeship will get one, and the Conference does not
    consider recommending an additional judgeship if the court does
    not ask for one.
        In sum, the Conference process is a conservative one with
    each step reviewing whether an additional judgeship is truly
    necessary. We have tools to accomplish this. We ask for
    temporary judgeships rather than permanent judgeships. We
    analyze the use of senior judges, visiting judges, and
    magistrate judges throughout the system. We look at alternate
    dispute resolution, mediation, and the use of staff counsel.
    Through all these tools, we tailor a conservative approach to
    our requests to Congress and before this Committee. Without
    these additional resources, the federal courts across the
    country will begin to struggle to fulfill their
    constitutionally mandated role.
        Thank you for scheduling this hearing so that I may address
    these issues, and I look forward to answering your questions
    that follow.
        Thank you.
        [The prepared statement of Judge Tymkovich appears as a
    submission for the record.]
        Chairman Coons. Thank you very much, Your Honor.
        Our next witness is Judge Sue Robinson. Judge Robinson
    currently sits on the U.S. District Court for the District of
    Delaware. Judge Robinson was nominated by President Bush on
    October 1, 1991, and confirmed just over 1 month later--a model
    for prompt consideration by this body that I might suggest we
    should try harder to follow today. Having taken office in 1991,
    Judge Robinson was confirmed shortly following the last
    comprehensive judgeship bill and can speak to the circumstances
    since then and the rising caseloads and their impact.
        Just as a personal aside, Judge Robinson sits in the seat
    formerly held by Judge Jane Roth, for whom I clerked on the
    Third Circuit, and a treasured mentor.
        Judge Robinson, it is an honor to have you here today.
        Please proceed.

       STATEMENT OF THE HONORABLE SUE L. ROBINSON, U.S. DISTRICT
           JUDGE, DISTRICT OF DELAWARE, WILMINGTON, DELAWARE

        Judge Robinson. Thank you very much. Good morning, Senator
    Coons, Ranking Member Senator Sessions, and Senator Grassley.
    On behalf of the United States District Court for the District
    of Delaware, I thank you for the opportunity to appear before
    the Committee today to share with you some information about
    the court in relation to the Federal Judgeship Act of 2013. And
    because my time is limited, I will skip my wonderful story
    about Judge Roth and move on, so hopefully you will read the
    statement.
        Let me step back. The District of Delaware has had four
    judges since 1985, although we had a vacancy for almost 4 years
    from 2006 to 2010. In the year 1991, when I first came on the
    bench, 37 patent cases were filed in the District of Delaware,
    about nine cases per judge. At that time, even nine patent
    cases was not an insignificant number of cases per judge. With
    the exception of 1 year, since the year 2000, the District of
    Delaware has been among the top five districts in the country
    in terms of the raw numbers of patent cases filed and has had
    more patent cases per judgeship than any other district. As of
    August 31, 2013, there have been 1,394 patent cases filed in
    the District of Delaware so far in Fiscal Year 2013. The patent
    filings per authorized judgeship using completed Fiscal Year
    2012 was 202 patent filings per judge. You can see how that
    number compares to other high-volume courts in the graphs that
    accompanied my statement.
        In terms of the statistic that the Judicial Conference of
    the United States uses to justify the authorization, the
    current national standard of weighted filings per judgeship is
    500 cases. The District of Delaware has 1,812 weighted filings
    per judgeship, exceeding the national standard by several
    times.
        But it is more than the sheer number of cases that makes
    our need for the fifth judgeship such a compelling one. Whether
    you characterize the magnitude of the case load pre-AIA or
    post-AIA, the complexity of the mechanics to resolve these
    cases is the same. In other words, whether you have ten
    defendants in one case or ten cases each with a single
    defendant, the process starts with motions to dismiss. It goes
    on to a discovery practice, which is the part of the process, I
    believe, subject to the most abuse by the bar, and would
    benefit most from the supervision of the court.
        When the parties have completed discovery, the next steps
    in a patent case typically include claim construction, a
    requirement unlike any found in other civil cases in the
    submission of summary judgment motions.
        If there are issues left to be tried at the conclusion of
    this motion practice, you as a judge have to decide motions in
    limine and conduct the bench or jury trial with the evidentiary
    disputes that inevitably arise during trial.
        Your final responsibility is to review the dispute yet
    again post-trial. And just when you think you have fulfilled
    your responsibilities as a trial judge, the case is appealed to
    the Federal Circuit, which may remand the case back for further
    proceedings.
        And in Delaware, the judges go through this process
    continually, always with the overlay of technology inherent in
    patent litigation, whether you are dealing with chemical
    patents or software patents. Clearly, the mechanics of a patent
    case are complex and burdensome, and the court's resources to
    manage the case will never equal the resources of the parties
    to litigate the case.
        In just one of my patent cases tried in this Fiscal Year
    with a single plaintiff, a single defendant, and ten patents at
    issue, the parties filed 13 dispositive motions accompanied by
    782 pages of briefing, with over 8,500 pages of appendices, 8
    boxes of trial exhibits, and with at least 46 lawyers involved
    in the litigation. And, of course, besides the patent
    litigation, we also have our criminal caseload and our other
    civil docket that we need to follow.
        So for judges like me who have been on the bench for
    decades, I cannot really quantify for you the workload
    associated with the caseload, except that I have two law clerks
    versus the 46 lawyers in a typical patent case.
        I take my responsibilities as a trial judge seriously, as
    do my colleagues. We have taken an oath to give every party in
    our court due process, regardless of who the party is, and
    ensuring due process means giving every party a fair and
    reasonable opportunity to demonstrate the merits of its
    allegations. So long as the Patent and Trademark Office
    continues to issue patents that have the potential for
    impacting the market, there will continue to be business
    disputes over the metes and bounds of the monopolies associated
    with those patents. It is both a privilege and a weighty
    responsibility to help the parties resolve those disputes, but
    the court cannot do so without sufficient resources. Due
    process, not the numbers, is what is driving our request for a
    fifth judge.
        Thank you for your kind attention.
        [The prepared statement of Judge Robinson appears as a
    submission for the record.]
        Chairman Coons. Thank you, Your Honor.
        Our next witness is Jay Sekulow. Mr. Sekulow is director
    and chief counsel for the American Center for Law and Justice--
    the American Center of Law and Justice. I think I misspoke. In
    that role, Mr. Sekulow has argued a number of high-profile
    appellate cases before various courts of appeal and the U.S.
    Supreme Court. Some of his more recent advocacy includes
    litigation in the D.C. Circuit concerning the Affordable Care
    Act and President Obama's recess appointments of Commissioners
    to the NLRB. Mr. Sekulow is an author and frequent blogger and
    hosts the syndicated daily radio show ``Jay Sekulow Live.''
        Mr. Sekulow, please proceed.

