this hearing: comes to order. the courts occupy a critical position in our country. the government derives its just power from the consent of the governed. that idea translates into the constitution's vision for the executive and legislative branches. nevererican people are

more than two years or 730 days from choosing to rehire or fire the vast majority of federal elected officials. judiciary, one of the coequal branches of our government, can't be fired by the people back home. understand, weo need to look at the preceding declaration, which is to secure the in alienable rights with which our creator has endowed us all. prosper, ity to requires the rule of law, not the rule of men. the founders designed the federal judiciary as an institution guarded against the ebbs and flows of public opinion. one of the most important responsibilities with which the constitution and shrines the senate in particular is the

maintenance of the judiciary. in givingdes our role advice and 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 have in it, the past 18 months has seen remarkable quality in the nomination of jurists. constituting the supreme court, the constitution leaves to congress the matter of the judiciary. over two centuries congress has continued to update the federal judicial system with changes ranging from small tweaks to major innovations, to improve the efficient innovation of justice. congress must continue to exercise our vital responsibilities, including in hearing today. biannually, the judicial conference of the united states

conducts a survey of judge ship needs across the federal courts. after the most recent survey, the congress released to recommend -- the conference recommended 57 new judge ships and that a temporary judgeships permanent judgeships. five of the new judges would be circuit judges 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 think them for their willingness to submit written testimony for this hearing. has a duty to examine these recommendations and determine whether off rising new judgeships is the best way to ensure efficient administration of justice. our chairman, chuck grassley, has a long record of oversight on this topic and has been an advocate for alternative means

in handling expansions in caseloads. because we had a delayed start, chairman grassley had to leave but will submit written questions for the record. with perspectives from the bench and the academy, this hearing will provide an opportunity for committee ofis jurisdiction on what is working and what can be improved in regard to our federal courts. i would like to acknowledge senator sullivan of alaska and senator daines of montana. both are vested in ensuring the judiciary serves their constituents. i want to thank them for the presence. i will recognize senator blumenthal as the ranking member of the committee for an opening statement when he arrives, and i will introduce our three witnesses. we will hear from professor brian fitzpatrick. fitzpatrick serves as

a professor at vanderbilt university law school and focuses on class-action little station, the judicial courts. he joined the vanderbilt faculty in 2007. he graduated first in his class that harvard law school and clerked for judge scanlon on the ninth circuit and justice scalia on the supreme court. practicedfitzpatrick litigation for several years and served as special counsel for the supreme court nominations process for senator cornyn. professor fitzpatrick graduated summa cum laude from the university of notre dame and will serve as a visiting professor this fall at harvard law school. scanlon was o appointed u.s. circuit george for the ninth circuit by president reagan in 1986 and assumed senior status in 2016.

pioneerbers are in the courthouse in portland, and as a judge on the u.s. court of's forals -- court of appeals the ninth circuit, judge o scanlon has participated in 6000 federal cases and has written opinions on a bride range of subjects including international law, securities law and criminal law. before appointment to the federal bench, judge of scanlon was engaged in private law practice and he served as deputy for oregon,eral public utility commission for the state of oregon and the director for the oregon department of environmental quality. he is chair of the judicial and chairedthe aba, its knife appellate practice appellate-- ninth practice institute. serving as ao

faculty member at numerous seminars, including the nyu law school institute for judicial administration, judge of scanlon has served as an associate adjunct professor at lewis and clark law school, where he continues to teach a seminar on the supreme court. received his ba from st. john's university and has earned an llm in judicial process at the university of virginia law school in 1992 and has been honored with numerous honorary degrees. we will hear from professor -- ringhand.and, she has been a member of the sincea state law faculty 2008. she isationally known -- nationally known as a supreme court scholar. she is co-author of "constitutional law: a practices

casebook." it is dedicated to teaching active learning methods. the professor recently received a fulbright distinguished chair award. willulbright research study campaign finance regulation and the u.s. and u.k.. she has served as an associate academic dean. ringhand has received the ronald ellington award for excellence in teaching in 2010 and 2015, and the john o'byrne award. ringhand graduated from the university of wisconsin law school, where she served as editor of "the wisconsin law review." before coming to the university of georgia, she served on the

faculty of the university of kentucky law school and is a visiting scholar at oxford university. if i could ask the three of you to please rise. do you affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth? all three answer in the affirmative. senator: thank you, mr. chairman. i want to address two issues, district court judges entering nationwide injunctions, and the size of the ninth circuit. both of these issues -- both of these issues raises similar question. how much power do want to concentrate into 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 11 district court judge and joins 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 are well aware of. it is the largest federal court of appeals in american history. when two judges on a three-judge panel of the ninth circuit decide what federal law means, they are doing it for 20% of the country, 60 million people. that concentrates a lot of power in the hands of two judges. concentratingo judicial power is that judicial errors become magnified. this happens in two ways. is very simple when a judge makes mistakes and when power is concentrated, the

