[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE NEED FOR NEW FEDERAL JUDGES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
JUNE 21, 2018
__________
Serial No. 115-60
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-478 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JERROLD NADLER, New York
Wisconsin ZOE LOFGREN, California
LAMAR SMITH, Texas SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
DARRELL E. ISSA, California HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho DAVID CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas ERIC SWALWELL, California
DOUG COLLINS, Georgia TED LIEU, California
RON DeSANTIS, Florida JAMIE RASKIN, Maryland
KEN BUCK, Colorado PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas BRAD SCHNEIDER, Illinois
MARTHA ROBY, Alabama VALDEZ VENITA ``VAL'' DEMINGS,
MATT GAETZ, Florida Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
JOHN RUTHERFORD, Florida
KAREN HANDEL, Florida
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
DARRELL E. ISSA, California, Chairman
DOUG COLLINS, Georgia, Vice-Chairman
LAMAR SMITH, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE CHABOT, Ohio Georgia
JIM JORDAN, Ohio THEODORE E. DEUTCH, Florida
TED POE, Texas KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC L. RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM S. JEFFRIES, New York
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
RON DeSANTIS, Florida BRAD SCHNEIDER, Illinois
MATT GAETZ, Florida ZOE LOFGREN, California
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
DAVID CICILLINE, Rhode Island
PRAMILA JAYAPAL, Washington
C O N T E N T S
----------
JUNE 21, 2018
OPENING STATEMENTS
Page
The Honorable Darrell Issa, California, Chairman, Subcommittee on
Courts, Intellectual Property, and the Internet, Committee on
the Judiciary.................................................. 1
The Honorable Jerrold Nadler, New York, Ranking Member, Committee
on the Judiciary............................................... 2
The Honorable Henry C. ``Hank'' Johnson Jr., Georgia, Ranking
Member, Subcommittee Courts, Intellectual Property, and the
Internet, Committee on the Judiciary........................... 4
The Honorable Steve Chabot, Ohio, Subcommittee on Courts,
Intellectual Property, and the Internet, Committee on the
Judiciary...................................................... 5
WITNESSES
The Honorable Judge Lawrence Stengel, Chair of the Committee on
Judicial Resources of the Judicial Conference of the United
States
Oral Statement............................................... 7
The Honorable Judge Mauskopf, Chair of the Subcommittee on
Judicial Statistics
Oral Statement............................................... 8
The Honorable Judge Dana Sabraw, District Judge of the Southern
District of California
Oral Statement............................................... 10
Mr. Samuel Kahn, Chairman and CEO, Kent Holdings and Affiliates
Oral Statement............................................... 11
EXAMINING THE NEED FOR NEW FEDERAL JUDGES
----------
THURSDAY, JUNE 21, 2018
House of Representatives,
Subcommittee on Courts, Intellectual Property
and the Internet
Washington, DC
The committee met, pursuant to call, at 10:00 a.m., in Room
2141, Rayburn House Office Building, Hon. Darrell Issa
[chairman of the subcommittee] presiding.
Present: Representatives Issa, Chabot, Labrador, DeSantis,
Johnson of Georgia, Nadler, Deutch, Bass, Lieu, Schneider,
Cicilline, and Jayapal.
Staff Present: Joe Keeley, Counsel; Haley LaTourette,
Clerk; Jason Everett, Minority Deputy Chief Counsel; Susan
Jensen, Minority Senior Counsel; David Greengrass, Minority
Senior Counsel; and Veronica Eligan, Minority Professional
Staff Member.
Mr. Issa. After a short delay, I call the committee to
order. The Subcommittee on Courts, Intellectual Property, and
the Internet will now come to order. Without objection the
chair is authorized to declare recesses of the subcommittee at
any time, and with votes expected around 11:30, that is likely
to happen.
We today are examining new judges needed for the Federal
circuit and other items that may come up in questioning. I now
recognize myself for an opening statement.
This is one of the most important things that Congress
does, is determine how many lifetime appointments are necessary
to meet the requirements of the Federal court as given by the
American people. Many of those requirements come from direct
addresses to the Federal court under uniquely Federal
requirements, such as patent or immigration; and in the
Southern District of California we are particularly familiar
with both. But many also come from a growing tendency for
States to recognize that they can save money, be very
efficient, by using every trick in the book to get something
into the Federal court.
This, oddly enough, sometimes goes in reverse when it is
more favorable to be in State court, but we have seen a growing
docket of items that could be tried in State court but are
tried in Federal court. These tend to be often criminal, and as
a result, they take priority. Notwithstanding how we get where
we are, today the Federal court system is backed up. It is
backed up not because of an inherent inefficiency, but because
of a growing caseload.
This is particularly true with the latest request for my
home State and its Ninth Circuit, with 21 requested judges at
the district court level and five more for what is already, by
a factor of two, the largest appellate court in the Nation, we
are at a crisis point. We must have the judges to take care of
the caseload; we must find ways to make sure that justice, as
it has been historically known, is kept. As so often has been
said, justice delayed is justice denied. We cannot have that.
At the same time, at least in the Ninth Circuit, we are
acutely aware that the term ``full en banc'' simply does not
mean anything. You will get a mini group of judges; the judges
are unpredictable, and they represent already about a third of
the judges that are in the full court, and that will continue
to be that way until some change is found.
So, today, in addition to the request for judges and the
merit and other questions back and forth, it is our goal to
also talk about the efficiency of courts at the district level
and the efficiency of courts at the appellate level, and ask
our distinguished panel of judges and practitioner for their
suggestions, if known, of areas in which we could mitigate the
inevitable need for more judges.
Notwithstanding that, this is one of those rare bipartisan
or even nonpartisan hearings, with the possible exception of a
tweet from the President which will certainly loom over this
hearing today. And with that, I would like to recognize the
ranking member for his opening statement.
Mr. Johnson of Georgia. I am going to yield to----
Mr. Issa. The ranking member of the full committee will now
be recognized.
Mr. Nadler. Thank you very much, Mr. Chairman. Mr.
Chairman, access to justice is not just a political slogan; it
is a constitutional guarantee. But in some Federal judicial
districts this promise meets the reality of an overburdened and
understaffed court that cannot keep up with a burgeoning
caseload. As a result, cases can be delayed or rushed, and
justice may be shortchanged.
To help address this problem, every 2 years the Judicial
Conference of the United States analyzes the workload and the
resources of all U.S. courts of appeal and U.S. district courts
and recommends to Congress new judgeships to ease the burden of
courts that are stretched too thin. In March 2017, the Judicial
Conference recommended the creation of five new judgeships in
the Ninth Circuit Court of Appeals and 52 new judgeships in 23
district courts throughout the country.
I appreciate the thoughtful analysis conducted by the
Judicial Conference, and we should consider its recommendations
carefully. I cannot help but note, however, the context in
which this hearing occurs. It just so happens that we have a
Republican Senate busily confirming a Republican President's
judges at a historic rate, some of them, I might add, with
dubious qualifications and many with alarming views. I
certainly hope the purpose of this hearing truly is to assist
overburdened courts, and that it is not in fact intended to lay
a foundation for assisting President Trump in carrying out his
plan to pack the courts with ideologically extreme judges.
We should remember that it was only 5 years ago that the
full Judiciary Committee held a hearing titled ``Are More
Federal Judges Always the Answer?'' The hearing was meant to
call attention to the supposedly outrageous fact that President
Obama had nominated judges to fill the existing vacancies on
the D.C. Circuit. Those were not new judgeships that he hoped
to create. He simply nominated candidates to fill existing
vacancies on what is generally considered the most important
court in the country besides the Supreme Court.
But Republicans cried foul and declared that the President
was attempting to pack the court. They also noted that each new
judgeship could cost as much as a million dollars a year to
support, which they consider an unwise use of resources. They
sang a different tune, however, in 2002, when President George
Bush was in office. The Constitution Subcommittee then held a
hearing called ``A Judiciary Diminished as Justice Denied: The
Constitution, the Senate, and the Vacancy Crisis in the Federal
Judiciary.''
The Democratic Senate, they argued, was creating a judicial
crisis because it was not confirming President Bush's nominees
quickly enough; but they hardly seemed to complain during the
final 2 years of the Obama presidency when Senate Republicans
confirmed the fewest judges since 1952, leaving over 100
vacancies unfilled for President Trump to then fill.
And when Justice Scalia passed away, Republicans cheered
the Senate's refusal even to schedule a hearing on President
Obama's nomination of Judge Merrick Garland. It did not seem to
trouble them at all that a seat on the highest court in the
land remained vacant for more than a year, because it paved the
way eventually for Justice Gorsuch to be confirmed.
I provide all this history not to take anything away from
the Judicial Conference or its nonpartisan and highly
professional recommendations, but it is worth noting that there
is another set of judgeship recommendations floating around
conservative circles right now. This one was developed by
Steven Calabresi, a founder of the Federalist Society, whose
plan would add 61 new Federal appellate circuit court judges, a
36 percent increase, and 200 new district court judges, almost
30 percent more than the current figure.
Unlike the Judicial Conference, which conducted a careful
study of the needs throughout the judicial system, Professor
Calabresi's proposal, he makes clear, was developed in part to
``undo President Obama's judicial legacy.'' In fact, President
Trump is already hard at work on radically reshaping the
Federal judiciary. Never before have we seen a President
essentially outsource the process of selecting judicial
nominees to ideologically driven organizations like the
Federalist Society and the Heritage Foundation.
As a result, we have seen a host of troubling nominations.
More than one has been unable or unwilling to answer whether
Brown v. Board of Education was correctly decided; one nominee
said the transgender children were part of ``Satan's plan;''
and several nominees have been rated flatly unqualified by the
American Bar Association. Unfortunately, that has not stopped
the Senate from confirming the President's nominees at a
historic pace.
We should of course consider the merits of the Judicial
Conference's proposals regardless of who holds the levers of
power at any given time. With the understanding that this
hearing is not a pretext for any larger goals, I look forward
to hearing from our witnesses, and I yield back the balance of
my time.
Mr. Issa. The gentleman yields back. And with that, I would
like to go to the ranking member of the subcommittee for his
opening statement. Mr. Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Chairman. This
hearing gives us an opportunity to examine whether there is a
need for additional Federal judgeships. The United States legal
system is the envy of the world; our legal system has
historically provided fair, timely, and expert adjudication of
civil disputes and criminal prosecutions for hundreds of years.
