    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                     JUSTICE DELAYED: THE CRISIS OF UNDERMANNED
                                  FEDERAL COURTS

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

                                    HEARING

                                   BEFORE THE

                      SUBCOMMITTEE ON COURTS, INTELLECTUAL
                     PROPERTY, ARTIFICIAL INTELLIGENCE, AND
                                  THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           TUESDAY, FEBRUARY 25, 2025

                                   __________

                                Serial No. 119-5

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    59-375                     WASHINGTON : 2025

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking
    ANDY BIGGS, Arizona                      Member
    TOM McCLINTOCK, California           JERROLD NADLER, New York
    THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California
    THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee
    CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia
    BEN CLINE, Virginia                  ERIC SWALWELL, California
    LANCE GOODEN, Texas                  TED LIEU, California
    JEFFERSON VAN DREW, New Jersey       PRAMILA JAYAPAL, Washington
    TROY E. NEHLS, Texas                 J. LUIS CORREA, California
    BARRY MOORE, Alabama                 MARY GAY SCANLON, Pennsylvania
    KEVIN KILEY, California              JOE NEGUSE, Colorado
    HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia
    LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina
    WESLEY HUNT, Texas                   BECCA BALINT, Vermont
    RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois
    GLENN GROTHMAN, Wisconsin            SYDNEY KAMLAGER-DOVE, California
    BRAD KNOTT, North Carolina           JARED MOSKOWITZ, Florida
    MARK HARRIS, North Carolina          DANIEL S. GOLDMAN, New York
    ROBERT F. ONDER, Jr., Missouri       JASMINE CROCKETT, Texas
    DEREK SCHMIDT, Kansas
    BRANDON GILL, Texas
    MICHAEL BAUMGARTNER, Washington
                                     ------

                 SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
                   ARTIFICIAL INTELLIGENCE, AND THE INTERNET

                        DARRELL ISSA, California, Chair

    THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member
    BEN CLINE, Virginia                  ZOE LOFGREN, California
    LANCE GOODEN, Texas                  TED LIEU, California
    KEVIN KILEY, California              JOE NEGUSE, Colorado
    LAUREL LEE, Florida                  DEBORAH ROSS, North Carolina
    RUSSELL FRY, South Carolina          ERIC SWALWELL, California
    MICHAEL BAUMGARTNER, Washington      SYDNEY KAMLAGER-DOVE, California

                   CHRISTOPHER HIXON, Majority Staff Director
                      JULIE TAGEN, Minority Staff Director

                               C O N T E N T S

                                  ----------

                           Tuesday, February 25, 2025

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Darrell Issa, Chair of the Subcommittee on Courts,
      Intellectual Property, Artificial Intelligence, and the
      Internet from the State of California..........................     1
    The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of Georgia.......     2
    The Honorable Jim Jordan, Chair of the Committee on the Judiciary
      from the State of Ohio.........................................     5
    The Honorable Jamie Raskin, Ranking Member of the Committee on
      the Judiciary from the State of Maryland.......................     6

                                    WITNESS

    The Honorable Timothy Tymkovich, Circuit Judge, U.S. Court of
      Appeals, Tenth Circuit, on behalf of the Judicial Conference of
      the United States
      Oral Testimony.................................................     9
      Prepared Testimony.............................................    12

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted for the record by the Subcommittee on
      Courts, Intellectual Property, Artificial Intelligence, and the
      Internet are listed below......................................    52

    Materials submitted by the Honorable Darrell Issa, Chair of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record
        A document entitled, ``District Court Judgeships Act of
            2021,'' H.R. 4886, 117th Congress, The House of
            Representatives, Jul. 30, 2021
        A Discussion Draft entitled, ``JUDGES Act of 2025,'' 119th
            Congress, The House of Representatives
        A draft bill entitled, ``Litigation Transparency Act of
            2025,'' to amend 28 U.S.C., 119th Congress, The House of
            Representatives
        A draft bill entitled, ``NORRA,'' to amend 28 U.S.C., 119th
            Congress, The House of Representatives

           JUSTICE DELAYED: THE CRISIS OF UNDERMANNED FEDERAL COURTS

                                  ----------

                           Tuesday, February 25, 2025

                            House of Representatives

               Subcommittee on Courts, Intellectual Property, and

                   Artificial Intelligence, and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to notice, at 10:02 a.m., in
    Room 2141, Rayburn House Office Building, the Hon. Darrell Issa
    [Chair of the Subcommittee] presiding.
        Present: Representatives Issa, Massie, Fitzgerald, Cline,
    Gooden, Kiley, Lee, Fry, Baumgartner, Ross, and Swalwell.
        Also present: Representatives Jordan, Hunt, and Raskin.
        Mr. Issa. The Subcommittee will come to order. Without
    objection, the Chair is authorized to declare a recess at any
    time. We welcome everyone here today to this hearing on the
    Federal Courts. I'll now recognize myself for an opening
    statement.
        Some opening statements are read from the notes, some are
    read from memory, and some are read from the events of the last
    six months.
        Today's hearing, although it will cover legislative agendas
    beyond specifically the expansion of the Federal court to deal
    with the necessary--with the amazing backlog and the necessary
    expansion of the court, I think it's important that the opening
    statement sets a tone for what we want to accomplish.
        In the last Congress, under the JUDGES Act, a bipartisan,
    bicameral effort was made, and it succeeded. In my 24-plus
    years here in Washington, it was the first time I ever saw a
    bipartisan, bicameral bill vetoed by a President.
        I believe it was a short-sighted decision, primarily made
    by staff, or perhaps by the sense that one had to do it because
    so much had been said in the past. It didn't have to happen,
    and it shouldn't have happened.
        The carefully crafted legislation before us today that will
    be undoubtedly marked up and voted on the House floor in the
    first few days of this Congress, was acceptable to all sides,
    because the principle that over, in the House version, eight
    years, and in the final version, in concert with the Senate, 10
    years, that is at least three administrations, 2-3 Presidents,
    would have an impact on it, that in fact, the order of the
    House--or the order of the judges was determined by the
    Judicial Conference's need in order of priority, and by the
    availability of facilities to house those judges.
        Those kinds of decisions do not change overnight, and
    although I expect a small change potentially in March when the
    Judicial Conference gives us an update, it might increase by a
    few--I doubt that it will decrease--but we will adjust that if
    the bill has not yet been signed into law.
        It has been decades since we made a major addition to the
    court. The caseloads have grown. They've grown to, more or
    less, for the common person, 1,000 cases a year per judge.
        Now, the Federal court prioritizes criminal ahead of civil,
    but there's no question at all that criminal cases are being
    pled out because there simply isn't enough capacity in the
    court. Civil cases are being delayed or forced to endlessly go
    through what we used to call a ``do'' loop of, well, go
    negotiate again, go try to settle, because, in fact, the judge
    doesn't have the two weeks it would take for a complicated
    civil case.
        This and more are the reason that we came to an
    understanding between Chair and Ranking Member of both parties
    of both Houses in the last Congress.
        Now, having said that, you will hear today, I suspect,
    that, in fact, my colleagues are no longer interested in that.
    There is one thing that has changed.
        For the first couple of appointments, clearly President
    Trump would have the lead. I want to make a point here today.
    I'm a Californian. In California, the District court decisions
    are not made by the President alone.
        The two Senators, under the long-standing and not
    overturned decisions on the blue slip, have real impact. I have
    watched under Republican Administrations for years the careful
    negotiation to find an acceptable conservative leaning, but
    acceptable to one or both of my Senators to lift the blue slip.
        That process that requires my judges, judge candidates, and
    U.S. attorneys for that matter, to spend a lot of time meeting
    with the home State Senators, has worked. It isn't expected to
    change.
        So, even in the first two or four years of this
    legislation, there would be not one side or the other. This is
    not like a Supreme Court Justice or the expansion of the
    Supreme Court. It doesn't reflect a massive change, just the
    opposite.
        Unless the Senate and the White House remain in one party's
    hands for a decade, which hasn't happened in any modern time,
    this will, in fact, be a piece of legislation that will reflect
    the judges of both parties.
        I just want to contrast that the bill that was unanimously
    supported in the Senate and even after the election, received
    29 votes by Democrats, including many of my Californians, when
    it came up after the election.
        I believe those 29 Democrats voted based on the courts'
    needs, putting country ahead of party, putting the court ahead
    of party.
        In contrast, I sit here with my Ranking Member. He's a
    friend, and at times we can work together. I do remember that
    during his time in the Majority and another President, his
    alternative was not to reintroduce a bipartisan bill that
    spread over 10 years and answered the needs requested by the
    Judicial Conference, and not one more, but rather his bill did
    exclusively District court judgeships, 203 of them, not 60-
    some, all of them in two years.
        In fact, he had 25 cosponsors on that bill, all in one
    party. I will not repeat that just because we have the
    Majority. I will not suggest a bill that both parties shouldn't
    take. Just the opposite.
        I've learned that if we're going to have a piece of
    legislation, it has to be balanced, and it has to be
    nonpartisan to the greatest extent possible--nonpartisan to the
    greatest extent possible.
        We can never take party completely out of the process, but
    we can ensure that the unknown exceeds the known.
        Today, our witness will speak of exactly that the judges
    are needed, that they've been needed for a long time, and that
    the impact on justice in America has been affected by that.
        I know that, Judge Tymkovich, you will experience
    undoubtedly some questions that are outside the scope of this
    Subcommittee, and perhaps even outside the scope of all the
    legislation we may talk about that is germane.
        I would explain to you, if you haven't seen C-SPAN over
    your few years, they may talk for five minutes. You may answer
    the answer that is relevant to what you came here for.
        I say that because I expect that most people will
    understand that the questions should be germane to your
    expertise and to the subject matter. If they're not, each
    Member has their five minutes. Let them enjoy it. Answer that.
    I will give you time to answer a germane question if necessary,
    and I will not ask you to answer questions that are outside the
    scope of this hearing.
        With that, I recognize the Ranking Member for his opening
    statement.
        Mr. Johnson. Thank you, Mr. Chair, for holding this
    hearing, and one of the things that I have found to be
    delightful in being an attorney and in transitioning from the
    rules of evidence and civil procedure, or criminal procedure,
    into the Legislative Branch and hearings, and those rules that
    we abide by as lawyers, don't apply.
        So, you can expect relevancy and those kinds of issues to
    perhaps pop up, but as I say, they are not mandatory. So, this
    hearing is another step in a decades' long scheme to capture or
    referees of justice, to make certain our third branch is so
    deeply loyal to one man that our system of justice cannot
    possibly work without him.
        Our colleagues want us to believe that their sole focus is
    to strengthen our Federal judiciary. We know the truth. The
    truth is, when they had a chance last year, they put politics
    first.
        The JUDGES Act of 2024 was a fair bill. It was premised on
    a good-faith, bipartisan agreement that the first set of judges
    in the bill would go to the next unknown President. The bill
    removed all politics from the process because we understood
    that politics is the reason we have gone so long without more
    Federal judges.
        I put forward a bill to establish 203 judgeships in
    accordance with prior requests from the Judicial Branch. For
    some reason, the Judicial Conference has altered those numbers
    of late and been a little more conservative about what they are
    asking for in terms of numbers of judges.
        It's clear, when you look across the country, that this 203
    number would do the Judicial Branch much more justice than 50-
    60 District Court judgeships.
        I look forward to one day Right-sizing our judiciary, which
    has been neglected for so long by the Legislative Branch. It's
    been since 1999-1979, actually--1990, since we've done
    appreciable numbers of authorizations for new judgeships.
        So, for 30-plus years, we've been needing more judges, and
    I stand ready to do that at the proper time. This bill, and the
    way that it has come forward, is nothing but politics.
        Our bill, or this bill last session, removed politics from
    the process, as I said, by ensuring that when it passed, we
    would not have known who the next President was. When it became
    somewhat iffy and things looked that they would go the other
    way, then my colleagues on the other side of the aisle decided
    to hold up on this bill until after the elections.
        Then, once the election was held, the result known, then
    they decided to press forward with this legislation, injecting
    politics into the process.
        Judges and judgeships were not known, were not important to
    Republicans then, but they are very important to them today.
    Their guy is now in the White House and this proves, once
    again, that what I said last Congress is true--Republicans only
    want to add new judgeships when they can rig the game in their
    favor.
        This blatant attempt to stack the deck shouldn't surprise
    us. What we are witnessing today is the culmination of a plot
    that began 50 years ago in the early 1970s with soon to be
    Justice Powell when he wrote, quote,

