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[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

 
               EXAMINING THE NEED FOR NEW FEDERAL JUDGES

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 21, 2018

                               __________

                           Serial No. 115-60

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
  
  
  
  
                           
         

      Available via the World Wide Web: http://judiciary.house.gov
      
      
      
                           _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
 32-478                 WASHINGTON : 2018                  
 
 
 
 
 
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,          JERROLD NADLER, New York
  Wisconsin                           ZOE LOFGREN, California
 LAMAR SMITH, Texas                   SHEILA JACKSON LEE, Texas
 STEVE CHABOT, Ohio                   STEVE COHEN, Tennessee
 DARRELL E. ISSA, California          HENRY C. ``HANK'' JOHNSON, Jr., 
 STEVE KING, Iowa                        Georgia
 LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
 JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
 TED POE, Texas                       KAREN BASS, California
 TOM MARINO, Pennsylvania             CEDRIC L. RICHMOND, Louisiana
 TREY GOWDY, South Carolina           HAKEEM S. JEFFRIES, New York
 RAUL LABRADOR, Idaho                 DAVID CICILLINE, Rhode Island
 BLAKE FARENTHOLD, Texas              ERIC SWALWELL, California
 DOUG COLLINS, Georgia                TED LIEU, California
 RON DeSANTIS, Florida                JAMIE RASKIN, Maryland
 KEN BUCK, Colorado                   PRAMILA JAYAPAL, Washington
 JOHN RATCLIFFE, Texas                BRAD SCHNEIDER, Illinois
 MARTHA ROBY, Alabama                 VALDEZ VENITA ``VAL'' DEMINGS, 
 MATT GAETZ, Florida                     Florida
 MIKE JOHNSON, Louisiana
 ANDY BIGGS, Arizona
 JOHN RUTHERFORD, Florida
 KAREN HANDEL, Florida
          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 DARRELL E. ISSA, California, Chairman
                  DOUG COLLINS, Georgia, Vice-Chairman
 LAMAR SMITH, Texas                   HENRY C. ``HANK'' JOHNSON, Jr., 
 STEVE CHABOT, Ohio                      Georgia
 JIM JORDAN, Ohio                     THEODORE E. DEUTCH, Florida
 TED POE, Texas                       KAREN BASS, California
 TOM MARINO, Pennsylvania             CEDRIC L. RICHMOND, Louisiana
 TREY GOWDY, South Carolina           HAKEEM S. JEFFRIES, New York
 RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
 BLAKE FARENTHOLD, Texas              TED LIEU, California
 RON DeSANTIS, Florida                BRAD SCHNEIDER, Illinois
 MATT GAETZ, Florida                  ZOE LOFGREN, California
 ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
                                      DAVID CICILLINE, Rhode Island
                                      PRAMILA JAYAPAL, Washington
                                      
                                      
                                      
                            C O N T E N T S

                              ----------                              

                             JUNE 21, 2018

                           OPENING STATEMENTS

                                                                   Page
The Honorable Darrell Issa, California, Chairman, Subcommittee on 
  Courts, Intellectual Property, and the Internet, Committee on 
  the Judiciary..................................................     1
The Honorable Jerrold Nadler, New York, Ranking Member, Committee 
  on the Judiciary...............................................     2
The Honorable Henry C. ``Hank'' Johnson Jr., Georgia, Ranking 
  Member, Subcommittee Courts, Intellectual Property, and the 
  Internet, Committee on the Judiciary...........................     4
The Honorable Steve Chabot, Ohio, Subcommittee on Courts, 
  Intellectual Property, and the Internet, Committee on the 
  Judiciary......................................................     5

                               WITNESSES

The Honorable Judge Lawrence Stengel, Chair of the Committee on 
  Judicial Resources of the Judicial Conference of the United 
  States
    Oral Statement...............................................     7
The Honorable Judge Mauskopf, Chair of the Subcommittee on 
  Judicial Statistics
    Oral Statement...............................................     8
The Honorable Judge Dana Sabraw, District Judge of the Southern 
  District of California
    Oral Statement...............................................    10
Mr. Samuel Kahn, Chairman and CEO, Kent Holdings and Affiliates
    Oral Statement...............................................    11