There are, however, a number of challenges facing our Federal
legal system that must be addressed if it is to maintain the
standard of service our citizens expect and deserve.
One of these challenges is an overworked judiciary. As a
former magistrate judge, I continue to support restoring
judicial compensation to appropriate levels and efforts to add
judges where needed. Every other year, the Judicial Conference
provides updated recommendations to Congress about the number
of authorized judgeships needed to meet the needs of the
American judicial system. Federal district court judges are
appointed under Article III of the Constitution and are
nominated by the President, confirmed by the Senate, and serve
lifetime appointments upon good behavior.
In March 2017, the Judicial Conference recommended to
Congress to create five permanent Article III judgeships in the
courts of appeals and 52 permanent Article III judgeships. The
Judicial Conference also recommended the conversion to
permanent status of eight temporary judgeships in the district
courts. In addition, the Judicial Conference recommended to
Congress and the President that they not fill the next
judgeship vacancy on the U.S. Court of Appeals for the Tenth
Circuit and in the District Court of Wyoming, based on
consistently low filings in both courts.
The Judicial Conference's recommendations are based on a
comprehensive analysis of the workload of Federal judges, which
takes into consideration not only the number but also the
nature and complexity of the cases before the various courts.
The number of Federal judges has an impact on the speed of
Federal cases heard. The last time there was a major increase
in judges was in 1990, when 61 new permanent judgeships were
authorized.
Since 1990, appeals filings have grown 40 percent, and
district court filings have grown 38 percent. While we may need
additional judges, we must also make sure that the individuals
nominated are qualified. I have been alarmed by some of the
appointments that President Trump has made for new judges, and
I continue to believe that if my Senate Republican colleagues
were concerned about efforts for new judges to manage
caseloads, they could have helped address that concern by
confirming Merrick Garland promptly, and President Obama's
other outstanding nominees who were left on the table.
I am particularly interested to hear the witnesses discuss
which areas of the country need more judges and how an increase
in judgeships would impact the judiciary and also the lives of
everyday Americans. The Judicial Conference has recommended one
additional permanent judge for the United States District Court
for the Northern District of Georgia, which is my home circuit.
I have always supported highly qualified candidates to the
Federal bench, particularly in the Northern District of
Georgia. The district is currently allotted 11 judgeships. As I
stated earlier, I support efforts for additional Federal judges
where needed. I thank the chairman for holding this hearing,
and I yield back the balance of my time.
Mr. Issa. Thank you. The gentleman from Ohio will provide
the majority chairman's statement and excerpts of his own.
Mr. Chabot. Thank you very much, Mr. Chairman. I had not
really planned on making any remarks, but I will be very brief
in light of a couple of comments that I heard from my dear
friends on the other side of the aisle. One, the reference to
how alarming that this President's nominees have been in some
cases. I have to say, as a relatively conservative guy myself,
I found it kind of alarming some of the nominations by the
previous administration, so it oftentimes depends on who is--I
am not sure what that--somebody does not like what it being
said here.
Mr. Issa. Who says the Russians do not listen?
Mr. Chabot. But relative to whether something is alarming
or not I think oftentimes depends on whose ox is being gored.
And so, the fact that a number of the nominees tend to be a bit
more conservative this time around than last time around is
probably not surprising, but I do not think it is necessarily
alarming.
And I certainly do not think it is--it was mentioned that
it is either unprecedented or never happened before, the so-
called outsourcing of the nominees to such conservative
organizations as Heritage, for example. I would make the point
that I think many in the Obama administration and previous more
liberal administrations tended to get a lot of their nominees
from organizations which were on the left. So, I do not think
there is anything unprecedented or alarming or surprising about
that.
And I would just finally conclude, The Bar Association was
mentioned, and the fact that some of these folks that the Trump
administration has nominated for Federal judicial positions
have not been approved by the Bar Association, are not held in
high repute. I would just note that I practiced law for almost
2 decades before coming to Congress about 22 years ago and had
been a longtime member of the American Bar Association, paid
the dues every year, even though I was just a sole
practitioner--it was $250 at that time; it was a fair amount of
money when you are a sole practitioner--and used to like to get
their magazine, et cetera, until they decided that they just
had to take a point of view on the life issue.
And I happen to be pro-life, and they happened to decide
that, on behalf of all the lawyers in this country, they
decided that the pro-choice point of view was the only position
that was appropriate; and I did not pay my dues after that. And
once in a while, I would stop by the library and read the
publication for free, but I was not going to pay my dues any
more to the Bar Association.
So, oftentimes it just sort of depends on, as I say, whose
ox is being gored, but that our Federal judiciary, whichever
side of the aisle one finds himself here, I think we all agree
that that we do need quality people on the Federal benches,
whether it is at the district court or circuit court;
certainly, at the U.S. Supreme Court level.
So, I know we have a very distinguished panel here in front
of us this morning and look forward to hearing their testimony.
I might add that I also am chairman of the House Small Business
Committee, and we have one of my subcommittee hearings going
on, so I do intend to stick around for all the testimony, I
hope, but I do have to get over there. And I want to thank the
gentleman for the way he has run this this committee over the
years, and I yield back my time.
Mr. Issa. I thank the gentleman. We now move forward with
the most important part of this for most witnesses, and an
unusual part for our witnesses today. And that is, pursuant to
the rules of the committee, would you please all rise to take
the oath?
Raise your right hands.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Please be seated.
Let the record reflect that all witnesses answered in the
affirmative.
Today, our distinguished panel of witnesses include Judge
Lawrence Stengel, the chair of the Committee on Judicial
Resources of the Judicial Conference of the United States; as
such, the man who brought us here today.
Judge Mauskopf is chair of the Subcommittee on Judicial
Statistics, which sounds like you brought us here also.
Judge Dana Sabraw is the district judge of the Southern
District of California and I think heir apparent to run that
district, as I understand it, if you choose not to retire,
which at your young age you should. And with all fairness, the
judge and I go back to his days as a practitioner before he
went to the State and then the Federal bench, so it is truly an
honor to have somebody with so many years' experience that I
have gotten to watch.
And lastly, we have Mr. Samuel Kahn. He is chairman and CEO
of Kent Holdings and Affiliates. He is a practitioner of great
length and is here because I felt that, in addition to three
judges saying we need more judges, it would be nice to have
somebody who could talk about the delays before the court
caused by not having enough judges.
As you probably know from watching CSPAN, your written
statements will be included in their entirety, and so we ask
you to spend as much time as you want, within 5 minutes, saying
whatever would revise and extend those statements. Judge
Stengel.
STATEMENTS OF LAWRENCE F. STENGEL, CHAIR, COMMITTEE ON JUDICIAL
RESOURCES OF THE JUDICIAL CONFERENCE OF THE UNITED STATES;
ROSLYNN MAUSKOPF, CHAIR, SUBCOMMITTEE ON JUDICIAL STATISTICS;
DANA M. SABRAW, UNITED STATES DISTRICT JUDGE, SOUTHERN DISTRICT
OF CALIFORNIA; AND SAMUEL J. KAHN, CHAIRMAN/CEO, KENT HOLDINGS
AND AFFILIATES.
STATEMENT OF LAWRENCE F. STENGEL
Judge Stengel. Chairman Issa and Ranking Member Johnson and
members of the subcommittee, I am Lawrence Stengel. I am the
chief judge of the United States District Court for the Eastern
District of Pennsylvania, and I serve as chair of the Judicial
Conference Committee on Judicial Resources. I am pleased to be
joined this morning by Judge Mauskopf and Judge Sabraw and by
Mr. Khan.
First of all, let me thank you for your invitation for us
to appear today to discuss the Article III judgeship needs of
the Federal judiciary. The Judicial Resources Committee of the
Judicial Conference is responsible for all issues of human
resource administration, including the need for Article III
judges in the U.S. courts of appeals and the district courts.
Our testimony today has three purposes.
The first is to identify for you the judgeship needs of the
district and appellate courts; secondly, to explain the process
by which the Conference determines those needs; and third, to
assist Congress in understanding the implications of the
judiciary being understaffed. I will address our judgeship
request and the justification for that request, Judge Mauskopf
will address in more detail our process, and Judge Sabraw will
be able to provide details of how a district with judgeship
needs is affected and the consequences of unmet judgeship
requirements.
Every other year, the Judicial Conference conducts a survey
of the judgeship needs of the courts of appeals and the
district courts. The latest survey, which was completed in
March of 2017, resulted in a recommendation to Congress to
establish five new judgeships in one court of appeals and 52
new judgeships in 23 district courts. The Conference also
recommended that eight existing temporary district court
judgeships be converted to permanent status.
The last comprehensive judgeship bill for the U.S. courts
of appeals and the district courts was enacted in 1990. Similar
or smaller targeted bills were considered between 1999 and
2003, when Congress created 34 additional judgeships in the
district courts. Prior to 1990, Congress was fairly regular in
addressing increasing caseloads and the judiciary's needs; for
example, judgeship bills were enacted in 1966, in 1970, 1978,
and again in 1984. It has now been 15 years since the last
judgeships were established.
From 1990 to the end of fiscal year 2016, when we were
conducting our resource needs survey, filings in the courts of
appeals had grown by 40 percent, while district court case
filings had risen by 38 percent. As discussed in our written
testimony, for district courts we initially apply a standard of
430 weighted filings per judgeship to gauge the impact of the
workload on a district.
For the 27 district courts where the Conference is
recommending additional judgeships or conversion of existing
temporary judgeships, weighted filings average 577 per
judgeship, and 20 courts have caseloads above 500 weighted
filings, eight above 600, six above 700, and one with more than
1,000 weighted filings. These are well beyond our standard of
430 weighted filings for considering new judgeships.
The lack of additional judgeships, combined with the growth
in caseload, has created enormous difficulties for many courts
across the Nation, but it has reached urgent levels in five
district courts that are struggling with extraordinarily high
and sustained workloads. The severity of the conditions in the
Eastern District of California, the District of Delaware, the
Southern District of Florida, the Southern District of Indiana,
and the Western District of Texas require immediate action, in
our view. The Judicial Conference urges Congress to establish
new judgeships in these districts as soon as possible.
