implicit assumptions. one is that the courts are perhaps not perfect, and maybe some improvements might be in order. and for the perspective from the bench, we have six extremely experts engaged and experienced federal judges who have collectively, and rounding off a few months, they have among them 102 years of experience as federal judges. given that, we've decided to dispense with opening statements and plunge right into our conversation. i am introduce them extremely briefly in the order in which they are speaking, which is not quite alphabetical because we have two judges from the ninth circuit. so i thought to devise to separate them, and in the middle we will have judges representing four our circuits. so to my immediate right is

marcia burson of the ninth circuit. she was appointed by president clinton in 1999. to her right is judge karen nelson moore of the sixth circuit, who was appointed to that court by president clinton in 1995. obviously there is much more i could say about each of them, and when they speak, maybe they could bring in relevant parts of their background. to her right is the judge appointed to the d.c. circuit by president clinton. so his right is judge j. harvey wilkinson, who was appointed by president ronald reagan to the fourth circuit in 1984, which i

guess makes you the senior -- no, judge ryan heart. to judge wilkinson's right was is judge -- a judge who brings a scourt perspective. >> last but not leeth, judge reinhart who was appointed by president carter in 199. to plunge in and taking them in that order, i wanted to get people talking about the topic of improving the courts. what are the major challenges facing your circuit? i would like to bring out the fact that, just like not all judges are the same, not all

circuits are the same. they face different kinds of problems. sketch out for us what are some of the major challenges, problems, aspirations of life on your own circuit? >> first i would like to begin by noting, which is obvious, that we are all circuit judges, which means that although this is billed as a discussion about the federal government, it is really a discussion about the federal courts of appeals, and the escort -- zorte issues are quite different. secondly, although there are more things we can talk about, it seems order arely to talk about one issue. on my behalf, that is the issue of the number of judges and how the inadequacy of the number of judges on my circuit effects the court.

to begin with the second point, the fact is that we have not had a new judge on the ninth cirque since 1984, well, that is not quite accurate. we have one new judgeship transfered to our sict from the d.c. circuit because we needed it, and they did it. we have two vacancies, and we will have 29 active judges. we are unique in that regard. as you know, the question of whether we are too big has been a major issue for years. i don't think we are, but i don't really want to get into that right now. in any event there has not been a new judgeship in the ninth cirque since 1984. there has not been a new federal appellate judgeship in the country since 1990, almost 20 years. in that time the number of

cases filed in the ninth cirque has gone up 2 1/2 times, and the number of cases filed nationally has doubled. what that means, obviously, is that we are doing as much work with half as many people, and it shows to me. it shows in my court. their number of filings is about one fifth what ours is per judge. on our circuit there is simply too much work to be done in any depth carefully and well. and as a consequence, in my view it often isn't done in depth, carefully and well. i also think that the stress of too much work to do in too little time exacerbates

ideological differences, and keeps judges from sitting down and thinking very hard about something. it has another consequence as well, which is that we end up being much more dependent on staff. the ninth circuit in 1975 had 11 central staff members, and it now has 84 -- lawyers i mean. what that means is that a great deal of the work is done at least initially by attorney staff, who then make presentations to panels of three judges, but in an extremely quick order and in a really dash -- in a way we can't responsibly think about. we have integration cases, a great deal of this increase recently has been in our circuit, the second circuit in a few others have been immigration cases.