mistakes affect more people read if you put all your eggs in one basket, it is worse when you drop the basket. likely judges are more to make mistakes to begin with when we concentrate power into few hands. consider universal injunctions. toht now, litigants are able file lawsuit after lawsuit, asking for an injunction until they find a district court judge willing to enter one. but that judge may have odd views that are outside the mainstream. in fact, plaintiffs often seek mostudges with views disposed to them. it is called forums shopping. one judge that enters the universal injunction can trump all 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 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 three-judge panels led by odd judges with nonrepresentative views. the math on that is in my written testimony as well. part of the reason is because the ninth circuit cannot correct mistakes made by three-judge panels. the way circuits correct mistakes is through on-bond re-hearings. is the ninth circuit only circuit in american history become too big to go en banc with a full-court. this means that as few as six judges can't control the ninth six judgest those

could be unrepresentative of the full 29. this is not just a theory. done very good, empirical studies showing that 's size leadscuit it to get reversed by the supreme court more often. by a politicalis scientist who used to work at the administrative office of the federal courts. now, he is a chief of statistics at 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 10 extra times every year by the supreme court, 10 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 is a full-court to correct the

mistakes of its three-judge panels, that circuit has become too big. thank you very much. thank you, professor fitzpatrick. judge of scanlon? judge: i appeared today in support of efforts to reorganize the ninth circuit that have been recently introduced in congress. do not be mistaken, i love serving on my court. appreciate my relationships with all my colleagues, soon-to-be 46 when vacancies are filled. for hisd my chief judge superb administration of this gigantic circuit. and not just because he is here in this room. my chief judges 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, and for more than 20 years i have advocated a common sense restructuring of my court. i have testified five times andre this very committee, four times before its house of representatives counterpart. i do not wish to repeat all that is been said over the past two decades. my written testimony with withdices is before you, substantially more detail then i will cover in this oral presentation. i would like to highlight two points. much-needed restructuring of the ninth circuit should not read the invasion of party politics into the judiciary. reshaping the ninth circuit should be a matter of national judicial administration, and the

common sense reaction to changing circumstances of our nation, not supreme court batting averages for ideological labeling. is entirely normal and desirable for federal courts to be restructured in response to population and docket growth. as courts grow larger, they must sometimes divide into smaller, more manageable judicial units. only nine federal courts of appeals when the system was created in 1891. as a result of several are restructurings over the years, we now have 13, 12 regional circuits and one national circuit for certain areas of federal law. there could hardly be 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, 20% of oure nearly nation's court of appeals judges. of theare, the average other circuits accounts for only annualhe nation's federal appellate caseload. i urge each of you to open the appendix i provided to exhibit seven, to appreciate more tangibly such disparities. after pagex begins 19 of the written testimony, and exhibit seven is before you.

you can see the ninth circuit covers a population of almost 30 million more than the next-largest circuit. follows from that feature is easily visible if you turn to exhibit 12. circuit has the largest backlog in the country, by almost 7000 appeals. inappropriate as a matter of national judicial policy to allow one circuit to grow to a side that is -- grow to a size that is so vastly disproportionate to all the other circuits in the federal court system. it has long been time to take the sensible step to do something about this disparity. conventional wisdom suggests 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.

a 1973 commission explored several options when it recommended that the then-fifth circuit and the current ninth circuit be split. be commission boldly sensibly recommended the ninth circuit be divided through with a southern 12th circuit to be based in los angeles and the northern ninth circuit to be based in san francisco. circuit promptly was split but the ninth circuit judges resisted, and congress than halfnow for more a century. regrettably, the chief judges of the ninth circuit has continually resisted a necessary federal care. after the senate passed a ninth circuit split bill in 1997, our then chief judge called for another study. congress obliged by creating the so-called white commission, which reiterated the 1973

observations of the commission 1998 that thed in circuit be split into 37 autonomous divisional courts. yet once again, our circuit rejected the commission's well-considered recommendation. considered resistance can no longer be justified. it is no longer defensible to so much of our of 12's caseload to one regional circuits. although the business of deciding cases and interpreting the law is left to us judges alone, administratively we are not immune to congressional oversight. the burden is upon diehard split opponents to show why congress should not act to address the overwhelming burdens and vastly disproportionate size of the ninth circuit, and a system of

supposedly coequal appellate courts. thank you, mr. chairman. thank you, judge. professor ringand. ringhand: as you know the u.s. constitution provides that although the president nominate supreme court justices, they take their seats only with the advice and consent of the senate. throughout history, president and senators have taken the responsibilities seriously. since they have not always agreed about these important confirmationver, controversies have existed throughout our history. our first president george washington had a chief justice nominee rejected by the senate.

numerous reagans like what -- numerous presidents likewise had nominees rejected, while many other nominees were denied seats through senate inaction. disputes between the president and congress have become slightly less, not more common over time. almost 20% of the first 142 supreme court nominees named by presidents were not confirmed eerie but in the 19th century, the rejection rate was higher, one third. the senate has always been an engaged participant in this process. the way the senate has exercised its oversight, however, has changed over time. prior to the establishment of the senate judiciary committee, the senate as a whole considered nominations and private, without public input or prior committee review. committee review was established committee wasthis

established, but meaningful public input began in 1930 nine, when felix frankfurter 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. public nominee testimony was not surprising. american democracy in the 1900s through therobust, passage of the 17th and 19th amendments and the emerging civil rights movement senate sought to legitimate its work to a broader and more engaged constituency. there was also more explanation for felix frankfurter's testimony. earlier gotten itself into trouble when it confirmed hugo black without public discussion about what the senators knew of his prior affiliation with the klan.

