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>> 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? for example, those courts that have less cases per judge, maybe take some of those judging and assign them to other circuits or somehow otherwise reorganize it, by case load. does that make -- >> well, there is a little precedent for that, i suppose. the 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 dc

circuit, which has, and still has, a very relatively small number of cases per judge to our court. that was a decision made by congress a few years ago. i can't pin it down exactly. within the last ten years. >> i remember. and i know my time has run out but let me just say, mr. chairman, 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. because i remember when the dc 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 interests. that was just designed purely to achieve a desired policy outcome by concentrating, by stacking, really, that court with democrat

appointed nominees. i thank the witnesses for being here. >> thank you, senator, cornyn. and just to underscore your last point, exhibit 12 from judge e o'scanlain speaks exactly to this, the average backlog is barely 2,000 and the dc circuit is the least at right around 1,000. senator cruz? >> thank you, mr. chairman. let me start by echoing the remarks of my colleague, the senior senator from texas, about universal injunctions and to note in particular, professor fitzpatrick, as you referenced, that justice thomas and the so-called travel ban case, wrote a concurrence there, that i think was a very important opinion and i think as a result of justice thomas' opinion, i would fully expect competent lawyers for litigants dealing with injunctive relief and dealing with plaintiffs seeking universal injunctions, to raise

those issues, and i fully expect that the lower courts and the courts of appeals and ultimately the supreme court will have to confront that question. but i think ultimately justice thomas' opinion rightly focuses on the impropriety of a district judge engaging in nationwide policy making rather than simplied aout adjudicating a case before the judge. let's shift, as we have for most of this hearing, to the ninth circuit. professor fitzpatrick, it has been discussed at some length that the ninth circuit account force 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 medium. to what extent do you attribute this back backlog and the delay

in decisions in the ninth circuit to the very large size of the ninth circuit? >> well, i think there is a direct correlation. and i think if you even look more broadly around the country, you will see the biggest circuits tend to have the biggest backlogs. it is 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 is very difficult to do that, and the ninth circuit ends up with what we call intra-circuit splits, where different panels of the ninth circuit 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 one shouldn't be followed. and so i just think it is pretty

obvious, that when you have that many people running around, it is hard to keep track of everyone. >> of course that goes right to the heart of the circuit court system to ensure uniformity of rules of law that people can know and plan and behave accordingly. judge o'scanlain, 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. the state of california accounts for 70% of all the cases. one state accounts for 70% of all of the cases of nine states.

and i suppose, the direct answer to your question, the problem is best highlighted by what professor fitzpatrick said. intra-circuit conflicts are the biggest problem. 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 try 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 intra-circuit conflicts.

the national system is built to resolve inter-circuit conflicts. because it is quite possible that the second circuit would come up with a different response than let's say the tenth circuit on a particular issue, but that is not something that should be allowed to happen within a circuit. but because of our size, that happens regretfully, it happens 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 en banc, and the inter-circuit, the intra-circuit conflict continues. but that would be a very important aspect. >> and one final question, professor fitzpatrick, there have been some discussion that this issue of dividing the ninth circuit is driven by some of the recent decisions, either by district courts 0 or the ninth

circuits, that have ruled against the trump nation. n -- administration. the ninth circuit has for a long time have had a well-deserved reputation of being far to the left, and the most reversed circuit indeed, i remember back in the mid 'night, when i was clerking at the supreme court there was a running joke that there was a macro in word perfect that would automatically draft the words the issue by the ninth circuit below we reverse. and the reason for that joke was the frequency that was in fact, the case and in fact, the frequency for which the ninth circuit was reversed unanimous limit and i would note one of greater predictors of the reversal was a judge o'scanlain's descent, which is a canary in a coal mine. is there any reason to break up

