talked about the trump administration's policies and the future of the republican party. watch that tonight at 8:00 p.m. eastern on c-span2, also online and on the app. app. a senate judiciary subcommittee looks at the structure, size and operations of the federal appeals court system and whether to split up the ninth circuit on the west coast which has a backlog of cases. a senior judge and two law professors were among those who testified. >> 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 in the words of the declarations of independence 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, 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. for our ordered liberty to prosper and endure it requires the rule of law and not of men. 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 entrusts 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 nominees to lifetime appointments on the bench. at a time when washington seems to go 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. 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. over more than two centuries, congress has continued to update the federal judicial system with periodic changes ranging from small tweaks to major innovation, all with an eye to improving the 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 -- conference of the united states, which is the policy making body of the federal courts, conducts a survey of judgeship needs across the federal district and circuit courts. after the most recent survey, it released a recommendation that congress should authorize in their view 57 new judgeships and that eight temporary district judgeships should be converted into permanent judgeships. five of the requested new judgeships are circuit judges and all of those would be on the u.s. circuit court of appeals for 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 recommendations 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 ensuring that the federal judiciary serving their constituents effectively and i want to thank them for their presence here today. for that 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 serves 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. professor fitzpatrick joined vanderbilt's faculty in 2007 after serving as a fellow at nyu's school of law. he graduated first in his class in harvard's law school and clerked for judge o'scannlain and justice scalia on the supreme court. after his clerkships he practiced commercial and appellate litigation for several years at sidley 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 fitzpatrick 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 will hear from judge diarmuid o'scannlian. judge o'scannlian was appointed u.s. circuit court for the ninth

circuit by president reagan in 1986 and assumed senior status on december 21st of 2016. his chambers are in the pioneer courthouse in portland and as a judge on the u.s. court of appeals of the ninth circuit judge o'scannlian has participated in over 6,000 federal cases and 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 engaged 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 oregon and director of oregon department of environmental quality. he is the chair of the judicial division of the aba and previously chaired the aba's apail let judges conference and its ninth appellate practice institute. he has testified before this and many other congressional committees numerous times and 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 practice seminars for judges and attorneys including nyu's law school institute for judicial administration, judge o'scannlain has served as association adjunct professor at lewis and clark law school where he continues to teach a seminar on the supreme court. he received his j.d. 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 from 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 case books" which is part of a series of casebooks dedicated to incorporating active teaching and learning methods into casebooks. professor ringhand received a fulbright award to spend 2019 as a visiting professor at the university of aberdeen in scotland. her research will explore the different approaches to campaign finance regulation taken in the u.s. and uk. ringhand has served as the law school's associate dean for ac kem dem mick affairs for three years and a provost women's leadership fellow in 2016-2017. she's received the law school's highest teacher honor for excellence in teaching in 2010 and 2015 and the john oburn award for significant contributions in furthering student faculty relations last year. professor ringhand 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. visiting scholar at the oxford institute of comparative law. 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 are about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you god? >> i do. >> all three answered in the affirmative. we will begin with professor fitzpatrick. thank you. you have five minutes. >> thank you very much, mr. chairman, and to all the members of the committee, it's an honor to be here today. i want to address two issues. district court judges entering so-called nationwide or universal injunctions and the size of the ninth circuit. both of these issues in my mind raise a similar question. how much power do we want to concentrate in the hands of a small number of lower court judges?

my answer is this -- not as much power as we are concentrating right now. what is a universal injunction? it is when one district court judge enjoins a defendant from doing something not only against the plaintiff who sued, but against everyone else in the country. that concentrates a lot of power in the hands of one judge. the ninth circuit we're well aware of. it'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 happens in two ways -- first, it's very simple. when a judge makes mistakes,

when pour is 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. that judge may have odd views that are outside the mainstream. indeed, plaintiffs often seek out the judges with views most predisposed to them. it is called forum shopping. 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 its three-judge panels. the way circuits correct mistakes is through en banc hearing, but the ninth circuit is the only circuit in american history that has become too big to go en banc 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.

