[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]




 
    THE NEED FOR NEW LOWER COURT JUDGESHIPS, 30 YEARS IN THE MAKING

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

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                      WEDNESDAY, FEBRUARY 24, 2021

                               __________

                            Serial No. 117-6

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
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               Available via: http://judiciary.house.gov
               
               
               
                       ______

           U.S. GOVERNMENT PUBLISHING OFFICE 
45-891           WASHINGTON : 2022 
               
               
               
                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

        PERRY APELBAUM, Majority Staff Director & Chief Counsel
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

             HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                  MONDAIRE JONES, New York, Vice-Chair

THEODORE E. DEUTCH, Florida          DARRELL ISSA, California, Ranking 
HAKEEM JEFFRIES, New York                Member
TED LIEU, California                 STEVE CHABOT, Ohio
GREG STANTON, Arizona                LOUIS GOHMERT, Texas
ZOE LOFGREN, California              MATT GAETZ, Florida
STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
KAREN BASS, California               TOM TIFFANY, Wisconsin
ERIC SWALWELL, California            THOMAS MASSIE, Kentucky
MONDAIRE JONES, New York             DAN BISHOP, North Carolina
DEBORAH ROSS, North Carolina         MICHELLE FISCHBACH, Michigan
JOE NEGUSE, Colorado                 SCOTT FITZGERALD, Wisconsin
                                     CLIFF BENTZ, Oregon

                      JAMIE SIMPSON, Chief Counsel
                     BETSY FERGUSON, Senior Counsel
                     
                            C O N T E N T S

                              ----------                              

                      Wednesday, February 24, 2021

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     1
The Honorable Darrell Issa, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California..................................................     3
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     4

                               WITNESSES

The Honorable Kimberly J. Mueller, Chief Judge, United States 
  District Court, Eastern District of California
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
The Honorable Larry A. Burns, Senior District Judge, United 
  States District Court, Southern District of California
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
The Honorable Diane J. Humetewa, District Judge, United States 
  District Court, District of Arizona
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44
Mr. Brian T. Fitzpatrick, Professor of Law, Vanderbilt Law School
  Oral Testimony.................................................    63
  Prepared Statement.............................................    65
Ms. Marin K. Levy, Professor of Law, Duke University School of 
  Law
  Oral Testimony.................................................    71
  Prepared Statement.............................................    73

                                APPENDIX

A statement from the Constitutional Accountability Center, 
  submitted by the Honorable Henry C. ``Hank'' Johnson, Jr., 
  Chair of the Subcommittee on Courts, Intellectual Property, and 
  the Internet from the State of Georgia for the record..........   108
A letter from judicial organizations, submitted by the Honorable 
  Henry C. ``Hank'' Johnson, Jr., Chair of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of Georgia for the record......................................   111
A statement from Ilya Shapiro, Director, Robert A. Levy Center 
  for Constitution Studies, submitted by the Honorable Darrell 
  Issa, Ranking Member of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  California for the record......................................   114
A white paper entitled, ``Break up the Ninth Circuit,'' by Ilya 
  Shapiro and Nathan Harvey, submitted by the Honorable Darrell 
  Issa, Ranking Member of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  California for the record......................................   116

                  QUESTIONS AND ANSWERS FOR THE RECORD

A question to the Honorable Kimberly J. Mueller, Chief Judge, 
  U.S. District Courts, Eastern District of California submitted 
  by the Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia for the record.......................   148
A question to the Honorable Kimberly J. Mueller, Chief Judge, 
  U.S. District Courts, Eastern District of California submitted 
  by the Honorable Ted Lieu, a Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California for the record...................................   149
Responses to questions from the Honorable Kimberly J. Mueller, 
  Chief Judge, U.S. District Courts, Eastern District of 
  California, submitted by the Honorable Henry C. ``Hank'' 
  Johnson, Jr., Chair of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of Georgia, and the 
  Honorable Ted Lieu, a Member of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  California for the record......................................   150
A question to Marin K. Levy, Professor of Law, Duke University 
  School of Law, submitted by the Honorable Henry C. ``Hank'' 
  Johnson, Jr., Chair of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of Georgia for the 
  record.........................................................   156
A response from Marin K. Levy, Professor of Law, Duke University 
  School of Law to a question submitted by the Honorable Henry C. 
  ``Hank'' Johnson, Jr., Chair of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  Georgia for the record.........................................   157


    THE NEED FOR NEW LOWER COURT JUDGESHIPS, 30 YEARS IN THE MAKING

                              ----------                              


                      Wednesday, February 24, 2021

                     U.S. House of Representatives

                   Subcommittee on Crime, Terrorism,

                         and Homeland Security

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to call, at 10:05 a.m., in Room 
2141, Rayburn House Office Building, Hon. Henry C. ``Hank'' 
Johnson, Jr. [Chair of the Subcommittee] presiding.
    Members present: Representatives Johnson, Nadler, Lieu, 
Stanton, Lofgren, Cohen, Bass, Jones, Ross, Neguse, Issa, 
Chabot, Gohmert, Tiffany, Massie, Bishop, Fischbach, 
Fitzgerald, and Bentz.
    Also present: Representative Spartz.
    Staff present: David Greengrass, Senior Counsel; Madeline 
Strasser, Chief Clerk; Cierra Fontenot, Staff Assistant; John 
Williams, Parliamentarian; Jamie Simpson, Chief Counsel, 
Courts, and IP; Ken David, Minority Counsel; Kiley Bidelman, 
Minority Clerk; and John Lee, Minority USPTO Detailee.
    Mr. Johnson of Georgia. [Presiding.] The Subcommittee will 
now come to order. Without objection, the Chair is authorized 
to declare recesses of the Subcommittee at any time.
    Welcome to this morning's hearing on the ``Need for New 
Lower Court Judgeships, 30 Years in the Making.''
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of today's 
hearing. If you would like to submit materials, please send 
them to the email address that has been previously distributed 
to your offices, and we will circulate the materials to Members 
and staff as quickly as we can.
    I would also ask all Members, both those in person and 
those attending remotely, to mute your microphones when you are 
not speaking. This will help prevent feedback and other 
technical issues. You may unmute yourself anytime you seek 
recognition.
    I would also remind Members that guidance from the Office 
of Attending Physician calls for all Members to wear a mask, 
even when they are speaking.
    I will now recognize myself for an opening statement.
    Fundamentally, Americans understand that a well-functioning 
legal system is vital to a healthy, thriving democracy. I think 
most of us share a vision of how our federal legal system 
should work to administer justice. This vision encapsulates a 
common-sense understanding of the importance of the 
constitutional right to petition the government for redress, to 
have due process, and to be entitled to a speedy and public 
trial. We imagine a system of open and equal justice accessible 
to everyone where each and every case is closely supervised by 
a federal judge who ensures that the case is resolved both 
fairly and efficiently.
    This vision falls apart if the judicial system doesn't have 
enough judgeships to ensure that disputes are not only resolved 
correctly, but also without unjustifiable expense and delay. 
That, unfortunately, is the crisis that we face today.
    We hear from small businesses and individual litigants who 
tell us that, because there aren't enough federal judgeships, 
their disputes drag on, saddling them with crippling 
uncertainty and spiraling legal costs. We hear about how many 
years it takes to get a case to trial, settlement, or even an 
appellate decision. We hear from prosecutors that the delay 
makes criminal cases harder to prove, and we hear from defense 
attorneys that their clients languish in the limbo of pretrial 
detention.
    We hear about this crisis in the courts all the time, but 
it is been going on for so long that we have stopped treating 
it as a crisis. The last time Congress passed comprehensive 
judgeship legislation was 1990, just a year after the World 
Wide Web was created.
    A lot has happened in the ensuing 30 years, to put it 
mildly. The country grew by 75 million people. Our economy more 
than doubled. The world has become increasingly connected and 
complex, and the business of the courts has changed 
accordingly.
    Even after three decades of rising caseloads and 
increasingly difficult cases, the number of federal judges as 
stayed almost exactly the same. In some districts, the 
situation is even more dire. For example, the Northern District 
of Georgia, which encompasses Atlanta, hasn't received a new 
District Court judgeship since 1978, even though the population 
of the district has increased exponentially, and the regional 
economy has been transformed.
    Our federal district judges are extraordinary, but there is 
only so much that they can do to compensate for the fact that 
they have needed reinforcements for decades. They often rue the 
techniques they have resorted to try to manage their 
unmanageable caseloads. At the appellate level, some circuits 
have developed docket management practices that raise serious 
concerns about whether a two-tiered justice system has 
developed, one reserved for marquee cases, White shoe lawyers, 
and wealthy litigants, and one for everyone else.
    All this makes clear that we cannot find a workaround to 
the fact that expanding the lower courts is decades overdue. 
The consequences of doing nothing are insidious and can become 
downright cancerous. When people lose faith in the federal 
court system's ability to resolve disputes justly, quickly, and 
inexpensively, our democracy suffers. We need to make sure that 
the federal courts can still operate according to the principle 
that justice delayed is justice denied.
    I look forward to hearing from our eminently qualified 
witnesses who will shed greater light on what it is like in a 
judiciary suffering from a chronic lack of judgeships and who 
will discuss the importance of finally addressing this crisis.
    It is now my distinct pleasure to recognize the Ranking 
Member of the Subcommittee, the gentleman from California, Mr. 
Issa, for his opening statement.
    Mr. Issa. Thank you, Mr. Chair.
    As you said, justice delayed is justice denied. Many people 
know that time is money, and, in fact, money is the equivalent 
of justice delayed and, thus, denied. All of this has been a 
side effect of our inability to Act in a timely fashion, as you 
said, for more than 30 years. Although, in 2002, 15 judgeships 
were created, it only stemmed a small portion of the tide of 
ever-growing cases.
    It, also, is time for significant reform. It is time for a 
serious conversation about the district judges and the circuit 
courts, but also about areas such as my own Ninth Circuit. The 
Ninth Circuit currently has 29 judges. Any reasonable expansion 
of the court would include additional judges on that court. 
Yet, the Fifth Circuit, which was last split in 1981, had only 
17 judges and was split because it was reaching a point where 
it could not hold an en banc. The Ninth Circuit has not had a 
true en banc in decades.
    The fact is that the Ninth Circuit has the largest 
population and includes Alaska, Arizona, California, Guam, 
Hawaii, Idaho, Montana, Nevada, and the Northern Marianas, 
along with Oregon and Washington. It decides more than 11,000 
appeals each year and its backlog is pending, typically, two 
years or more. If there is a good example of denied because of 
delay, the Ninth Circuit is the poster child for it.
    It has been 17 years since we last made any increase, which 
is the longest since 1789. More than 425,000 cases were filed 
in Federal District Court and the Courts of Appeals last year. 
These cases included time-sensitive civil rights claims, 
criminal prosecutions, environmental and consumer protection 
litigation, discrimination claims, challenging to government 
power, and holding corporations accountable for misconduct.
    With an insufficient number of judges to handle this 
caseload, ever greater numbers of people have been forced to 
seek alternate remedies, often to the detriment of what they 
would otherwise be entitled to and without the precedent-
setting decisions that would help in future cases. It is fine 
to consider outside JAMS and other resolutions, but it is not 
acceptable when there is no choice but to do so.
    While the decision for new judgeships is overdue, it is 
also important that we do it on a bipartisan basis. When 
Republicans were in the majority during the 115th Congress, I 
introduced the Judiciary ROOM Act, where we worked with our 
Democratic colleagues, many of whom are still here today, 
including our Chair of the full committee. This bill brought an 
added 52 permanent District Court judgeships with a total of 66 
judges authorized, including eight temporary judgeships, into 
permanent judgeships. It was perhaps the boldest attempt in 30 
years, and it did not fail for lack of a bipartisan nature. It 
failed for the effective and normal reason, that we ran out of 
time to get it through the Senate.
    That should not happen again. We must work diligently in 
the early days of this Congress to send to the Senate a 
comprehensive bill that includes an expansion not only of those 
judgeships, but additional judgeships.
    What is also important, as I have spoken to the Chair of 
the Subcommittee, is that we also have to send a clear message 
early on to the Transportation and Infrastructure Committee 
that these judgeships come with a need for offices and 
courtrooms, and those courtrooms can take three to eight years 
to build. For that reason, we need to Act resolute and quickly. 
We need to send a clear message that this is going to become 
law.
    Lastly, it is my fervent hope that we will use a similar 
compromise to the one we used in the 115th Congress when the 
House, the Senate, and the White House were all controlled by 
the Republican Party, that we have the effective date for at 
least some of these judgeships to be after the next 
presidential election, so that no one is being asked, is this a 
partisan appointment process or an expansion of the court for 
purposes of one side or the other, but, rather, the ongoing 
need that we will have even in three years from now.
    With that, I thank the Chair for his indulgence and yield 
back.
    Mr. Johnson of Georgia. I thank the gentleman from 
California. I am now pleased to recognize the Chair of the full 
committee, the gentleman from New York, Mr. Nadler, for his 
opening statement.
    Chair Nadler. I thank the Chair for holding a hearing on 
this important issue that I know affects judges and litigants 
profoundly across the country, the growing crisis caused by the 
failure in recent decades to add new judgeships to the Federal 
District and Circuit Courts.
    Article III, section 1, of the Constitution states that, 
``The Judicial Power of the United States shall be vested in 
one Supreme Court, and in such inferior Courts as the Congress 
may from time to time ordain and establish.'' Pursuant to that 
grant of authority, Congress soon passed the first bill to 
create judgeships, the Judiciary Act of 1789. Thereafter, 
Congress regularly enacted judgeship bills to keep pace with 
the growing Nation and the growing complexity of the federal 
docket.
    That came to an end about 30 years ago after the passage of 
the last major judgeship bill, the Federal Judgeship Act of 
1990. That was the last time that any new Circuit Court 
judgeships were created. That was also the last time that 
anything but a handful of District Court judgeships were 
created, and there have been no new permanent District Court 
judgeships added since 2003.
    This 18-year pause is the longest break in adding new 
District Court judgeships since that first Judiciary Act back 
in 1789. Yet, between 1990 and the end of fiscal year 2008, 
case filings have only continued to rise, growing by 15 percent 
in Courts of Appeals and 39 percent in District Courts. In 
terms of caseloads, this means that the nationwide average 
caseload per judge is 521. This number is markedly higher in 
certain districts. As of March 2019, for example, the average 
for the District of New Jersey was 1,066. We will hear today 
from judges presiding in districts that are similarly bearing a 
higher-than-average caseload. Of course, this is to say nothing 
about whether the average itself is already too high.
    The problem is also acute in the Courts of Appeals, which 
are often effectively the last court to which most litigants 
will have recourse. The Courts of Appeals have collectively 
heard around 50,000 appeals in recent years compared to the 
less than 100 that make it to the Supreme Court docket.
    These numbers are dire, but statistics alone understate the 
depth of the crisis our courts face. What I hope to learn more 
about from the academics and honorable judges appearing before 
us as witnesses today is what these numbers mean in real terms. 
What is the impact of these growing caseloads on plaintiffs and 
defendants?
    Access to justice is a constitutional guarantee, but when 
this promise meets the reality of an overburdened and 
understaffed court, too often cases may be delayed or rushed, 
and justice shortchanged. It is clear, for example, that long 
waits for civil trials can put pressure on plaintiffs to settle 
their cases, even if they believe they would win at trial, 
simply because they cannot bear the cost of drawn-out 
uncertainty in litigation.
    The impact on the criminal justice system can be even more 
stark. Although there are rules in place to at least prioritize 
these cases on the federal docket, the pressures of a 
burgeoning caseload on courts with too few judges can still 
place severe limitations on access to justice.
    We should also consider the impact on judges and how they 
must structure their practices to accommodate the growing 
caseload with no new colleagues to help shoulder the burden. At 
the appellate level, statistics point to Circuit Courts using a 
range of techniques to cope with the rising caseloads and 
depart from the traditional model of appellate decision-making. 
For example, while one-quarter of all opinions were published 
in 1985, only 1 out of 10 is published now, meaning they are 
not considered to have precedential effect. This can lead to 
confusion in the lower courts and among litigants.
    In short, the efficient and fair Administration of justice, 
first and foremost, requires enough judges. From all 
indications, it seems like we do not have the right number 
today. I am pleased that we are having today's hearing to start 
to learn more about this important issue, and I hope, Mr. 
Chair, that our work will not end here.
    Thank you, and I yield back the balance of my time.
    Mr. Johnson of Georgia. I thank the gentleman from New 
York, and I will now introduce our witnesses.
    The Honorable Kimberly J. Mueller is the Chief Judge for 
the United States District Court for the Eastern District of 
California. She was confirmed to the bench in 2010 and assumed 
the role of Chief Judge in January 2020. Judge Mueller also 
served as a magistrate judge from 2003 to 2010. Prior to her 
appointment as a judge, Judge Mueller was in private practice 
in Sacramento, specializing in intellectual property 
litigation. Before becoming a judge, Judge Mueller served on 
the Sacramento City Council. Judge Mueller is a co-founder of 
the Justice Anthony M. Kennedy Library and Learning Center. 
Judge Mueller earned her BA from Pomona College and her JD from 
Stanford Law School.
    Welcome, Judge Mueller.
    The Honorable Larry A. Burns is a Senior District Judge for 
the United States District Court for the Southern District of 
California. Since January of 2021, Judge Burns was the Chief 
Judge on that Court. Judge Burns was confirmed as a district 
judge in 2003, and from 1997 to 2003, he served as a magistrate 
judge. Prior to his time on the bench, Judge Burns worked in 
the Office of the U.S. Attorney for the Southern District of 
California and the San Diego District Attorney's Office. Judge 
Burns received a BA from Point Loma College and his law degree 
from the University of San Diego School of Law.
    Welcome, Judge Burns.
    I will now turn to my colleague, the gentleman from 
Arizona, Mr. Stanton, to introduce our next witness.
    Mr. Stanton. Thank you very much, Mr. Chair, for the 
opportunity to introduce a duly great Arizonan. The Honorable 
Diane J. Humetewa was appointed to the United States District 
Court for the District of Arizona in 2014. She is a trailblazer 
as the first Native American woman and enrolled tribal member 
to serve as a federal judge. Before she was unanimously 
confirmed by the Senate to that post, Judge Humetewa served as 
Special Advisor to the President and Special Counsel in the 
Office of General Counsel at Arizona State University and was a 
professor of practice at the Sandra Day O'Connor College of 
Law. Judge Humetewa served in the United States Attorney's 
Office for the District of Arizona for more than a decade and 
was appointed by President George W. Bush to serve as U.S. 
Attorney from 2007 to 2009. Previously, she worked in private 
practice at Squire, Sanders & Dempsey, where she represented 
tribal governments. She was also counsel to the U.S. Senate 
Indian Affairs Subcommittee, then chaired by the late Senator 
John McCain. Judge Humetewa is a member of the Hopi Tribe and 
served as an Appellate Court judge for the Hopi Tribe Appellate 
Court. She received her undergraduate degree from Arizona State 
University and her Juris Doctor from the Arizona State 
University College of Law.
    Mr. Johnson of Georgia. Thank you, Mr. Stanton.
    Welcome, Judge Humetewa.
    Professor Brian T. Fitzpatrick is a Professor at Vanderbilt 
Law School, where he holds the Milton R. Underwood Chair in 
Free Enterprise. Previously, he served as the John M. Olin 
Fellow at New York University School of Law. Prior to teaching, 
Professor Fitzpatrick clerked for Judge Diarmuid O'Scannlain--
let me do justice to that name, Diarmuid O'Scannlain--on the 
U.S. Court of Appeals for the Ninth Circuit, and later, for 
Justice Antonin Scalia on the U.S. Supreme Court. He practiced 
commercial and appellate litigation at the law firm Sidley 
Austin, LLP, and was the Special Counsel for Supreme Court 
Nominations to U.S. Senator John Cornyn. Professor Fitzpatrick 
earned his BS from the University of Notre Dame and his JD from 
Harvard Law School.
    Welcome, Professor Fitzpatrick.
    Professor Marin K. Levy is a Professor at Duke University 
School of Law. She serves as the Director of Duke's Program in 
Public Law and is a faculty advisor to the Bolch Judicial 
Institute. She has written extensively on judicial 
Administration of the Federal Courts of Appeals. Prior to 
teaching, Professor Levy served as a law clerk to Judge Jose A. 
Cabranes of the U.S. Court of Appeals for the Second Circuit 
and was an associate at the law firm Jenner & Block in 
Washington, DC. Professor Levy received her BA from Yale, a 
Masters of Philosophy from King's College at the University of 
Cambridge, and her JD from Yale Law School.
    Welcome, Professor Levy.
    Before proceeding with your testimony, I hereby remind the 
witnesses that all your written and oral statements made to the 
Subcommittee in connection with this hearing are subject to 18 
U.S.C. 1001.
    Please note that your written statement will be entered 
into the record in its entirety. Accordingly, I ask that you 
summarize your testimony in 5 minutes. There is a timer in the 
Webex view that should be visible on your screen. That should 
help you stay within that time limit.
    Judge Mueller, you may begin.

