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56–347 PDF 2010

S. HRG. 111–553 

RESPONDING TO THE GROWING NEED FOR FEDERAL JUDGESHIPS: THE FEDERAL JUDGESHIPS 

ACT OF 2009 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT 

AND THE COURTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 30, 2009 

Serial No. J–111–52 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

SHELDON WHITEHOUSE, Rhode Island, Chairman 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

BENJAMIN L. CARDIN, Maryland 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

SAM GOODSTEIN, Democratic Chief Counsel 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 3 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, prepared 

statement .............................................................................................................. 145 

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

statement .............................................................................................................. 165 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 4 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 1 

prepared statement .......................................................................................... 202 

WITNESSES 

O’Neill, Lawrence J., Judge, U.S. District Court for the Eastern District 

of California, Fresno, California ......................................................................... 10 

Singal, George Z., Judge, U.S. District Court for the District of Maine, Portland, Maine ........................................................................................................... 7 

Tjoflat, Gerald B., Judge, Eleventh Circuit Court of Appeals, Jacksonville, 

Florida ................................................................................................................... 12 

QUESTIONS AND ANSWERS 

Responses of Lawrence J. O’Neill to questions submitted by Senator Sessions 22 

Responses of George Z. Singal to questions submitted by Senators Whitehouse, Sessions, Cardin ....................................................................................... 27 

Responses of Gerald B. Tjoflat to questions submitted by Senator Sessions ..... 56 

SUBMISSIONS FOR THE RECORD 

American Bar Association, Governmental Affairs Office, Washington, DC, 

statement .............................................................................................................. 63 

Cooke, John S., Deputy Director, Federal Judicial Center, Washington, DC, 

statement .............................................................................................................. 68 

Federal Bar Association, Lawrence R. Baco, San Diego, California, statement . 142 

Jenkins, William O., Jr., Director, GAO, Washington, DC, statement ............... 149 

O’Neill, Lawrence J., Judge, U.S. District Court for the Eastern District 

of California, Fresno, California, letter and statement ..................................... 167 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama, charts ............. 173 

Singal, George Z., Judge, U.S. District Court for the District of Maine, Portland, Maine, statement ........................................................................................ 175 

Tjoflat, Gerald B., Judge, Eleventh Circuit Court of Appeals, Jacksonville, 

Florida, statement ................................................................................................ 190 

(1) 

RESPONDING TO THE GROWING NEED FOR 

FEDERAL JUDGESHIPS: THE FEDERAL 

JUDGESHIPS ACT OF 2009 

WEDNESDAY, SEPTEMBER 30, 2009 

U.S. SENATE, 

SUBCOMMITTEE ON ADMINISTRATIVE

OVERSIGHT AND THE COURTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:31 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Sheldon Whitehouse, Chairman of the Subcommittee, presiding. 

Present: Senators Whitehouse, Cardin, and Sessions. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. 

SENATOR FROM THE STATE OF RHODE ISLAND 

Chairman WHITEHOUSE. All right. The hearing will come to 

order. We are cleared to proceed so as not to keep three such distinguished members of the judiciary waiting. I am going to make 

a brief statement, and then with any luck our Ranking Member 

will have arrived, and he can make whatever opening statement he 

wishes. If for some reason I get through my opening statement and 

he is not here, I think we will just swear in the witnesses and 

begin with the testimony and interrupt for the Ranking Member 

when he arrives. So if you are in the middle of enormously vital 

and important testimony and I interrupt for the statement, please 

take no offense. 

One of our primary responsibilities here on the Senate Judiciary 

Committee, and particularly of this Subcommittee on Administrative Oversight and the Courts, is to make sure the Federal judiciary has the tools and the resources it needs to perform its crucial 

role in our constitutional structure. Today’s hearing takes up that 

responsibility by considering the need for Federal judgeships in district and circuit courts across the country. We all recognize the importance of the Federal judiciary in the proper functioning of our 

democracy and we all want to ensure that the courts have the resources they need to protect our liberties and administer justice. 

The confirmation of Justice Sonia Sotomayor to the United 

States Supreme Court was the focus of great attention and much 

media coverage. That is understandable given the importance of 

our Supreme Court, but we must never forget that most of the judicial business in our Federal system never gets anywhere near the 

Supreme Court. Every day, Americans from all walks of life come 

2 

to Federal district court to vindicate their legal rights. The rule of 

law depends on the prompt and proper resolution of those cases. 

Justice delayed is often justice denied, so district courts must be 

able to process cases in a timely manner. 

Similarly, swift redress from a circuit court is not a matter of 

politics or controversy, but of simple justice and effective government. Courts must have resources adequate to meet their high purpose. We in Congress must ensure that they do not lack the tools 

for their constitutional role. 

The Federal Judgeship Act of 2009, which was introduced by the 

Chairman of the Judiciary Committee, Senator Leahy, would fulfill 

that responsibility. That bill reflects the recommendations made by 

the Judicial Conference in March of 2009. It would be the first 

comprehensive judgeships legislation since 1990, nearly 20 years 

ago, a period which has seen significant expansion in the workload 

of numerous Federal courts. It provides for 12 new circuit court 

judgeships and 51 new district court judgeships. These recommendations are, understandably, very similar to the 2007 recommendations of the Judicial Conference that passed out of Committee last year by a bipartisan vote of 15–4. The Federal Judgeship Act of 2009 should expect similar support from both sides of 

the aisle. I hope that the Judiciary Committee will consider and 

pass it soon. 

The numbers underscore the need for action. On average, there 

are 573 so-called weighted filings in the district courts for which 

new judgeships are recommended, well above the 430 weighted filings needed to trigger a judgeship recommendation by the Judicial 

Conference. For the six circuit courts where new judgeships are 

recommended, there are an average of 802 adjusted filings per 

panel, well above the 500 adjusted filings per panel measure used 

for judgeship recommendations. 

Of course, the courts do not simply consider mere statistics in 

making their judgeship recommendations. They also are careful to 

consider all the resources available to a district or circuit court, including senior and visiting judges who can contribute to sharing 

the workload, and the use of magistrate judges within statutory 

limits. Given the care and conservatism with which they have been 

developed, the Judicial Conference’s recommendations deserve the 

utmost consideration. It is telling, for example, that while 77 new 

judgeships were requested by courts across the Nation, the Judicial 

Conference has recommended only 63 judgeships to Congress. 

Congress has repeatedly put off dealing with the courts’ growing 

workload. Now is the time to act, and I commend Chairman Leahy 

for his leadership on the issue. The Federal judiciary is a beacon 

of principle and justice to the rest of the world. We must keep it 

that way. 

Today we will hear from Judge Singal of the District of Maine 

who is appearing on behalf of the Judicial Conference and will explain the 2009 judgeship recommendations made by that body. 

We will also hear from Judge O’Neill of the Eastern District of 

California, a district facing an overloaded docket despite the best 

efforts of the active, senior, and magistrate judges. I know that this 

has been a particular concern of my colleague Senator Feinstein, 

3 

and it demonstrates the kind of pressures put on judges and the 

delays facing litigants as workloads spiral out of control. 