     STATEMENT OF JAY ALAN SEKULOW, CHIEF COUNSEL, AMERICAN CENTER
                  FOR LAW AND JUSTICE, WASHINGTON, DC

        Mr. Sekulow. Thank you, Mr. Chairman. Chairman Coons,
    Ranking Member Sessions, it is a privilege to be before you
    today on behalf of the American Center for Law and Justice.
    Thank you very much for the opportunity to allow me to address
    the Federal Judgeship Act of 2013.
        As an officer of the court for more than 30 years and as
    someone who has litigated, as you mentioned, Senator Coons, 12
    cases before the Supreme Court of the United States--I have
    also presented arguments before the International Criminal
    Court in The Hague--I have a deep respect for our federal
    judiciary, and I am honored to be before you today to share my
    views about how to best preserve what I have seen in my global
    practice to be the greatest legal system in the world.
        Many of my comments today reflect the views contained in a
    memo that we at the American Center for Law and Justice
    released in 2009 when Senator Leahy introduced the Federal
    Judgeship Act of 2009. I have submitted a copy of that and
    request that it be part of the record.
        Chairman Coons. Without objection.
        [The information referred to appears as a submission for
    the record.]
        Mr. Sekulow. While the bill before us today varies slightly
    from that regarding numbers, I think it is important to point
    out that there is no question in our view that Congress has a
    duty to ensure the existence of a federal judiciary that is
    properly equipped to handle the caseload that is expected of
    it. And it sounds like, from the previous testimony, patent law
    must be the area to go into these days. This includes an
    obligation to ensure the proper number of judges, adequate
    funding, and as much independence of the judiciary from
    political influence as is reasonably possible.
        With these criteria in mind, the ACLJ agrees with members
    of this Subcommittee on both sides of the aisle that Congress
    should create new judgeships when there is a clear and
    demonstrable need for them. However, even when there is
    justification for incurring the significant cost that is
    associated with creating these judgeships, it is imperative
    that Congress do so in a way that vigilantly guards the
    independence of the judiciary. We suggest this Subcommittee
    take the following actions as it debates this bill and it moves
    forward.
        I do want to point out very quickly, though, that when we
    look at the judicial vacancy situation right now--and I will
    just focus for a moment on the emergency vacancies--there are
    at the district court level right now 30 vacancies that are
    emergencies. Seventeen of those vacancies that are emergencies
    do not even have a nominee. At the circuit court of appeals,
    where there are 17 total vacancies, there are seven vacancies
    that are deemed emergency. Four of the seven vacancies that are
    emergencies do not even have a nominee. So there is much to be
    said for the process in regard to nominees as well.
        First and foremost, with regard to the bill, we are
    concerned that the legislation invokes an undue amount of
    partisan influence into the makeup of the federal judiciary.
    This concern, in our view, is triggered by both the fact that
    there is not a delay in the effective date of the legislation
    and the structure of the temporary judgeships that are created
    under this Act.
        Regarding the effective date, the ACLJ believes as a matter
    of sound principle that all new judgeships should come into
    effect after the next Presidential election, be it Republican
    or Democrat. That removes any taint or hint of partisan nature
    in this process. It also reduces the appearance to some that it
    is an effort to pack the courts. And that has been a comment
    that we have received from a number of people.
        Regarding the temporary judgeships created by this Act, the
    current construct of the legislation does not actually create
    temporary judgeships but, rather, creates several permanent
    judgeships to be filled by the current President, and then
    subsequently eliminates the authority of a future President to
    fill the vacancy on that same court until sometime in the
    future. Again, similar to our concerns about the effective
    date, this construct injects, in our view, too much partisan
    influence into the process and should be modified to preserve
    the integrity of the judiciary and retain a proper amount of
    separation for members of this Subcommittee and the Senate as a
    whole.
        Next, while I indicated that the ACLJ does support the
    creation of new judgeships when there is a clear and
    demonstrable need, it is important that we do not fall prey to
    the suggestion that more is better or bigger is better. There
    is a high cost associated with every new judgeship. The
    estimates I have seen run--and I think Senator Sessions said
    this--approximately $1.1 million a year for every new judge.
    There have been published reports that new judges are
    initially, of course, less productive than their more senior
    peers. That being said, this is a $1 billion bill. As stewards
    of the American taxpayers' dollars, Congress must give this
    cost careful consideration.
        Further, in our view, there is a strong case to be made
    that it is often more effective to provide existing judges with
    additional resources than it is to create new judgeships. In
    many cases, this produces better results at a lower cost.
    Although we are perfectly understanding and appreciative of the
    Committee's concern about following through with where there is
    real need for new judges, new judges should be moved through
    the process.
        Finally, in our view, it is prudent to consider that an
    ever-expanding court can lead to instability in the law. This
    occurs when you have these jumbo courts or these super
    tribunals as you see in the Ninth Circuit Court of Appeals.
    Again, more is not always better: and while Congress has an
    obligation to ensure that enough judgeships exist and that they
    have proper resources, it also has an obligation to weigh the
    cost and to help the courts operate effectively.
        In conclusion, the ACLJ thanks this Subcommittee for its
    dedication to our judiciary and requests that careful
    consideration be given to these concerns in order to ensure
    that our taxpayer dollars are spent carefully and in order to
    preserve the independent judiciary that all of us are rightly
    proud of.
        Thank you, Mr. Chairman, Ranking Member Sessions.
        [The prepared statement of Mr. Sekulow appears as a
    submission for the record.]
        Chairman Coons. Thank you, Mr. Sekulow.
        Our final witness today is Michael Reed. Mr. Reed is a
    partner in the Philadelphia office of Pepper Hamilton, where he
    is a member of the firm's corporate restructuring and
    bankruptcy practice group and concentrates in the field of
    bankruptcy and insolvency. Additionally, Mr. Reed chairs the
    American Bar Association's Standing Committee on Federal
    Judicial Improvements and is the State delegate for
    Pennsylvania in the ABA House of Delegates.
        Mr. Reed, welcome. Please proceed.

