included corn, oil and wine. watch american history tv this weekend on c-span 3. the senate judiciary subcommittee on federal courts held an oversight hearing to examine the structure, size and operations of federal appeals courts and their respective circuits. a senior judge and two law professors were among those who testified at this hour and a half hearing. >> this hearing is called to order. the federal courts occupy a unique role in constitutional system of republican self-government. one of our bedrock principles of our identity is as a credo nation that governments derive their just powers from the consent of the govern. that idea translates into a pretty straightforward way into the constitution vision for the executive and legislative branches. the american people are never

two years or 740 days from choosing to rehire or fire the vast majority of the federally elected officials. at first inspection the notion that members of the federal judiciary can't be directly or easily fired by the people back home seems hard to square with this notion of popular sovereignty. to understand why this is not in fact inconsistent, we need to only look at the proceeding words in the declaration to delineate the proper purpose of our government which is to secure the alienable rights in which our creator has us all. and to establish and preserve the rule of law the framers designed in the federal judiciary an institution insulated from the ebbs and flows of public opinion, in order to exercise as the words of 79 not force or will but judgment. one of the most important responsibilities with which the constitution trusts the congress as a whole and the senate in

particular is the care and maintenance of that judiciary. that includes our role in giving our advice and when appropriate our consent to the president's lifetime nominees when appropriate on the bench. at a time when washington seems to depot out of its way to deserve disdain and the lack of trust the american people for it, the past 18 months have actually seen remarkable progress in the appointments of outstanding jurists. but our duties with regard to the judiciary are not limited to the appointment process alone. aside from constituting the supreme court the constitution leaves to congress the matter of structuring the federal judiciary. for more than two centuries congress has continued to update the federal judicial system with periodic small tweaks all to improve the administrational justice. it is in this spirit that the congress must continue to exercise our vital responsibilities including in this oversight hearing today. biannually the judicial grass of the united states, which is the

policymaking body of the federal courts creates a survey of the judgeship needs. after the most repeat survey the conference released a recommendation that congress should authorize in their view 57 new judgeships and that eight temporary district judgeships should be converted into permanent judgeships. five are circuit judges and all would be on the u.s. circuit court of appeals on the ninth circuit. i want to recognize the hard work of the judicial conference and the administrative office of the courts and to thank them for their willingness to submit written testimony to this hearing today. of course, congress has a duty to examine these recommendation and to determine whether authorizing new judgeships is in fact the best way to ensure the efficient administration of justice. chuck grassly has been a passionate advocate for

exploring alternative means. chairman grassly want today be here today but because we had a delayed start because of our vote sequence this afternoon he had to leave, but he will be submitting written questions for the record. this hearing is intended then to provide an opportunity for the members of this commitsy of jurisdiction to examine what is working and what can be improved with regard to our federal courts. before closing i'd like to acknowledge senators sullivan of alaska and daines of montana. both are invested the senate judiciary serves fairly. and i will move onto introducing our three witnesses. first, we will hear from professor brian fitzpatrick.

currently serves as a professor of law at the vanderbilt research law school. professor fitzpatrick joined vanderbilt's faculty in 2007 after serving at the fellow at nyu school of law and went onto clerk for judge oscanlen on the ninth circuit and then justice scalia on the supreme court. after his clerkships professor fitzpatrick practiced for several years in sydney austin, in washington, d.c. and served on the supreme court nominations process for senator cornyn. before earning his law degree he earned -- and next we will hear from judge dermot oscanlen, and he assumed senior status on

december 31st of 2016. his chambers are in the pioneer courthouse in portland. and judge oscanlen has participated in over 6,000 federal cases and has written hundreds of published opinions on a broad range of subjects including constitutional law, international law, securities law, administrative law and criminal law. before his appointment to the federal bench judge oscanlen was primarily engaged in private law practice and between 1969 and 1974 he served as the deputy attorney general of oregon, the public utility commissioner of oregon, and the director oregon department of environmental quality. he's the chair of the judicial division of the ava, and previously chaired its conference, it's committee on practice and it's ninth appellate practice institute. he's a familiar face around here including on the subject of the organization and reorganization of the courts. in addition to serving as a faculty member at numerous

federal appellate practice seminars for judges and attorneys including nyu's law school institute, judge oscanlen has served as associate adjunct professor where he continues to teach on the supreme court. he received his jd in 1963 from the ba law school. he's also earned an llm in 1992 and has been honored with numerous honorary degrees including in his home state. finally we'll hear from professor lorry ringhand. she has been a member of the georgia law faculty since 2008 and has a named professorship there since 2012. she's nationally known as a supreme court scholar. she's also the coauthor of

"constitutional law, a context and practices casebook," which is part of the series of casebooks dedicated. and recently received an award. her research will explore the different approaches taken to finance in the u.s. and u.k. profe professor ringhand graduated yum wisconsin law school and holds a bachelor of civil law degree awarded with distinction from the university of oxford. and before coming to the

university of georgia she served on the university of kentucky law school. if i could ask the three of you to please rise. and if you'd raise your right hand to be sworn in. do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth and nothing but the truth, so help you god? all three answered in the affirmative and we will begin with professor fitzpatrick. you have five minutes. >> thank you very much mr. chairman and to all the members of the committee. it's an honor to be here today. i want to address two issues. district court judges entering so-called nationwide or universal injunctions, and the size of the ninth circuit. both of these issues in my mind raise a similar question. how much power do we want to concentrate in the hands of a small number of lower court judges? my answer is this.