The Judicial Conference recommendation, which addresses our
total needs, has not yet been introduced in the current
Congress as a comprehensive judgeship bill. However, smaller
individual judgeship bills have been introduced. Our written
testimony identifies those bills, and we appreciate the
interest of Congress as expressed in those measures. The
Judicial Conference is grateful for congressional action to
extend temporary judgeships and is supportive of legislation
similar to bills introduced in the last Congress and currently
pending in the Senate to convert temporary judgeships to
permanent status.
As we review our needs, the Judicial Conference does not
recommend or wish indefinite growth in judgeships. Our request
has been thoroughly reviewed, is based on a careful analysis of
qualitative and quantitative information, and recognizes that
the growth in the judiciary must be carefully limited and
planned and be fully justified. Thank you for the opportunity
to appear today, and thank you for your continued support of
the Federal judiciary. I will be happy to respond to your
questions.
[The prepared statement of Judge Stengel follows:] https://
docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-StengalL-20180621.pdf
Mr. Issa. And that will wait. Judge Mauskopf.
STATEMENT OF ROSLYNN MAUSKOPF
Judge Mauskopf. Thank you, Chairman Issa, Ranking Member
Johnson, and members of the subcommittee. I am Judge Roslynn
Mauskopf, sitting on the United States District Court for the
Eastern District of New York, and I am also chair of the
Judiciary Subcommittee on Judicial Statistics. I appreciate the
opportunity today to discuss the process by which we determine
Article III judgeship needs of the Federal judiciary.
Our joint written statement, along with the attachments to
that testimony, provide a thorough description of our process
and results. But I think it would be useful to the subcommittee
and to the Judiciary Committee as a whole to provide some
highlights of how we reached our recommendation for 57 new
judgeships and the conversion of eight temporary judgeships to
permanent status.
In developing those recommendations for consideration by
Congress, the Judicial Conference, through its committee
structure, uses a formal process to review and evaluate Article
III judgeship needs. Every other year, the Judicial Conference
conducts a survey of the judgeship needs of the U.S. courts of
appeals and the U.S. district courts. The latest survey was
completed in March of 2017.
Before a judgeship recommendation is transmitted to
Congress, it undergoes careful consideration under a multilevel
process. The six-step review process begins with the individual
court reviewing its needs and making a request. The
subcommittee I chair then conducts a preliminary review. Once
this review is complete, the subcommittee's recommendation and
the court's initial request are forwarded to the judicial
council of the circuit in which the court is located.
Upon completion of the circuit counsel's review, the
Subcommittee on Judicial Statistics conducts a final review of
the request. The subcommittee then submits the recommendation
to the full Committee on Judicial Resources, and finally, the
Judicial Conference of the United States considers the full
committee's final product. For the 2017 survey, the courts
requested 66 additional permanent judgeships and the conversion
of nine temporary judgeships to permanent; our review procedure
reduced the number of recommended additional judgeships to 57,
and conversions to eight.
The recommendations developed through this review process
are based in large part on standards related to the caseloads
of the courts. They represent the caseload at which the
Conference may begin to consider requests for additional
judgeships; the starting point in the process, not the
endpoint. The caseload standards used by the Judicial
Conference are expressed as filings per authorized Article III
judgeship, which, importantly, assumes that all vacancies on
the court are filled.
For appellate courts, we use a standard of 500 adjusted
filings per panel as a starting point. For district courts, we
initially apply a standard of 430 weighted filings per
judgeship to gauge the impact on the district, and in smaller
courts we use a standard of 500 weighted filings per judgeship.
Weighted filings are used as a means of accounting for the
varying complexity of different types of civil and criminal
filings and real differences in the time required for judges to
resolve various types of civil and criminal actions.
Rather than counting each case as a single case, weights
are applied based on the nature of the cases. The total for
weighted filings per judgeship is the sum of all weights
assigned to the civil cases and criminal defendants, divided by
the number of authorized judgeships. In 2016, the Judicial
Conference approved updated case weights for the district
courts.
Caseload statistics alone are not fully indicative of each
court's needs. Other court-specific information is considered
to arrive at a sound measurement of each court's judgeship
needs, and this would include factors such as the number of
senior judges available to a specific court; available
magistrate judge resources and the use of visiting judges;
geographic factors; unusual caseload complexity; temporary
caseload increases; and other factors noted by the courts.
In conclusion, over the last 25 years the Judicial
Conference has developed, adjusted, and refined the process for
evaluating and recommending judgeship needs in response to both
judiciary and congressional concerns. Using an objective
standard as a starting point and considering other court-
specific factors allows us to develop recommendations that are
carefully reviewed in a multistep process.
This ensures that the recommendations of the Judicial
Conference are limited to the number of new judgeships that are
necessary to exercise Federal court jurisdiction. Once again, I
thank the subcommittee for the opportunity to appear today and
would be happy to answer any questions.
[The prepared statement of Judge Mauskopf follows:] https:/
/docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-MausopkR-20180621.pdf
Mr. Issa. Thank you. Judge Sabraw. This is a large
courtroom, so we recommend the mic.
STATEMENT OF DANA M. SABRAW
Judge Sabraw. Well, good morning, Chairman and Ranking
Member Johnson, members of the committee. I am Judge Dana
Sabraw from the Southern District of California. I am
particularly delighted to be here at Chairman Issa's request
and to speak to the issues of additional judgeships.
I would like to start by giving an overview of the national
trends as reflected in our caseload statistics, which reflect
an increasing demand on the judiciary since the last judgeship
bill was enacted in 2003. I also know the chairman is
particularly interested in the situation in California, and I
am delighted to speak to that issue as well.
Federal court management statistics since 2003, the last
judgeship bill, to March 31, 2018, showed the number of total
cases filed in the Nation has risen by 15 and a half percent.
In California, where we have 10 percent of the Nation's
caseload, we have seen an increase of 13 and a half percent in
case filings since that period of time.
In my own district, in the Southern District of California,
we have seen an increase of 21 percent, and we have seen
weighted filings increase by 33 percent since 2003. Based on
the most recent data, we also expect weighted filings in the
Southern District of California to increase, which will of
course make the additional need for judgeships even greater.
The effect of this kind of increase in caseload is
profound. Increasing caseload leads to significant delays in
the consideration of caseloads, particularly with respect to
civil cases, often takes years to get through the trial court.
In most districts across the Nation it takes about 2 years to
adjudicate civil cases from filing to trial. In these impacted
districts, we see that cases are taking 3 and 4 years. In
particular, in the Eastern District of California, cases are
taking 40 months on average to go through trial, and in San
Diego cases are taking as long as 36 months, which is far too
long.
These delays increase expenses for civil litigants. They
also may increase the time criminal defendants are held pending
trial. The delays lead to an erosion of trust in the judiciary
and to the judicial process itself, and the problem is so
severe that potential litigants are even avoiding Federal court
altogether.
The workload situation in each of the four California
districts is severe. Weighted caseloads are well beyond the
national average of 430, and indeed, they exceed 500 in each of
the four districts in California. The weighted caseload exceeds
700 in the Eastern District, which is one of the highest in the
Nation and has been so for many, many years, and unfortunately,
the situation in the Eastern District was made worse when the
district lost one of its temporary judgeships in 2004. This
contributed to a significant increase in pending cases in that
district as well.
One cannot imagine the situation will improve on its own
without additional judges. Looking at just one area in
particular, immigration enforcement, the increase in caseload
has been staggering. In addition, some immigration bills
currently pending before Congress would further increase the
workload of Federal courts along the border by adding more law
enforcement personnel and prosecutors. If Congress authorizes
additional immigration enforcement resources to executive
branch agencies, it is also critical to add additional
judgeships authorized so that it can handle the increased
workload which will inevitably flow to those districts.
Considering just the present workload, the Judicial
Conference has requested 17 additional judgeships for
California, seven in the Central District, five in the Eastern,
three in the Southern, and two in the Northern. In addition,
the Conference has recommended the conversion of a temporary
judgeship in the Central District, but I would add to it that
while border States may be the focus of more targeted judgeship
legislation, it is important that judgeship be addressed
comprehensibly across the Nation to address pressing needs
throughout the country.
Quite simply, the problem cannot be addressed by just
adding magistrate judges or asking visiting judges or senior
judges to shoulder the burden. Magistrate judges have limited
jurisdiction, and moreover, the Judicial Conference process for
determining workload needs of the court fully takes into
account the valuable contributions that magistrate judges,
senior judges, and visiting judges are already making.
Mr. Chairman, I have only highlighted some of the issues
that impact our courts. I would be happy to address any
questions that may follow. Thank you.
[The prepared statement of Judge Sabraw follows:] https://
docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-SabrawD-20180621.pdf
Mr. Issa. Thank you. I am happy you used exactly 5 minutes,
too. Mr. Kahn.
STATEMENT OF SAMUEL KAHN
Mr. Kahn. Thank you, Mr. Chairman and Ranking Member
Johnson. I would like to go into a bit of background into how
we got here in California.
Since the 2011 adoption of what is known as the Public
Safety Realignment or Assembly Bill 109, then Proposition 47,
the Safe Neighborhoods and Schools Act, which was adopted in
2014, and the Public Safety and Rehabilitation Act of 2016,
known as Proposition 57, California's crime rate has increased
several times more than the national average, suffering the
highest increases in both violent and property crime compared
to any of the other 10 largest States.
Specifically, in 2015 and 2016 California suffered
consecutive-year increases in violent crime for the first time
in 25 years. In those 2 years, homicide in California increased
by over 15.3 percent; for the Nation as a whole, in 2015 the
violent crime rate increased 3 percent, while California's rate
increased 2.5 times as much at 7.6 percent. Now, by way of
background, all the rates that I am quoting are reported as
number of crimes per 100,000 population.
The property crime rate for the Nation as a whole declined
3.4 percent, while California has increased 7.2 percent. That
is, California's net change in property crime rate was 10.6
percent greater than the Nation as a whole. Looking at the
country's 10 largest States, all nine of the others had
decreases in property crime. Georgia, by way of illustration,
had the largest decline at 10 percent, while Florida had the
smallest at 4.1 percent. California alone had an increase in
property crime, and a very substantial one.