Finally, we will hear from Judge Tjoflat, a judge on the Eleventh 

Circuit and its former chief judge. I welcome all the witnesses. I 

look forward to your testimony, and I thank you all for being here 

today. 

Since we do not have the Ranking Member present, let me first 

inquire if the distinguished Senator from Maryland, Senator 

Cardin, would like to make an opening statement in the time we 

have available. Then we will proceed to the witnesses. 

STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 

FROM THE STATE OF MARYLAND 

Senator CARDIN. Well, Mr. Chairman, thank you very much, and 

thank you for convening this hearing, and perhaps by the time I 

finish my remarks, maybe Senator Sessions will be here and we 

can stay on schedule. 

Let me welcome our guests here today, and thank you very much 

for your service. 

I agree with the Chairman that we need to make sure we have 

adequate personnel to administer our judicial system. And I do not 

argue with the methodology that has been used in coming up with 

needed additional Federal judges. 

My concern, quite frankly, is whether we have the resources to 

support that. And I was one of those who voted against the bill in 

the last Congress. I say that because it is not just the new judgeships. There is a lot of additional cost that is associated with it, 

with additional personnel and facilities. 

The letter that I wrote to the Director of the Administrative Office in May of 2008 in response to the legislation last year pointed 

out that there would be a one-time expense of $51 million in order 

to have adequate facilities for the new judgeships contemplated in 

the legislation. When you add to that the demands on the facilities 

related to judges’ taking senior status, which it was reported to me 

we need 1.7 million additional square feet just to handle the judges 

taking senior status, you add to that the fact there are many vacancies in the Federal bench today, that if they were all filled, we 

do not have all that space available for those judgeships, it raises 

serious questions as to whether we have the resources in the budget to accommodate new judgeships. 

And then I add an issue that is particularly important to people 

in Maryland. We are not seeking additional judgeships. We do not 

have adequate space today for our bench, for our judiciary. We 

were No. 1 on the list for a new courthouse about 8 years ago. After 

the attack of 9/11, we were ranked No. 1 for security concerns because of the way that building is constructed and the severe security risks that it presents. 

So, Mr. Chairman, I just really want to put on the record that 

I am concerned that if we create new judgeships, the needed replacement or renovations in the courthouses in Maryland may have 

to wait another couple decades, to me at great risk to the administration of justice to the people in the State of Maryland with our 

Federal bench. 

4 

So I am going to be submitting some questions—I am sorry I 

cannot stay for the entire hearing—as to what steps are being 

taken in order to meet our current needs, what additional resources will be needed if this legislation is enacted into law, and 

what protections I have as a Senator representing the people of 

Maryland that adequate attention will be directed to our current 

facilities. 

Chairman WHITEHOUSE. I thank the distinguished Senator from 

Maryland, and I welcome our distinguished Ranking Member, who 

has joined us. Senator Sessions? 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you. I thank each of our witnesses and 

look forward to hearing from you. I do have an Armed Services 

Committee hearing with General Odierno, and I need to be there 

for part of that. But I appreciate your holding the hearing, but I 

have significant concerns about legislation that is pending to supply these judgeships. 

I think first we have got to understand that our National debt 

is reaching staggering proportions, and nearly 10 percent of Americans are out of work. So somewhere somehow we are going to have 

to start finding the will to say no like every mayor, county commission, and Governor is doing in this country, except us. Our ag bill 

was a 14-percent increase; our Interior bill was a 16-percent increase. Another one of these bills, Transportation—HUD was 23 

percent. At 14 percent, the whole Department doubled in 5 years. 

I believe that we are not listening to the American people who are 

in tune with reality and we are in denial. We think things are just 

normal, and we have got a bunch of requests for judges, and we 

are just going to approve them. I am just telling you we do not 

have the money, first. And I know judges would like a pay raise, 

but I am concerned about that—repeat that little phrase I just 

made about the debt. 

According to the Administrative Office, the cost of creating each 

circuit judgeship is over $1.1 million for the first year, with recurring annual costs a little more than $979,000. A district judgeship 

costs roughly $1.2 million for the first year and another $981,000 

for each year thereafter. This bill would add 12 circuit and 51 district court permanent judgeships. If it became law, it would cost 

the American taxpayer approximately $75 million the first year 

and $62 million each year thereafter, which would go up, of course, 

as the cost-of-living raises take effect. With costs this high, I think 

it is incumbent upon us to make certain that we do not propose 

more judges than are necessary. 

Now, I do understand there are some districts, particularly trial 

courts, that probably have to have some additions. In addition to 

the cost of this legislation, the methodology is not proven. It is 

based on recommendations by the Judicial Conference, yet in 2003, 

the GAO issued a report that questioned the Conference’s methodology for calculating caseloads. 

For district courts, the Judicial Conference calculated caseloads 

based on weighted filings. According to GAO, this methodology 

yields inaccurate results because the weights assigned to the cases: 

5 

(1), assumed additional time spent on a case can be accurately estimated by viewing the case as a set of individual tasks or events; 

(2) include limited data on the time judges actually spend on specific cases; and, (3) do not objectively account for non-courtroom 

time spent on cases. 

Likewise, the Judicial Conference used adjusted filings to calculate the need for circuit judgeships. The GAO found no empirical 

basis to assess the accuracy of this method. 

In 2004, the Judicial Conference Committee on Judicial Resources approved new case weights, but the Conference continued 

to rely on consensus estimates for time spent in non-trial proceedings and chamber activities which the GAO criticized as not 

objective. 

The GAO’s concerns regarding the Conference methodology 

seemed to have been borne out by the evidence. A simple comparison of a circuit court workload numbers show that the request for 

judgeships and the subsequent recommendations by the Conference 

follow no uniform method and are not strictly based on caseloads 

per panel. 

For example, three of the circuit courts that requested additional 

judgeships have some of the lowest caseloads per panel. One of 

these, the Third Circuit, requested two additional judgeships, yet 

four circuits with higher caseloads—Fourth, Fifth, Seventh, and 

Eleventh—requested none. 

In 2008, only 2 percent of all civil cases reached the trial stage. 

This is really remarkable. And the decline in the number of cases 

actually going to trial where judges are committed full-time on the 

bench and not able to do other things, only 2 percent of civil cases 

reached the trial stage. According to a recent study examining the 

period between 1962 and 2003, the total number of civil cases terminated rose 400 percent, while the number of trials fell 32 percent. We are using magistrates better. We are using mediation 

more. 

In criminal cases, the story is similar. The number of criminal 

defendants during this period increased by 152 percent while the 

number of trials decreased by 32 percent. You still have to do 

guilty pleas and preside over motions. I know that. I am aware of 

that. 

I am especially interested to hear the testimony of Judge Tjoflat. 

Judge, you have never adhered to the view that bigger is better. 

Is it still true that the Eleventh Circuit carries the highest caseload per judge in the country? 

Judge TJOFLAT. Yes. 

Senator SESSIONS. I just salute you for the great work that you 

and your fellow judges have done, and you have testified before 

this Committee on this subject for more than a decade. This is your 

fifth time? 