not as much power as we are concentrating right now. what is a universal injunction? it is when one district court judge enjoins a defendant from doing something not only against the plaintiff who sued but against everyone else in the country. that concentrates a lot of power in the hands of one judge. the ninth circuit we're well aware of. it is the largest federal court of appeals in american history. when two judges on a three-judge panel of the ninth circuit decide what federal law means, they are doing it for 20% of the country. 60 million people. that concentrates a lot of power in the hands of two judges. the down side to concentrating judicial power is that judicial errors become magnified. this happens in two ways. first, it's very simple. when a judge makes mistakes, when powers kuconcentrated the

mistakes affect all people. second, judges are more likely to make mistakes to begin with when we concentrate power in too few hands. consider universal injunctions. right now litigants are able to file lawsuit after lawsuit asking for a universal injunction until they find a district court judge willing to enter one. but that judge may have odd views that are outside the mainstream. indeed, plaintiffs often seek out the judges with views most predisposed to them. it is called forum shopping. yet right now the one judge who enters the universal injunction can trump all the others who refused to do so. the odd judge wins. this should not be allowed. consider the ninth circuit. the ninth circuit makes more

mistakes than other circuits. for decades it has been the circuit most reversed by the united states supreme court. i put the data on that in my written testimony. part of the reason the ninth circuit makes more mistakes is simple math. bigger circuits end up with more frequent three-judge panels led by odd judges with nonrepresentative views. the math on that is in my written testimony as well. but part of the reason is because the ninth circuit cannot correct mistakes made by its three-judge panels. the way circuits correct mistakes is through en banc rehearing. but the ninth circuit is the only circuit in american history that has gone too big to go en banc, and this means as few as six judges can control the ninth circuit.

but those six judges could be unrepresentative of the full 29. this is not just a theory. scholars have now done very good in empirical studies showing that the ninth circuit's size leaves it to get reversed by the supreme court more often. the best study is by dr. kevin scott. he's a political scientist who used to work at the administrative office of the federal courts. now he is is a chief of statistics in the department of justice. he did a study several years ago and he used regression analysis, and he found that the ninth circuit's inability to go en banc with a full court led it to get reversed ten extra times every single year by the supreme court. ten extra times a year the ninth circuit is reversed because of the limited en banc. when a circuit becomes so big it cannot even sit en banc oz a

full court to correct the mistakes of its three-judge panels that circuit has become too big. thank you very much. >> thank you, professor fitzpatrick. judge oscanlen. >> committee, i appear today in efforts to organize the ninth circuit that have been recently introduced in the congress. do not be mistaken, i love serving on my court. i deeply appreciate my relationships with all 40 of my colleagues, soon to be 46 when current vacancies are fill. and i commend my chief judge for superb administration of this gigantic circuit. and not just because he's here in this room. my chief judge is judge sydney thomas in the state of montana. but personal preferences are not paramount when dealing with the all important national policy for structuring the federal court system.

i've had the privilege of serving on the ninth circuit for 32 years now, and for more than 20 of those years i've advocated a common sense restructuring of my court. in doing so i have testified five times before this very committee and four times before its house of representatives counterpart. i do not wish to repeat today all that has been said over the past few decades. my written testimony with appendices of graphics attached is before you with substantially more detail than i will cover in this brief oral presentation. today i would simply like to highlight two points. first, the much needed restructuring of the ninth circuit should not be an act of interest group invasion rather judicial administration and the

common sense reaction to the changing circumstances of our nation. not supreme court betting averages for ideological labeling. it is entirely normal, indeed, desirable for federal courts to be restructured in response to population and docket growth. as courts grow ever larger they must sometimes divide into smaller more manageable judicial units. thus although there were only nine federal courts of appeals when the current system was created in 1891 as a result of similar restructurings over the years we now have 13 -- 12 regional circuits and one national circuit for certain areas of federal law. there could hardly be a more obvious case for the next step in this national -- natural evolution of our courts than the division of the ninth circuit. when the circuit court of appeals was formed in 1891 the

ninth circuit covered six states and less than 4% of the country's population. today our circuit has expanded to nine states and 20% of the population. and this part of the country will only keep growing. we likewise spare 20% of the annual federal appellate docket and employ only 20% of our nation's court of appeals judges. to compare the average -- of the other circuits accounts for only 7% of the nation's annual federal appellate caseload. i urge each of you to open the appendix i have provided to exhibit 7 to appreciate more tangibly such disparities. the appendix begins right after page 19 of the written testimony.

and exhibit 7 is before you. as you can see the ninth circuit covers a population almost 30 million more than the next largest circuit. and what follows from that feature is easily visible if you turn to exhibit 12. our circuit has the largest backlog in the country by almost 7,000 appeals. it is utterly inappropriate as a matter of national judicial policy to allow one circuit to grow to a size that is so vastly disproportionate from all other circuits in the federal system. it is time, and it has long been time to take the sensible step to do something about this disparity. conventional wisdom suggests that a federal court of appeals should encompass at least three states, so the ninth circuit's size would use this congress with a wealth of options to restructure the circuit.

the 1973 hireska commission explored several such options when it recommended both the fifth circuit and the current ninth circuit be split. the commission boldly but sensibly recommended that the ninth circuit be divided through california with a southern 12th circuit to be based in los angeles and a northern ninth circuit be based in san francisco. the fifth circuit promptly was split, but the ninth circuit judges resisted and congress demurred for now more than half a century. regrettably the chief judges of the ninth circuit have continuously resisted a necessary cure. our then chief judge called for another study. congress obliged by creating the so-called white commission which essentially reiterated the 1973

observations of the hureska commission and recommended in 1998 that the circuit be split into three autonomous divisional courts. yet once again our circuit leadership rejected the commission's well considered report. continued resistance to the obvious and inevitable can no longer be justified. it is jimply not defensible to allocate so much of our nation's population and caseload to but one of 12 regional circuits. although the business of deciding cases and tournamentin the law is left to us judges alone, administratively we are not immune from congressional oversight. the burden is on die hard split opponents to show why congress should not act to address the overwhelming burdens and vastly disproportionate size of the ninth circuit in a system of

supposedly coequal appellate courts. thank you, mr. chairman. >> thank you, judge. professor ringhand. >> thank you for the opportunity to speak with you today. few things are as important as the oversight of the federal courts as its role of the confirmation of supreme court justice. as you know first-hand article ii, section 2 of the u.s. constitution provides that although the presidents nominate supreme court justices they take their seats only with the advice and consent of the senate. throughout our history books presidents and senators have taken their respective responsibilities in that process seriously. since they have not always agreed about these important choices, however, confirmation controversies have existed throughout our history. our very first president, george washington, had a chief justice nominee rejected by the senate.