               EXAMINING THE NEED FOR NEW FEDERAL JUDGES

                              ----------                              

                        THURSDAY, JUNE 21, 2018

                       House of Representatives,

             Subcommittee on Courts, Intellectual Property

                            and the Internet

                             Washington, DC

    The committee met, pursuant to call, at 10:00 a.m., in Room 
2141, Rayburn House Office Building, Hon. Darrell Issa 
[chairman of the subcommittee] presiding.
    Present: Representatives Issa, Chabot, Labrador, DeSantis, 
Johnson of Georgia, Nadler, Deutch, Bass, Lieu, Schneider, 
Cicilline, and Jayapal.
    Staff Present: Joe Keeley, Counsel; Haley LaTourette, 
Clerk; Jason Everett, Minority Deputy Chief Counsel; Susan 
Jensen, Minority Senior Counsel; David Greengrass, Minority 
Senior Counsel; and Veronica Eligan, Minority Professional 
Staff Member.
    Mr. Issa. After a short delay, I call the committee to 
order. The Subcommittee on Courts, Intellectual Property, and 
the Internet will now come to order. Without objection the 
chair is authorized to declare recesses of the subcommittee at 
any time, and with votes expected around 11:30, that is likely 
to happen.
    We today are examining new judges needed for the Federal 
circuit and other items that may come up in questioning. I now 
recognize myself for an opening statement.
    This is one of the most important things that Congress 
does, is determine how many lifetime appointments are necessary 
to meet the requirements of the Federal court as given by the 
American people. Many of those requirements come from direct 
addresses to the Federal court under uniquely Federal 
requirements, such as patent or immigration; and in the 
Southern District of California we are particularly familiar 
with both. But many also come from a growing tendency for 
States to recognize that they can save money, be very 
efficient, by using every trick in the book to get something 
into the Federal court.
    This, oddly enough, sometimes goes in reverse when it is 
more favorable to be in State court, but we have seen a growing 
docket of items that could be tried in State court but are 
tried in Federal court. These tend to be often criminal, and as 
a result, they take priority. Notwithstanding how we get where 
we are, today the Federal court system is backed up. It is 
backed up not because of an inherent inefficiency, but because 
of a growing caseload.
    This is particularly true with the latest request for my 
home State and its Ninth Circuit, with 21 requested judges at 
the district court level and five more for what is already, by 
a factor of two, the largest appellate court in the Nation, we 
are at a crisis point. We must have the judges to take care of 
the caseload; we must find ways to make sure that justice, as 
it has been historically known, is kept. As so often has been 
said, justice delayed is justice denied. We cannot have that.
    At the same time, at least in the Ninth Circuit, we are 
acutely aware that the term ``full en banc'' simply does not 
mean anything. You will get a mini group of judges; the judges 
are unpredictable, and they represent already about a third of 
the judges that are in the full court, and that will continue 
to be that way until some change is found.
    So, today, in addition to the request for judges and the 
merit and other questions back and forth, it is our goal to 
also talk about the efficiency of courts at the district level 
and the efficiency of courts at the appellate level, and ask 
our distinguished panel of judges and practitioner for their 
suggestions, if known, of areas in which we could mitigate the 
inevitable need for more judges.
    Notwithstanding that, this is one of those rare bipartisan 
or even nonpartisan hearings, with the possible exception of a 
tweet from the President which will certainly loom over this 
hearing today. And with that, I would like to recognize the 
ranking member for his opening statement.
    Mr. Johnson of Georgia. I am going to yield to----
    Mr. Issa. The ranking member of the full committee will now 
be recognized.
    Mr. Nadler. Thank you very much, Mr. Chairman. Mr. 
Chairman, access to justice is not just a political slogan; it 
is a constitutional guarantee. But in some Federal judicial 
districts this promise meets the reality of an overburdened and 
understaffed court that cannot keep up with a burgeoning 
caseload. As a result, cases can be delayed or rushed, and 
justice may be shortchanged.
    To help address this problem, every 2 years the Judicial 
Conference of the United States analyzes the workload and the 
resources of all U.S. courts of appeal and U.S. district courts 
and recommends to Congress new judgeships to ease the burden of 
courts that are stretched too thin. In March 2017, the Judicial 
Conference recommended the creation of five new judgeships in 
the Ninth Circuit Court of Appeals and 52 new judgeships in 23 
district courts throughout the country.
    I appreciate the thoughtful analysis conducted by the 
Judicial Conference, and we should consider its recommendations 
carefully. I cannot help but note, however, the context in 
which this hearing occurs. It just so happens that we have a 
Republican Senate busily confirming a Republican President's 
judges at a historic rate, some of them, I might add, with 
dubious qualifications and many with alarming views. I 
certainly hope the purpose of this hearing truly is to assist 
overburdened courts, and that it is not in fact intended to lay 
a foundation for assisting President Trump in carrying out his 
plan to pack the courts with ideologically extreme judges.
    We should remember that it was only 5 years ago that the 
full Judiciary Committee held a hearing titled ``Are More 
Federal Judges Always the Answer?'' The hearing was meant to 
call attention to the supposedly outrageous fact that President 
Obama had nominated judges to fill the existing vacancies on 
the D.C. Circuit. Those were not new judgeships that he hoped 
to create. He simply nominated candidates to fill existing 
vacancies on what is generally considered the most important 
court in the country besides the Supreme Court.
    But Republicans cried foul and declared that the President 
was attempting to pack the court. They also noted that each new 
judgeship could cost as much as a million dollars a year to 
support, which they consider an unwise use of resources. They 
sang a different tune, however, in 2002, when President George 
Bush was in office. The Constitution Subcommittee then held a 
hearing called ``A Judiciary Diminished as Justice Denied: The 
Constitution, the Senate, and the Vacancy Crisis in the Federal 
Judiciary.''
    The Democratic Senate, they argued, was creating a judicial 
crisis because it was not confirming President Bush's nominees 
quickly enough; but they hardly seemed to complain during the 
final 2 years of the Obama presidency when Senate Republicans 
confirmed the fewest judges since 1952, leaving over 100 
vacancies unfilled for President Trump to then fill.
    And when Justice Scalia passed away, Republicans cheered 
the Senate's refusal even to schedule a hearing on President 
Obama's nomination of Judge Merrick Garland. It did not seem to 
trouble them at all that a seat on the highest court in the 
land remained vacant for more than a year, because it paved the 
way eventually for Justice Gorsuch to be confirmed.
    I provide all this history not to take anything away from 
the Judicial Conference or its nonpartisan and highly 
professional recommendations, but it is worth noting that there 
is another set of judgeship recommendations floating around 
conservative circles right now. This one was developed by 
Steven Calabresi, a founder of the Federalist Society, whose 
plan would add 61 new Federal appellate circuit court judges, a 
36 percent increase, and 200 new district court judges, almost 
30 percent more than the current figure.
    Unlike the Judicial Conference, which conducted a careful 
study of the needs throughout the judicial system, Professor 
Calabresi's proposal, he makes clear, was developed in part to 
``undo President Obama's judicial legacy.'' In fact, President 
Trump is already hard at work on radically reshaping the 
Federal judiciary. Never before have we seen a President 
essentially outsource the process of selecting judicial 
nominees to ideologically driven organizations like the 
Federalist Society and the Heritage Foundation.
    As a result, we have seen a host of troubling nominations. 
More than one has been unable or unwilling to answer whether 
Brown v. Board of Education was correctly decided; one nominee 
said the transgender children were part of ``Satan's plan;'' 
and several nominees have been rated flatly unqualified by the 
American Bar Association. Unfortunately, that has not stopped 
the Senate from confirming the President's nominees at a 
historic pace.
    We should of course consider the merits of the Judicial 
Conference's proposals regardless of who holds the levers of 
power at any given time. With the understanding that this 
hearing is not a pretext for any larger goals, I look forward 
to hearing from our witnesses, and I yield back the balance of 
my time.
    Mr. Issa. The gentleman yields back. And with that, I would 
like to go to the ranking member of the subcommittee for his 
opening statement. Mr. Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman. This 
hearing gives us an opportunity to examine whether there is a 
need for additional Federal judgeships. The United States legal 
system is the envy of the world; our legal system has 
historically provided fair, timely, and expert adjudication of 
civil disputes and criminal prosecutions for hundreds of years. 
There are, however, a number of challenges facing our Federal 
legal system that must be addressed if it is to maintain the 
standard of service our citizens expect and deserve.
    One of these challenges is an overworked judiciary. As a 
former magistrate judge, I continue to support restoring 
judicial compensation to appropriate levels and efforts to add 
judges where needed. Every other year, the Judicial Conference 
provides updated recommendations to Congress about the number 
of authorized judgeships needed to meet the needs of the 
American judicial system. Federal district court judges are 
appointed under Article III of the Constitution and are 
nominated by the President, confirmed by the Senate, and serve 
lifetime appointments upon good behavior.
    In March 2017, the Judicial Conference recommended to 
Congress to create five permanent Article III judgeships in the 
courts of appeals and 52 permanent Article III judgeships. The 
Judicial Conference also recommended the conversion to 
permanent status of eight temporary judgeships in the district 
courts. In addition, the Judicial Conference recommended to 
Congress and the President that they not fill the next 
judgeship vacancy on the U.S. Court of Appeals for the Tenth 
Circuit and in the District Court of Wyoming, based on 
consistently low filings in both courts.
    The Judicial Conference's recommendations are based on a 
comprehensive analysis of the workload of Federal judges, which 
takes into consideration not only the number but also the 
nature and complexity of the cases before the various courts. 
The number of Federal judges has an impact on the speed of 
Federal cases heard. The last time there was a major increase 
in judges was in 1990, when 61 new permanent judgeships were 
authorized.
    Since 1990, appeals filings have grown 40 percent, and 
district court filings have grown 38 percent. While we may need 
additional judges, we must also make sure that the individuals 
nominated are qualified. I have been alarmed by some of the 
appointments that President Trump has made for new judges, and 
I continue to believe that if my Senate Republican colleagues 
were concerned about efforts for new judges to manage 
caseloads, they could have helped address that concern by 
confirming Merrick Garland promptly, and President Obama's 
other outstanding nominees who were left on the table.
    I am particularly interested to hear the witnesses discuss 
which areas of the country need more judges and how an increase 
in judgeships would impact the judiciary and also the lives of 
everyday Americans. The Judicial Conference has recommended one 
additional permanent judge for the United States District Court 
for the Northern District of Georgia, which is my home circuit.
    I have always supported highly qualified candidates to the 
Federal bench, particularly in the Northern District of 
Georgia. The district is currently allotted 11 judgeships. As I 
stated earlier, I support efforts for additional Federal judges 
where needed. I thank the chairman for holding this hearing, 
and I yield back the balance of my time.
    Mr. Issa. Thank you. The gentleman from Ohio will provide 
the majority chairman's statement and excerpts of his own.
    Mr. Chabot. Thank you very much, Mr. Chairman. I had not 
really planned on making any remarks, but I will be very brief 
in light of a couple of comments that I heard from my dear 
friends on the other side of the aisle. One, the reference to 
how alarming that this President's nominees have been in some 
cases. I have to say, as a relatively conservative guy myself, 
I found it kind of alarming some of the nominations by the 
previous administration, so it oftentimes depends on who is--I 
am not sure what that--somebody does not like what it being 
said here.
    Mr. Issa. Who says the Russians do not listen?
    Mr. Chabot. But relative to whether something is alarming 
or not I think oftentimes depends on whose ox is being gored. 
And so, the fact that a number of the nominees tend to be a bit 
more conservative this time around than last time around is 
probably not surprising, but I do not think it is necessarily 
alarming.
    And I certainly do not think it is--it was mentioned that 
it is either unprecedented or never happened before, the so-
called outsourcing of the nominees to such conservative 
organizations as Heritage, for example. I would make the point 
that I think many in the Obama administration and previous more 
liberal administrations tended to get a lot of their nominees 
from organizations which were on the left. So, I do not think 
there is anything unprecedented or alarming or surprising about 
that.
    And I would just finally conclude, The Bar Association was 
mentioned, and the fact that some of these folks that the Trump 
administration has nominated for Federal judicial positions 
have not been approved by the Bar Association, are not held in 
high repute. I would just note that I practiced law for almost 
2 decades before coming to Congress about 22 years ago and had 
been a longtime member of the American Bar Association, paid 
the dues every year, even though I was just a sole 
practitioner--it was $250 at that time; it was a fair amount of 
money when you are a sole practitioner--and used to like to get 
their magazine, et cetera, until they decided that they just 
had to take a point of view on the life issue.
    And I happen to be pro-life, and they happened to decide 
that, on behalf of all the lawyers in this country, they 
decided that the pro-choice point of view was the only position 
that was appropriate; and I did not pay my dues after that. And 
once in a while, I would stop by the library and read the 
publication for free, but I was not going to pay my dues any 
more to the Bar Association.
    So, oftentimes it just sort of depends on, as I say, whose 
ox is being gored, but that our Federal judiciary, whichever 
side of the aisle one finds himself here, I think we all agree 
that that we do need quality people on the Federal benches, 
whether it is at the district court or circuit court; 
certainly, at the U.S. Supreme Court level.
    So, I know we have a very distinguished panel here in front 
of us this morning and look forward to hearing their testimony. 
I might add that I also am chairman of the House Small Business 
Committee, and we have one of my subcommittee hearings going 
on, so I do intend to stick around for all the testimony, I 
hope, but I do have to get over there. And I want to thank the 
gentleman for the way he has run this this committee over the 
years, and I yield back my time.
    Mr. Issa. I thank the gentleman. We now move forward with 
the most important part of this for most witnesses, and an 
unusual part for our witnesses today. And that is, pursuant to 
the rules of the committee, would you please all rise to take 
the oath?
    Raise your right hands.
    Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Please be seated.
    Let the record reflect that all witnesses answered in the 
affirmative.
    Today, our distinguished panel of witnesses include Judge 
Lawrence Stengel, the chair of the Committee on Judicial 
Resources of the Judicial Conference of the United States; as 
such, the man who brought us here today.
    Judge Mauskopf is chair of the Subcommittee on Judicial 
Statistics, which sounds like you brought us here also.
    Judge Dana Sabraw is the district judge of the Southern 
District of California and I think heir apparent to run that 
district, as I understand it, if you choose not to retire, 
which at your young age you should. And with all fairness, the 
judge and I go back to his days as a practitioner before he 
went to the State and then the Federal bench, so it is truly an 
honor to have somebody with so many years' experience that I 
have gotten to watch.
    And lastly, we have Mr. Samuel Kahn. He is chairman and CEO 
of Kent Holdings and Affiliates. He is a practitioner of great 
length and is here because I felt that, in addition to three 
judges saying we need more judges, it would be nice to have 
somebody who could talk about the delays before the court 
caused by not having enough judges.
    As you probably know from watching CSPAN, your written 
statements will be included in their entirety, and so we ask 
you to spend as much time as you want, within 5 minutes, saying 
whatever would revise and extend those statements. Judge 
Stengel.

STATEMENTS OF LAWRENCE F. STENGEL, CHAIR, COMMITTEE ON JUDICIAL 
  RESOURCES OF THE JUDICIAL CONFERENCE OF THE UNITED STATES; 
 ROSLYNN MAUSKOPF, CHAIR, SUBCOMMITTEE ON JUDICIAL STATISTICS; 
DANA M. SABRAW, UNITED STATES DISTRICT JUDGE, SOUTHERN DISTRICT 
OF CALIFORNIA; AND SAMUEL J. KAHN, CHAIRMAN/CEO, KENT HOLDINGS 
                        AND AFFILIATES.