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's inability to go en banc with a full court led it to get reversed ten extra times every single year by the supreme court. ten extra times a year the ninth circuit is reversed because of the limited en banc.

when a circuit becomes so big it cannot even sit en banc 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. >> good afternoon, mr. chairman, 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. i commend my chief judge for his superb administration of this gigantic circuit. 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. 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 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 of the other circuits accounts for only 7%s of the nation's annual federal appellate caseload. i urge each of you to open the appendix i have provided to exhibit 7 to appreciate more tangibly such disparities. the appendix begins right after page 19 of the written

testimony, and exhibit 7 is before you. as you can see, the ninth circuit covers a population almost 30 million more than the next largest circuit. 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 caseload 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 are not immune from congressional oversight. the burden is on die-hard split opponents to show why congress should not act to address the overwhelming burdens and vastly disproportionate size of the

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

nominee rejected by the senate. presidents madison, tyler, polk, buchanan, grant, cleveland, nixon, and reagan likewise each had nominees rejected by votes of the senate, while many others were denied seats through senate inaction. in fact, disputes between the president and congress have actually become slightly less, not more common, over time. almost 20% of the first 142 supreme court nominees named by presidents were not confirmed by the senate, but in the 19th century that rejection rate was even higher, at about one third. clearly, the senate has always been an engaged participant in this process. the way the senate has exercised its oversight, however, has changed over time along with changes in our wider society. prior to the establishment of the 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 in put began in 1939 when felix frankfurter, 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 correspondingly 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.

the senate judiciary committee at that time promised that they would have a more transparent process in the future and regular public testimony is part of the fulfillment of that promise. given the role that the supreme court plays in our system of government, this type of robust senatorial oversight is not surprising. by constitutional design, the court doesn't sit outside the system of checks and balances but rather through the confirmation process is embedded within it. 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 colin 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.

this the inception of the hearings the most common issue of discussion has been civil rights issues, followed by issues involving judiciary philosophy, and criminal justice issues. over the past 80 years the particular topics have changed. they've tracked the issues that are of concern to the american public during different eras, but the key point is that the confirmation process has always been a forum to help illuminate how our constitution connects to the deepest concerns of the given era. importantly, nominees have facilitated this by being willing to answer questions. contrary to the inaptly named ginsburg rule, supreme court justices including justice 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 reluctant to offer opinions on currently contested issues. so, for example, although nominees at times have been reluctant to opine on cases that they consider controversial, for at least 30 years, they have readily affirmed the correctness of brown, rejected lockner and messy, agreed that the constitution includes a basic right to privacy, agreed that gender discrimination warrants heightened review and that free speech protections extend 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 protection in one's home. what issues are and aren't controversial and therefore which issues the nominees are willing to provide firm opinions on has 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, the 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. >> thanks, mr. chairman, 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 on this topic makes it

clear -- and i believe that this hearing will, if anything, affirm that view -- and i want to welcome our witnesses today and judge sydney thomas, the chief judge of the ninth circuit who is in the audience today. i believe he's been stedfast in defending this circuit. we're 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 assess the

record and qualifications of judge kavanaugh to be on the united states supreme court. in effect, he has chosen to keep from us key records that relate to judge kavanaugh's service in the bush administration, as staff secretary in the white house. his role there has been characterized by our colleague john cornyn as being no more than a traffic cop, that's a quote, no more than a traffic cop, but that view 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 for president bush were the most interesting and in many ways 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 is part and parcel of a broader effort to limit the senate's advice and consent function. i think that we have seen the performance already 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 fitzpatrick, can you walk us through the best arguments for and against nationwide injunctions? >> sure. so the best argument for nationwide injunctions is that sometimes there will be people who could be harmed irreparably and who are unable to join a

lawsuit quickly, and so the best thing for the judge to do in those circumstances is to include those persons in the injunctive relief granted against the defendant even though those persons are not a party to the lawsuit. one example that was given is with regard to the president's travel ban. some people say that that ban went into effect while some people were flying on their way to the united states of america, while they were in an airplane they could not join a lawsuit. my own view is, once they land, they can join a lawsuit. i 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 persons in the relief is against their interests. we have a process in place to allow courts and litigants to affect the rights of people who are absent. it's called the class-action lawsuit. in order for a case to become a class action and to affect absent persons, the judge has to sign off on many criteria that protect the due process rights of absent persons. 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? that process is evaded, all of those protections we put in place to protect the rights of the absent persons are evaded, when a judge includes them in

the relief without signing off on those criteria. the other arguments against the universal injunctions are the forum shopping it causes. you find one -- there are 700 district court judges in this cont. you can find the one odd ball that thinks that the administration's policies should be stopped, and if you go to that guy or 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. we've seen people who are 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.