presidents madison, tyler, hoover, nixon and reagan likewise each had nominees rejected by votes of the senate while many other nominees were denied seats through senate inaction. in fact, disputes between the president and congress have actually become slightly less not more common over time. almost 20% of the first 142 supreme court nominees named by presidents were not confirmed by the senate. but in the 19th century that rejection rate was even higher at about one third. clearly the senate has always been an engaged participant in this process. the way the senate has exercised its oversight, however, has changed over time along with changes in our wider society. prior to the establishment of the sen ajudiciary committee the senate as a whole considered nominations in private without the benefit of public input or prior committee review. committee review was established in 1816 when this committee was established.

but meaningful public input began in 1939 when felix frankfurter became the first nominee to appear before the committee to take on restricted questions in public and under oath. and thereby ushered in the process by which we are now familiar. the advent of public nominee testimony was not surprising. american democracy in the 1900s became more robust through the passage of the 17th and 19th amendments and the emerging civil rights movement. the court legitimately sought to broaden its work. there was also more particular explanation for felix frankfurter's testimony. the senate a few years earlier had gotten itself in trouble when it had confirmed hugo black to the high court without public discussion about what the senators knew about his prior affiliation with the klan. the senate judiciary committee

at that time promised they would have a more transparent process in the future and regular public testimony is part of the fulfillment of that promise. given the role that the supreme court plays in our system of government, this type of robust senatorial oversight is not surprising. by constitutional design the court doesn't sit outside the system of checks and balances but rather through the confirmation process is embedded within it. and the confirmation hearings from the very start have provided a forum in which the senators engage nominees on substantive issues of constitutional importance. my coauthor's have been able to quantify this through an original data set and our work confirms the suns tnbstantive n of this process.

civil rights issues followed by issues involving philosophy and criminal justice issues. so over the past 80 years these topic, the particular topics have changed. they've tracked the issues that are of concern to the american public during different eras. but the key point is that the confirmation process has always been a forum to help illuminate how our constitution connects to the deepest concerns of the given era. importantly nominees have facilitated this by being willing to answer questions. contrary to the ginsberg rule, supreme court justice including justice ginsberg typically are willing to answer some questions of constitutions while avoiding answers of others. by being willing to provide opinions on subtle areas of law while being reluctant to offer

opinions on currently contested issues. so for example although nominees at times have been reluctant to opine on cases that they consider controversial, for at least 30 years they have readily affirmed the correctness of brown, rejected lochner and pleszy, agreed hat the constitution includes a basic right to privacy, agreed that gender discrimination warrants heightened review and free speech protections extend beyond political speech. more recent nominees have also affirmed the core holding of heller, that a second amendment has the right to bear arms in personal protections in ones home. what issues are are controversial and therefore which they're willing to provide opinions on have changed over time. but nominees must balance their desire to avoid answering questions with the senate's need

for sufficient information to enable it to exercise it's responsibility. the supreme court confirmation hearings are one of the ways in which we weave the court's of previously contested issues into our shared understanding. nominees provide critical information they share this common understanding of an era when they answer questions about some cases and they signal what issues they believe remain unsettled or controversial when they decline to do so. the goal of my work for the past decade has been to shed light on this value of the confirmation process because i believe that contrary to its reputation perhaps it does add tremendous value and i applaud each of you for the challenging work you do and thank you for your participation and your invitation to be here today. >> thank you for your testimony.

i will recognize senator blumenthal for his opening statement. >> us apologize. they were involved in the floor on a unanimous consent effort. and i want to at the outset ask permission that statements from two of our members both of california be included in the record. >> without objection. >> thank you, mr. chairman. their views, and i agree with them, are that a reorganization of the ninth circuit is of very questionable, if any, value it would prompt inefficiencies and object sstacles that unnecessar disruptive and massively expensive. the record from this summer's hearing on this topic makes it clear and i believe that this hearing will, if anything, just

affirm that view and you want to welcome our witnesses today and also judge sydney thomas, the chief judge of the ninth circuit, who is in the audience today. i believe he's been steadfast in defending this circuit. we're honored to have us you. i will keep my remarks short, but i do want to add how deeply troubled i am. i think that's putting it mildly by the stance and approach of our chairman in effect cutting short and depriving our access to documents that are absolutely essential for us to fairly assess the record and qualifications of judge kavanaugh to be on the united

states supreme court. in effect, he has chosen to keep from us key records that relate to judge kavanaugh's service in the bush administration as staff s secretary in the white house. no more than a traffic cop. but that view is belied by judge kavanaugh's words when he said, quote, my five and a a half years in the white house and my three years as staff secretary for president bush were the most interesting and in many ways the most instructive. the most instructive. transformative. for him means we have an obligation to look at that experience as deeply and fully as we can without reviewing

those documents. we are deprived of a key resource in doing so. i us have spoken on this already on the floor and i will not belabor those points in this form that i believe this effort to hide this nominee's record of a broader effort to limit the senate's advice and consent function. when he was going through a similar nomination process, he refused to answer basic questions about principles pretending that norms and ethical canons procolluded him from telling us anything about his views before we approve him for one of the most powerful positions in the country. president trump and his allies and his judicial normminees appr

