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S. HRG. 113–348 

THE FEDERAL JUDGESHIP ACT OF 2013 

HEARING 

BEFORE THE

SUBCOMMITTEE ON BANKRUPTCY 

AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 10, 2013 

Serial No. J–113–27A 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

DAVID YOUNG, Republican Chief of Staff 

SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS

CHRISTOPHER A. COONS, Delaware, Chairman 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama, Ranking Member 

CHUCK GRASSLEY, Iowa 

JEFF FLAKE, Arizona 

TED CRUZ, Texas 

TED SCHROEDER, Democratic Staff Director 

DANIELLE CUTRONA, Republican Chief of Staff 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coons, Hon. Christopher A., a U.S. Senator from the State of Delaware ........... 1 

prepared statement .......................................................................................... 28 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 2 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 30 

WITNESSES 

Witness List ............................................................................................................. 27 

Tymkovich, Hon. Timothy M., U.S. Circuit Judge, Tenth Circuit Court of 

Appeals, and Chair, Standing Committee on Judicial Resources, Judicial 

Conference of the U.S., Denver, Colorado .......................................................... 5 

prepared statement .......................................................................................... 33 

Robinson, Hon. Sue L., U.S. District Judge, District of Delaware, Wilmington, 

Delaware ............................................................................................................... 7 

prepared statement .......................................................................................... 49 

Sekulow, Jay Alan, Chief Counsel, American Center for Law and Justice, 

Washington, DC ................................................................................................... 9 

prepared statement .......................................................................................... 52 

Reed, Michael H., Chair, Standing Committee on Federal Judicial Improvements, American Bar Association; and Partner, Pepper Hamilton LLP, 

Philadelphia, Pennsylvania ................................................................................. 11 

prepared statement .......................................................................................... 55 

QUESTIONS 

Questions submitted by Senator Coons for Timothy M. Tymkovich ................... 64 

Questions submitted by Senator Klobuchar for Timothy M. Tymkovich ............ 65 

QUESTIONS AND ANSWERS 

Responses of Timothy M. Tymkovich to questions submitted by Senators 

Coons and Klobuchar ........................................................................................... 66 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Center for Law & Justice, ‘‘Federal Judgeship Act of 2009’’, statement ...................................................................................................................... 73 

Baker, Marge, Exec. Vice President for Policy and Programs and Paul Gordon, Senior Legislative Council, People For the American Way, Washington, 

DC, statement ...................................................................................................... 80 

Bannon, Alicia, Counsel, Brennan Center for Justice at NYU School of Law, 

New York, New York, statement ........................................................................ 83 

Brandenburg, Bert, Executive Director, Justice at Stake, Washington, DC, 

statement .............................................................................................................. 87 

Dubina, Joel F., U.S. Circuit Judge, U.S. Court of Appeals for the Eleventh 

Circuit, statement ................................................................................................ 89 

Schaeffer, Judith E., Vice President and Doug Kendall, President, Constitutional Accountability Center, Washington, DC, statement ............................... 94 

Tjoflat, Gerald Bard, Circuit Judge, U.S. Court of Appeals for the Eleventh 

Circuit, statement ................................................................................................ 99 
Page

IV 

Wald, Patricia M., Retired Chief Judge of the D.C. Circuit Court of Appeals, 

statement .............................................................................................................. 111 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government or other criteria determined by the Committee: 

‘‘Federal Judgeships: The General Accuracy of District and Appellate 

Judgeship Case-Related Workload Measures’’—United States Government Accountability Office, available at http://www.gao.gov/assets/660/ 

657661.pdf 
(1) 

THE FEDERAL JUDGESHIP ACT OF 2013 

TUESDAY, SEPTEMBER 10, 2013 

U.S. SENATE, SUBCOMMITTEE ON BANKRUPTCY AND THE COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:35 a.m., in 

Room SD–226, Dirksen Senate Office Building, Hon. Christopher 

A. Coons, Chairman of the Subcommittee, presiding. 

Present: Senators Coons, Sessions, and Grassley. 

OPENING STATEMENT OF HON. CHRISTOPHER A. COONS, A 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Chairman COONS. Good morning. Please come to order. Welcome 

to this hearing of the Judiciary Committee’s Subcommittee on 

Bankruptcy and the Courts. 

America’s federal courts serve as a model for courts and judicial 

systems around the world. For a variety of reasons, our federal judiciary is, in my view—and I suspect some of the panel might 

agree—without equal. Presidential appointments and lifetime tenure insulate judges from political influence. Senate advice and consent helps guarantee judicial competence and is itself strengthened 

by the work of key institutional players such as the American Bar 

Association, which publishes nonpartisan opinions as to nominees’ 

qualifications. And, fortunately, a federal judicial appointment carries with it sufficient prestige to lure away many talented nominees who might otherwise earn more in the private sector or in 

academic work. It is overall because of the quality of our judiciary 

that John Adams’ vision that the United States be a Government 

of laws and not men still holds true today. 

It is the role of the judiciary to determine each case according to 

the law, not according to popularity, political influence, money, or 

the whims of the public. It is the federal judiciary that protects the 

least of us against the abuse of our civil rights and liberties, 

whether by the Government or another private party. We must not, 

however, take our federal judiciary for granted. 

As Chief Justice Roberts noted in his 2010 Year-End Report on 

the Judiciary, ‘‘The judiciary depends not only on funding, but on 

its judges, to carry out its mission.’’ Unfilled vacancies have led 

judges in many districts to be, and I continue a quote, ‘‘burdened 

with extraordinary caseloads.’’ 

So, too, does insufficient statutory authorization for judgeships 

burden our courts. Judges on the Eastern District of California, 

which has long been recognized as one of the most overburdened 
2 

in the Nation, would still face over 1,000 weighted case filings per 

judge even if the vacancy on that court were filled immediately. In 

my own home in the District of Delaware, judges faced weighted 

filings of over 1,500 per judge, and there are no vacancies left to 

fill on that court. 

As a point of reference, the Judicial Conference generally believes additional judicial resources are necessary when weighted filings approach 500 per judgeship. 

Senior judges eligible for their pension, but willing to forgo potentially lucrative outside employment opportunities or more time 

with their families, continue to hear cases and are vital in filling 

the current gaps. But senior judges are, in effect, providing charity 

to our Government out of their commitment to public service and 

their colleagues and cannot be the foundation of a responsible longterm judicial staffing model. 

Overburdened judges almost by definition cannot provide the 

level of time and care and reflection they would like to for each 

case before them, especially in a time of stagnant compensation 

and high caseloads. That in combination reduces the esprit de 

corps of the judiciary and makes it marginally more difficult to attract the best and brightest to serve. 

Congress has not comprehensively addressed judicial staffing levels since 1990, 23 years ago. Over that time, caseloads have risen 

nearly 40 percent, yet authorized judicial staffing levels by roughly 

4 percent. Put another way, trial court weighted filings per judgeship have risen from 386 in 1991 to roughly 520 today. 

Those national figures mask the dire circumstances faced by the 

most burdened district, such as the Eastern District of Texas and 

the District of Delaware and the Eastern District of California. 

That is why Senator Leahy and I have introduced the Federal 

Judgeship Act of 2013. This is based on the recommendations of 

the nonpartisan Judicial Conference of the United States, led by 

Chief Justice John Roberts. It would create six new judgeships in 

two courts of appeals and 85 new judgeships in 29 district courts, 

for 91 judgeships overall. 

This bill would provide much needed relief to our overburdened 

courts, ensuring they are better prepared to administer justice 

quickly and efficiently. Increasing the number of judgeships will 

help cases move, will reduce uncertainty that prevents businesses 

from creating jobs, and permit every American who has been 

wronged their day in court on a reasonable timeline. 

I look forward to the testimony today of our eminently qualified 

panel, which will shed greater light on what the judiciary’s need 

for additional resources is and what it would do if forced to go 

without. 

So I would like now to turn to Senator Sessions for his opening 

statement. 

OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. 

SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman, for your leadership 

and for your contribution to the Senate. Nobody works harder and 

thinks more seriously about the many issues we face. And I know 
3 

you have been wrestling with the Syria question this past week 

also, as all of us have. 

Certainly there appears to be a need for new judgeships in certain areas of our country, but we have to recognize we are in a 

tight financial situation. We simply do not have the money to do 

everything that may even be good. But I do have some questions 

about where we are and the justifications for 91 new federal 

judges, each one costing approximately $1.1 million. We do not 

have the money to add 91 federal judges, and we are not going to 

add 91 federal judges. That is just not going to happen. And I hope 

you know that, and you have to understand that. It is okay to ask, 

you know, for what you would like to have, and all of us could, but 

it is just not going to happen. 