those are some of the minuses and that's the one plus that i've seen talked about in the scholarly work on the subject. >> thank you. in the interest of getting to some of the other senators that have obligations this afternoon, i'll reserve the rest of my questions for the next round. senator blumenthal. >> thanks, mr. chairman. professor ringhand, i would like to follow up on some of your testimony. as you may know, i ask most judicial nominees, perhaps all of them, whether they disagree with certain established precedence of the united states supreme court, including brown versus board of education, roe v. wade, and others, that seem pretty well established and well accepted in our juris prudence. these past nominees, most of them until recently, have said

that they could not comment because of some norm, practice, cannon of ethic, 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 is being referenced, it prohibits judges from making commitments or appearing biased in inappropriate ways, but throughout the -- and that is a real concern, that nominees have to grapple with in their testimony to avoid the appearance of inappropriate bias. 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. what nominees have tended to do is to draw the line so as to give firm answers, to provide responses to questions 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. 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 ethics that precludes comment, per se, on whether a nominee

agrees or disagrees with a well-established precedent? >> correct. >> is there any reason that nominees should object to providing documents that relate to their past government service? >> that is not an issue i have looked at. i can say just having spent a great deal of time 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 justice 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 seeing, senator. >> thank you. in the interest of our time for colleagues, i, too, will defer questions. >> thank you. senator kennedy? >> professor, you clerked on the ninth circuit? >> i did, for judge diarmuid o'scannlian 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 size of the ninth

circuit, congress has broken it up. this is the first time we've allowed a circuit court to get as big as this one. >> and it's my understanding that the ninth circuit can't even meet en banc. >> that's correct. it would be hard to put 29 judges on one bench so they don't do it. >> isn't that unfair to litigants? >> i think it is not desirable because you can have some nonrepresentative judges make up the majority of the 11-judge panel. i remember one time when i was a law clerk we had an en banc hearing where the 11 judges were ten democrat appointees and onep republican appointee and that was not representative of the ninth circuit. >> what percentage of the ninth circuit's opinions are reversed by the united states supreme court? >> it's a small percentage because the supreme court takes very few cases every year. for every 1,000 appeals that the

ninth circuit decides, 2.5 of them are reversed but that is still 50% higher than the next most reversed circuit and 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 joined the ninth circuit, how many members were there? >> there were 28. >> okay. and there are how many now? >> 29. # >> how do you function with 29 judges?

i clerked on the old fifth circuit and i don't remember how many judges there were, but there weren't nearly as many as there are today on the ninth circuit and it was -- it was almost unwielded then. 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 manage 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 en banc cases in the limited form, not that we couldn't, we have two courtrooms one in san francisco, one in pasadena, which have 29 seats -- it's a three tiered courtroom with 29

seats for 29 judges, but they've never been used for a full court en banc. theoretically we can, but it's never been done. i gather when the old fifth circuit had an en banc matter somewhere in the late '70s, the judges discovered that i think 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 5th. >> judge, 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 argument for keeping the ninth circuit the way it is, is we make it work. that would be our obligation in any case. >> that's not the issue, is it? >> no. >> the issue is, are we better? >> and would it be more consistent with the overall structure? my strongest argument is that circuits split over time -- the tenth carved out of the eighth in 1929, the 11th carved out of the fifth in 1981, the d.c. circuit was 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 hirono. >> thank you, mr. chairman. i'm not sure why we're having this hearing today. with the question of the ninth circuit split, it's nearly identical to a field hearing that senator flake held in arizona where judge o'scannlian submitted the same testimony almost word for word. nothing has changed since then except judges in the ninth circuit have continued to make decisions this president doesn't like. he wasn't happy when a judge in hawaii ruled against his muslim ban and when a judge by a republican appointed by a republican president by the way in san diego began to hold this administration's feet to the fire about reuniting the families that the president so up necessarily and cruelly separated at the border.