Judge TJOFLAT. Fifth or sixth. 

Senator SESSIONS. Fifth or sixth. And I always appreciate your 

remarks, one of which was, ‘‘Putting more cooks in the judicial 

kitchen may add some spice to the stew, but will ultimately ruin 

the taste.’’ 

I know magistrates participate very effectively today in pretrial 

matters and helping move cases forward. The district judge does 

6 

sentencing and maybe has a pretrial hearing or two, but much of 

this load can be handled by magistrates. They are doing a great 

job, and we have more magistrates now. And so there are a lot of 

things that are occurring that I think the courts deserve credit for. 

They have brought efficiencies. They have improved productivity in 

every circuit in the country. We should not dismiss that. 

But I cannot ignore the fact that some of our judges are carrying 

a good bit heavier loads than others, and those judges are not asking for increased judges. 

Mr. Chairman, I look forward to proceeding with you, and I will 

just conclude by saying I really have the greatest respect for the 

Federal judiciary. I do believe that day after day you objectively 

and fairly handle cases, and that our judicial system is the cornerstone of American liberty and prosperity. We do not need to allow 

the system to be overwhelmed, and I am open to looking at any district and circuit that is in a crisis. And if we need more judges, I 

will support it, but particularly in this time of financial crisis, we 

need to look very carefully before we expand the courts as greatly 

as the legislation proposes. 

Chairman WHITEHOUSE. Let me thank the Ranking Member for 

his statement. It enjoys, among many virtues, that of consistency. 

He was one of the four who voted against the 2007 judgeships bill, 

along with the distinguished Senator from Maryland. However, 15 

of us did support it, so do not let a discouraging word completely 

deflate you. 

Senator CARDIN. We are ready to vote now without proxies. 

[Laughter.] 

Chairman WHITEHOUSE. And I also very much appreciate the 

Ranking Member’s very sincere and principled concern about the 

Federal deficit and where we are going. But I cannot help but point 

out that we have calculated that an $8 trillion deficit differential 

arose under the administration of President Bush. The policies in 

place at the time also led to the greatest economic contraction since 

the Great Depression, which required emergency intervention by 

the Government to protect from real catastrophe, beginning under 

the Bush administration and then continuing under the Obama administration. And it is, I think, all of our hope that once the economy turns around, we are in a very strong position to begin addressing the deficit issues. But I take a slightly different economic 

picture than the distinguished Ranking Member. When individuals 

and families and businesses and municipalities and States are all 

in a state of contraction, I subscribe more readily to the economic 

theory that the Federal Government can be a counterweight by diminishing the pain of families and increasing the speed of recovery 

of the economy by spending money. Had we been more prudent 

through the Bush years, we would have had more to spend now. 

But that is an economic dispute that—— 

Senator SESSIONS. So you are complaining about Bush overspending and causing a recession, and now you justify the recession, as a means to justify even more spending. I would just note 

that, according to CBO, in the next 10 years the lowest deficit they 

project in 10 years is $600 billion, and Bush never had a deficit 

that high. The highest one he had was $450 billion. And he deVerDate Nov 24 2008 13:24 Aug 03, 2010 Jkt 056347 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56347.TXT SJUD1 PsN: CMORC
7 

serves some criticism, I will agree, but we have never seen anything like the spending that we are looking at now. 

Anyway, every dollar is important, even though in the scheme of 

things this is not a huge expenditure, but I think we have got to 

start looking at every single expenditure. 

Chairman WHITEHOUSE. With that backdrop, let me now call 

first on Judge Singal. Judge George Singal has served on the district court for the District of Maine since 2000. He currently chairs 

the Judicial Conference Committee on Judicial Resources, after 

being appointed to that position by Justice John Roberts, and is 

testifying today on behalf of the Judicial Conference, the policy-setting body of the judiciary. Prior to taking the bench, Judge Singal 

practiced with the firm of Gross, Minsky, Mogul and Singal. He is 

a graduate of the University of Maine and the Harvard Law 

School. 

Welcome, Your Honor. 

STATEMENT OF GEORGE Z. SINGAL, JUDGE, UNITED STATES 

DISTRICT COURT FOR THE DISTRICT OF MAINE, PORTLAND, 

MAINE 

Judge SINGAL. Thank you, Senator Whitehouse and members of 

the Committee. I am George Singal, and I am a district judge in 

the District of Maine, as well as Chair of the Judicial Conference 

Committee on Judicial Resources. I am here today to provide information about the judgeship needs of the United States courts and 

the process by which the Judicial Conference of the United States 

determines those needs. 

It has been nearly two decades since Congress passed comprehensive judgeship legislation. To enable the judiciary to continue serving the American people efficiently and effectively, the judicial workforce must be expanded. I would like, therefore, to thank 

Senator Leahy for introducing Senate bill 1653, the Federal Judgeship Act of 2009. I would also like to thank Senator Whitehouse 

and Senator Leahy for scheduling this hearing. The Judicial Conference supports S. 1653 which reflects the Article III judgeship 

recommendations of the Judicial Conference. 

In March of 2009, the Director of the Administrative Office of the 

United States Courts submitted and transmitted to Congress the 

judgeship recommendations of the Judicial Conference, which are: 

to create 12 additional judgeships for the United States courts of 

appeals, create 51 additional judgeships for the United States district court, convert five temporary district court judgeships to permanent positions, and to extend one temporary district court judgeship for an additional 5 years. 

The recommendations in the bill reflect needs that have arisen 

or have become acute since the last comprehensive judgeship bill 

enacted in 1990. The delay in establishing needed judgeships has 

real-life implications on litigants seeking justice in our courts. 

In the Southern District of Indiana, for example, where magistrate judges are already utilized fully, litigants seeking civil jury 

trials must generally wait approximately 18 months for their trials 

to begin even in routine cases and often face delays beyond that. 

In the Middle East District of Florida, where the population has 

grown rapidly, the lack of needed judgeships has meant that seVerDate Nov 24 2008 13:24 Aug 03, 2010 Jkt 056347 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56347.TXT SJUD1 PsN: CMORC
8 

verely overburdened divisions have had to rely on the assistance of 

already busy judges in other divisions to process cases. To litigants, 

people seeking justice in our courts, this often means traveling several hundred miles or several hours to appear before a judge. And 

this is in a district that relies on six senior judges and has made 

full use of visiting judges through our process of inter-circuit assignments. 

And these examples are not even the courts with the very highest caseloads in the country where litigants also face delays despite 

our judges’ efficient, diligent work. 

In the Western District of Texas, even in a non-border division, 

one judge’s published docket for a typical criminal docket day has 

seven sentencings and three motion hearings in criminal cases, 

plus a civil docket call and five civil hearings. Another such docket 

showed ten sentencings, five motion hearings in criminal cases, and 

two evidentiary hearings. 

Due to this crushing criminal caseload, civil dockets are set a 

year in advance, and that is with judges there working 6 to 7 days 

a week. 

In the Eastern District of California, which is the highest weighted caseload in the country, filings continue at such a high rate that 

even the assistance of 80 judges from around the circuit has not 

stemmed the overwhelming burden. 