About a month ago, this Subcommittee heard testimony about 

the impact of sequestration on the courts. Judge Gibbons testified 

that the judiciary has reduced courthouse staffing levels in some 

areas, such as probation and pre-trial services. Some federal defender programs have been downsized and face some pretty tough 

cuts, and we have heard from them. 

While both House and Senate Appropriations Committees reported bills that would increase appropriations to the judiciary, it 

is unlikely there will be any resolution of appropriations this calendar year. Given the probability that flat funding will continue, 

we have to ask, ‘‘Can we add a lot of new federal judges? ’’ 

Beyond costs, there are other aspects that I think we need to 

think about. There are 50 vacant judgeships with no nominee. As 

of today, 37 of the existing judicial vacancies are designated as presenting judicial emergencies; 26 of those are in circuits and districts where the bill would create new judgeships. Perhaps we 

should reassess the need for judgeships after those seats are filled. 

Moreover, I still have concerns about the methodology used by 

the Judicial Conference to calculate the need for judgeships. GAO, 

who we ask to do tough work for us, reported on these concerns in 

2003, noting that the methodology used by the Judicial Conference 

does not accurately portray the actual amount of time judges spend 

on cases. In its report, GAO made a number of recommendations 

to the Judicial Conference. None of those recommendations have 

been implemented. 

GAO has not updated that report in the decade since its original 

publication, but much has changed since 2003. There have been a 

number of technological advancements since that time that have 

resulted in efficiencies elsewhere in the judiciary, such as automation and videoconferencing. We are also using a lot more mediation. 

I have requested GAO to undertake a review of the process and 

methodologies used by the Judicial Conference and the Administrative Office of Courts when developing a request for additional 

judgeships. 

It is important to understand the process the judiciary uses to 

develop its judgeship recommendations, especially during this time 

of fiscal restraint. 

So, Mr. Chairman, I would like to offer two statements for the 

record—one from Judge Joel Dubina, who I believe just recently 

stepped aside, or he may be still the chief judge of the Eleventh 

Circuit Court of Appeals. The Eleventh Circuit Court of Appeals 
4 

has the highest caseload per judge in the country, and they are not 

asking for new judges. And Judge Dubina lays out, as his predecessor Judge Tjoflat did before this Committee on more than one 

occasion the advantages of a more collegial and smaller court, and 

he warns against ever expanding the size of the appellate courts 

in America. I will offer, Mr. Chairman, his testimony in 2009 concerning this issue. 

We just simply have to understand where we are, what we can 

do, how much efficiency the courts have achieved—and they have 

achieved some. We have a considerable number of senior judges 

that are carrying heavy caseloads for which we are most grateful, 

probably more than we had in 1991 for sure. And we have better 

clerk situations. Many staff attorneys are in the courthouses that 

do the prisoner appeals and other specialty cases such as Social Security. And so there are a lot of things the court has done well and 

should put us in a position to not be forced to add quite this many 

new judges. 

You mentioned Delaware. I see their caseload is one of the highest in the district in the Nation, and they are handling a surge of 

patent cases. Well, that sounds to me a real justification for us 

looking to add a judge or more to that district because those are 

the kind of things that Congress should respond to. We have the 

greatest judiciary in the world. I am so proud of it. Judges are 

working hard every day. It is not a retirement job anymore, if anybody ever thought it was. 

We thank you all for your good service. 

Chairman COONS. Thank you very much, Senator Sessions, and 

thank you for the recognition that the District of Delaware is in 

some ways uniquely challenged. I appreciate that input. 

Before we begin with witness testimony, I would like to ask all 

witnesses to stand while I administer the oath, which is the custom 

of this Committee. Please raise your right hands, if you would. Do 

you solemnly swear that the testimony you are about to give to this 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Judge TYMKOVICH. I do. 

Judge ROBINSON. I do. 

Mr. SEKULOW. I do. 

Mr. REED. I do. 

Chairman COONS. Thank you. Let the record show the witnesses 

have answered in the affirmative. And also without objection, submit for the record both the statement and testimony referenced by 

Senator Sessions. 

[The information referred to appears as a submission for the 

record.] 

Chairman COONS. I would also like to enter into the record a 

statement from Senator Leahy, Chairman of the Judiciary Committee, on the Federal Judgeship Act of 2013. Without objection. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman COONS. Our first witness today is Judge Timothy 

Tymkovich. Judge Tymkovich is a judge for the Denver-based 

Tenth Circuit Court of Appeals where he has served since 2003. 

Judge Tymkovich also serves as Chair of the Judicial Conference’s 
5 

Committee on Judicial Resources, which is tasked with overseeing 

the Conference’s biannual Article III judgeship recommendations, 

which in many ways are the very foundation and focus of our hearing today and the basis of the bill which I referenced in my opening 

statement. 

Judge Tymkovich, welcome. Please proceed. 

STATEMENT OF THE HONORABLE TIMOTHY M. TYMKOVICH, 

U.S. CIRCUIT JUDGE, TENTH CIRCUIT COURT OF APPEALS, 

AND CHAIR, STANDING COMMITTEE ON JUDICIAL RESOURCES, JUDICIAL CONFERENCE OF THE U.S., DENVER, 

COLORADO 

Judge TYMKOVICH. Thank you, Chairman Coons, Ranking Member Sessions, and Senator Grassley. We appreciate the invitation to 

appear before the Subcommittee today. 

As Senator Coons mentioned, I am a circuit judge for the 10th 

Circuit Court of Appeals located in Denver, Colorado, and I am 

Chair of the Judicial Resources Committee of the Judicial Conference, the committee that is responsible for developing our judgeship recommendations to Congress. 

I am here today to provide information about the judgeship needs 

of the federal courts and the process by which the Judicial Conference determines those needs. 

As Senator Coons mentioned, it has been over 20 years since 

Congress has passed comprehensive judgeship legislation. Since 

that time, filings in the district courts have risen 39 percent, while 

filings in the circuit courts are up over 34 percent. Yet the federal 

judiciary has seen only a 4-percent increase in judgeships at the 

district court level, and no circuit judges have been added since 

1990. 

To ensure that the judiciary can keep on fulfilling its constitutionally mandated role of effectively and expeditiously administering justice, the judicial work force needs to be increased. And 

to that end, I would like to thank Senator Coons and Senator 

Leahy for introducing Senate bill 1385, the Federal Judgeship Act 

of 2013. 

The Judicial Conference of the United States supports S. 1385, 

which reflects the Conference’s Article III judgeship recommendations transmitted to Congress earlier this year. Specifically, the 

Conference recommended that Congress do the following: create 

five permanent judgeships and one temporary judgeship for the circuit courts; create 65 permanent and 20 temporary judgeships for 

the district courts; and convert eight current temporary district 

court judgeships to permanent status. These recommendations reflect the current judgeship needs of the federal courts, some of 

which have existed since the last judgeship bill passed in 1990. 

The lack of additional judgeships, combined with significant 

growth in the caseload, has created enormous difficulties for many 

courts across the Nation, but it has reached urgent levels in at 

least five districts. Senator Coons mentioned the District of Delaware, and we will hear more about that district this morning from 

Judge Robinson. 

The Eastern District of California, the Eastern District of Texas, 

the Western District of Texas, and the District of Arizona are all 
6 

suffering under crushing caseloads. Each of those courts has over 

700 weighted case filings per judgeship over the last 3-year period 

while compared to our standard of 430 weighted cases. 

As an example, the Eastern District of California has been dealing with these high caseloads for several years, and despite the use 

of magistrate and senior judges, with the assistance of over 80 visiting judges from courts throughout the circuit, parties seeking civil 

jury trials in that district must wait an average of about 4 years 

for their trials to begin, almost 2 years longer than the national average. 

Judge Robinson will talk about Delaware, but the increase in 

patent filings that Senator Sessions mentioned has really created 

an enormous burden on that court, with over 1,100 weighted filings 

per judgeship, the most in the country currently. 

The districts of Arizona and Texas, of course, have experienced 

high caseloads because of their border status and the number of 

immigration cases that they face. 

These facts are not meant to diminish the needs of the other 

courts in the Conference’s recommendation. They just highlight the 

need across the Nation. 

Indeed, the circumstances in those courts are not that much different. Unless their needs are addressed, courts throughout the 

country will be dealing with critical situations. 

That is not to say the Conference recommends or wishes an indefinite growth in judgeships. It recognizes that growth in the judiciary must be carefully limited to the number of new judgeships 

that are necessary to exercise federal court jurisdiction. Moreover, 

the Conference is mindful of the economic realities that Congress 

faces. As such, we acknowledge that all these judgeships may not 

be created in a single legislative vehicle and that some 

prioritization may have to occur. 