the senate judiciary committee at the time promised a more transparent process in the future, and public testimony is part of the fulfillment of that promise. given the role of the supreme court in our government, this robust senatorial oversight is not surprising. design, theional court does not sit outside the system of checks and balances, but rather through the confirmation process is embedded within it. and confirmation hearings from the start have provided a forum in which senators engage nominees on substantive issues of constitutional important. have beenors and i able to quantify this through a data set that codes every question and answer at every public confirmation hearing since frankfurter. of work confirms the nature this process. since the inception of hearings, the most common issue as been civil rights issues, while the bite issues involving judicial

philosophy and criminal justice. theser the past 80 years, particular topics have changed. they have tracked the issues of concern to the american public during different eras, but the key point is that the confirmation process has always illuminate how our constitution connects to the deepest concerns of a given era. nominees have facilitated this by being willing to answer questions. named theo being ginsburg rule, supreme court justices typically have been willing to answer questions about some constitutional issues while avoiding discussions of others. nominees since frankfurter abstract this balance by being willing to provide opinions on settled areas of law, while being reluctant to offer

opinions on currently contested issues. for example, although nominees have been reluctant to opine on cases they consider controversial, or at least 30 years they have readily affirmed the correctness of brown, rejected lochner and plessy, agreed the constitution included a basic right to privacy, agreed gender discrimination warrants--- warrants heightened review and that free speech or politicalend beyond speech. they have confirmed the core holding of heller, that the second amendment embodies the right to bear arms for personal protection inside one's home. what issues are controversial, and which nominees are providi have changedons on over time, but what has to stay constant is that nominees 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 constitutional process and your -- the confirmation process and your role in it is so important. confirmation hearings are one of the ways in which we weave contested issues into our shared constitutional understanding. nominees provide critical information that they share this common understanding of an era when they answer questions about some cases, and they signal what issues they feel remain controversial when they declined to do so. goal of my work the past decade has been to shed empirical light on this valuable because ion process, believe that contrary to its reputation, it does add tremendous value. and i applaud each of you for the challenging work you do. thank you for your invitation to be here today. thank you for you

testimony. i recognize senator blumenthal. blumenthal. thank you, mr. chairman. my apologies for being late. i was involved on the floor in a and aous consent effort, want to ask at the outset that statements from two of our , let harris and dianne feinstein both be included into the record. their views, and i agree with them, that a reorganization of of veryh circuit is questionable, if any value. it would prompt inefficiencies and put up obstacles that are unnecessary, disruptive, and massively expensive. from this summer's hearing on this topic make the and i-- makes it clear,

feel this hearing will affirm that the and i want to welcome alsoitnesses today, and judge sidney thomas, the chief judge of the ninth circuit who is in the audience today. he has been steadfast in defending the circuit. we are honored to have you. i will keep my remarks short, but i do want to add how deeply troubled i am, i think that is putting it mildly, by the stance and approach of our chairman, and in effect cutting short and to elementsr access that are absolutely essential for us to fairly assess the oford and qualifications judge kavanagh to be on the united states supreme court. effect he has

chosen to keep from us keep records that relate to judge kavanagh's service in the bush administration as a staff secretary in the white house. his role has been characterized by our colleague john cornyn as no more than a traffic cop. but that view is belied by judge kavanagh's words, when he said "my five and a half years in the white house, especially my three years as staff secretary for president bush were the most interesting and in many ways the most instructive." most instructive. .ransformative, for him it means we have an obligation to look at that experience as deeply and fully as we can.

thoset reviewing documents, we are deprived of a key resource in doing so. i have spoken on this already on will not labori those points in this form except -- in this forum, except that i believe the attempt to conceal this is part of a broader attempt to limit the advice and consent function. judge gorsuch was going through a similar nomination process and refused to answer basic fundamentalout principles and norms, he didn't tell us anything about his views before we approved him for one of the most powerful positions in the country. trump and his allies and judicial nominees of p or -- thatees appear convinced

the senate has a diminished role or perhaps no role in evaluating the nominee's record. i feel differently and i hope the 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 a key check and balance to unbridled presidential power. thank you. have seven members to ask questions. -- professor fitzpatrick, can you walk us through the best argument for nationwide injunctions? professor fitzpatrick: sometimes there are people who could be harmed irreparably, and are unable to join the lawsuit quickly. so the best thing for the judge to do in those circumstances is

to include those persons in the injunctive relief granted against a defendant, even if those persons are not a party to a lawsuit. one example given is with regard to the president's travel ban. . some people say the ban went into effect while some people were on their way flying to the united states. while they were in an airplane, they could not join a lawsuit. my own view is once they land they can join a lawsuit. i'm not sure we want to leave the door open for judges to provide relief to people who are becauseront of them, there are all kinds of downsides to that. that, those downsides is a lot of times the people 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, so including

them in the relief is against their interests. we have a process in place to toow courts and litigants effect the rights of people who are absent. it is called the class-ask a lawsuit. a class-action lawsuit. judges have to sign off on criteria to protect the process rights of absent persons. are they being adequately represented by the plaintiffs? are there conflicts of interests among the absent persons? and that process is being evaded, all the rights we have in place to protect absent persons are being evaded when a judge includes them in relief without signing on -- without signing off on those criteria.

