providence, rhode island for the 45th stop of the 50 capitals tour with rhode island education commissioner ken wagner at 8:30 a.m. eastern. >> senate judiciary subcommittee on federal courts looked at the structure, size, and operations of federal appeals courts and their respective circuits. one issue was whether to split up the large ninth circuit of the u.s. court of appeals on the west coast, which was dealing with the backlog of cases. a senior judge and two law professors testified before the subcommittee. >> this hearing is called to order. the federal courts occupy a unique role in our constitutional system of republican self-government. one of the bedrock principles of our identity is as a credo nation that governments derive their just powers from the consent of the governed. that idea translates in a pretty straightforward way into the

constitution's vision for the executive and legislative branches. the american people are never more than two years or 730 days from choosing whether to rehire or to fire the vast majority of the federal elected officials. at first inspection, the notion that members of the federal judiciary, one of the co equal branches of our federal government, 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, to secure the inalienable rights to which our creator has endowed us all. to prosper and endure, it requires the rule of law and not of men. 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 in the words of federalist 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 aappropriate 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 changes ranging from small tweaks to major innovations with an eye to improve the efficient administration of 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 across the federal district and circuit courts. after the most recent survey, it conference releases 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. as well as 52 of the requested new judgeships being district seats. 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. our chairman chuck grassley of

my neighboring state of iowa has a long record of oversight on this topic and has been a passionate advocate for exploring alternative means of handling expansions and case loads. chairman grassley wanted to 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 committee, 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 the presence in our audience of senators sullivan of alaska and daines of montana. both of them are particularly invested in making sure the senate judiciary serves effectively and efficiently and i want to thank you for their presence today. i want to recognize senator blumenthal as the ranking member of the committee for an opening statement when he arrives and i'll move on to introducing our three witnesses.

first, we will hear from professor brian fitzpatrick, professor fitzpatrick currently served as a professor of law at the vanderbilt university law school. his research focuses on class action litigation, the federal courts, judicial selection, and constitutional law. he joined vanderbilt's faculty in 2007 after serving as a fellow at nyu's school of law. he graduated 1st in his class in harvard's law school and clerked for judge oscanlan and justice scalia on the supreme court. after his clerkships he practiced commercial and appellate litigation for several years at sidly austin in washington, d.c. and served as a special counsel for the supreme court nominations process for senator cornyn. before earning his law degree, professor graduated summa cum laude from the university of notre dame and he will be serving as a visiting professor at harvard law school. next we'll hear from judge dearmud o'scannlain.

he was appointed ninth circuit judge by president reagan in 1986 and assumed senior status on december 21st of 2016. his chambererize in the pioneer courthouse in portland and as a judge on the ninth circuit, he 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, and criminal law. before his appointment to the federal bench, judge o'scannlain was primarily involved in private law practice and between 1969 and 1974, he served as the deputy attorney general of oregon, the public utility commissioner of the state of argone and director of oregon environmental quality. he's the chair of the judicial division of the aba and previously chaired the aba's appellate judges conference, and its ninth appellate practice institute. he's testified before this and many other congressional committees numerous times. 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 for judicial administration, judge o'scannlain has served as association adjukt professor at lewis and clark law school where he continues to teach a seminar on the supreme court. he received his jd in 1963 from the harvard law school and his b.a. before that from st. john's university. he's also earned an llm in judicial process at the university of virginia law school in 1992 and has been honored with numerous honorary degrees including in his home state lewis and clark college and the university of portland. finally, we'll hear frame professor lori ringhand who teaches courses on constitutional law, election law, and state and local government law. she has been a member of the georgia law faculty since 2008, and has had a named professorship there since 2012. she is nationally known as a supreme court scholar and the author of the book "supreme court confirmation hearings and

constitutional change" along with paul collins, published by cambridge university press. she's also the co-author of constitutional law, a context in practices casebook, which is part of a series of casebooks dedicated to norping active teaching and learning methods into casebooks. the professor recently received a distinguished chair award to spend the spring of 2019 as a visiting professor at the university of aberdeen in scotland. she will explore the different approaches to campaign finance regulation taking in theust and uk. she's served as the law school's associate dean for academic affairs for three years and a provost women's leadership fellow in 2016-2017. she's received the lieu school's highest teacher honor for excellence in teaching in 2010 and 2015 and the john oburn award for signature contributions in furthering student faculty relations last year. she graduated from the university of wisconsin law school where she served as the articles editor of the wisconsin law review and she 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 faculty of the university of kentucky law school. if i could ask the three of you to please rise. if you would raise your right hand to be sworn in. do you affirm that the testimony you're 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'll 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's when one district court judge enjoined 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's 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 downside to concentrating judicial power is that judicial errors become magnified. this happened in two ways.