committed to the view that the senate has a din diminished role in evaluating the nominee's records or believes. i us beg to differ. and i hope today's hearing will serve as a reminder that the the senate has a right and responsibility to thoroughly evaluate nominees before they take a lifetime position on the highest court in the land, a key check and balance to unbridled presidential power. thank you. >> thank you, senator blumenthal. we have seven members waiting to ask questions, so i will be brief as i open. could you walk us through the best arguments for and against nationwide injunctions? >> sure, so the best argument for nationwide injunctions is that sometimes there will be people who could be harmed irreparably and who are unable to join a lawsuit quickly and so the best thing for the judge to

do in those circumstances is to include those persons in the injuktive relief, even those they aose persons are not a paro the lawsuit. one example given is with regard to the president's travel ban. so some people say that that ban went into effect while some were flying on their way to the united states of america. while they were in an airplane, they could not join a lawsuit. my own view is once they land, they can join a lawsuit. i'm not sure that we want to leave the door open for judges to provide relief to people who are not in front of them because there are all kinds of down sides to that. one of those down sides is that a will the of times the people that are affected by these universal injunctions are not opposed to the policy that is being sued about. and they would actually like the

policy to continue and including them as persons in the relief, is against their interests. we have a process in place to allow courts and litigants to affect the rights of people who are absent. the judge has to sign off on criteria that protect the rights of persons. are they beinged a kwently represented by the plaintiff. are they us being represented by the lawyer of the plaintiff. are there conflicts of interest among the absent persons. that process is evaded. all of those protections we put in place to protect the rights of the absent persons are evaded when a judge includes them in the relief without signing off on those criteria.

the other arguments against the universal injunctions are the forum shopping. there's 700 district court judges in this country. you can find the one odd ball that thinks that the administration's policy should be stopped and if you go to that guy or grade schooal, then you the federal government. 300 million americans are affect ed. so we have seen people that are opposed to president obama's policies run and find one judge they think will stop those policies. we have seen people who are opposed to president trump's policies run and find a judge who will do the same thing. so this is not neutral justice. this is finding the most biassed judge and shut iting down the federal government. that, too s a matter of serious concern.

so some those are some of the ms and that's the one plus i have seen talked about in the scholarly work on this subject. >> thank you. in the interest of getting to some of the other senator who is have other obligations this afternoon, i will reserve the rest of my questions for the next round. senator blumenthal? >> thanks, mr. chairman. professor, i'd like to follow up on some of your testimony. as you may know, i asked most judicial nominees, perhaps all of them, whether they disagree with certain established pre precedents of the supreme court including board v. board of investigation and others that seem pretty well established and well accepted in our jurisprudence. these past nominees, most of them until recently, have said that they could not comment

because of some norm practice without being more specific. is there any such norm or practice orka nonof ethics that precludes them from saying whether they think brown v. board of education was correctly decided? >> no, senator. the model code of ethics that is being referenced prohibits judges from making commitments or appearing biassed in inappropriate bays. but ways. and that's a real concern that nominees have to grapple with in their testimony to avoid the appearance of inappropriate bias. but nominees historically have managed that obligation and balanced it with their responding duty to provide information to the senate

enabling it to fulfill its constitutional function of providing advice and ultimately consent to the nomination. so what nominees have tended to do is to draw the line so as to give firm answers to provide responses to questions that they believe are well settled. and to affirm that even though we used to argue about some of these matter, we don't argue about them anymore. they have become part of our constitutional consensus. and then to try to avoidancing questions only about those issues that the nominee believes are currently controversial. >> so there's no ethic that precludes comment, per se, on whether a nominee agrees or disagrees with a well-established precedent? >> correct.

>> is there any reason that nominees should object to providing documents that relate to their past government service? >> that is not an issue i have looked at. i can say just having spent a great deal of time are reviewing the transcripts, my recollection is that nominees have spoken to documents that were related to their prior service in government offices. >> and that was true of justices kagan and ginsberg when they were nominated? >> i believe justices kagan and alito and perhaps thomas referenced documents? >> all had previous government service and documents were reviewed by this panel and the united states senate before any us votes were taken.

you're nodding so i take that as -- >> again, i haven't et reviewed -- i haven't studied that in great deal, but that's my recollection from reviewing the transcripts. >> my understanding is that in the past, the committee's document request generally had been pretty bipartisan, whatever the partisan break down of the committee. its members have come together to demand information that some or all thought was relevant. if i'm wrong about that supposition, i suspect you would know about it or you would have seen it in the transcripts and records of the confirmation hearings you have reviewed. from your knowledge of these nomination hearings, is there any indication that the chairman in the past has refused even to request documents when the mi r minority believed that those documents were necessary?

>> not that i recall seeing, senator. >> thank you. in the interest of our time for our colleague, i, too, will defer any questions. >> senator kennedy? >> professor, you clerked on the ninth circuit? >> i did. >> if one more to start design ing from scratch a united states circuit court of appeal, would the ninth circuit today look like it was something that that person designed on purpose? >> absolutely not. we know that because every time another circuit court has gotten close to the size of the ninth sur kit, congress has broken it up. it's the fist time we allowed it to get as big as this one.