In developing its recommendations for additional judgeships, the 

Conference uses a formal, systematic, and rigorous process for evaluating judgeship needs. The Judicial Conference conducts a new 

survey of judgeship needs every 2 years. That survey involved six 

steps. 

First, each court that requests an additional judgeship submits 

a detailed justification to my committee’s Subcommittee on Judicial 

Statistics. If a court does not request an additional judgeship, the 

Conference does not consider recommending an additional judgeship for that court. 

Second, the Subcommittee reviews each court’s submission and 

sends its preliminary recommendation to that court and to the appropriate circuit judicial council and advises them to provide whatever information it determines will assist the Committee in making 

its final recommendations. 

Third, the circuit judicial council provides their input, their recommendations to the subcommittee. 

Fourth, the Subcommittee reviews the responses from the responses from the various courts as well as the judicial councils 

with updated caseload data and submits its recommendations to 

the Committee on Judicial Resources. 

Fifth, the Committee on Judicial Resources provides its recommendations to the Judicial Conference. 

And, finally, the Judicial Conference decides which request for 

judgeships it will approve and makes its recommendations to Congress. 

To reduce requests for additional judgeships, the judiciary has 

taken steps to maximize existing judicial resources, including the 

following: recommending temporary rather than permanent judgeships where that will suffice; looking at the use of senior judges 

and effective use of magistrate judges; using inter-circuit and intraVerDate Nov 24 2008 13:24 Aug 03, 2010 Jkt 056347 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\56347.TXT SJUD1 PsN: CMORC
9 

circuit assignment of judges; using alternative dispute resolution 

procedures; implementing new technologies such as 

videoconferencing of meetings with counsel, for instance; using conservative formulas to evaluate court judgeship requests; and recommending that vacancies not be filled in courts with consistently low 

caseloads. 

As part of this judgeship survey, courts requesting additional 

judgeships are questioned about their efforts to make use of all the 

resources they have available. 

Since the last comprehensive judgeship bill was enacted in 1990, 

no additional circuit judgeships have been created, and only 34 additional district judgeships have been created in response to particular exigencies in particular districts. And yet caseloads have 

grown dramatically. 

Since fiscal year 1991, filings in the court of appeals have increased by 38 percent, and the national average caseload for a 

three-judge panel is over 1,000. Overall, district court filings have 

risen 31 percent. Criminal—— 

Senator SESSIONS. Thirty-one percent over what time period? 

Judge SINGAL. Since 1991. Criminal felony filings have risen 91 

percent, and civil filings have risen 22 percent. Today the national 

average weighted filing for district court judgeships stands at 471, 

but the average weighted filings for the courts needing additional 

judgeships is 575—well above the Conference standard of 430 for 

considering recommendations for additional judgeships. 

Twenty of the courts have weighted filings of 500 per judgeship 

or higher. Almost half of these courts have per judgeships filings 

exceeding 600. 

The Judicial Conference recognizes that there cannot be indefinite growth in judgeships. Growth must be limited in the number 

of new judgeships to that which is necessary to exercise Federal 

court jurisdiction. The Conference process demonstrates a commitment to controlling growth and shows that judgeships are not requested merely on numerical criteria but are requested only after 

a highly critical analysis of caseload data and many other factors. 

Again, the Judicial Conference of the United States is grateful 

for the introduction of S. 1653, the Federal Judgeship Act of 2009, 

and appreciates the scheduling of this hearing. I will be happy to 

respond to any questions you may have. 

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

Chairman WHITEHOUSE. Thank you, Your Honor. 

We will now hear from Judge O’Neill. The Honorable Lawrence 

J. O’Neill has served as United States District Judge in the Eastern District of California since February 2007. Prior to that, he was 

a United States magistrate judge for 8 years. He previously served 

as a California State superior court judge and was a trial attorney 

in the civil area. Judge O’Neill earned his bachelor’s degree in 

criminology from the University of California, his master’s degree 

in public administration from Golden Gate University, and his law 

degree from the University of California Hastings College of Law. 

Judge O’Neill. 

10 

STATEMENT OF LAWRENCE J. O’NEILL, JUDGE, UNITED 

STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF 

CALIFORNIA, FRESNO, CALIFORNIA 

Judge O’NEILL. Thank you, Mr. Chairman, Ranking Member Sessions, and members of the Committee. My focus today is going to 

be on the Eastern District of California. However, I do not want 

that to indicate that we are the only district in need. There are districts in need and in trouble. We happen to be in crisis. And I, 

frankly, applaud the other districts who are in trouble coming to 

you now before they are in the crisis that we find ourselves in. 

We attempted to avoid the crisis. We were unable to do that. But 

good stewards—and I view all district judges, circuit court judges, 

all judges in the Federal system as good stewards. We need to 

make sure that if we can avoid a crisis, we do exactly that. 

In the Eastern District of California, we are by anyone’s account, 

no matter how you do it—stats—no matter how you do it, we are 

busy. It is not enough to be busy, and we know that. A court must 

work hard, work smart, and be productive. We accept that responsibility. 

Our annual weighted filing per authorized judgeship in the Eastern District of California is 1,095 cases. The national average is 

471. That is busy. 

Our annual termination rate per authorized judge in the Eastern 

District of California is 1,041 cases. The national average figure is 

503. That is productive. 

The combination of being both busy and productive results from 

working smart. There is no other way to do it. 

Very briefly, I want to touch on two highlights: one, the makeup of our judicial officers; and, two, how those judicial officers are 

being utilized. You are entitled to know that. Senator Sessions 

made a comment in his introductory remarks about exactly that. 

It is not good enough just to be there and just say, ‘‘I am busy.’’ 

The reason I have chosen these two issues is because we acknowledge that if we are not managing our resources well, then we 

should not be here asking you for more resources to manage poorly. 

I assure you, in the Eastern District of California that is not the 

case. 

We have a population of 6.735 million people, an increase of 1 

percent in the past 12 months. Over the past 9 years in our district, it has contained 18 of the 25 fastest counties in the State of 

California—fastest growing counties. This is but one of the reasons 

for the enormity of the workload. Others include the depth and the 

complexity and the consistency of the water law problems, the 

enormous methamphetamine epidemic, the burgeoning illegal alien 

problem, the 19 prisons, both Federal and State, with prison populations exceeding 100,000 inmates who are not strangers to litigation. They make up, or at least made up this last year, 55 percent 

of our civil case filings. 

These are only samplings. There are other reasons. 

Excluding our bankruptcy judges in our district with its more 

than 87,000 square miles, containing 55 percent of the land mass 

of the State of California, we have six different judge authorized 

positions. It is a number that we have had since 1978, some 30 

11 

years ago. And I assure you that the numbers of cases have not remained the same. 

We have 12 magistrate judge authorized positions. One of the 

highest ratios in the country, it is a 2;1 ratio when the national average is 1:1.3. 

We have five senior judges, four of whom are working 100-percent caseloads, both civil and criminal, and one of them who is handling a 40-percent caseload. He is in his 80’s. 