in fact, all three topics today are in my view just political reactions to the role that the federal courts have been playing in response to the president's disregard for the constitution, and i say thank goodness that our courts are still independent, although court packi packing is going on at a rapid pace as far as i'm concerned. believe there are better ways for this committee to spend its time. however, we're here today and have been able to hear from judge o'scannlian and i found the testimony that ninth circuit judge sidney thomas who is in the audience, welcome, judge thomas gave in rebuttal hasst year 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 kind of surprised, professor fitzpatrick, when you noted that you were troubled by a panel,

the ninth circuit panel, with more democratically appointed judges than there were republican appointed judges, which seems to indicate you think that judges are exhibiting political tendencies, and i think that -- is that really how you feel, that somehow the judges that sit on a panel should be evenly split between those nominated by republican presidents and those nominated by democratic presidents? >> no. that's 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. as i noted the district judge in california appointed by -- nominated by president bush is the with one that is holding the

administration's feet to the fire over the issue of the separation of children from their parents. i think the fact that -- somebody is nominated by a republican or a democrat should have absolutely nothing to do with the ability of that judge to be fair. in fact, that is the reason that we have advice and consent by the senate, and i wanted to ask professor ringhold, i think you've been watching the -- what's been happening in this judiciary committee, particularly with reference to the gorsuch hearings and we're about to have hearings on judge kavanaugh. they constantly -- in fact, the district and circuit court judges 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 it to our questions that reveal their

judicial philosophy or how they would approach cases? >> yes, senator, thank you. the ginsburg rule is, as i mentioned in my opening testimony, rather poorly named. it has come to be a shorthand way of capturing the idea that nominees should not answer questions on the grounds that they need to avoid making precommitments or having an appearance of bias. it has been used in that shorthand way quite broadly in a way that does not reflect what justice ginsburg did herself at 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

tense, 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 looked at both of those things. in other words, both how often a nominee refuses to answer and also how often they do. what we saw was that justice ginsburg did invoke a privilege, she refused to answer a high rate of questions, but she also did answer a lot of questions while 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 have submitted a letter that i would like to have in opposition to the split of the ninth 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 ninth circuit it could actually maybe lead to inefficiencies, but i think that a circuit that has almost four and a half times larger backlog than the average backlog of the other one, there's something inherently wrong there in terms of trying to draw the backlog down. judge o'scannlian, would you have a comment on that. >> well, it goes without saying that smaller units, first of all, are more culturally cohesive, they function in a closer working relationship, they have a smaller number of cases for which they'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 sync because of the case load. 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 five-fold increase in population that the circuit represents. it just seems like with any other organization we have to go back. people have different motivations for breaking up the ninth circuit or reorganizing it or restructuring. i think it could be said that all of the circuits could be looked at to determine whether or not we're running as efficiently as possible. i know the discussion is more about the ninth circuit but from an organizational perspective, the whole of the circuit court system has never really been

looked at to optimize it and get the numbers down. 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, supported bitwi 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 ninth circuit resisted and that's where we are today. 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 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 decides for 600 others. it seems to me that 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? 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 and now you're saying similar outcomes, different reaction on my part, with the trump administration. i think both of them are wrong, though. how do you feel about it? >> mr. chairman, i'm afraid i would have to invoke the

ginsburg rule. i would have to say, i would love to talk to you about it, but it's more than [ inaudible ] that very issue is pending in my court and actually assigned to a panel that i would serve on. i have to decline. >> i had it to ask. the last comment that i want to make is we've had some discussion about the supreme court nominee before us and the requirement for documents. i think for one thing we should be able to provide a realistic solution to the requests that have been made and i believe that the chair has, but, you know, when 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 quoting scripture saying if you were to support this nominee you are either complicit in evil or contributing to the wrong or fighting against it.