           STATEMENT OF THE HON. KIMBERLY J. MUELLER

    Judge Mueller. Chair Johnson, Ranking Member Issa, Members 
of the subcommittee, good morning.
    I am Kim Mueller, Chief Judge, Eastern District of 
California, covering 34 counties and five of the fastest-
growing cities in our State. As you have heard, I have been a 
trial judge over 10 years, Chief Judge just over one.
    We are a collegial, hardworking bench appointed by six 
Presidents of both parties, but for 20-years-plus we have been 
in a judicial emergency. We cannot fulfill our obligations 
without congressional action creating new judgeships.
    Specifically, we need at least five new judges, and we have 
the infrastructure to house them and their staff right now. We 
urgently ask your help to meet the needs of the public we 
serve. Without your help, justice delayed is, in fact, justice 
denied.
    We are fighting a losing game, and with apologies to Lucy, 
that's exactly what Lucy says to Ethel in the unforgettable 
chocolate factory scene where chocolates race by on the 
assembly line too quickly to wrap. I promise we are not eating 
the chocolates, metaphorically speaking.
    We have had six authorized permanent judgeships since 1978, 
like the Northern District of Georgia, when our population was 
half of what it is today. Our caseload average is almost double 
the national average. We have also had two vacancies for more 
than a year. So, our actual caseload right now is almost triple 
the national average.
    Although we are very productive, we are disheartened. We 
are second worst on the list, 93rd out of 94 for time to close 
criminal cases. Many criminal defendants wait in jail for their 
trials. Civil cases languish. A few stories illustrate our 
plight.
    My first year as a district judge, my law clerks and I 
really were drowning. I didn't think of our workload as 
punishment, but our labors did, and still do, evoke Sisyphus, 
that ancient Greek king condemns eternally to roll a boulder 
uphill, only to have it roll down again when he reaches the 
top.
    This January, hope springing eternal, I asked my permanent 
law clerk how I could possibly get on top of my cases. He 
figures I need to issue dozens of lengthy reasoned orders every 
week, a third in hard cases--this, on top of administrative 
duties as Chief, weekly criminal calendars, civil motion and 
evidentiary hearings and trials. It is impossible for a single 
judge to do all this. My clerk recommended I spend my time 
informing those who could make a difference about our needs. 
Thank you for allowing me to follow his recommendation here 
today.
    Circumstances are particularly dire in our Fresno 
courthouse, where one judge is forced to do the work of two, 
due to our vacancies. One of his caseloads is assigned to 
nobody, ``Judge None,'' N-O-N-E. The real judge holds criminal 
calendars four days a week. He cannot hold any hearings on 
civil motions and cannot set new civil trials.
    Each judge has a courtroom deputy, and that deputy manages 
our calendar and answers parties' questions. In our district, 
our deputies are more like ER triage nurses, I am sad to say. 
My deputy receives many repeated, increasingly desperate 
requests for decision, particularly if settlement funds are at 
stake. All she can say is, ``The Judge will get to it when she 
can.'' She worries the parties feel ignored or the Court 
doesn't care, even though we are working tirelessly.
    We do enjoy the service of senior judges who draw their 
retirement pay with no supplement. At this point, we have 
three, the last since 1979. We value those three.
    My immediate predecessor's Chief, Judge O'Neill, who served 
our court for 21 years, observes, ``Most judges work harder and 
faster when faced with our kinds of caseloads.'' We can, of 
course, and we do, but the pace is simply unsustainable. More 
of us are choosing to leave when we can. The departure of 
senior judges represents the loss of significant assets that 
will take years to rebuild, once new judges are appointed.
    Our active judges are a good return on public investment. 
We are the second most productive in our circuit and eighth 
nationwide.
    We implore you to meet our need for new judgeships. We 
already have the courthouses and the judges' chambers. They are 
empty. Only the human infrastructure is missing. The net new 
cost is likely modest here at best, especially given some extra 
temporary staffing we have been receiving. With new judges, 
instead of justice delayed, justice will be served.
    Thank you very much for your consideration. I am happy to 
answer questions.
    [The statement of Judge Mueller follows:]
    
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    Mr. Johnson of Georgia. Thank you, Judge Mueller. Your 
situation is dire, and I want to thank you for the work that 
you and the other judges, and all the associated personnel, are 
doing to achieve justice in your district. Thank you very much.
    Judge Burns, you may begin.