the other arguments against universal injunctions are the cost.shopping there are 700 district court judges in this country. you can find one oddball that thanks the administration's wallace he should be stopped, and if you go to that guy or gal, and you can stop the government, nationwide. your hundred million americans are affected area we have seen people opposed to president obama's policies run and find one judge the thing. those policies. we have seen people opposed to president trump's policies run and find a judge who will do the same thing. this is not neutral justice. this is finding the most biased judge it you can and shutting down the federal government. is a matter of serious concern. those would be some of the minuses.

and the one plus i have seen lylked about the scholar work around the subject. senator blumenthal: professor ringhand, i would like to follow up on your testimony. judicial nominees whether they disagree with certain established precedents of the united states supreme including brown versus the board of education, roe versus wade, that seem well established and well accepted in our jurisprudence. most of thems, until recently, have said that becauseld not comment

of some norm, practice, canon of ethics, 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? ringhand: no, senator. the code of ethics being referenced prohibits judges from making commitments or appearing biased in inappropriate ways. and that is a real concern that nominees have to grapple with in their testimonies to avoid the appearance of inappropriate bias. but nominees historically have andged that obligation, balanced it with their corresponding duty to provide information to the senate, enabling it to fulfill its

constitutional function of providing advice and ultimately consent to the nomination. so what nominees have tended to draw to rob a line, -- two answers, to give firm and responses to questions they believe are well-settled. and even though we used to argue about some of these matters, we don't argue about them anymore. they have become part of our constitutional consensus. to avoid answering questions only about those issues that the nominee believes are currently controversial. blumenthal: so there is no canon of ethics that oncludes comment per se whether a nominee agrees or disagrees with a well-established precedent? ringhand: correct.

blumenthal: is there any reason nominees should object to providing documents that relate to past government service? : that is notghand an issue i have looked at. having spent a great deal of time reviewing transcripts, may recollection is that nominees have spoken to documents related to their prior service and government offices. blumenthal: and that was true of justices kagan and ginsburg when they were nominated? : i believeinghand justices kagan and ginsburg, and alito and thomas. blumenthal: and those

discussions came before any votes were taken. you are nodding. ringhand: that is my recollection, from a reviewing the transcripts. blumenthal: the committees have generally been bipartisan. whatever the partisan breakdown of the committee, members have come together to demand information that some or all of us felt was relevant. if i am brought about deposition, i suspect you would know about it, or you would have seen it in the transcripts and records of the confirmation hearings you reviewed. is there knowledge, any indication that the chairman even toast has refused request documents, when the minority believes this documents were necessary?

senator ringhand: not that i recall seeing, senator. blumenthal: thank you. i will defer other questions. kennedy: professor, you clerked on the ninth circuit? >> i did. kennedy: if one were to start designing from scratch a ninth u.s. circuit court of beeal, would the ninth today something that someone designed on purpose? judge fitzpatrick absolutely not. any time anything has come as close to the size of the ninth circuit, congress has broken it up. kennedy: and it is my

understanding that the ninth circuit cannot even meet en banc? >> correct. there is not room on the bench for all 29 judges. senator: is that unfair? yes. i remember when time when i was a law clerk we had an en banc and the 11 judges were 10 democrat appointees and one republican appointee. that was not representative of the ninth circuit. kennedy: what percentage of ninth circuit opinions are reversed by the u.s. supreme court? it is a smallick: percentage because the u.s. supreme court takes very few cases every year. everyone thousand appeals the ninth circuit decides, 2.5 of them are reversed.

but that is still 50% higher most-reversed circuit, and three times more often than the least-reversed circuit. kennedy: other than politics, what are the arguments against splitting the ninth circuit as the fifth circuit was split? only onezpatrick: the in my mind is that it would probably cost more money to set up two circuit headquarters, rather than just one. kennedy: that doesn't matter around here. when he joined the ninth circuit, judge, how many members were there. >> there were 28. now there are 29. senator kennedy: have you function with 29 judges -- how do you function with 29 judges?

how do you function? josh -- scanlon: : wenlon function in panels of three, rather effectively, given the size that we have inherited. but as professor fitzpatrick is we only hear en banc cases in a limited form, not that we couldn't. we do have two courtrooms, one in san francisco and when in ,asadena, which have 29 seats but they have never been used for a full-court en banc, because we have never had a full-court en banc.

but itically, we can, has never been done. and i gather the old fifth matter had an en banc --ewhere in the late 70's somewhere in the late 1970's, the judges discovered that it was 23 judges all trying to hear the same case. just decided they the time had come to split into two smaller circuits, the new 11th and deal fifth. : what could be the objection of affair-minded person to split the ninth circuit, if we split the fifth circuit? o'scanlon: the best

argument for keeping the ninth circuit the way it is, is that we would make it work. we would in any case. kennedy: that's not the issue. would it work better? and it would be more consistent with the overall structure. o'scanlon: the d.c. circuit judge formally recognized as a separate circuit in 1948, this is just a normal evolution of courts as they realize that populations have shifted. when we were created, we only had 4% of the population. now we have 20% of the population.