first, it's very simple. when a judge makes mistakes, when powers concentrated, the mistakes affect more people. if you put all your eggs in one basket, it is even worse when you drop the basket. 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 judges with views most predisposed to them. it's called-form shopping. but 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 non-representative views. the math on that is in my written testimony as well. part of the reason is because the ninth circuit cannot correct mistakes made by three-judge panels. the way circuits correct mistakes is through on baungly hearing, but the ninth circuit is the only circuit in american history that has become too big to go on bonk with a full court. it goes with only 11 out of 29 judges.

this means that 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 empirical studies showing that the ninth circuit size leads it to get reversed by the supreme court more often. the best study is by dr. kevin scott. he is a political scientist who used to work at the administrative office of the federal courts. now, he's 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 inability to go on baung 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 on bonk.

when a circuit becomes so big it cannot even sink onbonk as a full court to correct the mistakes of three-judge panels, that circuit has become too big. thank you very much. >> thank you, professor fitzpatrick. judge o'scannlain. >> members of the committee, i appear today in support of efforts to reorganize 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 filled. and i commend my chief judge for his superb administration of this gigantic circuit. and not just because he's here in this room. my chief judge is judge sidney thomas from 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 have had the privilege of serving on the ninth circuit for 32 years now. and for more than 20 of those years, i have advocated a commonsense 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 appendicis 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 interventionism or the invasion of party politics into the judiciary. rather, reshaping the ninth

circuit should be a matter of national, judicial administration. and the commonsense reaction to the changing circumstances of our nation. not supreme court betting averages for idealogical 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 1 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 courts of appeals were 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 bear 20% of the annual federal appellate docket and employ nearly 20% of our nation's court of appeals judges. to compare, the average other circuits -- of the other circuits accounts for only 7% of the nation's annual federal appellate case load. 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 leaves this congress with a wealth of options to restructure the circuit. the 1973 commission explored several such options when it recommended that both the then 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 to be based in san francisco. the fifth circuit promptly was split, but the ninth circuit judges resisted and congress demured for now more than half a century. regrettably, the chief judges of the ninth circuit have continuously resisted a necessary and inevitable cure. after the senate passed the ninth circuit split bill in 1997, 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 commission and recommended in 1998 that the circuit be split into three semiautonomous divisional courts. yet once again, our circuit's leadership rejected the commission's well considered report. continued resistance to the obvious and inevitable can no longer be justified. it's simply not defensible to allocate so much of our nation's population on case load to but one of 12 regional circuits. although the business of deciding cases and interpreting the law is left to us judges alone, administratively, we're 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 co-equal appellate courts. thank you, mr. chairman. >> thank you, judge. professor ringhand. >> thank you, senators, for the opportunity to speak with you today. few things are as important to the senate's oversight of the structure and operation of the federal court as its role in the confirmation of supreme court justices. as you know first-hand, article 2, section 2 of the u.s. constitution provides that although the president nominates supreme court justices, they take their seat 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, polk, buchanan, cleaver, nixon, and reagan likewise each had nominees rejected by votes of? senate, while many other snats were denies 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 senate judiciary 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 frankfurt, who became the first nominee to appear before the committee to take unrestricted questions in public and under oath, and thereby ushered in the process with 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 senate correspondedly sought to legitimate its work to a broader and more engaged constituency. there also was more particular explanation for felix's testimony, the senate a few years earlier had gotten itself into some trouble when it had confirmed hugo black to the high court without public discussion of what the senators knew about

his prior affiliation with the klan. senate judiciary committee at that time promised they would have a more transparent process in the future and regular public testimony as 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 co-authors paul cow00 and i have been able to quantify this through an original data set that codes every question asked and every answer given at every public confirmation hearing since frankfurter's.

our work confirms the substantive nature of this process. since the inception of hearings, the most common issue of discussion has been civil rights issues 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 differentier as, 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 inaptly named ginsburg rule, supreme court justices including justes ginsburg typically have been willing to answer questions about some constitutional issues while avoiding discussions of others. nominees since frankfurter have struck this balance by being willing to provide opinions on settled areas of law while being

more are you luckant 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 lockner and agreed that the constitution agrees to a basic right to privacy and agreed that gender discrimination warrants heightened review and it extends beyond political speech. more recent nominees have affirmed the core holding of heller that the second amendment embodies an individual right to bear arms for personal prosection in one's home. what issues are and aren't controversial and therefore which issues the nominees are willing to provide firm opinions on have changed over time, but what has stayed constant is that nominees have recognized that they must balance their desire to avoid answering questions with the senate's need for

sufficient information to enable it to exercise its own constitutional duty responsibly. that's why i believe the confirmation process and your role in it is so important. the supreme court confirmation hearings are one of the ways in which we weave the court's resolution of previously contested issues into our shared constitutional understanding. nominees provide critical information that 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 imperical 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 for your