               STATEMENT OF THE HON. LARRY BURNS

    Judge Burns. Good morning, Chair Johnson, Ranking Member 
Issa, and Members of the committee.
    Again, my name is Larry A. Burns. I am recently a senior 
judge here in San Diego in the U.S. District Court for the 
Southern District of California. I have served our court since 
1997, beginning as a magistrate, and then, since 2003, as a 
district judge. As Chair mentioned, I am a former chief judge 
of our court.
    The Southern District of California encompasses a wide 
swath of territory that stretches from the Pacific Ocean on our 
western border all the way to the Arizona border on the eastern 
border. It encompasses two large counties, San Diego County and 
Imperial County, home to some 3.5 million people.
    Our district includes five ports of entry that are 
contiguous with our border along Mexico. The largest and the 
busiest of those ports is the port at San Ysidro, California. 
It is the largest port in the world, as a matter of fact. Each 
day, more than 50,000 cars and 25,000 pedestrians cross into 
the United States through that port of entry from Tijuana, 
Mexico. Just to give you some perspective, in the standard 
vehicle lane coming in from San Ysidro, it can take more than 
six hours of waiting to get across.
    Our district's jurisdictional reach also comprises many 
military installations, including the Naval Air Station at 
Coronado and the Marine Base at Camp Pendleton, California, up 
in the northern part of our district.
    Congress has authorized 13 active district judgeships for 
the Southern District of California. We have been at that 
number since 2003. That is the last time district judge 
positions were authorized for our court.
    Our court is a full-service U.S. District Court. By that, I 
mean that our caseload consists of just about every type of 
criminal and civil case that is common in districts across the 
country. In addition, we are one of the five Southwest border 
courts, a designation that I mentioned which greatly impacts 
our caseload.
    I won't bore you with tedious statistical data, but I want 
to provide the Subcommittee with an overview of the trends in 
our caseload which reflect an increasing demand on the part of 
our court for more judges. National statistics since 2003, the 
last year we had a judgeship bill, through September of 2019 
show that the number of total cases filed in the Nation has 
risen by 13.6 percent. California alone, the District Courts 
here and the Circuit Court, handle 10 percent of the nation's 
caseload. During the 16-year period since we last had judges, 
the caseload in our district has increased by 17 percent, and 
we have seen weighted filings are the basic caseload assessment 
that determines the average amount of time it takes to complete 
a case--weighted filings have increased by 30 percent. In 2019, 
our district judges' weighted caseload was 634 cases per judge, 
an increase way over the national average of 535 cases per 
judge. Between 2017-2019, our court's criminal filings rose 30 
percent.
    The effects of the increase in our caseload have been 
profound, and they inexorably lead, as the Chair and Ranking 
Member mentioned, to delay of cases, particularly the civil 
cases. The average time to adjudicate a civil case in District 
Court across the Nation is about two years. In our court, it 
is, unfortunately, about 37 months, which is way too long.
    As Members of this Subcommittee well know and have alluded 
to, long delays in adjudicating case can lead litigants to 
conclude that the expense and the passage of time make it 
impractical to continue the litigation and leaves them the only 
option of foregoing their day in court. These outcomes lead to 
an erosion of trust in the judiciary and in the judicial 
process itself.
    Our criminal caseload is absolutely staggering here. Most 
of the cases fall into two categories: Criminal immigration and 
border drug cases. They predominate the workload of our 
district judges.
    We are assisted by nine senior judges, but it is important 
to remember that those senior judges have the prerogative of 
choosing which cases that they will handle. Some in our 
district don't choose to handle the immigration cases or the 
border cases. Also, the term of the senior judges is up to 
them. They can stop at any point.
    So, quite simply, we need more district judges if we are to 
continue to meet the demands of the increasing caseload. There 
is an urgent in our district, as there is, as Judge Mueller 
mentioned, in her district, for more judges to handle the cases 
and to process them efficiently.
    Thank you. I am available to answer questions at the 
appropriate time.
    [The statement of Judge Burns follows:]
    
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    Mr. Johnson of Georgia. Thank you, Judge Burns.
    Next, we will hear from Judge Humetewa. Judge Humetewa, you 
may begin.

              STATEMENT OF THE HON. DIANE HUMETEWA

    Judge Humetewa. Chair Johnson, Ranking Member Issa, and 
Members of the subcommittee, I am honored to testify on the 
dire need for more district judges in Arizona.
    As of September 2020, Arizona is fifth in the Nation for 
criminal felony filings and 16th for civil case filings. Since 
2003, the JCUS has consistently recommended three to six new 
judgeships for Arizona. Yet, it has been 19 years since a new 
judgeship was authorized.
    Our need stems Arizona's geography, the tribal presence, 
and a growing population. Thirty-eight percent of Arizona land 
is under federal superintendence. Another 27 percent is tribal 
land. Arizona also has a 370-mile-long border with Mexico, and 
it is among the top three fastest-growing states, home to over 
7.4 million people. Recent data also shows sustained and 
significant growth in Arizona's tribal nations, reaching 
approximately 425,000 persons in 2019.
    Our caseload continues to grow in complexity and volume. 
Federal court management statistics from 2018 through 2019 show 
Arizona had a weighted caseload of 800 filings per district 
judge, which is fifth highest in the country. Arizona's 
weighted filings were 86 percent higher than the general 
standard of 430 cases per judge and 50 percent higher than the 
national average of 535.
    The paucity of district judges uniquely impacts Arizona's 
22 tribal nations. In states like Arizona, the Federal District 
Court is the felony criminal court for tribal nations. We 
adjudicate crimes arising in Indian country under the Major 
Crimes Act. Congress has seen fit to enact additional federal 
crimes that apply to Indian country, including felony child 
abuse and neglect, sexual abuse and domestic violence offenses.
    With more crimes come more criminal proceedings. Northern 
Arizona, in particular, demonstrates this need. The region 
covers five counties and ten Indian nations. From 2016 to 2019, 
northern Arizona's criminal filings increased 13 percent and 
its civil case filings increased 21 percent. In 2019, the 
region's weighted caseload was 774.6, surpassing the national 
average. If it were a judicial district, it would qualify for 
at least one new district judge under the U.S. Judicial 
Conference standard.
    While there is a federal magistrate judge in Flagstaff, 
home to northern Arizona's only federal court, magistrate 
judges have limited authority. They handle the preliminary 
stages of felony criminal cases, and then, must transfer the 
case to a Phoenix district judge. Many civil cases move south 
to Phoenix for all pretrial and trial proceedings because 
magistrate judges cannot dispose of civil cases without the 
parties' consent.
    Arizona's courtrooms in Phoenix and Tucson pose logistical 
challenges to those living in Arizona's tribal nations. 
Criminal proceedings such as grand juries, trials, and 
sentencings usually take place hundreds of miles away from the 
accused's family, the victims, and the impacted community. The 
demographic reflected in a grand jury or trial jury pool seldom 
resembles the accused's peers or the population in the affected 
community.
    When we can, we try to conduct proceedings in the Flagstaff 
magistrate judge's courtroom. This is more convenient for the 
accused's family, the victims, tribal and federal law 
enforcement, and the northern Arizona jury pool. To journey 148 
miles north necessarily impacts our other judicial 
responsibilities.
    The distance from northern Arizona also inhibits 
proceedings when we work from Phoenix. A federal judge in 
Phoenix cannot summon a supervisee from the Navajo Nation or 
White Mountain Apache Nation and expect him or her to appear 
the next day. Federal location monitoring is simply not 
practical up north, and Arizona ranked the third highest 
district for supervised release violations from 2013 to 2017. 
In Arizona, the status quo simply cannot meet the 
constitutional mandate to administer meaningful justice to all.
    I am happy to answer any questions that you have of me. 
Thank you.
    [The statement of Judge Humetewa follows:]
    
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    Mr. Johnson of Georgia. Thank you, Judge Humetewa.
    Next, Professor Fitzpatrick, you may begin.

               STATEMENT OF BRIAN T. FITZPATRICK

    Mr. Fitzpatrick. Thank you, Mr. Chair. It is an honor to be 
back before this subcommittee.
    I am a professor of law at Vanderbilt Law School in 
Nashville, 10nessee. I have practiced in the federal judiciary. 
I was a law clerk in the federal judiciary. Now, I research and 
teach about the federal judiciary as a professor.
    I want to focus my testimony on new judgeships for the 
Courts of Appeals, and, in particular, I want to focus on one 
Court of Appeals, the Ninth Circuit. I want to tell the 
Committee that, if you decide to create more judgeships for the 
Ninth Circuit, I think that you will also be required to 
restructure the Ninth Circuit. I think you should be aware of 
that as you go forward.
    The Ninth Circuit is the largest Federal Court of Appeals 
in American history. It has 29 active judges, many more part-
time senior judges. It covers 20 percent of the country, 60 
million people. Because the Ninth Circuit decides cases in 
panels of only three judges, this means that two judges can end 
up deciding the law for 60 million people.
    The Circuit should have been restructured long ago, and the 
need to do so will be even greater if you add more judges. The 
truth is that the only reason the Circuit has not been 
restructured, in my view, is because it has been mired in 
partisan politics for so long. The reason why it has been mired 
in partisan politics is because 10 Ninth Circuit judgeships 
were created when Jimmy Carter was President, and this has led 
to a predictable partisan imbalance on the court ever since 
then. This predictable partisan imbalance has led one party to 
want to break up the Ninth Circuit and the other party to do 
everything it can to keep the Ninth Circuit intact.
    This is very unfortunate because, if there had been no 
partisan imbalance that was so predictable, I think the Ninth 
Circuit would have been restructured long ago. The reason is 
there are very good government reasons to restructure the 
Circuit. There have long been complaints that the Ninth 
Circuit's size makes it the slowest Court of Appeals in 
America. There have long been complaints the Ninth Circuit's 
size makes it difficult for the judges to keep track of what 
the others are doing, leading them to issue decisions that 
inadvertently conflict with one another.
    I want to focus on another problem that I is caused by the 
Ninth Circuit's unprecedented size. That is, it leads to more 
erroneous legal decisions being made, and we should care about 
that because 60 million people are affected when the Ninth 
Circuit makes mistakes. It is hard to deny the Ninth Circuit 
makes more mistakes than other Circuit Courts. For decades, it 
has been the most reversed Circuit by the United States Supreme 
Court. I put the data on that in my written testimony.
    Part of the reason it makes more mistakes is because bigger 
circuits end up more frequently picking by random three-judge 
panels, led by odd or outlier judges with non-representative 
views of the bigger court. You can show this phenomenon with 
simple math, and I do it in my written testimony.
    Part of the reason why the Ninth Circuit makes so many more 
mistakes and ends up getting reversed more often by the Supreme 
Court is because the Ninth Circuit is so big it cannot correct 
mistakes by its three-judge panels by going en banc. The way 
that circuits correct mistakes is through en banc rehearing, 
but the Ninth Circuit is the only circuit in American history 
that has become so big it cannot go en banc with the full 
court. Instead, it goes en banc with only 11 out of 29 judges. 
That means six judges, a majority of 11, can control what the 
Ninth Circuit does, but those six judges can be 
unrepresentative of the full 29.
    This is not just theory. There have now been some excellent 
empirical studies done by scholars that show the Ninth 
Circuit's size is what leads it to get reversed more often. The 
best study is done by Dr. Kevin Scott. He is a political 
scientist who used to work at the Administrative Office of the 
Federal Courts. He is now a chief of statistics in the 
Department of Justice. He has used regression analysis and he 
has shown the Ninth Circuit's inability to go en banc with a 
full court has led to get reversed 10 extra times every year by 
the United States Supreme Court--10 times just because of its 
limited en banc.
    I am out of time. I am happy to take questions. Thank you 
very much for having me.
    [The statement of Mr. Fitzpatrick follows:]
    
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    Mr. Johnson of Georgia. Thank you, Professor Fitzpatrick.
    Professor Levy, you may begin.