>> it's my understanding the ninth circuit can't even meet? >> that's correct. it would be very hard to put 29 judges on one bench. so they don't do it. >> isn't that unfair will litigants? >> i think it is not desirable because you can have some nonrepresentative judges make up the majority of the 11-judge panel. i remember one time when i was a law clerk we had a hearing in a case where the 11 judges were 10 democrat appointees and 1 republican. that was not representative of the ninth circuit. >> what percentage of the ninth circuit's opinions are reversed by the united states supreme court? >> it's a small percentage because the supreme court takes very few cases every year. for every 1,000 appeals that the ninth circuit decides, 2.5 of them are reversed.

but that is still 50% higher than the next most reversed circuit. it's almost three times more often than the least reversed circuits. it's been that way for decades. >> other than just pure politics, what are the arguments against splitting the ninth circuit as the fifth circuit was split? >> the only one that i think has any appeal in my mind is it will probably cost more money to set up two circuit headquarters rather than just keep the one. >> trust me, that doesn't seem to matter around here. judge, when you joined the ninth scircuit, how many members were there? >> there were 28. >> and there are how many now? >> 29. >> how do you function with 29 judges? i clerked on the old fifth circuit and i don't remember how many judges there were, but there weren't nearly as many as

there are today on the ninth circuit and it was almost unwheeleding then. how do you function? >> we function in panels of three. in my opening remarks i commended our chief and the staff of our court for managing this huge operation, but we managed to do and i us think rather effectively given the size that we have inherited. but as the professor has pointed out, we only hear in bank cases not that we couldn't. we do have two courtrooms. that have 29 seats. it's three-tiered courtrooms with 29 seats for 29 judges. but they have never been used for a full court in bank because we have never had a full court.

theoretically, we can. but it has never been done. and i gather when the old fifth sur kit had a matter somewhere in the late '70s, the judges discovered that with 23 judges trying to hear the same case at the same time, they just decided the time had come to split into two smaller circuits. >> what could possibly be the objection of fair minded person to splitting the ninth scircuit as we split the fifth sir kitsch? >> as a fair minded person hopefully myself, the best

argument for keeping the ninth circuit the way it is is we make it work. that would be our obligation in any game case. >> that's not the issue. the issue is whether it would work better. >> would it be more consistent with the overall structure? my strongest argument is that circuits split over time, the tenth was carved out of the eighth in 1929. the 11th was carved out of the 5th in 1981. the d.c. circuit was formerly a separate circuit in 1948. this is just the normal evolution of courts as they realize the populations have shifted. when we were first created, we only had 4% of the population. now we have 20% of the population whereas the average size circuit has 7% of the

population. >> thank you, mr. chairman. >> senator? >> thank you, mr. chairman. i'm not sure why we're having this hearing today. with respect to the th circuit split, it's nearly identical to a field harg that senator flake held a year ago in arizona where a judge submitted almost the same testimony word for word. nothing has changed since then except maybe that judges have continued to make decisions that this president doesn't like. he wasn't happy when judge in hawaii ruled against his muslim ban and no happier recently when judge sabro by us a republican president began to hold this administration's feet to the fire about reuniting the families that the president so unnecessarily and cruelly separated at the border. all three topics today, the split, nationwide unjunctions and narrowing the jurisdiction of article 1 appellate courts are just political reactions to

the role that the federal courts have been playing in response to the president's disregard for the constitution. and i say thank goodness that our courts are still independent. so i believe there are better ways for this committee to spend its time. we're here today and have been able to hear from the judge and i found the testimony that sydney thomas gave in rebuttal last year to be thorough and i would ask unanimous consent that judge thomas' testimony in the hearing that i referred to be included in the record. >> without objection. >> thank you. i just want to ask. i was kind of surprise d when yu noted that you were troubled by a panel with more democrat you cannily appointed judges than

republican, which seems to indicate that you think that judges are exhibiting political tendencies. i think is that really how you feel? somehow the judges should be evenly split between those that are nominated by republican presidents and those nominated by democratic presidents? >> no, senator, the point of that example was just to exhibit how the 11 judges could be unrepresentative of the full court. >> you gave us an example. i'm represented by saying there were more democratically nominated judges than there were republican nominated judges. i i thought judges were supposed to be politically apolitical. as i noted the district judge in california appointed by president bush is the one that is holding this administration's feet to the fire over the issue of the separation of children

from their parents. so i us think the fact that if somebody is nominated by a republican or democrat should have nothing to do with the ability of that judge to be fair. and that is the reason that we have advice and consent by the senate. and i wanted to ask the professor, i think you have been watching what's happening in this committee, particularly with reference with the gorsuch hearings and about to have on judge kavanaugh. they constantly -- the district court judges come and cite the ginsberg rule. which you can explain briefly what they think the ginsberg rule is and why they don't respond to questions that reveal judicial philosophy or how they would approach cases?

>> yes, senator. the ginsberg rule is, as i mentioned in my opening testimony, is rather poorly named. it has come to be a shorthand way of capturing the idea that nominees should not answer questions on the grounds that they need to avoid making precommitments or having an appearance of bias. it has been used in that shortland way. what my co-author and i did was look ed at the responsiveness o nominees over time by looking at two distinct types of answers that normminees give. we looked at situations where nominees gave firm answers where they said in the current tense,

i agree or disagree with this issue. and we compared that to the rate at which the nominee refused to answer on these types of privileged ground and. developed a responsive raush owe that looked at both of those things. both how often a nominee refuses to answer, but how often they do. and what we saw was that justice ginsberg refused to answer a fair number of questions, but had a high rate of responsiveness. she did answer a lot of questions. while as justice gorsuch in his recent hearing had one of the lower responsiveness rates that we have seen b. >> thank you. i just want to ask mr. chairman if i could put into the record opposition of judges in hawaii. they have submitted a letter that i would like to have in opposition. >> without objection. >> thank you. >> senator tillis?