The impact of this increase on criminal cases referred to
at the Federal courts has been, to say the least, dramatic.
Compared to 2014, Federal criminal cases from California in
2015 increased by 161 percent; in 2016, they increased by 135
percent; and in 2017, they increased by 131 percent. And these
figures do not include drug prosecutions; and by way of
background, 80 percent of the illegal opioids in the Nation
pass through our Southern District borders, as Judge Sabraw
knows.
So, the question is, why have we experienced such an
increase in Federal filings and caseload? Well, California's
Public Safety Realignment--again, AB 109--eliminated State
prison sentences for any conviction for drug dealing, which are
now punished in most cases by county jail sentences of 30 days
or less. Proposition 47 converted the possession of illegal
drugs in lesser quantities from a felony to a misdemeanor, and
as a result, statistics indicate that while addiction rates
have increased in California, drug prosecutions have declined,
while Federal referrals of drug cases have fluctuated between
1,900 and 2,500 over the past 5 years.
The incentive for county sheriffs and district attorneys to
refer cases involving drug dealing to the Federal court system
is increasing alarmingly as repeat offenders continue to churn
through the State system again and again and are back on the
streets a few weeks after initial arrest.
Finally, in several other areas of the law, including
environmental, criminal immigration, and utilization of Federal
natural resources, California has of course publicly proclaimed
its intention to resist both the enforcement of Federal policy
and Federal law with petitions for Federal injunctive relief.
These cases often take many years to litigate, taxing the
resources of the Federal courts.
To cite but one example, the case of Habeas Corpus Resource
Center v. The Department of Justice, an entirely extralegal
2013 injunction by a Federal district judge in California
blocked enforcement of the Antiterrorism and Effective Death
Penalty Act, which was signed into law in 1996, wasting 3 years
of court time before it was unanimously rejected by the Ninth
Circuit in 2016.
We have a fantastic increase in immigration caseload, and
as a result--and this has not quite yet hit the statistics--the
petitions for habeas corpus are going to be increasing as well,
therefore driving more Federal referrals. We also have--I
believe that this is something that we have talked about
previously, Mr. Chairman--matters involving intellectual
property, trademark matters, and the like, both in the Southern
District and in the Northern District, that are very complex
and take many years to be adjudicated.
The vacancies at both the district court and appellate
court levels in the Ninth Circuit are delaying justice for
millions of people in its jurisdiction. The current situation
is intolerable, actually punishing litigants who suffer the
misfortune of not living in one of the other circuit. Thank
you.
Mr. Issa. Thank you. We will now go in order for
questioning, and I would recognize the senior member present
here today, the gentleman from Ohio, Mr. Chabot, for 5 minutes.
Mr. Chabot. Thank you very much, Mr. Chairman. Thank you
for holding this hearing. Judge Stengel, I will begin with you
if I can.
Magistrate judges carry a significant part of the judicial
workload in many but not all districts. Would you discuss the
role that magistrates play in some districts, and why are some
districts more willing to delegate the workload to magistrates
than others?
Judge Stengel. The utilization of magistrate judges varies
from district to district. I am in the Eastern District of
Pennsylvania; our protocol for the use of magistrate judges
differs from the district court across the river in New Jersey;
we are a little bit different from Delaware. It is fairly
individualized. The magistrate judges, historically, conduct
settlement conferences; they do trials by consent. In some of
the more progressive courts--I will use that term--the
magistrate judges are actually on the assignment wheel and take
on some of the civil load. That is not in the majority of
courts.
When we do our judgeship assessment, we do not count the
contributions of the magistrate judges. We look at the workload
of the district courts, the weighted caseload per district
judge, and then, when we come to a number as to what their
weighted caseload is, and then we look at how they involve
magistrate judges, how they involve visiting judges, how they
involve senior judges in determining whether their request for
additional resources is reasonable.
So, you are absolutely right to identify a difference among
the districts, and there is a Judicial Conference Magistrate
Judge Committee which helps courts with the more effective
utilization of their magistrate judges and their work.
Mr. Chabot. Thank you very much, Judge. You used the word
``progressive'' courts. I used to consider myself progressive,
but then the term got turned around up here and politicized, so
I do not use it that much anymore, but I understand what you
meant by it.
Judge Mauskopf, I will turn to you next. How has the
ability for judges to select senior status impacted the
judiciary and its workload?
Judge Mauskopf. Well, certainly, when one of our colleagues
takes senior status that creates a vacancy on the court, so we
look forward to the presidential and congressional prerogative
to fill that seat. But senior judges contribute significantly
to the work of the Federal district courts. My court is a very
good example.
We have 14 senior judges; they carry a caseload equivalent
to 10 active judges. So, our senior judges, not just in my
court but across the country, continue to be very active in the
management and resolution of both criminal and civil cases. We
consider the contributions of senior judges in courts before we
make our recommendations for permanent judgeships.
Mr. Chabot. Thank you very much. And I have got not quite 2
minutes left, so I am going to open this question up to anybody
that would like to take a stab at it. Are there other changes
by the judicial system such as greater use of technology, for
example, or changes to procedural rules that could help to
reduce the current backlog of cases? And whoever would like to
take it, go right ahead. Judge?
Judge Mauskopf. I know that many courts have employed
robust alternative dispute resolution systems. Our magistrate
judges are often involved in settlement discussions. My court
in particular has a very large mediation program employing
outside practitioners to help mediate cases.
So, I think the Federal judiciary looks at ways to try and
expedite the backlog of cases we have, particularly on the
civil side. We always do a particularly good job of
prioritizing the criminal cases because of the issues at stake
there. But we are always looking inward for technology, for
other ways to resolve the disputes and to clear the backlogs
that we have.
Mr. Chabot. Thank you very much. I have got a little time
left. Judge Stengel, did you want to----
Judge Stengel. Just to add to that, in some districts,
particularly those with patent-heavy caseloads, the district
judges have taken to putting time limits on trials. So, they
will give the plaintiff 20 hours, they will give the defendant
20 hours, and they stick to those, and they have somebody in
the courtroom who runs a clock. That is a case management
technique that has been very efficient in those lengthy complex
cases.
Mr. Chabot. Kind of like playing chess.
Judge Stengel. Yes.
Mr. Chabot. Maybe a lot longer if we did not put limits on
that when you do it. Mr. Chairman, thank you very much. I
appreciate it and yield back.
Mr. Issa. I thank the gentleman, and I do wonder, if you
had one claim being adjudicated or 1,000 claims, how you would
feel about the same 20 hours. With that, we go to the gentleman
from Georgia, Mr. Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Chairman. Judge
Stengel, did the latest survey of the needs of the U.S. courts
of appeals and U.S. district courts completed by the Judicial
Conference in March 2017 produce any unexpected findings?
Judge Stengel. I do not know that the findings were
unexpected. We have a tremendous growth in the caseloads in
certain courts. We do this process every 2 years, and so we
were able to identify trends. But in terms of the caseload in
New Jersey, the caseload in Delaware, and the caseload in
certain other districts in California, those continue to grow
at a fairly dramatic rate.
There have been some changes in the law that have that have
led to that. The TC Heartland decision, which has to do with
venue in a patent case, has had an impact on the District of
Delaware. The continued growth in multi-district litigation; at
this time, about 35 percent of the civil litigation in this
country is in the MDL process. States like New Jersey, where a
number of the pharmaceutical companies have their principal
place of business and are incorporated, get an inordinate
number of those cases. So, that is something that we are
tracking.
Judge Mauskopf, you may want to comment on the survey
process in terms of any surprises.
Judge Mauskopf. We have no expectations in the survey
process. As Judge Stengel said, we do keep our eye on trends
and have a sense of the shifting caseload across the country,
but our recommendations are empirically based, based on the
data, caseload data, as of the time that we do the
recommendations.
Mr. Johnson of Georgia. Thank you. Judge Sabraw, what are
the implications when the judiciary is understaffed?
Judge Sabraw. Well, I can speak to that. In the Southern
District, in particular with Operation Streamline coming, we
are the only court on the border that does not currently have
Operation Streamline. And so, when----
Mr. Johnson of Georgia. Can you can explain what Operation
Streamline is?
Judge Sabraw. Yes. That will be a result of the zero-
tolerance policy and the immigration enforcement; so we are
expecting, for example, the U.S. attorney to bring in 75 to 100
cases each day in our court. And so, it will clearly impact the
level of resources we can devote to those types of cases.
Mr. Johnson of Georgia. These will be misdemeanor cases
brought against persons coming across the southern border?
Judge Sabraw. Yes, sir. They will be, under 8 U.S.C. Sec.
1325, misdemeanors, by and large.
Mr. Johnson of Georgia. And is it true that in the case of
misdemeanants coming before the U.S. district courts that there
is a right to have bond set in those cases?
Judge Sabraw. That is absolutely true. They do have a right
to a bond determination. It is a different calculation from the
felony filing, but they have a right to a bond hearing. Where
it impacts----
Mr. Johnson of Georgia. They have a right to a bond to be
set----
Judge Sabraw. Yes.
Mr. Johnson of Georgia [continuing]. For them, is that
correct?
Judge Sabraw. Yes, they do. They have a right to a bond
determination and to have a bond set, and the impact----
Mr. Johnson of Georgia. And that has to be an
individualized determination as to the bond; it cannot be,
like, a preset bond, but it has to basically be an
individualized consideration before the judge sets a bond.
Judge Sabraw. That is exactly right. It has to consider
flight risk, danger to the community. There is no presumption
of detention, so bonds are a very important consideration,
particularly for low-level offenders like misdemeanants.
I would like to say it does increase the workload for
district judges, because what we are seeing is a number of
appeals of bonds from the magistrate judges to the district
judges, and our district judges in the Southern District are on
the wheel for misdemeanor trials. Though we do not have to do
that, it is a way to best utilize resources and serve our
community.
Mr. Johnson of Georgia. So, basically, Operation Streamline
has the potential to gum up the workings of the operation of
the Southern District of California.
Judge Sabraw. It will have a dramatic impact. We are
presently trying to staff the influx of cases that we
anticipate. As I mentioned, the U.S. attorney anticipates
bringing in as many as 75 to 100 cases per day, so we will----
Mr. Johnson of Georgia. Per day?