                   STATEMENT OF MARIN K. LEVY

    Ms. Levy. Chair Johnson, Ranking Member Issa, and 
distinguished Members of the subcommittee, thank you so much 
for the opportunity to testify today regarding the need for 
additional judgeships on the Federal Courts of Appeals. Quite 
simply, it is an honor to be here.
    I am sure that I do not need to stress to this Subcommittee 
the importance of the Federal Courts of Appeals in the 
functioning of our judicial system and in our government as a 
whole. According to the Administrative Office of the U.S. 
Courts, the 13 Courts of Appeals collectively decided more than 
50,000 appeals in 2019. I contrast the Supreme Court decided 
just 61 cases in October term 2019, only 50 of which were from 
federal courts.
    Accordingly, the Courts of Appeals have effectively become 
the courts of last resort for tens of thousands of litigants 
across the country. It is, therefore, critical that they have 
sufficient resources, including, first and foremost, a 
sufficient number of judges. It is my belief, based upon years 
of research, that they currently do not.
    By way of history, when the Courts of Appeals were created 
in 1891 by the famed Evarts Act, they began with just 19 
judges. Then, over the next hundred years, Congress 
consistently and frequently authorized new judgeships for those 
courts. Indeed, as I tell in my written testimony, Congress 
expanded the courts nearly 30 times over the decades that 
followed, eventually growing the regional Circuit Courts and 
the Federal Circuit to 179 judges by 1990.
    The reason for this regularized expansion is plain. 
Congress grew the courts to try to keep pace with the 
dramatically rising caseload. In 1950, when the great Learned 
Hand was on the bench, there were just under 5,500 filings in 
the Federal Courts of Appeals, or about 73 per active 
judgeship. By the late 1970s, the case filings had nearly 
quadrupled, and they doubled again by 1990 to just over 40,000.
    Throughout this time, Congress added judgeships again and 
again, including several omnibus judgeship bills. In 1978, as 
we have already referenced here today, during the Carter 
Administration, Congress created 35 Circuit Court judgeships. 
In 1994, during the Reagan Administration, Congress created 24 
more, and in 1990, during the Bush Administration, Congress 
created yet 11 more.
    Through these congressional interventions, the number of 
filings per judgeship, though it continued to climb, was kept 
somewhat in check. By 1990, it was 237 per year, importantly, 
below a benchmark that the Judicial Conference had set of 255.
    Unfortunately, though, Congress has not added a single 
judgeship since that time, the caseload has risen still. In 
2019, there were just under 51,000 cases filed in the Federal 
Courts of Appeals. That is an increase of approximately 20 
percent above where we were in 1990. This puts us at 284 
filings per judgeship, and in certain circuits, of course, that 
figure is considerably higher. Indeed, it is currently over 350 
per judgeship in the Ninth Circuit, 410 per judgeship in the 
Fifth, and 450 per judgeship in the 11th.
    As I am happy to talk about more during questions, we know 
what happens when we ask courts to do more without concurrently 
giving them more resources to do it. Courts must adapt, which 
means relying more heavily on case management strategies and, 
in particular, sending a smaller percentage of cases to oral 
argument, having a larger percentage of cases go first to staff 
attorney offices for consideration, and then, ultimately, 
having a larger percentage of cases resolved by short, and in 
some circuits even cursory, unpublished decisions.
    To provide just one illustration, just after the last court 
expansion in 1991, 45 percent, or close to one-half, of all 
cases decided on the merits received oral argument. Today, that 
figure is less than half. Only one in five cases decided on the 
merits are heard before a panel of three judges.
    As we know, truncated review has its effects and its costs. 
It can leave parties feeling like they did not have their day 
in court. Moreover, judges and scholars alike have raised 
accuracy concerns in addition to these process-based ones.
    The courts should not be put into this position. In sum, 
Congress should return to its earlier practice and authorize 
new judgeships for the Courts of Appeals consistent with their 
caseload need--for the courts, for all of those who come before 
them for the just resolution of appeals.
    Thank you, and I look forward to your questions.
    [The statement of Ms. Levy follows:]
    