immigration cases have gone up about 10 times -- no, not that much, about seven times since i have been on the court. now a lot of them are quickly disposed of, but a lot of them aren't, or shouldn't be. and they are disposed of more quickly than they really merit because essentially we have no choice. in 2008 we had about 1,000 cases per panel, and the federal benchmark is about 500. so in other words, we are doing about double the work that the people who sat down and figured out how much work we ought to be doing said we should. as i said, the filings per panel vary from 256 in the d.c. circuit to over 1,000 in the 11th. so there is enormous variation, and that variation should be taken into acounty in the number of judgeships, biit

isn't as a practical matter. what is happening, as i understand it, is there was a judgeship introduced in 2008, and there is supposed to be another one introduced shortly, although it hasn't been. the judicial conference, which is composed of the center judges of all of the circuits decides how many judges to ask for. i can only tell you that the ninth circuit's request has varied from 10 to four, and i guess five now even though our case load has continued to go up. why exactly that is, i don't know. but the last bill requested four new permanent and one new temporary judge for the ninth cirque and a total of -- circuit and a total of about 12

new circuit court judges. so to my mind, this is sort of a crisis and something the congress ought to be dealing with. obviously there are enormous political headwinds. the bills, when they are introduced, tend to provide for the creation of the judgeships for the day of the next election, thinking that will decrease partisanship in the determination of how many judges to have. even that hasn't worked recently, and there just seems to be a complete stalemate. that is the major issues i wanted to highlight because i think it is not just a question of having too much work to do. it's a question of having too much work to do to do it well and in a way in which it ought to be down.

there just doesn't seem to be the political will to do that. >> before we move on, let me highlight for the awe conference the comment you made about the immigration cases. people may not realize what a real crisis this is. i have herald one of your colleagues talk about it this at length. what is driving the immigration docket of the ninth circuit and the second circuit is primarily that were made during the dungs in the way the board of appeals jude indicates these cases. they used to sit in panels of three and write written opinions and actually make findings that could be reviewed. correct me if i am wrong, but my impression is now they sit as single-member panels and rule summarily without making any kind of written record. the cases are appealed to the federal circuits, and the

judges have nothing to go on. it is a real scandal. >> they have actually been writing a lot more opinions recently. summaries are down to 4% or 5%. it has gone down some, but there is still enormous numbers of them. >> i was interested in what you said about the role of the legal staff in your court because i am not familiar with that. are these people civil servants? >> they are staff attorneys. in our court they have a five-year limit, which i think is a really good used. but other circuits, in the fifth circuits and the 11th, they don't have a limit. they are hired by the court, and they are usually quite good, but they are not attached to any particular chambers, and they tend to think sometimes

they are the judges. >> it sounds as if they are performing quas -- aussiey judicial functions? >> we have in every case a unusual panel that decide the cases they present, but we do it at a speed -- it depends on who is do it. when judge reinhart are there, we do it more slowly. >> does any of this resonate with you in the sixth circuit? >> it all resonates with me. the ninth circuit level is a magnified level compared to ours, but this was the main problem that i was going to address, but i was going to talk about it in a slightly different focus, which is the work of a particular judge. so offense, i have looked at my statistics for the last few years, and i have been writing 50 published opinions a year and basically the same number

of unpublished opinions. that is a fairly high rate of opinion writing. >> as compared to 10 a year for supreme court justices. >> absolutely. but our cases are not of the same nature that the supreme court's cases are. but we have to give careful attention to every case. every case is important to the litigants and to get right. just as the ninth circuit, we have staff attorneys for a certain percentage of cases. we decide between 35% and 40% of our cases after orel argument. those cases are all processed within chambers. but cases that are perceived to be more straight forward issues are originally processed with the assistance of staff attorneys and then sent to a panel of three judges. but the real problem i think in terms of those cases is finding it is key principles in some cases that the staff attorney

might have missed. and there are many serious questions that are involved in those kinds of cases. i think sometimes it is helpful to think of a particular case. i had a particular case that was on that docket that involved a pro se person who had committed some state crimes, that had been incarcerated, and it turned out he had been directed to be repatriated to cuba. but cuba wouldn't take him. so he and another fellow who had an independent case had been incarcerated in detention facilities awaiting re repatriation to cuba, one for eight years and another for something like 13 years. this was occurring before a supreme court case, and the feature was how does a circuit judge spot that case given that

it was a handwritten petition, pro se. you have to really read carefully. it takes time to take care of a case like that and to develop the legal analysis. the person had sort of recognized that there was a due process concern, that he was in detention without having any crime, but not being able to be repatriated to cuba under the circumstances of the case. that is one illustration of a case where it is vitally important the judges pay particular attention to the case, figure out what is involved in the case, then write an opinion, figure out the situations and produce a final opinion that can be adopted by the majority of that panel. sometimes those kinds of cases end of going further to review or to supreme court review.