                STATEMENT OF LAWRENCE F. STENGEL

    Judge Stengel. Chairman Issa and Ranking Member Johnson and 
members of the subcommittee, I am Lawrence Stengel. I am the 
chief judge of the United States District Court for the Eastern 
District of Pennsylvania, and I serve as chair of the Judicial 
Conference Committee on Judicial Resources. I am pleased to be 
joined this morning by Judge Mauskopf and Judge Sabraw and by 
Mr. Khan.
    First of all, let me thank you for your invitation for us 
to appear today to discuss the Article III judgeship needs of 
the Federal judiciary. The Judicial Resources Committee of the 
Judicial Conference is responsible for all issues of human 
resource administration, including the need for Article III 
judges in the U.S. courts of appeals and the district courts. 
Our testimony today has three purposes.
    The first is to identify for you the judgeship needs of the 
district and appellate courts; secondly, to explain the process 
by which the Conference determines those needs; and third, to 
assist Congress in understanding the implications of the 
judiciary being understaffed. I will address our judgeship 
request and the justification for that request, Judge Mauskopf 
will address in more detail our process, and Judge Sabraw will 
be able to provide details of how a district with judgeship 
needs is affected and the consequences of unmet judgeship 
requirements.
    Every other year, the Judicial Conference conducts a survey 
of the judgeship needs of the courts of appeals and the 
district courts. The latest survey, which was completed in 
March of 2017, resulted in a recommendation to Congress to 
establish five new judgeships in one court of appeals and 52 
new judgeships in 23 district courts. The Conference also 
recommended that eight existing temporary district court 
judgeships be converted to permanent status.
    The last comprehensive judgeship bill for the U.S. courts 
of appeals and the district courts was enacted in 1990. Similar 
or smaller targeted bills were considered between 1999 and 
2003, when Congress created 34 additional judgeships in the 
district courts. Prior to 1990, Congress was fairly regular in 
addressing increasing caseloads and the judiciary's needs; for 
example, judgeship bills were enacted in 1966, in 1970, 1978, 
and again in 1984. It has now been 15 years since the last 
judgeships were established.
    From 1990 to the end of fiscal year 2016, when we were 
conducting our resource needs survey, filings in the courts of 
appeals had grown by 40 percent, while district court case 
filings had risen by 38 percent. As discussed in our written 
testimony, for district courts we initially apply a standard of 
430 weighted filings per judgeship to gauge the impact of the 
workload on a district.
    For the 27 district courts where the Conference is 
recommending additional judgeships or conversion of existing 
temporary judgeships, weighted filings average 577 per 
judgeship, and 20 courts have caseloads above 500 weighted 
filings, eight above 600, six above 700, and one with more than 
1,000 weighted filings. These are well beyond our standard of 
430 weighted filings for considering new judgeships.
    The lack of additional judgeships, combined with the growth 
in caseload, has created enormous difficulties for many courts 
across the Nation, but it has reached urgent levels in five 
district courts that are struggling with extraordinarily high 
and sustained workloads. The severity of the conditions in the 
Eastern District of California, the District of Delaware, the 
Southern District of Florida, the Southern District of Indiana, 
and the Western District of Texas require immediate action, in 
our view. The Judicial Conference urges Congress to establish 
new judgeships in these districts as soon as possible.
    The Judicial Conference recommendation, which addresses our 
total needs, has not yet been introduced in the current 
Congress as a comprehensive judgeship bill. However, smaller 
individual judgeship bills have been introduced. Our written 
testimony identifies those bills, and we appreciate the 
interest of Congress as expressed in those measures. The 
Judicial Conference is grateful for congressional action to 
extend temporary judgeships and is supportive of legislation 
similar to bills introduced in the last Congress and currently 
pending in the Senate to convert temporary judgeships to 
permanent status.
    As we review our needs, the Judicial Conference does not 
recommend or wish indefinite growth in judgeships. Our request 
has been thoroughly reviewed, is based on a careful analysis of 
qualitative and quantitative information, and recognizes that 
the growth in the judiciary must be carefully limited and 
planned and be fully justified. Thank you for the opportunity 
to appear today, and thank you for your continued support of 
the Federal judiciary. I will be happy to respond to your 
questions.
    [The prepared statement of Judge Stengel follows:] https://
docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-StengalL-20180621.pdf
    Mr. Issa. And that will wait. Judge Mauskopf.

                 STATEMENT OF ROSLYNN MAUSKOPF

    Judge Mauskopf. Thank you, Chairman Issa, Ranking Member 
Johnson, and members of the subcommittee. I am Judge Roslynn 
Mauskopf, sitting on the United States District Court for the 
Eastern District of New York, and I am also chair of the 
Judiciary Subcommittee on Judicial Statistics. I appreciate the 
opportunity today to discuss the process by which we determine 
Article III judgeship needs of the Federal judiciary.
    Our joint written statement, along with the attachments to 
that testimony, provide a thorough description of our process 
and results. But I think it would be useful to the subcommittee 
and to the Judiciary Committee as a whole to provide some 
highlights of how we reached our recommendation for 57 new 
judgeships and the conversion of eight temporary judgeships to 
permanent status.
    In developing those recommendations for consideration by 
Congress, the Judicial Conference, through its committee 
structure, uses a formal process to review and evaluate Article 
III judgeship needs. Every other year, the Judicial Conference 
conducts a survey of the judgeship needs of the U.S. courts of 
appeals and the U.S. district courts. The latest survey was 
completed in March of 2017.
    Before a judgeship recommendation is transmitted to 
Congress, it undergoes careful consideration under a multilevel 
process. The six-step review process begins with the individual 
court reviewing its needs and making a request. The 
subcommittee I chair then conducts a preliminary review. Once 
this review is complete, the subcommittee's recommendation and 
the court's initial request are forwarded to the judicial 
council of the circuit in which the court is located.
    Upon completion of the circuit counsel's review, the 
Subcommittee on Judicial Statistics conducts a final review of 
the request. The subcommittee then submits the recommendation 
to the full Committee on Judicial Resources, and finally, the 
Judicial Conference of the United States considers the full 
committee's final product. For the 2017 survey, the courts 
requested 66 additional permanent judgeships and the conversion 
of nine temporary judgeships to permanent; our review procedure 
reduced the number of recommended additional judgeships to 57, 
and conversions to eight.
    The recommendations developed through this review process 
are based in large part on standards related to the caseloads 
of the courts. They represent the caseload at which the 
Conference may begin to consider requests for additional 
judgeships; the starting point in the process, not the 
endpoint. The caseload standards used by the Judicial 
Conference are expressed as filings per authorized Article III 
judgeship, which, importantly, assumes that all vacancies on 
the court are filled.
    For appellate courts, we use a standard of 500 adjusted 
filings per panel as a starting point. For district courts, we 
initially apply a standard of 430 weighted filings per 
judgeship to gauge the impact on the district, and in smaller 
courts we use a standard of 500 weighted filings per judgeship. 
Weighted filings are used as a means of accounting for the 
varying complexity of different types of civil and criminal 
filings and real differences in the time required for judges to 
resolve various types of civil and criminal actions.
    Rather than counting each case as a single case, weights 
are applied based on the nature of the cases. The total for 
weighted filings per judgeship is the sum of all weights 
assigned to the civil cases and criminal defendants, divided by 
the number of authorized judgeships. In 2016, the Judicial 
Conference approved updated case weights for the district 
courts.
    Caseload statistics alone are not fully indicative of each 
court's needs. Other court-specific information is considered 
to arrive at a sound measurement of each court's judgeship 
needs, and this would include factors such as the number of 
senior judges available to a specific court; available 
magistrate judge resources and the use of visiting judges; 
geographic factors; unusual caseload complexity; temporary 
caseload increases; and other factors noted by the courts.
    In conclusion, over the last 25 years the Judicial 
Conference has developed, adjusted, and refined the process for 
evaluating and recommending judgeship needs in response to both 
judiciary and congressional concerns. Using an objective 
standard as a starting point and considering other court-
specific factors allows us to develop recommendations that are 
carefully reviewed in a multistep process.
    This ensures that the recommendations of the Judicial 
Conference are limited to the number of new judgeships that are 
necessary to exercise Federal court jurisdiction. Once again, I 
thank the subcommittee for the opportunity to appear today and 
would be happy to answer any questions.
    [The prepared statement of Judge Mauskopf follows:] https:/
/docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-MausopkR-20180621.pdf
    Mr. Issa. Thank you. Judge Sabraw. This is a large 
courtroom, so we recommend the mic.

                  STATEMENT OF DANA M. SABRAW

    Judge Sabraw. Well, good morning, Chairman and Ranking 
Member Johnson, members of the committee. I am Judge Dana 
Sabraw from the Southern District of California. I am 
particularly delighted to be here at Chairman Issa's request 
and to speak to the issues of additional judgeships.
    I would like to start by giving an overview of the national 
trends as reflected in our caseload statistics, which reflect 
an increasing demand on the judiciary since the last judgeship 
bill was enacted in 2003. I also know the chairman is 
particularly interested in the situation in California, and I 
am delighted to speak to that issue as well.
    Federal court management statistics since 2003, the last 
judgeship bill, to March 31, 2018, showed the number of total 
cases filed in the Nation has risen by 15 and a half percent. 
In California, where we have 10 percent of the Nation's 
caseload, we have seen an increase of 13 and a half percent in 
case filings since that period of time.
    In my own district, in the Southern District of California, 
we have seen an increase of 21 percent, and we have seen 
weighted filings increase by 33 percent since 2003. Based on 
the most recent data, we also expect weighted filings in the 
Southern District of California to increase, which will of 
course make the additional need for judgeships even greater.
    The effect of this kind of increase in caseload is 
profound. Increasing caseload leads to significant delays in 
the consideration of caseloads, particularly with respect to 
civil cases, often takes years to get through the trial court. 
In most districts across the Nation it takes about 2 years to 
adjudicate civil cases from filing to trial. In these impacted 
districts, we see that cases are taking 3 and 4 years. In 
particular, in the Eastern District of California, cases are 
taking 40 months on average to go through trial, and in San 
Diego cases are taking as long as 36 months, which is far too 
long.
    These delays increase expenses for civil litigants. They 
also may increase the time criminal defendants are held pending 
trial. The delays lead to an erosion of trust in the judiciary 
and to the judicial process itself, and the problem is so 
severe that potential litigants are even avoiding Federal court 
altogether.
    The workload situation in each of the four California 
districts is severe. Weighted caseloads are well beyond the 
national average of 430, and indeed, they exceed 500 in each of 
the four districts in California. The weighted caseload exceeds 
700 in the Eastern District, which is one of the highest in the 
Nation and has been so for many, many years, and unfortunately, 
the situation in the Eastern District was made worse when the 
district lost one of its temporary judgeships in 2004. This 
contributed to a significant increase in pending cases in that 
district as well.
    One cannot imagine the situation will improve on its own 
without additional judges. Looking at just one area in 
particular, immigration enforcement, the increase in caseload 
has been staggering. In addition, some immigration bills 
currently pending before Congress would further increase the 
workload of Federal courts along the border by adding more law 
enforcement personnel and prosecutors. If Congress authorizes 
additional immigration enforcement resources to executive 
branch agencies, it is also critical to add additional 
judgeships authorized so that it can handle the increased 
workload which will inevitably flow to those districts.
    Considering just the present workload, the Judicial 
Conference has requested 17 additional judgeships for 
California, seven in the Central District, five in the Eastern, 
three in the Southern, and two in the Northern. In addition, 
the Conference has recommended the conversion of a temporary 
judgeship in the Central District, but I would add to it that 
while border States may be the focus of more targeted judgeship 
legislation, it is important that judgeship be addressed 
comprehensibly across the Nation to address pressing needs 
throughout the country.
    Quite simply, the problem cannot be addressed by just 
adding magistrate judges or asking visiting judges or senior 
judges to shoulder the burden. Magistrate judges have limited 
jurisdiction, and moreover, the Judicial Conference process for 
determining workload needs of the court fully takes into 
account the valuable contributions that magistrate judges, 
senior judges, and visiting judges are already making.
    Mr. Chairman, I have only highlighted some of the issues 
that impact our courts. I would be happy to address any 
questions that may follow. Thank you.
    [The prepared statement of Judge Sabraw follows:] https://
docs.house.gov/meetings/JU/JU03/20180621/108453/HHRG-115-JU03-
Wstate-SabrawD-20180621.pdf
    Mr. Issa. Thank you. I am happy you used exactly 5 minutes, 
too. Mr. Kahn.