we have a nominee on this committee that said whoever was nominated would bring forth the destruction of the constitution of the united states within 24 hours of the nomination said that kavanaugh would be his worst nightmare. yet, they're wanting millions of pages apparently to be instructive 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 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've 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, but she asked again

what purpose of this hearing is when there was a field hearing on the ninth circuit last year. this hearing is an oversight hearing on the biennial report of the judicial conference. that conference recommended 57 new judgeships, five of them circuit, all five of them in the ninth circuit, because of the caseload and because of the backlog. this hearing is not specifically about the ninth circuit. it's about the report of the judicial conference where justice is not being administered because of the backlog and that just happens to point exclusively at the ninth 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 fitzpatrick, good to see you again, your honor, good to see you. i don't know miss ringhand, but welcome. let me start with you professor, fitzpatrick, this whole idea that a single district judge could issue an injunction that would cover the whole country and everybody in it, it strikes

me as inconsistent with the individualized showing that a plaintiff seeking an injunction would have to make. irreparable harm, no adequate remedy at law, and it strikes me it's more like judicial policy making as opposed to a case-by-case determination of the laws that applies to the facts in a given case presented in court. and if there's one thing that i think has done more damage to the judiciary and causes the acrimony associated with a judicial confirmation hearing, it's the perception that judges are not deciding a case based on the facts in the law in front of them, but they're policy makers 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 nominations, 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? >> i 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's a 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 things to change? will the supreme court have to grant writ on that issue and how could it be presented for a decision? >> well, i think the supreme court could decide that this goes beyond the article 3 power of the federal courts. i believe that was teed up in one of the travel ban cases and the court did not decide that issue, although justice thomas did write a separate opinion that went into that. i think the congress could probably do something about it. 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 i think that you could probably enact a 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 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? >> yes. as a matter of fact, a very high number of visiting judges -- >> turn your microphone on. >> thanks, judge. >> is it on? all right. yes, we have a very large number

of visiting judges because of our caseload 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 our heavy caseload. >> they have shown themselves competent to apply ninth circuit precedent. >> that's their obligation, to apply the precedent of our circuit. >> if we're really concerned about access to justice and concerned about the consumer, the citizens who go before the court, why wouldn't congress go in and try to reallocate the number of judgeships to deal with the caseload that the different courts are experiencing? for example, those courts that have less cases per judge, maybe take some of those judges and assign them to other circuits or somehow otherwise reorganize it by caseload. >> 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 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 equalize or establish some parity of caseload for judges, 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 caseload 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 speaks directly to this, 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 right around a thousand. 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 in 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 justice thomas' opinion rightly focuses on the impropriety of a district judge engaging in nationwide 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 months in the ninth circuit to decide a case, which is the longest of any circuit, and almost five months more than the national median. 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 even look more broadly around the country, you will see the biggest circuits tend to have the biggest backlogs. it's just a matter of administrative difficulty to handle that many cases. and, you know, part of the difficulty comes from the fact you've got so many three-judge panels on the ninth circuit with so many cases, that half of the job is keeping up with what the other panels are doing, and it's very difficult to do that. and the ninth circuit ends up with a lot of intracircuit

splits where different panels decided the same question differently. so that leads to a whole bunch of additional litigation to figure out which panel 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 circuit court system to ensure uniformity of rules of law that people can know and plan and behave accordingly. judge o'scannlain, you've 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 the -- i suppose, if i were to answer your question, the problem is best highlighted by what 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. the national system is built to resolve intercircuit 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 a circuit. but because of our size, that happens regretfully, 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 who agree to take it enbanc, and the

intercircuit -- intracircuit conflict continues, 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 a reversal was a judge o'scannlain dissent which was a canary in a coal mine. but my question, professor fitzpatrick, is there any reason that 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 or losing the tooblt adjudicate. is there any reason why this has to be a partisan divide? >> senator, i remember that macro very well. it was control n on my computer. senator, i think 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 often argue that specialized courts expertise in particular subject matter better equips them to reach the right decisions, especially in cases in which there's an imbalance and sfuft case and resources between the parties. nevertheless. the opponents argue that the specialized courts are some of the pen naum nonof 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 maybe a bit quicker on administrative law than some of our 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'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 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. when i was at the court, that's what we would call it when we were looking at a cert petition. we'd say there are only two circuits that have weighed in on this issue. we should wait before we take the case for more courts to weigh in. wait for more percolation. we miss out on all that learning. that's a hallmark of 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 so even if we get more expertise developing in a specialized court, i'm not sure it's 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'scannlain, there's the argument that professor fitzpatrick has made that 6 of 11 is not in any way representative of 29. i think the intracircuit split argument and the subsequent litigation that may follow on is a particularly compelling argument. you made the argument even though there are courts that could seek 29 judges, it's a particularly cumbersome way to administer justice. you made another point that i want to ask you to unpack a little bit. you said something about the collegiality and the