Briefly, as I mentioned in my written testimony, the Conference’s 

recommendations are the result of a six-step biennial survey conducted at the district and circuit level. I detail that process in my 

written statement, and I will only highlight that the process requires a comprehensive interaction with the requesting courts, my 

committee, and the Judicial Conference of the United States. 

I want to emphasize that any court that does not request an additional judgeship will get one, and the Conference does not consider recommending an additional judgeship if the court does not 

ask for one. 

In sum, the Conference process is a conservative one with each 

step reviewing whether an additional judgeship is truly necessary. 

We have tools to accomplish this. We ask for temporary judgeships 

rather than permanent judgeships. We analyze the use of senior 

judges, visiting judges, and magistrate judges throughout the system. We look at alternate dispute resolution, mediation, and the 

use of staff counsel. Through all these tools, we tailor a conservative approach to our requests to Congress and before this Committee. Without these additional resources, the federal courts 

across the country will begin to struggle to fulfill their constitutionally mandated role. 
7 

Thank you for scheduling this hearing so that I may address 

these issues, and I look forward to answering your questions that 

follow. 

Thank you. 

[The prepared statement of Judge Tymkovich appears as a submission for the record.] 

Chairman COONS. Thank you very much, Your Honor. 

Our next witness is Judge Sue Robinson. Judge Robinson currently sits on the U.S. District Court for the District of Delaware. 

Judge Robinson was nominated by President Bush on October 1, 

1991, and confirmed just over 1 month later—a model for prompt 

consideration by this body that I might suggest we should try harder to follow today. Having taken office in 1991, Judge Robinson was 

confirmed shortly following the last comprehensive judgeship bill 

and can speak to the circumstances since then and the rising caseloads and their impact. 

Just as a personal aside, Judge Robinson sits in the seat formerly held by Judge Jane Roth, for whom I clerked on the Third 

Circuit, and a treasured mentor. 

Judge Robinson, it is an honor to have you here today. 

Please proceed. 

STATEMENT OF THE HONORABLE SUE L. ROBINSON, U.S. DISTRICT JUDGE, DISTRICT OF DELAWARE, WILMINGTON, 

DELAWARE 

Judge ROBINSON. Thank you very much. Good morning, Senator 

Coons, Ranking Member Senator Sessions, and Senator Grassley. 

On behalf of the United States District Court for the District of 

Delaware, I thank you for the opportunity to appear before the 

Committee today to share with you some information about the 

court in relation to the Federal Judgeship Act of 2013. And because 

my time is limited, I will skip my wonderful story about Judge 

Roth and move on, so hopefully you will read the statement. 

Let me step back. The District of Delaware has had four judges 

since 1985, although we had a vacancy for almost 4 years from 

2006 to 2010. In the year 1991, when I first came on the bench, 

37 patent cases were filed in the District of Delaware, about nine 

cases per judge. At that time, even nine patent cases was not an 

insignificant number of cases per judge. With the exception of 1 

year, since the year 2000, the District of Delaware has been among 

the top five districts in the country in terms of the raw numbers 

of patent cases filed and has had more patent cases per judgeship 

than any other district. As of August 31, 2013, there have been 

1,394 patent cases filed in the District of Delaware so far in Fiscal 

Year 2013. The patent filings per authorized judgeship using completed Fiscal Year 2012 was 202 patent filings per judge. You can 

see how that number compares to other high-volume courts in the 

graphs that accompanied my statement. 

In terms of the statistic that the Judicial Conference of the 

United States uses to justify the authorization, the current national standard of weighted filings per judgeship is 500 cases. The 

District of Delaware has 1,812 weighted filings per judgeship, exceeding the national standard by several times. 
8 

But it is more than the sheer number of cases that makes our 

need for the fifth judgeship such a compelling one. Whether you 

characterize the magnitude of the case load pre-AIA or post-AIA, 

the complexity of the mechanics to resolve these cases is the same. 

In other words, whether you have ten defendants in one case or ten 

cases each with a single defendant, the process starts with motions 

to dismiss. It goes on to a discovery practice, which is the part of 

the process, I believe, subject to the most abuse by the bar, and 

would benefit most from the supervision of the court. 

When the parties have completed discovery, the next steps in a 

patent case typically include claim construction, a requirement unlike any found in other civil cases in the submission of summary 

judgment motions. 

If there are issues left to be tried at the conclusion of this motion 

practice, you as a judge have to decide motions in limine and conduct the bench or jury trial with the evidentiary disputes that inevitably arise during trial. 

Your final responsibility is to review the dispute yet again posttrial. And just when you think you have fulfilled your responsibilities as a trial judge, the case is appealed to the Federal Circuit, 

which may remand the case back for further proceedings. 

And in Delaware, the judges go through this process continually, 

always with the overlay of technology inherent in patent litigation, 

whether you are dealing with chemical patents or software patents. 

Clearly, the mechanics of a patent case are complex and burdensome, and the court’s resources to manage the case will never equal 

the resources of the parties to litigate the case. 

In just one of my patent cases tried in this Fiscal Year with a 

single plaintiff, a single defendant, and ten patents at issue, the 

parties filed 13 dispositive motions accompanied by 782 pages of 

briefing, with over 8,500 pages of appendices, 8 boxes of trial exhibits, and with at least 46 lawyers involved in the litigation. And, of 

course, besides the patent litigation, we also have our criminal 

caseload and our other civil docket that we need to follow. 

So for judges like me who have been on the bench for decades, 

I cannot really quantify for you the workload associated with the 

caseload, except that I have two law clerks versus the 46 lawyers 

in a typical patent case. 

I take my responsibilities as a trial judge seriously, as do my colleagues. We have taken an oath to give every party in our court 

due process, regardless of who the party is, and ensuring due process means giving every party a fair and reasonable opportunity to 

demonstrate the merits of its allegations. So long as the Patent and 

Trademark Office continues to issue patents that have the potential for impacting the market, there will continue to be business 

disputes over the metes and bounds of the monopolies associated 

with those patents. It is both a privilege and a weighty responsibility to help the parties resolve those disputes, but the court cannot do so without sufficient resources. Due process, not the numbers, is what is driving our request for a fifth judge. 

Thank you for your kind attention. 

[The prepared statement of Judge Robinson appears as a submission for the record.] 

Chairman COONS. Thank you, Your Honor. 
9 

Our next witness is Jay Sekulow. Mr. Sekulow is director and 

chief counsel for the American Center for Law and Justice—the 

American Center of Law and Justice. I think I misspoke. In that 

role, Mr. Sekulow has argued a number of high-profile appellate 

cases before various courts of appeal and the U.S. Supreme Court. 

Some of his more recent advocacy includes litigation in the D.C. 

Circuit concerning the Affordable Care Act and President Obama’s 

recess appointments of Commissioners to the NLRB. Mr. Sekulow 

is an author and frequent blogger and hosts the syndicated daily 

radio show ‘‘Jay Sekulow Live.’’ 

Mr. Sekulow, please proceed. 

STATEMENT OF JAY ALAN SEKULOW, CHIEF COUNSEL, 

AMERICAN CENTER FOR LAW AND JUSTICE, WASHINGTON, DC 

Mr. SEKULOW. Thank you, Mr. Chairman. Chairman Coons, 

Ranking Member Sessions, it is a privilege to be before you today 

on behalf of the American Center for Law and Justice. Thank you 

very much for the opportunity to allow me to address the Federal 

Judgeship Act of 2013. 

As an officer of the court for more than 30 years and as someone 

who has litigated, as you mentioned, Senator Coons, 12 cases before the Supreme Court of the United States—I have also presented arguments before the International Criminal Court in The 

Hague—I have a deep respect for our federal judiciary, and I am 

honored to be before you today to share my views about how to best 

preserve what I have seen in my global practice to be the greatest 

legal system in the world. 

Many of my comments today reflect the views contained in a 

memo that we at the American Center for Law and Justice released in 2009 when Senator Leahy introduced the Federal Judgeship Act of 2009. I have submitted a copy of that and request that 

it be part of the record. 

Chairman COONS. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Mr. SEKULOW. While the bill before us today varies slightly from 

that regarding numbers, I think it is important to point out that 

there is no question in our view that Congress has a duty to ensure 

the existence of a federal judiciary that is properly equipped to 

handle the caseload that is expected of it. And it sounds like, from 

the previous testimony, patent law must be the area to go into 

these days. This includes an obligation to ensure the proper number of judges, adequate funding, and as much independence of the 

judiciary from political influence as is reasonably possible. 