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    Mr. Johnson of Georgia. Thank you, Professor Levy.
    Mr. Issa. Mr. Chair?
    Mr. Johnson of Georgia. Yes, the gentleman is recognized.
    Mr. Issa. Thank you, Mr. Chair.
    At this time, I would like to ask unanimous consent that 
the Horonable Spartz, who is a Member of the Full Committee, be 
allowed to sit in and hear the testimony today and participate 
only if time is yielded by another Member of the Subcommittee.
    Mr. Johnson of Georgia. Without objection, it is so 
ordered.
    Mr. Issa. Thank you, Mr. Chair.
    Mr. Johnson of Georgia. We will now begin under the 5-
minute Rule with questions, and I will begin by recognizing 
myself for 5 minutes.
    Professor Levy, I understand that, because of the crushing 
workload, a large number of Courts of Appeals judges are 
increasingly relying on staff attorneys to both screen cases 
and write opinions which often become the basis for final case 
disposition. Can you talk about that practice, what it looks 
like, and how it differs from the process for cases where a law 
clerk assigned to a particular judge might work the case?
    Ms. Levy. Sure. I would be happy to.
    So, I think the starting point is, as you said, to think 
about staff attorneys in comparison to law clerks. Law clerks, 
as we know, are hired directly by judges and they are 
supervised directly by judges. So, the judges will give their 
law clerks instructions about a particular case. The law clerks 
will, then, work with the judges to draft an opinion. Again, 
they are being directly supervised by the judges.
    In contrast, we can look to staff attorney offices. It is 
hard to get great statistics on this, but according to a book 
authored by Judge Posner three years ago, there are over 400 
staff attorneys across the country today. You can think about 
these as almost mini-law firms with a particular circuit. These 
staff attorneys do not work directly for any judge. Instead, 
they are supervised by a head staff attorney.
    So, what this means is cases come in. There is variation 
from circuit to circuit, but cases will come in. The staff, 
then, in many circuits will screen those cases; they will make 
the determination at the outset if the case will go to oral 
argument or not. Then, in many cases, they will end up writing 
a memo and draft a disposition, which a panel of judges will 
then consider.
    So, hopefully, that gives you some sense of some of the key 
differences there.
    Mr. Johnson of Georgia. So, what we have is a situation 
where a staff attorney not accountable to any particular Court 
of Appeals judge is reviewing cases and actually making a 
recommendation as to the final disposition of the case. This is 
in the courts of last resort in our Federal Government.
    Ms. Levy. So, that is right. What we have is a situation in 
which the staff are, again, first screening the cases, but 
then, ultimately, drafting the dispositions. The judges, of 
course, as we said, do review them and the judges can decide if 
a case really should be set for argument instead. It is an 
enormous amount of power that is given, then, to staff 
attorneys; that is absolutely right.
    Mr. Johnson of Georgia. The staff attorney positions I 
suppose have increased. In other words, we have more staff 
attorneys now because of the increased caseload that the Courts 
of Appeals are faced with, that they must manage, and the staff 
attorney route is a mechanism whereby the Court of Appeals 
judges can manage the work that is hoisted upon them?
    Ms. Levy. Yes, that is absolutely right. So, these staff 
attorney offices, I should say, were first authorized by 
Congress in 1982, and they were initially designed for really 
the review of pro se prisoner cases. That has expanded 
significantly. Both the offices themselves have expanded in 
size, but also the role of staff attorneys has expanded 
considerably since that time, as the caseloads have risen.
    Mr. Johnson of Georgia. Thank you.
    Judge Mueller, can you talk about how, in your view, we 
should be thinking about the cost-benefit analysis of adding 
new judgeships? Obviously, there are costs involved in the 
addition of new judgeships, but, in your view, are those costs 
outweighed, or at least balanced, by the benefits of right-
sizing the judiciary?
    Judge Mueller. Thank you for that question, Chair Johnson.
    Absolutely, we see district judges as investments--I don't 
believe that we are alone--but trial courts are the foundation 
of the federal judicial system. We are the courts that the 
public most likely sees as jurors, as parties, as Members of 
the public who at times still crowd into our galleries--even 
when we don't have the coronavirus pandemic, we still crowd 
into our public galleries to watch proceedings. We are the 
foundation, and we are essential infrastructure.
    We have the physical infrastructure in our district, as I 
said. So, we need the human infrastructure to complete the 
infrastructure picture, and we believe it is essential to look 
not only at costs, but also the benefits that we bring to the 
table.
    Thank you.
    Mr. Johnson of Georgia. Thank you, Judge Mueller.
    At this time, I will now recognize the gentleman from 
California, the distinguished Ranking Member of the 
Subcommittee, Mr. Issa, for 5 minutes.
    Mr. Issa. Thank you, Mr. Chair. I want to thank all of our 
witnesses. This is one of those hearings where we hear each of 
you and I believe there is broad agreement here on the dais on 
both sides.
    Judge Burns, if I can go to you first, I want to first 
thank you for staying on the bench. I realize that you could be 
making more money somewhere else, but you are staying and 
handling a caseload.
    Specifically, in the case of the San Diego District, one of 
the high-tech capitals of the country there in San Diego, if a 
patent case comes up, could you just briefly tell us what the 
process would be and how the ability to take a patent case to 
trial in the Southern District, how it is impacted by the 
shortage of judges?
    Judge Burns. Thank you, Congressman Issa. We have a patent 
program here where patent cases, in particular, are channeled 
to certain judges who have expertise or have great interest in 
them. It doesn't mean that those cases are expedited. They are 
not. They fall in line with the other civil cases and as you 
know, patent litigation is incredibly complex, more complex I 
will say than most civil cases. So, it takes a lot of time. The 
issues are difficult ones. A Markman hearing, which is a 
determination of just what the patent covers, can be a long and 
contentious hearing. It is a special hearing that is different 
from other pre-trial hearings, so it is a feature of patent 
cases that is unique that doesn't apply in other civil 
litigations. The general effect of this crushing caseload, 
particularly the criminal cases, is that patent cases and all 
civil litigation are given a back seat and it takes more time 
than it should to resolve such cases.
    Mr. Issa. Thank you. Briefly, I mentioned this in my 
opening statement, the Southern District is like some other 
districts where if we gave you the three or so more judges, at 
a minimum--I think it's six, actually, that the Judicial 
Conference thinks you should have, you would have no courtrooms 
for them.
    Could you briefly give us your timeline costs and how you 
would deal with getting those courtrooms if you were given the 
judges today?
    Judge Burns. We have three court facilities in the Southern 
District. As with Arizona, we have one outlying court in El 
Centro in Imperial County has got a magistrate judge. Then we 
have two courthouses here, one built in 1976, the Schwartz 
Courthouse, and then the newer one, the Carter-Keep Building 
which was opened in 2012. When that building was designed, it 
was designed for more courtrooms that ultimately were 
authorized in the bill authorizing building the courtroom. We 
had six to begin with.
    Recently, the House has authorized two additional 
courtrooms. Construction of those courtrooms is underway now. 
We have room for expansion within our existing facility. There 
are several floors here with high ceilings and people in 
cubicles, IRS and otherwise, now occupying that space, but they 
can be readily converted to courtrooms for district judges, 
magistrate judges.
    Mr. Issa. Thank you. Professor Fitzpatrick, as you know, 
you noted in your statement, there was a partisan history to 
the Ninth Circuit.
    Is it fair to say that today the Ninth Circuit is 
relatively balanced and perhaps this is the most non-partisan 
time to reorganize the Ninth Circuit?
    Mr. Fitzpatrick. I think that is right, Congressman. I 
think that we are close to parity in the Ninth Circuit now and 
therefore, this may be an opportunity for the Congress to make 
changes without obvious partisan implications helping one side 
over the other. So, I think this is an optimistic time to do 
the work that should have been done a long time ago to 
restructure the circuit.
    Mr. Issa. So, if we are not to change the Ninth Circuit and 
expand it as the Judicial Conference wants to about 33 judges, 
would you opine on the fairness of instead of remaining with so 
many other districts, if we collapsed other districts to 
similarly have 33 judges or perhaps eliminated circuits all 
together, what the effect would be?
    Mr. Fitzpatrick. I think we would multiply the problems in 
the Ninth Circuit across America. I think we would have slower 
appeals across America. We would have more inconsistent rulings 
within a circuit across America. There would be more mistakes 
made in other circuits if we made them all gigantic circuits 
similar to the Ninth Circuit. So, I just think that would 
multiply problems, rather than multiply solutions.
    Mr. Issa. Thank you. I yield back.
    Mr. Johnson of Georgia. The gentleman's time has expired. 
The gentleman yields back.
    At this time, we will recognize the gentleman from Florida, 
Mr. Deutch. Oh, at this time, I am sorry, we will recognize the 
Full Committee Chair, Jerry Nadler, for five minutes.
    Chair Nadler. Well, thank you, Mr. Chair. Before I begin 
with my questions, I want to thank all the witnesses for their 
testimony today.
    Judge Mueller, I understand that although delay in civil 
cases is often more common and apparent than in criminal cases, 
delays in criminal cases nonetheless are occurring, especially 
where judicial shortages are most dire.
    Can you put into real world terms what these delays mean 
both for criminal defendants and for the prosecution in trying 
these cases?
    Judge Mueller. What the court sees in terms of the delays 
in criminal cases is on a number of fronts. As I said, we are 
93rd of 94th currently. We were 94th last year, so we're at the 
bottom. So, for criminal defendants, even though the criminal 
reform Act appears to favor release when possible, detention is 
common, and our district has a high detention rate, higher than 
the national average. We are over 55 percent of criminal 
defendants pending trial who are detained in local jails up and 
down the Central Valley. They wait longer periods of time, as 
the stats show. Often two years before they can go to trial. In 
terms of the prosecutors, they are very anxious to see that 
number go down.
    Chair Nadler. Judge Mueller, are you talking about civil 
cases?
    Judge Mueller. Did you also wish me to address civil cases?
    Chair Nadler. No, thank you.
    Judge Mueller. Thank you.
    Chair Nadler. Judge Humetewa, you reference in your 
testimony the disappearing trial and the role that judicial 
under staffing plays in causing this trend.
    Can you elaborate on this point and why more trials would 
be good for the judiciary and for litigants?
    Judge Humetewa. Yes, I would be happy to. I think it is no 
secret that over the years, to handle our huge caseloads, 
district courts and judges have tried to find ways to make it 
more manageable and really try to force the litigants 
themselves to resolve their issues short of trial and to really 
whittle down the paper that is filed with summary judgments or 
dispositive motions.
    In many, many instances, where you have litigants for the 
first time and their clients wish to appear and have oral 
argument, it is just not feasible when you have a very heavy 
docket. So we have adopted rules, for example, here in Arizona, 
that permit a district judge to say that oral argument is not 
necessary because the matter has been fully briefed.
    I fear that in many ways litigants see that the courtroom 
doors are closing rather than opening and that in many 
instances litigants and clients and the parties involved never 
set foot in a courtroom. As a result of that, you have a 
decrease in practice, actual litigation practice of people that 
are actually going to law school and graduating with the hopes 
of becoming a litigant. So, it really does damage to what 
courtrooms are meant to be, public forms for airing these 
grievances and to be able to have the ability to orally argue 
your case to make persuasive points that may not otherwise 
resonate in a paper form. So, I think there are multiple issues 
that arise from that.
    Chair Nadler. Thank you. Professor Levy, I understand that 
there has been an increase over the last 30 years of 
unpublished decisions by courts of appeals as a way to manage 
the caseloads.
    Can you explain that trend and what implications it has? Is 
this something that we should be thinking about as we look to 
assessing the need for additional judgeships in the courts of 
appeals?
    Ms. Levy. Sure. I would be happy to. So, no surprise, as 
the courts began to experience the rising caseload, they had to 
find some way to save time. It has been said that judges spend 
as much as 50 percent of their time writing opinions and so it 
is not surprising that they would then turn to writing shorter 
unpublished decisions as a way to cope.
    I would say now, so again, we see decisions on the merits, 
right? Almost 90 percent of cases are decided by unpublished 
decisions. I think the real loss that we should be focused on 
is the content of some of those cases, so Professor Merritt 
McAlister has done a great, recent study on this. She looked to 
the Fourth Circuit a few years ago. In one week, the Fourth 
Circuit issued a hundred decisions. Only two of those were 
published, so only two made law. Of the rest, there was a 
sizable percentage that did not contain independent reason-
giving. So, it simply said, for example, the court found no 
error. Or, for the reasons that the district court stated, the 
case was affirmed. That, I think, is a cause for concern. We 
don't have independent reason-giving by the courts. I think the 
litigants then don't feel like their cases have truly been 
heard and that is a cause for concern for process values and 
legitimacy as a whole.
    Chair Nadler. Thank you, Mr. Chair. I yield back.
    Mr. Johnson of Georgia. The gentleman yields back. At this 
time, we will recognize the gentleman from Ohio, Mr. Chabot for 
five minutes.
    Mr. Chabot. Thank you, Mr. Chair. Professor Fitzpatrick, 
let me begin with you. I will start by noting that Democrats 
took over the House of Representatives over two years ago, back 
in 2018. They took over this committee. We have a Democratic 
Chair of this Subcommittee and the overall Judiciary Committee. 
They set the agenda, they set up--they determined what topics 
we are going to talk about. Whereas, Democrats have espoused 
the point of view that we needed to add federal judges, they 
didn't hold a single hearing in this Committee during the last 
two years when they determined what the agenda is. Neither did 
they bring a single piece of legislation to the floor of the 
House to get new federal judges. I wonder why.
    Well, we had a Republican president, Donald Trump, who was 
at the White House and he would have been able to nominate 
those judges. Now, we have a Democratic president, who one of 
the first orders of business of this Committee which, of 
course, the Democrats still control, is to hold a hearing with 
the goal of adding new federal judges.
    Now, Professor Fitzpatrick, let me ask you this. For the 
purpose of fairness here, what would you think about the idea 
of staggering any new judgeships over several different 
Administrations?
    Now, we don't know who is going to win the upcoming 
election, so you don't know for sure how that would all play 
out, but to have at least a balance that you don't, for 
example, as you mentioned there earlier, where you had a whole 
slew of either liberal or progressive judges that one puts on 
the bench, if you did it over a period of time, what about that 
idea?
    I believe Mr. Issa and Senator Todd Young over in the 
Senate have put forth a proposal along those lines. Could you 
comment on that?
    Mr. Fitzpatrick. Yes, I can. I think that is the right way 
to do this. I don't think the right way to do this is to add a 
bunch of judgeships that is going to have a predictable, 
partisan effect.
    The right way to do this is to push off the effective date 
of the new judgeships until there is a new presidential 
Administration, so both parties have a chance to have some of 
their people put on the bench. We don't want to recreate the 
mistake we made with the Ninth Circuit during Jimmy Carter's 
Administration.
    The Ninth Circuit has been a political football for decades 
because all those judgeships were created for President Carter 
and now the Ninth Circuit has been a predictable, partisan, 
imbalanced court for decades. So, push it off, neither side of 
those will benefit politically. That is the fairest way to do 
it and that doesn't mire our courts in this partisan warfare.
    Mr. Chabot. Thank you. Let me follow up, Professor. You 
mentioned in your testimony that the Ninth Circuit has long had 
the highest percentage of its decisions reversed by the Supreme 
Court of any other circuit, substantially higher, not just by a 
small margin, but substantially higher. What impact does having 