Judge Sabraw [continuing]. Need additional magistrate
judges, additional courtroom space, and, of course,
interpreters, CJA attorneys, Federal defenders. It has a court-
wide impact for sure.
Mr. Johnson of Georgia. Now, what about juveniles? Will
juveniles who have been separated from their parents be coming
before the district court also?
Judge Sabraw. I do not anticipate that. Most of the
juveniles who are separated are processed separately through
various statutes. They are held through Office of Refugee
Resettlement. Most of them are detained pending removal
proceedings. We would only see juvenile offenders if another
crime is committed; for example, if they have drugs on their
person. In our district it is not uncommon to have a juvenile
come across with a backpack of marijuana. Those types of
offenders would come into our court, but they are relatively
rare.
Mr. Johnson of Georgia. I thank you all for your testimony
today, and I yield back.
Mr. Issa. Thank you. Just because I am not familiar with
this, and his question was very germane, people who have come
unlawfully over the border, it is only a misdemeanor. But when
you are giving a consideration to a bond, is there some sort of
statistical likelihood, on average, of how many of these people
will show up if you grant a bond?
Judge Sabraw. I know that that is heavily debated. I do not
have those statistics. I am simply looking as a judge giving an
individualized consideration of what flight risks are, what the
danger to community is. The statistics I know the Department of
Justice and others have, but we do not have those.
Mr. Issa. Thank you. We now go to the gentleman from Idaho,
Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman, and I want to thank
the panel for being here today. Idaho is in urgent need of
another Federal judgeship. The last time Idaho received an
Article III judgeship was in 1954. The 64-year wait is
unprecedented, and it keeps getting longer, obviously.
My concern is not just about the timing. Over the past 6
decades, Idaho's population has nearly tripled. In fact, the
U.S. Census recently announced that Idaho is the fastest-
growing State in the country, and in March, Forbes Magazine
named Idaho's capital, Boise, the fastest-growing metro area in
the United States.
Despite this impressive increase, Idaho still has fewer
judgeships than States such as Alaska, Montana, Wyoming, Maine,
and South Dakota, all who have smaller populations and/or
smaller weighted caseload. Idaho's insufficient number of
Article III judges is also surprising in light of the fact that
its docket continues to outpace those of other similar
communities and courts. Since 2001, criminal filings in Idaho
have increased by 163 percent and by 41 percent over the last 3
years alone.
Also, due to the recent announcement of two new U.S.
attorneys for Idaho, the number of criminal cases will only
increase. Further, despite a national trend of a reduction in
civil cases, the number of civil filings in Idaho has remained
relatively consistent over the last 10 years. This extremely
heavy caseload is currently being managed by three Federal
judges, two who are fulltime and one who is in senior status.
The senior judge carries only a 75 percent caseload and
obviously could retire any day. In fact, I think the reason he
has not retired is because we do not have an additional judge.
Once he retires, one of the two remaining judges plans to take
senior status with a reduced caseload, leaving only one
fulltime Article III judge in the District of Idaho and thereby
creating an immediate judicial emergency.
Federal judges from neighboring districts have acted as
visiting judges to alleviate the burgeoning caseload in Idaho.
In 2017 alone, the District of Idaho engaged the help of 25
visiting judges. Between 2012 and 2017, visiting judges spent
over 832 hours away from their own states to hear Federal cases
in Idaho. While their temporary assistance is appreciated, it
has created uncertainty among litigators, who struggle to
prepare cases for these particular judges, about whom they know
very little, if anything.
Finally, the burden of Idaho's massive geography is an
important factor for the Conference to consider when issuing
its decision about a new judgeship. The entire State of Idaho
is one district that encompasses over 83,000 square miles and
two time zones.
Additionally, the State is subdivided into three divisions,
each with their own Federal courthouse. Traveling between these
three venues includes stretches of 222 to 458 miles, and air
transport is not an option in some of those cases. This is
roughly the equivalent to driving between Washington, D.C.,
Pittsburgh, and Boston. The Federal judges in Idaho spend
significant amounts of time traveling between the three
courthouses.
I know you are aware of all these things, but I just wanted
to emphasize how important the dire need that we have in Idaho
is. Judge Stengel, given these facts, what is your response to
Idaho's need for a third Article III judgeship?
Judge Stengel. The Judicial Conference strongly supports an
additional permanent judge for the District of Idaho for the
reasons you cite. The weighted caseload certainly supports the
additional judgeships.
And when I talked earlier about qualitative and
quantitative factors, the qualitative factor here that is so
profound is the distance that the judges are required to travel
among the divisional offices. You correctly State it is 222
miles and 458 miles, and that is an extraordinary burden on
those judges. So, we are well aware of those factors and
strongly support the additional permanent judge in Idaho.
Mr. Labrador. Thank you. And why has Idaho had to wait
longer than any other State for an additional Federal judge?
Judge Stengel. We do the survey every 2 years. Our
recommendation for Idaho I think has been consistent. I cannot
speak to why that has not been acted on.
Mr. Labrador. As you are looking at your determination,
does the Conference consider that justice may not adequately be
served when a State has an insufficient number of Federal
judges?
Judge Stengel. There is no question, and that is why it has
such an emergent nature, not only in the courts with judicial
emergencies, which deals more with vacancies, but in the courts
such as your State, where justice delayed is justice denied.
And the fact that the resources are less than they need to be
is a problem with the administration of justice.
Mr. Labrador. As you know, we have some amazing judges in
the State, and they are doing the best they can with the
resources they have.
Judge Stengel. Absolutely.
Mr. Labrador. I have a bill before this Congress trying to
get an additional judgeship, and I hope that we can get that
done hopefully before the end of the year. Thank you very much
for your time.
Mr. Issa. Would the gentleman yield?
Mr. Labrador. Yes.
Mr. Issa. Would this presume that you embrace equally the
other recommendations of the Judicial Conference in a combined
bill that would, among other things, reduce by one the Wyoming
judgeship, which apparently is the pay-for for your getting
this additional one? Is that envisioned by you that they are
not only right in your case, but they are right in all cases?
Mr. Labrador. I will support anything that the commission
advises and anything that we can get passed through this
Congress.
Mr. Issa. I thank the gentleman. We now go to the gentleman
from Florida, Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman. The gentleman from
Idaho makes a compelling case for a new Federal judgeship. I
commend him for that argument.
Mr. Chairman, when Attorney General Sessions announced the
adoption of a zero-tolerance policy for undocumented people
crossing the border, any adult believed to have committed any
crime, including illegal entry, is, as a result of that,
prosecuted for committing a crime.
Now, the scope of that zero-tolerance policy is expansive.
It ends prioritizing the prosecution of and deporting those
people who are dangerous or pose a serious threat to our
national security. It now includes prosecuting not just those
deemed a threat, but all people who have committed the
misdemeanor by crossing the border illegally for the first
time. These people are now being prosecuted in Federal court
for a misdemeanor crime; we have talked about that already. If
convicted, they are usually provided time served; however, if
the person has illegally crossed the border on prior occasions,
they can be sent back to jail to serve more time and are then
deported from the United States.
In a June 19th article in The New York Times that I would
ask unanimous consent to submit for the record----
Mr. Issa. Without objection, so ordered.
[The information follows:] https://docs.house.gov/meetings/
JU/JU03/20180621/108453/HHRG-115-JU03-20180621-SD003.pdf
Mr. Deutch [continuing]. It is being reported that the
administration's zero-tolerance policy of criminally
prosecuting all people crossing the border is flooding our
Federal courts, and we have heard some of that this morning.
This policy is now forcing Federal judges to prioritize and
divert finite resources and time to misdemeanor first-time
border crossing cases. While more serious criminal cases,
including drug cases, human trafficking cases, and other
serious Federal offenses, are pushed further and further down
the dockets.
This enormous increase in immigration cases involving
illegal border crossings is especially acute along the border.
Texas, Arizona, and California have seen Federal courts--Judge
Sabraw, you touched on this--overrun with criminal prosecutions
of undocumented immigrants. In fact, this article reports that
in Tucson the court has already heard 6,519 immigration cases
this year. For comparison, during all of last year the Tucson
court heard 10,869 immigration cases.
It also reports a study by Syracuse University that found
that the zero-tolerance policy has caused Federal criminal
prosecutions of undocumented immigrants to increase along the
southwest border by 30 percent in April over March. Almost 60
percent of all Federal criminal prosecutions in April were for
violations of immigration law.
So, the massive increase in cases has forced the Federal
courts to pursue what is referred to, Judge Sabraw, as
Operation Streamline, what others have referred to as an
``assembly line of justice'' approach. I am not sure who gave
it that name, the Operation Streamline, because from what we
have read the reporting says that immigrants often appear in
court in large lines to have their cases quickly disposed of in
one plea.
Now, Federal courts have been forced to resort to this form
of dispensing justice. The large number of people being
prosecuted also is burdening not just the Federal judges but
the courtroom staff: Clerks, attorneys, interpreters, marshals,
and other security staff, as well as the actual courthouses and
the facilities. Many of these people appearing in Federal court
are fleeing from their home countries to seek safety in our
country; they are fleeing horrific violence and deadly gangs,
and this is now how we treat them when they get here: with a
jail cell, assembly-line justice, and separation from their
children. This is the way we show humanity to those who are
fleeing persecution and violence, and it is abhorrent.
The question I have is whether you are concerned that our
Federal courts--because we have been forced to resort to this
assembly line to dispense with the enormous volume of
misdemeanor immigration cases--what their impact is on your
ability to hear the cases that really present national security
threats. The drug cases that are not being heard; the human
trafficking cases that are not being heard because of this
policy. Judge Sabraw, can you comment on that?
Judge Sabraw. It does present a real challenge, because
with the flood of misdemeanant cases that come in, as I was
mentioning to Ranking Member Johnson, it necessitates the
involvement of district judges. So, we are hearing many more
bail review hearings; we are also conducting more misdemeanor
trials--I have one on calendar a week from today. So, there is
no question that it does distract from the district judges'
obligations. We can simply----
Mr. Deutch. I am sorry, Judge, to interrupt. It distracts
from which obligations?
Judge Sabraw. To attend to other cases, felony cases and
civil cases.