      STATEMENT OF MICHAEL H. REED, CHAIR, STANDING COMMITTEE ON
     FEDERAL JUDICIAL IMPROVEMENTS, AMERICAN BAR ASSOCIATION, AND
          PARTNER, PEPPER HAMILTON, PHILADELPHIA, PENNSYLVANIA

        Mr. Reed. Chairman Coons, Ranking Member Sessions, and
    Senator Grassley. I thank Chairman Coons for helping me shorten
    my remarks. I am here today at the request of ABA President
    James R. Silkenat to express our support for Senate Bill 1385,
    the Federal Judgeship Act of 2013, which is based on the
    detailed assessment of judgeship needs of the federal judiciary
    released by the Judicial Conference of the United States. We
    appreciate the Subcommittee affording me the opportunity to
    testify. I am a bankruptcy lawyer, and I practice primarily in
    the federal courts, and I am also a former president of my
    State bar.
        Last month, the American Bar Association's House of
    Delegates, which establishes policy for the association,
    unanimously adopted a resolution supporting the enactment of
    comprehensive legislation to authorize needed permanent and
    temporary federal judgeships, with particular focus on the
    federal districts with identified judicial emergencies, so that
    all federal courts may adjudicate all cases in a fair, just,
    and timely manner.
        Accordingly, the American Bar Association thanks you for
    introducing Senate Bill 1385 on behalf of the judiciary and
    applauds you for holding this hearing, which will help
    highlight a growing problem that should concern every Member of
    Congress as much as it does the American Bar Association, which
    is that insufficient resources are diminishing the ability of
    our federal courts to serve the people and deliver timely
    justice.
        When federal courts do not have sufficient judges to keep
    up with the workload, civil trial dockets take a back seat to
    criminal dockets due to the Speedy Trial Act. This has real
    consequences for the financial well-being of communities and
    businesses and the personal lives of litigants whose cases must
    be heard by the federal courts, for example, cases involving
    the constitutionality of a law, unfair business practices under
    federal antitrust laws, patent infringement, police brutality,
    employment discrimination, and bankruptcy.
        The negative consequences of too few judges have been
    exacerbated by the across-the-board budget cuts mandated by
    sequestration this fiscal year. Staff layoffs and furloughs and
    reductions in services and operating hours implemented in
    courts across the country in response to sequestration have
    made it even more difficult for courts with too few judges to
    keep up with caseloads and deliver timely justice.
        The combination of too few judges and insufficient funding
    is creating a resource crisis for the federal judiciary. In the
    district courts, the number of civil cases pending 3 years or
    more has risen significantly since 1990. While the ABA has long
    advocated for increased resources for the federal judiciary,
    the current state of affairs prompted our ABA president to take
    the unusual step of sending a communication last month to all
    390,000 members of the American Bar Association to urge them to
    take action.
        While we are here to support enactment of Senate Bill 1385,
    there are also several steps short of enactment of Senate Bill
    1385 that Congress could take to help the judiciary maintain
    its excellence and serve the people in a timely and just
    manner.
        First, Congress should establish new judgeships in the five
    district courts singled out by the Judicial Conference for
    immediate relief: the Eastern District of California, the
    District of Arizona, the Western District of Texas, the Eastern
    District of Texas, and the District of Delaware.
        Second, Congress should convert the eight temporary
    judgeships into permanent judgeships or at least extend their
    temporary status for 10 years or more. Without reauthorization,
    all eight will lapse next year.
        Third, Congress should take steps to assure that the
    judiciary has sufficient resources to handle new
    responsibilities resulting from enactment of legislation that
    expands federal court jurisdiction or is expected to
    substantially increase the workload of the federal courts.
        Fourth, Congress should make the filling of judicial
    vacancies a priority and work with common purpose to reduce the
    longstanding 10-percent vacancy rate. As of September 8, there
    were 94 vacancies on the courts, 38 of which have been
    classified as judicial emergencies by the Administrative Office
    of the U.S. Courts. Filling these vacancies expeditiously would
    provide immediate and lasting relief to the courts.
        And, finally, fifth, the ABA urges Congress to protect the
    federal judiciary from future deficit reduction and to increase
    funding for Fiscal Year 2014 to the Senate Appropriations
    Committee's recommended funding level of $6.67 billion.
        Finally, I would like to note with regard to the vacancy
    issues, there are presently pending 45 nominations--34 pending
    in Committee, 11 pending on the Senate floor.
        Thank you for the opportunity to express the views of the
    American Bar Association on issues so central to our mission.
        [The prepared statement of Mr. Reed appears as a submission
    for the record.]
        Chairman Coons. Thank you.
        We will now beginning rounds of questioning. Mr. Reed, if I
    might start with you, I certainly agree, as a number of
    witnesses have suggested, that we can and should do more to
    fill the existing vacancies, and I have worked diligently with
    my colleagues to make sure that we are getting nominees both to
    the White House potential candidates and the nominees to the
    Committee and then to the floor. But as you know, we have other
    challenges in getting things moved through the floor.
        Let me step back, Mr. Reed, and ask sort of a most basic
    question. Why should the average citizen care about judicial
    staffing levels?
        Mr. Reed. Well, we have three branches of Government, as
    the Senator knows, and the judicial branch performs the
    important function of adjudicating controversies that are
    within federal jurisdiction. A vital function of Government is
    the fair and effective and timely resolution of disputes--
    patent disputes, business disputes, civil rights disputes,
    employment discrimination disputes, the wide range of disputes
    that fall within federal jurisdiction. So it matters to the
    public--this is a service that Government provides--and it
    matters to the public when that service is not provided in a
    timely, fair, and effective manner. It is a bread-and-butter
    issue for the public, I think.
        Chairman Coons. I agree, and I hope many of my colleagues
    will agree as well.
        Judge Tymkovich, in the past there have been some
    challenges, some criticism regarding the Conference's
    methodology for evaluating a district's request for additional
    judgeships. Would you briefly describe the process that the
    Judicial Conference undertakes when gathering data and when
    compiling its biannual Article III judgeship recommendation?
        Judge Tymkovich. Thank you, Senator. The process really is
    a comprehensive and exhaustive process. It is something that we
    do every 2 years, and I have been on my committee for 6 years
    now, so this is the third time that we have updated and
    refreshed our recommendations to Congress.
        The process, of course, starts with the courts that assess
    their needs and make a request to the Subcommittee on Judicial
    Statistics. Those courts look at their case filings, they look
    at factors internal to the court, they look at trends and make
    a request to the Committee that a new judgeship be considered.
        The Subcommittee does not take that request at face value.
    We do additional work in analyzing the workload of that court.
    We look at their case filings, their weighted filings, pursuant
    to our process. We look at the assistance those courts have
    from other jurisdictions or within a circuit or within a
    district. Can judges visit from other circuits? What is their
    allocation of senior judges? Can senior judges assist? And what
    allocation of workload do they undertake? What is their use and