            The judiciary may be the most important instrument for social,
            economic, and political change.

        Of course, that quote was taken from the Powell memo, where
    Lewis Powell recommended that we needed to put corporate power
    over the needs of the individual. So, that began a decades'
    long crusade to concentrate power in the hands of the few at
    the expense of the many.
        This created the foundation for the meticulously
    constructed plan we are now watching play out in real time by
    the Trump-Musk Administration.
        Donald Trump is laying waste to our democratic system. In
    just 36 short days, the Trump-Musk Administration has sought to
    unilaterally reinterpret the Constitution, bequeathing new
    powers to itself out of thin air, all while publicly
    undermining the Judicial Branch's previously unquestioned
    constitutional power to, quote, ``say what the law is.''
        To me, none of these developments come as a shock. When you
    put a President above the law, like the immunity decision
    effectively did last year, he will behave like it doesn't apply
    to him.
        All is not lost. Despite what many MAGA Republicans think,
    just because Trump says it's true doesn't mean that it's true.
        Our Framers intentionally constructed the U.S. Government
    with three separate and distinct branches of government to
    check and balance one another. That way power would never be
    concentrated in any one branch.
        Practically this meant Americans would be protected from
    the autocratic whims of one petty man and his billionaire Co-
    President, no matter how many years after the Constitution
    became the law of the land.
        So, while we watch the Trump-Musk duo cosplay as king, we
    Americans know something they don't. Time has caught up with
    Lewis Powell's scheme. The clock has run out on the far Right's
    attempt to overturn our democracy.
        Our 250-year experiment in self-governance will succeed
    only if Americans continue to believe that judicial
    independence means that judges are not subject to pressure and
    influence.
        Americans must believe that justice cannot be bought by
    billionaires with gifts of lavish vacations and luxury motor
    homes.
        Americans must believe judges are free to make impartial
    decisions based solely on law and fact, free from fear and
    retribution.
        Our independent judiciary is the backbone of our democracy,
    and I, for one, will not just stand here and let the Trump-Musk
    Administration try to dismantle it one branch of government at
    a time.
        If my colleagues across the aisle came here today in good
    faith, I say, Welcome, let's work together to find a compromise
    to help strengthen our third branch of government. Let's have a
    good-faith discussion about the needs for more judges, starting
    with the next unknown President.
        I yield back.
        Mr. Issa. I thank the gentleman. I now ask unanimous
    consent to enter into the record a number of bills: H.R. 1526,
    the ``No Rogue Rulings Act,'' which limits the ability of
    District court judges to issue nationwide injunctions; the H.R.
    1109, the ``Litigation Transparency Act of 2025,'' which
    requires disclosure of third-party funders; the draft of the
    ``JUDGES Act,'' which is identical currently to the bill passed
    on a bipartisan, bicameral basis in the last Congress; and H.R.
    4886, authored by the gentleman from Georgia.
        I would say that since in the last Congress, everyone
    agreed that a bill that allowed for either Trump or Harris to
    determine the next judges, and was completely acceptable until
    it turned out that it would be Trump going first, but it was,
    in fact, either would do it, and we agreed to that, but if the
    gentleman agrees during the markup, I would be happy to
    substitute H.R. 4886 and the 203 judges if that's his wish.
        Without objection, so ordered.
        We now go to the Chair of the Full Committee, Mr. Jordan,
    for his opening statement.
        Chair Jordan. Thank you, Mr. Chair. I just wanted to thank
    you and our witness today for coming on this--particularly the
    Chair, the important work you've done on this bill and other
    bills, some you've referenced in your unanimous consent
    request.
        Increasing the number of judges is vitally important to the
    Judicial Branch of our government, and we all understand that.
    We did have a bill that every single Democrat in the U.S.
    Senate supported, and when it was brought up after the
    election, granted, several Democrats supported it then.
        It's a good piece of legislation. I hope we can pass it. I
    hope we can find a way to make it into law and do what everyone
    knows needs to be done.
        I just wanted to thank the Chair again for his hard work,
    great work on this issue and so many others, and with that, I
    yield back.
        Mr. Issa. The gentleman yields back.
        Does the Ranking Member of the Full Committee seek
    recognition?
        Mr. Raskin. Yes.
        Mr. Issa. The gentleman is recognized for his opening
    statement.
        Mr. Raskin. Thank you, kindly, Mr. Chair. Welcome to Judge
    Tymkovich. I'm delighted to see you and thank you for joining
    us today.
        We've convened because of a broken promise. I don't mean
    Donald Trump's promise that egg prices would be lowered
    immediately on the first day of office--of course, they're now
    more expensive than they've ever been in U.S. history, and I
    don't mean the promise to end Russia's filthy war on Ukraine on
    day one.
        Everybody knows that Donald Trump has now declared that
    President Zelenskyy is a dictator and that he started the war
    against Russia, even though we've got tape of Donald Trump at
    the time declaring Putin's war on Zelenskyy as an act of
    genius.
        Now, I'd refer to a promise of the old-fashioned
    legislative variety, the kind that Congress used to run on when
    our word was our bond around here.
        Democrats and Republicans agree that the courts need to
    have more Federal judges. It's been more than three decades
    since we passed a law to increase the numbers of judges on the
    bench.
        We had a bipartisan deal last Congress to give the courts
    the added judges they need. Our stalwart Ranking Member, Mr.
    Johnson, and our distinguished Chair, Mr. Issa, worked on a
    painstaking and honorable bipartisan deal to create a bill that
    would've spread additional District court judgeship
    appointments, recommended by the Judicial Conference, over
    multiple Presidential administrations beginning with the next
    unknown President.
        That was the key. Pass the bill before the election so
    neither side, no one would know whether this party or that
    party might benefit in the short-term.
        The Senate upheld their end of the bargain and passed the
    bill on a bipartisan basis last August. Then, the House GOP
    leadership suddenly broke the promise and refused to bring the
    bill up for a vote before the Presidential election. In other
    words, before the winner of the next election was known.
        Instead, they waited to know who would be President. If it
    was Harris, they would oppose it. If it was Trump, they would
    support it. Now, of course, they support it, itching to appoint
    loyal MAGA judges to the bench, to uphold the lawlessness of
    Elon Musk and Donald Trump, which has already elicited more
    than 25 temporary restraining orders and preliminary
    injunctions across the land. They're very happy to talk about
    creating new seats on the Federal bench.
        They broke their deal. They've undermined justice in the
    courts. We were willing to enter into a fair deal because we
    believe in equal justice under the law. Our friends seem to
    believe today only in, heads I win, tails you lose.
        If my GOP colleagues want to do it the right way, the fair
    way, and the way they agreed to do it last year, let's do it.
    I've got the exact same bill, the precise bill we all agreed to
    last year, drawn up for this Congress, and we're ready to
    support it.
        This is the deal we all agreed to last year, the number of
    judicial appointments, Mr. Chair, is exactly the same. The
    order of appointments by the States, exactly the same. Just as
    before, these appointments would begin with the next President,
    whoever that may be. Right?
        It could be J.D. Vance. It could be Hank Johnson, it could
    be, if the Constitution changes, and I know some people are
    itching for that, it could be Donald Trump for all we know.
    Whoever is the President, we would do it, but we don't know,
    that's the whole thing.
        We are all in the original position here. Just as before,
    these appointments would begin with the next President with
    unanimous bipartisan support. Please join me and Ranking Member
    Johnson today in moving to seriously fix our Federal judiciary
    without destroying it with last-minute party politics.
        If you can't support the exact same agreement we all
    entered into, then we must call this hearing out for what it
    is--a power grab.
        A week ago, President Trump signed an Executive Order
    declaring that he and the Attorney General will interpret the
    law for the Executive Branch. That statement cuts directly
    against the decision in Marbury v. Madison--and this is what I
    want to ask you about today, Judge Tymkovich, so I give you a
    little forewarning. I want to talk about Marbury v. Madison.
        The Supreme Court said the judiciary could order Secretary
    of State Madison to deliver a signed judicial commission to
    William Marbury even if the President told him not to.
        Remember, Marbury v. Madison is Secretary of State James
    Madison, not President Madison. Jefferson was the President,
    and he was telling Madison not to deliver the judicial
    commission that had already been signed and sealed, though not
    delivered.
        Chief Justice Marshall said, ``It is emphatically the
    province and the duty of the judicial department to say what
    the law is.'' Debunking more than two centuries ago, the
    delusions of executive supremacy and interpreting the law that
    are circulating in Washington today.
        Former Trump Chief of Staff John Kelly told the press that
    President Trump, quote, ``prefers the dictator approach to
    government.''
        Candidate Trump told Fox News host Sean Hannity in December
    2023, that he would be, quote, ``a dictator on day 1.''
        Just last week, the official White House X account posted a
    picture of Donald Trump wearing a crown and proclaiming, ``Long
    live the king.''
        He must've forgotten about Tom Payne, who he actually had
    the audacity to quote on inauguration day, who said that, ``In
    the autocratic societies, the king is the law, but in the free
    societies, the law is king.'' The law is king.
        We overthrew monarchy in a revolution, and now our
    Constitution explicitly bans the award of titles and nobility.
        President Trump has been hard at work removing safeguards
    against lawlessness and corruption. He's been gutting the
    career Civil Service and replacing it with an army of
    sycophants.
        He's illegally sacked 18 Inspector Generals, the people
    responsible for rooting out waste, fraud, and abuse. He's been
    slashing into independent and bipartisan agencies, charged with
    protecting the rights of workers, the integrity of elections,
    the safety of consumer products, and our bank deposits.
        He's been ordering career prosecutors to carry out unlawful
    orders in criminal cases to test whether their loyalty is to
    the Constitution or to him personally.
        He's been firing people who refuse to bend the knee,
    including staunch conservative Republicans.
        He's been threatening FBI agents for doing their jobs and
    investigating members of the violent extremist militias who
    beat cops as they mobbed the Capitol in their drive to overturn
    the 2020 election.
        He has attempted, with the stroke of a pen, to revoke
    birthright citizenship, which is enshrined in the 14th
    Amendment. He's shut down agencies created by the Congress,
    which he has no power to do.
        Now, our GOP colleagues who have a slight Majority in the
    House and the Senate have done nothing to stand up for
    Congress' powers under Article I. Instead, they've surrendered
    to this President, who is trampling the powers of Congress.
        Republican Senator Thom Tillis shrugged off Trump's power
    grab and laughed it off.