Mr. Deutch. Can I just stop for a minute? Mr. Chairman,
there has been a lot of talk over this week about the family
separation policy, and we have been told that we need this
because we care about security, and we have to take seriously
the rule of law. The fact is there are felony cases that are
not being heard right now by our Federal judges because those
cases are being pushed down the docket so we can hear these
misdemeanor cases instead.
I do not understand how it is that that advances our
national security when all of these other cases, so many of
which directly implicate our national security dangers posed to
American citizens, people who have been arrested for felonies,
justice is not being served because of this policy. That is a
really important point for us to acknowledge, and I greatly
appreciate the opportunity to engage on this topic with these
judges today, and I yield back the balance of my time.
Mr. Issa. I thank the gentleman----
Mr. Deutch. Thank you.
Mr. Issa [continuing]. For yielding back. The gentlelady
from California, is recognized.
Ms. Bass. Thank you, Mr. Chairman. Thank you for having
this hearing. And I want to thank the witnesses for coming and
taking their time with us this morning. Mr. Kahn, I know that
you are the chairman and CEO of Kent Holdings and Affiliates,
and I was wondering if you could describe what that company is.
Mr. Kahn. Yes, I would be happy to, Congresswoman. It is a
family-owned company that at one point in time was one of the
largest privately-owned masterplan community developers in the
United States. And it still exists today in various forms and
developing property and owning properties throughout California
and Nevada.
Ms. Bass. And I know that you have a background, I believe,
in criminal justice, and I was wondering if you could talk a
little bit about that.
Mr. Kahn. I would be happy to. I am of counsel to one of
the largest law schools in San Diego, the Thomas Jefferson
School of Law, school acting dean of the school, and chairman
emeritus. For the past 15 years, I have served as a trustee of
the Criminal Justice Legal Foundation, the only full-time
organization in the country to stand side by side with all the
United States attorneys and district attorneys of the United
States on major criminal matters.
Ms. Bass. You are also a deputy sheriff reserve, right? And
then you retired?
Mr. Kahn. Yes, ma'am. I had a 25-year career with the San
Diego Sheriff's Office, retiring at the rank of captain.
Ms. Bass. When did you retire?
Mr. Kahn. 1995.
Ms. Bass. 1995. So, AB 109 was in 2005, I believe, and I
actually was in the State legislature and was a part of AB 109.
And so----
Mr. Kahn. I recall that.
Ms. Bass [continuing]. Wondering if you were aware of why
AB 109 was passed, why it was an issue that was passed in
California.
Mr. Kahn. I know the highlights of it, but perhaps you
could refresh my memory.
Ms. Bass. Well, AB 109 and many of the criminal justice
reform propositions that you mentioned was because the courts
ordered the State of California to reduce the prison
population.
Mr. Kahn. Yes.
Ms. Bass. The courts ordered and took over control,
especially the healthcare of prisoners, because we were doing
such a poor job as a State. And so, AB 109 was a response to
reduce the prison population instead of the courts taking it
over. So, several of the reforms that you mentioned--
Proposition 47 and some of the others--you know, the verdict is
out. There was a report that was published just this month on
Proposition 47, and the point of Proposition 47 was one of
several measures that were led by communities to do criminal
justice reform in California.
And so, there is actually no evidence that violent crime
increased as a result of Proposition 47. That is a report that
was just released this month. There is some evidence that
Proposition 47 impacted property crime and that property crimes
have come up. So, when you were describing the crime rate, I
mean, both the chairman and I are from the same State, but I
did not recognize the State you were describing.
Because, actually, this report that was also released in
June of this month says that the California crime rates remain
comparable to the low rates observed in the 1960s, even with
dramatic reductions in incarceration. So, one of my concerns
about some of the ballot measures that we have passed is that
we have not passed the appropriate community-based programs to
address that population, meaning reentry programs, and so we
definitely need to do that. But I would just take issue with
what I believed I saw was a relationship between doing criminal
justice reform and a rise in crime when that does not really
meet with, you know, what reports are coming out about the
crime rate in California.
Mr. Issa. Would the gentlelady yield?
Ms. Bass. So long as I do not lose my time, I will.
Mr. Issa. Could you stop the clock for a moment? Thank you.
Because I have a question. Notwithstanding Mr. Khan's
testimony, you are not disputing that the Federal caseload is
rising in California, including criminal caseload, right?
Ms. Bass. No, I am not disputing that.
Mr. Issa. OK, I apologize.
Ms. Bass. Because I do not know. I am not agreeing or
disagreeing about that.
Mr. Issa. OK. Because that was Judge Sabraw's testimony,
and I think that the statistics that were given to us, which is
the primary reason for today's hearing--and I understand that.
We Californians will probably debate AB and SB and whatever
forever. But I just wanted to make that clear, because I think
that is important. And the gentlelady can continue.
Ms. Bass. OK, so, reclaiming my time, let me be clear: I am
not agreeing or disagreeing with that. I do not know that. But
what I heard from the witness concerned me, because California
is on a trajectory of criminal justice reform that I certainly
hope is followed by our Federal Government, and that I think
the verdict is out in trying to say that crime has increased,
or the caseload has increased because of the criminal justice
reforms, and that is the linkage that I felt that I heard from
the witness.
Mr. Johnson of Georgia. Would the gentlelady yield?
Ms. Bass. Sure.
Mr. Johnson of Georgia. Thank you. I agree with the
gentlelady. I gleaned from the comments that that was the
argument that was being made, and I thought that it was perhaps
outside the boundaries of this hearing. I yield back.
Mr. Issa. All time having expired, we now go to Mr.
Cicilline.
Ms. Bass. Thank you, Mr. Chair.
Mr. Cicilline. Thank you and thank you to our witnesses for
being here. I think, you know, all of us are generally inclined
to support the recommendations of the Conference as it relates
to additional Federal judges.
I do think it is important to understand this request in
the context in which we are currently living. And that is, you
know, we have a President who has nominated--you know, we all
understand Presidents nominate judges that reflect their
political views. That is nothing new in America.
But I think what we are seeing in this current
administration is the presentation of judicial candidates the
lack of qualifications and have views well outside the
political norms. For example, one who made a comment that he
supported conversion therapy and that transgender children are
part of Satan's plan; another nominee who was incapable of
articulating the Daubert standard of what a motion in limine
even meant; another nominee who led efforts to bar local
governments from taking down Confederate monuments; another
nominee who during her confirmation hearing refused to say
whether the Brown v. Board of Education was properly decided.
So, I think those of us that are interested in responding
to this demand always worry that this is not a normal moment,
and some of the greatest concerns that many of us have are
these lifetime appointments by this administration and the
impact they will have on our country and on the society in
which we live. And so, if you sense some hesitation, I hope you
recognize that is the context.
The second point I want to make is a point you made, Judge
Sabraw, that this new influx of immigration cases is, just by
definition, crowding the docket so that serious criminal
cases--things like robberies of financial institutions; crimes
of violence; drug trafficking; human trafficking; terrorism
cases; hate crimes--are taking a lesser priority than these
immigration cases.
And in fact, the American Immigration Council reported very
recently that violations of 8 U.S.C. Sec. 1325 and 1326, the
entering the United States without documentation, have become
the most Federally prosecuted offenses, consisting of almost
half of the prosecutions in Federal court. Now, Attorney
General Sessions in 2017 instructed Federal prosecutors to make
entry-related prosecutions a high priority nationwide, and in
April of this year he doubled down on this and issued a zero-
tolerance policy that required each United States attorney's
office to prosecute all DHS referrals of illegal entry. So,
this problem is only going to compound itself under the zero-
tolerance policy. And when you look at the determination this
administration has made of prosecuting every single one of
these cases and giving them a priority, my question is, what
will that impact be, and is that reflected in the
recommendations that the conference is making? Because this is
all happening now.
Has anyone looked at if these immigrations bills passed
that have been proposed that we are going to vote on today, and
there is zero-tolerance policy continues, I did notice that the
places where you are asking for the greatest growth in Federal
judges happens to be in the border States, which I am sure is
not just a coincidence. So, I would like anyone who is willing
to speak on what the impact is of this policy of charging every
single person, even those seeking asylum, with illegal entry
now becoming the highest reason for Federal prosecutions, the
greatest number of cases, almost half the Federal docket, and
it is going to explode even more? What will be the impact that?
Both on your operations in the court, but also what is the
impact on our country when you have to have half your docket or
more of people who are fleeing violence from Honduras or El
Salvador, fleeing to protect their lives, and that has to take
priority over someone who has committed a violent crime or drug
trafficking in communities where our constituents live?
Judge Stengel. I think the----
Mr. Cicilline. Judge----
Judge Stengel. Sorry.
Mr. Cicilline. No, I would love to hear from all three of
you.
Judge Stengel. I think the answer to your specific last
question is, has the recommendation taken into account the
recent policies by the administration? And the answer to that
would be no. The assessment of the workload that we made was
completed about 2 years ago.
It is no coincidence, though, that there are
recommendations for judgeships in a number of the border
courts, because that has been a significant issue with the
judiciary's workload for many years. And those have been unique
among the judiciary. The workload in Southern California,
Arizona, western Texas is very different from the caseload in
the Eastern District of Pennsylvania or Ohio or other States or
districts not near the border.
Our judgeship recommendation takes a comprehensive look at
addressing judgeship needs throughout the Nation, but clearly
the immigration cases have for a number of years been a source
of concern and a reason for our recommendation that the border
States have additional judgeships.
Mr. Cicilline. Could I just ask each of the panelists, does
anyone disagree with the assertion that this policy of
requiring prosecution and making it a high priority means that
those other crimes that I have described will take less of a
priority or will crowd out some part of the docket in a
meaningful way? Judge Sabraw, do you have----
Mr. Issa. All the judges may answer briefly.
Judge Mauskopf. I think in some courts it may. I think it
will definitely create a burden for every court that has an
influx of these cases. And it will be up to the courts to
determine whether there are efficiencies that can be employed
to address these concerns or how best to effect it, and in many
cases, it may affect the prioritization of cases.
Judge Sabraw. The priority of district judges is with
felonies first, and in the Southern District our felony filings
have grown enormously: 62 percent in the last year. It is the
felonies that can displace our ability to get to civil cases,
which causes delay.