>> i appreciate you having this hearing. i wasn't at the field hearing and i think this is a very important topic. it was said if we were to split the ninth scircuit, it could maybe lead to inefficiencies. but i think that a sir kill kitsch has a higher than average backlog, there's something inherently wrong there in terms of trying to draw the backlog down. would you have a comment o on that? >> well, it goes without say using that smaller units, first of all, are more culturally cohesive. they function in a closer working relationship. they have a smaller number of cases for which they are responsible. the problem that i see with the

ninth circuit is simply it's out of sync with the rest of the circuits in the country. it's out of sync because of population. it's out of sync because of the case load. it's out of sync because of the backlog. those are the elements that i think are most pressing. >> so i think you mentioned an inkres thoo. population. it just seems like with any other organization, we have to go back and look. people would have different motivations for breaking up the ninth scircuit or reorganizing it. i think it could be said that all of the circuits could be looked at to determine whether or not we're returning as efficiently as possible. i know the the discussion is more about the ninth circuit, but the whole of the circuit court system has never been l k looked at to try to get the

numbers down so we're getting consistent outcomes throughout the country. do you agree with that? >> yes, i do. don't forget that the commission of 1973 did a very thorough study supported with academic input and came up with the recommendation that the two largest circuits at that time be split. the fifth circuit accepted the recommendation. the ninth circuit resisted. and that's where we are today. as far as i see the situation, it's just a matter -- it's inevitable that a circuit of this size et eventually will be restructured. when that happens, maybe hard to predict. but it has to happen at some point. >> professor fitzpatrick commented on this and n response to a couple questions and in his opening testimony, i us would be interested in your opinion, judge, on these nationwide

injunctions. i think justice thomas has weighed in making the same point that the professor did about one judge decides for 600 others. it seems to me that it really is -- we got 535 people here that are kind of in the business of implementing laws. it does seem that we have almost a legislative function based on just where a district court judge wants to go. what are your thoughts object this trend over time? there's some that i'm happy that somebody picked a district court judge that went away that i us would like to go during the obama administration. now you're seeing similar outcomes, different rereaction on my part, with the trump administration. i think beth of them are wrong though. how do you feel about? >> i would love to talk to you

about it. but that issue is -- >> i had to ask. but the last comment that i want to make is we have had some discussion about the supreme court nominee before us and the requirement that we should be able to provide a realistic solution to the other requests made. and i believe that the chair has. but it's kind of difficult for me to understand the motives of some who are requesting the documents when they make statements already. they say we need the documents to judge the nominee. but we have people quoting scripture saying you're either complicit and evil or contributing to the wrong or fighting against it. we have a nominee on this committee that said whoever was nominated would bring forth the

constitution of the united states and within 24 hours said that kavanaugh would be his worst nightmare. so i think we have to figure out a way us to where we can move forward through this process. i us think the nomination's confirmation process is very important. one of the most enjoyable thinks i do on this in my job is to go to these hearings and hear both sides of the argument. but i also think us we need to get to a better place in trying to understand people's motives for asking for information when they made a decision on the nominee before they read the first page. thank you, mr. chair. >> thank you, senator. citing the grassley rule, i will make a brief comment. i know that senator had to leave. this hearing is is an oversight

hearing on the report of the judicial conference. that conference recommended 57 new judgeships, 5 of them circuit, all 5 in the 9th sir quit kitsch because of the case load and the backlog. it's about the report of the judicial conference about were justices not being administered and that happens to point to the ninth circuit. >> thank you, mr. chairman. i'm glad you're holding this hearing. i'd like to welcome all the witnesses. good to see you, professor. your honor, good to see you. i don't know ms. ringhand, but welcome. let me start with you professor, fitzpatrick. this idea that a single district judge could issue an injunction that would cover the whole country and everybody in it strikes me as inconsistent with the individualized showing that a plaintiff seeking an

injunction would have to make. irreparable harm, no adequate remedy at law and it strikes me it's more like judicial policymaking as opposed to a case by case determination of the laws that apply to the facts in a given case presented in court. if there's one thing that i think has done more damage o to the judiciary and causes the acrimony associated with judicial confirmation hearing, it's the perception that judges are not deciding a case base d n the facts the law in front of them, but they are policymakers who don't run for election. so when we get a chance to a confirmation to ask them all these questions and rough them up and make outrageous statements like senator tillis mentioned, that's what contributes to the acrimony and polarization of the country when

it comes to nominations. but forget my editorial comme s comments. i'm really interested in the nationwide injunction. isn't it inconsistent with those legal requirements and proceed yurl requirements that normally would apply to an individual showing by a party before the court? >> i couldn't agree with you more, senator. there's a very good argument that article 3 of the constitution prohibits district court judges from entering these injunctions. article 3 requires a plaintiff to et show standing, there's a case or controversy. the plaintiff has to show that he or she has been injured and the relief that the plaintiff is requesting must redress the plaintiff's injury. well, these absent people have not shown they have been injured so what authority does the judge have to include them in the relief to redress an injury they may or may not have? so there's an argument that article iii prohibit this is kind of relief being entered.

so i think you're absolutely right. >> what will it take things to change? will the supreme court have to grant writ and how could it be presented for a decision? >> i think the supreme court could decide that this goes beyond the article iii power. i believe that was teed up in one of the travel ban cases and the court did not decide that issue, although justice thomas did write a separate opinion that went into that. i think the congress could probably do something about it. you could probably pass a statute that says district court judges do not have jurisdiction to enter such relief. you have power over the jurisdiction of the district courts. and i think you could probably enact a statute that takes care of this as well. >> i us think that would be a very good idea. something et we should work on. your honor, let me ask you a little bit about the way that the federal practice operates.

i noticed looking at the case load distribution for all the circuit courts and it ranges from an annual basis from 1100 roughly for the d.c. circuit can to a whopping 12,000 for the ninth circuit. as i understand the law, the chief justice can assign a judge to sit on another court. in other words a judge from the fifth circuit. >> yes, as a matter of fact, we have a very high number of -- >> turn your microphone on please. >> i objebelieve it's on. is it on? yes, we have a very large number of visiting judges because of our case load. they can come not only from

other circuit, but quite a few are district judges who are invited to help us out with our heavy case load. >> if we're really concerned about access to justice and the consumer, the citizens who go before the court, why wouldn't congress go in and try to reallocate the number of judgeships to deal with the case load that the different courts are experiencing. >> there's a a little precedent for that, i suppose. the et question was asked how many judges were on the court when i came on.