    numbers of magistrate judges that can assist the district
    judges? So we look at those factors on assistance.
        Then we look at the unusual factors dealing with case
    complexity in a particular district, so in Delaware, they have
    an extremely high weighted caseload because of the complexity
    of the patent cases that they tend to see. So we look at that
    as a part of the overall assessment of whether there is a need
    for new judgeships.
        Next we look at the geography. Is it a widespread district
    or, you know, a circuit with far-flung offices or divisions?
    That affects the delivery of judges to courthouses within those
    courts.
        And then, finally, we look at case trends. Has there been a
    spike for some reason that is exogenous to the court? Or does
    it look like there is a trend, either upward or downward, that
    we should pay attention to?
        So the Subcommittee evaluates all those factors and then
    makes a recommendation back to the court whether we agree or
    disagree with their initial recommendation. The court evaluates
    that at the Circuit judicial counsel level, then makes a
    recommendation back to the Subcommittee. That is step four of
    our process. We then do a final review, and we either agree or
    disagree. And we do disagree. We recommended that positions not
    be created or positions not be filled. This last set of
    recommendations, for example, had three or four additional
    judgeship requests that were not recommended by the Conference
    because the JRC did not approve the requests from the courts.
        So, finally, that process goes to the full Judicial
    Resources Committee, then it goes to the Judicial Conference
    for approval, then over to Congress.
        Chairman Coons. Are you confident that that methodology
    takes into account both the in-court and out-of-court
    responsibilities of a judge, looks at all the different areas
    in which judicial focus and competence----
        Judge Tymkovich. Yes, it is a holistic overview, and if I
    could comment on the GAO study, the case-weighting methodology
    is just one part of the multi-step process that I have
    indicated. The GAO has made the criticism, as Senator Sessions
    made, in 2003. Our FJC, the Federal Judicial Center, and an
    academic evaluated our methodology, and we respectfully
    disagree with GAO's criticism of our study.
        In fact, the GAO recommends that we go back to more of a
    time-based study, which we had in an earlier case-weighting
    methodology in the 1990s. Well, we have compared our current
    methodology with the time study, and it turns out that there is
    really not a material difference in the weighted outcomes that
    are a result of those two studies. In fact, the timing study
    had slightly higher case weightings than the current study we
    use. So we are quite confident that our methodology yields
    accurate results.
        And I might add, the judiciary is not asking for the
    creation of judgeships in marginal courts. If you look at the
    recommendations, the district courts in our recommendations are
    way above our 430 national average. It is in the 600s. So we
    are not talking about marginal courts. We are talking about
    very busy courts. Only two circuit courts have asked for
    additional judges, and the averages in those circuit courts are
    well over 700 compared to our 500 case filings per panel per
    year. So we are talking about busy courts that really have a
    demonstrated need.
        Chairman Coons. Thank you very much, Your Honor.
        Senator Sessions.
        Senator Sessions. Thank you.
        Well, my thought is that the courts are able today to
    handle more cases than they have been able to do in the past
    and that some of those numbers should be changed. I am not sure
    that you should not listen to GAO. We insist that agencies of
    the Government, including the Department of Defense, listen to
    GAO's suggestions. And I am not aware that the court has made a
    formal evaluation of their recommendations.
        But, for example, my concern would go to the authorized
    district judgeships according to--well, weighted case filings
    per authorized judgeship was 430; adjusted filings for a three-
    judge court of appeals panel were 500. They are the same as
    they were 20 years ago. Is that not right, Judge Tymkovich?
        Judge Tymkovich. They were modified in the--I think we
    adjusted them in the early 2000s.
        Senator Sessions. Where are you now?
        Judge Tymkovich. We are at 430 after accounting for
    additional requested judgeships. Previous to that it had been
    at 400, and the Conference made that change in the early 2000s.
        Senator Sessions. Not a lot. Looking at the numbers, the
    court of appeals, 10 percent of their cases now, a little over,
    are immigration cases, which seem to me rather simple cases
    compared to a complex patent case that has been tried for
    weeks. Civil appeals since 1991 have risen only 8 percent.
    Criminal cases are up by 33 percent since 1991. But we have
    had--that is appeals. And the most dramatic increase in civil
    appeals was prisoner appeals. Those have increased by 37
    percent.
        But as the law has matured and prisoner appeals in
    immigration cases, it would seem to me that those cases would
    take a smaller percentage of time of the appellate judges,
    Judge Tymkovich, than maybe they did in 1991.
        Judge Tymkovich. Well, certainly, Senator, we have had an
    explosion in immigration cases. Overall since 1990, our
    caseload is up 15,000 cases in the appellate courts, and as I
    mentioned in my statement, we have had no additional circuit
    court judges. So we are doing our best to leverage a
    substantial increase in caseload through some of the techniques
    I have mentioned. But, you know, frankly----
        Senator Sessions. Well, you are doing better. You have got
    more clerks. You have got better----
        Judge Tymkovich. We do.
        Senator Sessions [continuing]. Clerks in the clerk's
    office. You have got more computers. You have got the ability
    to research cases quicker with computer systems than having to
    pull down books and make copies of them as they used to do. So
    there is a lot of progress, which I give the courts credit for.
    I would just note that the Eleventh Circuit has the highest
    caseload per judge in the country, and they do not want any
    more judges. They are getting by, and they work hard, and they
    are proud of their productivity, and other circuits, too.
        Now, with regard to the district courts, Judge Robinson,
    the 1,100 cases, giving you the highest caseload in the
    country, does include a factor that gives you credit for the
    more complex cases. Is that correct? And do you think that
    gives you enough credit?
        Judge Robinson. I have no idea whether it does or not
    because these are such complex cases, and it is hard to
    quantify the contemplation and the investigation you have to
    spend, understanding the technology in the first instance,
    before you even get to the legal issues that the parties
    present to you in the second instance.
        Senator Sessions. It sounded like that to me, but in
    addition to that, these have huge economic impacts on the
    country sometimes, do they not?
        Judge Robinson. They do indeed.
        Senator Sessions. You really have to give them a lot of
    time, and they are complex. I just wanted to recognize that.
    However, I would note that Social Security cases, you have--
    most courts have clerks that specialize in that.
        Judge Robinson. We do not as a small court, and they are
    important cases, and we----
        Senator Sessions. Do you have a habeas specialist?
        Judge Robinson. We have one habeas and one pro se clerk who
    does most----
        Senator Sessions. And that is criminal--prisoner appeals,
    and those have increased significantly, even after our reform
    law. But many of those just simply do not meet the legal
    standards and are dismissed promptly because they do not, with
    or without opinions.
        Judge Tymkovich, my time is running out, but the recent
    bills to add judges have proposed increased filing fees to pay
    for the new judges, to try to stay within budget or not adding
    to the debt. I would just add it still violates the Budget Act