the ninth circuit that could be a partisan issue, for those on the democratic side of the aisle who could be fans of the more liberal decisions on the ninth circuit, nobody is talking about removing them from the bench or the ability to adjudicate cases or anything else. is there any reason this has to be a partisan divide? >> senator, i remember that macro very well, it was control n on my computer. but senator, 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 has been split. i think the only reason we haven't split this one is because 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. >> thank you, senator. we will go now to a brief second round. professor fitzpatrick, i would begin with you. proponents of specialized courts often argue that specialized courts expertise in particular subject matter better equips them to reach the right decisions especially in cases in which there is an imbalance in sophistication and resources between the parties. nevertheless, some opponents of specialized circuits argue that specialized courts are actually subject to some of the same forces as the phenomenon of agency capture, in which sophisticated repeat players earn an unwarranted advantage before the court. unbalance, which side do you think has the better claim? and in particular, i'm curious to hear how you would apply this analysis to the dc circuit's agency action. do you think the circuit's quasi--circulation administrative law better root out agency misbehavior or is it

the case that the court proves to be too deferential to agencies? >> i don't doubt that when you do the same thing over and over and over again, you become better acquainted with what you are doing. so i suspect that the dc circuit is a bit quicker on administrative law than some of the other circuits. i suspect that the judges on the federal circuit know a lot of patent law because they hear those cases more often. but there is a downside and the downside is you are putting all of your eggs in one basket. all the patent cases are going to the federal circuit, you know, god forbid that the federal circuit makes a mistake. if all of the agency review goes to the dc circuit, then those judges have a lot of power. one of the hallmarks of our federal judiciary is that the circuits can learn from one another, by considering the same issues in different places.

and then when the supreme court finally has to get involved, the supreme court has in front of it a number of different takes on the same question. we think this improves the supreme court's decision-making ability. because there is a lot of diversity of opinion that it can draw from. when we put all of the cases into one court of appeals, we are missing out on all of this percolation, with the court, that's what we would call it when we are looking at the cert petition, only two circuits have weighed in on the issue, we should wait before we take the case for more courts to weigh in. we should wait for some more percolation. and so i think we miss out on all of that learning. that's a hallmark of really the common law process, of different courts considering different issue, and then hopefully consensus builds towards the best answer. when we put all of our eggs in one basket, we miss out on all of that. so even if we get more expertise developing in a specialized court, i'm not sure it is worth

the risk of putting all of our eggs in one basket, and making mistakes, because we're not learning from each other. >> thank you. >> judge o'scanlain, i think if we were going to catalog all of the arguments that have been made today, there is the representative argument that professor fitzpatrick has made, that six of 11 is not in any way representative of 29, i think the intra-circuit split argument and the subsequent litigation that may follow-on from that is a particularly compelling argument. you have made the argument about even though there are courts in san francisco and pasadena that could seat 29 judges, it is particularly cumbersome way to try to administer justice. you made another point that i want to ask you to unpack a little bit because i am not sure i fully understood it. you said something about the clegeality and the interpersonal relationships in a circuit court being affected in different ways, if you had a dozen versus 29. why does that matter? >> well, as a matter of fact, we have 40 today, in fact, when the vacancies are filled, we will 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 excluding, including yourself, which means that you are not in any contact at all, except in the rare case when you happen to be called for an enbanc re-hearing. that is done on a random basis.

the chief is on every re-hearing. the remaining ten judges are picked entirely at random through a process of picking names out of a cage. >> thank you, sir. 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 am in awe of your family, eight children. >> thank you. >> so i am in awe mainly of your wife, i must say. >> thank you. >> so i ask these questions with great respect, and first of all, i note that on page eight of

your testimony, you say that, quoting, 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 is 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 is 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, i think a broader issue, that senator cornyn raised, there are disparities between 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 bench, doesn't it? >> well, over the years, we have dealt with this simply by adding judgeships. that's been the tool that has been used. it is an imprecise tool. sometimes population explodes faster than the mechanics of reviewing judicial administration can follow. i would be not inclined to say that it calls for a total reorganization. i think that it would be appropriate, as the horeska commission was assigned to look at, in 1973, to look at, in that