so that illustrates, frankly, the dilemma that judges have, which we have -- even if we are extremely hard-working and try our best to spend as much time as possible, we have to balance our time on the various kinds of cases that we have. so i think that is one of the big challenges for a judge today given the case load that we have, is how you spend your time making sure that you are attending to each case and given it the attention that is due. the immigration area is another illustration. obviously the ninth circuit and the second circuit have a huge percentage of their docket involving immigration. in the sixth circuit we have approximately 8% of our docket involving immigration. we come after the immigration judge has issued an oral decision.

the immigration judges are extraordinarily overworked. then there is review by the board of immigration appeals, which is usually sitting as a single judge and usually doesn't issue much of an analysis. the d.i.a. opinions are usually fairly short and fairly con clues area in my experience, and so then our court has the burden to make sure we understand exactly what is happening and to reach a just and fair result. the other issue i had mentioned, and i realize my colleagues need to address their issues, but unusual independence i think is a major issue for all courts. certainly there have been periods when the judiciary has been under attack, and i think that is a constant issue and concern, and i would just open up that area as another area of

concern. >> can i ask you to be a little more specific about the judicial independence issues, because it does open up a big topic? are you referring specifically to constitutional intervention in the work of the courts, or what do you mean? >> well, in various periods that has been an issue in terms of perceptions that particular judges' decisions are wrong and need to be corrected apart from the normal process. we have in the third branch the various stages of review, so district judges' decisions are appealed to the court of appeal, which gives careful can consideration. and then the losing party obviously can seek review of the supreme court, and the supreme court is there for resolving the important questions. they are obviously not a court of error, but they are there.

i think another aspect of usual independence is almost implied -- it may be too strong to say threat, but criticism that becomes overboard shall we say. >> judge, how is life on the d.c. circuit? >> very different from the sixth and ninth. in fact, had i heard marcia's report earlier, i would have suggested we send them three sets, not just one. the d.c. circuit faces a very different situation than the two reports you have just heard about. we have only nine active judges on the court. we have no immigration cases. i have been on the court 15 years, and i have never seen one. our case load over the past 3-4 years has been steadily

dropping. >> you have no habeas? >> we have no habeas cases. now, we do have a lot of very large administrative cases, and so our case numbers are deceptive. even though our case load is smaller, many of our cases are much larger -- or i should say we have a higher percentage of very large administrative cases. as a result of this, i don't think anybody on my court feels as if we don't have time to resolve our cases properly. there's no sense at all -- we do resolve a majority of the cases by unpublished judgments. i think it is probably the lowest percentage among the circuits. i don't think anyone feels we are resolving cases by unpublished opinion.

some of us feel from time to time with an opinion that maybe it should have been a judgment. so we don't have that problem at all. even the work of our staff attorneys is quite different. we have about a dozen staff attorneys. the way it works is interesting in terms of the numbers. we take turns serving on our special panel, which resolves all of these cases that could be resolved without oral argument. every thursday those members of the panel, we receive a stack of cases from the legal decision, these lawyers who prepare these. sometimes it is three or four cases, sometimes it might be 10. each one comes with a detailed memo, sometimes 20 or 30 pages with all of the pleengs

attached to it. we each review them, and then every other week we meet as a group and go over them. so even though that go through the staff process get very close attention. some of those cases we will second guess the staff attorneys. but i don't think any of us feel as if we don't have the time or the materials we need to make those judgments intelligently. so the situation on my court is just totally different, but it is different because we face a completely different case load than the other circuits. linda has pressed me to come up with some problems that we have . [laughter] i guess i would mention two. one is that i worry that we have too many pro say -- pro se