    and would be subject to a budget point of order because you are
    spending more than we agreed to spend. And you are saying,
    ``But that is okay, I have raised taxes.'' But we really ought
    to ask the question, if we are going to raise taxes or fees, in
    your case, if we raise fees on criminal filings, maybe we
    should spend the money on something else rather than just
    adding judges.
        But does the Judicial Conference support the raising of
    filing fees for additional judgeships to pay for it?
        Judge Tymkovich. Senator, that is a really difficult
    question, and we have endorsed the bankruptcy bill, which did
    increase some filing fees. But we have very strong concerns
    about increasing fees. We are really not a revenue-generating
    branch of Government. We only have limited areas where we can
    do that. So for the most part the Conference does not support
    raising filing fees to solve our problem, nor would it be an
    adequate approach. And I think there are collateral
    consequences to that--the access to the courts and the like.
        We do not have the opportunity to cancel programs. Our
    workload is filing driven. We react to the caseload, and we do
    not have a chance to take some other steps that other areas of
    Government do. So, in short, we have very grave concerns about
    these fees getting too high.
        Senator Sessions. Well, I can understand that, and it is a
    difficult choice. You do not want to get it so expensive that a
    person cannot have their day in court.
        Will we have a second round?
        Chairman Coons. Absolutely.
        Judge Robinson, if I might, I would just like to explore a
    little bit further how the District Court of Delaware has been
    able to meet steadily swelling caseloads, which now have hit
    record levels despite flat judicial staffing, and the impact of
    sequestration, as referenced by Mr. Reed and others, on the
    staff support. I think Senator Sessions correctly notes that
    since 1990 there have been significant advances in terms of
    computer resources, modernization, automation, and clerks. But
    in the last year, sequestration has cut back on many of those
    advantages by reducing staffing from underneath judges.
        What have you been doing to deal with the caseload steadily
    going upward since you have gone to the bench? And what are the
    limits on the courts' ability to adapt as we go forward?
        Judge Robinson. Well, I believe the District of Delaware
    has had a reputation dating back to the late 1990s when the
    patent caseload started to increase, my colleagues, like Joe
    Farnan and Rob McKelvey, with those, of being innovative in
    terms of managing our complex litigation, including the
    introduction of time to trials, separating or bifurcating
    issues, and encouraging litigants to choose representative
    claims and defenses.
        We have a small court. We have not yet adopted rules.
    Therefore, we allow the judges to experiment with different
    case management techniques and choose those that are most
    consistent with their experience and with their strengths and
    weaknesses as jurists.
        The only way that I manage to keep up is to have an
    excellent staff, to keep up with the paper and the cases, to
    prioritize, and the real limit is time. Setting a trial date as
    a trial judge is the one thing you can do to keep the parties
    focused on resolving the dispute, through mediation, through
    motion practice, or ultimately through trial. There is almost--
    I am double and triple booked with patent trials through 2015.
    There is only so much that one--and that does not include the
    incidental other civil trials that will come up or the criminal
    trials I have to accommodate. There is only so much time that
    we have. You can only do that by timing your trials and giving
    the parties limited opportunities to present their case through
    trial.
        So to some extent, despite all the additional technologies
    we have and an excellent staff, there is almost nothing more
    that I can do at this point with respect to getting my cases
    resolved timely.
        Chairman Coons. Thank you, Your Honor. And in your years of
    service, which are almost exactly the same period since the
    last comprehensive judgeship bill, and during those 23 years
    the workload has steadily increased, and you have seen some
    very capable judges come and go, some of the members of our
    bench that you referenced.
        How do you see the increasing caseload impacting judicial
    morale and the ability of the federal bench to attract the best
    and brightest? And, Judge Tymkovich, I would also welcome your
    response to that. Judge Robinson?
        Judge Robinson. My father was a pilot, and I grew up around
    airports, and I see my job as an air traffic controller. And I
    see an unending line of airplanes in the flight pattern waiting
    for their touch-and-go in Delaware on the way to Washington to
    the Federal Circuit, to tell you the truth. And when you have
    this complex, burdensome process that you do over and over and
    over again, with dwindling resources and certainly nobody
    patting you on the back, the best you can do is get an
    affirmance by a Federal Circuit, generally on different
    reasoning than the ones you have given them, it does get----
        [Laughter.]
        Chairman Coons. Duly noted, Your Honor.
        Judge Robinson. Right. It gets difficult to feel as though
    what you are doing makes a difference. And I love my job, but--
    and I almost feel sorry for the judges who are just coming on.
    At least I have grown with this increasing caseload. To be
    handed it first thing has got to be difficult.
        Chairman Coons. As a member of the Committee who also
    chairs confirmation hearings for judicial nominees and has had
    a number of classmates and colleagues now come before this
    Committee, I am struck by what I think is their likely
    trajectory in terms of caseload and the financial challenges
    that every federal function faces.
        Judge Tymkovich, if you might briefly just also speak to
    the challenges in terms of retaining and recruiting the best
    and brightest of the American Bar to be willing to serve as
    part of the federal bench.
        Judge Tymkovich. Senator, it is a great honor to serve as a
    federal judge, but as the Chair of a program committee that has
    budget responsibilities, the last few years have been real
    challenges. I think the federal judiciary has been a leader in
    cost containment efforts. As Judge Gibbons testified, we have
    avoided costs of close to $1 billion by some of the steps we
    have taken dealing with our rent and our personnel costs over
    the last 3 years. But that cannot continue. We are down 1,100
    employees since 2011. At the sequestration levels, we might
    have to lay off another 2,100 employees out of a 22,000
    employee work force over the next couple years.
        So these are serious times, and those issues, that lack of
    support has a real effect on the judiciary. And I think, you
    know, it is a dedicated and really high esprit de corps
    institution. I am proud of my colleagues, but it has become a
    very difficult time for us.
        Chairman Coons. Well, I am grateful for your public
    service, both of you. I was really moved by Judge Roth's
    tireless dedication to her work and by how thorough a judge she
    was and by how attentive she was to every detail. Her mastery
    of the record really was something that encouraged me to go on
    and consider public service.
        Judge Tymkovich. She was one of our best.
        Chairman Coons. I just want to thank you both for your
    testimony today.
        Senator Sessions.
        Senator Sessions. I knew Judge Roth, too. She was
    remarkable.
        Let me ask you this: Mr. Tymkovich, in 2006, the number of
    appeals filed per circuit fell through 2012. There were 8,024
    appeals, and in 2012 there were 6,714. That is an over 10-
    percent decline in the number of appeals--excuse me. That is
    not correct. That is one circuit's numbers. But it does appear,
    does it not, that you in recent years have not seen a
    significant increase in the number of appeals? Let us see.
    Well, almost all of these circuits. I am looking at--every
    circuit seems to have had a decline. Every circuit has had a