invitation to be here today. >> thank you for the testimony, professor. i will recognize senator blumenthal for his opening statement. thank you, mr. chairman and my apologies for being a little late. i was involved on the floor in a unanimous concept effort, and i want to at the outset ask permission that statements from two of our members kamala harris and dianne feinstein both of california be included in the record. >> without object. >> thank you, mr. chairman. their views and i agree with them are that a reorganization of the ninth circuit is very questionable, if any value it would prompt inefficiencies and obstacles that are unnecessary, disruptive and massively expensive. the record from this summer's hearing makes it clear, and i

believe that this hearing will, if anything, just affirm that view and i want to welcome our witnesses today and judge sydney thomas, the chief judge of the 9th circuit who is in the audience who will steadfastly defend this circuit. we are honored to have 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 cokey records from the kavanaugh administration and the white house, his role there has been characterized by our colleague jon cornyn as a traffic cop, that's a quote, no more than a traffic cop and that is belied by judge kavanaugh's words when he said, quote, my five and a half years in the white house and especially my three years as staff secretary with president trump were the most interesting and in many way, the most instructive, end quote. 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've spoken on this already on the floor and i will not belabor those points in this forum except that i believe this effort to hide this nominee's record as a broader effort to limit the senate advice and consent function. i think that we have seen the performanceal read of judge gorsuch when he was going through a similar nomination process. he refused to answer basic questions about fundamental precedents and principles, pretending that norms and ethical canons precluded him from telling us anything about his views before we approve him for one of the most powerful positions in the country. judge trump -- i'm sorry, president trump and his allies and his judicial nominees appear

committed to the view that the senate has a diminished role, perhaps no role, in evaluating the nominee's records or beliefs. i beg to differ, and i hope today's hearing will serve as a reminder that 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'll be brief as i open. professor fe professor fitzpatrick, can you walk us through the nationwide injunctions? >> the best argument for nationwide injunctions is that sometimes there will be people when 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 stiscircumstances is to include those persons in the injunctive relief granted against the defendant even if those persons are not a party to the lawsuit. one example that was given is with regard to the president's travel ban. so some people say that ban went into effect while they were in 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 am 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 downsides to that. one of those downsides is that a lot 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 so including them as -- as -- 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. it's called the class action lawsuit, and in order for a case to become a class action and to affect absent person, the judge has to sign off on many criteria that protect the due process of absent persons and are they being adequately represented by the plaintiff? are they adequately being represented by the lawyer by the plaintiff? are there conflicts of interest among the absent persons? >> and that prees ocess is evad and to protect rights of the absent persons are evaded when the judge includes them in the

relief without signing off on those criteria. the other arguments against the universal injunctions are the forum it causes. there are 700 district court judges in this country and 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 that gal then you can stop the federal government nationwide, 300 million americans are affected so we have seen people that are opposed to president obama's policies run and find one judge they think will stop those policies. and we've seen people opposed to president trump's policies run and find a judge who will do the same thing. this is not neutral justice. this is finding the most biased judge you can and shutting down the federal government. so that, too, is a matter of

serious concern. so those are some of the minuses and that's the one plus that i've seen talk about the scholarly work on the subject. >> thank you. in the interest of getting to the senators who have obligations this afternoon, i'll reserve the rest of my question for the next round. senator blumenthal? >> thanks, mr. chairman. professor, i would like to follow up on some of your testimony. as you may know, i ask most judicial nominee, perhaps most of them whether they disagree with certain established precedent of the united states supreme court including brown versus board of education, roe v. wade and others that seem pretty well established, and well-accessed in our jurisprudence. the past nominee, most of them until recently have said that

they could not comment bought of some norm without being more specific. is there any such norm or practice or canon of ethics that precludes them from saying whether they think brown versus board of education was correctly decided? >> no, senator. the model code of ethics that has been referenced prohibits judges from making commitments or appearing biased in inappropriate ways, and that is 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

corresponding 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 matters we don't argue about them anymore, that they have become part of our constitutional consensus and then to try to avoid or to avoid answering questions only about those issues that the nominee believes are currently controversial. >> and so there's no canon of ethic that precludes comment, per se, 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 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 justice kagan and ginsburg when they were nominated, correct? >> i believe -- i believe that justices kagan and probably alito and perhaps thomas referenced documents. >> all had previous government service and all of those documents were reviewed by this panel and the united states

senate before any votes were taken? and you're nodding so i take that as -- >> again, senator, i haven't reviewed -- i haven't studied that in great detail, but that's certainly my recollection from reviewing the transcripts. >> my understanding is that in the past the committee's document request generally has been pretty bipartisan, whatever the partisan breakdown 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 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 minority believe that those documents were necessary? >> not that i recall, senator. >> thank you. in the interest of our time for colleagues, i, too, will defer questions. >> thank you, senator kennedy? >> you clerked on the ninth circuit? >> i did for judge scanlon to my left. >> if one were to start designing 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, and we know that because every time another circuit court has gotten even close to the 9th circuit