there were 28. the 29th position was created by the transfer of a seat on the d.c. circuit. by congress a few years ago. >> i remember. and i know my time has run out. as we consider some of the legislation to reorganize the circuits that we really ought to look at ways to equalize or establish some parody of case load for judges. i remember when the d.c. circuit was essentially packed with additional judges using the nuclear option, when in fact, they had the lowest case load in the country of any circuit court. that doesn't serve the public's

interest. that was designed to achieve a desired policy outcome by concentrating by stacking really. that court with democratic appointed nominees. i thank the witnesses for being here. >> thank you. >> thank you, senator cornyn. exhibit 12 from the judge speaks directly to this. they have a backlog of 12,000 cases. second most in the country. the average is barely 2,000. and the d.c. sir skcircuit is t least. senator cruz? >> thank you, mr. chairman. let me start by echoing the remarks of my colleague from texas about universal injunctions and to note in particular professor fitzpatrick, as you referenced, that justice thomas in the travel ban case wrote a concurrence there that was a a very important opinion. i think as a result of justice thomas' opinion, i would fully

expect competent lawyers for litigants dealing with injunctive relief and plaintiffs saeking universal injunctions to raise those issues. and i fully expect that the lower courts and courts of appeals and the supreme court will have to confront that question. but i think justice thomas' opinion right ly focuses on a district judge engaging in nationwide policymaking rather than simply adjudicating a case in controversy between litigants before that judge. let's shift as we have been for most of this hearing to the ninth circuit. professor fitzpatrick has been discussed in some length that the ninth circuit accounts for nearly a third of all pending appeals. and it takes an average of 13 months in the ninth circuit to decide a case, which is the

longest of any circuit and almost five months more than the national median. so what extent do you attribute this backlog and the delay in decisions in the ninth circuit to the very large size of the ninth circuit. >> i think there's a direct correlation. and i think if you even look more broadly around the country, you'll see the biggest circuits tend to have the biggest backlogs. it's just a matter of administrative difficulty to handle that many cases. and part of the difficulty comes from the fact you've got so many three-judge panels on the ninth circuit with so many cases that half of the job is keeping up with what the other panels are doing. and it's very difficult to do that and the ninth scircuit end up with a lot of intracircuit splits, when different panels had decided the same question

differently. and so that leads to a whole bunch of additional litigation to figure out which panel is the one that should be followed and which shouldn't be followed. i just think it's pretty obvious that when you have that many people running around, it's just hard to keep track of everyone. >> that goes right to the heart of the purpose of the court system to ensure uniformity of rules of law that people can know and plan and behave accordingly. judge, you served on the ninth circuit a long time. as a practical matter, what challenges are raised by its size and in your judgment, how would it operate better if it were a size more commensurate with the other circuits? >> well, the biggest problem on that issue is the state of california being such a single

center. state of california accounts for 70% of all the cases. one state accounts for 70% of all the cases of nine states. and the i suppose to answer your question, the problem is best highlighted by what the professor said. in any given month, we would have nine separate panels sitting together. if you can imagine that. nine three-judge panels sitting. one panel in honolulu, four panels let's say in pasadena, two or three in san francisco, one in portland, one in seattle and one in anchorage. we really tried to make it work. but when you have that many panels sitting at the same time, sometimes there are issues that

are on different panels which are really the same issue. and the results can be inconsistent. these are what we call intracircuit conflicts. the national system is built to et resolve intercircuit conflicts because it's quite possible that the succeed sir quit could come up with a different response than then tnt circuit on a particular issue. but that's not something that should be allowed to happen within the circuit. but because of our size, that happens regretfully too often. we do our best to try to deal with it by calling cases in bank. sometimes they don't get enough judges who agree to take it and the intercircuit conflict continues. that would be an important aspect. >> and one final question.

there's been some discussion that this issue of dividing the ninth circuit driven by some of the recent decisions. they have a well deserved reputation of being far to the left. there was a a running joke there was a macrofor drafting an opinion that would automatically. pop late the opinion with the words the decision below was issued by the ninth circuit accordingly we reversed. and the reason for that joke is the frequency with which that was, the case. and in fact, the frequency with was the ninth circuit was reversed unanimously. us would note one of the greater predictors is a judge dissent, which often was a coal mine.

but my question, is there any reason why breaking up the ninth circuit can should be a partisan issue? for those on the democratic side of the aisle who may be fans of the decisions of the liberal judges on the ninth circuit, nobody is talking about remove ing them from the bench or losing the ability to adjudicate cases. we're talking about is there any reason this has to be a partisan divide? >> senator, i remember that macrovery well. it was control n on my computer. i think the only reason not to split the ninth circuit is partisan. we have been talking about it for 40 years well before there were any cases against the trump administration. every time another circuit has gotten this big, it's been split. i think the only reason we haven't split this one is some members of this body want to

keep the democratic majority of the ninth circuit exercising its power over the biggest portion of the country as possible. so i think all of the intellectual fair minded reasons are on the side of splitting it. the only reason not to is partisan. >> thank you. >> now to a brief second round. i begin with you proponents of specialized courts argue that the expertise in particular subject matter better equips to reach the right decisions in cases in which there's an imbalanced and sfus indication in resources between the parties. nevertheless, some opponents of specialized circuits argue that courts are subject to some of the same forces as agency capture, in which repeat players are at an advantage before the court. unbalanced which side has the better claim and i'm curious to hear how you'd apply this analysis to the circuits of

