[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
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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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