congress has broken it up. it's as big as this one. >> and it's my understanding that the 9th 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 to litigants? >> think it is not desirable because you can have some non-representative judges make up the majority of the 11 judge panel. i remember as a law clerk, cramer v. consolidated freightways where the 11 judges were 10 republicans appointees and one democratic appointee. >> what percentage of the 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 decide, 2.5 of

them are reversed, but that is still 50% higher than the next, most reversed circuit as almost three times more often than the least reversed circuits. it's been that way for decades. >> other than just pure politics, one of the argument 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 would 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 -- when you go on t were on the ninth circuit how many members were there? >> there were 28. >> how many now? >> 29. >> how do you function with 29 judges? i clerked on the old 5th 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 -- it was almost unwielded then help how do you function? >> we function in panels of three. in my opening remarks i commended my chief and the staff of our court for managing this huge operation, but we managed to do it, and i think rather effectively given the size that we've inherited, but as professor fitzpatrick has pointed out, we only hear in bank cases, in the limited embanked form. we do have two courtrooms and one in san francisco and one in pasadena which have 29 seats and three-tiered courtrooms with 29 seats for 29 judge e but they've

never been used for a full court en banc because we've never had a full court en banc. theoretically, we can, but it has never been done. and i gather when the old 5th circuit had an en banc matter somewhere in the late '70s, the judges discovered that with, i think, at that time 23 judges all trying to hear the same case at the same time. they just decided the time had come to split into two smaller circuits. the new 11th and the old one. >> judge, what -- what could possibly make the objection of the fair-minded person to splitting the ninth circuit as we split the fifth circuit? >> well, as a fair-minded person

hopefully myself, the best judgment for keeping the ninth circuit exactly as it is, we make it work. that would be our obligation in any case. >> that's not the issue, isn't it? >> no. isn't the issue better? >> and would it be more consistent with the overall structure? my strongest argument is that circuits split over time and it was carved out of the eighth in 1929. the 11th was carved out of the fifth in 1981. the d.c. circuit was formerly recognized as 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-sized circuit has 7% of

the population. >> thank you, mr. chairman. >> senator hironno. >> thank you, mr. chairman. i'm not sure why we're having this hearing today with the split of the 9th circuit it's nearly identical to a hearing that senator flake held a year ago in arizona where judge o'scanlon submitted almost the same testimony word for word. nothing has changed since then except that maybe judges in the 9th circuit have continued to make decisions that this president doesn't like. he wasn't happy when the judge watson ruled against his muslim ban and he was no happier recently when judge dana sabbrowe in san diego began to hold this administration's feet to the fire about reuniting the families that the president so unnecessarily separated at the

border. they are, in my view, unjust political reactions to the role that federal courts have been playing in response to the president's disregard to the constitution, and i say thank goodness that our courts are still independent, although court packing is growing at a rapid pace, as far as i'm concerned. i believe there are better ways for the committee to have time. we've been able to hear from judge o'scanlon and i found the testimony of judge sydney thomas who is in the audience, welcome. thomas gave a rebuttal in arizona to be thorough and illuminating and therefore 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. and i just want to ask, i was surprised, professor fitzpatrick, when you noted that

you were troubled by a panel, the 9th circuit panel with more democratically appointed judges and there were republican-appointed judges which seems to indicate that judges are exhibiting political tendencies. i think -- is that really how you feel that somehow the judges that sit on a panel should be evenly split between those that are nominated by republican presidents and those appointed by nominated by democratic presidents? >> no, senator. point of that example was just to exhibit how the 11-judge en banc can be representative of the whole court. >> no. you gave an example saying there were more democratically nominated judges than there were republican nominated judges. i thought judges were supposed to be politically apolitical. and as i noticed the district judge in california appointed

by, nominated by president bush is the one holding his feet to the fire over the separation of children from their patients. so i think the fact that somebody's nominated by a republican or democrat should have absolutely nothing to do with the ability of that judge to be fair, and in fact, that is the reason that we have advice and consent by the senate, and i wanted to ask professor ringham, i think you've been watching what's been happening in this judiciary committee particularly in reference to the gorsuch hearings and that we're about to have hearings on judge kavanaugh. they constantly and the district court judges and the circuit court judges, they all come and cite the so-called ginsburg rule which, maybe you can explain briefly what they think the ginsburg rule is and why they don't respond to any of the questions that we feel are their

judicial philosophy or how they will approach cases. >> yes, senator, thank you. the ginsburg rule is as i mentioned in my opening testimony, rather poorly named. it has 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 shorthand way quite broadly and this does not reply to what justice ginsburg did in her testimony. what my co-author and i did was we looked at the responsiveness of nominees over time by looking at two distinct types of answers that nominees give. we looked at situations where nominees gave firm answers, where they said in the current tent, i agree or i disagree with

this case or controversy or issue and we compared that to the rate at which the nominee refused to answer on these types of privileged ground and developed a responsiveness ratio that look the at both of those things. in other words, both how often a nominee refuses to answer and also how often they do, and what we saw was that justice ginsburg did invoke a privilege and refused to answer a high rate of questions and she also did answer a lot of questions while as justice gorsuch in his recent hearing had one of the lower responsiveness rates that we've seen. >> thank you. i just want to ask, mr. chairman, if i could also put into the record opposition of judges in hawaii. they is submitted a letter that i would like to have in opposition to the 9th circuit. >> without objection.