With these criteria in mind, the ACLJ agrees with members of 

this Subcommittee on both sides of the aisle that Congress should 

create new judgeships when there is a clear and demonstrable need 

for them. However, even when there is justification for incurring 

the significant cost that is associated with creating these judgeships, it is imperative that Congress do so in a way that vigilantly 

guards the independence of the judiciary. We suggest this Subcommittee take the following actions as it debates this bill and it 

moves forward. 
10 

I do want to point out very quickly, though, that when we look 

at the judicial vacancy situation right now—and I will just focus 

for a moment on the emergency vacancies—there are at the district 

court level right now 30 vacancies that are emergencies. Seventeen 

of those vacancies that are emergencies do not even have a nominee. At the circuit court of appeals, where there are 17 total vacancies, there are seven vacancies that are deemed emergency. Four 

of the seven vacancies that are emergencies do not even have a 

nominee. So there is much to be said for the process in regard to 

nominees as well. 

First and foremost, with regard to the bill, we are concerned that 

the legislation invokes an undue amount of partisan influence into 

the makeup of the federal judiciary. This concern, in our view, is 

triggered by both the fact that there is not a delay in the effective 

date of the legislation and the structure of the temporary judgeships that are created under this Act. 

Regarding the effective date, the ACLJ believes as a matter of 

sound principle that all new judgeships should come into effect 

after the next Presidential election, be it Republican or Democrat. 

That removes any taint or hint of partisan nature in this process. 

It also reduces the appearance to some that it is an effort to pack 

the courts. And that has been a comment that we have received 

from a number of people. 

Regarding the temporary judgeships created by this Act, the current construct of the legislation does not actually create temporary 

judgeships but, rather, creates several permanent judgeships to be 

filled by the current President, and then subsequently eliminates 

the authority of a future President to fill the vacancy on that same 

court until sometime in the future. Again, similar to our concerns 

about the effective date, this construct injects, in our view, too 

much partisan influence into the process and should be modified to 

preserve the integrity of the judiciary and retain a proper amount 

of separation for members of this Subcommittee and the Senate as 

a whole. 

Next, while I indicated that the ACLJ does support the creation 

of new judgeships when there is a clear and demonstrable need, it 

is important that we do not fall prey to the suggestion that more 

is better or bigger is better. There is a high cost associated with 

every new judgeship. The estimates I have seen run—and I think 

Senator Sessions said this—approximately $1.1 million a year for 

every new judge. There have been published reports that new 

judges are initially, of course, less productive than their more senior peers. That being said, this is a $1 billion bill. As stewards of 

the American taxpayers’ dollars, Congress must give this cost careful consideration. 

Further, in our view, there is a strong case to be made that it 

is often more effective to provide existing judges with additional resources than it is to create new judgeships. In many cases, this 

produces better results at a lower cost. Although we are perfectly 

understanding and appreciative of the Committee’s concern about 

following through with where there is real need for new judges, 

new judges should be moved through the process. 

Finally, in our view, it is prudent to consider that an ever-expanding court can lead to instability in the law. This occurs when 
11 

you have these jumbo courts or these super tribunals as you see 

in the Ninth Circuit Court of Appeals. Again, more is not always 

better: and while Congress has an obligation to ensure that enough 

judgeships exist and that they have proper resources, it also has 

an obligation to weigh the cost and to help the courts operate effectively. 

In conclusion, the ACLJ thanks this Subcommittee for its dedication to our judiciary and requests that careful consideration be 

given to these concerns in order to ensure that our taxpayer dollars 

are spent carefully and in order to preserve the independent judiciary that all of us are rightly proud of. 

Thank you, Mr. Chairman, Ranking Member Sessions. 

[The prepared statement of Mr. Sekulow appears as a submission 

for the record.] 

Chairman COONS. Thank you, Mr. Sekulow. 

Our final witness today is Michael Reed. Mr. Reed is a partner 

in the Philadelphia office of Pepper Hamilton, where he is a member of the firm’s corporate restructuring and bankruptcy practice 

group and concentrates in the field of bankruptcy and insolvency. 

Additionally, Mr. Reed chairs the American Bar Association’s 

Standing Committee on Federal Judicial Improvements and is the 

State delegate for Pennsylvania in the ABA House of Delegates. 

Mr. Reed, welcome. Please proceed. 

STATEMENT OF MICHAEL H. REED, CHAIR, STANDING COMMITTEE ON FEDERAL JUDICIAL IMPROVEMENTS, AMERICAN 

BAR ASSOCIATION, AND PARTNER, PEPPER HAMILTON, 

PHILADELPHIA, PENNSYLVANIA 

Mr. REED. Chairman Coons, Ranking Member Sessions, and Senator Grassley. I thank Chairman Coons for helping me shorten my 

remarks. I am here today at the request of ABA President James 

R. Silkenat to express our support for Senate Bill 1385, the Federal 

Judgeship Act of 2013, which is based on the detailed assessment 

of judgeship needs of the federal judiciary released by the Judicial 

Conference of the United States. We appreciate the Subcommittee 

affording me the opportunity to testify. I am a bankruptcy lawyer, 

and I practice primarily in the federal courts, and I am also a 

former president of my State bar. 

Last month, the American Bar Association’s House of Delegates, 

which establishes policy for the association, unanimously adopted 

a resolution supporting the enactment of comprehensive legislation 

to authorize needed permanent and temporary federal judgeships, 

with particular focus on the federal districts with identified judicial 

emergencies, so that all federal courts may adjudicate all cases in 

a fair, just, and timely manner. 

Accordingly, the American Bar Association thanks you for introducing Senate Bill 1385 on behalf of the judiciary and applauds 

you for holding this hearing, which will help highlight a growing 

problem that should concern every Member of Congress as much as 

it does the American Bar Association, which is that insufficient resources are diminishing the ability of our federal courts to serve 

the people and deliver timely justice. 

When federal courts do not have sufficient judges to keep up 

with the workload, civil trial dockets take a back seat to criminal 
12 

dockets due to the Speedy Trial Act. This has real consequences for 

the financial well-being of communities and businesses and the 

personal lives of litigants whose cases must be heard by the federal 

courts, for example, cases involving the constitutionality of a law, 

unfair business practices under federal antitrust laws, patent infringement, police brutality, employment discrimination, and bankruptcy. 

The negative consequences of too few judges have been exacerbated by the across-the-board budget cuts mandated by sequestration this fiscal year. Staff layoffs and furloughs and reductions in 

services and operating hours implemented in courts across the 

country in response to sequestration have made it even more difficult for courts with too few judges to keep up with caseloads and 

deliver timely justice. 

The combination of too few judges and insufficient funding is creating a resource crisis for the federal judiciary. In the district 

courts, the number of civil cases pending 3 years or more has risen 

significantly since 1990. While the ABA has long advocated for increased resources for the federal judiciary, the current state of affairs prompted our ABA president to take the unusual step of sending a communication last month to all 390,000 members of the 

American Bar Association to urge them to take action. 

While we are here to support enactment of Senate Bill 1385, 

there are also several steps short of enactment of Senate Bill 1385 

that Congress could take to help the judiciary maintain its excellence and serve the people in a timely and just manner. 

First, Congress should establish new judgeships in the five district courts singled out by the Judicial Conference for immediate 

relief: the Eastern District of California, the District of Arizona, the 

Western District of Texas, the Eastern District of Texas, and the 

District of Delaware. 

Second, Congress should convert the eight temporary judgeships 

into permanent judgeships or at least extend their temporary status for 10 years or more. Without reauthorization, all eight will 

lapse next year. 

Third, Congress should take steps to assure that the judiciary 

has sufficient resources to handle new responsibilities resulting 

from enactment of legislation that expands federal court jurisdiction or is expected to substantially increase the workload of the 

federal courts. 

Fourth, Congress should make the filling of judicial vacancies a 

priority and work with common purpose to reduce the longstanding 

10-percent vacancy rate. As of September 8, there were 94 vacancies on the courts, 38 of which have been classified as judicial 

emergencies by the Administrative Office of the U.S. Courts. Filling 

these vacancies expeditiously would provide immediate and lasting 

relief to the courts. 

And, finally, fifth, the ABA urges Congress to protect the federal 

judiciary from future deficit reduction and to increase funding for 

Fiscal Year 2014 to the Senate Appropriations Committee’s recommended funding level of $6.67 billion. 

Finally, I would like to note with regard to the vacancy issues, 

there are presently pending 45 nominations—34 pending in Committee, 11 pending on the Senate floor. 
13 

Thank you for the opportunity to express the views of the American Bar Association on issues so central to our mission. 

[The prepared statement of Mr. Reed appears as a submission for 

the record.] 

Chairman COONS. Thank you. 

We will now beginning rounds of questioning. Mr. Reed, if I 

might start with you, I certainly agree, as a number of witnesses 

have suggested, that we can and should do more to fill the existing 

vacancies, and I have worked diligently with my colleagues to 

make sure that we are getting nominees both to the White House 

potential candidates and the nominees to the Committee and then 

to the floor. But as you know, we have other challenges in getting 

things moved through the floor. 