There is no living senior judge in the Eastern District of California who is physically able who is not working, and working very 

hard. 

The magistrate judges are at full utilization. They handle all of 

the settlement conferences, the scheduling conferences, civil law 

and motion discovery disputes, Social Security appeals where we 

have a very high rate of consent, habeas corpus petition findings 

and recommendations, all initial appearances in criminal hearings, 

including detention matters, and misdemeanor trials. They handle 

all hearings including contested trials for infractions occurring in 

the 18 national forests and the 9 national parks in the Eastern District of California. They handle all of our naturalization hearings 

and are available 24 hours a day, 7 days a week to handle arrests 

and search warrants. 

Half of our magistrate judges handle the initial proceedings in 

death penalty cases, and, in addition, we make every effort to obtain the consent of parties in civil cases so that they can handle 

them from beginning to end. 

Multiple factors, including civil trial delays and judicial fatigue, 

play a part in the day-to-day operations of our quest for public access to our courts. We are indeed a busy, hard-working, smartworking, productive, and very tired court, and we need your help 

and we need your consideration. 

Back home, right before I left, somebody from our court asked me 

the question: Aren’t you just a little busy to go across the country 

to testify? And my answer to that question to that person is the 

same statement I am making to you. We in our district are too 

busy for me not to come across the country and testify here. 

I thank you for understanding that statement, and I am available for any questions that you might have. 

[The prepared statement of Judge O’Neill appears as a submissions for the record.] 

Chairman WHITEHOUSE. Thank you, Judge O’Neill. 

We will now call on our final witness, Judge Tjoflat. 

Is my pronunciation anywhere close on that, by the way, Your 

Honor? 

Judge TJOFLAT. It is on the mark. 

Chairman WHITEHOUSE. Good. I appreciate that. Give me 1 second while I find your bio. 

Judge Gerald Tjoflat was appointed to the Fifth Circuit in 1975 

and was transferred to the Eleventh Circuit when the Fifth Circuit 

was split in 1981. He has served as the Chief Judge of the Eleventh Circuit from 1989 to 1996 and previously served from 1970 to 

1975 on the Middle District of Florida. 

He began his legal career in private practice and served as a 

State court judge prior to joining the Federal bench. He received 

12 

his law degree from Duke University, and we welcome his testimony. 

STATEMENT OF GERALD B. TJOFLAT, JUDGE, ELEVENTH 

CIRCUIT COURT OF APPEALS, JACKSONVILLE, FLORIDA 

Judge TJOFLAT. Thank you, Mr. Chairman. I have been before 

this Committee I think five or six times. It started back about 1994 

or 1995 when the Senate was considering the bill to split the Ninth 

Circuit. And the reason why I was invited to testify before the 

Committee at that time, not as an advocate for any particular position, was because I was on the Fifth Circuit before we acquired 11 

judges in 1979, and it rose from a court of 15 to a court of 26. And 

along with Judge John C. Godbold of Montgomery, Alabama, he 

and I were the spokespersons for the Fifth Circuit in petitioning 

the House and the Senate to split the court because we could not 

function as a court with 26 judges. 

In 1979, we in the Fifth Circuit had roughly 23 or 24 percent of 

the Nation’s business. The Ninth Circuit was right behind us with 

maybe 21 percent, something like that. They had 13 judges. The 

omnibus judgeship bill of 1979 gave them 10 judges—they went to 

23—and gave us 11—we went to 26. 

That statute authorized those two circuits to create mini en banc 

courts, that is to say, en banc courts of less than the majority of 

the judges. 

The Ninth Circuit opted to have a mini en banc court. They rehear cases with 11 judges—the chief judge and ten drawn by lot. 

The judges of the Fifth Circuit felt that who was going to choose 

whom to be on the en banc court, and everybody was an Article III 

judge and felt that without participating on the full court was sort 

of like giving up a constitutional right of some sort or another. But 

at any rate, that is why we asked the Congress to divide us. 

I subsequently appeared before this Committee because not only 

that experience with a large court compared to a small one, but I 

have sat on courts of the old Fifth and Eleventh Circuit ranging 

between, say, 9 judges, because you had disqualifications; 10, 12, 

14, 15, 17, 20, 23, 26, and have been deeply involved in court administration all through those periods of time. And so I have a 

pretty good idea, which is not shared by many other judges from 

the courts of appeals simply because they are either on small 

courts or they never got as large as we did, so you do not confront 

those problems. 

But the thoughts I express have been expressed by many. Griffin 

Bell, who came from the old Fifth, who was a colleague, the same 

sentiments. Judge Harvey Wilkinson of the Fourth Circuit, Justice 

Kennedy who came from the Ninth when they had 23 to the Supreme Court. 

I have an exhibit that was not in my statement which I would 

like to be submitted if we could pass it out. 

Chairman WHITEHOUSE. Without objection, it will be added to 

the record. 

Judge TJOFLAT. Thank you, sir. 

Judge TJOFLAT. Mr. Chairman, sometimes a picture is worth a 

thousand words. The numbers on the front side of this exhibit show 

courts with numbers of judges. The numbers in the second column 

13 

show the increase in panel possibilities for an appeal, a three-judge 

court, every time an appeal is taken in a circuit. And the column 

on the right shows the number of total panels that would be assembled to hear those appeals. 

Now, if you would turn to the other side, this is a graph which 

depicts the numbers on the reverse side, which shows the number 

of panel possibilities as you add judges to a court of appeals. My 

concern is with the court of appeals, and I have no grievance with 

the Judicial Conference or with the Committee because they do 

what they can do given the difficulty in deciding how many judges 

ought to be on a court of appeals. 

The threshold number is 500 adjusted panel filings. That is 

where the Conference Committee starts. Our court is entitled to 27 

judges on that threshold. We have never asked for a judge since 

1981, and when we split the Fifth Circuit, 14 judges happened to 

live in the western three States and 12 in the eastern three, and 

that is how we wound up with 14 and 12. 

For a long time on that court—and we were very intact—we had 

memories of what it was like with 26 judges. And that tradition 

has passed on down so to this day we ask for no judges, notwithstanding numbers and people saying you ought to request some 

more judges. 

Senator SESSIONS. How many do you have now, Judge? 

Judge TJOFLAT. Twelve, the same 12. Different people but the 

same 12 judges. 

Here is what happens as a court of appeals increases judges. You 

have a court, say, with a dozen or 15 or whatever it is. And there 

is a backlog. So the idea is that if we have one more judge, we can 

decrease the backlog or at least meet it. And then there is more 

backlog. 

So here is what happens. As you increase judges, if you want to 

maintain—the thing a court of appeals must do is to maintain a 

stable rule of law, because if you do not have a stable rule of law 

in the circuit, you create unrest, instability, and create litigation. 

Litigation means you have to have more district judges. That 

means you are going to have more appeals. And you do that with 

the en banc function. 