>> thank you. >> senator tillis? >> thank you, mr. chairman. 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 that if we were to split the circuit it would lead to inefficiency, but i think a circuit that has four and a half times larger backlog than the other backlog of the other one, there is something inherently wrong there. judge o'scanlon, would you have a comment on that? >> well t goes without saying that smaller units, first of all, are more culturally cohesive and they function in a closer working relationship. they have a smaller number of cases for which they're

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 sink because of the case load, and it's out of sync because of the backlog. those are the elements that i think are the most pressing. >> and so i think you mentioned the fivefold increase in population that the circuit represents. it just seems like with any other organization we have to go back and, you know, there are people that have different motivations for breaking up the ninth circuit or are reorganizing it and restructuring. i think it could be said that all of the circuits could be looked at to determine whether or not we're running this efficiently as possible. i know the discussion is more about the ninth circuit, but from an organizational perspective, the whole course of the system has not been looked at to get the numbers down so

that we're getting consistent outcomes throughout the country. do you agree with that? >> yes, i do. and don't forget that the commission of 1973 did a very thorough study and 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 and the neeninth circuit resisted and that's where we are today and as far as i see the situation, it's just a matter of -- it's inevitable that a circuit of this size eventually will be restructured. when that happens it may be hard to predict, but it has to happen at some point. >> professor fitzpatrick commented on this in response to a couple of questions and in his opening testimony, i would be

interested in your opinion, judge, on these nationwide injunctions and i think justice thomas has weighed in making the same point the professor did about one judge decided for 600 others and it seems to me that it really is, we have 535 people here that are kind of in the business of implementing laws. it does seem to me that we have almost the legislative function based on just where a district court judge wants to go. what are your thoughts on pros and cons of this trend over time, and i should say there's been an equal number. there are some that i'm happy that somebody picked a district court judge that i didn't want to ideologically go in the obama administration ask we're seeing similar outcomes and a different reaction on my part. i think both are wrong, though. how do you feel about it? [ inaudible question ]

>> well, i had to ask and the last comment i've had to make is we've had some discussion about the supreme court nominee before us and the requirement for documents are up for one thing that we should be able to provide a realistic solution, and i believe that the chair has, but, you know, what i have, it's kind of difficult for me to understand the motives of some who are requesting the documents when they make statements already and they say we need the documents to judge the nominee, but we have people putting scripture saying if you were to support this nominee you are either complicit and evil or you're contributing to the wrong or you are fight against it. we have a nominee on this

committee that said whoever was nominated would bring forth the destruction of the constitution of the united states within 24 hours said that kavanaugh would be his worst nightmare and yet they're wanting millions and millions of pages to be instructed to support the nominee. so we've got to figure out a way where we can move forward through this process. i think the nomination's process, confirmation process is very important. one of the most enjoyable things that i do in my job is to go to these confirmation hearings and hear both sides of the argument and i also think that we need to get to a better place and trying to understand people's motives for asking for information when they very clearly made a decision on the nominee before they read the first page. thank you, mr. chair. >> thank you, senator. citing the grassley rule, i'll make a brief comment before going to senator cornyn. i know that senator hironno had to leave and she askeds what the

purpose of the hearing is when there was a hearing last year. this hearing is an oversight hearing on the biennial report of the judicial conference. that conference recommended 57 new judgeship, five of them circuit, all five of them in the 9th circuit because of the case load and because of the backlog. so this hearing is not specifically about the 9th circuit. it's about the report of the jude earn conference about where justices being not administered because of the backlog and that happens to point exclusively at the 9th circuit. senator cornyn. >> thank you, mr. chairman. i am glad you're holding this hearing and i would like to welcome all of the witnesses, professor pits patrick, good to see you again. your honor, good to see you. i don't know miss ringham, but welcome. let me s.t.a.r.tart with you, pr fitzpatrick, this idea that the nation, a single district judge could issue an injunction that would cover the whole country and everybody in it, it strikes me as inconsistent and 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 policy making as opposed to a case by case determination of the laws that applies to the facts in the given case pressented in court and if there's one thing that has done more damaged to judiciary and causes the acrimony, it's a perception that judges are not deciding a case based on the facts in the law in front of them, but they're policymakers who don't run for election. so when we get a chance to in a confirmation hearing to ask them all these questions and to rough them up and make outrageous statements like senator tillis mentioned that's what