            That runs afoul of the Constitution in the strictest sense, but
            it's not uncommon for Presidents to flex a little bit on where
            they can spend and where they can stop spending.

    Despite the GOP's abdication of Congressional authority,
    there's still something that stands between Trump, Musk, and
    their dreams of tyranny--the independent judiciary--which is
    why we're watching in real time as the Republicans putting
    their loyalty to Trump and Musk over their oath to the
    Constitution, turn on the Federal court system.
        The attacks on the judiciary did not come out of nowhere.
    For decades the Federalist Society has sought to undermine
    judicial independence.
        Meanwhile, some of the same donors who fund right-wing
    candidates' political campaigns are funding Right-wing
    justices' vacations, further undermining the court's
    credibility.
        Recent statements made by President Trump go further. They
    threaten to abolish our system of checks and balances. Vice
    President Vance has posted that judges aren't allowed to
    control the Executive's legitimate power, and Elon Musk has
    repeatedly undermined the judiciary on social media, saying
    things like, Activist judges should be removed from the bench
    or there's no justice; and, no judge is greater than the
    consensus will of the people.
        Not to be outdone, President Trump posted, ``He who saves
    his country violates no law.''
        Here's the good news, despite--yes?
        Mr. Issa. Is the gentleman prepared to summarize?
        Mr. Raskin. I'm prepared to summarize, Mr. Chair.
        Mr. Issa. I appreciate that.
        Mr. Raskin. You guys have given us a lot to talk about.
        Look, over the last few days, I've seen colleagues
    introduce Articles of Impeachment against Federal judges
    because they don't like judges who actually stand up to these
    violations of the Constitution, and now we're seeing yet
    another plan to corrupt our judiciary take place.
        Let's go back, Mr. Chair, to the nonpartisan agreement that
    was broken last Congress. We have no quarrel about the need for
    new judges. We all agreed to it, but it's got to be done in a
    way that it has always been done. It's done for the next
    administration when nobody knows who its going to help or who
    it's going to hurt.
        Madison said in Federalist 47, the accumulation of all
    powers--Legislative, Executive, and Judiciary--in the same
    hands, whether of one, a few, or many, whether hereditary,
    self-appointed, or elected, may be pronounced the very
    definition of tyranny. Let's avoid that, and I yield back to
    you, Mr. Chair.
        Mr. Issa. I thank the gentleman for summarizing.
        I will note that Monroe, Madison, Jefferson, and Washington
    were all Virginians, and so in that spirit, we'll go to the
    gentleman from Virginia, Mr. Cline, first.
        Mr. Cline. Thank you, Mr. Chair, and let's talk for a
    minute about the assault on an independent judiciary--
        Mr. Issa. I'm sorry. I apologize. He has to leave, but he
    does not leave until you finish, Your Honor.
        With that, we go to our witness today, the Hon. Timothy--he
    has not. We gave our opening statement sadly.
        The Honorable Timothy Tymkovich has served as the Tenth
    Circuit Court of Appeals judge since 2003, including for 2015-
    2022. His entire seven-year term, he has served as the senior
    judge. He has served as the Chair of the Judicial Conference
    Committee on Judicial Resources, as a Member of the Judicial
    Conference Workplace Conduct Work Group, the Cybersecurity Task
    Force, and has served on the Foreign Intelligence Surveillance
    Court Review since 2023.
        We welcome the witness. I will mention to everyone that
    this is an open hearing, no FISA-related questions are
    possible. I say that just in the spirit of, we all know what
    we're not to touch it.
        With that, Your Honor, thank you very much for being here.
    I look forward to your statement more than mine. You're
    recognized.

                STATEMENT OF THE HON. TIMOTHY TYMKOVICH

        Judge Tymkovich. Thank you, Mr. Chair and Ranking Member
    Johnson. I appreciate the opportunity to sit here today and
    talk about this important bill.
        My name is Tim Tymkovich. I'm a judge on the Tenth Circuit
    Court of Appeals, appearing by designation of the Secretary of
    the Judicial Conference of the United States and on its behalf.
        Thank you for asking me to appear today to discuss the
    growing shortage of Article III judgeships and its harmful
    effect on the American public.
        I have previously served the Judicial Conference's
    Committee on Judicial Resources which has primary
    responsibility for our rigorous, independent process for
    evaluating judgeship needs.
        In that capacity, I've had the opportunity to previously
    testify before Congress in 2013 about the judiciary's judgeship
    needs. Then, the problem has only gotten worse.
        Only a few short months ago, both the House and the Senate
    passed legislation to address our severe judgeship shortage in
    an overwhelming bipartisan manner. For the first time in
    decades, legislation was presented to the President that would
    correct severe stresses on the dockets of many courts
    throughout the country.
        Unfortunately, the previous administration vetoed the bill,
    publicly citing reasons that were not consistent with the
    record and reflect the misunderstanding of the facts.
        The shortage of judges is having a profound effect on the
    American public. Citizens rely on the efficient and timely
    administration of justice.
        The shortage is causing significant delays for litigants
    seeking to resolve cases in the Federal Courts, especially
    civil cases such as copyright, trademark, patents, and contract
    disputes which may take years to get to trial.
        Over the past 20 years, the number of civil cases pending
    before--pending more than three years, rose 346 percent.
        In some of our country's busiest District Courts, the time
    between filing and disposition for a civil right trial is four
    or five years, compared to 20 years ago when the time was less
    than 22 months.
        Delays increase expenses for civil litigants and may
    increase the length of time criminal defendants are being held
    pending trial. Substantial delays erode public confidence in
    the judicial process and the timely administration of justice.
        The problem is so severe that potential litigants may be
    avoiding Federal court altogether, not having the resources or
    time to wait for their case to be heard or resolved.
        The problem cannot be addressed just by adding magistrate
    judges or hoping senior and visiting judges will lessen the
    workload and reduce the need for more judgeships.
        The Judicial Conference process for determining the
    workload needs of the courts already takes into account the
    substantial contribution that magistrate judges, senior judges,
    and visiting judges are making.
        It is the duty of the Judicial Conference to accurately,
    objectively, and fairly communicate to you the judgeship needs
    of the country. We have done so in the past, and I intend to do
    so again today in my testimony.
        I recognize that the long delay in addressing the country's
    judicial needs stem in part from the difficulty in resolving
    ever-evolving political dynamics and partisan concerns.
        These political challenges are exclusively for the
    political branches to resolve.
        My duty here is again to put on the record that the
    judiciary has a severe shortfall in judgeships, which we hope
    you will fix as soon as you can.
        As Congress recognized last year in passing the ``JUDGES
    Act,'' the need is urgent and will benefit all Americans.
        My submitted written testimony covers three main topics:

        (A)  Outlining the implications of the judiciary lacking a
    sufficient number of judges;
        (B)  explaining the rigorous objective process by which the
    Judicial Conference determines those needs; and
        (C)  enumerating the judgeship needs of the District and
    Appellate Courts.