such a high-reversal rate or a reversal at all, what impact 
does that have on the litigants, the public, the taxpayers, the 
people that foot the bill for government and the court system 
obviously is part of that government and a reversal, obviously, 
that the process goes on even longer. Could you comment on 
that?
    Mr. Fitzpatrick. Yes, I mean certainly for the litigants in 
a given case, having to go up to the Supreme Court to get the 
Ninth Circuit corrected takes time and money, but there are 
effects beyond that. The law in the Ninth Circuit is less 
coherent because it is subject to Supreme Court reversal more 
frequently. You're never sure, when you get a Ninth Circuit 
ruling, how long it is going to be around, what's the shelf 
life of a Ninth Circuit ruling, because the Supreme Court 
reverses it more often.
    Even more importantly than all those things, I think the 
Supreme Court reversal rate is a signal that the Ninth Circuit 
is making more mistakes. What I worry about is all the mistakes 
the United States Supreme Court cannot catch. The Supreme Court 
hears very few cases every year. It can't correct all the 
mistakes of the Ninth Circuit or the other circuits. So, I 
worry about 60 million Americans having to live under 
erroneous, legal rulings more often than their fellow citizens 
in other parts of the country.
    Mr. Chabot. Thank you very much. My time has expired, Mr. 
Chair. I yield back.
    Mr. Johnson of Georgia. I thank the gentleman from Ohio.
    Professor, you have just made the case for expansion of the 
U.S. Supreme Court, so that it can hear more cases. I don't 
know if you intended to do that or not, but at this time I will 
recognize the gentleman from California, Mr. Lieu for five 
minutes.
    Mr. Lieu. Thank you, Chair Johnson, for holding this 
important hearing. Thank you, Chair Nadler, for your leadership 
on the Judiciary Committee.
    My wife has served for a federal district court judge, and 
I was a law clerk for a Ninth Circuit judge out of law school, 
so first, I want to say to the judges that we have here today 
for your public service and for what you are doing and for 
testifying.
    I also do want to start by countering the notion that the 
Ninth Circuit's 80 percent reversal rate is somehow year after 
year. That is just not true. The Washington Post, the AP, and 
PolitiFact have looked at that statistic and it is true that in 
one year, one term, 2015-2016, the Ninth Circuit had a 79 
percent reversal rate.
    It is also true that in that same term, that was not the 
highest of any circuit. In fact, since 2005, the Ninth Circuit 
has never been the highest circuit in terms of cases reversed 
by a Supreme Court. So, what these newspapers are saying is 
basically that Mr. Fitzpatrick is misleading us with his 
statistics.
    Now, that doesn't mean I don't think the Ninth Circuit 
should be smaller. I am open to arguments that the Ninth 
Circuit for efficiency reasons maybe we do want to either split 
it up or move some of the states to another circuit.
    So, I want to commend Ranking Member Issa for agreeing that 
we need to increase the number of judges at the appellate and 
district court level. It is also clear to me that perhaps the 
U.S. Senate might require some changes to the way we have our 
circuits.
    So, with that in mind, I am going to ask Judge Mueller, 
what do you think about proposals to either split up the Ninth 
Circuit or take some states in that circuit and shift, let's 
say, to the 10th Circuit?
    Judge Mueller. Congressman Lieu, I have to admit I did not 
prepare for questions on that issue. As a trial court judge in 
the trenches who follows the law of the controlling circuit and 
of course, the Supreme Court, when it has applied the law, and 
so I am not really prepared to give you a cogent answer to that 
question today.
    Mr. Lieu. If you could just submit some testimony after 
that fact to us that would be great.
    So, Judge Burns, let me ask you that same question. Do you 
have any thoughts on proposals to split the Ninth Circuit into 
two different circuits or taking some of the states and 
shifting it to, let's say, the 10th Circuit?
    Judge Burns. Thank you, Congressman Lieu. I have personal 
opinions about that. Over my term as a district judge, I 
frequently sat as a visiting judge with the Ninth Circuit. One 
of the down sides to the size of the circuit and the caseload 
is that the Ninth Circuit is required frequently to bring in 
district judges. We have judges who have no historical 
connection, no every day connection to the Ninth Circuit that 
are coming in and deciding cases. They are coming from all over 
the country. Many times, they are district judges from the 
opposite side of the United States. I think that is probably a 
downside.
    The other observation I would make is this. I serve on a 
very collegial court. We meet once a week. We have judges' 
meetings. The judges, although we are not always of the same 
philosophy or the same political persuasion, we enjoy each 
other's company. We respect one another.
    The randomness with which Ninth Circuit judges can be on 
the same panel with one another, because of the size of the 
court is very much compromised. I saw a statistic recently that 
said that it is once every three years that one judge of the 
Ninth Circuit will sit with another judge of the Ninth Circuit. 
That is how random it has become. I think you lose something as 
a circuit court when you don't have the opportunity for that 
kind of cohesiveness. So, those are general observations. 
Again, that is a personal opinion borne out of my anecdotal 
experience in sitting with that court.
    Mr. Lieu. Thank you. Then, Mr. Fitzpatrick, I don't mean to 
imply that you are trying to mislead us. I am just saying that 
one of the sentences you said is a misleading statistic. I am 
also going to give you the opportunity to respond to what I 
said, so if you would like to go ahead.
    Mr. Fitzpatrick. Congressman, that is very kind of you. I 
appreciate that. I just think we are talking about two 
different statistics. I think the statistic that you are 
talking about is given the cases the Supreme Court accepts for 
cert, how many of them end up getting reversed. The statistic I 
was talking about was given how many appeals the Ninth Circuit 
decides every year, how many of those cases end up getting 
reversed by the Supreme Court.
    So, you are absolutely right. In any given year, the Ninth 
Circuit is not the most reversed of the cases accepted for 
cert. I think if you look at the number of reversals compared 
to the number of appeals decided by the Ninth Circuit every 
year, those that are granted cert and not granted cert 
together, the total number of appeals, you will find that the 
reversal rate is the highest.
    It is an open question which of those statistics is more 
meaningful to us and so, I don't begrudge you your focus on the 
statistic that you did.
    Mr. Lieu. Thank you very much. I yield back.
    Mr. Johnson of Georgia. We will now resort to the gentleman 
from Texas, Mr. Gohmert, for five minutes.
    Mr. Gohmert. Thank you, Mr. Chair. I appreciate you 
resorting to me.
    Judge Mueller, are there dramatically more cases being 
filed this year than you have had in prior years?
    Judge Mueller. Congressman, that is directed to me, is that 
correct?
    Mr. Gohmert. Yes.
    Judge Mueller. I would say that our caseload is essentially 
maintaining, but we have not seen a steep rise yet in light of 
the pandemic, if that is a part of your question. We are 
bracing for an increase in filings. As with any crisis, we see 
cases follow. So, as with the mortgage crisis, we had a steep 
uptick in cases. Our actual cases per judge spiked to almost 
1,500 cases per judge.
    Right now, our actual caseload per judge is around 1,200 
cases. We expect that that number will go up with bankruptcy 
filings, employment case filings. So, we are staying tuned, 
unfortunately.
    Mr. Gohmert. Okay. Thank you. I just wondered if there was 
a dramatic rise so that maybe that could justify why we didn't 
have a hearing for two years and you were in desperate need of 
new judges, and now all of a sudden within six weeks, we have 
this hearing. Anyway, I guess--
    Mr. Issa. Would the gentleman yield?
    Mr. Gohmert. Yes.
    Mr. Issa. I was gone for two years, Louie. I am back.
    Mr. Gohmert. Yes, but you aren't the one that sets up the 
hearings the last two years nor now. So, it is good to have you 
back. I am concerned about that, why if there was such an 
emergency, we didn't have them before.
    Professor Fitzpatrick, the last numbers I had seen from 
2017 indicate that the Ninth Circuit has more than twice as 
many cases as the next largest circuit, being the Fifth 
Circuit. That is reflected also in the number of cases that are 
filed.
    When you looked at cases filed in California and the cases 
filed in the rest of the Ninth Circuit, what do you think it 
would look like if the Ninth Circuit were divided and a new 
circuit created, one for California, because the last I had 
seen, more of the cases the Ninth Circuit had were from 
California compared to all the other states in the Ninth 
Circuit? What do you think that would look like to have 
California be the Ninth Circuit and then a new circuit take the 
other cases from the other states?
    Mr. Fitzpatrick. That is one of the leading proposals on 
how to split the Ninth Circuit is to make California into its 
own circuit. We have never done that before. We have never had 
a circuit confined to a single state. The truth is, California 
is so big that it would have a lot of judges even in a 
California-only circuit, so I don't know if we actually end up 
decreasing the size of the Ninth Circuit that much if we keep 
California intact.
    I actually prefer another solution which is also not ideal 
and that is to break California across two different circuits, 
so Northern California would join the states in the Northwest. 
Southern California would join the states in the Southwest, and 
you would have a circuit that divides California in the middle. 
That has also never been done before, but I think it would 
allow us to get each circuit down to a more reasonable size and 
I don't think that it is impossible to deal with the fact that 
federal law may vary from San Francisco to L.A. for a while. 
Right now federal law varies from San Francisco to Salt Lake 
City for a while, different circuits. State law varies from 
parts of California to another for a while.
    Mr. Gohmert. I appreciate that. It does seem that more of 
California's population is in the southern part of California, 
but going back to what my friend, Congressman Lieu, referred to 
the year that there were so many reversals of the Ninth Circuit 
I was thinking maybe the appropriate remedy would be to confine 
the Ninth Circuit to controversies that arose in its own 
courthouse and then create another circuit for everything else 
in the Ninth Circuit. My time has expired and I will yield 
back.
    Mr. Johnson of Georgia. I thank the gentleman from Texas.
    We will now move to the gentleman from Arizona, Mr. 
Stanton, for five minutes.
    Mr. Stanton. Thank you very much, Mr. Chair, for holding 
this hearing and to the witnesses for being here to speak to an 
important issue as we work to expand access to justice 
throughout our nation.
    When I became a member of the Judiciary Committee two years 
ago, one of the very first things I did was to meet with the 
chief judge of the District Court for the District of Arizona, 
Judge Murray Snow. I asked him, how can I help? Right away, he 
told me about the caseload issues in Arizona and how Congress 
could do more to expand access to the judicial system to 
communities around the state. I have been working on this since 
and I know that if it weren't for the pandemic that this is a 
hearing that we would have had last year. This is a pressing 
issue in Arizona where the State makes up a single judicial 
district.
    Since the year 2000, Arizona's population has grown by 50 
percent. More people have moved to Arizona in the past 20 years 
than live in the States of Rhode Island, North Dakota, and 
Vermont combined. That means the criminal and civil caseload 
has gone up, too. In that time, we have only seen the addition 
of a single federal judge in our state, just one.
    Judge Humetewa, as she mentioned, that means that Arizona's 
federal district judges see a weighted caseload of 800 filings 
each. The general standard is 430 cases per judge. So, in 
Arizona, we are nearly double that.
    I am encouraged by what the District of Arizona would do 
with more judges. The focus on increasing access to the courts 
for rural tribal communities is the right one. For those who 
haven't been to Arizona and may not be familiar with the Navajo 
Nation, it is the largest tribal land in the country. Its 
capital, Window Rock, is a five-hour drive from the federal 
courthouse in Phoenix. Hopi lands are a four-hour drive. That 
is a long way to travel for court. Yet, that is what tribal 
citizens must do unless Judge Humetewa and other federal judges 
coordinate for the temporary use of a courtroom space with a 
magistrate judge in Flagstaff, Arizona.
    When this coordination does happen, and my understanding 
that it is about once per month, Judge Humetewa must drive up 
from Phoenix, leaving her civil caseload pending, to address 
the criminal caseload in Northern Arizona. She does this 
because she is committed to providing direct access to those in 
Northern Arizona, but it is not a long term, workable solution.
    We need a permanent federal judge, district judge in 
Flagstaff to handle the caseload that originates from Indian 
country in Northern Arizona. That is what Arizona will get if 
we approve more judgeships. In turn, grand jury proceedings 
would be made up of peers that is more accurately 
representative of the community and other district judges would 
no longer have to travel and leave other also pressing cases 
pending. Arizona desperately needs more federal district 
judges. The District Court has been working with too little for 
too long at the expense of Arizonans who should have fair, 
unobstructed access to our country's judicial system. 
Additional judges, that is a good place to start.
    I have a question for Judge Humetewa. Are there any lessons 
that you can share from your experience as a judge of the Hopi 
Appellate Court that would inform why it is important to 
appropriately staff courts that include Indian country land?
    Judge Humetewa. Thank you for the question, Congressman 
Stanton.
    When I was an appellate court judge for the Hopi Nation, it 
drew my attention to, really, the limited jurisdiction that 
tribal courts have, especially in the criminal context.
    As you know, in my written testimony I outlined that the 
federal courts, we Act as, essentially, a county court handling 
violent crimes off Indian nations, homicides, sexual assaults, 
domestic violence, and the like.
    So, when a serious crime is committed and it is not picked 
up by the U.S. Attorney's Office, then the tribal courts have 
to adjudicate those offenses, and there often are not enough 
resources in the tribal court itself to appropriately handle 
those kinds of cases.
    In addition, in the civil context where there is much 
broader authority for tribal courts, nonMembers usually are 
nervous about filing their cases in tribal courts.
    They would rather file them in federal district courts, and 
many of my colleagues know and we do exercise in the 
appropriate instances tribal court exhaustion.
    So, we may see a case be filed in federal court in the 
first instance which should land in the tribal court, and so we 
Act as sort of a go-between.
    I also raised in my written testimony that recently last 
Congress, in the Violence Against Women Act amendments, there 
was a contemplation that for cases that were brought of non-
Indians committing domestic violence in Indian country, there 
was an idea that the federal court should Act as a reviewing 
court, essentially an appellate court in some instances.
    So, there are numerous experiences that I draw upon from 
that. Thank you for the question.
    Mr. Stanton. Thank you very much, your Honor, and, Mr. 
Chair, thank you for holding this hearing. I yield back.
    Mr. Johnson of Georgia. I thank the gentleman.
    We will now hear from the gentleman from Wisconsin, Mr. 
Tiffany, for five minutes.
    Mr. Tiffany. Thank you, Mr. Chair, and I wish the Chair of 
our Full Committee was here today right now because, once 
again, we saw the failure of remote testimony today.
    I could not hear some of Judge Mueller's remarks when she 
was answering his questions, and we saw this in the full 
Committee hearing a couple weeks ago where it was very 
difficult to hear people giving their remarks, Committee 
Members, when they were wearing masks.
    Oftentimes, people don't have voices that project the same 
as someone like myself, and it was very difficult to hear their 
comments, and as a member of a committee, I really want to hear 
what people have to say like Judge Mueller, people testifying 
here as well as the other Members of the committee, regardless 
of which side of the Committee that they sit on.
    So, this failure is impeding the ability to communicate and 
communicate clearly. Anyhow, just to make that comment for the 
for the good of the order.
    Judge Burns, I believe you said something about, and I'll 
characterize it this way, border/immigration issues are a big 
part of what the cases that you deal with. Is that accurate?
    Judge Burns. Yes, that's accurate.
    Mr. Tiffany. Are some of those cases violent crime cases?
    Judge Burns. Some are, but the majority of them are status 
cases with people who are not authorized to enter the United 
States coming in.
    As I mentioned in my written statement, those cases are 
weighted with less weight than a typical criminal case. I am 
not sure that that weighting is accurate because frequently the 
status cases involve due process challenges to the manner in 