To be clear, the zero-tolerance policy has an impact on the
court, but it most dramatically impacts magistrate judges,
because that is peculiarly within their jurisdiction. Where it
occupies some of the district judge resources is, as a court,
we would then begin to hear more and more appeals at the
magistrate judge level for bond determination, and as a court
our district judges have agreed to be on the wheel to hear
misdemeanor trials.
So, it does use additional judicial resources; there is no
question. But I do want to be clear that our priority has
always been with the adjudication of felony cases.
Mr. Cicilline. Thank you. Thank you, Mr. Chairman.
Mr. Issa. Thank you. And following up, because I think, the
gentleman's question is a good one, you have an experience in
your court with very large amounts of prosecutions,
particularly after the Carol Lam replacement and the new
policies during the Bush administration, where I think you were
you were a little junior on the totem pole back then. You want
to go through what efficiencies you have been able to find in
the Southern District of California?
Judge Sabraw. Well, we are a patent pilot court, thanks to
the chairman, and----
Mr. Issa. Well, thank Chief Judge Moskowitz for that.
Judge Sabraw. Yes, absolutely. And as part of that process,
we have engaged in determining how best we can process civil
cases, for example. So, we use our magistrate judges for great
resources; they handle settlement conferences and all of the
discovery-related matters. We are active in case management on
civil cases, so we try to set firm deadlines, including trial
times, as Judge Stengel mentioned. When we adjudicate civil
cases, we routinely set time limits. So, we believe we are as
efficient as we can be in handling civil cases and processing
them as quickly as possible.
Mr. Issa. When Carol Lam was fired during the Bush
administration for not prosecuting, for actually having, I
guess, an infinite tolerance nearly for not the undocumented
but particularly the coyotes, the caseload was reversed under
the new U.S. attorney, and you then had a large amount,
particularly of traffickers and to a lesser extent people
coming across.
My understanding is in San Diego you ``gang,'' if you will,
those cases. One judge gets a long day of those cases, and a
U.S. attorney gets a long day. Can you go through that process
to the best, you know, put it into the record?
Judge Sabraw. What is happening presently is in a state of
flux. We are working with the U.S. attorney's office to
establish the Operation Streamline process. We are the only
border court of the five that does not currently have Operation
Streamline, so we are using Arizona as a good example, because
it is within the Ninth Circuit, and there is good circuit court
case law as to what we can and cannot do.
We cannot engage in mass shackling; we have to have a full
and robust Rule 11 plea colloquy with each of the persons
appearing. That imposes limitations on our ability to handle
large numbers of cases. Arizona, for example, caps out its
processing at 75 per day----
Mr. Issa. Per judge?
Judge Sabraw. Per magistrate judge. They dedicate one
magistrate judge to one courtroom, and they do 75 misdemeanor
cases per day. We likely will model parts of our system after
the Arizona system. It will occupy one, perhaps two magistrate
judges per day, one or two courtrooms per day, and then, as I
mentioned, the shift in the workload for district judges is the
amount of appeals and misdemeanor trials that will come from
the influx of 75 to 100 misdemeanors.
Mr. Issa. I am going to break in and ask Mr. Cicilline for
a follow-up. So, if I understand the process both in Arizona
and as it will be in San Diego and other areas, the initial
front end of the processing--the decision that there is zero
tolerance; that everyone who breaks the law is held accountable
to either plead guilty and leave or plead innocent and go
through a process, first with the magistrate, and if they
really want to, with an Article III judge--the front end of the
process is pretty efficient.
You can plead out and be gone very quickly, but there is a
record rather than simply a removal with no records so that
somebody coming in six, seven, eight times technically has
never been convicted of a misdemeanor. That is the difference
that this 75 a day in front of a magistrate creates. Is that
correct?
Judge Sabraw. Yes, it is front-loaded, by and large. Most
of the misdemeanants will enter a guilty plea and be sentenced
and then serve 15 to 45 days.
Mr. Issa. Or just they are already gone that long; they are
out.
Judge Sabraw. Yes, it could be a time served sentence. Some
of the defendants may elect not to plead guilty, and there the
U.S. attorney has the ability in certain cases, depending on
criminal history and number of prior illegal entries, that they
can then charge a felony, the so-called FLIP cases.
Mr. Issa. I do not want to deal with the zero tolerance,
but I do want to deal with the process, if you will, because I
think that is where there is an important question that lead to
zero tolerance. If you have a zero tolerance, and people
continue to come across the border, eventually, these are not
misdemeanors but rather repeat offenders who are charged with
felonies. Is that correct?
Judge Sabraw. Yes.
Mr. Issa. So, if you do not have zero tolerance, you never
get to the felony, and you end up with people who are not
dissuaded from continuing to come over the border until they
get away with it, basically. Correct?
Judge Sabraw. Well, I am not in a position to comment on
the charging decision. It is my understanding that if a person
has a number of prior illegal entries and no prior criminal
history that they may be charged on a felony count. I am not
certain of that, but there are many nuances in that regard.
Mr. Issa. Sure, but you have certainly seen cases where
somebody is habitual and is being charged with a felony, is
that correct?
Judge Sabraw. From my understanding, the government in the
past has focused on recidivist offenders, those with underlying
criminal history, or those who are committing a felony in
addition to illegal entry, like smuggling drugs.
Mr. Issa. Smuggling drugs or the actual coyote activities
of bringing people across.
Judge Sabraw. Yes.
Mr. Issa. Mr. Cicilline, did you have a follow-up?
Mr. Cicilline. Yeah, I just want to make one point. This
front-ended position, which I think you are questioning, Mr.
Chairman, suggests it was sort of a routine or efficient
process. I want to just underscore the entry of a guilty plea
or a plea of any kind and the advisement of rights,
particularly with the use of a translator--this is a labor-
intensive process that has to be done well and cannot be done
in large groups. And having practiced criminal law for many,
many years, the initial appearance, the bond determination, and
the plea is a time-intensive process that for 75 or 100 people
is an enormous devotion of resources. So, I wanted to make that
known.
Mr. Issa. And I will give you additional time. But the
reason I asked the question the way I did is that policies
change from time to time. My question, and the nature of this
hearing, is making the case for the need for 66 additional
judgeships. And so, that is why the question is, how much time
does it take, and where are the efficiencies?
And that is why when Judge Sabraw answered that the vast
majority of this goes to magistrates, I think for Judge Stengel
that means that there was not a lot loaded into it for the
front end. Only for those who then obviously want to be in
front of an Article III judge, which is part of his calculation
and I think part of your statistics. But you do have one more
follow-up.
Mr. Cicilline. Yeah, the second point I wanted to make is,
you know, early this morning on this very subject we had an
official statement from the President of the United States by
way of Twitter, which is a statement of the President----
Mr. Issa. Without objection, that statement will be placed
in the record.
Mr. Cicilline. No, I would like to place it in the record.
``We should not be hiring judges by the thousands, as our
ridiculous immigration law demands. We should be changing our
laws, building the wall, hire border agents and ICE, and not
let people come into our country based on a legal phrase that
they are told to say as their password.'' Of course, everyone
is free to interpret that in any way you want, but I thought it
should be part of the record.
Mr. Issa. And without objection, it will be part of the
record.
[The information follows:] https://docs.house.gov/meetings/
JU/JU03/20180621/108453/HHRG-115-JU03-20180621-SD002.pdf
Mr. Issa. Mr. Johnson, you had one final follow-up.
Mr. Johnson of Georgia. Thank you, Judge Sabraw. So, Ninth
Circuit practice is 75 cases per day per magistrate under
Operation Streamline.
Judge Sabraw. That is the Arizona district court practice.
Mr. Johnson of Georgia. Which probably the Southern
District of California will adopt?
Judge Sabraw. We are looking at that issue.
Mr. Johnson of Georgia. An average magistrate works, what?
About eight hours a day?
Judge Sabraw. Yes.
Mr. Johnson of Georgia. Including lunch for the hour?
Judge Sabraw. It depends on their duties.
Mr. Issa. The hardworking magistrates in the Southern
District would probably say they work far beyond that.
Mr. Johnson of Georgia. Well, I think, just taking it from
the standpoint of eight hours a day, 75 cases per judge per
day, that equals about 6 minutes per case. And for a
misdemeanant coming before the magistrate for a determination
as to whether or not they are going to plead guilty or not
guilty, an arraignment hearing is basically what it is going to
be. Correct?
Judge Sabraw. Yes, it could include an arraignment, an
advisal with respect to a Rule 11 plea colloquy.
Mr. Johnson of Georgia. And so, in other words, you advise
them of the charge; the nature of the charge; the sentence or
the range of punishment that could be imposed if they plead
guilty; you find out whether or not they can understand the
proceedings, and if not, you have to offer an interpreter. Is
that not correct?
Judge Sabraw. Yes.
Mr. Johnson of Georgia. And then, once the interpreter is
in place, and they understand that what they are accused of and
the range of punishment, they have to be advised of their right
to counsel, is that not correct?
Judge Sabraw. Yes. The process contemplates many of our CJA
attorneys and Federal defenders who are Spanish speakers, and
it allots a period of time early in the morning for those
attorneys to meet and counsel their clients prior to being
brought into court. So, the court session often occurs much
later in the morning or first thing in the afternoon.
Mr. Johnson of Georgia. So, these misdemeanants will have
already spoken to lawyers before they get to the magistrate
judge for their arraignment?
Judge Sabraw. It depends on the court, but that is the
system that we are contemplating.
Mr. Johnson of Georgia. Are you going to have to ramp up on
your public defenders?
Judge Sabraw. Absolutely do.
Mr. Johnson of Georgia. Do you know whether or not funding
is in place for that?
Judge Sabraw. There presently is, but we are in discussions
now with Federal defenders and CJA panel attorneys to staff
this influx.
Mr. Johnson of Georgia. In addition to being advised of the
charges against them, the range of punishment, the consequences
of a plea of guilty or not guilty, they also have a right to a
trial in the case. Is that not correct?
Judge Sabraw. Yes.
Mr. Johnson of Georgia. They have a right to a trial by
jury.
Judge Sabraw. Not on misdemeanors. It would be a bench
trial.
Mr. Johnson of Georgia. Not on a misdemeanor? OK. And they
have a right to a bench trial, which would mean witnesses would
have to be brought in to testify against them to make the case
as to whether or not they illegally entered the country or not.