The First Circuit, from where you come, Mr. Chairman—a simple 

proposition. I sat in the First Circuit in Boston one time in 1971 

or 1972, and there were three judges on the court of appeals. So 

every time they sat, they were en banc. But, in any event, as you 

add judges, you have to keep up with the work product of everybody else on the court. Justice Kennedy told me when he left the 

Ninth Circuit, he spent half of his time keeping up with the law 

of the Ninth Circuit, a quarter of his time doing administrative 

work, and a quarter of the time doing his own work. So when you 

do that, what happens is the output of the court does not decrease 

because you are spending more time keeping the law pure, as it 

were. Or you can do the opposite. You can maintain—fight off the 

backlog, and then you sacrifice stability in the rule of law, and that 

in turn causes unrest and people basically lose their rights when 

the law is unstable. 

So the point is with the courts of appeals, if you can control for 

all factors, there is in theory a point at which, if you added a judge 

14 

to a court of appeals, the overall production of the court would decrease. It would decrease assuming the judges are maintaining a 

stable rule of law through the en banc process. 

So the point of my remarks and the remarks of others who made 

the same point basically over the last 15 years, let us say, is that 

the courts of appeals are scarce dispute resolution resource. They 

can only get so large without creating instability in the rule of law, 

which means that you cannot have too many district judges, or you 

wind up with too many delays. So it is the Congress’ task to decide 

what jobs—— 

Chairman WHITEHOUSE. Too many circuit judges, you meant. 

Judge TJOFLAT. Yes, you have too many circuit judges. If you 

have too many circuit judges so they create instability in the rule 

of law, then Congress has to say, What jobs are we going to take 

away from the courts of appeals or the Federal courts? Are we 

going to put something in an Article I court or are we going to 

work out some other solution? But we are not like the State courts. 

The State Supreme Court can remain, like in Florida, seven justices. It would be seven justices when we had 3 million people and 

seven justices when we have got about 20 million now. But that is 

not the case with the United States Courts of Appeals where you 

have an appeal as a matter of right. 

Thank you for inviting me. I hope I have been of some little assistance in this debate, and I will answer any questions you might 

have. 

[The prepared statement of Judge Tjoflat appears as a submissions for the record.] 

Chairman WHITEHOUSE. Thank you. We are delighted to have 

you here. 

It strikes me listening to your testimony, from having read it 

yesterday, that first of all it is directed primarily to the circuit 

courts, and you do not intend to bring it to bear on the Judicial 

Conference recommendations for—— 

Judge TJOFLAT. No. 

Chairman WHITEHOUSE [continuing]. District judges. Correct? 

Judge TJOFLAT. No. 

Judge O’NEILL. And I thank you for that. 

[Laughter.] 

Chairman WHITEHOUSE. And the second is, in its focus on circuit 

courts, if I were to summarize your recommendation, in a world of 

growing caseloads and an expanding population and the additional 

litigation that ensues, your argument is less that there should be 

fewer judges than that there should be—than that there is an optimal number of judges per circuit in order to for that circuit to be 

most efficient, and that, therefore, the best way to be dealing with 

the burgeoning caseload is not to add more judges per circuit, but 

to add more judges and more circuits so that that collegiality and 

that optimal size can be maintained. I mean, if you do the math, 

that seems to follow as your recommendation. 

Judge TJOFLAT. That was the task of the White Commission in 

1997, which grew out of the circuit split bill, which no action was 

taken, and the Commission was created to study the circuit alignment. That is the point. 

15 

Chairman WHITEHOUSE. Yes, got you. OK. I think I understand 

that. 

Let me ask you, Judge Singal, the methodology of the Judicial 

Conference has been questioned here, and I wonder if you could 

comment a little bit on, first of all, whether the methodology—what 

is its travel? Has it changed since the 2007 Judicial Conference recommendations? 

Judge SINGAL. It has not changed since 2007. The same methodology is used and the same case-weighting system is used. 

Chairman WHITEHOUSE. And that was developed years ago with 

the RAND Corporation—— 

Judge SINGAL. Back in 2003, 2004, and the same methodology 

has been in place since then. 

I want to add, however, that the methodology that gives us case 

weighting, the 430, that we use in the district court, is not the end 

of the procedure that we use in terms of getting to a final recommendation. That is simply the beginning. It is not even—as 

Winston Churchill said, it is not the beginning of the end; it is the 

beginning of the beginning. After that, the—— 

Chairman WHITEHOUSE. Dunkirk, right. 

Judge SINGAL. Well, I hope we can avoid that. 

[Laughter.] 

Judge SINGAL. After that, we go through an entire review process, as I have indicated in my opening statement, where we look 

at the effective use of magistrate judges, the effective use of senior 

judges, the complexity of the litigation, whether the litigation 

trends in that district, for instance, are increasing or are temporary. We look at the issue of visiting judge use and many other 

factors. 

So in terms of the formula we use, it is the same formula that 

we presented to this Committee the last time I was here and was 

presented to the Committee each time since we developed it in 

2003, 2004. 

Chairman WHITEHOUSE. And do you have any reaction to the 

criticism from, I think it was, GAO and any evaluation of the methodology that they appear to have recommended? 

Judge SINGAL. Well, GAO had two criticisms of the methodology 

that related to the case-weighting system. One was that the Conference was using results from two electronic systems. I am telling 

you something I am sure you already are aware of from the vast 

material that has been developed and provided to you. But the Federal Center, Judicial Center, was able to develop a program that 

was able to integrate those two electronic systems. 

I might add that since that time, our electronic system is one. 

CM/ECF is a marvelous electronic system that manages our cases, 

enables me in Washington last night to work on a case in Portland, 

Maine, and have before me all of the docket entries, all of the 

pleadings. And I was able last night, in addition to preparing for 

this hearing, to issue an order because that information was available to me. 

By the way, it is one of the ways we survive now in the judiciary 

that we are able to do that—much to my wife’s dismay when I am 

on vacation, I might add. 

16 

The other aspect of it was the GAO’s worry about the lack of a 

standard deviation and the lack of a time study under the new system. I feel very confident that the information provided to us in the 

electronic system that we have, the concrete information we have 

on judge time in court on evidentiary disputed hearings, provides 

us a solid basis for court time. The estimates given by experienced 

judges with regard to non-court activities has stood the test of 

time. 

I want to be clear. Our of the 77 requests for judgeships that 

were given to my committee, we did not approve them all. We are 

not a rubber stamp. We approved 63 and the Conference approved 

63. 

I want to make one other point. At the time we submitted our 

requests to this Committee and to Congress, note that one of the 

temporary judgeships that was already in place is not being asked 

to be converted to permanent. We are asking that it be extended 

for 5 years. What does that indicate? Instead of going whole hog 

saying make it permanent, we are wondering, Will those caseloads 

continue to increase in that district into the future? 

We are going to take it easy, and we will take a look at it over 

that period of time. So rather than make it permanent, rather than 

request making it permanent, we are holding back and trying to 

be as conservative as we can. 

Chairman WHITEHOUSE. My time has expired, and I yield to the 

distinguished Ranking Member. 

Senator SESSIONS. Thank you. 

Judge Singal, I think I understood you to say that two different 

numbers you gave us, 31- and 32-percent increases in filings, I believe you said, since 1991? 