                    STATEMENT OF SAMUEL KAHN

    Mr. Kahn. Thank you, Mr. Chairman and Ranking Member 
Johnson. I would like to go into a bit of background into how 
we got here in California.
    Since the 2011 adoption of what is known as the Public 
Safety Realignment or Assembly Bill 109, then Proposition 47, 
the Safe Neighborhoods and Schools Act, which was adopted in 
2014, and the Public Safety and Rehabilitation Act of 2016, 
known as Proposition 57, California's crime rate has increased 
several times more than the national average, suffering the 
highest increases in both violent and property crime compared 
to any of the other 10 largest States.
    Specifically, in 2015 and 2016 California suffered 
consecutive-year increases in violent crime for the first time 
in 25 years. In those 2 years, homicide in California increased 
by over 15.3 percent; for the Nation as a whole, in 2015 the 
violent crime rate increased 3 percent, while California's rate 
increased 2.5 times as much at 7.6 percent. Now, by way of 
background, all the rates that I am quoting are reported as 
number of crimes per 100,000 population.
    The property crime rate for the Nation as a whole declined 
3.4 percent, while California has increased 7.2 percent. That 
is, California's net change in property crime rate was 10.6 
percent greater than the Nation as a whole. Looking at the 
country's 10 largest States, all nine of the others had 
decreases in property crime. Georgia, by way of illustration, 
had the largest decline at 10 percent, while Florida had the 
smallest at 4.1 percent. California alone had an increase in 
property crime, and a very substantial one.
    The impact of this increase on criminal cases referred to 
at the Federal courts has been, to say the least, dramatic. 
Compared to 2014, Federal criminal cases from California in 
2015 increased by 161 percent; in 2016, they increased by 135 
percent; and in 2017, they increased by 131 percent. And these 
figures do not include drug prosecutions; and by way of 
background, 80 percent of the illegal opioids in the Nation 
pass through our Southern District borders, as Judge Sabraw 
knows.
    So, the question is, why have we experienced such an 
increase in Federal filings and caseload? Well, California's 
Public Safety Realignment--again, AB 109--eliminated State 
prison sentences for any conviction for drug dealing, which are 
now punished in most cases by county jail sentences of 30 days 
or less. Proposition 47 converted the possession of illegal 
drugs in lesser quantities from a felony to a misdemeanor, and 
as a result, statistics indicate that while addiction rates 
have increased in California, drug prosecutions have declined, 
while Federal referrals of drug cases have fluctuated between 
1,900 and 2,500 over the past 5 years.
    The incentive for county sheriffs and district attorneys to 
refer cases involving drug dealing to the Federal court system 
is increasing alarmingly as repeat offenders continue to churn 
through the State system again and again and are back on the 
streets a few weeks after initial arrest.
    Finally, in several other areas of the law, including 
environmental, criminal immigration, and utilization of Federal 
natural resources, California has of course publicly proclaimed 
its intention to resist both the enforcement of Federal policy 
and Federal law with petitions for Federal injunctive relief. 
These cases often take many years to litigate, taxing the 
resources of the Federal courts.
    To cite but one example, the case of Habeas Corpus Resource 
Center v. The Department of Justice, an entirely extralegal 
2013 injunction by a Federal district judge in California 
blocked enforcement of the Antiterrorism and Effective Death 
Penalty Act, which was signed into law in 1996, wasting 3 years 
of court time before it was unanimously rejected by the Ninth 
Circuit in 2016.
    We have a fantastic increase in immigration caseload, and 
as a result--and this has not quite yet hit the statistics--the 
petitions for habeas corpus are going to be increasing as well, 
therefore driving more Federal referrals. We also have--I 
believe that this is something that we have talked about 
previously, Mr. Chairman--matters involving intellectual 
property, trademark matters, and the like, both in the Southern 
District and in the Northern District, that are very complex 
and take many years to be adjudicated.
    The vacancies at both the district court and appellate 
court levels in the Ninth Circuit are delaying justice for 
millions of people in its jurisdiction. The current situation 
is intolerable, actually punishing litigants who suffer the 
misfortune of not living in one of the other circuit. Thank 
you.
    Mr. Issa. Thank you. We will now go in order for 
questioning, and I would recognize the senior member present 
here today, the gentleman from Ohio, Mr. Chabot, for 5 minutes.
    Mr. Chabot. Thank you very much, Mr. Chairman. Thank you 
for holding this hearing. Judge Stengel, I will begin with you 
if I can.
    Magistrate judges carry a significant part of the judicial 
workload in many but not all districts. Would you discuss the 
role that magistrates play in some districts, and why are some 
districts more willing to delegate the workload to magistrates 
than others?
    Judge Stengel. The utilization of magistrate judges varies 
from district to district. I am in the Eastern District of 
Pennsylvania; our protocol for the use of magistrate judges 
differs from the district court across the river in New Jersey; 
we are a little bit different from Delaware. It is fairly 
individualized. The magistrate judges, historically, conduct 
settlement conferences; they do trials by consent. In some of 
the more progressive courts--I will use that term--the 
magistrate judges are actually on the assignment wheel and take 
on some of the civil load. That is not in the majority of 
courts.
    When we do our judgeship assessment, we do not count the 
contributions of the magistrate judges. We look at the workload 
of the district courts, the weighted caseload per district 
judge, and then, when we come to a number as to what their 
weighted caseload is, and then we look at how they involve 
magistrate judges, how they involve visiting judges, how they 
involve senior judges in determining whether their request for 
additional resources is reasonable.
    So, you are absolutely right to identify a difference among 
the districts, and there is a Judicial Conference Magistrate 
Judge Committee which helps courts with the more effective 
utilization of their magistrate judges and their work.
    Mr. Chabot. Thank you very much, Judge. You used the word 
``progressive'' courts. I used to consider myself progressive, 
but then the term got turned around up here and politicized, so 
I do not use it that much anymore, but I understand what you 
meant by it.
    Judge Mauskopf, I will turn to you next. How has the 
ability for judges to select senior status impacted the 
judiciary and its workload?
    Judge Mauskopf. Well, certainly, when one of our colleagues 
takes senior status that creates a vacancy on the court, so we 
look forward to the presidential and congressional prerogative 
to fill that seat. But senior judges contribute significantly 
to the work of the Federal district courts. My court is a very 
good example.
    We have 14 senior judges; they carry a caseload equivalent 
to 10 active judges. So, our senior judges, not just in my 
court but across the country, continue to be very active in the 
management and resolution of both criminal and civil cases. We 
consider the contributions of senior judges in courts before we 
make our recommendations for permanent judgeships.
    Mr. Chabot. Thank you very much. And I have got not quite 2 
minutes left, so I am going to open this question up to anybody 
that would like to take a stab at it. Are there other changes 
by the judicial system such as greater use of technology, for 
example, or changes to procedural rules that could help to 
reduce the current backlog of cases? And whoever would like to 
take it, go right ahead. Judge?
    Judge Mauskopf. I know that many courts have employed 
robust alternative dispute resolution systems. Our magistrate 
judges are often involved in settlement discussions. My court 
in particular has a very large mediation program employing 
outside practitioners to help mediate cases.
    So, I think the Federal judiciary looks at ways to try and 
expedite the backlog of cases we have, particularly on the 
civil side. We always do a particularly good job of 
prioritizing the criminal cases because of the issues at stake 
there. But we are always looking inward for technology, for 
other ways to resolve the disputes and to clear the backlogs 
that we have.
    Mr. Chabot. Thank you very much. I have got a little time 
left. Judge Stengel, did you want to----
    Judge Stengel. Just to add to that, in some districts, 
particularly those with patent-heavy caseloads, the district 
judges have taken to putting time limits on trials. So, they 
will give the plaintiff 20 hours, they will give the defendant 
20 hours, and they stick to those, and they have somebody in 
the courtroom who runs a clock. That is a case management 
technique that has been very efficient in those lengthy complex 
cases.
    Mr. Chabot. Kind of like playing chess.
    Judge Stengel. Yes.
    Mr. Chabot. Maybe a lot longer if we did not put limits on 
that when you do it. Mr. Chairman, thank you very much. I 
appreciate it and yield back.
    Mr. Issa. I thank the gentleman, and I do wonder, if you 
had one claim being adjudicated or 1,000 claims, how you would 
feel about the same 20 hours. With that, we go to the gentleman 
from Georgia, Mr. Johnson.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman. Judge 
Stengel, did the latest survey of the needs of the U.S. courts 
of appeals and U.S. district courts completed by the Judicial 
Conference in March 2017 produce any unexpected findings?
    Judge Stengel. I do not know that the findings were 
unexpected. We have a tremendous growth in the caseloads in 
certain courts. We do this process every 2 years, and so we 
were able to identify trends. But in terms of the caseload in 
New Jersey, the caseload in Delaware, and the caseload in 
certain other districts in California, those continue to grow 
at a fairly dramatic rate.
    There have been some changes in the law that have that have 
led to that. The TC Heartland decision, which has to do with 
venue in a patent case, has had an impact on the District of 
Delaware. The continued growth in multi-district litigation; at 
this time, about 35 percent of the civil litigation in this 
country is in the MDL process. States like New Jersey, where a 
number of the pharmaceutical companies have their principal 
place of business and are incorporated, get an inordinate 
number of those cases. So, that is something that we are 
tracking.
    Judge Mauskopf, you may want to comment on the survey 
process in terms of any surprises.
    Judge Mauskopf. We have no expectations in the survey 
process. As Judge Stengel said, we do keep our eye on trends 
and have a sense of the shifting caseload across the country, 
but our recommendations are empirically based, based on the 
data, caseload data, as of the time that we do the 
recommendations.
    Mr. Johnson of Georgia. Thank you. Judge Sabraw, what are 
the implications when the judiciary is understaffed?
    Judge Sabraw. Well, I can speak to that. In the Southern 
District, in particular with Operation Streamline coming, we 
are the only court on the border that does not currently have 
Operation Streamline. And so, when----
    Mr. Johnson of Georgia. Can you can explain what Operation 
Streamline is?
    Judge Sabraw. Yes. That will be a result of the zero-
tolerance policy and the immigration enforcement; so we are 
expecting, for example, the U.S. attorney to bring in 75 to 100 
cases each day in our court. And so, it will clearly impact the 
level of resources we can devote to those types of cases.
    Mr. Johnson of Georgia. These will be misdemeanor cases 
brought against persons coming across the southern border?
    Judge Sabraw. Yes, sir. They will be, under 8 U.S.C. Sec.  
1325, misdemeanors, by and large.
    Mr. Johnson of Georgia. And is it true that in the case of 
misdemeanants coming before the U.S. district courts that there 
is a right to have bond set in those cases?
    Judge Sabraw. That is absolutely true. They do have a right 
to a bond determination. It is a different calculation from the 
felony filing, but they have a right to a bond hearing. Where 
it impacts----