contributes to the acrimony and the polarization of the country when it comes to nomination, but forget my editorial comments. i'm really interested more in the nationwide injunction. isn't it inconsistent with those requirements and legal requirements and procedural requirements that would normally apply to an individual by showing a party before the court? >> couldn't agree with you more, senator. there is a very good argument that article 3 of the constitution prohibits district court judges from entering these injunctions. article 3 requires a plaintiff to show standing that there is 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've been injured and 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 say very good argument that article 3

prohibits this kind of relief being entered. so i think you're absolutely right. >> so what will it take for thicks to chang things to change? will the supreme court have to grant it and could it be presented for a decision? >> think the supreme court could decide that this goes beyond the article 3 power and 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? i think it could probably pass the 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 you could probably enact the statute that takes care of this, as well. >> i think that would be a very good idea and something we should work on. >> your honor, let me ask you a

little bit about the way that the federal practice operates. i notice looking at the case load distribution for all of the circuit courts and it ranges from an annual basis from 1100 roughly for the d.c. circuit 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, the judge from the fifth circuit -- let me just ask you, can a judge on the fifth circuit sit by assignment on the ninth circuit? [ inaudible ] >> microphone, please, judge. >> is it on? all right. yes, we have a very large number of visiting judges because of

our case load and they can come not only from other circuits, but quite a few of them are district judges who are invited to help us out with the heavy case load. >> they've shown competent to apply to the ninth successity. >> that's their obligation to apply the precedent of our circuit. >> if we're really concerned about access to justice and childrened about the consumer, why wouldn't congress go in and try to reallocate the number of judge ships to deal with the case load that the different courts are experiencing. for example, those courts that have less casesshipqqdeal with d that the different courts are experiencing. for example, those courts that have less casjudge ships to dea case load that the different courts are experiencing. for example, those courts that have less cases per judge or otherwise reorganize it by case

load. >> there is a little precedent for that, i suppose. the question is how many judges were on the court when i came on. there were 28, and the ninth position was created by the transfer of a seat on the d.c. circuit which has and still has a 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, i think as we consider some of the legislation to reorganize the circuits that we really ought to look at ways to, callize or establish a parody of case load per judge because 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 just designed purely 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, senator cornyn and to underscore the last point, exhibit 12 that the ninth circuit has a backlog of almost 12,000 cases, second most in the country is 4500. the average is barely 2,000 and the d.c. circuit the least at under a thousand. senator? >> 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 pits patrick, as you referenced that justice thomas and the so-called travel ban case wrote a concurrence there they 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 ultimately the supreme court would have to confront that question and i think justice thomas' opinion rightly focuses on the improp righty nation judge of policy making rather than simply adjudicating a case in controversy between actual litigants before that judge. let's shift as we have for most of this hearing to the ninth circuit. professor fitzpatrick, it's been discussed at some length that the ninth circuit accounts for nearly a third of all pending

appeals and it takes an average of 13 mocks in the ninth cirquity to decide a case which is the longest of any circuit and five months more than the national median. to what extent do you attribute this backlog and the delay in the decisions in the ninth circuit to the very large size of the ninth circuit? >> i think there is a direct correlation and i think if you look even more broadly around the country you will see the biggest circuits tend to have the biggest backlog. it's just a matter of administrative difficulty to handle that many cases, and you know, part of the difficulty comes from the fact that you have 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 circuit ends up with a lot of what we call intracircuit splits where different panels of

the ninth circuit have decided the same question differently and so that leads to a whole bunch of difficulty as to which one should be followed and which one shouldn't be followed. i just think it's pretty obvious when you have that many people running around it's just hard to keep track of everyone. >> of course, that goes right to the heart of the purpose of the court system to ensure uniformity rule was law that people can know and plan and behave accordingly. judge o'scanlon, you served on the ninth circuit for 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 and the state of california accounts for 70% of all of the cases. one state accounts for 70% of all of the cases of nine states and the -- i suppose, if i were to answer your question, the problem is best highlighted by what the professor fitzpatrick said. intracircuit conflict is 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 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, and this is what we call intracircuit conflicts and the national system is built to resolve intracircuit conflicts because it's quite possible that the second circuit would come up with a different response than say the tenth circuit on a particular issue, but that is not something that should be allowed to happen within the circuit, but because of our size that happens regretfully and it happens too often. we do our best to try to deal with it by calling cases en banc and sometimes they don't get enough judges to take it en banc, and the intercircuit -- the intracircuit conflict continue, but that would be a very important aspect.