    decline, I believe I can say with confidence.
        So since 2006, you were getting by in 2006. Why can't you
    get by today?
        Judge Tymkovich. Thank you, Senator. I think I understand
    the gist of the question, and I think it really demonstrates
    the essential conservatism of the requests that we make to the
    Senate. For example, 2 years ago, our appellate request was, I
    think, around nine circuit judges. This time it is only six; it
    is only in two circuits. And even the request in the Ninth
    Circuit is less than it was the last go-round.
        We also asked for a temporary judgeship instead of a
    permanent judgeship, recognizing the fact that if there are
    fluctuations in workload, that is one way for the Senate to
    accommodate that. So I think that we have reacted to changing
    caseloads.
        Senator Sessions. Well, the appeals have gone down since
    2006, it seems quite clear.
        Mr. Sekulow, you raised something and you have said openly
    what a lot of us have thought about but have not really
    discussed. If we add 91 judges, should one President get to
    appoint all those judges? And by putting it past the election,
    at least the American people sort of are on notice that the
    next President is going to appoint a bunch of federal judges.
        Mr. Sekulow. Senator Sessions, the current plan in the bill
    basically doubles the number of vacancies pending before the
    entire judiciary. Doubles that number. That would authorize the
    current President to increase in this particular bill 91
    additional judges. And what is interesting that Judge Tymkovich
    said, three of which his committee, the Judicial Committee, did
    not ask for. That is about $3,300,000 worth of expenditures. So
    to put it into a perspective of doubling the number of
    vacancies, in every Presidential election, no matter Republican
    or Democrat, there is always a discussion of the number of
    vacancies and how many were confirmed: and we always compare
    the confirmation process numbers versus the previous
    administration. And generally, if you look at the history, it
    is running about the same: the percentage of confirmations is
    pretty close. The fact is this doubles--one President doubles--
    under one Presidential administration doubles the number of
    vacancies, which then becomes a political tool as far as
    percentages go: but also, it looks like--I mean, if you were
    just to talk to the American people about this--it looks like
    court packing. I am not saying that is the intent. I am
    certainly not trying to disparage the Committee here or the
    people who are testifying today. I have tremendous respect for
    the federal courts and these judges. But the number of
    vacancies doubles under one Presidential administration.
        There is a way to handle that. It could be staggered. You
    could do it a third, a third, a third, over 12 years. You could
    put the whole thing off for another----
        Senator Sessions. Thank you for sharing that, and we have
    never discussed that, to my knowledge, openly. But I think that
    is a realistic thought.
        Looking at the district court filings, Judge Robinson, in
    many areas there is a decline. You have an increase in
    immigration, I think as was noted. But many of those cases are
    handled quickly and are not the kind of big trials that a
    patent case or a bank fraud case would be.
        Just looking at the data, in 2007, this area increased.
    Property offenses were 12,208. They went up to 13,340 in 2011.
    But others are different. Embezzlement, 591 in 2007; 552 in
    2011--a drop there. Fraud cases went up from 7,700 to 9,300.
    But financial institution fraud, big cases there were 679 in
    2007 and only 570 in 2012. Social Security cases were 699 in
    2007, 527 in 2011. Forgeries and counterfeiting dropped from
    868 to 737. Drug offenses dropped from 17,194 to 16,109.
    Firearms cases--I have raised this in hearings, and they are
    always talking about new laws, new laws, new laws on firearms.
    But the basic firearm case prosecutions are down. There were
    8,480 cases in 2007, 7,183 in 2012. Explosives cases, 178 to
    160, and it goes on. Overwhelmingly, the trend is downward, it
    seems to me.
        So I guess what I am raising with you and just sharing with
    you is a concern that it does not appear we have had a real
    increase since 2007 in our caseload, appellate or district
    court. And our responsibility, therefore, should be to find
    those districts that are particularly burdened and see if we
    can provide help for them. But I am not sure, if we were
    getting by in 2007, why the judiciary cannot get by in 2013. I
    will let you all comment as you will.
        Judge Robinson. I have found in my experience that every
    court is different, how they manage their resources and the
    kind of caseload they have. It is difficult for me to comment
    on general statistics when our court is so very different than
    so many of the courts.
        I go back to the fact that so long as the parties bring to
    bear huge resources in the complex cases and the judiciary's
    resources remain the same or diminish that we will always be at
    a disadvantage and we will never be able to process the cases
    as well as we would like to.
        Senator Sessions. That is kind of where I am wrestling with
    the numbers, and it is hard to know precisely what to do. But
    the courts are doing better. But mediation--I mean, it is
    incredible the number of--percentage of cases, civil cases,
    that end in settlements without a trial. And I give the
    judiciary credit for that. And the number of guilty pleas that
    occur in criminal cases is like 98 percent. Very few of the
    criminal cases are going to trial either. Do either of you have
    the numbers--and trials were higher in 1991. The percentage of
    trials were higher in 1991. And so if you have got a multi-week
    patent case, a multi-week bank fraud case that is disposed of
    by a guilty plea, that is really a relief to a district court
    bench.
        Judge Robinson. Settlement and pleas are always welcome.
    That gives you more time to read, and you do not generally take
    appeals from settlements and pleas. So that is always a good
    thing for a trial judge.
        Senator Sessions. But judges do have to spend time to help
    bring about settlements.
        Judge Robinson. They do indeed, and I go back to the fact
    that setting the trial date in the first place in civil cases
    is instrumental in keeping the parties focused on the case and
    trying to resolve it, because most parties do not want to go to
    trial because there are risks involved with any trial. And when
    you have got a full calendar of trials and have to slip in
    those criminal cases that do go to trial--and there are many. I
    have had more, I think, the last couple years than I have had
    in a while. It just makes it difficult to manage.
        Chairman Coons. If I might, Judge Robinson----
        Senator Sessions. Thank you for allowing me to go over.
        Chairman Coons. Certainly, Senator.
        If I might just follow up on that, you made in your opening
    statement a reference to the fact that in one district there is
    a 4-year delay before civil trials. Is it possible also that
    one of the reasons you are seeing more settlements is because
    of the enormous delay until there is going to be a trial? If
    there were more judges available, do you think there might be
    more time to reflect on particularly complex cases and to reach
    a more thorough, a more reasoned decision? And in your view,
    does an overburdened docket have unintended consequences that
    hurt litigants? Just a general series of questions.
        Judge Robinson. Well, it is interesting because when you
    are talking about complex civil cases, defense counsel does not
    want to get to trial, plaintiff's counsel does. So there is
    always that conflict between who is perhaps putting roadblocks
    in the way to a resolution.
        I believe that it is important for us as a--it is important
    for the judiciary to move the parties toward resolution. An
    amicable resolution is always best. But I believe there is
    great truth in justice delayed is justice denied. And when we
    cannot get to motions that are dispositive, if we cannot get
    the parties to trial, I believe it just leads to more mischief