Is that not correct?
Judge Sabraw. Yes.
Mr. Johnson of Georgia. And the person, during their
arraignment, has to be advised that if they cannot afford an
attorney an attorney must be appointed or can be appointed to
represent them if they so request.
Judge Sabraw. They are counseled by their attorney, and
they are admonished by the court.
Mr. Johnson of Georgia. So, if all of these misdemeanants
charged with illegally entering the country choose to go to
trial, then the magistrate would have to transfer the case to
the district court for trial?
Judge Sabraw. That would depend on the court. Misdemeanors
can be exclusively handled by magistrate judges, so in some
districts the magistrate judges do all of this work. In our
district we are a very collaborative group, and our district
judges have agreed to be on the wheel to handle misdemeanor
trials.
Mr. Johnson of Georgia. And then, after a trial, if the
person accused is found guilty, they have a right to appeal a
conviction of a misdemeanor, is that correct?
Judge Sabraw. Yes.
Mr. Johnson of Georgia. And then, while they are appealing
the conviction, is there a right to bond for a misdemeanant
convicted of a misdemeanor?
Judge Sabraw. There can be, yes. That is a consideration
that is available in all cases, including felonies.
Mr. Johnson of Georgia. OK. Thank you.
Mr. Issa. Thank you. Now, I am going to ask the question we
have all been waiting for. Judge Sabraw, we have a wall in San
Diego. If we build the wall, do we not in fact reduce the
amount of people who are in the country because they are
apprehended outside the country? In other words, one of the
virtues of the wall is in fact to allow the Border Patrol to do
their job, notwithstanding people who claim asylum and so on.
But for people who are coming over, particularly in our region,
the wall in fact provides some of that situation in which you
do not have to hear the cases. Is that not true? As a San
Diegan?
Judge Sabraw. I would not be able to speak to that. I do
not know. I am simply there as a judge to adjudicate the cases
that come before me.
Mr. Issa. Well, the President did tweet out today, ``Build
the wall.'' I have been down to the border, and I would hope
that all the Federal judges would take the opportunity to see
the work that is done at the border, at least for purpose of
civil rights, and recognize that the three-fence system does in
fact dissuade people from getting over the border.
A couple of quick questions in closing. We went through
this whole question of bond, but people who enter the country
illegally have no attachment to the United States by definition
in most cases. In other words, the people you see in your
court, and the magistrates see, they are not in fact connected
in the United States.
They do not typically have a business; they do not
typically have a home; they do not typically have other things
which would cause them to meet the normal criteria to be
entitled to be not a flight risk. Are those not some of the
criteria you have to work with? Any of the judges.
Judge Sabraw. That is exactly right. Those are flight risk
characteristics you look to.
Mr. Issa. And the statistics that are available from the
Department of Justice will be placed in the record if there is
no objection, because I believe that they are telling that the
reality is if you release these people, they thank you very
much for the opportunity to accomplish what they came to
accomplish, and you do not see them again, because the only
penalty if they get caught is the same penalty that you were
going to deliver to them anyway, which was removal.
Mr. Issa. I want to go into one final area very briefly,
because we are going to put some proposed legislation out to
deal with your requests for 66 judges. What we find, of course,
is 17 will be in California and the rest of the Ninth Circuit,
and five will be appellates of the Ninth Circuit. So, the
greatest single area happens to come to the largest court.
Currently, there are over 30 judges on the Ninth Circuit.
As a matter of fact, I think there is going to be right close
to 40 if we add these five additional appellate judges. So,
Judge Stengel, in your circuit, how many judges are on your
appellate court?
Judge Stengel. We have, I believe, 14 judgeships en banc.
Mr. Issa. Fourteen? And they meet en banc infrequently, but
they do meet en banc.
Judge Stengel. Several times a year.
Mr. Issa. And, Judge Mauskopf, how many are on yours?
Judge Mauskopf. I do not know the exact number, I am sorry
to say.
Mr. Issa. But you have seen your cases go before both a
three-judge panel and an en banc?
Judge Mauskopf. Yes.
Mr. Issa. And, Judge Sabraw, do you have any similar
history in the Ninth Circuit?
Judge Sabraw. We have 29 active spots, and the request, of
course, is for five additional.
Mr. Issa. Active spots? I think there are 33 authorized,
though, are there not? I think there are vacancies.
Judge Sabraw. My colleagues can correct me, but I thought
there were 29 active.
Mr. Issa. But the reality is that they do not do full en
bancs. They have never done--during your now-long tenure as a
Federal judge--29 judges meeting to consider a case. So, there
is no such thing as full en banc in the Ninth Circuit.
Judge Sabraw. It is an 11-person panel.
Mr. Issa. So, you get a mini self-selected, who is
available, who wants to take these cases, with no particular
flavor being definable as the decision of the Ninth Circuit,
correct?
Judge Sabraw. My understanding is it is a random computer-
drawn allotment of 11 judges.
Mr. Issa. OK. So you get random justice in the Ninth
Circuit.
Judge Sabraw. Well, I think the computer simply identifies
11, and they may be situated anywhere within the Ninth Circuit.
Mr. Issa. During the post-retirement tenure of Byron White,
Justice White, he did a commission that suggested breaking
administratively the Ninth Circuit into functional subsystems,
each of which would be able to have en banc with its then-9 or
-10 judges.
And I would like each of you to comment on whether,
assuming that we do not break up the Ninth Circuit, as there
are bills to do, but rather administratively create in this
case--Justice White's thoughts--three divisions, each of which
would be about 11 or 12 judges. Could I get your opinions on
whether you think that would be an improvement over the
randomization of a very large circuit today?
Judge Stengel. I do not know if that would be in
improvement as a matter of judicial administration. We can
speak only to the caseload demand and the need for judgeships.
However those would be split up, if there was to be some
legislation, we would support the needed resources which have
been demonstrated by our study throughout the Ninth Circuit.
And certainly, those could be split up if the Congress would
choose to do something.
Mr. Issa. And I want to follow up briefly, because you have
studied the utilization of resources.
Judge Stengel. Yes.
Mr. Issa. The Ninth Circuit, after the additional five
judges, will be larger by a factor of two than any other court.
In the case of each of your two circuits, would you support
combining your circuit with some other circuit to get the same
efficiency the Ninth Circuit has, which is the alternative to
dividing it?
Judge Stengel. I am afraid that may be above my pay grade.
Mr. Issa. But from an efficiency standpoint, is there some
magical efficiency that the Ninth Circuit gets that your
circuits do not?
Judge Stengel. I am not aware of any.
Mr. Issa. So, the idea of ``bigger is better'' does not
particularly play in the Eastern District.
Judge Stengel. Well, in the Third Circuit----
Mr. Issa. The Third Circuit, right.
Judge Stengel [continuing]. Certainly, the processing of
cases is different circuit to circuit. The 11th circuit, for
example, has some unique case management approaches.
Mr. Issa. But I am talking about the--it is really the
efficiency of the appellate level in addition to. Obviously,
the Ninth Circuit has a lot more judges to move around.
Judge Stengel. Right.
Mr. Issa. That is one of the benefits that they talk about.
And I will close, because we are going to go vote, and I do not
want to keep you. And the gentleman has a couple of very short
points. If you would respond for the record on if you see any
efficiencies in combining adjacent circuits to be more like the
Ninth Circuit versus some sort of administrative breaking up of
the Ninth Circuit to enjoy the same sort of en bancs as your
two circuits enjoy, I would appreciate it. And Judge Sabraw,
you live with it, so any comments you have would be fine.
Judge Sabraw. Well, I am not on the Judicial Resources
Committee, so I do not have the numbers.
Mr. Issa. I am not forcing you to answer, though.
Judge Sabraw. All I would say is that I think the
efficiencies are the same circuit-wide. What the Judicial
Resources Committee is doing is simply looking at adjusted
filings in the circuit court and then empirically assigning a
number of judgeships that are needed. Whether Congress elects
to split or divide circuits is within your prerogative.
Mr. Issa. And so, 1 minute, because we have 3 minutes left
on the clock across the dome.
Mr. Johnson of Georgia. Thank you. Yes. Judge Sabraw, with
the 6 minutes per case that a magistrate would get to spend
with a misdemeanant accused of coming across the border--75 in
one day. So, assuming 8 hours a day, about 6 minutes per case,
and arraigning that misdemeanant, advising them of their
rights, the nature of the charges, punishment that could
happen--you also have to consider a bond within that 6 minutes,
too. Is that not correct?
Judge Sabraw. What the system contemplates is that the
attorneys play a very active role at the beginning, which is
critical, and they advise their clients of all of their rights
and the consequences.
Mr. Johnson of Georgia. If there are no attorneys involved,
though, then you are just dealing with a pro se litigant. And
that may in fact happen frequently, do you think?
Judge Sabraw. In our district it would not. All of the pro
se criminal defendants are entitled to counsel, so they are
well counseled by Federal defenders and CJA attorneys.
Mr. Johnson of Georgia. And there is a possibility that
there could be an agreement as to bond for the person accused,
and if no agreement, then the magistrate would have to consider
whether or not to grant bond or not.
Judge Sabraw. The vast majority of cases will resolve in a
misdemeanor disposition, so bond is not considered in that
respect, because the defendant has elected to plead guilty, but
for those who want to stand on their constitutional rights,
then they may press the bond issue.
Mr. Johnson of Georgia. One last question.
Mr. Issa. The gentleman will have to be extremely brief,
even if he runs fast.
Mr. Johnson of Georgia. I mean, a person coming across the
border, just because they are coming across the border does not
mean that they do not have ties to the community.
Judge Sabraw. It does not. Many of them do.
Mr. Johnson of Georgia. Yes. Thank you.
Mr. Issa. Thank you. I want to thank our guests for their
patience and their brevity, which allows you to enjoy your
lunch. The only thing I will say in passing is if any of you
would like to enjoy a lunch at the members' dining room, I am
happy to sponsor it. My staff will take you over there. If you
have better plans, then I thank you for your service both to
our country and to the Congress.
Mr. Johnson of Georgia. Am I included, Mr. Chairman?
Mr. Issa. Sure, you have got an account there. We stand
adjourned.
[Whereupon, at 11:59 a.m., the subcommittee was adjourned.]