Let me step back, Mr. Reed, and ask sort of a most basic question. Why should the average citizen care about judicial staffing 

levels? 

Mr. REED. Well, we have three branches of Government, as the 

Senator knows, and the judicial branch performs the important 

function of adjudicating controversies that are within federal jurisdiction. A vital function of Government is the fair and effective and 

timely resolution of disputes—patent disputes, business disputes, 

civil rights disputes, employment discrimination disputes, the wide 

range of disputes that fall within federal jurisdiction. So it matters 

to the public—this is a service that Government provides—and it 

matters to the public when that service is not provided in a timely, 

fair, and effective manner. It is a bread-and-butter issue for the 

public, I think. 

Chairman COONS. I agree, and I hope many of my colleagues will 

agree as well. 

Judge Tymkovich, in the past there have been some challenges, 

some criticism regarding the Conference’s methodology for evaluating a district’s request for additional judgeships. Would you briefly describe the process that the Judicial Conference undertakes 

when gathering data and when compiling its biannual Article III 

judgeship recommendation? 

Judge TYMKOVICH. Thank you, Senator. The process really is a 

comprehensive and exhaustive process. It is something that we do 

every 2 years, and I have been on my committee for 6 years now, 

so this is the third time that we have updated and refreshed our 

recommendations to Congress. 

The process, of course, starts with the courts that assess their 

needs and make a request to the Subcommittee on Judicial Statistics. Those courts look at their case filings, they look at factors internal to the court, they look at trends and make a request to the 

Committee that a new judgeship be considered. 

The Subcommittee does not take that request at face value. We 

do additional work in analyzing the workload of that court. We look 

at their case filings, their weighted filings, pursuant to our process. 

We look at the assistance those courts have from other jurisdictions 

or within a circuit or within a district. Can judges visit from other 

circuits? What is their allocation of senior judges? Can senior 

judges assist? And what allocation of workload do they undertake? 

What is their use and numbers of magistrate judges that can assist 

the district judges? So we look at those factors on assistance. 
14 

Then we look at the unusual factors dealing with case complexity 

in a particular district, so in Delaware, they have an extremely 

high weighted caseload because of the complexity of the patent 

cases that they tend to see. So we look at that as a part of the overall assessment of whether there is a need for new judgeships. 

Next we look at the geography. Is it a widespread district or, you 

know, a circuit with far-flung offices or divisions? That affects the 

delivery of judges to courthouses within those courts. 

And then, finally, we look at case trends. Has there been a spike 

for some reason that is exogenous to the court? Or does it look like 

there is a trend, either upward or downward, that we should pay 

attention to? 

So the Subcommittee evaluates all those factors and then makes 

a recommendation back to the court whether we agree or disagree 

with their initial recommendation. The court evaluates that at the 

Circuit judicial counsel level, then makes a recommendation back 

to the Subcommittee. That is step four of our process. We then do 

a final review, and we either agree or disagree. And we do disagree. We recommended that positions not be created or positions 

not be filled. This last set of recommendations, for example, had 

three or four additional judgeship requests that were not recommended by the Conference because the JRC did not approve the 

requests from the courts. 

So, finally, that process goes to the full Judicial Resources Committee, then it goes to the Judicial Conference for approval, then 

over to Congress. 

Chairman COONS. Are you confident that that methodology takes 

into account both the in-court and out-of-court responsibilities of a 

judge, looks at all the different areas in which judicial focus and 

competence—— 

Judge TYMKOVICH. Yes, it is a holistic overview, and if I could 

comment on the GAO study, the case-weighting methodology is just 

one part of the multi-step process that I have indicated. The GAO 

has made the criticism, as Senator Sessions made, in 2003. Our 

FJC, the Federal Judicial Center, and an academic evaluated our 

methodology, and we respectfully disagree with GAO’s criticism of 

our study. 

In fact, the GAO recommends that we go back to more of a timebased study, which we had in an earlier case-weighting methodology in the 1990s. Well, we have compared our current methodology with the time study, and it turns out that there is really not 

a material difference in the weighted outcomes that are a result of 

those two studies. In fact, the timing study had slightly higher case 

weightings than the current study we use. So we are quite confident that our methodology yields accurate results. 

And I might add, the judiciary is not asking for the creation of 

judgeships in marginal courts. If you look at the recommendations, 

the district courts in our recommendations are way above our 430 

national average. It is in the 600s. So we are not talking about 

marginal courts. We are talking about very busy courts. Only two 

circuit courts have asked for additional judges, and the averages in 

those circuit courts are well over 700 compared to our 500 case filings per panel per year. So we are talking about busy courts that 

really have a demonstrated need. 
15 

Chairman COONS. Thank you very much, Your Honor. 

Senator Sessions. 

Senator SESSIONS. Thank you. 

Well, my thought is that the courts are able today to handle 

more cases than they have been able to do in the past and that 

some of those numbers should be changed. I am not sure that you 

should not listen to GAO. We insist that agencies of the Government, including the Department of Defense, listen to GAO’s suggestions. And I am not aware that the court has made a formal evaluation of their recommendations. 

But, for example, my concern would go to the authorized district 

judgeships according to—well, weighted case filings per authorized 

judgeship was 430; adjusted filings for a three-judge court of appeals panel were 500. They are the same as they were 20 years 

ago. Is that not right, Judge Tymkovich? 

Judge TYMKOVICH. They were modified in the—I think we adjusted them in the early 2000s. 

Senator SESSIONS. Where are you now? 

Judge TYMKOVICH. We are at 430 after accounting for additional 

requested judgeships. Previous to that it had been at 400, and the 

Conference made that change in the early 2000s. 

Senator SESSIONS. Not a lot. Looking at the numbers, the court 

of appeals, 10 percent of their cases now, a little over, are immigration cases, which seem to me rather simple cases compared to a 

complex patent case that has been tried for weeks. Civil appeals 

since 1991 have risen only 8 percent. Criminal cases are up by 33 

percent since 1991. But we have had—that is appeals. And the 

most dramatic increase in civil appeals was prisoner appeals. Those 

have increased by 37 percent. 

But as the law has matured and prisoner appeals in immigration 

cases, it would seem to me that those cases would take a smaller 

percentage of time of the appellate judges, Judge Tymkovich, than 

maybe they did in 1991. 

Judge TYMKOVICH. Well, certainly, Senator, we have had an explosion in immigration cases. Overall since 1990, our caseload is up 

15,000 cases in the appellate courts, and as I mentioned in my 

statement, we have had no additional circuit court judges. So we 

are doing our best to leverage a substantial increase in caseload 

through some of the techniques I have mentioned. But, you know, 

frankly—— 

Senator SESSIONS. Well, you are doing better. You have got more 

clerks. You have got better—— 

Judge TYMKOVICH. We do. 

Senator SESSIONS [continuing]. Clerks in the clerk’s office. You 

have got more computers. You have got the ability to research 

cases quicker with computer systems than having to pull down 

books and make copies of them as they used to do. So there is a 

lot of progress, which I give the courts credit for. I would just note 

that the Eleventh Circuit has the highest caseload per judge in the 

country, and they do not want any more judges. They are getting 

by, and they work hard, and they are proud of their productivity, 

and other circuits, too. 

Now, with regard to the district courts, Judge Robinson, the 

1,100 cases, giving you the highest caseload in the country, does in-
16 

clude a factor that gives you credit for the more complex cases. Is 

that correct? And do you think that gives you enough credit? 

Judge ROBINSON. I have no idea whether it does or not because 

these are such complex cases, and it is hard to quantify the contemplation and the investigation you have to spend, understanding 

the technology in the first instance, before you even get to the legal 

issues that the parties present to you in the second instance. 

Senator SESSIONS. It sounded like that to me, but in addition to 

that, these have huge economic impacts on the country sometimes, 

do they not? 

Judge ROBINSON. They do indeed. 

Senator SESSIONS. You really have to give them a lot of time, and 

they are complex. I just wanted to recognize that. However, I would 

note that Social Security cases, you have—most courts have clerks 

that specialize in that. 

Judge ROBINSON. We do not as a small court, and they are important cases, and we—— 

Senator SESSIONS. Do you have a habeas specialist? 

Judge ROBINSON. We have one habeas and one pro se clerk who 

does most—— 

Senator SESSIONS. And that is criminal—prisoner appeals, and 

those have increased significantly, even after our reform law. But 

many of those just simply do not meet the legal standards and are 

dismissed promptly because they do not, with or without opinions. 

Judge Tymkovich, my time is running out, but the recent bills 

to add judges have proposed increased filing fees to pay for the new 

judges, to try to stay within budget or not adding to the debt. I 

would just add it still violates the Budget Act and would be subject 

to a budget point of order because you are spending more than we 

agreed to spend. And you are saying, ‘‘But that is okay, I have 

raised taxes.’’ But we really ought to ask the question, if we are 

going to raise taxes or fees, in your case, if we raise fees on criminal filings, maybe we should spend the money on something else 

rather than just adding judges. 