        To summarize and conclude, the Judicial Conference has
    objectively determined the Nation's Federal Courts urgently
    need 68 new judgeships. We continue to review those needs
    objectively, and we will keep Congress apprised of them.
        We urge you to quickly enact legislation that will address
    this serious problem. Thank you.
        [The prepared statement of Judge Tymkovich follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you, Your Honor.
        As said before, I now recognize the gentleman from
    Virginia, Mr. Cline.
        Mr. Cline. Thank you, Mr. Chair.
        I appreciate you being here, Judge, and want to lend my
    support to your comments about the pressing need to address the
    problems that are existing in our judiciary, the backlogs.
        The need to fill these judgeships is so critical, and it
    was critical at the end of last year as well when--and in what
    should be said clearly is an assault on the independent
    judiciary by the men and women on the other side of the aisle,
    by encouraging their President to veto this important bill.
        This could've been done, and these judgeships could've been
    filled and the independent judiciary made that much stronger,
    but the other side decided to play politics, and it is
    unfortunate.
        I also want to ask about the impact of the last
    administration's failure to enforce the laws of this country
    with regard to our border, the border crisis that was created
    by the last administration, encouraged by those on the other
    side of the aisle, and now, finally, we have a President who is
    addressing it.
        In the meantime, in your testimony, you cite that the
    number of immigration appeals has increased from 145-611. Is
    that correct?
        Mr. Issa. The gentleman will suspend for a moment and
    pause.
        Your Honor, if you don't mind, would you rise to take the
    oath? It was left out of the opening.
        Do you solemnly swear or affirm that the testimony you're
    about to give will be the truth, the whole truth, to the best
    of your knowledge and belief?
        Judge Tymkovich. I do.
        Mr. Issa. Please be seated. Let the record reflect that His
    Honor answered in the affirmative.
        Mr. Cline. All right. Thank you, Mr. Chair.
        Mr. Issa. The clock may start again. Thank you.
        Mr. Cline. That's all right.
        I'm quoting your testimony back to you, so this should be
    an easy question. Is that correct, that the number of
    immigration appeals has increased from 145-611?
        Judge Tymkovich. Yes.
        Mr. Cline. That the increase has resulted primarily from
    appeals and decisions by the Board of Immigration Appeals with
    the largest increase occurring in the Ninth Circuit. Is that
    correct?
        Judge Tymkovich. That is correct.
        Mr. Cline. I know we have several Members from the Ninth on
    this Committee, on both sides of the Committee, who would like
    to see those judgeships filled.
        You've noted how the civil caseload has increased
    substantially. How do immigration-related cases affect the
    overburdened Federal judiciary, and how does the complexity of
    immigration cases contribute to the crisis of undermanned
    Federal Courts?
        Judge Tymkovich. Well, thank you for the question. The
    immigration docket varies throughout the circuits. As you
    noted, the Ninth Circuit has a particularly heavy number of
    immigration cases.
        I had the chance to recently be a visiting judge at the
    Ninth Circuit, and in our--in my two days there, we had three
    immigration cases. So, even at the circuit level, we're seeing
    a substantial number of cases and that docket has been steady,
    it's been growing, and I don't see any reason that this would
    discontinue.
        Mr. Cline. Regarding the complexity of immigration cases?
        Judge Tymkovich. They can be complex. It's an evolving area
    of the law. There's a number of issues that the Supreme Court
    has yet to address, but yes, they can be among the most
    complex, given the types of record and the type of legal
    framework that's involved.
        Mr. Cline. Do you think it would reduce Federal Courts'
    caseloads if all immigration-related cases were consolidated
    into a single Federal court?
        Judge Tymkovich. I haven't thought about that. It's an
    interesting concept. I'll take it back to the Judicial
    Conference as something that we might study.
        Mr. Cline. I think that when you're looking at immigration
    cases, they can be complex, but they are also fairly consistent
    when you're talking about across the country, geography, not
    as--factoring in less than the substance of the case, but I
    would think that it might lend itself to some improvements
    there.
        I appreciate you being here, appreciate your testimony, and
    with that, I'll yield back.
        Mr. Issa. Would the gentleman yield?
        Your Honor, I have just one quick question while we're in
    between. The Ranking Member is also a Member of the
    Transportation Committee. Could you briefly give us, just so we
    get an understanding, the need to put these judgeships in
    overtime, related to the available courtrooms and so on, the
    facilities needed to add 60-plus members for the court?
        Judge Tymkovich. I haven't had an opportunity to study that
    question. We work closely with the GSA in locating space for
    judges, whether in courthouses that have available space or
    nearby private facilities. That's part of the process we go in
    locating new judges even when we--
        Mr. Issa. The process doesn't begin until we authorize the
    judges? Is that correct, effectively?
        Judge Tymkovich. That's correct. That's correct.
        Mr. Issa. Being a Californian and a San Diegan, where we
    have leased space and a complex situation, isn't it true that's
    one of the inefficiencies of the court right now, that we're
    finding we're leasing space and that means you have security in
    two locations, a lot of facility-related ones that don't begin
    until we assure you that what your number is going to be in the
    future?
        Judge Tymkovich. Yes, we have a space and facilities
    commission--a Committee that addresses those types of concerns,
    and I'm sure that they'll take a look at the question that
    you've presented.
        Mr. Issa. With that, my Ranking Member, who serves on both
    Committees, Mr. Johnson.
        Mr. Johnson. Thank you, Mr. Chair. I would note that across
    the country, there are courthouses with vacant courtrooms ready
    to receive newly authorized judgeships and judges, like in the
    Northern district of Georgia, for instance, where under the
    legislation that is about to be filed, I think we get two of
    the four that we really need in the Northern district of
    Georgia, but we have room for at least three District court
    judgeships in the Richard B. Russell Federal building back
    there.
        I'm sure that there are other courthouses across the
    country that can accommodate and need new judges and
    judgeships.
        For my colleague who had to depart, who was so much
    interested in immigration cases, he didn't ask you about the 20
    Immigration Court judges that Trump and Musk just summarily
    dismissed last week.
        Nonetheless, Judge Tymkovich, I thank you for being here
    today.
        Since he took office, Donald Trump has shown open contempt
    for our Constitution, the rule of law, and for the independence
    of our Federal court system.
        So, I have a hard time understanding how we are supposed to
    sit here and cordially talk about giving this man more Federal
    judges to appoint. The blatant disregard of the
    constitutionally based doctrine of the separation of powers by
    the Trump-Musk Administration is the crisis that we should all
    be talking about, because it's not a matter of if Trump will
    challenge the court's authority. It's a matter of when and how
    far he will go.
        Again, thank you, Judge Tymkovich, for agreeing to appear
    before us. I read your testimony, and I agree that we need more
    judgeships, I've been sensitive to that need for many years.
        Our judiciary is only as good as the independence of the
    judges we appoint, and I cannot, in good conscience, advocate
    in favor of allowing this President to appoint individuals who
    have sworn fealty to him over our Constitution.
        Our Constitution's twin principles of the separation of
    powers and checks and balances has worked in tandem for the
    last 250 years to ensure that our Constitution secures
    Americans' rights to impartial justice.
        Our Nation's rule of law is grounded in the independence
    and impartiality of our courts and their power to say what the
    law is.
        Judge Tymkovich, based on your years of experience, are you
    aware of any instance in which a President of the United States
    willfully disobeyed or resisted a lawful writ, process, order,
    rule, decree, or command of a Federal court?
        Judge Tymkovich. I'm here to talk about the urgent need of
    the judiciary for additional judge--
        Mr. Johnson. Well, I understand that.
        Judge Tymkovich. --and it wouldn't be appropriate for me to
    comment on any pending cases.
        Mr. Johnson. Well, I understand, but I've been around for
    70 years, 50 of which--or 45 of which, has been as a lawyer,
    and I've never known of a President to willfully refuse to
    comply with a court order. I see it coming.
        Now, should that happen, a judge would theoretically be
    able to hold a President in contempt of court. Isn't that
    correct?
        Judge Tymkovich. We have a principle of separation of
    powers and long-standing rules in case law that addresses that,
    yes.
        Mr. Johnson. Yes, and if a President willfully failed or
    refused to comply with a court ruling, they could be held in
    contempt of court theoretically. It would be up to the U.S.
    Marshals Service, which is a part of the Justice Department, to
    be the enforcement arm for the Federal Courts. Is that correct?
        Judge Tymkovich. Your hypothetical would have to play
    itself out.
        Mr. Johnson. It would be the U.S. Marshals who fall under
    the Department of Justice who would have to carry out the
    contempt order. So, what would happen if the U.S. Marshals
    Service, under the command of the Justice Department, at the
    direction of the President, refused to carry out a court order
    of contempt? What would then be the State of our democracy?
        Judge Tymkovich. Again, I'm here on behalf of the Judicial
    Conference to talk about the shortage of judges that we have,
    and I would comment on those needs in particular.
        Mr. Johnson. Well, the American people would love to have
    heard your response to those questions, but they will get those
    responses from many commentators who are pondering that
    question, and what it would mean for our democracy should that
    take place.
        With that, I yield back.
        Mr. Issa. I thank the gentleman, and I can't answer that
    question for sure either, but I will say that famously, Teddy
    Roosevelt said he was going to send the great white fleet
    around the world, and Congress said that they couldn't afford
    it. He said, ``Great, I'm going to send them anywhere I want
    to, and you can pay to get them back.''
        This is not the first time we've had a challenge, but I
    will research that other one, too.
        We now recognize the gentleman from Wisconsin for his
    questioning, Mr. Fitzgerald.
        Mr. Fitzgerald. Thank you, Mr. Chair, and thank you, your
    Honor, for being here today.
        I wanted to just ask about a specific judge, and I think
    the reason I'm trying to frame it up this way is because it
    might give you an opportunity to just give us more information
    about a process obviously.
        For nearly the past two years, Judge Pauline Newman, a
    Reagan appointee, has been suspended from active service, given
    conflicting allegations about her competency.
        While she's in her nineties, obviously that in itself is
    probably having an effect on her, but is not the issue, nor
    certainly a basis for what has been called the stealth, quote,
    ``stealth impeachment.''
        Given her apparent indefinite suspension, the court is
    operating with what is considered an unmanned seat. You can be
    as specific, I guess, as you want or general as you can be.
        Accordingly, access to judges for entrepreneurs, veterans,
    and others, they seem to be kind of hindered, and I wonder if
    justice delayed is not justice denied.
        Can you comment on whether a Federal court can hear cases
    en banc when a judge is in the suspension penalty box, I guess
    is maybe the way to refer to it, which is certainly the case
    right now with Judge Newman?
        Judge Tymkovich. Yes, I cannot comment on that. It's a
    pending matter before that court, and its particular rules
    would govern the participation in judicial proceedings.
        Mr. Fitzgerald. Do you have any idea how widespread this
    is, where we've got judges in place that are not performing on
    a daily basis the requirements of what typically you would
    expect a sitting judge to do?
        Judge Tymkovich. I'm not aware.
        Mr. Fitzgerald. OK. OK. Chair Issa and I have introduced
    legislation requiring disclosure of certain third-party
    litigation, funding arrangements in Federal Courts.
        In October 2024, the Judicial Conference agreed to create a
    Subcommittee to study whether the conference should propose a
    Federal rule requiring the disclosures of third-party
    litigation funding, otherwise known as TPLF.
        Judge, do you have any idea, can you give us any summary or
    background on where you think that Subcommittee is, and is that
    something that eventually we could expect a decision from the
    Subcommittee specifically?
        Judge Tymkovich. Yes, I wasn't briefed on that as a part of
    my testimony this morning. However, I'm quite confident the
    conference is doing, as it's represented by the House, and it's
    studying the issue under the appropriate Committee of the
    Judicial Conference.
        Mr. Fitzgerald. Has the Committee--do they have a--I don't
    want to say predisposed, but do they have any kind of position
    right now on the way they feel about what's currently happening
    under the guise of that effort?
        Judge Tymkovich. Yes, not to my knowledge.
        Mr. Fitzgerald. OK. Very good. Thank you. I yield back.
        Mr. Issa. Would the gentleman yield?
        Mr. Fitzgerald. I do yield.