-- senator flake held a hearing a year ago in arizona where the judge submitted the same --timony, almost worth almost word for word. it seems judges in the ninth corporate -- the ninth circuit keep making decisions this president does not like. they turned down his muslim appointed byudge republican president began to hold this administration speak to the fire about reuniting families that the president cruelly separated at the border. circuit, my view, political reactions to the view

that judges have been responding 's violation oft the constitution. we have been able to hear from judge oh scanlon -- judge o'sca i would ask unanimous that judge thomas' testimony in the hearing i referred to be included in the record. thank you. i was want to ask, surprised, professor fitzpatrick, that you were surprised by a circuit

panel with more democratically appointed judges than republican appointed judges. it seems you think judges are exhibiting political tendencies. you feel,ally how that somehow judges that sit on a panel should be evenly split between those nominated by republican presidents and those appointed or nominated by democratic presidents? fitzpatrick: no, senator. the point of that exam was to exhibit how the 11-judge en banc would not be representative of the full court. senator: but you give us the example by saying there were more democratically nominated judges than republican nominated judges. i thought they were supposed to be apolitical. and as i noticed, the district judge in california nominated by president bush is the one holding the administration's feet to the fire over the issue of separation of children from

their parents. someone is fact that appointed by republican or democrat should have nothing to do with an ability of the judge to be fair. maybe you can explain briefly what they think the ginsberg rule is. the ginsberg rule as i

mentioned is rather poorly named. it has come to be a shorthand way of capturing the idea that nominates should not answer thations on the grounds they need to avoid making pre-commitments were having an appearance of bias. broadlyeen used quite in a way that does not reflect what justice ginsburg did that her testimony. responsivenesse by looking over time at two distinct answers that nominates give. we looked at situations where nominees give firm answers. they said in the current tents, i agree or disagree. with the rate at

which the nominated refused to answer on these types of grounds and developed a responsiveness ratio and looked at both banks. how often a nominee refuses to answer and how often they choose to. what we saw is what justice is had a very high rate of responses. gorsuch in his recent hearing, and lower response rates. i just want to ask the chairman if i could put into the , i would like to have in opposition to the circuit. >> thank you mr. chairman. i appreciate you having this hearing.

i think it is a very important topic. it was said that if we were to split the night circuit, it could actually lead to inefficiencies. i think in a circuit that has backlog thanmes a others, there is something inherently wrong there. justice, would you have a comment on that? saying,es without smaller units are more court culturally pities his. -- adhesive. they have a closer working relationship. a smaller number of cases to which they are responsible. simplyblem that i see is

, it is out of sync with the rest of the circuits in the country. it is out of sync because of population. it is out of sync because of the caseload. obviously, because of the backlog. those are the elements that i think are most pressing. mentioned the population in the circuit. it seems like with any other organization, people would have different motivations for bringing up the night circuit or reorganizing and restructuring. i think it can be said that all of these circuits can be looked at to determine whether or not we are running as sufficiently as possible. the circuit court system has never been looked at. do agree with the? forget, the commission

of 1973, did a very thorough study supported with academic and put and came up with the recommendation that the two largest circuits at the time be split. the fifth circuit accepted the recommendation, the night is listed. that is where we are today. see, it iss that i that at is inevitable circuit of the sizable eventually be restructured. when that happens, maybe hard to predict but it has to happen at some point. -- professor fitzpatrick commented on this. i would be interested in your opinion. i think justice thomas has weighed in making basically the

same point that the professor did. it seems to me, we have 535 people here that are in the business of implementing laws. it does seem to me that we almost have a legislative function based on where this court judge wants to go. what are your pros -- what are your thoughts on pros and cons? it was a circuit judge that i ideology of the wanted to go with. eologically i wanted to go away. how do you feel about it?

i had to ask. the last comment i want to make is we have had some discussion about the supreme court nominee before us. the requirement for documents after one think that we should be a little survive a realistic solution. it is difficult for me to understand the motives of some who are requesting the documents when they make statements already, we need the documents to judge the nominee but we have people quoting scripture saying if you are to support this nominee, you are complicit or contributing or fighting against, the nominee on this committee said whoever is dump -- nominated will bring forth

the instruction of the united states. yet, they are wanting millions of pages to be instructed in their opinion. we have to figure out a way to move forward through this process. nomination process is very important. it is one of the more enjoyable things that i do in my job. i go to these confirmation hearings and hear both sides of things arguments. we also need to get to a better place and try to understand people's motives. we have very merry -- clearly made a decision. will make a brief comment. she asked again what the purpose of this hearing is? this hearing is an oversight hearing on the biennial report.

that conference recommended 57 circuites in the ninth because of the caseload and backlog. hearing is not specifically about the ninth circuit, it is about the report of the judicial. that happens to point exclusively at the ninth circuit. >> i am glad you're holding this hearing and would like to welcome all of the witnesses. seeessor fitzpatrick at to you again and your honor, good to see you. let me start with the professor fitzpatrick, this will idea that a single district judge could issue an injunction that would cover the whole country and everybody and it, strikes me as inconsistent with the individualized showing that a plaintiff's seeking an injunction would have to make.