case, the two largest circuits, and decide what should be done. perhaps another ten years from now, there will be another study commission that will look at some other phase. but justice vanderbilt of the supreme court of new jersey made that famous statement, saying that judicial administration is no sport for the long-wind the, excuse me, for the shord-winded, for the short-winded. >> it may not be a sport for long-winded either. >> right, okay. >> but the logic, if we are measuring, if we apply those metrics, could apply, maybe not to an overall complete reorganization, but to other circuits as well, and maybe if we are going to do one, why not do another? >> well, in the sense you have done that with the dc circuit. it was observed quite properly, if i may say, that the dc circuit had more judges than was

necessary. and it was decided to 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 i think they are the bullwarks of 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 is appropriate to encourage judges to look at the facts and the law regardless of partisan divide. would you agree? >> i think in general, yes, senator. >> 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? >> nominees make choices in this process about which questions they are going to respond to and which ones they aren't.

and if 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 constitutional, to fulfill her constitutional duty, to provide informed consent to the nomination, that then i think she can and perhaps should vote no. >> and senators have done so in the past for that reason, correct? >> senators certainly have done so. >> thank you. thanks, mr. chairman. >> thank you. senator lee? >> thanks to all of you for being here with us. judge o'scanlain, i in particular appreciate your willingness to appear and answer questions from this committee. given your many years of service on this court that we are now discussing, a number of appeals filed in the federal system has increased substantially over time. i assume you would agree with

that. my understanding is that we went from about 23,000 appeals per year, in 1980, to 33,000 in 1985, and it was up to about 55,000 by 2000 and it has continued to increase since then. i would imagine that in a circuit as large as yours, that puts added strain on a court, to be able to keep up with all of that. it has been noted that in some instances, courts will deal with their large appellate case load in part by issuing unpublished opinions. and does that also happen in the ninth circuit? >> oh, yes, the proportion of published opinions is less than 20% in our court. >> less than 20% are published opinions. and what that means is that the vast majority of the cases, those that are not part of that 80%, are not official precedent of the court, is that right?

>> well, that's true. but i think you would find that a large number of those are decisions where there really isn't a lot to talk about. either there is a jurisdiction issue, an appeal was filed too late, or even in a pro se criminal case, where an appellant argues that there was insufficient evidence, and of course the evidence in the record shows that he was caught in the act with four or five witnesses, there is really nothing to talk about so a lot of those cases go out that way. >> do you have any idea whether the ninth circuit's rate of publishing opinions differs from that of other circuits? >> yes, we are on the low end. there's a couple of circuits that have a very high publication rate, and i think it is probably circuit by circuit

choice. i believe it is -- i won't say the number, because i'm not 100% sure, but there is one circuit that publishes close to 60% of their opinions. and that would be the outliar. the average would be somewhere in between. >> okay. and i assume the same process goes into issuing those, in other words, you can't issue an unpublished decision without each judge reviewing the case and deciding even if it is simpler each -- >> well, it would have to be. in practice, it is unanimous. we even have a rule that a single judge, a dissenting judge can compel publication of the dissent. sometimes a dissent, the same judge will not insist upon publication, but there is an absolute right of the dissenting

judge to publish. >> and i would assume that your rate of unpublished opinions would roughly correspond with your rate of cases in which oral argument was deemed unnecessary, it would be more or less the same universe or a closely overlapping universe? >> that is hard for me to gauge. i will say that we have what is called a screening panel in which there is no oral argument. the central staff prepares the draft dispositions. again, these are identified as the easier cases, and if a single judge on that screening panel feels that there is an issue that really should be looked at more carefully, or has a concern that maybe there is a

precedent to be issued here, that single judge can compel that case be moved from the screening carol to an oral argument calendar. >> got it. got it. thank you. i want to continue the discussion that you were having earlier, i believe it was senator sasse, about your en banc proceeding, you are the only circuit who doesn't truly have the proceeding, right? >> we are the only circuit that exercises the option that we have in the 1980 legislation to have a limited en banc. and we discern what number of judges the enbanc court should be. at the moment it is 11. we had 13 for a while. and then we came back to 11. >> mr. chairman, i see my time has expired, can i have a couple more minutes to pursue this? so that is at your discretion, that any moment you can exercise