        Mr. Issa. The Ranking Member and I were just going over the
    history, and so perhaps I won't ask the judge, but I want to
    put into the record that under the last administration, I think
    His Honor is aware that the U.S. Supreme Court ruled that
    President Biden could not, in fact, forgive student loans.
        In fact, after that ruling, the President said, ``Well, I'm
    going to find another way, and I'm going to effectively do the
    same thing.'' He did. It did not get back to the Supreme Court
    before he left office.
        It does appear to this Member as though the President,
    given a clear understanding that it was Congress' ability to
    appropriate money or to forgive substantial money across the
    board, made a ruling and that those dollars currently that were
    forgiven were in clear violation of the court's intent.
        Whether or not the President would've eventually succeeded
    in circumventing the court is a different question.
        Second, the law, the statute that--a number of statutes
    that President Biden used to, on a wholesale basis, allow 10
    million-plus people to enter the country, repeatedly were ruled
    not to be right according to the court. Until his last day, the
    border remained open.
        I might say that constitutional challenges do get resolved
    at the U.S. Supreme Court, to the extent that the U.S. Supreme
    Court comes back again and again and again, if necessary,
    against an intransigent President like the last one.
        With that, it is my pleasure to recognize the gentleman
    from Maryland, the Ranking Member of the Full Committee for his
    five minutes.
        Mr. Raskin. Thank you, Mr. Chair, and forgive me for a
    quick digression, Judge.
        The case having to do with college student loans was
    decided on statutory grounds by the Supreme Court, saying that
    the President lacked statutory authority to forgive the student
    loans, and then that was the invitation taken by President
    Biden to find another statutory mechanism by which to do it. It
    was not a constitutional decision, but I'm happy to order up a
    copy of the case so we can look at it.
        Mr. Issa. No, when I said it, I said that ultimately any--
    firing people is a statutory decision, not a constitutional
    decision. The question of the gentleman from Georgia was about
    could you defy that--
        Mr. Johnson. The clock is running.
        Mr. Raskin. All right. I don't want to devour all my time
    here, but a statutory firing can be unconstitutional if due
    process is denied, or it's based on political discrimination or
    retaliation. The Supreme Court has repeatedly found that, as in
    Connick v. Myers and a whole string of authority.
        So, Judge Tymkovich, let me just start with you for a
    second. You've written eloquently about the Republican
    Guarantee Clause, and about Marbury v. Madison in there.
        Would you mind just stating for the Committee the
    importance of getting new judges based on what judicial review
    is? What is judicial review, and why is it important to have
    new judges?
        Judge Tymkovich. Yes. Thank you for the question. It really
    is kind of foundational to the request that we're making in
    supporting this type of bill.
        As was indicated, there's been no substantial increase in
    Federal judges since 1990. Since then, our caseloads increased
    by 37 percent. Yet, we've only had a handful of judges that
    were--
        Mr. Raskin. No, I got you, Your Honor. I guess, would you
    help us explain to America why it's important to have Federal
    judges on the bench? Because some people say, Well, that's just
    another person sitting around with a bunch of law clerks not
    doing anything.
        Why is it of fundamental constitutional importance for us
    to have judges on the bench?
        Judge Tymkovich. Well, of course, the Judiciary is the
    third branch of government, established by the Constitution in
    tandem with the first, Article I, the Legislative Branch;
    Article II, the Executive Branch; and Article III, the Judicial
    Branch.
        The Republican form of government, the Guarantee Clause,
    guarantees that we have a Republic, a Republican form of
    government that includes elected officials and subject to the
    legislative process, subject to the judicial process when cases
    are brought.
        Mr. Raskin. All right. Let me give you an example. We've
    got more than 75 cases now that have been brought in Federal
    Courts against the new administration for illegally seizing
    money, impounding the money that Congress has appropriated for
    particular purposes, for illegally firing workers who have
    protections under Civil Service not to be fired for political
    or for arbitrary reasons, and there have been more than 20
    temporary restraining orders and preliminary injunctions issued
    in these cases to vindicate the Constitution, under judicial
    review.
        Now, say we didn't have half of those judges. Would that be
    less justice than would be done right now?
        Judge Tymkovich. Well, certainly, we need additional judges
    to address additional work, and whether it's as a result of the
    types of challenges you were mentioning, or I think, more
    importantly, for the American people is just the day-to-day
    cases where they have the inability to get a timely resolution
    of the case. This bill--
        Mr. Raskin. These are day-to-day cases now, as you know, at
    least here in Washington, these are day-to-day cases. The
    January 6th cases, which were dominating the docket around here
    are gone after Donald Trump's pardon of more than 1,500
    insurrectionists, including violent, criminal felons who beat
    police officers in the face with confederate battle flags and
    pipes and broken furniture.
        Now, what's taken over is these cases where workers are
    trying to go and vindicate their rights from NIH, FDA, or NOAA,
    and the FBI.
        There were Federal prosecutors who were fired simply for
    having participated in the January 6th cases, and I know that
    most judges would think that is deeply problematic that
    prosecutors were being fired simply for doing their job.
        If we don't have the judges to deal with this, would we be
    in a dangerous situation with respect to an Executive Branch
    cannibal-izing all parts of the government?
        Judge Tymkovich. Well, we believe the need for new judges
    is urgent and necessary now--
        Mr. Raskin. Well, I agree with you about that, and I thank
    you for your testimony and for your hard work.
        Judge Tymkovich. Thank you.
        Mr. Issa. I thank the gentleman, and with that, we go to
    the gentleman from California, Mr. Kiley, for five minutes.
        Mr. Kiley. Thank you, Mr. Chair. I am a cosponsor of the
    JUDGES Act, your legislation, which we worked very hard to get
    passed last year, which passed the Senate and the House with
    overwhelming bipartisan support, but unfortunately, it was
    vetoed by former President Biden.
        I condemn the former President's veto in the strongest
    terms. This was done for one reason and one reason alone,
    because he lost. Is there any doubt at all that if former Vice
    President Harris had won the election that President Biden
    would have signed that legislation?
        The way that it was crafted was in order to try to shield
    the bill from these sort of crass, political, calculations,
    from the pettiness and rank partisanship that ultimately
    dictated former President Biden's decision.
        It was crafted and passed from behind a veil of ignorance.
    The Senate passed it overwhelmingly in August of last year,
    before we knew who the winner of the Presidential election
    would be.
        Not only that, but the appointment of judges was phased in
    so it wouldn't just be the next President, or now the current
    President, who would get to make all the appointments.
        So, I get asked a lot at town hall meetings, at other
    gatherings, by constituents, how do we overcome the political
    division in this country? Why do things keep getting worse and
    worse?
        This is just a perfect example, where you had a President
    who defied the bipartisan will of Congress, who defied the
    recommendation of the Judicial Conference simply because he was
    upset with the outcome of an election and didn't want to cede
    any advantage to his political opponents. I think it's
    absolutely disgraceful.
        The reality is that we have caseloads in every circuit in
    this country that have become a serious problem. At this point,
    there are 210,800 cases, civil cases, that have been pending
    for more than three years.
        I'll say that again. The number of cases that have been
    pending for more than three years is over 210,000, and of
    course there are many that have been pending for much longer.
        Now, it should be acknowledged that some of this represents
    the propensity for frivolous litigation across many different
    areas of law. It also reflects the fact that we have not, in a
    significant way, authorized new judges since 1990.
        So, what's the consequence of that, when we have this sort
    of limited access to justice? Well, imagine if we had a
    judiciary that existed on paper, but we had no judges at all.
        At that point, we'd have a Constitution, citizens would
    have rights, but there'd be no means of vindicating them, no
    means of enforcing them, so they would be essentially
    meaningless.
        Well, that same problem exists to a commensurate degree if
    we have an inadequately staffed judiciary, if we have citizens
    who have to wait years and years and years to have their cases
    resolved and heard.
        When you have these cases tied up for so long, this is just
    an enormous, dead weight loss in our economy. Protracted
    litigation doesn't result in any sort of increased productivity
    or anything like that. It's just sheer loss.
        What's more, it particularly disadvantages smaller
    litigants, let's say, a startup trying to defend its
    intellectual property. While this case is going on for years
    and years and years, they're not able to market their product,
    they'll lose market share, they're not able to get investors,
    the company might die.
        In fact, some larger litigants explicitly use that as a
    strategy to prevail in their cases.
        It's worth asking why is this the case? Why has the rest of
    the government continued to grow and grow and grow, but we
    haven't been able to keep up with the number of judges we need?
        I would surmise that perhaps it's because judges don't have
    high-powered lobbyists who are able to go around, aren't able
    to mobilize powerful interests on their behalf to expand their
    ranks in the same way that you have for other areas of
    government.
        Maybe I'd ask you that question, Judge Tymkovich. Why do
    you think this has become sort of a persistent problem where
    we're not able to maintain the number of judges that we need,
    and do you see any solutions to it that would help us overcome
    some of the political barriers?
        Judge Tymkovich. Well, like I said, I testified on this
    very issue 10 years ago, and the problem was grave then and
    it's only gotten worse over the last decade. Last year, a bill
    did get through both houses of Congress.
        So, to the extent the process works with what you up there
    do, not what we do, we're hopeful that there can be an
    opportunity to solve the problem in the judiciary. We currently
    have 20 judicial emergencies around the country. They're not
    located in one district or another.
        The bill that was proposed involves 25 different courts,
    District Courts over 15 different States across the country.
    There's a widespread need for the bill, and there's widespread
    opportunity for Members of Congress to address needs within
    their local communities as well.
        Mr. Kiley. Thank you. I yield back.
        Mr. Issa. Gentleman yields back.
        We now go to the gentlelady from California, Ms. Lofgren.
        Ms. Lofgren. Well, thank you very much, Mr. Chair, and
    thank you, Judge, for being here. It's not often that we get a
    chance to talk to a judge in these chambers, and it's very much
    appreciated. The fact that you served on the FISA Court is
    emblematic of the respect you are held by your colleagues in
    the judiciary. So, I appreciate that.
        In addition to the workload issue that you've raised, I
    think it's very important that we guard the integrity and
    independence of the Judicial Branch. Last year, the Ninth
    Circuit Judicial Council referred Joshua Kindred to the House
    for impeachment due to serious misconduct, a hostile work
    environment, inappropriate relationships with law clerks, false
    statements and the like.
        This was extraordinary since 1804 only 15 Federal judges
    have been impeached. As you know, the constitutional standard
    for impeaching a Federal judge is high, as established by
    Article II, Section 4's requirement of high crimes and
    misdemeanors, which some interpret in conjunction with the
    Article III, Section 1 standard of good behavior.
        Judge, to your knowledge, has the Judicial Conference ever
    referred to a judge for impeachment simply because of the
    disagreement over a ruling?
        Judge Tymkovich. Representative, I'm not aware of the
    Judicial Conference or its Committee on judicial conduct and
    disability in every instance. I'm reluctant to answer that
    because I don't know, but I'll get back to you with a response
    after the conclusion of the hearing.
        Ms. Lofgren. Well, I appreciate that. I'll just note that,
    in fact, to date there is no known instance of the Judicial
    Conference referring to a judge for impeachment based on a
    ruling. Every referral has been based on serious misconduct
    allegations, bribery, perjury, corruption, not legal decisions.
        Would you think it would be all right for the Congress to
    impeach a judge because they didn't like the decision he or she
    made?
        Judge Tymkovich. Well, I'm going to defer to Congress. The
    House and the Senate have the sole authority over the
    impeachment clause, and I think it's a part of the political
    process that would not be appropriate for me to comment on.
        Ms. Lofgren. Well, I'd just like to note that just last
    week, one of my colleagues on the other side of the aisle filed
    an impeachment resolution against Judge Paul Engelmayer, not
    for misconduct, but because of a ruling they disagreed with.
    Then days later, Representative Van Orden posted this on X:

            The American people gave @realDonaldTrump a mandate and no
            politician disguised as a jurist will interfere with it.

        Then over the weekend, Elon Musk demanded that--Judge
    Abelson's impeachment after he blocked an Executive Order on
    DEI. He's also--Musk has also urged Congress to purge judges
    who rule against Trump.
        I'd just like to note that not only would it be improper
    and unconstitutional to impeach judges because of their
    decisions, the proper response is to appeal those decisions. It
    has potentially the impact of intimidating judges who should be
    completely independent. I will note that for the most part the
    judiciary here in America has made their rulings, it doesn't
    matter who appointed them, based on the facts and the law, and
    that's just what we need in the third branch.
        I'll just say one other thing about the immigration issue.
    For years and years, Judge Mary Schroeder and I worked together
    trying to come up with a solution to the appeals problem in the
    Ninth Circuit but also elsewhere, and it's not just the number
    of judges, but how we structure that whole system.
        I would recommend that you take a look at a bill I
    introduced called ``Real Courts Rule of Law'' that would help
    clear up the procedures to relieve the burden on the judiciary.
    The Federal Bar Association told me it was one of, if not their
    top, priority in terms of legislation. I wouldn't ask you to
    comment on it today, but I would recommend that you take a look
    at it.
        I'll just say that in my 50 years as a member of the bar,
    I've never seen the attacks that we're seeing today on the
    independence of the judiciary, and I find it very troubling
    indeed.
        With that, Mr. Chair, I yield back.
        Mr. Issa. The gentlelady yields back. We now recognize the
    gentleman from Kentucky, Mr. Massie.
        Mr. Massie. Mr. Chair, I'd like to yield my time to the
    Chair.
        Mr. Issa. I thank the gentleman.
        Your Honor, I won't ask you to comment on maybe a former
    Majority leader in the Senate's threat against the court, even
    though I have seen those sorts of things.
        I will ask you to opine on one thing that is slightly
    outside of today's hearing, but I think it's well within your
    jurisdiction or your history and knowledge. That is, one of the
    bills that is being considered as part of today's hearing is
    H.R. 1526, the ``No Rogue Ruling Act,'' which would limit the
    decision power when made outside the D.C. Circuit.
        In your history of seeing things which affect Washington,
    DC, and the Executive Branch that are filed all over the
    country as over a hundred cases, only nine have been filed in
    the D.C. Circuit. Not from a what's right or wrong, but from an
    efficiency standpoint, from a quickness and accuracy, is it, in
    fact, appropriate that national prohibitions on the Executive
    Branch most appropriately be brought historically to the D.C.
    Circuit for handling?
        Judge Tymkovich. Mr. Chair, I don't have the authority to
    comment on that on behalf of the Judicial Conference.
    Obviously--
        Mr. Issa. As an Appellate judge, what have you seen?
        Judge Tymkovich. Well, as an Appellate judge, we do hear
    cases from administrative agencies throughout the circuits, but
    it's a more limited jurisdiction.
        I think the Conference would be happy to study the details
    of the proposed legislation and then comment, when appropriate,
    when they understand what exactly the legislation is intended
    to--
        Mr. Issa. I appreciate that. In your viewing of history,
    though, isn't it true that most commonly a decision by a
    District court judge or even the Appellate court in one circuit
    is not binding on others, but, in fact, that's what the Supreme
    Court does is find ambiguity between multiple circuits and
    settle it once and for all? That's essentially the history of
    200-plus years?
        Judge Tymkovich. Yes, that's correct.
        Mr. Issa. OK. We'll just leave it as we have a long
    history, and that's not what's happening in these national
    prohibitions.
        Back to the court. I agree with you that impeachment is a
    political decision, and so the Judicial Conference weighing in
    and recommending a political solution is not likely to be
    anything, although in your histories looking at that, the
    Judicial Conference does, in fact, review the conduct of judges
    and does offer a path to disciplining and/or disapproving of
    actions of judges in addition to their Chief Judge in each
    circuit. Isn't that true?
        Judge Tymkovich. That's correct.
        Mr. Issa. During your time, there have been a number of
    efforts by both this Supreme Court Chief Justice and others to
    strengthen that capability. Is that true?
        Judge Tymkovich. You have to give me some more specifics.
    I'm--
        Mr. Issa. Justice Roberts has done things that others
    haven't; for example, a form of admonishment of districts in
    Texas that were grabbing cases and holding them tight such that
    they had a substantial portion of the entire Nation's. You saw
    Chief Justice Roberts weigh in on a way to curtail that
    activity.
        In other words, in your history, there is some significant
    self-regulating or self-looking over the shoulder of your
    colleagues. Even though you're equals, there is some group
    effort to find and hold Members who are outside of the bans of
    normal behavior.
        Judge Tymkovich. That's correct.
        Mr. Issa. OK. I just want to make sure that we put that on
    the record because I think sometimes, we look at the exceptions
    rather than the rule. I will say that when I look at the other
    branches of government, we should all hope we regulate
    ourselves as well as the Judicial Branch.
        Back to the bill at hand, in your estimation, will the 66,
    67 judges, both temporary and permanent, depending on how we do
    it, will they, in fact, catch us up to where we were 20 years
    ago?
        Judge Tymkovich. It is a substantial and significant
    improvement from where we are. It has been a long, long time
    since we've had help in the judiciary and--
        Mr. Issa. My time is expiring, but I just want a yes or no.
    Will we, in fact, have larger caseloads even after we implement
    these than you had 20 years ago?
        Judge Tymkovich. Based on our report and survey, this would
    give a substantial improvement of where we are now. Thank you.
        Mr. Issa. Thank you. We now go to the gentlelady from North
    Carolina, Ms. Ross.
        Ms. Ross. Thank you, Mr. Chair. Thank you to our witness
    for being with us today.
        This is a very important hearing on judicial vacancies, and
    I want to discuss the very real and urgent need for additional
    Federal judges, one that directly affects the people of North
    Carolina. In the Eastern District of North Carolina, we now
    have two Members on this Committee from the Eastern District of
    North Carolina.
        We have thousands of Camp Lejeune veterans and their
    families awaiting justice. These are men and women who served
    our country honorably only to suffer from devastating illnesses
    caused by toxic water contamination. Their cases are backlogged
    in an overburdened court system that simply does not have the
    resources to deliver timely justice.
        It's unconscionable that these families have already
    endured so much and must wait even longer because there simply
    aren't enough judges in the Eastern District to hear their
    cases.
        Addressing this backlog should be our focus, and we will
    have a bill to do just that. It should be a priority of this
    Committee and every Member who claims to care about justice for
    our veterans. Let's be honest, that is not why we're here
    today.
        If this Committee was serious about addressing judicial
    shortages in an impartial manner, we would have passed the
    JUDGES Act last Congress, well before the last election, giving
    the first set of judgeships to an unknown President. Today's
    hearing isn't about solving the real problem facing our
    judicial system; it's about installing judges who will serve an
    agenda rather than uphold the law.
        My Republican colleagues, many of whom I have great respect
    for, Mr. Chair, refuse to act early on, and we even discussed
    this early on when a bipartisan solution was on the table, and
    we could already have more judges. Alas, we have American
    families, veterans, and businesses who have been waiting.
        Now, I'll turn to my questions. Judge Tymkovich, even
    though the Judiciary is an independent branch of government,
    you've relied on both the Legislative and the Executive Branch
    for certain functions. For example, the judiciary receives most
    of its Federal funding through appropriations from Congress. Is
    that correct?
        Judge Tymkovich. Correct.
        Ms. Ross. For Fiscal Year 2025, the judiciary requested an
    increase of 39.5 million in funding for the court security
    account because these funds are necessary to address
    significant increases in threats against Federal judges.
        Can you describe these increased threats and the types of
    services funded by this account?
        Judge Tymkovich. Thank you for the question. I would refer
    it to our Judicial Security Committee, which I'm not a part of.
    So, I can only comment to a large extent that there have been
    appropriations by Congress that have allowed for increased
    Judicial Security over the last five years or so, and we
    appreciate that.
        Ms. Ross. Yes. So, in fact, there were 457 cases in 2023,
    and they doubled. The Marshals Service provided that
    information.
        The Marshals Service is particularly responsible for
    providing this security and executing court orders. Isn't that
    correct?
        Judge Tymkovich. Yes.
        Ms. Ross. Are you aware that one of their duties is
    investigating these threats against Federal judges?
        Judge Tymkovich. I think that's correct, yes.
        Ms. Ross. They use the Judicial Security Fund to provide
    that kind of security, correct?
        Judge Tymkovich. Yes.
        Ms. Ross. What is the risk to judges if the Marshals
    Services--Marshals Service failed to provide this kind of
    security?
        Judge Tymkovich. If they failed to provide that type of
    security? It's a context-specific question, but it's an
    important part of the overall security of the Federal
    judiciary.
        Ms. Ross. Removing the security, which could happen under
    this administration because they've been removing security from
    our former President, people who worked in the military, could
    threaten the safety and the independence of our judicial
    system. Would you agree with that?
        Judge Tymkovich. I'm not aware of any current reductions,
    but we continue to support adequate funding for judicial
    security.
        Ms. Ross. Well, I appreciate that. I hope that you will
    support having the Marshals Service execute its duty to the
    judiciary despite any pressure from the Executive Branch.
        Thank you, Mr. Chair, and I yield back.
        Mr. Issa. I thank the gentlelady.
        We now recognize the gentlelady from Florida, Ms. Lee.
        Ms. Lee. Thank you, Mr. Chair. Welcome, Judge Tymkovich.
    Thank you for joining us today.
        During your opening statement, you referenced the
    bipartisan JUDGES Act, and the veto and message associated
    therewith from the White House and indicated that it was not
    reflective of reality and to misunderstanding the facts. I
    agree completely and believe that is such an important part of
    this hearing today.
        First, it's also important to note that the suggestion that
    this act was partisan is not rooted in fact. It was a
    bipartisan bill that would not only add additional Article III
    judges, but it would have staged the addition of those judges
    so that they crossed multiple administrations. It was an
    unnecessary and an unwarranted veto that exacerbated the burden
    on the courts and continued to inhibit access to justice.
        I come from the Middle District of Florida where, as I'm
    sure you know, is one of the most populous and the busiest
    districts anywhere in the United States of America, whether we
    go by weighted caseloads or unweighted. It is an incredibly
    busy district.
        I had the privilege early in my career of serving as a
    judicial law clerk to one of our Article III judges, later as
    an AFPD and an AUSA. I've spent much of my career inside the
    walls of the Tampa Federal Courthouse and can attest firsthand
    as to just how diligent and hardworking those judges, the