    Mr. Johnson of Georgia. They have a right to a bond to be 
set----
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia [continuing]. For them, is that 
correct?
    Judge Sabraw. Yes, they do. They have a right to a bond 
determination and to have a bond set, and the impact----
    Mr. Johnson of Georgia. And that has to be an 
individualized determination as to the bond; it cannot be, 
like, a preset bond, but it has to basically be an 
individualized consideration before the judge sets a bond.
    Judge Sabraw. That is exactly right. It has to consider 
flight risk, danger to the community. There is no presumption 
of detention, so bonds are a very important consideration, 
particularly for low-level offenders like misdemeanants.
    I would like to say it does increase the workload for 
district judges, because what we are seeing is a number of 
appeals of bonds from the magistrate judges to the district 
judges, and our district judges in the Southern District are on 
the wheel for misdemeanor trials. Though we do not have to do 
that, it is a way to best utilize resources and serve our 
community.
    Mr. Johnson of Georgia. So, basically, Operation Streamline 
has the potential to gum up the workings of the operation of 
the Southern District of California.
    Judge Sabraw. It will have a dramatic impact. We are 
presently trying to staff the influx of cases that we 
anticipate. As I mentioned, the U.S. attorney anticipates 
bringing in as many as 75 to 100 cases per day, so we will----
    Mr. Johnson of Georgia. Per day?
    Judge Sabraw [continuing]. Need additional magistrate 
judges, additional courtroom space, and, of course, 
interpreters, CJA attorneys, Federal defenders. It has a court-
wide impact for sure.
    Mr. Johnson of Georgia. Now, what about juveniles? Will 
juveniles who have been separated from their parents be coming 
before the district court also?
    Judge Sabraw. I do not anticipate that. Most of the 
juveniles who are separated are processed separately through 
various statutes. They are held through Office of Refugee 
Resettlement. Most of them are detained pending removal 
proceedings. We would only see juvenile offenders if another 
crime is committed; for example, if they have drugs on their 
person. In our district it is not uncommon to have a juvenile 
come across with a backpack of marijuana. Those types of 
offenders would come into our court, but they are relatively 
rare.
    Mr. Johnson of Georgia. I thank you all for your testimony 
today, and I yield back.
    Mr. Issa. Thank you. Just because I am not familiar with 
this, and his question was very germane, people who have come 
unlawfully over the border, it is only a misdemeanor. But when 
you are giving a consideration to a bond, is there some sort of 
statistical likelihood, on average, of how many of these people 
will show up if you grant a bond?
    Judge Sabraw. I know that that is heavily debated. I do not 
have those statistics. I am simply looking as a judge giving an 
individualized consideration of what flight risks are, what the 
danger to community is. The statistics I know the Department of 
Justice and others have, but we do not have those.
    Mr. Issa. Thank you. We now go to the gentleman from Idaho, 
Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman, and I want to thank 
the panel for being here today. Idaho is in urgent need of 
another Federal judgeship. The last time Idaho received an 
Article III judgeship was in 1954. The 64-year wait is 
unprecedented, and it keeps getting longer, obviously.
    My concern is not just about the timing. Over the past 6 
decades, Idaho's population has nearly tripled. In fact, the 
U.S. Census recently announced that Idaho is the fastest-
growing State in the country, and in March, Forbes Magazine 
named Idaho's capital, Boise, the fastest-growing metro area in 
the United States.
    Despite this impressive increase, Idaho still has fewer 
judgeships than States such as Alaska, Montana, Wyoming, Maine, 
and South Dakota, all who have smaller populations and/or 
smaller weighted caseload. Idaho's insufficient number of 
Article III judges is also surprising in light of the fact that 
its docket continues to outpace those of other similar 
communities and courts. Since 2001, criminal filings in Idaho 
have increased by 163 percent and by 41 percent over the last 3 
years alone.
    Also, due to the recent announcement of two new U.S. 
attorneys for Idaho, the number of criminal cases will only 
increase. Further, despite a national trend of a reduction in 
civil cases, the number of civil filings in Idaho has remained 
relatively consistent over the last 10 years. This extremely 
heavy caseload is currently being managed by three Federal 
judges, two who are fulltime and one who is in senior status.
    The senior judge carries only a 75 percent caseload and 
obviously could retire any day. In fact, I think the reason he 
has not retired is because we do not have an additional judge. 
Once he retires, one of the two remaining judges plans to take 
senior status with a reduced caseload, leaving only one 
fulltime Article III judge in the District of Idaho and thereby 
creating an immediate judicial emergency.
    Federal judges from neighboring districts have acted as 
visiting judges to alleviate the burgeoning caseload in Idaho. 
In 2017 alone, the District of Idaho engaged the help of 25 
visiting judges. Between 2012 and 2017, visiting judges spent 
over 832 hours away from their own states to hear Federal cases 
in Idaho. While their temporary assistance is appreciated, it 
has created uncertainty among litigators, who struggle to 
prepare cases for these particular judges, about whom they know 
very little, if anything.
    Finally, the burden of Idaho's massive geography is an 
important factor for the Conference to consider when issuing 
its decision about a new judgeship. The entire State of Idaho 
is one district that encompasses over 83,000 square miles and 
two time zones.
    Additionally, the State is subdivided into three divisions, 
each with their own Federal courthouse. Traveling between these 
three venues includes stretches of 222 to 458 miles, and air 
transport is not an option in some of those cases. This is 
roughly the equivalent to driving between Washington, D.C., 
Pittsburgh, and Boston. The Federal judges in Idaho spend 
significant amounts of time traveling between the three 
courthouses.
    I know you are aware of all these things, but I just wanted 
to emphasize how important the dire need that we have in Idaho 
is. Judge Stengel, given these facts, what is your response to 
Idaho's need for a third Article III judgeship?
    Judge Stengel. The Judicial Conference strongly supports an 
additional permanent judge for the District of Idaho for the 
reasons you cite. The weighted caseload certainly supports the 
additional judgeships.
    And when I talked earlier about qualitative and 
quantitative factors, the qualitative factor here that is so 
profound is the distance that the judges are required to travel 
among the divisional offices. You correctly State it is 222 
miles and 458 miles, and that is an extraordinary burden on 
those judges. So, we are well aware of those factors and 
strongly support the additional permanent judge in Idaho.
    Mr. Labrador. Thank you. And why has Idaho had to wait 
longer than any other State for an additional Federal judge?
    Judge Stengel. We do the survey every 2 years. Our 
recommendation for Idaho I think has been consistent. I cannot 
speak to why that has not been acted on.
    Mr. Labrador. As you are looking at your determination, 
does the Conference consider that justice may not adequately be 
served when a State has an insufficient number of Federal 
judges?
    Judge Stengel. There is no question, and that is why it has 
such an emergent nature, not only in the courts with judicial 
emergencies, which deals more with vacancies, but in the courts 
such as your State, where justice delayed is justice denied. 
And the fact that the resources are less than they need to be 
is a problem with the administration of justice.
    Mr. Labrador. As you know, we have some amazing judges in 
the State, and they are doing the best they can with the 
resources they have.
    Judge Stengel. Absolutely.
    Mr. Labrador. I have a bill before this Congress trying to 
get an additional judgeship, and I hope that we can get that 
done hopefully before the end of the year. Thank you very much 
for your time.
    Mr. Issa. Would the gentleman yield?
    Mr. Labrador. Yes.
    Mr. Issa. Would this presume that you embrace equally the 
other recommendations of the Judicial Conference in a combined 
bill that would, among other things, reduce by one the Wyoming 
judgeship, which apparently is the pay-for for your getting 
this additional one? Is that envisioned by you that they are 
not only right in your case, but they are right in all cases?
    Mr. Labrador. I will support anything that the commission 
advises and anything that we can get passed through this 
Congress.
    Mr. Issa. I thank the gentleman. We now go to the gentleman 
from Florida, Mr. Deutch.
    Mr. Deutch. Thank you, Mr. Chairman. The gentleman from 
Idaho makes a compelling case for a new Federal judgeship. I 
commend him for that argument.
    Mr. Chairman, when Attorney General Sessions announced the 
adoption of a zero-tolerance policy for undocumented people 
crossing the border, any adult believed to have committed any 
crime, including illegal entry, is, as a result of that, 
prosecuted for committing a crime.
    Now, the scope of that zero-tolerance policy is expansive. 
It ends prioritizing the prosecution of and deporting those 
people who are dangerous or pose a serious threat to our 
national security. It now includes prosecuting not just those 
deemed a threat, but all people who have committed the 
misdemeanor by crossing the border illegally for the first 
time. These people are now being prosecuted in Federal court 
for a misdemeanor crime; we have talked about that already. If 
convicted, they are usually provided time served; however, if 
the person has illegally crossed the border on prior occasions, 
they can be sent back to jail to serve more time and are then 
deported from the United States.
    In a June 19th article in The New York Times that I would 
ask unanimous consent to submit for the record----
    Mr. Issa. Without objection, so ordered.
    [The information follows:] https://docs.house.gov/meetings/
JU/JU03/20180621/108453/HHRG-115-JU03-20180621-SD003.pdf
    Mr. Deutch [continuing]. It is being reported that the 
administration's zero-tolerance policy of criminally 
prosecuting all people crossing the border is flooding our 
Federal courts, and we have heard some of that this morning. 
This policy is now forcing Federal judges to prioritize and 
divert finite resources and time to misdemeanor first-time 
border crossing cases. While more serious criminal cases, 
including drug cases, human trafficking cases, and other 
serious Federal offenses, are pushed further and further down 
the dockets.
    This enormous increase in immigration cases involving 
illegal border crossings is especially acute along the border. 
Texas, Arizona, and California have seen Federal courts--Judge 
Sabraw, you touched on this--overrun with criminal prosecutions 
of undocumented immigrants. In fact, this article reports that 
in Tucson the court has already heard 6,519 immigration cases 
this year. For comparison, during all of last year the Tucson 
court heard 10,869 immigration cases.
    It also reports a study by Syracuse University that found 
that the zero-tolerance policy has caused Federal criminal 
prosecutions of undocumented immigrants to increase along the 
southwest border by 30 percent in April over March. Almost 60 
percent of all Federal criminal prosecutions in April were for 
violations of immigration law.
    So, the massive increase in cases has forced the Federal 
courts to pursue what is referred to, Judge Sabraw, as 
Operation Streamline, what others have referred to as an 
``assembly line of justice'' approach. I am not sure who gave 
it that name, the Operation Streamline, because from what we 
have read the reporting says that immigrants often appear in 
court in large lines to have their cases quickly disposed of in 
one plea.
    Now, Federal courts have been forced to resort to this form 
of dispensing justice. The large number of people being 
prosecuted also is burdening not just the Federal judges but 
the courtroom staff: Clerks, attorneys, interpreters, marshals, 
and other security staff, as well as the actual courthouses and 