agency action. do you think the specialization and administrative law better to rule out misbehavior or the case that the court is prone to be too differential to agencies. >> well, senator, what i would say is i don't doubt if you do the same thing over and over and over again you become better acquainted with what you're doing. so i suspect that the d.c. circuit is maybe a bit quicker on min straugtive law than other circuits. i suspect that the judges on the federal sir quit know a lot of patent law because they hear those cases more often. but there's a downside. the downside is you're putting all your eggs in one basket. all the patent cases are going to the federal circuit. god forbid it makes a mist take. then those judges have a lot of power. one of the hallmarks of our

federal judiciary is the circuits can learn from one another by considering the same issues in different places. and then when the supreme court has to get involved, the supreme court has in front of it a numb of different takes on the same question. we think this improves the supreme court's decision making ability. there's a lot of diversity of opinion that it can draw from. when we put all the cases in one court of appeals, we're missing out on the percolation. when i was at the court, that's what we would call it. we'd say, there's only two circuits that weighed in on this issue. et we should wait before we take the case for more courts to weigh in. we should wait for more percolation. and so i think we miss out on all the learning. that's a hallmark of really the common law process of different courts considering different issues and then hopefully consensus builds towards the best answer.

when we put all our leggs in on bass et ket, we miss out. so even if we get more expertise developing in a specialized court, i'm not sure it's worth the risk of putting our eggs in one basket and making mistakes because we're not learning from each other. >> if we were going to catalog all the arguments made today, there's the representative argument that professor fits pat ruc made that 6 of 11 is not representative of 29. i think the intracircuit split argument and litigation that may follow from that is a compelling argument. you have made the argument about even though there are courts in san francisco and pasadena that could seek 29 judges, it's particularly cumbersome way to administer justice. you made another point i want to ask you to unpack a little bit. you said something about the collegiatety in a circuit court being affected in different ways if you had a dozen versus 29.

why does that matter? >> as a matter of fact, we have 40 today. when the vacancies are filled, we'll have 46. and not surprisingly, the whole idea of getting to know each one of your 46 colleagues in terms of understanding that person's jurisprudence, that person's approach to deciding cases is almost impossible. we do our best. we have quarterly court meetings, but in terms of our assignments, typically, we sit on eight panels, four days, every year. so you're only at the most sitting with 24 other judges excludeing -- including yourself. which means that you're not in any contact at all except in the

rare case when you happen to be called for a rehearing. that is done on a random basis us. the chief is on every reheari e picki ining names out of a cage. >> senator blumenthal? >> thank you, mr. chairman. judge, first of all, i want to say something i should have said at the very outset, which is that i admire tremendously your service more than three decades on the court as well as your service before that to the state of oregon and your service in our united states military. and also i'm in awe of your family, eight children. >> thank you. >> i'm in awe mainly of your wife, i must say. >> thank you.

>> so i ask these requesquestioh great respect. first of all, i note that on page eight of your testimony you say that no matter what metric one uses, and you go on, i note that among the metrics you do not mention, unless i missed it, the reversal rate in the united states supreme court. i would think that's not really a metric of whether a circuit court is functioning well. >> i agree with you on that, senator. part of my focus in my oral presentation was to emphasize that that's one of the issues, plus the partisan side of things, that really should be excluded from an intelligent discussion about the judicial administrative issue. >> i agree. and let me ask you to follow a

broader issue that senator cornyn raised. there are despaisparities betwe your court and other courts, but also between those courts in terms of case load, backlog. if we follow the logic of your testimony, it really leads to a complete reorganization of the federal branch, doesn't it? >> well, over the years, we have dealt with this simply by adding judgeships. that's been the tool that's been used. it's an inprecise tool. sometimes population explodes faster than the mechanics of reviewing judicial administration can follow. not inclined to say it calls for

a total reorganization. i think that it would be appropriate as the commission was assigned to look at 1973 to look at the two largest circuits and decide what should be done. perhaps another ten years, there will be another study commission that will look at some other phase. be but justice vanderbilt of the supreme court of new jersey made that famous statement saying that judicial administration is no sport for the short winded. >> the logic if we're measuring, if we apply those metrics, maybe not to an overall complete reorganization, but to other circuits as well and if we're going to do one, why not do

another. >> in the sense, you have done that with the d.c. circuit. it was observed quite properly if i may say that the d.c. circuit had more judges than was necessary and it was decide d t take one of those judges and transfer it judgeships, transfer it to the ninth circuit. >> let me ask you. and i just want to say i have said it before for the record that i think when the history of this era is written. the heroes will be our independent judiciary and our free press. not necessarily anybody in this body, but they are our democracy in this very difficult and challenging era. and so i think the independence of our judiciary is critically important. and my view is that the

political branches can always be critical of our judiciary, but they ought to do it with the kind of respect for that independence and for the fairness and objectivity of our judiciary that's appropriate to encourage judges to look at the facts and the law regardless of partisan divides. would you agree? >> i think in general, yes. >> and i have one last question for professor ringhand. if a nominee refuses to answer what a senator believes are valid questions, what would you recommend or what do you think a senator should do?

>> normminees make choices in ts process about which questions they are going to respond to and thwhich ones they aren't. and at the end of that process a senator feels that she hasn't gotten the information that is important to her constituents or necessary for her to provide her constitution to fulfill her constitutional duty to provide informed consent to the nomination, then i think she can and perhaps should vote no. >> senators have done so in the past for that reason, correct? >> senators certainly have done so. >> thank you. thank you, mr. chairman. >> thank you. senator lee? >> thank you to all of you for being here. >> you can watch all of this hearing online at c-span.org. we're going to leave this and take you live to outside the u.s. supreme court protesters including organizations likhe