    magistrates and everyone else in that courthouse are, and how
    vital it is that we properly fund our courts as a co-equal
    independent branch of government that needs to be properly
    staffed and funded to do its job.
        You mentioned something else in your opening that I want to
    go back to, and that is the concept of speedy trial. For those
    who are not criminal practitioners, would you please elaborate
    for us, Your Honor, on the distinction between civil and
    criminal cases, what happens if criminal defendants do invoke
    their right to a speedy trial, what then happens to a judge's
    civil docket, and how does that affect access to courts?
        Judge Tymkovich. Well, as a former law clerk, the criminal
    cases take precedence over the civil cases. A defendant in our
    system of justice is entitled to statutory protections that
    ensure that the trial occurs on a speedy basis. The
    Constitution also has a due process guarantee that requires
    judges to expedite those cases within timelines that are set
    either by statute or by case law.
        If we have an inadequate number of judges in District
    Courts with particularly heavy criminal dockets--presumably,
    the Middle District of Florida, which I see it would be
    eligible for several new judgeships--it can put a lot of
    pressure on the rest of the civil docket if those criminal
    cases are taking over the time that's necessary to try them.
        Ms. Lee. That's exactly something that's very important to
    understand.
        When that happens, then civil litigants, individuals and
    businesses that have disputes that need resolution in the
    courts, their cases will get delayed. Another thing that you
    touched on is the concept that when that happens, when those
    delays are too pronounced, when they're too long, that can have
    a chilling effect on people coming to court or electing to use
    a trial as a potential resolution for their dispute.
        Would you share with us a little bit more about your view
    on why it's important that Americans who have a dispute that
    want it resolved, that would like to go to trial, have the
    ability to utilize our courts efficiently and effectively to do
    that?
        Judge Tymkovich. Every dispute in this country should be
    resolved quickly, fairly, and efficiently. The current status
    of the Federal Courts, because of our judgeship needs, is
    compromising the ability of those types of cases and those
    types of litigants to have their day in court.
        Without getting their day in court, we think that erodes
    trust in the judiciary--faith in our system. To the extent we
    have an adequate number of judges to maintain and move our
    dockets, everybody benefits from that.
        Ms. Lee. I noted in your introduction today that you take
    on a number of special responsibilities within the Judicial
    Conference, and I know many of your colleagues also do this.
    We're here today, we're talking with one of the easiest to
    access data points, which is the overwhelming number of cases
    that are assigned to every judge across America.
        Tell me why those extra responsibilities, judges who are
    willing to teach, to take on the FISA court, to work on
    cybersecurity, why are those important and how does that add to
    the workload of a judge who is really performing their job very
    well?
        Judge Tymkovich. It's an important question, and it's
    equally important to note that the survey results, the
    methodology that we use to estimate the number of judgeships
    that are needed, is not based on those extra duties.
        The numbers that you get for the basis for this legislation
    are purely based on whether court is deciding cases. Most of
    our judges do extracurricular activities, teaching, going out
    into the community, serving on Judicial Conference Committees,
    like I am. Those are all important functions for the judges,
    and I think it's important for the public at large.
        We don't get credit for those for purposes of this
    judgeship bill. Just note that's in addition to what the basis
    for this request is.
        Ms. Lee. Thank you, Mr. Chair. I'm out of time.
        Mr. Issa. Thank you.
        I now recognize my colleague from California and note that
    we, as Californians, are recipients of six out of the 21
    judgeships that would be granted in the next four years.
        Mr. Swalwell is recognized.
        Mr. Swalwell. Thank you, Mr. Issa. Thank you, Your Honor,
    for appearing today.
        As you know--and you've practiced in many different courts
    and areas and jurisdictions. A local U.S. attorney working with
    the Federal Bureau of Investigation, if they want to bring or
    proceed in an investigation, at some point court supervision
    becomes involved, meaning that an FBI agent can talk to
    witnesses, they can subpoena metadata phone records without
    going to the courts, but if they want a search warrant or if
    they want to do a wiretap or impanel a grand jury, at some
    point the courts become involved.
        What do you believe the role of the courts should be as an
    independent branch when the U.S. Attorney's Office brings a
    criminal investigation that warrants their involvement?
        Judge Tymkovich. Well, again, that's somewhat out the scope
    of my testimony this morning on our judgeship needs.
        The criminal process is well-developed, and I didn't
    personally practice as a criminal lawyer before I came on the
    bench, but that's a large part of my docket now. The system is
    quite developed as far as grand jury impaneling and subpoenaing
    records and the like. So, it's an ordinary and common part of
    our practice.
        To the extent we have heavy criminal dockets in some of the
    courts that are underserved, it's going to compromise the
    efficiency and the speed with which those types of criminal
    investigations can take place.
        Mr. Swalwell. If the court is routinely rejecting search
    warrant applications or evidence to impanel a grand jury, do
    you believe the court has an obligation or like a duty to
    report to the public that there is not just an insufficiency in
    evidence in a particular case or cases, but that the government
    continues to fail to meet its burden?
        I guess I'm just asking, once the courts get involved, if
    the courts don't see the evidence there and the government
    routinely is coming back to the courts, the court knows that
    the government doesn't have the goods to proceed, but the
    public does not know. At some point, if the government seems to
    be abusing its power, what is the mechanism for the public to
    know besides the court just saying no and the case not being
    able to proceed?
        Judge Tymkovich. I haven't studied that issue, and grand
    jury secrecy is an important part of the system. We can
    certainly take--I can go back to my colleagues and take a look
    at that. I don't know if it's been studied yet, but it might be
    worth taking a look at.
        Mr. Swalwell. Thank you. Your Honor, you agree that the
    U.S. Marshals, all 94 of them who are appointed by the
    President and confirmed by the Senate, can also unilaterally be
    removed by the President?
        Judge Tymkovich. I'm sorry. Could you repeat the question?
        Mr. Swalwell. That a U.S. Marshal may also be removed by
    the President.
        Judge Tymkovich. I'm not familiar with the management of
    the Marshals Service to that degree.
        Mr. Swalwell. Are you familiar, though, that recently in
    the D.C. District Court that U.S. Marshals were intervening and
    directing judges to expedite the release of the January 6th
    inmates whose cases had been pardoned?
        Judge Tymkovich. I'm not familiar with that.
        Mr. Swalwell. What would you think of having an independent
    protection agency for judges that is outside the appointment of
    the President? Meaning a judge of security is dependent in many
    ways on the Marshals Service who the President appoints to
    protect the judges, and if a President doesn't like a decision
    that's coming from a judge, theoretically, they could pull
    their security. We've seen this with this administration where
    former Secretary of State Pompeo and National Security Advisor
    John Bolton had their security details recently pulled by the
    President, and it was seen as being done in a punitive way.
        Do you think you could better protect judges if your
    security was more independent, similar to the structure we have
    here with the Capitol Police and its oversight?
        Judge Tymkovich. I haven't studied that. It would be
    appropriate for our Judicial Security Committee to take a look
    at that and evaluate whether that makes sense for the Federal
    judiciary.
        Mr. Swalwell. Thank you.
        Mr. Issa. Would the gentleman yield?
        Mr. Swalwell. Yes.
        Mr. Issa. Your Honor, we know you're from Colorado and
    you're representing today. If you don't mind--we'll make it
    part of the record; Mr. Swalwell and I will forward that
    question. If you don't mind making sure that this is a question
    that legitimately this Subcommittee would have of--we've
    granted additional security recently after attacks on members
    of the court, and you, as a FISA judge, recognize the
    additional threat.
        The question of whether we should look at a makeup that is
    more under the control of your branch, is a legitimate question
    that I hadn't heard before, and Mr. Swalwell and I find
    opportunities to agree on questions. If you don't mind taking
    that back, I know you have someone behind you that I know very
    well will take it back. That's why I thought I'd make the point
    that it's a truly bipartisan question.
        Judge Tymkovich. We will. Thank you.
        Mr. Issa. Thank you.
        Mr. Swalwell. Thank you. Yield back.
        Mr. Issa. We now go to the gentleman from South Carolina,
    Mr. Fry, for five minutes.
        Mr. Fry. Thank you, Mr. Chair. Thank you, Judge, for being
    here.
        I think it's remarkable. We heard this last year on the
    JUDGES Act and how short you were on personnel to adjudicate
    cases. This, as part of our jurisdiction, is an important
    dialog to have.
        Judge, during the 118th, the Senate unanimously passed, as
    you testified to, the JUDGES Act. After the election, though,
    the bill lost a lot of--in fact, all bipartisan support--most
    bipartisan support with only 29, Democrats voting in favor.
    Although the bill passed both chambers, President Biden, who
    previously was supportive of it, vetoed it.
        Judge, do you believe that the JUDGES Act was an
    appropriate solution to address our Nation's judicial shortage?
        Judge Tymkovich. Yes, I do.
        Mr. Fry. In your opening remarks, you referred to the
    Statement of Administration policy, SAP, on the JUDGES Act. SAP
    criticized the bill for, quote, ``hastily adding judges.'' You
    countered this claim stating the legislation was not hastily
    drawn up, but was the product of years of study, analysis, and
    Congressional review.
        Does this mean that you disagree with the prior
    administration's assessment? If so, can you expand on why?
        Judge Tymkovich. Well, the Judicial Conference certainly
    stands by the recommendation that we--for developing new
    judgeships. It's a very rigorous, objective, and honest
    process.
        We evaluate thousands of cases to evaluate whether a
    particular district needs a new judgeship. We look at special
    factors, like the contributions of senior judges and magistrate
    judges. So, the process that we go through is very rigorous,
    very objective, and a lot of math in there. The Committee that
    looks at this issue is called our Subcommittee on statistics.
    You have to know a little bit about math to understand that.
        It's a very rigorous, objective process, and it is not--
    like I said in my testimony, we've been presenting these types
    of surveys for 30 years. I've been heavily involved with it
    over the last 1five years, and I'm really confident that our
    process is well-designed to address the vacancy needs of the
    Federal judiciary.
        Mr. Fry. Well, knowing that--and, obviously, it sounds like
    it took years--it was a year-long or multiple year-long
    process. That information was readily supplied to the
    administration, I'm sure, on you all's behalf. Is that correct?
        Judge Tymkovich. I believe so.
        Mr. Fry. OK. So, what insight do you have to on why former
    President Biden chose to veto this bill given your work on this
    issue?
        Judge Tymkovich. I don't have any view on that.
        Mr. Fry. Well, it's pretty patently obvious that it would
    be partisan politics. Partisan motivations given--do you think