the facilities. Many of these people appearing in Federal court 
are fleeing from their home countries to seek safety in our 
country; they are fleeing horrific violence and deadly gangs, 
and this is now how we treat them when they get here: with a 
jail cell, assembly-line justice, and separation from their 
children. This is the way we show humanity to those who are 
fleeing persecution and violence, and it is abhorrent.
    The question I have is whether you are concerned that our 
Federal courts--because we have been forced to resort to this 
assembly line to dispense with the enormous volume of 
misdemeanor immigration cases--what their impact is on your 
ability to hear the cases that really present national security 
threats. The drug cases that are not being heard; the human 
trafficking cases that are not being heard because of this 
policy. Judge Sabraw, can you comment on that?
    Judge Sabraw. It does present a real challenge, because 
with the flood of misdemeanant cases that come in, as I was 
mentioning to Ranking Member Johnson, it necessitates the 
involvement of district judges. So, we are hearing many more 
bail review hearings; we are also conducting more misdemeanor 
trials--I have one on calendar a week from today. So, there is 
no question that it does distract from the district judges' 
obligations. We can simply----
    Mr. Deutch. I am sorry, Judge, to interrupt. It distracts 
from which obligations?
    Judge Sabraw. To attend to other cases, felony cases and 
civil cases.
    Mr. Deutch. Can I just stop for a minute? Mr. Chairman, 
there has been a lot of talk over this week about the family 
separation policy, and we have been told that we need this 
because we care about security, and we have to take seriously 
the rule of law. The fact is there are felony cases that are 
not being heard right now by our Federal judges because those 
cases are being pushed down the docket so we can hear these 
misdemeanor cases instead.
    I do not understand how it is that that advances our 
national security when all of these other cases, so many of 
which directly implicate our national security dangers posed to 
American citizens, people who have been arrested for felonies, 
justice is not being served because of this policy. That is a 
really important point for us to acknowledge, and I greatly 
appreciate the opportunity to engage on this topic with these 
judges today, and I yield back the balance of my time.
    Mr. Issa. I thank the gentleman----
    Mr. Deutch. Thank you.
    Mr. Issa [continuing]. For yielding back. The gentlelady 
from California, is recognized.
    Ms. Bass. Thank you, Mr. Chairman. Thank you for having 
this hearing. And I want to thank the witnesses for coming and 
taking their time with us this morning. Mr. Kahn, I know that 
you are the chairman and CEO of Kent Holdings and Affiliates, 
and I was wondering if you could describe what that company is.
    Mr. Kahn. Yes, I would be happy to, Congresswoman. It is a 
family-owned company that at one point in time was one of the 
largest privately-owned masterplan community developers in the 
United States. And it still exists today in various forms and 
developing property and owning properties throughout California 
and Nevada.
    Ms. Bass. And I know that you have a background, I believe, 
in criminal justice, and I was wondering if you could talk a 
little bit about that.
    Mr. Kahn. I would be happy to. I am of counsel to one of 
the largest law schools in San Diego, the Thomas Jefferson 
School of Law, school acting dean of the school, and chairman 
emeritus. For the past 15 years, I have served as a trustee of 
the Criminal Justice Legal Foundation, the only full-time 
organization in the country to stand side by side with all the 
United States attorneys and district attorneys of the United 
States on major criminal matters.
    Ms. Bass. You are also a deputy sheriff reserve, right? And 
then you retired?
    Mr. Kahn. Yes, ma'am. I had a 25-year career with the San 
Diego Sheriff's Office, retiring at the rank of captain.
    Ms. Bass. When did you retire?
    Mr. Kahn. 1995.
    Ms. Bass. 1995. So, AB 109 was in 2005, I believe, and I 
actually was in the State legislature and was a part of AB 109. 
And so----
    Mr. Kahn. I recall that.
    Ms. Bass [continuing]. Wondering if you were aware of why 
AB 109 was passed, why it was an issue that was passed in 
California.
    Mr. Kahn. I know the highlights of it, but perhaps you 
could refresh my memory.
    Ms. Bass. Well, AB 109 and many of the criminal justice 
reform propositions that you mentioned was because the courts 
ordered the State of California to reduce the prison 
population.
    Mr. Kahn. Yes.
    Ms. Bass. The courts ordered and took over control, 
especially the healthcare of prisoners, because we were doing 
such a poor job as a State. And so, AB 109 was a response to 
reduce the prison population instead of the courts taking it 
over. So, several of the reforms that you mentioned--
Proposition 47 and some of the others--you know, the verdict is 
out. There was a report that was published just this month on 
Proposition 47, and the point of Proposition 47 was one of 
several measures that were led by communities to do criminal 
justice reform in California.
    And so, there is actually no evidence that violent crime 
increased as a result of Proposition 47. That is a report that 
was just released this month. There is some evidence that 
Proposition 47 impacted property crime and that property crimes 
have come up. So, when you were describing the crime rate, I 
mean, both the chairman and I are from the same State, but I 
did not recognize the State you were describing.
    Because, actually, this report that was also released in 
June of this month says that the California crime rates remain 
comparable to the low rates observed in the 1960s, even with 
dramatic reductions in incarceration. So, one of my concerns 
about some of the ballot measures that we have passed is that 
we have not passed the appropriate community-based programs to 
address that population, meaning reentry programs, and so we 
definitely need to do that. But I would just take issue with 
what I believed I saw was a relationship between doing criminal 
justice reform and a rise in crime when that does not really 
meet with, you know, what reports are coming out about the 
crime rate in California.
    Mr. Issa. Would the gentlelady yield?
    Ms. Bass. So long as I do not lose my time, I will.
    Mr. Issa. Could you stop the clock for a moment? Thank you. 
Because I have a question. Notwithstanding Mr. Khan's 
testimony, you are not disputing that the Federal caseload is 
rising in California, including criminal caseload, right?
    Ms. Bass. No, I am not disputing that.
    Mr. Issa. OK, I apologize.
    Ms. Bass. Because I do not know. I am not agreeing or 
disagreeing about that.
    Mr. Issa. OK. Because that was Judge Sabraw's testimony, 
and I think that the statistics that were given to us, which is 
the primary reason for today's hearing--and I understand that. 
We Californians will probably debate AB and SB and whatever 
forever. But I just wanted to make that clear, because I think 
that is important. And the gentlelady can continue.
    Ms. Bass. OK, so, reclaiming my time, let me be clear: I am 
not agreeing or disagreeing with that. I do not know that. But 
what I heard from the witness concerned me, because California 
is on a trajectory of criminal justice reform that I certainly 
hope is followed by our Federal Government, and that I think 
the verdict is out in trying to say that crime has increased, 
or the caseload has increased because of the criminal justice 
reforms, and that is the linkage that I felt that I heard from 
the witness.
    Mr. Johnson of Georgia. Would the gentlelady yield?
    Ms. Bass. Sure.
    Mr. Johnson of Georgia. Thank you. I agree with the 
gentlelady. I gleaned from the comments that that was the 
argument that was being made, and I thought that it was perhaps 
outside the boundaries of this hearing. I yield back.
    Mr. Issa. All time having expired, we now go to Mr. 
Cicilline.
    Ms. Bass. Thank you, Mr. Chair.
    Mr. Cicilline. Thank you and thank you to our witnesses for 
being here. I think, you know, all of us are generally inclined 
to support the recommendations of the Conference as it relates 
to additional Federal judges.
    I do think it is important to understand this request in 
the context in which we are currently living. And that is, you 
know, we have a President who has nominated--you know, we all 
understand Presidents nominate judges that reflect their 
political views. That is nothing new in America.
    But I think what we are seeing in this current 
administration is the presentation of judicial candidates the 
lack of qualifications and have views well outside the 
political norms. For example, one who made a comment that he 
supported conversion therapy and that transgender children are 
part of Satan's plan; another nominee who was incapable of 
articulating the Daubert standard of what a motion in limine 
even meant; another nominee who led efforts to bar local 
governments from taking down Confederate monuments; another 
nominee who during her confirmation hearing refused to say 
whether the Brown v. Board of Education was properly decided.
    So, I think those of us that are interested in responding 
to this demand always worry that this is not a normal moment, 
and some of the greatest concerns that many of us have are 
these lifetime appointments by this administration and the 
impact they will have on our country and on the society in 
which we live. And so, if you sense some hesitation, I hope you 
recognize that is the context.
    The second point I want to make is a point you made, Judge 
Sabraw, that this new influx of immigration cases is, just by 
definition, crowding the docket so that serious criminal 
cases--things like robberies of financial institutions; crimes 
of violence; drug trafficking; human trafficking; terrorism 
cases; hate crimes--are taking a lesser priority than these 
immigration cases.
    And in fact, the American Immigration Council reported very 
recently that violations of 8 U.S.C. Sec. 1325 and 1326, the 
entering the United States without documentation, have become 
the most Federally prosecuted offenses, consisting of almost 
half of the prosecutions in Federal court. Now, Attorney 
General Sessions in 2017 instructed Federal prosecutors to make 
entry-related prosecutions a high priority nationwide, and in 
April of this year he doubled down on this and issued a zero-
tolerance policy that required each United States attorney's 
office to prosecute all DHS referrals of illegal entry. So, 
this problem is only going to compound itself under the zero-
tolerance policy. And when you look at the determination this 
administration has made of prosecuting every single one of 
these cases and giving them a priority, my question is, what 
will that impact be, and is that reflected in the 
recommendations that the conference is making? Because this is 
all happening now.
    Has anyone looked at if these immigrations bills passed 
that have been proposed that we are going to vote on today, and 
there is zero-tolerance policy continues, I did notice that the 
places where you are asking for the greatest growth in Federal 
judges happens to be in the border States, which I am sure is 
not just a coincidence. So, I would like anyone who is willing 
to speak on what the impact is of this policy of charging every 
single person, even those seeking asylum, with illegal entry 
now becoming the highest reason for Federal prosecutions, the 
greatest number of cases, almost half the Federal docket, and 
it is going to explode even more? What will be the impact that?
    Both on your operations in the court, but also what is the 
impact on our country when you have to have half your docket or 
more of people who are fleeing violence from Honduras or El 
Salvador, fleeing to protect their lives, and that has to take 
priority over someone who has committed a violent crime or drug 
trafficking in communities where our constituents live?
    Judge Stengel. I think the----
    Mr. Cicilline. Judge----
    Judge Stengel. Sorry.
    Mr. Cicilline. No, I would love to hear from all three of 
you.
    Judge Stengel. I think the answer to your specific last 
question is, has the recommendation taken into account the 
recent policies by the administration? And the answer to that 
would be no. The assessment of the workload that we made was 
completed about 2 years ago.
    It is no coincidence, though, that there are 
recommendations for judgeships in a number of the border 