But does the Judicial Conference support the raising of filing fees 

for additional judgeships to pay for it? 

Judge TYMKOVICH. Senator, that is a really difficult question, 

and we have endorsed the bankruptcy bill, which did increase some 

filing fees. But we have very strong concerns about increasing fees. 

We are really not a revenue-generating branch of Government. We 

only have limited areas where we can do that. So for the most part 

the Conference does not support raising filing fees to solve our 

problem, nor would it be an adequate approach. And I think there 

are collateral consequences to that—the access to the courts and 

the like. 

We do not have the opportunity to cancel programs. Our workload is filing driven. We react to the caseload, and we do not have 

a chance to take some other steps that other areas of Government 

do. So, in short, we have very grave concerns about these fees getting too high. 

Senator SESSIONS. Well, I can understand that, and it is a difficult choice. You do not want to get it so expensive that a person 

cannot have their day in court. 

Will we have a second round? 
17 

Chairman COONS. Absolutely. 

Judge Robinson, if I might, I would just like to explore a little 

bit further how the District Court of Delaware has been able to 

meet steadily swelling caseloads, which now have hit record levels 

despite flat judicial staffing, and the impact of sequestration, as 

referenced by Mr. Reed and others, on the staff support. I think 

Senator Sessions correctly notes that since 1990 there have been 

significant advances in terms of computer resources, modernization, automation, and clerks. But in the last year, sequestration 

has cut back on many of those advantages by reducing staffing 

from underneath judges. 

What have you been doing to deal with the caseload steadily 

going upward since you have gone to the bench? And what are the 

limits on the courts’ ability to adapt as we go forward? 

Judge ROBINSON. Well, I believe the District of Delaware has had 

a reputation dating back to the late 1990s when the patent caseload started to increase, my colleagues, like Joe Farnan and Rob 

McKelvey, with those, of being innovative in terms of managing our 

complex litigation, including the introduction of time to trials, separating or bifurcating issues, and encouraging litigants to choose 

representative claims and defenses. 

We have a small court. We have not yet adopted rules. Therefore, 

we allow the judges to experiment with different case management 

techniques and choose those that are most consistent with their experience and with their strengths and weaknesses as jurists. 

The only way that I manage to keep up is to have an excellent 

staff, to keep up with the paper and the cases, to prioritize, and 

the real limit is time. Setting a trial date as a trial judge is the 

one thing you can do to keep the parties focused on resolving the 

dispute, through mediation, through motion practice, or ultimately 

through trial. There is almost—I am double and triple booked with 

patent trials through 2015. There is only so much that one—and 

that does not include the incidental other civil trials that will come 

up or the criminal trials I have to accommodate. There is only so 

much time that we have. You can only do that by timing your trials 

and giving the parties limited opportunities to present their case 

through trial. 

So to some extent, despite all the additional technologies we have 

and an excellent staff, there is almost nothing more that I can do 

at this point with respect to getting my cases resolved timely. 

Chairman COONS. Thank you, Your Honor. And in your years of 

service, which are almost exactly the same period since the last 

comprehensive judgeship bill, and during those 23 years the workload has steadily increased, and you have seen some very capable 

judges come and go, some of the members of our bench that you 

referenced. 

How do you see the increasing caseload impacting judicial morale 

and the ability of the federal bench to attract the best and brightest? And, Judge Tymkovich, I would also welcome your response to 

that. Judge Robinson? 

Judge ROBINSON. My father was a pilot, and I grew up around 

airports, and I see my job as an air traffic controller. And I see an 

unending line of airplanes in the flight pattern waiting for their 

touch-and-go in Delaware on the way to Washington to the Federal 
18 

Circuit, to tell you the truth. And when you have this complex, burdensome process that you do over and over and over again, with 

dwindling resources and certainly nobody patting you on the back, 

the best you can do is get an affirmance by a Federal Circuit, generally on different reasoning than the ones you have given them, 

it does get—— 

[Laughter.] 

Chairman COONS. Duly noted, Your Honor. 

Judge ROBINSON. Right. It gets difficult to feel as though what 

you are doing makes a difference. And I love my job, but—and I 

almost feel sorry for the judges who are just coming on. At least 

I have grown with this increasing caseload. To be handed it first 

thing has got to be difficult. 

Chairman COONS. As a member of the Committee who also 

chairs confirmation hearings for judicial nominees and has had a 

number of classmates and colleagues now come before this Committee, I am struck by what I think is their likely trajectory in 

terms of caseload and the financial challenges that every federal 

function faces. 

Judge Tymkovich, if you might briefly just also speak to the challenges in terms of retaining and recruiting the best and brightest 

of the American Bar to be willing to serve as part of the federal 

bench. 

Judge TYMKOVICH. Senator, it is a great honor to serve as a federal judge, but as the Chair of a program committee that has budget responsibilities, the last few years have been real challenges. I 

think the federal judiciary has been a leader in cost containment 

efforts. As Judge Gibbons testified, we have avoided costs of close 

to $1 billion by some of the steps we have taken dealing with our 

rent and our personnel costs over the last 3 years. But that cannot 

continue. We are down 1,100 employees since 2011. At the sequestration levels, we might have to lay off another 2,100 employees 

out of a 22,000 employee work force over the next couple years. 

So these are serious times, and those issues, that lack of support 

has a real effect on the judiciary. And I think, you know, it is a 

dedicated and really high esprit de corps institution. I am proud of 

my colleagues, but it has become a very difficult time for us. 

Chairman COONS. Well, I am grateful for your public service, 

both of you. I was really moved by Judge Roth’s tireless dedication 

to her work and by how thorough a judge she was and by how attentive she was to every detail. Her mastery of the record really 

was something that encouraged me to go on and consider public 

service. 

Judge TYMKOVICH. She was one of our best. 

Chairman COONS. I just want to thank you both for your testimony today. 

Senator Sessions. 

Senator SESSIONS. I knew Judge Roth, too. She was remarkable. 

Let me ask you this: Mr. Tymkovich, in 2006, the number of appeals filed per circuit fell through 2012. There were 8,024 appeals, 

and in 2012 there were 6,714. That is an over 10-percent decline 

in the number of appeals—excuse me. That is not correct. That is 

one circuit’s numbers. But it does appear, does it not, that you in 

recent years have not seen a significant increase in the number of 
19 

appeals? Let us see. Well, almost all of these circuits. I am looking 

at—every circuit seems to have had a decline. Every circuit has 

had a decline, I believe I can say with confidence. 

So since 2006, you were getting by in 2006. Why can’t you get 

by today? 

Judge TYMKOVICH. Thank you, Senator. I think I understand the 

gist of the question, and I think it really demonstrates the essential conservatism of the requests that we make to the Senate. For 

example, 2 years ago, our appellate request was, I think, around 

nine circuit judges. This time it is only six; it is only in two circuits. 

And even the request in the Ninth Circuit is less than it was the 

last go-round. 

We also asked for a temporary judgeship instead of a permanent 

judgeship, recognizing the fact that if there are fluctuations in 

workload, that is one way for the Senate to accommodate that. So 

I think that we have reacted to changing caseloads. 

Senator SESSIONS. Well, the appeals have gone down since 2006, 

it seems quite clear. 

Mr. Sekulow, you raised something and you have said openly 

what a lot of us have thought about but have not really discussed. 

If we add 91 judges, should one President get to appoint all those 

judges? And by putting it past the election, at least the American 

people sort of are on notice that the next President is going to appoint a bunch of federal judges. 

Mr. SEKULOW. Senator Sessions, the current plan in the bill basically doubles the number of vacancies pending before the entire judiciary. Doubles that number. That would authorize the current 

President to increase in this particular bill 91 additional judges. 

And what is interesting that Judge Tymkovich said, three of which 

his committee, the Judicial Committee, did not ask for. That is 

about $3,300,000 worth of expenditures. So to put it into a perspective of doubling the number of vacancies, in every Presidential election, no matter Republican or Democrat, there is always a discussion of the number of vacancies and how many were confirmed: and 

we always compare the confirmation process numbers versus the 

previous administration. And generally, if you look at the history, 

it is running about the same: the percentage of confirmations is 

pretty close. The fact is this doubles—one President doubles— 

under one Presidential administration doubles the number of vacancies, which then becomes a political tool as far as percentages 

go: but also, it looks like—I mean, if you were just to talk to the 

American people about this—it looks like court packing. I am not 

saying that is the intent. I am certainly not trying to disparage the 

Committee here or the people who are testifying today. I have tremendous respect for the federal courts and these judges. But the 

number of vacancies doubles under one Presidential administration. 