    that may have changed if Kamala Harris had won the Presidency,
    that he would have not vetoed that legislation?
        Judge Tymkovich. I don't know. That's a question for the
    administration.
        Mr. Fry. OK. All right. I think we can all read between the
    lines here. As President was previously supportive of this,
    Democrats were certainly supportive of it, and then they
    weren't within the same Congress.
        We'll move to injunctive relief in my brief time here.
    Judge, what is a preliminary injunction, and how does it differ
    from a TRO, just from a legal standpoint?
        Judge Tymkovich. Well, you're taking me back to law school.
        Mr. Fry. Let's do it.
        Judge Tymkovich. Well, a temporary restraining order is an
    emergency order that maintains the status quo during the
    pendency of a case. Preliminary injunction is an injunction
    that stays a proceeding through a trial on the merits,
    generally. There's many, many deviations and variations to that
    statement.
        Mr. Fry. What is the standard for a preliminary injunction?
        Judge Tymkovich. It requires some type of emergency relief,
    extraordinary circumstances by a party that would be concretely
    harmed.
        Mr. Fry. What about a TRO?
        Judge Tymkovich. Similar.
        Mr. Fry. What is a nationwide injunction, and how does it
    differ from a normal, ordinary preliminary injunction?
        Judge Tymkovich. Well, it's a little outside the scope of
    my testimony on judgeships. Injunctions generally bind the
    parties that are before the court. Nationwide injunctions have
    broader scope.
        Mr. Fry. What is the legal authority that would be relied
    on for issuing a nationwide injunction?
        Judge Tymkovich. It depends on the presentation of the
    parties. So, there's really no fixed loadstar to that.
        Mr. Fry. It's up to the discretion of an individual judge?
        Judge Tymkovich. It's generally discretionary--
        Mr. Fry. OK.
        Judge Tymkovich. --subject to judicial--subject to circuit
    review and Supreme Court review.
        Mr. Fry. OK. What is your assessment of the common law
    around it that it is entirely up to the judicial--
        Judge Tymkovich. I'm sorry. The what?
        Mr. Fry. The common law aspect of this, is it entirely up
    to the individual judge to make that determination on whether
    they issue a very narrow or a very broad nationwide injunction?
        Judge Tymkovich. There are actually guardrails within
    probably each circuit's case law on the scope of injunctions.
        Mr. Fry. Thank you, Mr. Chair. I see my time has expired,
    and I yield back.
        Mr. Issa. I now recognize Mr. Hunt--Mr. Gooden--sorry--for
    five minutes.
        Mr. Gooden. Yield my time to Mr. Issa.
        Mr. Issa. Thank you. I thank the gentleman.
        As we're getting a little closer to the end, there's a
    little bit of back and forth, but I want to make sure we make
    the record clear on a number of areas.
        One of them is that we have noticed the Litigation
    Transparency Act, and I know that's, again, outside the
    specifics of what you came prepared for, but I do want to ask
    you a couple of quick questions.
        Are you familiar with the Delaware case in which a litigant
    was ordered to disclose the economic beneficiary of litigation?
        Judge Tymkovich. I'm not aware of that case, Mr. Chair.
        Mr. Issa. OK. Have you had cases in which the litigant was
    acting on behalf of other funders to your explanation that you
    didn't know about?
        Judge Tymkovich. Not to my knowledge.
        Mr. Issa. Have you ever had a case in which there were
    third-party funders of litigation?
        Judge Tymkovich. I'm not sure I would know that in a
    particular case.
        Mr. Issa. OK. As a Federal judge--and I go to the old
    school that the difference between God and a Federal judge is
    God knows he's not a Federal judge. I know it always gets a
    laugh, especially from those on the bench.
        If you had a case and you chose to ask for disclosure of
    who the funders of the litigation were, on the plaintiff's side
    and, of course, on the defendant's side and if, as is the case,
    it is normal discovery and disclosure in the case of the
    defendant about whether they have insurance or some other
    mechanism to pay the damages, would you say that was within
    your current authority to balance, to ask?
        Judge Tymkovich. I haven't studied our rules that govern
    disclosure--party disclosure. We do have those within the Rules
    of Civil Procedure, jurisdiction. I'm not actually familiar
    with what the scope might be as it pertains to your question.
        Mr. Issa. Well, the scope, in a sense, is this. Currently,
    if you're the defendant, let's say in a patent case or any
    case, the plaintiff asks for and demands and gets a disclosure
    of whether you're insured, in other words, how deep your
    pockets are.
        Judge Tymkovich. Uh-huh.
        Mr. Issa. The plaintiff also gets your balance sheet, your
    profits, and all other information germane to whether or not
    you can pay if you lose, and they get that normally prior to
    winning the case--isn't that true?--as part of discovery.
        Judge Tymkovich. I think it might be part of discovery.
        Mr. Issa. The Litigation Transparency Act simply says that
    the judge has a--not a demand, but a right and a full
    expectation that they may ask for and get disclosure as to who
    the beneficiaries or the financers are of the plaintiff. In
    other words, both sides get to look into each other's pockets
    about how deep it is.
        Does that seem unreasonable to you as a man holding that--
    wearing the blindfold and holding the scale?
        Judge Tymkovich. I think it's a policy question that
    Congress can address and give us direction.
        Mr. Issa. Thank you. That's exactly the answer I needed to
    make my day.
        Back to the situation at hand. This is not a hypothetical
    question because it's a real question that we may have to deal
    with in finding a way to carve law this Congress related to
    this.
        If you had a choice of waiting four years or getting your
    judges in an order that is not ideal but, in fact, allows you
    to have judges somewhere among the 60-some judges sooner, in
    other words, if in the first four years you got judges that
    were not previously in the order of implied shortage and
    importance, would that be better than not having judges?
        Judge Tymkovich. Yes. The position of the judicial
    conference is that we need the judges urgently now as soon as
    we can get them in whatever format we can get them and whatever
    order of release that we can get them.
        Mr. Issa. OK. Suffice it to say, for purposes of us on the
    dais who are--and Members of the Senate today, the record is
    that if you get a judge somewhere--because you can move judges
    as needed in an emergency situation--that would begin to
    alleviate them, is it fair to say that some of those judges
    might end up being confirmed in California but working
    somewhere else or vice versa at least some of the time in order
    to ease court burden?
        Judge Tymkovich. That's correct.
        Mr. Issa. OK. You're not limited from doing that, so it is
    something that the court could find a way to do even though it
    would have some cost?
        Judge Tymkovich. Yes. There's a mechanism for doing that.
        As I mentioned earlier, I've sat on the Ninth Circuit as a
    visiting judge. I've sat in Oklahoma where we have an enormous
    caseload driven by the McGirt decision, which expanded Federal
    jurisdiction in that State. I've sat in Colorado and New
    Mexico. Judges--not just me, a lot of judges help out in
    emergencies.
        Mr. Issa. I might note that the Senate's major change
    between the House and Senate version was, in fact, related to
    Oklahoma and the perception of whether that was temporary or
    permanent.
        Judge Tymkovich. We appreciate that.
        Mr. Issa. That you. I'd ask unanimous consent that Mr. Hunt
    be waived onto the Committee.
        Mr. Hunt. Thank you, Mr. Chair.
        Mr. Issa. Thank you. Without objection.
        Pursuant to the rules, I now recognize myself and yield to
    Mr. Hunt.
        Mr. Hunt. Thank you, Mr. Chair.
        We tried to solve this problem when we had a Democrat in
    office, and people say that we're not bipartisan. We can be
    when we want to be.
        Last Congress, I was a proud original cosponsor to my
    colleague, Darrell Issa's bill, the JUDGES Act. The JUDGES Act
    passed the Senate unanimously and passed the House in a
    bipartisan manner. However, despite the overwhelming support
    for the bill, President Biden voted against the JUDGES Act
    after President Trump got elected. President Biden also bragged
    about ignoring the Supreme Court's ruling that he didn't agree
    with. Now, we're hearing that if President Trump ignores
    judges, we're in a constitutional crisis.
        If everyone is following along, it means that a
    constitutional crisis only occurs when Republicans ignore
    Federal judges. The Left is using activist judges to not only
    legislate from the bench, but also to encroach on the Executive
    Branch. The Left will call it simple checks and balances, but
    everyone in this room that went to law school or can even read
    a civic book knows this playbook.
        The Democrats lost the election in overwhelming fashion,
    and now they're resorting to law fair to prevent the will of
    the people from having their day. Is it justice delayed or is
    it democracy delayed?
        The same party that raided the home of President Trump and
    weaponized the DOJ against President Trump is now using the
    limited power they have to delay, delay, and delay reality.
        What the Left is experiencing isn't new. They're simply
    experiencing the five stages of grief, and unfortunately for
    them, they are stuck on Stage 1: Denial. The American people
    really need to get them to Stage 5 as fast as possible, which
    is acceptance, because that's exactly what the American people
    voted for, and that's exactly where the American people are.
        This is the year 2025, and I want to help Democrats get to
    reality. This is the reality. The duly elected President of the
    United States is Donald Trump. President Trump is a leader of
    the Executive Branch. More than 77 million Americans voted for
    this result.
        Delaying the process of this administration is democracy
    delayed. This is called acceptance. You can't deny it any
    longer. Let's not play politics with the judiciary system.
    Let's pass the JUDGES Act and create more judgeships for our
    already overwhelmed Federal judiciary.
        Everyone complains about the case backlogs, but we can fix
    it right here, right now. The American people deserve it. Do
    you know how we know that? Because the American people voted
    for it.
        With that, I yield back the remainder of my time.
        Mr. Raskin. Would the gentleman yield for a question?
        Mr. Hunt. I yield my time back to the Chair.
        Mr. Issa. Thank the gentleman.
        I'd yield to the Ranking Member for his question.
        Mr. Raskin. Thank you kindly. Just in the discussion about
    denial, it occurred to me whether the gentleman accepts that
    Joe Biden was the duly elected President from 2020. Is there an
    answer to that?
        Mr. Issa. Since, it's my time, I will acknowledge that the
    gentleman--former President from Delaware was elected properly
    under the law, and I was there on January 6th, as were you, and
    that was so noted by the House and the Senate.
        I appreciate the question. It is, in fact, something that I
    hope we can put behind us is the question of whether or not the
    Electoral College, once making a decision, is final. It was
    final in 2020 and--or 2021, and it is final in 2025.
        That's a great question, but it's not one for our witness
    here today.
        I'm going to get you out of here a minute early, Your
    Honor.
        I would say, without objection, all members will have five
    legislative days on which to submit additional written
    questions for the witness and additional materials for the
    record.
        This concludes today's hearing, and I thank our witness for
    appearing before the Committee today.
        Without objection, we stand adjourned.
        [Whereupon, at 11:50 a.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Subcommittee on Courts, Intellectual Property, Artificial
    Intelligence, and the Internet can be found at: https://
    docs.house.gov/
    Committee/Calendar/ByEvent.aspx?EventID=117919.

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