cases, 20% to 30%. i am told that is lower than other circuits, but still, there are too many pro se cases filed with the court. many of those end up with the staff cases, and we work hard on them to make sure we are looking at them as carefully as we can. but nevertheless, without a lawyer, i worry about the quality of the decision-making. when we need to, we appoint counsel, but we can't appoint counsel in all the cases. my other concern is that although we see on the d.c. circuit what i suspect is some of the best lawyering in the country both in our civil and criminal cases, very, very fine lawyering, there are areas where the lawyering is deeply disappointing and wore some to me -- worrisome to me.

i will mention one area, and that is pointed discrimination cases. we see quite a few of those on the d.c. circuit. the quality of the work of many of the lawyers bringing these cases is below standard. i have spoken to them about this. i am not saying anything i haven't said before. and as a result, cases that shouldn't be considered employment discriminations are being brought, producing what may look to some to be bad low. and those cases that do get before merits panels and are resolved, often the lawyering is significantly below par. there are a few other areas like that on of the court, and i don't know what to do about it. i would say if you polled the members of the d.c. circuit and

asked them what problems we face, they would probably all say in one form or another there is a quality problem. we would perceive it differently, but nevertheless we would all agree that in various areas of the advocacy before the court, there is a quality problems, which in the end we try as hard as we can to overcome that. but i would be kidding you if i said that the quality of the product is always just as good in a poorly argued or briefed case as they are in really well briefed and argued cases. >> it is a challenge for the bar. >> a serious challenge for the bar. >> we should get back to that. judge wilkinson, your court has been more visible since 9/11, and i wonder how things are going on the fourth circuit? >> well, it depends on who you ask.

i take a little different view from marcia and steve on the basis of some of his past pronouncements about the desirability of growth in the federal circuit. i think that adding judges to the circuits to deal with what is undeniably a large volume of cases is really a bad way to go. it has all sorts of liabilities to it. it increases intracircuit conflicts. i think it diminishes the clairity of cirque law. if you have a relatively small court, the chances are you are going to have somebody on the panel who is familiar with the precedent, knows it, will stick up with it and say wait a minute, this case would be inconsistent with something i sat on at an earlier points in

time. so keeping the court relatively small adds to the coherence of the body of circuit law, and coherence is important in terms of what lawyers and lit gans -- litigants in the field can conform their behavior to. i think the larger the court gets, there may be a drop-off in collegiate a lot. i think those kinds of relationships among judges are terribly important to thoughtful decision-making, and i would hate to see that happen. our court depends on every judge of the court acknowledging an opinion before it is finally issued. that would be a very difficult practice for us to follow if we had 19 or 20 judges. we strain to continue with it

at our present level. and then there is a larger question. do you really want to adjudges indefinitely to the courts of appeal? it seems to me there are several probables with that. number one, you simply increase the size of the federal judicial presence vis-a-vis other actors in the system such as congress and it is states. the other thing is the larger the federal judiciary grows, the more of an invitation it is for congress simply to add jurisdiction, and some of that jurisdiction shouldn't be there. do you really want, for example, the federal courts to be handling criminal cases in the case where every felony is committed with a fire arm? there have been bills introduced to that effect. if we have larger and larger numbers of judges, you worry about people in congress saying yeah, we can have felonies committed with a fire arm

entrusted to the federal court because look at all of these judges we have just given them. there are so many drawbacks to growth in additional judgeships. i have really only begun to scratch the surface on it. i think there are some undeniable problems that are pointed to. the immugration problem is one, but i don't think we should try to use the immigration case load as a catalyst to adding additional judges to the fourth circuit court of appeals. it seems the way to go with that, and i agree with what linda said about this, that you can maybe add additional judges to the b.i.a. and help with it that way. but i think the wrong way to go