    and increasing costs, because the parties will take up the time
    doing something that is not really, I think, important.
        Chairman Coons. Well, to the opening question I asked Mr.
    Reed, I think the reason the average citizen should be
    concerned about increasingly lengthy delays for the
    consideration of either criminal or civil cases is the reason
    our federal judicial system exists is for the resolution of
    wrongs and for controversies. And when they are so delayed,
    justice is at some risk of being denied.
        Judge Tymkovich, if I might ask just one question. One of
    the concerns I have heard some colleagues raise is that the
    Judicial Conference's methodology is sort of a one-way ratchet
    that leads to continually increasing staffing levels in busy
    courts, while courts with decreasing caseloads are allowed to
    remain at constant levels. Is there any process that aligns
    incentives in a way that would actually lead to more rigorously
    examining districts and circuits where federal resources might
    be conserved through either the elimination or the realignment
    of unneeded judges?
        Judge Tymkovich. Thank you, Senator. Really two comments to
    that.
        The first is that as a part of our process, the Judicial
    Resources Committee really does a rigorous examination of the
    need for filling a particular judgeship or adding to the number
    of judges in a circuit. And we have a process within the
    Judicial Conference where we can recommend to the Conference
    that a vacant judgeship need not be filled because of declining
    caseloads or circumstances pertinent to a particular district.
    In the last decade, we have had a number of recommendations to
    the Conference that it do so, six over the last couple of
    cycles for our recommendation.
        So we do have a process where we would leave a vacancy
    unfilled and make that recommendation to the Conference and to
    the Senate.
        We do not recommend the elimination of judgeships. I think
    this process illustrates how difficult it is to create new
    judgeships, so the position of the Conference is that it is
    better to leave a judgeship unfilled when cases go down rather
    than have to go through the exercise of creating a new
    district. But we do have a process that I think accommodates
    changing caseloads, and we have been sensitive to those
    districts where there have been declines and have addressed it
    in that way.
        Chairman Coons. Mr. Sekulow, if I might, you advocated for
    filling those existing vacancies as a first step for addressing
    the ongoing needs that have been identified by all of you and
    in this broader conversation. But delay on the floor remains a
    problem, and getting agreement by Senators of different parties
    or the party opposite the President has been a challenge.
        Delay on the floor in the 3 years that I have been a
    Senator has been an abiding and a persistent challenge. What
    advice would you give to Leader Reid if he cannot get a time
    agreement to move nominees who have cleared this Committee,
    often by an overwhelmingly positive vote?
        Mr. Sekulow. I think this is a problem that transcends
    different sessions of the Senate. This has been an ongoing
    problem, and it was a problem under the President when
    President Bush was in office that preceded the same problem
    with President Clinton.
        I will note that yesterday two district court nominees were
    confirmed by the Senate, last night. So I think the process has
    to be streamlined. We have said this publicly in other venues,
    in fact, before Senate committees. I think the problem is the
    contentious nature of the process itself. I think a lot of this
    is process issues. I think what Judge Tymkovich is dealing with
    on the court of appeals level, what Judge Robinson is dealing
    with in her district court are process issues. And I think the
    process issue--the Senate is not immune from a process problem.
        That does not mean that it is going to always be smooth
    sailing. There will be nominees who are controversial. But at
    the end of the day, our position has always been the President,
    when he is elected by the American people, has the right to
    nominate those federal judges. That is his right of
    appointment. Then it is up to the Senate for advice and
    consent. That process--and we have said this previously--needs
    to be less cantankerous, to be quite frank. And that, as I
    said, transcends--I am not focusing on one session of the
    Senate. This has been an ongoing problem. I saw it firsthand.
        I would ask this question: Why is it that the Eleventh
    Circuit Court of Appeals, talking about process, has not asked
    for additional judges? What is it about their process that has
    enabled them to succeed with a very high workload per judge?
    And why is it that if we have other federal courts, whether it
    is district courts or courts of appeals, where the docket is a
    shrinking docket, then rather than just preserving judges for
    preserving judges' sake--or vacancies--or lifetime
    appointments, why do we not start looking at that empirical
    data to try to get that kind of process? I think that affects
    both the administration of justice, which we are all concerned
    about, as well as finding out the facts. What is the process
    there that is working well? And why isn't that being
    implemented in other courts?
        Chairman Coons. A fair question, and Senator Sessions took
    some interest in your testimony, as did I, that you raise a
    concern that the Federal Judgeship Act of 2013 would become
    effective immediately, that all of the judgeships created would
    become effective immediately rather than either staggering them
    or having them become effective after the next election.
        Would you have a similar objection to legislation that
    reduces the size of a court immediately upon enactment?
        Mr. Sekulow. Well, I think, again, staggering it is going
    to remove partisan politics from it. It is not just the timing,
    which is a huge part of it. It is the number. It is 91 judges.
    There are 91 vacancies--or 92 vacancies as of last night, and
    we are talking about increasing 91--we are putting 91
    additional vacancies on top of that. I think that it looks like
    court packing. I am not trying, again, to impugn anybody's
    intent. But that is just what it looks like. So staggering the
    process, if, in fact, it is justified to increase it, and the
    country has the budget to do this, I think that solves the
    problem.
        But, again, I think with a lot of this, you have to look at
    process here, Senator.
        Chairman Coons. Thank you, Mr. Sekulow.
        Judge Tymkovich, I am going to give you the last word, if I
    might. First, if you would just speak to the question of
    timing, you know, I rely heavily on the advice of the Judicial
    Conference because I view it as a nonpartisan methodology that
    is detailed and thorough and that examines those districts,
    those circuits that have a request, that have a demonstrated
    need, and it does not simply look at filings. It looks at lots
    of different indicia of where judges are straining to meet
    their caseload in a full and appropriate and effective way for
    legitimate reasons.
        I would be interested also--we spoke at a number of points
    today in this hearing about how patent cases, which are a
    particularly significant portion of the Delaware District
    Court's caseload, are complex, unusually complex and sort of
    hard to weight because of that. The D.C. Circuit has also been
    the subject of some discussion.
        My understanding is that the Judicial Conference does not
    evaluate either the Federal Circuit to which those patent
    trials are appealed or the D.C. Circuit because the staffing
    model applied to other courts does not work in some ways. Could
    you just speak to that question as well?
        Judge Tymkovich. Thank you, Senator. Several questions
    there.
        First, as to the timing, the process that the Judicial
    Resources Committee and the Judicial Conference uses is a
    nonpartisan, biennial process. We do not look at who is
    President and who is in the Senate. What we do is look at
    aligning our workload and our judgeships to that increasing or