which somebody was previously removed or, in the case of a 
criminal conviction, they challenge whether the criminal 
conviction was a proper basis for their removal.
    So, these cases typically involve motion hearings. They 
involve a lot of research on the part of the court to look at, 
perhaps, the State court cases, State court definitions of 
crime. So, they are very time consuming.
    Mr. Tiffany. Mr. Chair, I would make the case that with 
better border enforcement we could probably reduce some of the 
caseload for the Ninth Court.
    I would turn to Mr. Fitzpatrick now. It seems like the 
point of some of the people testifying here today is that there 
needs to be more judges, and what I'm hearing from you say is 
you're saying that the Ninth should be split.
    Are these mutually exclusive questions, or could there be a 
greater number of cases that could be resolved if the Ninth was 
split and we wouldn't have this same backlog that some are 
talking about?
    Mr. Fitzpatrick. That's a great question, Congressman. I 
think it would definitely help with the speed of resolution of 
appeals, and so if you split the Ninth Circuit, the appeals 
would be decided more quickly in each of the two smaller 
circuits, and so that would relieve some of the caseload 
pressure that's currently on the Ninth Circuit judges because 
they could get through their cases more quickly.
    I don't know if it would help as much at the trial level 
caseload question.
    Mr. Tiffany. Mr. Chair, is this Subcommittee going to be 
considering or talking about splitting the Ninth? Is that 
something that's going to be discussed?
    Mr. Johnson of Georgia. Well, I am not ruling out any 
measures that anyone might want to propose to the subcommittee.
    Mr. Tiffany. Mr. Chair, did you consider inviting Mr. 
Scott, who was alluded to earlier, that has done detailed 
statistical analysis on this? Was he considered as an invitee?
    Mr. Johnson of Georgia. Yeah, we'll consider all witnesses, 
particularly those who are unbiased, to appear before the 
committee.
    Mr. Tiffany. I really appreciate that. I think that's 
something that's really missing here today is--what I'm hearing 
is that this Kevin Scott has done--I think I got his name 
correct--has done a detailed analysis, and we always want to 
use the best data possible, and to have data like that might be 
really helpful.
    If anyone, Mr. Fitzpatrick or anyone else, has information 
that they can share with the Committee that bolsters this point 
that Mr. Scott makes, that would really be helpful.
    I want to thank you so much for giving me the time, Mr. 
Chair. I yield back.
    Mr. Johnson of Georgia. Thank you, Representative Tiffany.
    Next we will go to the gentleman from 10nessee, Mr. Cohen, 
for five minutes.
    Mr. Cohen. Thank you, Mr. Johnson, and I want to thank you 
for calling this hearing and for the witnesses that appear 
before us today.
    We had a hearing last Congress on the issue of the Supreme 
Court decisions they've given on the shadow docket, and at that 
time there were different witnesses, of course. It was a 
different issue before us.
    I did ask the witnesses if they felt that there was a need 
for more reform and maybe more addition to the Supreme Court, 
and they didn't really think there was so much need at the 
Supreme Court, but they felt there was a great need at the 
appellate court level, that the appellate courts needed more 
judges at the appellate court level, and the Circuit Court of 
Appeals.
    Judge Mueller, do you agree that there needs to be 
additions to the Appellate Circuit--I think since 1990 there 
haven't been any new appellate circuit benches created, and I 
think the caseloads increased by 19 percent in appeals. Do you 
think there needs to be more appellate judges?
    Judge Mueller. Again, Congressman, thank you for the 
question.
    I'd clarify I haven't studied up to answer questions based 
on the appellate courts, in particular. I know, generally, that 
our administrative office has identified the need for more 
appellate judges in many parts of the country.
    So, I'm certain there is a need. My focus is on the trial 
courts' need where even if the law is better clarified by 
reform, I would observe I'm not certain that would stop the 
number of cases coming into the trial courts.
    Our population in the Central Valley and Sacramento Valleys 
is hurtling towards 8.4 million. People and demography drive 
caseload filings, and so that is our issue here in Central 
California.
    We have wide swaths of public land. We're top 10 in civil 
rights cases, non-prisoner civil-rights cases. We have any 
number of cases, soup to nuts, and I believe that trend is 
going to continue.
    So, I'm here to tell you we implore you to remember the 
trial courts, the foundation of the federal court system. We 
believe public trust depends on our being fully fixed as well 
as any other court that needs a fix.
    Thank you, sir.
    Mr. Cohen. You're welcome, Judge.
    Let me ask you this, and I guess this can go to any of the 
people on the panel. Does diversity make a difference in the 
courts as far as the results? I note, they call people Trump 
judges and Obama judges, and all that.
    Diversity does have an effect on the bench, does it not, 
and people's perspectives and backgrounds and life experiences?
    Judge Mueller. Again, Congressman, I'm not prepared to 
address that in any great detail. Generally, if we got the five 
new judgeships, we believe we qualify for, particularly if this 
is the time to fix the infrastructure, certainly, we would have 
five colleagues join us and so there would be the chance to 
expand our numbers.
    I do think it makes sense to have society as a whole 
represented on the bench in terms of maintaining the public 
trust.
    Mr. Cohen. Mr. Fitzpatrick, do you agree with that?
    Mr. Fitzpatrick. I do. I have to tell you that there's very 
good both theory and empirical evidence that having a diversity 
of perspectives really improves decision-making.
    There's an entire field of literature called the many minds 
literature or the wisdom of crowds, and one of the big benefits 
to having diversity is you get different perspectives and 
people's mistakes can be corrected by one another. So, I think 
it's a definite gain.
    Mr. Cohen. Judge Levy, do you agree that diversity can 
affect outcomes and be important for the court to reflect 
America?
    Ms. Levy. Yes, I think I was just elevated to a judge and, 
I should say, I'm just a lowly professor, though, I do have 
life tenure.
    Yes, absolutely. I mean, as Professor Fitzpatrick said, 
there's great literature on this. There's no question that it 
increases the sociological legitimacy. That is the perception 
of legitimacy on the part of the public to see themselves 
reflected back.
    I would also point out that this was a real priority before 
the 1978 Omnibus Judgeship bill, right. The real sense was we 
needed to diversify the federal bench, and we saw that 
accomplished during that time.
    Mr. Cohen. Professor, I've got 20 seconds left. I want to 
thank you.
    Congressman Issa suggested we create new judgeships but we 
put them off till the next president. The last President 
appointed over 60 appellate court judges, and only one of them 
was African American.
    The country and diversity and African Americans can't wait 
to the next presidency when they have been done such a 
disservice by the previous president, who could only find one 
African American worthy of serving out of 60 or 65 
appointments.
    If there's a need for more judges, there's a need for more 
judges now. Justice delayed is justice denied, and not having 
diversity, which has increased so much with the last president, 
is justice denied--justice delayed, justice denied--for our 
country not being a rainbow, reflecting all of us in the 
country.
    Ms. Levy, I apologize. I just generally, I think Levy I 
think of judge. I think Levy, I think of doctor. I think Levy, 
I think of rye bread. Now I'll think of it as professor.
    Thank you. I yield back.
    Ms. Levy. May I respond?
    Mr. Johnson of Georgia. Well, the gentleman's time has 
expired.
    Mr. Cohen. Respond about rye bread. That's okay.
    Mr. Johnson of Georgia. I'll allow the witness to respond.
    Ms. Levy. Thank you. I think I won't say anything about rye 
bread. I will just point out, though, that all the other times 
in which we have added judgeships to the courts of appeals, we 
have not staggered them.
    Again, from a caseload perspective, I would say, if there's 
a leak in your roof, you don't want to hear that you're going 
to have someone fix it a year from now or four years from now. 
You want it fixed as soon as possible. Thank you.
    Mr. Johnson of Georgia. Thank you.
    Mr. Cohen. Thank you.
    Mr. Johnson of Georgia. At this time, we will recognize the 
gentleman from Kentucky, Mr. Massie, for five minutes.
    Mr. Massie. Thank you, Mr. Chair.
    The leak in the roof seems to have happened several years 
ago, and Ranking Member Issa, tried to fix the leak. So, I 
think we should take time to do it right if we have taken this 
much time already.
    Judge Burns, I'd like to address my first question to you. 
The late Chief Judge John Roll of the U.S. District Court for 
the District of Arizona said back in 2011 that federal courts 
in Arizona were drowning in a tsunami of criminal cases filed 
as a result of a surge in federal law enforcement agents 
working to secure the border with Mexico.
    He said back in 2011 that more judges were needed due to 
the high immigration caseload. I wanted to see if you have 
thoughts regarding how our lack of border control, lack of a 
strong immigration policy, has perhaps led to the need for an 
increase in the number of federal judges in the lower court.
    Judge Burns. Thank you, Congressman. I can't speak to need 
for additional legislation. I can speak to the impact on our 
court, which, as I mentioned, is one of the five border 
district courts.
    Our caseload is predominantly concerned with immigration 
type cases. These include not only status cases, but it also 
includes crimes along the border. It includes alien smuggling. 
It includes drug smuggling.
    So, I agree with Judge Roll's comments from both 2011 and 
then later. The situation has not changed. In the years, now 23 
years, that I've been on the court, it hasn't changed.
    As you heard in my biography, I worked as a federal 
prosecutor. It hasn't changed since 1985. So, those cases are 
the staple of what we do, what criminal cases we handle here.
    Mr. Massie. What percent of your cases are dealing with 
crime or crime related--immigration-related crime or crime 
related to drugs coming across the border?
    Judge Burns. Well, as I mentioned in my statement, fully 89 
percent of our criminal docket includes those two categories of 
crime. Drug smuggling, and we're not talking about minor 
amounts of drugs. We're seeing increasingly 40, 50, 60 pounds 
of actual methamphetamine being brought across in vehicles.
    Between border drug smuggling and immigration offenses of 
the type that I've mentioned, not just status offenses but 
alien smuggling and other types of immigration offenses, 89 
percent of our caseload, criminal caseload, concerns those 
categories of cases.
    Mr. Massie. Thank you very much.
    Professor Fitzpatrick, you mentioned about the dangers of 
stacking one circuit by allowing too many partisan nominations 
in any given year and that many of the appeals from the Ninth 
Circuit have been overturned by the Supreme Court.
    Now, a lot of those are overturned 5 to 4. Those could be 
differences of opinion or viewed slightly differently. Are 
there any cases of where the Supreme Court unanimously decided 
against the Ninth Circuit in a sort of what were you thinking 
kind of way?
    Mr. Fitzpatrick. Yes, there are, and I allude to some of 
this data in a footnote in my written testimony. You can slice 
the numbers as Supreme Court reversals by any vote. Compared to 
the number of appeals decided, the Ninth Circuit is number one.
    You can slice the data unanimous reversals by the Supreme 
Court compared to the underlying appeals decided by a circuit. 
Ninth Circuit is still number one.
    Then even better, you can slice the data looking at 
reversals that were so obvious that not only was it unanimous, 
but the Supreme Court didn't even bother to hear oral argument. 
They just summarily reversed on the cert petition and the 
briefing, and the Ninth Circuit's number one on those as well.
    So, no matter how you slice the numbers, the reversal rate, 
and the Ninth Circuit is number one.
    Mr. Massie. So, there have been many 9 to 0 unanimous 
decisions overturning Ninth Circuit--
    Mr. Fitzpatrick. Yes. Yes, unanimous, and even unanimous on 
the briefs without even hearing argument called a summary 
reversal, because it was so obvious the Ninth Circuit was 
wrong.
    Mr. Massie. In those cases, that seems like a clear 
mistake, miscarriage of justice, instead of a difference of 
opinion.
    Mr. Fitzpatrick. I completely agree with you.
    Mr. Massie. Well, I'd like to yield back to the Chair and 
thank him.
    Mr. Issa. Would the gentleman yield?
    Mr. Massie. I will yield to the Ranking Member.
    Mr. Issa. In those cases, Professor, weren't a good many of 
them three-judge panels in which there was no en banc and, as a 
result, it was a microscopic portion of the circuit?
    Mr. Fitzpatrick. That's correct.
    Mr. Johnson of Georgia. Thank you. We will now go to the 
gentleman from New York, Mr. Jones, for five minutes.
    Mr. Jones. Thank you, Mr. Chair, and thank you all for 
appearing before us today.
    On behalf of the American people, I'd like to particularly 
express my gratitude to Chief Judge Mueller, Judge Humetewa, 
and Senior Judge Burns for discharging your duties under such 
challenging conditions.
    As a former law clerk in the Southern District of New York 
not too long ago, from the years 2014 to 2015, I am intimately 
familiar with the burdens placed on article III judges and 
their law clerks with respect to what are mounting 
controversies that arise under federal law.
    It is for this reason that I'm a bit disheartened to hear a 
number of my Republican colleagues suggest a tactic and 
approach, rather, that would effectively amount to delaying 
justice for the purpose of satisfying some of them that their 
preferred President gets to appoint a number of the judges that 
we must add immediately to the lower courts.
    Also, based on my experience, and due to the intensive 
demands on our justice system as you have illuminated, we need, 
obviously, to expand these courts to expand access to justice.
    I want to emphasize that expanding the courts will also 
help us ensure that they reflect the diversity of the American 
people and the underrepresented perspectives of attorneys who 
have devoted their careers to public service.
    President Biden has committed to building a judiciary that 
truly represents America, and by expanding the courts, we can 
help him achieve that goal faster.
    Finally, I'd like to thank my colleagues for their 
longstanding bipartisan recognition of the urgency of court 
expansion. I'm hopeful that my colleagues across the aisle will 
continue their commitment to giving our justice system the 
resources it needs to fulfill its vital mission.
    Now, Judge Humetewa, in your testimony this morning you 
suggested that because of your district's resource deficits, 
the juries who hear cases affecting tribal Members are often 
unrepresentative of tribal nations.
    I'm committed to ensuring that our juries represent our 
communities. That's why I introduced the Juror 
Nondiscrimination Act, a component of the Equality Act, which 
the House will pass tomorrow.
    Could you explain how expanding courts like yours is 
important to guaranteeing everyone has a trial by a jury of 
their peers?
    Judge Humetewa. Yes. I want to reflect on testimony in 
northern Arizona, where we have 10 tribal nations, we also draw 
our jury pool from northern Arizona, the five counties, which 
include the tribal nations.
    So, oftentimes, if we have to have a trial in Phoenix for 
lack of an ability to use our magistrate judge's courtroom, 
we're essentially asking all of those individuals from northern 
Arizona to drive four, five, six hours to Phoenix, Arizona, to 
serve on a federal trial, and many times the individuals who 
suffer logistical challenges, hardship, transportation, all 
those issues that get in the way of their ability to leave home 
for a week at a time to serve on a jury, it weeds out a lot of 
the individuals from many of those communities.
    So, what ends up happening is you may have a Native 
American defendant, the victim is Native American, the tribal 
investigators investigated the case, and you have no Native 
Americans represented on the jury.
    It simply doesn't reflect the communities, and that is also 
true in many instances in our Tucson division, of course.
    So, we see it, in real time, and we hope that with the 
addition of new district court judges that more and more of my 
colleagues will be able to bring justice closer to those 
communities so that there can be full participation of the 
communities affected in these jury pools.
    Mr. Jones. Thank you so much.
    With my 40 remaining seconds, I'd like to ask Judge Mueller 
to talk about how her overwhelming caseloads affects the most 
marginalized parties that appear before you like indigent 
defendants, including people who have to represent themselves 
pro se. If there are any particular cases that come to mind and 
if you could elaborate on those?
    Judge Mueller. Thank you, Congressman.
    We do have a steady diet of cases filed by persons 
representing themselves. We have robust panels of attorneys 
that we can appoint. To appoint we need to determine whether or 
not a case has sufficient merit, and that takes time.
    We have able assistance from our magistrate judges. We have 
a very healthy number of magistrate judges assisting. 