interpersonal relationship 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'll have 46. and not surprisingly, the whole idea of getting to know each one of your 46 colleagues in terms of understanding that person's jurisprudence, that person's approach to deciding cases, is almost impossible. we do our best. we have quarterly court meetings. but in terms of our assignments, typically we sit on eight panels four days every year, so you 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 enbanc rehearing. that is done on a random basis. the chief is on every en banc 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 i admire tremendously your service more than three decades on the court as well as your service before that to the state of oregon and your service in our united states military. and also, i'm in awe of your family, eight children.

>> thank you. >> so i'm in awe mainly of your wife, i must say. >> thank you. >> so i ask these questions with great respect. first of all, i note that on page 8 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's not really a metric of whether a circuit court is functioning well. >> i agree with you on that, senator. part of my focus in my oral presentation was to emphasize that that's one of the issues, plus the partisan side of things, that really should be excluded from an intelligent discussion about the judicial administrative issue.

>> i agree. and let me ask you to follow, 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 caseload, 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 judgeships. 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 calls for a total reorganization. i think that 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 commissioned that will look at some other phase. but justice vanderbilt of the supreme court of new jersey made the famous statement saying that judicial administration is no sport 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, if we apply those metrics, could apply, maybe not to an overall, complete reorganization -- >> no. >> -- but to other circuits as

well. and maybe if we're going to 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 -- judgeships, transfer it to the ninth circuit. >> let me ask you and i've said it before for the record 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 bu 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, 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 scannlain, 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 you would agree with that. my understanding is 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 that 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's been noted that in some instances, courts will dole with -- deal with their large appellate caseload in part by issuing unpublished opinions. 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, 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 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's 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. 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 outlier. 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 to be -- well, in practice it's 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. >> 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 en banc practices. you are the only circuit that doesn't have truly en banc proceedings, right? >> we're the only circuit that exercises the option that we have in the 1980 legislation, to have a limited en banc. we discern what number of judges the en banc court should be.

at the moment it's 11. we had 13 for a while and then 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. >> well, every -- once a case has been selected to go en banc, 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 pong ball or something? >> it's a little stick, really. that process goes on for each independent decision, each independent case. >> but the difference there is

that in other circuits, once you have an en banc argument, you've typically got all the judges -- >> that's true. >> -- reaching a conclusion as to that discreet 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 intracircuit 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 -- 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. >> right. >> 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 related to the debates about the split of the ninth circuit. both senator sullivan and danes are strongly in support of splitting the ninth 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.

coming up today, a discussion on the first amendment and whether so-called hate speech should be outlawed. live coverage from the heritage foundation begins at noon eastern on c-span. senate intelligence committee vice chair mark warner speaks today about the committee's investigation into russian election interference. live coverage from the institute of politics and public service

at georgetown university begins at 7:00 p.m. eastern on c-span2. c-span's campaign 2018 coverage continues tonight in pennsylvania's redrawn 17th district race. as republican congressman keith ra rothmus debates connor lamb. also tonight republican senator ted cruz faces democratic congressman beto o'rourke starting at 9:00 p.m. eastern on c-span, cspan.org or listen on the free c-span radio app. c-span is your primary source for campaign 2018. earlier this month, mitt romney, who's running for the senate, talked about the trump administration's policies and the future of the republican party. watch that tonight at 8:00 p.m. eastern on c-span2. also online and on the app. tonight american history tv

and our lectures in history series which takes viewers inside college classrooms. programs this evening are on the civil war starting with villanova university professor judist gees berg and now middle class women volunteered during the civil war. american history tv begins at 8:00 p.m. eastern. next, a forum on the 2008 financial crisis. later, congressman jeb hensarling on the growing risk on the u.s. housing mortgage market. the american enterprise institute hosted the event. i want to welcome all of you to our panel on the causes and remedies for the financial crisis. i'm pet