There is a way to handle that. It could be staggered. You could 

do it a third, a third, a third, over 12 years. You could put the 

whole thing off for another—— 

Senator SESSIONS. Thank you for sharing that, and we have 

never discussed that, to my knowledge, openly. But I think that is 

a realistic thought. 
20 

Looking at the district court filings, Judge Robinson, in many 

areas there is a decline. You have an increase in immigration, I 

think as was noted. But many of those cases are handled quickly 

and are not the kind of big trials that a patent case or a bank 

fraud case would be. 

Just looking at the data, in 2007, this area increased. Property 

offenses were 12,208. They went up to 13,340 in 2011. But others 

are different. Embezzlement, 591 in 2007; 552 in 2011—a drop 

there. Fraud cases went up from 7,700 to 9,300. But financial institution fraud, big cases there were 679 in 2007 and only 570 in 

2012. Social Security cases were 699 in 2007, 527 in 2011. Forgeries and counterfeiting dropped from 868 to 737. Drug offenses 

dropped from 17,194 to 16,109. Firearms cases—I have raised this 

in hearings, and they are always talking about new laws, new 

laws, new laws on firearms. But the basic firearm case prosecutions are down. There were 8,480 cases in 2007, 7,183 in 2012. Explosives cases, 178 to 160, and it goes on. Overwhelmingly, the 

trend is downward, it seems to me. 

So I guess what I am raising with you and just sharing with you 

is a concern that it does not appear we have had a real increase 

since 2007 in our caseload, appellate or district court. And our responsibility, therefore, should be to find those districts that are 

particularly burdened and see if we can provide help for them. But 

I am not sure, if we were getting by in 2007, why the judiciary cannot get by in 2013. I will let you all comment as you will. 

Judge ROBINSON. I have found in my experience that every court 

is different, how they manage their resources and the kind of caseload they have. It is difficult for me to comment on general statistics when our court is so very different than so many of the courts. 

I go back to the fact that so long as the parties bring to bear 

huge resources in the complex cases and the judiciary’s resources 

remain the same or diminish that we will always be at a disadvantage and we will never be able to process the cases as well as we 

would like to. 

Senator SESSIONS. That is kind of where I am wrestling with the 

numbers, and it is hard to know precisely what to do. But the 

courts are doing better. But mediation—I mean, it is incredible the 

number of—percentage of cases, civil cases, that end in settlements 

without a trial. And I give the judiciary credit for that. And the 

number of guilty pleas that occur in criminal cases is like 98 percent. Very few of the criminal cases are going to trial either. Do 

either of you have the numbers—and trials were higher in 1991. 

The percentage of trials were higher in 1991. And so if you have 

got a multi-week patent case, a multi-week bank fraud case that 

is disposed of by a guilty plea, that is really a relief to a district 

court bench. 

Judge ROBINSON. Settlement and pleas are always welcome. That 

gives you more time to read, and you do not generally take appeals 

from settlements and pleas. So that is always a good thing for a 

trial judge. 

Senator SESSIONS. But judges do have to spend time to help 

bring about settlements. 

Judge ROBINSON. They do indeed, and I go back to the fact that 

setting the trial date in the first place in civil cases is instrumental 
21 

in keeping the parties focused on the case and trying to resolve it, 

because most parties do not want to go to trial because there are 

risks involved with any trial. And when you have got a full calendar of trials and have to slip in those criminal cases that do go 

to trial—and there are many. I have had more, I think, the last 

couple years than I have had in a while. It just makes it difficult 

to manage. 

Chairman COONS. If I might, Judge Robinson—— 

Senator SESSIONS. Thank you for allowing me to go over. 

Chairman COONS. Certainly, Senator. 

If I might just follow up on that, you made in your opening statement a reference to the fact that in one district there is a 4-year 

delay before civil trials. Is it possible also that one of the reasons 

you are seeing more settlements is because of the enormous delay 

until there is going to be a trial? If there were more judges available, do you think there might be more time to reflect on particularly complex cases and to reach a more thorough, a more reasoned 

decision? And in your view, does an overburdened docket have unintended consequences that hurt litigants? Just a general series of 

questions. 

Judge ROBINSON. Well, it is interesting because when you are 

talking about complex civil cases, defense counsel does not want to 

get to trial, plaintiff’s counsel does. So there is always that conflict 

between who is perhaps putting roadblocks in the way to a resolution. 

I believe that it is important for us as a—it is important for the 

judiciary to move the parties toward resolution. An amicable resolution is always best. But I believe there is great truth in justice 

delayed is justice denied. And when we cannot get to motions that 

are dispositive, if we cannot get the parties to trial, I believe it just 

leads to more mischief and increasing costs, because the parties 

will take up the time doing something that is not really, I think, 

important. 

Chairman COONS. Well, to the opening question I asked Mr. 

Reed, I think the reason the average citizen should be concerned 

about increasingly lengthy delays for the consideration of either 

criminal or civil cases is the reason our federal judicial system exists is for the resolution of wrongs and for controversies. And when 

they are so delayed, justice is at some risk of being denied. 

Judge Tymkovich, if I might ask just one question. One of the 

concerns I have heard some colleagues raise is that the Judicial 

Conference’s methodology is sort of a one-way ratchet that leads to 

continually increasing staffing levels in busy courts, while courts 

with decreasing caseloads are allowed to remain at constant levels. 

Is there any process that aligns incentives in a way that would actually lead to more rigorously examining districts and circuits 

where federal resources might be conserved through either the 

elimination or the realignment of unneeded judges? 

Judge TYMKOVICH. Thank you, Senator. Really two comments to 

that. 

The first is that as a part of our process, the Judicial Resources 

Committee really does a rigorous examination of the need for filling 

a particular judgeship or adding to the number of judges in a circuit. And we have a process within the Judicial Conference where 
22 

we can recommend to the Conference that a vacant judgeship need 

not be filled because of declining caseloads or circumstances pertinent to a particular district. In the last decade, we have had a 

number of recommendations to the Conference that it do so, six 

over the last couple of cycles for our recommendation. 

So we do have a process where we would leave a vacancy unfilled 

and make that recommendation to the Conference and to the Senate. 

We do not recommend the elimination of judgeships. I think this 

process illustrates how difficult it is to create new judgeships, so 

the position of the Conference is that it is better to leave a judgeship unfilled when cases go down rather than have to go through 

the exercise of creating a new district. But we do have a process 

that I think accommodates changing caseloads, and we have been 

sensitive to those districts where there have been declines and 

have addressed it in that way. 

Chairman COONS. Mr. Sekulow, if I might, you advocated for filling those existing vacancies as a first step for addressing the ongoing needs that have been identified by all of you and in this broader conversation. But delay on the floor remains a problem, and getting agreement by Senators of different parties or the party opposite the President has been a challenge. 

Delay on the floor in the 3 years that I have been a Senator has 

been an abiding and a persistent challenge. What advice would you 

give to Leader Reid if he cannot get a time agreement to move 

nominees who have cleared this Committee, often by an overwhelmingly positive vote? 

Mr. SEKULOW. I think this is a problem that transcends different 

sessions of the Senate. This has been an ongoing problem, and it 

was a problem under the President when President Bush was in 

office that preceded the same problem with President Clinton. 

I will note that yesterday two district court nominees were confirmed by the Senate, last night. So I think the process has to be 

streamlined. We have said this publicly in other venues, in fact, before Senate committees. I think the problem is the contentious nature of the process itself. I think a lot of this is process issues. I 

think what Judge Tymkovich is dealing with on the court of appeals level, what Judge Robinson is dealing with in her district 

court are process issues. And I think the process issue—the Senate 

is not immune from a process problem. 

That does not mean that it is going to always be smooth sailing. 

There will be nominees who are controversial. But at the end of the 

day, our position has always been the President, when he is elected 

by the American people, has the right to nominate those federal 

judges. That is his right of appointment. Then it is up to the Senate for advice and consent. That process—and we have said this 

previously—needs to be less cantankerous, to be quite frank. And 

that, as I said, transcends—I am not focusing on one session of the 

Senate. This has been an ongoing problem. I saw it firsthand. 

I would ask this question: Why is it that the Eleventh Circuit 

Court of Appeals, talking about process, has not asked for additional judges? What is it about their process that has enabled them 

to succeed with a very high workload per judge? And why is it that 

if we have other federal courts, whether it is district courts or 
23 

courts of appeals, where the docket is a shrinking docket, then 

rather than just preserving judges for preserving judges’ sake—or 

vacancies—or lifetime appointments, why do we not start looking 

at that empirical data to try to get that kind of process? I think 

that affects both the administration of justice, which we are all 

concerned about, as well as finding out the facts. What is the process there that is working well? And why isn’t that being implemented in other courts? 