, no adequatearm remedy of law, it strikes me, it is more like judicial policymaking as opposed to, a ofe-by-case determination the laws that apply in the facts in a given case in court. one thing that has done more damage to the judiciary and causes the acrimony associated with judicial confirmation hearings is a profession that judges are not deciding a case based on the facts and the laws in front of them. they are policy makers that do not run for election. i want a chance in a confirmation hearing to ask them all of these questions and rub them up and bank outrageous statements. that is what contributes to the acrimony and a polarization of the country when it comes to nominations.

forget my editorial comments, i am really interested more in the nationwide injunction. is it inconsistent with those legal requirements and procedural requirements and normally would apply to an individual? >> i cannot agree with you more senator. article three of the constitution prohibits district court judges from entering these conjunctions. article three requires plaintiffs to show standing. thatlaintiff had to show he or she has been injured and has been released at the plaintiffs request must redress the injury. -- oneple have not been of authority that the judge has to include in the release, the address of injuries they may arm a not have. prohibits this kind of relief to be entered. >> what would it take for things

to change? with the supreme court have to present risks on the issue? >> i think the supreme court could decide that this goes behind the power of the federal courts. i believe that was queued up in one of the travel ban cases and the court did not decide the issue though justice thomas did write a separate opinion. i think the conference could do something about that. i think it is past the statute that says district court judges do not have jurisdiction to enter such relief. you have power over the jurisdiction of the district there'sand i think that something in the statue that takes care of this as well. >> something we should work on. your honor, let me ask you a little bit about ways that federal practices operate.

the case of distribution for all the circuit courts ranges from 1100 roughly for the d.c. circuit judge to a whopping 12,000 for the night circuit. understand, the chief justice can assign a judge to sit on another court. judge, could a a judge on the fifth circuit sit on the assignment for the ninth circuit? have a very large number of visiting churches because of our caseload -- judges because of our court caseload.

>> they are confident enough to serve the ninth circuit? >> that is their obligation. >> if we are really concerned about access to justice and concerned about the consumer or citizens, why at the congress go in and try to reallocate the number of judge ofps to deal with the case -- caseload that the different circuits are experiencing? >> lesse courts that have maybe take some of those and assign them to other circuits. >> there is a little president

for the -- precedent i suppose. the 29th position was created by the transfer of a seat on the tc circuit which still has a relatively small number of cases per judge. made by a decision congress if you years ago. i remember -- >> let me just say mr. chairman, as we consider some of the legislation and reorganization, we really ought to look at ways judges.ize caseload for i remember when the d.c. circuit was essentially, packed with judges using the new clear

option when in fact, they had the lowest caseload of any circuit in the country. those designed purely to achieve a desired policy outcome by concentrating, stacking, democratic appointed nominees. thank you senator, just to underscore your last point, exhibit 12, speaks directly to this in the ninth circuit. the ninth circuit has a backlog of almost 12,000 cases, the second is.500. -- 4500. >> let me start by going the comments about universal adjustments. wrote a verys

important opinion and i would fully expect competent lawyers and litigants dealing with injunctive relief in dealing with plaintiff's sinking universal injunctions. two races issues and i fully expect that the lower courts and court of appeals will have to confront the question but i think justice thomas opinion rightly focuses on the propriety of a district judge engaging a nationwide policymaking rather than simply adjudicating controversy between judges. let's shift to the ninth circuit. professor fitz patrick, it has extent,cussed to some

the ninth circuit accounts for nearly a third of cases. it also takes him 13 months to decide on any case. you attribute do this backlog in the delay in decisions in the ninth circuit to the very large size of the ninth circuit? >> think there is a direct correlation. if you look more broadly, the biggest circuits tend to have the biggest backlogs. it is just a matter of administrative difficulty to handle that many cases. part of the difficulty comes from the fact that so many three-judge panels in the ninth circuit have 70 cases that half of the job is keeping up on what the other panels are doing. it is very difficult to do that and the ninth circuit into with

a lot of interim circuits where different panels of the ninth circuit have decided to do things differently. that leads to a whole bunch of additional legislation to find out which should be followed. i think that it is pretty obvious that we had that many people running around and it is hard to keep track of everyone. >> is right to the heart of the purpose of the night circuit court system to ensure that people can know and plan and behave accordingly. you have served on the ninth circuit for a long time, as a practical matter, what challenges are raised but it e and in europe, how would operate better? when theggest problem issue is the state of california

center.ch a single accounts of california for 70% of all of the cases. one case accounts for 70% of all the cases in nine states. this post the direct answer to question, the problem is highlighted by what professor fitzpatrick said, internal conflict of the biggest problem. in any given month, we would have nine separate panels sitting together. 93-judge panels sitting. another inlulu, pasadena, 20 three in san francisco, one input length one in seattle, and one in anchorage . we really try to make it work.

sittingthat be panels at the same time, sometimes there are issues that are on different panels that are really the same issue and the results can be inconsistent. that is what we call intra-circuit controversy. built tonal circuit is resolve inter-circuit conflicts it is possible that the second circuit will, with different decisions of the 10th circuit but that is not something that should be allowed to have been within a circuit. because of our size, that happens regretfully, it happens too often. we do our best to try to deal with it but: cases -- by pulling cases. sometimes, there are no judges. the intra-circuit continues.