courts, because that has been a significant issue with the 
judiciary's workload for many years. And those have been unique 
among the judiciary. The workload in Southern California, 
Arizona, western Texas is very different from the caseload in 
the Eastern District of Pennsylvania or Ohio or other States or 
districts not near the border.
    Our judgeship recommendation takes a comprehensive look at 
addressing judgeship needs throughout the Nation, but clearly 
the immigration cases have for a number of years been a source 
of concern and a reason for our recommendation that the border 
States have additional judgeships.
    Mr. Cicilline. Could I just ask each of the panelists, does 
anyone disagree with the assertion that this policy of 
requiring prosecution and making it a high priority means that 
those other crimes that I have described will take less of a 
priority or will crowd out some part of the docket in a 
meaningful way? Judge Sabraw, do you have----
    Mr. Issa. All the judges may answer briefly.
    Judge Mauskopf. I think in some courts it may. I think it 
will definitely create a burden for every court that has an 
influx of these cases. And it will be up to the courts to 
determine whether there are efficiencies that can be employed 
to address these concerns or how best to effect it, and in many 
cases, it may affect the prioritization of cases.
    Judge Sabraw. The priority of district judges is with 
felonies first, and in the Southern District our felony filings 
have grown enormously: 62 percent in the last year. It is the 
felonies that can displace our ability to get to civil cases, 
which causes delay.
    To be clear, the zero-tolerance policy has an impact on the 
court, but it most dramatically impacts magistrate judges, 
because that is peculiarly within their jurisdiction. Where it 
occupies some of the district judge resources is, as a court, 
we would then begin to hear more and more appeals at the 
magistrate judge level for bond determination, and as a court 
our district judges have agreed to be on the wheel to hear 
misdemeanor trials.
    So, it does use additional judicial resources; there is no 
question. But I do want to be clear that our priority has 
always been with the adjudication of felony cases.
    Mr. Cicilline. Thank you. Thank you, Mr. Chairman.
    Mr. Issa. Thank you. And following up, because I think, the 
gentleman's question is a good one, you have an experience in 
your court with very large amounts of prosecutions, 
particularly after the Carol Lam replacement and the new 
policies during the Bush administration, where I think you were 
you were a little junior on the totem pole back then. You want 
to go through what efficiencies you have been able to find in 
the Southern District of California?
    Judge Sabraw. Well, we are a patent pilot court, thanks to 
the chairman, and----
    Mr. Issa. Well, thank Chief Judge Moskowitz for that.
    Judge Sabraw. Yes, absolutely. And as part of that process, 
we have engaged in determining how best we can process civil 
cases, for example. So, we use our magistrate judges for great 
resources; they handle settlement conferences and all of the 
discovery-related matters. We are active in case management on 
civil cases, so we try to set firm deadlines, including trial 
times, as Judge Stengel mentioned. When we adjudicate civil 
cases, we routinely set time limits. So, we believe we are as 
efficient as we can be in handling civil cases and processing 
them as quickly as possible.
    Mr. Issa. When Carol Lam was fired during the Bush 
administration for not prosecuting, for actually having, I 
guess, an infinite tolerance nearly for not the undocumented 
but particularly the coyotes, the caseload was reversed under 
the new U.S. attorney, and you then had a large amount, 
particularly of traffickers and to a lesser extent people 
coming across.
    My understanding is in San Diego you ``gang,'' if you will, 
those cases. One judge gets a long day of those cases, and a 
U.S. attorney gets a long day. Can you go through that process 
to the best, you know, put it into the record?
    Judge Sabraw. What is happening presently is in a state of 
flux. We are working with the U.S. attorney's office to 
establish the Operation Streamline process. We are the only 
border court of the five that does not currently have Operation 
Streamline, so we are using Arizona as a good example, because 
it is within the Ninth Circuit, and there is good circuit court 
case law as to what we can and cannot do.
    We cannot engage in mass shackling; we have to have a full 
and robust Rule 11 plea colloquy with each of the persons 
appearing. That imposes limitations on our ability to handle 
large numbers of cases. Arizona, for example, caps out its 
processing at 75 per day----
    Mr. Issa. Per judge?
    Judge Sabraw. Per magistrate judge. They dedicate one 
magistrate judge to one courtroom, and they do 75 misdemeanor 
cases per day. We likely will model parts of our system after 
the Arizona system. It will occupy one, perhaps two magistrate 
judges per day, one or two courtrooms per day, and then, as I 
mentioned, the shift in the workload for district judges is the 
amount of appeals and misdemeanor trials that will come from 
the influx of 75 to 100 misdemeanors.
    Mr. Issa. I am going to break in and ask Mr. Cicilline for 
a follow-up. So, if I understand the process both in Arizona 
and as it will be in San Diego and other areas, the initial 
front end of the processing--the decision that there is zero 
tolerance; that everyone who breaks the law is held accountable 
to either plead guilty and leave or plead innocent and go 
through a process, first with the magistrate, and if they 
really want to, with an Article III judge--the front end of the 
process is pretty efficient.
    You can plead out and be gone very quickly, but there is a 
record rather than simply a removal with no records so that 
somebody coming in six, seven, eight times technically has 
never been convicted of a misdemeanor. That is the difference 
that this 75 a day in front of a magistrate creates. Is that 
correct?
    Judge Sabraw. Yes, it is front-loaded, by and large. Most 
of the misdemeanants will enter a guilty plea and be sentenced 
and then serve 15 to 45 days.
    Mr. Issa. Or just they are already gone that long; they are 
out.
    Judge Sabraw. Yes, it could be a time served sentence. Some 
of the defendants may elect not to plead guilty, and there the 
U.S. attorney has the ability in certain cases, depending on 
criminal history and number of prior illegal entries, that they 
can then charge a felony, the so-called FLIP cases.
    Mr. Issa. I do not want to deal with the zero tolerance, 
but I do want to deal with the process, if you will, because I 
think that is where there is an important question that lead to 
zero tolerance. If you have a zero tolerance, and people 
continue to come across the border, eventually, these are not 
misdemeanors but rather repeat offenders who are charged with 
felonies. Is that correct?
    Judge Sabraw. Yes.
    Mr. Issa. So, if you do not have zero tolerance, you never 
get to the felony, and you end up with people who are not 
dissuaded from continuing to come over the border until they 
get away with it, basically. Correct?
    Judge Sabraw. Well, I am not in a position to comment on 
the charging decision. It is my understanding that if a person 
has a number of prior illegal entries and no prior criminal 
history that they may be charged on a felony count. I am not 
certain of that, but there are many nuances in that regard.
    Mr. Issa. Sure, but you have certainly seen cases where 
somebody is habitual and is being charged with a felony, is 
that correct?
    Judge Sabraw. From my understanding, the government in the 
past has focused on recidivist offenders, those with underlying 
criminal history, or those who are committing a felony in 
addition to illegal entry, like smuggling drugs.
    Mr. Issa. Smuggling drugs or the actual coyote activities 
of bringing people across.
    Judge Sabraw. Yes.
    Mr. Issa. Mr. Cicilline, did you have a follow-up?
    Mr. Cicilline. Yeah, I just want to make one point. This 
front-ended position, which I think you are questioning, Mr. 
Chairman, suggests it was sort of a routine or efficient 
process. I want to just underscore the entry of a guilty plea 
or a plea of any kind and the advisement of rights, 
particularly with the use of a translator--this is a labor-
intensive process that has to be done well and cannot be done 
in large groups. And having practiced criminal law for many, 
many years, the initial appearance, the bond determination, and 
the plea is a time-intensive process that for 75 or 100 people 
is an enormous devotion of resources. So, I wanted to make that 
known.
    Mr. Issa. And I will give you additional time. But the 
reason I asked the question the way I did is that policies 
change from time to time. My question, and the nature of this 
hearing, is making the case for the need for 66 additional 
judgeships. And so, that is why the question is, how much time 
does it take, and where are the efficiencies?
    And that is why when Judge Sabraw answered that the vast 
majority of this goes to magistrates, I think for Judge Stengel 
that means that there was not a lot loaded into it for the 
front end. Only for those who then obviously want to be in 
front of an Article III judge, which is part of his calculation 
and I think part of your statistics. But you do have one more 
follow-up.
    Mr. Cicilline. Yeah, the second point I wanted to make is, 
you know, early this morning on this very subject we had an 
official statement from the President of the United States by 
way of Twitter, which is a statement of the President----
    Mr. Issa. Without objection, that statement will be placed 
in the record.
    Mr. Cicilline. No, I would like to place it in the record. 
``We should not be hiring judges by the thousands, as our 
ridiculous immigration law demands. We should be changing our 
laws, building the wall, hire border agents and ICE, and not 
let people come into our country based on a legal phrase that 
they are told to say as their password.'' Of course, everyone 
is free to interpret that in any way you want, but I thought it 
should be part of the record.
    Mr. Issa. And without objection, it will be part of the 
record.
    [The information follows:] https://docs.house.gov/meetings/
JU/JU03/20180621/108453/HHRG-115-JU03-20180621-SD002.pdf
    Mr. Issa. Mr. Johnson, you had one final follow-up.
    Mr. Johnson of Georgia. Thank you, Judge Sabraw. So, Ninth 
Circuit practice is 75 cases per day per magistrate under 
Operation Streamline.
    Judge Sabraw. That is the Arizona district court practice.
    Mr. Johnson of Georgia. Which probably the Southern 
District of California will adopt?
    Judge Sabraw. We are looking at that issue.
    Mr. Johnson of Georgia. An average magistrate works, what? 
About eight hours a day?
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia. Including lunch for the hour?
    Judge Sabraw. It depends on their duties.
    Mr. Issa. The hardworking magistrates in the Southern 
District would probably say they work far beyond that.
    Mr. Johnson of Georgia. Well, I think, just taking it from 
the standpoint of eight hours a day, 75 cases per judge per 
day, that equals about 6 minutes per case. And for a 
misdemeanant coming before the magistrate for a determination 
as to whether or not they are going to plead guilty or not 
guilty, an arraignment hearing is basically what it is going to 
be. Correct?
    Judge Sabraw. Yes, it could include an arraignment, an 
advisal with respect to a Rule 11 plea colloquy.
    Mr. Johnson of Georgia. And so, in other words, you advise 
them of the charge; the nature of the charge; the sentence or 
the range of punishment that could be imposed if they plead 
guilty; you find out whether or not they can understand the 
proceedings, and if not, you have to offer an interpreter. Is 
that not correct?
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia. And then, once the interpreter is 
in place, and they understand that what they are accused of and 
the range of punishment, they have to be advised of their right 
to counsel, is that not correct?
    Judge Sabraw. Yes. The process contemplates many of our CJA 
attorneys and Federal defenders who are Spanish speakers, and 
it allots a period of time early in the morning for those 
attorneys to meet and counsel their clients prior to being 
brought into court. So, the court session often occurs much 
later in the morning or first thing in the afternoon.