on a case by case basis or is that something the circuit has chosen to do for every enbanc case? >> well, every, once a case has been selected to go enbanc, then the deputy clerk will bring literally a bird cage around to a sitting judge, and that judge will pick the names out of this cage. each judge has a little -- >> like a ping bong ball or something? >> it is not quite. it is just a little stick really. but those, that process goes on for each independent decision, each independent case. >> but the difference there is that in other circuits, once you have an enbanc argument, you typically got all of the judges -- >> that's true. >> -- reaching a conclusion as to that discrete issue. so if you have a circuit that is so large, that you can't, or as a practical matter, you don't

sit as an entire court, you're more likely to have intra-circuit ongoing conflicts? >> well, what can happen is, and one of my colleagues pointed out that she was selected in nine continuous selections which were randomly done, and another colleague had been picked only once out of those same nine successive cases. so each panel is utterly random. and it is, that's all i can say, it is randomly selected. >> it produces an additional degree of randomness, because at least with your regular sittings, you're randomly assigned in the regular sittings, in a random combination of three judges at a time. but you at least know you're going to get a certain number of sittings assigned to you a year. >> right. >> where as with your enbanc calendar, you don't know that, and it is possible that somebody

could be left out entirely? >> exactly. that has happened. >> finally, when you have a circuit that has this large of a proportion of all federal appeals that are filed each year, in the federal court system, what effect does that have on each judge and each judge's ability to complete the task of judging in those cases? >> well, i have to tell you, senator, we are a bunch of work a hollics on our court. we work intensively. we feel the obligation. and we perform at our maximum capacity. and that cannot be done in a nine to five basis, that's for sure. >> we thank you for your service, thanks for talking to me about this.

>> thank you, senator lee. i would like to thank all three of the witnesses for enlightening us today. i would like to thank senator blumenthal for participating in the organization of this hearing. i would like to note that a letter from mr. james duff who is the director of the administrative office of the u.s. courts and the secretary of the judicial conference of the united states dated july 31, and enclosures to that letter will be included in the record. as well, a letter from chief judge sidney thomas, thank you for being here today, sir, who sits as the chief judge of the ninth circuit court of appeals, he will be submitting a letter in his individual capacity relating to the ninth circuit splits and both senators sullivan and dans are both strongly in support of splitting the ninth circuit and they will submit an additional statement for the record and senator grassley will submit questions to the record and the record will remain open for seven days. and this hearing is adjourned.

thank you.

prime time this week on cspas 3. tonight at 8:00 p.m. eastern, the supreme court historical society looks at the lives and legacies of chief justices warren berger, john jay, and john marshal, as well as associate justices robert jackson and thurgood marshall. tuesday, federal appeals court judge douglas ginsburg, on the history and evolution of the nation's highest court. and the debate over originalism. wednesday, on lectures and history, a discussion on southern culture in the u.s., with history professor tom lee of east tennessee state

university. thursday, a look back 100 years at german u-boat campaigns during world war one, starting with the 1918 u-boat attack that sank the ssmerak and the diamond sholes light ship off the coast of north carolina. and on friday, descendants of presidents ford, truman, mckinley, johnson, and theodore roosevelt, share family stories at the kennedy center for performing arts in washington. watch american history tv, this week, in prime time, on cspan3. tonight on the communicators. jeanette manfra, assistant homeland security secretary for cybersecurity and communications talks about cyber threats against the u.s. and how the country is working to foil foreign efforts to interfere in the 2018 midterms elections, and emergency communications. >> every single day, every system, whether it is a federal agency, a bank, a local

government office, you are constantly battling, if you will, actors who are trying to get into your networks, if you have sensitive data, if you have some system that powers something important, you have everything from your everyday activists trying to deface your web site for some purpose that they believe is important, to criminals, which i think is still the majority of what most people deal with, again, all the way to nation-states, trying to gain access, either to sensitive information, that may be useful to them, or trying to be in a position where critical infrastructure is held at risk. >> tonight, at 8:00 eastern, on cspan 2. c-span, where history unfolds daily. in 1979, c-span was created as a public service by america's cableev