Chairman COONS. A fair question, and Senator Sessions took 

some interest in your testimony, as did I, that you raise a concern 

that the Federal Judgeship Act of 2013 would become effective immediately, that all of the judgeships created would become effective 

immediately rather than either staggering them or having them become effective after the next election. 

Would you have a similar objection to legislation that reduces the 

size of a court immediately upon enactment? 

Mr. SEKULOW. Well, I think, again, staggering it is going to remove partisan politics from it. It is not just the timing, which is 

a huge part of it. It is the number. It is 91 judges. There are 91 

vacancies—or 92 vacancies as of last night, and we are talking 

about increasing 91—we are putting 91 additional vacancies on top 

of that. I think that it looks like court packing. I am not trying, 

again, to impugn anybody’s intent. But that is just what it looks 

like. So staggering the process, if, in fact, it is justified to increase 

it, and the country has the budget to do this, I think that solves 

the problem. 

But, again, I think with a lot of this, you have to look at process 

here, Senator. 

Chairman COONS. Thank you, Mr. Sekulow. 

Judge Tymkovich, I am going to give you the last word, if I 

might. First, if you would just speak to the question of timing, you 

know, I rely heavily on the advice of the Judicial Conference because I view it as a nonpartisan methodology that is detailed and 

thorough and that examines those districts, those circuits that have 

a request, that have a demonstrated need, and it does not simply 

look at filings. It looks at lots of different indicia of where judges 

are straining to meet their caseload in a full and appropriate and 

effective way for legitimate reasons. 

I would be interested also—we spoke at a number of points today 

in this hearing about how patent cases, which are a particularly 

significant portion of the Delaware District Court’s caseload, are 

complex, unusually complex and sort of hard to weight because of 

that. The D.C. Circuit has also been the subject of some discussion. 

My understanding is that the Judicial Conference does not evaluate either the Federal Circuit to which those patent trials are appealed or the D.C. Circuit because the staffing model applied to 

other courts does not work in some ways. Could you just speak to 

that question as well? 

Judge TYMKOVICH. Thank you, Senator. Several questions there. 

First, as to the timing, the process that the Judicial Resources 

Committee and the Judicial Conference uses is a nonpartisan, biennial process. We do not look at who is President and who is in the 

Senate. What we do is look at aligning our workload and our judgeships to that increasing or declining workload. So our process really 
24 

is independent of any of the political considerations, and we strive 

very hard to maintain that objectivity. Regardless of who the President is, we come forward with what our recommendation is based 

on our workload and our assessment of it. 

As to our case weighting, certainly patent cases are one of our 

five heaviest weighted civil cases. They really garner substantial 

weight in our process. Only some very other complex administrative or death penalty-related matters have that kind of case 

weighting. 

As you indicated in your question, the D.C. Court of Appeals has 

been excluded from the pure numerical standard. We have employed a different process with that court because of the uniqueness of their caseload. They have a heavy administrative appeals 

practice. They have something like 40 administrative appeals per 

judgeship panel versus about 28 or fewer in the other court of appeals. So, historically those types of cases have driven a more complex and difficult evaluation. Those cases have multiple parties, 

typically issues of first impression, big records, things that make 

them somewhat outliers to some of the other cases we see in the 

other circuits. Some of those cases are exclusive jurisdiction in the 

D.C. Court. So for that reason, we have excluded them from the 

same process of other circuits. 

I might add they have not asked for a new judgeship in the last 

20-plus years or so. They have lost one to transfer, and their caseload has been relatively steady the last 10 years or so. So we have 

not seen any reason to re-evaluate that because their caseload is 

about where it was 10 years ago. 

Chairman COONS. Thank you, Your Honor. In my own view, the 

D.C. Circuit and the Federal Circuit work under a particularly 

complex and burdensome caseload not because of the number of 

cases but their complexity, and so unresolved questions about filling judicial vacancies on those circuits has occupied a fair amount 

of the debate of my colleagues and the members of this Committee. 

So I appreciate your giving us some input on the methodology that 

you use, and I appreciate being reminded that the D.C. Circuit has 

not requested additional judgeships. 

Any further questions, Senator Sessions? 

Senator SESSIONS. Mr. Reed, I just noticed, I have raised twice 

with the FBI Director the failure to prosecute bankruptcy fraud. 

When I was United States Attorney, I felt like that was federal 

court, and the only people in the world were the FBI and the federal prosecutors to prosecute it. In 2007, there were only 95 bankruptcy fraud cases in America. It dropped to 64 in 2011. But that 

is really not the judge’s fault. That is the fault of the prosecutors 

and the FBI. That is an important court system in America involving lots of money, and frequently there are abuses that occur, and 

judges do not like to see fraud occur in their court. 

I would note relevant to the vacancies and failures to confirm 

nominees, I think at least half of the vacancies that exist today 

there is no nomination for that vacancy. I think more than half. 

And the amount of time necessary to confirm a judge is consistent 

or shorter than that that occurred in previous times. That is not 

to say we should not move faster. President Obama nominated a 

fine judge from the Northern District of Alabama, and we moved 
25 

it out of Committee within a week or two, and so it is on the floor 

now and should come up rather soon. So I do not know that—I 

think it is a right—there is a right to be concerned about the slow 

pace in not filling nominees, but I guess the blame goes around. 

And, finally, I did review the number of appeals filed per circuit 

from 2002 through 2012, and I just looked at the 2006 number 

through 2012. Every single circuit has had a decline in filings during that time. The Second Circuit, it looks like about a 20-percent 

decline. And I would say, Mr. Tymkovich, the Federal Circuit, we 

are going to be given—providing some information, Mr. Chairman, 

on that. They have often said that our cases are more complex and 

more important. The D.C. Circuit has made the same argument. 

But real examination of those two circuits will show they have a 

very low workload compared to other circuits, and I think both of 

those should give up judgeships and let us send them to places 

overworked like any rational business would do. 

Thank you, Mr. Chairman. 

Mr. REED. Senator, you had made the point earlier about the improvements in technology that have helped the courts become efficient, and my understanding is—I just wanted to make the point 

that my understanding is that one of the perverse consequences of 

the sequestration process is that, in order to move funds around, 

they have had to defer investing in technology and maintaining 

technology with the possible consequence that in the future some 

of those efficiencies will be lost. So I just wanted to make that 

point. 

Senator SESSIONS. A valuable point. 

Chairman COONS. Thank you, Mr. Reed, Mr. Sekulow, Judge 

Robinson, and Judge Tymkovich. As you have observed, sequestration is having quite negative consequences all across the Federal 

Government. We are finding that although we may be reducing 

spending in the short term, it is having long-term consequences in 

terms of personnel, efficiency of operations, and our ability to execute on our public responsibilities. The federal judiciary is a whole 

branch of our constitutional order, yet we spend less than 1 percent 

of the total federal budget on its operation. And as Judge 

Tymkovich observed at the outset, you do not control your caseload. 

You are the branch that responds to actions taken, enforcement actions by federal law enforcement, plaintiffs who come to you. You 

are not in control of the filings, and our challenge is to work I 

think responsibly with you to find a path forward that allows us 

to fill the vacancies that we have, to ensure that judgeships are 

created in those districts and circuits that are burdened, and to review closely those where there might be some need for realignment. 

But in my view, this needs to be done in a nonpartisan way and 

in a way that continues to sustain the American judicial system as 

literally the world leader, the gold standard for the adjudication of 

conflicts. 

If there are no more questions, I would like to thank all four of 

our witnesses on behalf of the Subcommittee on Bankruptcy and 

the Courts for your testimony and to thank the many interested 

stakeholders who have submitted testimony for the record. 

With that, this hearing—excuse me. I will leave the record open 

for 1 week for members who were not able to join us today and who 
26 

may wish to submit additional testimony on the topic, and I look 

forward to continuing to work with my colleagues to resolve the 

issues raised today. 

With that, we are hereby adjourned. Thank you. 

[Whereupon, at 11:58 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 
(27) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. CHRISTOPHER A. COONS
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PREPARED STATEMENT OF HON. PATRICK LEAHY
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PREPARED STATEMENT OF HON. TIMOTHY M. TYMKOVICH
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PREPARED STATEMENT OF HON. SUE L. ROBINSON
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PREPARED STATEMENT OF JAY ALAN SEKULOW
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PREPARED STATEMENT OF MICHAEL H. REED
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QUESTIONS SUBMITTED BY SENATOR COONS FOR TIMOTHY M. TYMKOVICH
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QUESTIONS SUBMITTED BY SENATOR KLOBUCHAR FOR TIMOTHY M. TYMKOVICH
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RESPONSES OF TIMOTHY M. TYMKOVICH TO QUESTIONS SUBMITTED BY SENATORS

COONS AND KLOBUCHAR
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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