Judge SINGAL. It is 38 percent for the circuits and 31 percent for 

the district courts. 

Senator SESSIONS. Well, about how many more magistrates do 

you have today than you had in 1991? 

Judge SINGAL. I cannot give you the exact figure, but there are 

many more magistrates than existed at that time. 

Senator SESSIONS. And you have got better computer systems. 

Judge SINGAL. We do. 

Senator SESSIONS. Most judges now are going to three law clerks, 

or some of them are giving up their secretary. 

Judge SINGAL. Some are. 

Senator SESSIONS. And some have permanent law clerks. 

Judge SINGAL. Some are, though we have limited that by Conference rule that the number of career law clerks will be limited 

in the future as a cost-saving device. 

Senator SESSIONS. Right. But a career law clerk can prepare 

prisoner petitions or Social Security petitions, he can become very 

skilled in helping a judge sort through the critical issues in a case. 

A lot of these things have happened, and overall, Mr. Chairman, 

all I am saying is that with a 31-percent increase in cases at the 

district court level or 38 on the court of appeals, some of that is 

offset by technology and better and larger staff. 

Second, I acknowledge that in this dynamic country that we 

have, you can have districts like Central or Eastern California that 

17 

are having extraordinary increases, and they are not able to meet 

that challenge. 

Now, we have had a number of court bills to add judges to those 

crisis districts, so we have not failed to respond. I do not know who 

remembers how many judges we have added—— 

Judge SINGAL. Thirty-four. 

Senator SESSIONS. Thirty-four, since how long? 

Judge SINGAL. The last judgeship bill, so 4 percent. 

Senator SESSIONS. So we did our best to target the districts that 

had the biggest crisis, although, Mr. Chairman, this is a political 

body, and some of the judges may have had more to do with their 

Senator’s view on it than exactly the caseload. 

Chairman WHITEHOUSE. Do not further astonish me by telling 

me that seniority might have played a role. 

Senator SESSIONS. Perhaps, even. 

One of the things that is astounding to me, Judge Tjoflat, was 

when I first became United States Attorney in 1981, I ended up 

trying a case before Judge Cox who is now senior judge on the 

Eleventh Circuit. And it was a 5-week trial with about 2 weeks of 

preliminary motions, a land bank fraud case. During that period of 

time, we had another trial that I tried that lasted 7 weeks. We had 

another trial that lasted 11 weeks, another trial that lasted 5 or 

6 weeks. But to an astounding degree the number of cases actually 

going to trial has declined. 

Now, that does not mean a judge does not have anything to do 

with the case. You have to rule on pretrial motions or whatever. 

But when a judge is in a big trial, they are just tied to that seat. 

No other work can get done unless they get another judge basically 

to help him, or at night. How do you factor, Judge Singal, the decline in the cases actually going to trial, civil and criminal? 

Judge SINGAL. If I might, Senator, address the three areas you 

discuss: the use of staff to help, the judges that Congress has provided in the interim, and the number of trials. 

Judge SINGAL. In our district, we have three judges, and you 

have almost every 6 months a big trial lasting multiple weeks that 

really hurt that daily work of it. So how does it show up nationally? 

Judge SINGAL. Well, I was in private practice for 30 years, tried 

criminal cases, civil cases, and every kind of case there was, from 

murder cases to driving cases. Most of my cases settled. And most 

cases settled, I think 95 percent of civil cases settled in 1991. Probably about 96 percent settle today. 

We all know that if all the cases went to trial, our judiciary 

would stop dead in its track. We also know, as you said, because 

you have the same experience, that many of those cases that settled settle after most of the work has been done on those cases. 

Judges will tell you consistently they would much rather be in 

court presiding over a trial than they would doing summary judgment motions, which takes hours and hours and hours. And it is 

only after one side has lost the summary judgment motion that the 

case settles. The trial, were we able to move then to court immediately, we would have used less time of judicial time in some cases 

trying the case rather than dealing with all the discovery motions, 

all of the summary judgment motions, and all of the other. 

18 

So whether the case settles or not, judges are tied up in terms 

of the amount of effort they spend—— 

Senator SESSIONS. You would say that a judge does spend more 

time on summary judgment motions than 15 years ago? 

Judge SINGAL. I think that is true. Senator Sessions. I would 

suspect that is true. And that does facilitate settlement. In the old 

days, a lot of judges would carry it with the trial. But if you get 

a ruling early that your cause of action is invalid, maybe you settle. 

Judge SINGAL. As you probably know the old saying, nothing focuses a trial lawyer’s mind like that courtroom door. 

Senator SESSIONS. That is right. Judge, I just want to point out 

a few things. I know that some circuits would like more judges, but 

if you look at the median current caseload it raises some questions. 

The Second Circuit seems to have the highest caseload. The Eleventh Circuit is second now, at least with caseload, but you are able, 

Judge Tjoflat, to dispose of those cases in an average of 9.3 months, 

which is the second lowest on the chart. So not only do you have 

the second highest caseload, but the second shortest disposition 

time, for which I say thank you and good work. 

On oral argument, most circuits evaluate cases before they set 

oral argument and do not set it unless they think it would benefit 

the court, which I think is good for clients because they have to pay 

their lawyers to spend weeks getting prepared for a 20-minute oral 

argument and pay their expenses in some highfalutin city. But if 

it is not necessary, it is a good thing not to do it, in my opinion. 

Do you think some of our circuits might benefit from being more 

cautious about the number of cases they accept for oral argument? 

Judge TJOFLAT. I think so, and let me say that we do not have 

better judges than the other circuits, and that is not the reason for 

the decrease in the time. When we were on the Fifth Circuit and 

had all that business—this is with 15 judges—we had to devise a 

lot of procedures, which required a lot of collegiality, in order to 

process 23 percent of the cases in the United States. 

After the circuit split, within 2 or 3 years then the 12 of us had 

as much business as the old court had, and we were a forerunner, 

with the help of the Administrative Office and the Congress, in automation. I think we have been the forerunner in automation and 

other kinds of things that help save judge time, make judge time 

more valuable with parajudicial personnel doing the administrative 

kind of legwork, I will put it that way. 

It is that culture, rather than that we work any harder than anybody else, which accounts for the disposition times you are talking 

about, and also a good deal of attention on which kinds of cases 

really ought to have oral argument. It is pretty hard to have somebody fly from Seattle, Washington, to Atlanta, Georgia, to argue a 

case, and after about 3 or 4 minutes it is obvious that the case does 

not deserve argument. If you are on the Second Circuit in Manhattan, you can get on a subway and come downtown or come from 

Connecticut or Vermont and be cut off in the middle of an argument, and you have not wasted a day or 2 days and a couple of 

hotel nights. So you can get more oral argument and cut them off, 

as it were, mid-argument. 

19 

So the circuits have traditions and operate in different kinds of 

ways, and that in my view accounts for the differential in some of 

the numbers that you have on that board. 

Senator SESSIONS. Thank you. I have let my time run over. 

Thank you all for your comments. I would just say this: I am generally, as you can tell, not disposed to a major increase in judges. 