though the a very important aspect. >> one final question. there have been some discussions of this issue of dividing the ninth circuit is driven by some recent decisions either by district courts of that have ruled against the trump administration and the ninth circuit has part a long time and a will deserved reputation of being far to the left. mid-90'sr back in the when i was clerking at the supreme court, there was a running joke that there was a macro that worked perfect for drafting an opinion that would automatically populate the opinion with the words, the decision below was issued by the ninth circuit and accordingly reversed. was --son for that joe joke was for the frequency in were their cases

consistently reversed. >> is there any reason why breaking up the ninth circuit -- simply,e talking about is there any reason this has to be a partisan divide? i remember that macro very well. ishink the only reason because the ninth circuit is partisan. we were talking about it before there were any cases before the trump administration. anytime, it was put it i think

the only reason why we have nuts but 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 is possible. i think all of the intellectual, fair-minded reasons are on the side of splitting. >> we are to do a brief second round. proponents of specialized courts often argue that specialized courts better equipped than to actually write decisions especially in cases where there is an imbalance of resources between the two parties. opponents argue that specialized courts are subject to some of the same forces in which, sophisticated players will take advantage before the court. which side do you think has a

better claim and in particular, i am curious to how you apply this analysis to the ac circuits actions? -- d.c. circuits actions? do you think it is better able negativeut interagency behavior? >> what i would say is, i would not doubt that if you do the same thing over and over and over again, you become better acquainted with what you're dealing with. i suspect that this d.c. circuit is maybe a bit quicker on administrative law. i suspect that the judges in the circuit here those cases were often. there is a downside in the downsides, you are putting all of your ads in one basket. all of the patent cases are going to the federal circuit and government, the federal circuit

makes a mistake. all of the agency review prince the d.c. circuit then those judges have a lot of power. one of the hallmarks of our federal judiciary is that circuits can learn from one another but considering the same issues in different cases. then, the supreme court finally has to get involved in the supreme court has in front of it a number of different takes on the same question. we think this improves the same -- supreme court decision-making ability. there is a lot of diversity of opinion that they control from. will we put it all in one court of appeals, we are missing out on all of this percolation. circuits toy two weigh in on this issue, we should wait before we take the case for more courts to wait and. -- weigh in. we miss out on all of that learning.

it is a hallmark of the process. different courts considering different issues and hopefully, consensus builds towards the best answer. when we put all of her heads in the basket, we miss out. even if, we get more expertise developing and specialized work, the risk of putting all of our ends in one basket and making mistakes increases. think with we were to catalog all of the arguments that were made today, there is the argument that the professor not in anyat it is way representative of 29. i think the intra-circuit --ument is complete the compelling. it is ament that particularly cumbersome way to try to administer justice. -- you said

something about the interpersonal relationships in a circuit court being affected in different ways. why is that matter? >> is a matter of fact, we have 40 today. not surprisingly, the whole idea of getting to know each one of your 46 colleagues in terms of understanding that persons jurisprudence, that person's approach to deciding cases, is almost impossible. we do our best, we of quarterly court meetings but in terms of our assignments, typically, we sit on a panels, four days, every year. if the most, you are sitting with only 24 other judges,

yourself,-- including that means that you are not in any contact. we happen to be called for a rehearing. that is done on a random basis. the remaining 10 judges in the throughirely at random a process of picking names out of the cage. blumenthal: first of all, i want to say something at the outset, i admire tremendously, or 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. i am in all of your family, the

children. i am in all of your life. i asked these questions with great respect. i note the metrics you do not mention, unless i missed it, the reversal rate in the united states supreme court. i would think that is not a metric of whether the circuit court is functioning well. >> i agree with you. my oralmy focus in presentation was to emphasize issues thatof the should be excluded from a intelligent discussion about the judicial administrative issue. >> i agree. follow a broader issue that

was raised earlier, there are disparities between your court and other courts but between those courts in terms of case log and backlog. your follow the logic of testimony, it leads to a complete reorganization of the federal bench. >> over the years we have dealt with this by adding judge ships. it is an imprecise tool. sometimes population explodes faster than the mechanics of reviewing the administration can follow. askuld not be inclined to for a total reorganization.

it would be appropriate as the commission was assigned to look twon 1973, to look at the largest circuits and look at what should be done. perhaps in another 10 years there will be another study commissioned to look at some other phase, but justice vanderbilt made the same mistake when saying judicial support is no good for the short winded. a sport for the short winded either. -- for the long-winded either. could apply.rics one, why going to do not do another? in a sense, you have done

that with the d.c. circuit. it was observed that the d.c. circuit had more judges than was decided tond it was take one of those judges and transfer it to the ninth circuit. -- and i haveyou said this before, i think when the history of this era is written the heroes will be our independent judiciary and our free press. not necessarily anybody in this body, but i think they are the bulwarks in this difficult and challenging era. i think that the independence of our judiciary is critically important. my view is that the political

branches can always be critical of our judiciary but they have to do it with the type 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 in the law regardless of partisan divide. >> in general i would agree. i have one last question for professor ring hand. nominee refuses to answer what a senator believes are what would you, recommend that a senator should do? nominees make choices in this

process about which questions they are going to respond to and which they aren't. end of that process, the senator feels she has done got the information important to her in scituate's, or are necessary -- her constituents, or are necessary for her to perform her constitutional duty, i think she can and perhaps should vote no. so in thes have done past that reason? >> senators certainly have. >> thank you, senator lee. >> thank you for being here with us. judge i appreciate your willingness to be here with us and answer questions for this committee.