Magistrate judges do not have dispositive authority. So, a 
magistrate judge may see something in one of those cases, but 
then it gets in line before one of us.
    Times to disposition in civil cases--and again, we're top 
10 in the Nation in non-prisoner civil rights cases--those 
times are stretching out to five years or more, and in pro se 
cases they can take the longest.
    Mr. Jones. Thank you. I yield back.
    Mr. Johnson of Georgia. Thank you. We will now hear from 
the gentleman from North Carolina, Mr. Bishop, for five 
minutes.
    Mr. Bishop. Thank you, Mr. Chair.
    I was scratching my head for much of this hearing over why 
it is now only that we have the hearing on the possibility of 
expanding judges. Many have commented on that. Of course, Mr. 
Chabot asked Professor Fitzpatrick about the possibility, I 
guess, of a partisan desire to control those appointments.
    I thought that Chair Johnson in a moment sort of spoke the 
quiet part out loud, and I wanted to ask about that. He asked 
about the possibility of needing to expand the United States 
Supreme Court.
    Last week, we heard in a hearing much about what they call 
the shadow docket summary, the Supreme Court orders list, or 
just the summary adjudications there.
    I think that to the extent that expanding lower courts may 
be a ploy to render the Supreme Court less able effectively to 
manage them, that begins to be a fairly apparent purpose.
    Professor Fitzpatrick, let me ask you, you spoke and 
testified a good bit, and wrote about the reversal rate in the 
Ninth Circuit.
    If that reflects, to any degree, recalcitrance at a lower 
level or unwillingness to recognize that we're in a 
hierarchical judicial system in which lower courts owe their 
allegiance to the law as declared by the United States Supreme 
Court, if you take that situation in the Ninth Circuit or 
assume that and you increase the number of judges without the 
structural reforms you've spoken about, wouldn't the result 
likely be increasingly to overwhelm the United States Supreme 
Court's ability to supervise the lower courts and to enforce 
adherence to the law it declares?
    Mr. Fitzpatrick. I think so, Congressman. I think that if 
you add more judges to the Ninth Circuit without restructuring 
the Ninth Circuit, you're going to get more erroneous two-judge 
majorities on three-judge panels and you're going to get more 
limited en banc reviews that do not reflect the larger circuit, 
because only 11 of the bigger number is going to be sitting en 
banc.
    So, there's going to be more errors the Supreme Court will 
need to correct, and the question is does the Supreme Court 
have the resources to catch all of the errors.
    They don't catch all the errors now, and they're not going 
to be able to catch them all in the future. If I could just 
briefly respond to the notion that expanding the Supreme Court 
might help the Supreme Court decide more cases, I don't think 
it would, and I don't think it would because the Supreme Court 
sits as a full court.
    So, if you increase the number to 11 or 13, it's not going 
to help them take more cases because now all 11 or 13 is going 
to have to weigh-in on each and every case. Only if you were to 
ask the Supreme Court to serve in three-judge panels could it 
help. No one is proposing that.
    Mr. Bishop. That would undermine other interests as well, I 
would suggest.
    Mr. Fitzpatrick. Yes.
    Mr. Bishop. Professor Levy, if I could go to you for just a 
moment. One thing about your material is that it covered the 
length of time that this situation has been the case, at least 
on the Court of Appeals level. Congressman Massie spoke to this 
a little bit as well.
    It struck me. I think you said that the case of the Court 
of Appeals filings per judge are now down from the peak--there 
was a peak in 2005, at 400 per judge, I believe it said, and 
now it's down in 2019 to 284 per judge, and that it's 
stabilized over the past few years.
    One of the judges on the panel, I think Judge Mueller, 
spoke to the fact that population drives increase in cases. I 
wonder if you have any insight as to why that the caseload has 
not continued to rise, notwithstanding that Congress last added 
Court of Appeals judges in 1990?
    Ms. Levy. Of course, and I just want to say it's nice to 
see someone from North Carolina.
    Mr. Bishop. Likewise.
    Ms. Levy. Regarding the 2005-2006 jump, so those were due 
to two really sui generis events. So, first, we saw substantial 
upswings in criminal appeals and original proceeding petitions. 
This was following the Supreme Court's decisions in Blakely v. 
Washington and then Booker.
    So, those were big sentencing cases that had to move 
through the system.
    At the same time, we saw a substantial growth in 
administrative agency decisions. This was following a DOJ 
decision in 2002 to streamline the procedures at the BIA.
    So, a large backlog of immigration appeals then had to move 
through the system. They have moved through, and that's why the 
caseload has now stabilized.
    The key point, I would say again, is that we are up 20 
percent from where we were in 1990. So, that slight coming down 
from the high water mark I don't anticipate extending. We 
should see the caseload continue to rise.
    Mr. Bishop. Thank you, ma'am. The leak in the roof has been 
there a while.
    Mr. Chair, my time has expired.
    Mr. Johnson of Georgia. I thank the gentleman from North 
Carolina.
    We next have another representative from North Carolina, 
the gentlelady, Ms. Ross, for five minutes. You are recognized.
    Ms. Ross. Thank you so much, Chair Johnson.
    Just to let you know that the gentleman from North Carolina 
and I were in the same law school class, and so--
    Mr. Bishop. The same small--
    Ms. Ross. The University of North Carolina is very proud to 
have two Members of Congress right now from the same class.
    Ironically, that class was the class of 1990, the last time 
that we expanded the judges in the lower federal courts, and so 
maybe we're here at precisely the right time to do some good 
bipartisan work.
    I wanted you to know, and I'm sure that everybody knows, 
that North Carolina has had tremendous population growth 
without any increase in judges. As a matter of fact, we may 
even get another congressional district this next round of 
redistricting.
    My district sits in the Eastern District of North Carolina, 
and since 1990, we have had more than an increase in population 
of more than 160 percent. So, in the district that I represent, 
which is where the State government capital is and a lot of 
lawyers, we add 60 people a day.
    Back in 1992, there were 1,817 new cases filed in the 
Eastern District. That number jumped to more than 3,100 in 
2020, which is a 71 percent increase, and the number of new 
filings has gone up to 777 per judge.
    I think it's also no secret that because of partisan 
divides, we have had difficulty on, let's just say, settling on 
new people to appoint, and we had a vacancy in the Eastern 
District for more than 10 years.
    I do think that the judges are doing an honorable job. I've 
appeared before several of them. Really, it's not fair to the 
litigants, and you've heard about that at the criminal level, 
at the civil level, and it's on us. It's Congress' fault that 
we have not had the proper Administration of justice.
    In addition to expediting cases, we also need to focus on 
having judges who reflect the litigants before them. In the 
Eastern District, we have a very large minority population, and 
we have not had a minority judge, a self-identified minority 
judge.
    It means so much both to the litigants but also to the 
Administration of justice that we have people from diverse 
backgrounds. The majority of law students in 2020 were women, 
and more than 30 percent were minorities. Yet, among our 
district court judges, only 32 percent are women, and less than 
30 percent are minorities.
    We have a similar problem on the appellate court. My 
colleague, G.K. Butterfield, who served as a Superior Court 
judge and briefly on our Supreme Court, has been working on 
this, and I am a true partner with him.
    For these reasons, which I'm sure that many, many of the 
Members of the Committee share, we need to expand our federal 
judges, and we need to do it in a bipartisan way.
    I do have one question for our distinguished Duke Law 
Professor. Thank you for being here representing North 
Carolina. We had talked about the fact that there are more and 
more unpublished opinions at the appellate level and 
particularly in the 4th Circuit, and this is not a new 
phenomenon in the 4th Circuit. I was very frustrated by it as a 
practicing attorney.
    I'm interested in knowing whether there's any trend in the 
types of cases. As Congressman Cohen talked about, we talked a 
little bit about the Supreme Court shadow docket and what kinds 
of cases might be in the shadow docket.
    Is there a similar correlation in the appellate courts?
    Ms. Levy. Absolutely, thank you, and I should say, since 
we're required to tell the truth, I am a Tar Heels fan, despite 
the fact that I work for Duke.
    So, it's a terrific question, right, are there certain 
kinds of cases that we see both resulting in unpublished 
decisions, but also thinking about the front end that don't 
receive oral argument, and I would say the answer is yes.
    As a whole, if we were to make a generalization about the 
dockets of the federal courts of appeals, we see pro se cases, 
largely, ending up on this--what has been called a kind of 
track two treatment, immigration appeals, Social Security 
appeals. Those, in general--prisoner appeals--tend to be, 
again, put on that kind of track two. I think that's a fair 
characterization.
    Ms. Ross. Thank you very much, and, Mr. Chair, I yield back 
my time, my two seconds.
    Mr. Johnson of Georgia. I thank the gentlelady.
    At this time, we will hear from the gentleman from 
Wisconsin, Mr. Fitzgerald, for five minutes.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    More of a comment, and if somebody would want to maybe jump 
in, they could. In Wisconsin we have the Western District, 
which oftentimes philosophically doesn't necessarily match up 
with the 7th Circuit in Chicago, and it's been frustrating over 
probably the last decade, I would say, in that some of these 
rulings that come out of the Western District oftentimes, 
either because of vacancy or, not really sure--it's kind of a 
mystery. It takes years and years for rulings.
    We just waited three years for a ruling on a bill that had 
made it through the Wisconsin legislature and was challenged in 
the Western District.
    So my point is, because of retirement or because of 
illness, in some cases, there's so many different reasons that 
the 7th Circuit will hold something or not act, I guess, is a 
better way of putting it, it's just a contributing factor that 
is so frustrating for those that are trying to develop 
legislation, full authority of the legislature to pass it. 
Governor signs it into law, and then it's held up in court.
    So, I'm not sure if anybody would like to comment on that. 
It was something that is a real-life example of something that 
we continue to live through in the State of Wisconsin and it's 
the dynamic between the Western District and the 7th Circuit in 
Chicago.
    Mr. Chair, I yield back to the Ranking Member.
    Mr. Issa. Would the gentleman yield?
    Mr. Fitzgerald. I would, yes.
    Mr. Issa. For the two judges from California, both of you 
in the Eastern and the Southern District currently have 
vacancies. Is that correct? One in the Eastern and then two in 
San Diego, or is it more? Two in Eastern?
    Judge Burns, how many vacancies do you have now that you're 
on senior status?
    Judge Burns. We have five, Congressman Issa.
    Mr. Issa. Okay, so we have seven. I just want to point out 
that those are the result of blue slips, correct? Basically, 
there were nominees, but they weren't able to move forward. Is 
that correct?
    Judge Burns. That's correct, from the Southern District.
    Mr. Issa. Okay.
    Judge Mueller. I can't say that we know, but our nominees 
did not get out of Senate Judiciary Committee last year.
    Mr. Issa. I interviewed all of them. So, I have a tendency 
to know some of them. The reason I point that out is that 
during the intervening time, particularly in the Southern and 
Eastern District, could you opine briefly on how you used 
visiting judges and other techniques to try to stem what would 
have otherwise been an insurmountable caseload?
    Judge Mueller. I can go first.
    Again, we do have the two vacancies. They are over a year 
old now, and with my written testimony I provided the standing 
orders that the one judge who sits in the Fresno courthouse, 
where those two new judges will sit when appointed, issued 
standing orders explaining the emergency circumstances, the 
inability to preside over civil cases, and he's holding four 
criminal cases, per calendar, a week.
    We have used visiting judges to the extent we can. I have 
just seen the approval for a visiting judge to assist us. 
Visiting judges can help but they typically do not own 
caseloads from start to finish.
    Federal trial judges own caseloads from start to finish, 
and without resident visiting judges, visiting judges are not 
in a position to provide us with the help we need.
    We have at times had almost a hundred visiting judges. When 
they come--one more point--they don't come with the full 
complement of staff. Each district judge draws on staff from 
the clerk's office: Courtroom deputy, court reporter, in 
addition to our law clerks.
    So, we have about three extra staff. No visiting judge 
comes with that staff, and so a lean and mean staff is then 
stretched to try to support that complement. They help, but 
they are no fix.
    Mr. Issa. Thank you.
    Mr. Chair, hopefully this will be a point that we study to 
make sure that we actually fill those to stop this practice of 
visiting judges that tend to be, as she said, very inefficient.
    With the remaining time, Professor, could you give us a 
brief summary of your view on the possibility of doing 
something in the Ninth Circuit similar to Justice White's 
proposal?
    Mr. Fitzpatrick. Is that for me, Congressman Issa, or 
Professor Levy?
    Mr. Issa. Oh, I'm sorry. For you.
    Mr. Fitzpatrick. Oh, okay. Thank you.
    So, Professor, or Justice White's proposal on the White 
Commission was to basically create another level of appellate 
review, en banc review, if you will, in between the full court 
and the three-judge panel.
    So, he wanted to divide the Ninth Circuit into divisions. 
Rather than separate circuits, they'd be separate divisions. 
Each division, I think he wanted three divisions--each division 
would have its own en banc, and then if there was disagreement 
among the divisions, it would go to a full court en banc, but 
it would only be 13 of the judges on this full court en banc. 
So, it's going to be a small minority of the entire circuit.
    So, it's that last step that I still don't care for. It's 
still a limited en banc. So, there might be some improvement 
with the White Commission proposal, but I don't think it gets 
us as much improvement as if we just split the Ninth Circuit up 
into separate circuits where each one could have their own full 
court en banc.
    Mr. Issa. Thank you, Mr. Chair. Thank you.
    Mr. Johnson of Georgia. Thank you. Waiting patiently has 
been the gentleman from Colorado, Mr. Neguse, and he is now 
awarded with five minutes.
    Mr. Neguse. Well, I thank the Chair, and I certainly have 
enjoyed the hearing and very thoughtful testimony from all the 
witnesses and appreciate their testimony, and, of course, thank 
you, Chair Johnson, and to Chair Nadler for holding this very 
important hearing.
    I, like many of my colleagues who participated in today's 
hearing, represent a State that is in tremendous need of new 
lower court judgeships.
    It's become a common theme that I've heard over the course 
of my time in Congress from stakeholders in Colorado, and to 
address those needs I'm introducing a bill today to authorize 
additional district court judgeships for the State of Colorado 
and, also, to add Fort Collins to the list of places that the 
district court is authorized to hold court.
    I represent Fort Collins in the United States Congress, 
and, like a lot of states represented by my colleagues, 
Colorado's population has skyrocketed, especially in northern 
Colorado, over the last several decades.
    While our population and the caseload has certainly grown, 
the number of judges we have added to the federal bench has 
not.
    So again, I want to thank the Chair for holding this 
hearing to bring light to the tremendous need to expand our 
lower courts across the country and the consequences for not 
doing so.
    I certainly want to thank all our witnesses, in particular, 
those Members of the federal bench for their service to our 
country, to the judicial system, and for offering their 
testimony today with respect to this very important issue.
    With that, I'll yield back the balance of my time. Thank 
you, Mr. Chair.
    Mr. Johnson of Georgia. I thank the gentlemen.
    We have come to the end of the road. The gentleman from 
Oregon, Mr. Bentz, will take us home with five minutes.
    Mr. Bentz. Thank you, Mr. Chair, and to everyone's relief, 
I yield back.
    Mr. Johnson of Georgia. That was a quick trip.
    This concludes today's hearing. Thank you to the panelists 
for attending.
    Without objection, all Members will have five legislative 
days to submit additional written questions for the witnesses 
or additional materials for the record.
    With that, the hearing is adjourned.
    [Whereupon, at 12:15 p.m., the Committee was adjourned.]



      

                                APPENDIX

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                  QUESTIONS AND ANSWERS FOR THE RECORD

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