    declining workload. So our process really is independent of any
    of the political considerations, and we strive very hard to
    maintain that objectivity. Regardless of who the President is,
    we come forward with what our recommendation is based on our
    workload and our assessment of it.
        As to our case weighting, certainly patent cases are one of
    our five heaviest weighted civil cases. They really garner
    substantial weight in our process. Only some very other complex
    administrative or death penalty-related matters have that kind
    of case weighting.
        As you indicated in your question, the D.C. Court of
    Appeals has been excluded from the pure numerical standard. We
    have employed a different process with that court because of
    the uniqueness of their caseload. They have a heavy
    administrative appeals practice. They have something like 40
    administrative appeals per judgeship panel versus about 28 or
    fewer in the other court of appeals. So, historically those
    types of cases have driven a more complex and difficult
    evaluation. Those cases have multiple parties, typically issues
    of first impression, big records, things that make them
    somewhat outliers to some of the other cases we see in the
    other circuits. Some of those cases are exclusive jurisdiction
    in the D.C. Court. So for that reason, we have excluded them
    from the same process of other circuits.
        I might add they have not asked for a new judgeship in the
    last 20-plus years or so. They have lost one to transfer, and
    their caseload has been relatively steady the last 10 years or
    so. So we have not seen any reason to re-evaluate that because
    their caseload is about where it was 10 years ago.
        Chairman Coons. Thank you, Your Honor. In my own view, the
    D.C. Circuit and the Federal Circuit work under a particularly
    complex and burdensome caseload not because of the number of
    cases but their complexity, and so unresolved questions about
    filling judicial vacancies on those circuits has occupied a
    fair amount of the debate of my colleagues and the members of
    this Committee. So I appreciate your giving us some input on
    the methodology that you use, and I appreciate being reminded
    that the D.C. Circuit has not requested additional judgeships.
        Any further questions, Senator Sessions?
        Senator Sessions. Mr. Reed, I just noticed, I have raised
    twice with the FBI Director the failure to prosecute bankruptcy
    fraud. When I was United States Attorney, I felt like that was
    federal court, and the only people in the world were the FBI
    and the federal prosecutors to prosecute it. In 2007, there
    were only 95 bankruptcy fraud cases in America. It dropped to
    64 in 2011. But that is really not the judge's fault. That is
    the fault of the prosecutors and the FBI. That is an important
    court system in America involving lots of money, and frequently
    there are abuses that occur, and judges do not like to see
    fraud occur in their court.
        I would note relevant to the vacancies and failures to
    confirm nominees, I think at least half of the vacancies that
    exist today there is no nomination for that vacancy. I think
    more than half. And the amount of time necessary to confirm a
    judge is consistent or shorter than that that occurred in
    previous times. That is not to say we should not move faster.
    President Obama nominated a fine judge from the Northern
    District of Alabama, and we moved it out of Committee within a
    week or two, and so it is on the floor now and should come up
    rather soon. So I do not know that--I think it is a right--
    there is a right to be concerned about the slow pace in not
    filling nominees, but I guess the blame goes around.
        And, finally, I did review the number of appeals filed per
    circuit from 2002 through 2012, and I just looked at the 2006
    number through 2012. Every single circuit has had a decline in
    filings during that time. The Second Circuit, it looks like
    about a 20-percent decline. And I would say, Mr. Tymkovich, the
    Federal Circuit, we are going to be given--providing some
    information, Mr. Chairman, on that. They have often said that
    our cases are more complex and more important. The D.C. Circuit
    has made the same argument. But real examination of those two
    circuits will show they have a very low workload compared to
    other circuits, and I think both of those should give up
    judgeships and let us send them to places overworked like any
    rational business would do.
        Thank you, Mr. Chairman.
        Mr. Reed. Senator, you had made the point earlier about the
    improvements in technology that have helped the courts become
    efficient, and my understanding is--I just wanted to make the
    point that my understanding is that one of the perverse
    consequences of the sequestration process is that, in order to
    move funds around, they have had to defer investing in
    technology and maintaining technology with the possible
    consequence that in the future some of those efficiencies will
    be lost. So I just wanted to make that point.
        Senator Sessions. A valuable point.
        Chairman Coons. Thank you, Mr. Reed, Mr. Sekulow, Judge
    Robinson, and Judge Tymkovich. As you have observed,
    sequestration is having quite negative consequences all across
    the Federal Government. We are finding that although we may be
    reducing spending in the short term, it is having long-term
    consequences in terms of personnel, efficiency of operations,
    and our ability to execute on our public responsibilities. The
    federal judiciary is a whole branch of our constitutional
    order, yet we spend less than 1 percent of the total federal
    budget on its operation. And as Judge Tymkovich observed at the
    outset, you do not control your caseload. You are the branch
    that responds to actions taken, enforcement actions by federal
    law enforcement, plaintiffs who come to you. You are not in
    control of the filings, and our challenge is to work I think
    responsibly with you to find a path forward that allows us to
    fill the vacancies that we have, to ensure that judgeships are
    created in those districts and circuits that are burdened, and
    to review closely those where there might be some need for
    realignment. But in my view, this needs to be done in a
    nonpartisan way and in a way that continues to sustain the
    American judicial system as literally the world leader, the
    gold standard for the adjudication of conflicts.
        If there are no more questions, I would like to thank all
    four of our witnesses on behalf of the Subcommittee on
    Bankruptcy and the Courts for your testimony and to thank the
    many interested stakeholders who have submitted testimony for
    the record.
        With that, this hearing--excuse me. I will leave the record
    open for 1 week for members who were not able to join us today
    and who may wish to submit additional testimony on the topic,
    and I look forward to continuing to work with my colleagues to
    resolve the issues raised today.
        With that, we are hereby adjourned. Thank you.
        [Whereupon, at 11:58 a.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                Prepared Statement of Hon. Christopher A. Coons

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                    Prepared Statement of Hon. Patrick Leahy

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                Prepared Statement of Hon. Timothy M. Tymkovich

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Prepared Statement of Hon. Sue L. Robinson

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     Prepared Statement of Jay Alan Sekulow

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                     Prepared Statement of Michael H. Reed

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Questions submitted by Senator Coons for Timothy M. Tymkovich

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

       Questions submitted by Senator Klobuchar for Timothy M. Tymkovich

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

     Responses of Timothy M. Tymkovich to questions submitted by Senators
                              Coons and Klobuchar
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                    Miscellaneous Submissions for the Record

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]