I am not criticizing the President, but I think we have a number 

of vacancies we have, but we do not have that many nominees. And 

so the President has got a lot to do. He is having to get his team 

together. But some of the vacancies we have because we do not 

have nominations. I know our Chairman complains that we are 

holding up nominees, but—— 

Chairman WHITEHOUSE. I will not go there. 

Senator SESSIONS.—some that are controversial will get scrutinized, but we just did one last night that everybody supported, and 

we have done a number and we will see more. But only about 10 

percent, I think, of the vacancies do we even have nominations for. 

So we can do better about that. Then we need to identify particularly those district courts that have for some sort of unusual reason 

or just natural trends have resulted in a big, big workload, like you 

may have in Eastern California. We have found on the Arizona border some of the California circuits got most of the judges in the last 

bill. I think that was justified—Florida got some of the district 

judges. I just think that is the way to proceed. 

Mr. Chairman, I will work with you in good faith on it and identify those areas where we have got to act, and maybe we can keep 

our courts as cohesive as possible and keep the burden on the taxpayers as low as possible. 

Chairman WHITEHOUSE. Well, I know you will, and it is an honor 

always to be able to work with the Ranking Member on these 

issues. 

If I could, let me ask just one last question before I conclude the 

hearing, and that is for Judge O’Neill. Your description of the crisis 

or the troubles in your district was quite compelling. It focused 

more on it from the court’s eye view. From a litigant’s eye view, 

either from the U.S. Attorney’s Office or from civil litigants coming 

in or defense counsel, what are the ways in which they most experience the distress that your court is presently experiencing? 

Judge O’NEILL. It is a delay in setting the trials. I think that— 

and I almost wish I were not a judge right now of the Eastern District so I could brag about the judges of the Eastern District. The 

judges of the Eastern District have taken—— 

Chairman WHITEHOUSE. We do that as Senators all the time, so 

go right ahead. 

[Laughter.] 

Judge O’NEILL. The judges of the Eastern District truly have 

taken it upon themselves to simply continue to work harder and 

harder and harder. And I am talking about 12- and 14-hour days, 

bringing things home every single night, every single weekend. 

One of my biggest concerns that almost none of us voices often 

is the concern that we share as district judges for our senior district judges and their health. The amount of stress we are putting 

on them—and they never point it out—is phenomenal. And to lose 

20 

just one of them is to lose 20 percent of their help, because we only 

have five of them. If we were to lose one person—— 

Chairman WHITEHOUSE. Again, you are back to the court’s—I appreciate that very much, but you are back again at the court’s eye 

view of the problem. 

Judge O’NEILL. That is because the court—— 

Chairman WHITEHOUSE. My question had to do with from a litigant’s eye view. You mentioned that delays in getting to trial obviously are a problem. Are there others, or is that—— 

Judge O’NEILL. The reason I am focusing on the court is because 

the court thus far has taken most of the burden, but we cannot 

continue to do that because there is nothing left. There are no more 

resources left. There is no more energy. There is no more time. And 

as a result of that, even though there have been some delays and 

it takes longer to get onto our calendars and our dockets, especially 

the civil cases that get bumped because of the Speedy Trial Act on 

the criminal side, we are going to be—if we do not get help and/ 

or if we lose even one senior district judge, the—— 

Chairman WHITEHOUSE. You are at the break point. 

Judge O’NEILL. We are. And what is going to happen then is that 

the litigants will be bearing 100 percent of that burden because we 

cannot bear any more. 

Chairman WHITEHOUSE. Thank you very much—— 

Judge O’NEILL. And could I make just one last comment? 

Chairman WHITEHOUSE. Of course. You have come all this way. 

Judge O’NEILL. You know, Senator Sessions said in his statement, ‘‘The court is the cornerstone of liberty and prosperity.’’ And 

my colleague from the Eleventh Circuit said, ‘‘People lose their 

rights when the law is unstable.’’ 

The law is unstable when we do not have access to our courts, 

and that is where we are right now. We need help. 

Chairman WHITEHOUSE. I appreciate that. 

Senator SESSIONS. Mr. Chairman. 

Chairman WHITEHOUSE. Please. 

Senator SESSIONS. I would just note to clarify and be accurate, 

there are 74 district court vacancies in the country today with nine 

nominees pending before the Senate. And that will catch up some, 

so we are going to pick up some. We will get the average of—— 

Chairman WHITEHOUSE. The background checks and all—— 

Senator SESSIONS. The background checks, and you might have 

to ask a Senator what they think of the person before they are 

nominated, and all of that, and it takes a while. But that vacancy 

rate should constrict as the President has more time in, unless we 

have nominees, a large number, that are controversial. 

Then I would offer for the record the GAO report called ‘‘Federal 

Judgeships: The General Accuracy of District and Appellate Judgeship Case-Related Workload Measures,’’ and they note that—you 

know, they made recommendations in 2003, and they are critical 

that more changes have not been done to implement some of their 

suggestions, although GAO is not perfect either—— 

Chairman WHITEHOUSE. Without objection, the report will be 

made a matter of record. 

Senator SESSIONS. So I would offer that for the record. 

[The GAO report appears as a submissions for the record.] 

21 

Senator SESSIONS. I thank the witnesses, and, again, I know 

there are some areas in our country that are going to need some 

relief. 

Chairman WHITEHOUSE. Should we also add your table? 

Senator SESSIONS. Yes, I have got that in print here, and I would 

offer the table. 

Chairman WHITEHOUSE. That will also be made a matter of 

record. 

[The table appears as a submission for the record.] 

Chairman WHITEHOUSE. I also have a statement from Chairman 

Leahy that, without objection, we will add to the record. 

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

Chairman WHITEHOUSE. I have a statement from Senator Dianne 

Feinstein, who, as you know, Judge O’Neill, is extraordinarily concerned about the situation in California, and she has a statement 

for the record which will be accepted, without objection. 

[The prepared statement of Senator Feinstein appears as a submissions for the record.] 

Chairman WHITEHOUSE. We have a letter from the Federal Bar 

Association which will be entered into the record, without objection. 

[The letter appears as a submissions for the record.] 

Senator SESSIONS. If they have more judges, more of the Federal 

Bar attorneys might be one, 1-day. 

No, I kid. They also support more judges and higher pay. I used 

to be a member of that group. 

Chairman WHITEHOUSE. And the Federal Judicial Center has 

also sent a letter and a report from John S. Cook, and that, too, 

will be made a matter of record, without objection. 

[The letter and report appears as a submission for the record.] 

Chairman WHITEHOUSE. The record of this proceeding will stay 

open for another week, and I thank the witnesses for their testimony. I thank the Ranking Member for his willingness to work 

through this, and we look forward to producing some results from 

this, I hope in the not too distant future, as we are both former 

lawyers, former United States Attorneys, former trial lawyers, and 

so we are both very pleased to have three such distinguished members of the Federal judiciary before us. 

Senator SESSIONS. Thank you for a good and fair hearing, Mr. 

Chairman. 

Chairman WHITEHOUSE. Of course. We are adjourned. 

[Whereupon, at 3:44 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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