>> and one final question, professor fitzpatrick. there's been some discussion of this issue of dividing the ninth circuit driven by some of the recent decisions either by district courts of the ninth circuits that have ruled against the trump administration. the ninth circuit has for a long time had a well-deserved reputation of being far to the left and the most reversed circuit. indeed, i remember back in the mid-'90s when i was clerking at the supreme court there was a running joke that there was a macro in word perfect for drafting an opinion that would automatically populate the opinion with the words the decision below was issued by the ninth circuit. accordingly, we reverse and the reason for that joke is the frequency with which that was, in fact, the case and in fact, the frequency with which the ninth circuit was reversed unanimously and i would note one of the greater predictors of the

reversal was the judge o'scanlon descent was a canary in the coal mine and my question, fitzpatrick, is there any reason why breaking up the ninth circuit should be a partisan issue. for those on the democratic side of the aisle who may be fans of the decisions of the more liberal judges on the ninth circuit. nobody is talking about removing them from the bench our losing to adjudicate. is there any reason why this has to be a partisan divide? >> senator, i remember that macro very well and it was control n on my computer, but senator, the only reason not to split the ninth circuit is partisan. we've 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

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 now do a brief second round. professor fitzpatrick, i'll begin with you. proponents of specialized courts, the expertise in particular subject matter better, quip them to reach the right decisions especially in cases in which there is an imbalance and sophistication of resources between the bodies. never the little, the opponents of specialized circuits argue that the specialized courts are some of the phenomenon of agency capture in which sophisticated repeat players are at an unworded advantage before the courts. unbalanced, which side are side do you think has the better

claim and i'm curious how you would apply this analysis to the d.c. circuit's evaluation, and do you think it better rules out veteran misbehavior or the court is prone to be too deferential to agencies? >> senator, what i would say is i don't doubt that if you do the same thing over and over and over again you become better acquainted with what you're doing, and so i suspect that the d.c. circuit is made better on administrative law than other circuits and 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 down side and the down side is you're putting all of your eggs in one basket. all of the patent cases are going to the federal circuit. god forbid that the federal circuit makes a mistake. if all the agency review goes to the d.c. circuit then those

junges ha 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's 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. that's what we would call it when we were looking at the petition and we say there are only two circuits that have weighed in on this issue and 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 missed out on all that 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 of our eggs in one basket we miss out on all of that and even if we get more expertise developing in the specialized court and i'm not sure it's worth putting all of our eggs in one basket and making mistakes because we're not learning from each other. >> thank you. judge o' sposcanlon, there's th argument that professor pits patrick has made that 6 of 11 is not in any way representative of 29 and i think the intracircuit split argument and the subsequent litigation and they follow on as a particularly compelling argument and you've made the argument about there are courts in san francisco and pasadena that could seat 29 judges and it's a particularly ko cumbersome way to administer justice and i'm not sure i fully understood it. you said something about the

collegiality and the relationships of the circuit court have been affected in different ways if you have 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'll have 46. and not surprisingly, each one of the 46 colleagues in terms of understanding that person's jurisprudence and that person's approach to deciding cases is almost impossible. we do our best and we have quarterly court meetings and in terms of our assignments and typically we sit on eight panels every year so you are only at the most sitting with 24 other judges excluding -- 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 an en banc rehearing. that is done on a random basis.the chief basis basis.the 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, i want to say something that i should have said at the outset which is what 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 the service in our united states military and also, i'm in awe of your family, eight children. >> thank you. >> so i'm in awe mainly of your

wife, i must say. >> thank you. and i ask these questions with great respect and first of all, i note on page 8 of your testimony say that no matter what metric one usees and you go on, i know that among the metrics you do not mention unless i missed it, the reversal rate in the united states supreme court. that's not really a metric of whether a circuit court is functioning well. >> the part of my focus of my oral presentation was to emphasize that that's one of the issues plus the partisan side of things that should be excluded from an intelligent discussion about the 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 court, 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've dealt this -- with this simply by adding judge ships and that's been the tool that's been used. it's an imprecise tool. sometimes population explodes faster than the -- the mechanics of reviewing judicial administration can follow. i am not inclined to say that

it's for a total resoergz, aorg and it would be appropriate as the 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 the statement that judicial administration is no spourt for the long winded -- short winded, excuse me, for the short winded. >> it may be for long-winded either. >> right! >> but the logic, if we're measuring and we apply those metrics could apply, maybe not to an overall, complete reorganization, but to other circuits, as well and maybe they -- if we're going do one,

why not do another? >> well, in the sense that you've 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 decided to take one of those judges and transfer it to the ninth circuit. >> let me ask you and i've said it before for the record when the history 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 bull work 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 i 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 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 constitution, to fulfill her constitutional duty to provide informed consent to the nomination, then i think she, she can and perhaps should vote no. >> and senators have done so in the past for that reason, correct? >> senators certainly have done so. >> thanks, mr. chairman. >> thank you, senator lee. >> thanks to all of you for being here with us. judge scanlon, 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're now discussing. a number of appeals filed in the federal system has increased substantially over time. i assume would you agree with that my understand something 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 2,000. and that it is 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's been noted that in some instances, courts will dole with their large apellate case load in part by issuing unpublished opinions. does that also happen in the 9th

