[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

                               ----------

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                       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

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            Prepared Statement of Hon. Christopher A. Coons

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                Prepared Statement of Hon. Patrick Leahy

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            Prepared Statement of Hon. Timothy M. Tymkovich

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               Prepared Statement of Hon. Sue L. Robinson

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                 Prepared Statement of Jay Alan Sekulow

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                 Prepared Statement of Michael H. Reed

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     Questions submitted by Senator Coons for Timothy M. Tymkovich

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   Questions submitted by Senator Klobuchar for Timothy M. Tymkovich

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 Responses of Timothy M. Tymkovich to questions submitted by Senators 
                          Coons and Klobuchar
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                Miscellaneous Submissions for the Record

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