a number of appeals filed in the federal system has increased substantially over time. my understanding is that we went from 23,000 appeals per year in 1980 to 33,000 in 1985 and it was up to 55,000 by 2000. 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 keep up with all of that. somes been noted that in instances, courts will deal with the large appellate caseload by issuing unpublished opinions. did that also happen in the ninth circuit? >> yes, the portion of published opinions is less than 20%. >> less than 20% are published

opinions. that means the vast majority of cases are not official precedent of the court, is that right? >> that is true but i think you would find that a large number decisions where there isn't a lot to talk about. either there is a jurisdiction issue, the appeal was filed too late, or even in a crimanal case there the appellate argues tha there was insufficient evidence and of course the evidence on that he washows caught in the act with four or five witnesses, there is nothing to talk about. do you have any idea whether the ninth circuit's rate of publishing opinions differs from

other circuits? >> we are on the low end. there are a couple that have a high publication rate. it is probably a circuit by circuit choice. because iy the number am not 100% sure but there is one circuit that publishes close .o 60% of their opinions that would be the outlier. the average would be in between. >> ok and i assume the same issuing those.to you can't issue in unpublished decision without each judge deciding if it is simpler? >> in practice, it is unanimous. we have a rule that a single dissenting judge can compel publication of the dissent.

-- a samethe dissent judge will not insist upon publication that there is an absolute right of the dissenting judge to publish. that your rateme of unpublished opinions would roughly correspond with your rate of cases in which oral argument was deemed unnecessary? would it be more or less the same universe? gauge. is hard for me to we have what is called a screening panel. there is no oral argument. the central staff prepares the draft dispositions. these are identified as the easier cases. if a single judge on that screening panel feels that there is an issue that should be

looked at more carefully, or has a concern that maybe there is a precedent to be issued, the single judge can compel that case removed from the screening calendar to an oral argument. >> thank you. i want to continue the discussion you are having earlier. that you had with senator sasse. >> we are the only circuit that exercises the option that we have in the 1980 legislation to have a limited in bank. we discern what number of judges the en banc court should be. at the moment they are 11. we had 13 for a while and then came back to 11. >> i see my time has expired,

can i have a couple more minutes to pursue this? ok, is that at your discretion that you can exercise on a case-by-case basis or is that something the circuit has chosen to do? been selected has will, the deputy clerk bring literally a birdcage around to a sitting judge and that judge will pick the names out of the cage. -- it's not a ping-pong ball but a little stick. eachprocess goes on for eachendent decision, independent case. >> the difference there is in other circuits, once you have that argument, you typically have all of the judges reaching as to that issue.

if you have a circuit that is so large that you cannot force a practical matter or don't sit as an entire court, you are more inely to have interest ongoing conflicts. >> what can happen is and one of out, shegues pointed was selected in nine continuous selections which were randomly done. another colleague was picked only once out of the same, nine successive cases. s utterly random. randomly selected. >> it produces an additional degree of randomness. your randomly assigned into regular sittings into random combinations of the three judges at a time.

you at least know that you will get a certain number of sittings per year, whereas with your en banc calendar, you don't know that and it is possible summit he could be left out entirely? >> exactly and that has happened. have ae: when you circuit that has this large a proportion of all federal appeals filed each year in the court system, what effect does that have on each rule or each judge's ability to complete the task of judging in those cases? >> i have to tell you we are a bunch of workaholics on our court. we work intensively. obligation, we capacityt our maximum and that cannot be done on a

nine to five basis. we thank you for your service, thank you for talking to me. >> thank you, senator lee. i would like to thank all three of the witnesses for enlightening us. i would like to thank senator blumenthal for participating in the organization of the hearing. i would like to say that -- mr. --f wrote a letter enclosures to the letter will be included in the record along with a letter from chief judge sidney thomas. chief judge of the ninth circuit court of appeals. both senator sullivan and gains are strongly in support of splitting the ninth circuit and they will be splitting an additional statement for the record today.

our record will remain open for seven days. this hearing is adjourned. thank you. [captions made possible by mlb network] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [various inaudible conversations]

[inaudible conversations] today, president trump will hold a campaign rally in florida speaking in support of three candidates. defeat bill bid to nelson and congressman matt gaetz's reelection bid. right after that, the aspen institute will hold a discussion on the future of college sports.

former collegee basketball coaches and players, ncaa officials and sports law experts. testify onofficials border security and immigration policy for migrant families coming to the u.s.. 9:30will start tonight at p.m. eastern on c-span. brette court nominee kavanaugh continues to meet with senators on capitol hill. watch live on c-span live on c-span.org or listen with the c-span radio app. on his agency's testimony on wr future from andrew priorities.

he takesfirst time part in a hearing after taking over the epa since scott pruitt's resignation. you can see him live tomorrow morning at 10:30 eastern on c-span. q&a,y night on congressional historians. questions and i hear people ask all the time, is this the most uncivil time in history? >> there would have to be close but if you were to pick another period certainly the years leading to the civil war. the senator came over in 1856 because he disagreed what he said and there were senators who cheered on that host member. >> there was a question about the shooting of alexander hamilton and he was shot by the sitting vice president of the united states. we have had terrible political

times. 1858 before once in the civil war that had 80 members rolling around on the floor fighting one another. one of the members who had a wig , one of the members hold his wig off during the fight and somebody yelled out, he scalped him. that was enough levity to stop the fight. >> congressional historians richard baker and ray smock sunday night at 8:00 p.m. eastern on c-span's q&a. >> joining us to discuss the status of federal spending legislation, nancy. she governs congress for -- the less than two months to deadline, what is the status of the 12 spending bills in the house and the senate to fund the government for next year?