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, are decisions where there really isn't -- a lot to talk about. either the, there's a jurisdiction issue, the appeal was filed too late or even in a pro se criminal case, where apellant 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's really

nothing to talk about. a lot of those cases go out that way. >> do you have in idea whether the 9th circuit's rate of publishing opinions differs from that of other circuits? >> we are on the low end there are a couple of circuits that have a high publication rate. i think it's probably circuit-by-circuit choice. i believe it's, 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. >> i assume the same process goes into issuing those. you can't issue an unpublished decision without each judge reviewing the case and deciding, even if it's simpler. it would have, in practice it's

you'll nous, 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's an absolute right of the dissenting judge to publish. >> 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's hard for me to gauge. i will say that we have what's 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's 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 to be moved from the screening calendar to an oral argument calendar. >> got it, thank you. i want to continue the discussion that you were having earlier, i believe with senator sasse about your enbadl banc proceedings. >> we're the only circuit that exercises the option that we have in the 1980 legislation, to have a limited enbanc. we discern what number of judges

the enbanc court should be. we had 11, 13 for a while and we came back to 11. >> mr. chairman. i see my time is has expired. can i have a couple more minutes. is that at your discretion at any moment that you can exercise on a case-by-case basis? or is that something that the circuit has chosen to do for every en banc case. >> once a case is selected to go en banc, will bring literally a bird cage to a sitting judge. and that judge will pick the names out of this cage. each judge has a little. >> like a ping pong ball or something? >> it's a little stick, really. that process goes on for each independent decision, each

independent case. >> the difference there, other circuits, once you have an en banc argument, you've typically got all the judges reaching the conclusion as to that discrete issue. if a circuit is so large that you can't or don't sit as an entire court, you're more likely to have intracircuit ongoing conflicts? >> well what can happen is, and one of my colleagues pointed out 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. each, each panel is utterly random and it is, that's all i can say, it's randomly selected. >> it produces an additional

degree of randomness. 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 get a certain number of sittings assigned to you in a year. whereas with your en banc calendar, you don't know that and it's possible that somebody could be left out entirely. >> exactly, that's happened. >> finally. when you have a circuit that has as 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're a bunch of workaholics on our court. we work intensively.

we feel the obligation and we -- perform at our maximum capacity. and that cannot be done in a 9-to-5 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'd like to note that a letter from mr. james duff, 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 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 debates about the split of the ninth circuit. both senator sullivan and danes

are strongly in support of splitting the 9th circuit. they will be submitting an additional statement for the record today. senator grassley will be submitting questions for the record and our record will remain open for seven days. and this hearing is adjourned, thank you.

at 8:00 p.m. on c-span, utah's senate debate between republican mitt romney and democrat jenna wilson. to fill the seat of retiring senator orrin hatch. and charlie baker debates his democratic challenger jay

gonzales and at 10:00 p.m., the arizona second district debate. can you watch the debates on c-span.org or listen on our free c-span radio app. your primary source for campaign 2018. >> american history tv is in primetime. this week on c-span 3. tonight, federal appeals court judge douglas ginsberg on the history and evolution of the nation's highest court. and the debate over originalism. wednesday, 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 in world war i starting in the 1918 u-boat attack that sank the

"s.s.morac" off the coast of north carolina. and on friday descendants of presidents ford, truman, mckenly and roosevelt share stories. watch american history tv. the party that i want to take over congress is the democratic party. not just because i support the values of the democratic party. but because i think that the republican party has completely abdicated its responsibility to serve as a check-and-balance on the executive branch. and so in addition to legislation certainly, it's the

responsibility of congress to serve as that check and balance. and we have just not seen that. we've seen a presidency run awe muck. >> if control of congress changes in november i believe i willing be impacted in several ways, for one i'm a college student who is just now getting out of school soon and i will be entering the workforce and things such as tax breaks, or things such as financial matters that do get decided in congress will directly affect me and my future success. also, i am an african-american woman and the representation that is there for me, and those who are fighting for my rights, my civil rights is very important and i believe that this will be impacted if there's a change in congress. >> the elections this year if by some strange chance the congress should change over to another party, we would have some impact here. but generally in indiana we are

pretty independent folks. and as with our infrastructure program, we have moved ahead with whatever congress does. we make sure we operate in a responsible and business-like way. so we passed a major infrastructure bill last year. and the federal government helps us out, that's great but if they don't, we'll continue to march and we're now working with water, also. >> i think the democrats should control congress. because i believe our country needs to swing more left or progressive. i'm interested particularly in the issues pertaining to women. women's ability to choose and also women's right to a safe workplace, thank you. >> voices from the states. part of c-span's 50 capitols tour. now we hear from a panel of health care executives, they testified at a senate health education labnd