    Mr. Johnson of Georgia. So, these misdemeanants will have 
already spoken to lawyers before they get to the magistrate 
judge for their arraignment?
    Judge Sabraw. It depends on the court, but that is the 
system that we are contemplating.
    Mr. Johnson of Georgia. Are you going to have to ramp up on 
your public defenders?
    Judge Sabraw. Absolutely do.
    Mr. Johnson of Georgia. Do you know whether or not funding 
is in place for that?
    Judge Sabraw. There presently is, but we are in discussions 
now with Federal defenders and CJA panel attorneys to staff 
this influx.
    Mr. Johnson of Georgia. In addition to being advised of the 
charges against them, the range of punishment, the consequences 
of a plea of guilty or not guilty, they also have a right to a 
trial in the case. Is that not correct?
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia. They have a right to a trial by 
jury.
    Judge Sabraw. Not on misdemeanors. It would be a bench 
trial.
    Mr. Johnson of Georgia. Not on a misdemeanor? OK. And they 
have a right to a bench trial, which would mean witnesses would 
have to be brought in to testify against them to make the case 
as to whether or not they illegally entered the country or not. 
Is that not correct?
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia. And the person, during their 
arraignment, has to be advised that if they cannot afford an 
attorney an attorney must be appointed or can be appointed to 
represent them if they so request.
    Judge Sabraw. They are counseled by their attorney, and 
they are admonished by the court.
    Mr. Johnson of Georgia. So, if all of these misdemeanants 
charged with illegally entering the country choose to go to 
trial, then the magistrate would have to transfer the case to 
the district court for trial?
    Judge Sabraw. That would depend on the court. Misdemeanors 
can be exclusively handled by magistrate judges, so in some 
districts the magistrate judges do all of this work. In our 
district we are a very collaborative group, and our district 
judges have agreed to be on the wheel to handle misdemeanor 
trials.
    Mr. Johnson of Georgia. And then, after a trial, if the 
person accused is found guilty, they have a right to appeal a 
conviction of a misdemeanor, is that correct?
    Judge Sabraw. Yes.
    Mr. Johnson of Georgia. And then, while they are appealing 
the conviction, is there a right to bond for a misdemeanant 
convicted of a misdemeanor?
    Judge Sabraw. There can be, yes. That is a consideration 
that is available in all cases, including felonies.
    Mr. Johnson of Georgia. OK. Thank you.
    Mr. Issa. Thank you. Now, I am going to ask the question we 
have all been waiting for. Judge Sabraw, we have a wall in San 
Diego. If we build the wall, do we not in fact reduce the 
amount of people who are in the country because they are 
apprehended outside the country? In other words, one of the 
virtues of the wall is in fact to allow the Border Patrol to do 
their job, notwithstanding people who claim asylum and so on. 
But for people who are coming over, particularly in our region, 
the wall in fact provides some of that situation in which you 
do not have to hear the cases. Is that not true? As a San 
Diegan?
    Judge Sabraw. I would not be able to speak to that. I do 
not know. I am simply there as a judge to adjudicate the cases 
that come before me.
    Mr. Issa. Well, the President did tweet out today, ``Build 
the wall.'' I have been down to the border, and I would hope 
that all the Federal judges would take the opportunity to see 
the work that is done at the border, at least for purpose of 
civil rights, and recognize that the three-fence system does in 
fact dissuade people from getting over the border.
    A couple of quick questions in closing. We went through 
this whole question of bond, but people who enter the country 
illegally have no attachment to the United States by definition 
in most cases. In other words, the people you see in your 
court, and the magistrates see, they are not in fact connected 
in the United States.
    They do not typically have a business; they do not 
typically have a home; they do not typically have other things 
which would cause them to meet the normal criteria to be 
entitled to be not a flight risk. Are those not some of the 
criteria you have to work with? Any of the judges.
    Judge Sabraw. That is exactly right. Those are flight risk 
characteristics you look to.
    Mr. Issa. And the statistics that are available from the 
Department of Justice will be placed in the record if there is 
no objection, because I believe that they are telling that the 
reality is if you release these people, they thank you very 
much for the opportunity to accomplish what they came to 
accomplish, and you do not see them again, because the only 
penalty if they get caught is the same penalty that you were 
going to deliver to them anyway, which was removal.
    Mr. Issa. I want to go into one final area very briefly, 
because we are going to put some proposed legislation out to 
deal with your requests for 66 judges. What we find, of course, 
is 17 will be in California and the rest of the Ninth Circuit, 
and five will be appellates of the Ninth Circuit. So, the 
greatest single area happens to come to the largest court.
    Currently, there are over 30 judges on the Ninth Circuit. 
As a matter of fact, I think there is going to be right close 
to 40 if we add these five additional appellate judges. So, 
Judge Stengel, in your circuit, how many judges are on your 
appellate court?
    Judge Stengel. We have, I believe, 14 judgeships en banc.
    Mr. Issa. Fourteen? And they meet en banc infrequently, but 
they do meet en banc.
    Judge Stengel. Several times a year.
    Mr. Issa. And, Judge Mauskopf, how many are on yours?
    Judge Mauskopf. I do not know the exact number, I am sorry 
to say.
    Mr. Issa. But you have seen your cases go before both a 
three-judge panel and an en banc?
    Judge Mauskopf. Yes.
    Mr. Issa. And, Judge Sabraw, do you have any similar 
history in the Ninth Circuit?
    Judge Sabraw. We have 29 active spots, and the request, of 
course, is for five additional.
    Mr. Issa. Active spots? I think there are 33 authorized, 
though, are there not? I think there are vacancies.
    Judge Sabraw. My colleagues can correct me, but I thought 
there were 29 active.
    Mr. Issa. But the reality is that they do not do full en 
bancs. They have never done--during your now-long tenure as a 
Federal judge--29 judges meeting to consider a case. So, there 
is no such thing as full en banc in the Ninth Circuit.
    Judge Sabraw. It is an 11-person panel.
    Mr. Issa. So, you get a mini self-selected, who is 
available, who wants to take these cases, with no particular 
flavor being definable as the decision of the Ninth Circuit, 
correct?
    Judge Sabraw. My understanding is it is a random computer-
drawn allotment of 11 judges.
    Mr. Issa. OK. So you get random justice in the Ninth 
Circuit.
    Judge Sabraw. Well, I think the computer simply identifies 
11, and they may be situated anywhere within the Ninth Circuit.
    Mr. Issa. During the post-retirement tenure of Byron White, 
Justice White, he did a commission that suggested breaking 
administratively the Ninth Circuit into functional subsystems, 
each of which would be able to have en banc with its then-9 or 
-10 judges.
    And I would like each of you to comment on whether, 
assuming that we do not break up the Ninth Circuit, as there 
are bills to do, but rather administratively create in this 
case--Justice White's thoughts--three divisions, each of which 
would be about 11 or 12 judges. Could I get your opinions on 
whether you think that would be an improvement over the 
randomization of a very large circuit today?
    Judge Stengel. I do not know if that would be in 
improvement as a matter of judicial administration. We can 
speak only to the caseload demand and the need for judgeships. 
However those would be split up, if there was to be some 
legislation, we would support the needed resources which have 
been demonstrated by our study throughout the Ninth Circuit. 
And certainly, those could be split up if the Congress would 
choose to do something.
    Mr. Issa. And I want to follow up briefly, because you have 
studied the utilization of resources.
    Judge Stengel. Yes.
    Mr. Issa. The Ninth Circuit, after the additional five 
judges, will be larger by a factor of two than any other court. 
In the case of each of your two circuits, would you support 
combining your circuit with some other circuit to get the same 
efficiency the Ninth Circuit has, which is the alternative to 
dividing it?
    Judge Stengel. I am afraid that may be above my pay grade.
    Mr. Issa. But from an efficiency standpoint, is there some 
magical efficiency that the Ninth Circuit gets that your 
circuits do not?
    Judge Stengel. I am not aware of any.
    Mr. Issa. So, the idea of ``bigger is better'' does not 
particularly play in the Eastern District.
    Judge Stengel. Well, in the Third Circuit----
    Mr. Issa. The Third Circuit, right.
    Judge Stengel [continuing]. Certainly, the processing of 
cases is different circuit to circuit. The 11th circuit, for 
example, has some unique case management approaches.
    Mr. Issa. But I am talking about the--it is really the 
efficiency of the appellate level in addition to. Obviously, 
the Ninth Circuit has a lot more judges to move around.
    Judge Stengel. Right.
    Mr. Issa. That is one of the benefits that they talk about. 
And I will close, because we are going to go vote, and I do not 
want to keep you. And the gentleman has a couple of very short 
points. If you would respond for the record on if you see any 
efficiencies in combining adjacent circuits to be more like the 
Ninth Circuit versus some sort of administrative breaking up of 
the Ninth Circuit to enjoy the same sort of en bancs as your 
two circuits enjoy, I would appreciate it. And Judge Sabraw, 
you live with it, so any comments you have would be fine.
    Judge Sabraw. Well, I am not on the Judicial Resources 
Committee, so I do not have the numbers.
    Mr. Issa. I am not forcing you to answer, though.
    Judge Sabraw. All I would say is that I think the 
efficiencies are the same circuit-wide. What the Judicial 
Resources Committee is doing is simply looking at adjusted 
filings in the circuit court and then empirically assigning a 
number of judgeships that are needed. Whether Congress elects 
to split or divide circuits is within your prerogative.
    Mr. Issa. And so, 1 minute, because we have 3 minutes left 
on the clock across the dome.
    Mr. Johnson of Georgia. Thank you. Yes. Judge Sabraw, with 
the 6 minutes per case that a magistrate would get to spend 
with a misdemeanant accused of coming across the border--75 in 
one day. So, assuming 8 hours a day, about 6 minutes per case, 
and arraigning that misdemeanant, advising them of their 
rights, the nature of the charges, punishment that could 
happen--you also have to consider a bond within that 6 minutes, 
too. Is that not correct?
    Judge Sabraw. What the system contemplates is that the 
attorneys play a very active role at the beginning, which is 
critical, and they advise their clients of all of their rights 
and the consequences.
    Mr. Johnson of Georgia. If there are no attorneys involved, 
though, then you are just dealing with a pro se litigant. And 
that may in fact happen frequently, do you think?
    Judge Sabraw. In our district it would not. All of the pro 
se criminal defendants are entitled to counsel, so they are 
well counseled by Federal defenders and CJA attorneys.
    Mr. Johnson of Georgia. And there is a possibility that 
there could be an agreement as to bond for the person accused, 
and if no agreement, then the magistrate would have to consider 
whether or not to grant bond or not.
    Judge Sabraw. The vast majority of cases will resolve in a 
misdemeanor disposition, so bond is not considered in that 
respect, because the defendant has elected to plead guilty, but 
for those who want to stand on their constitutional rights, 
then they may press the bond issue.
    Mr. Johnson of Georgia. One last question.
    Mr. Issa. The gentleman will have to be extremely brief, 
even if he runs fast.
    Mr. Johnson of Georgia. I mean, a person coming across the 
border, just because they are coming across the border does not 
mean that they do not have ties to the community.
    Judge Sabraw. It does not. Many of them do.
    Mr. Johnson of Georgia. Yes. Thank you.
    Mr. Issa. Thank you. I want to thank our guests for their 
patience and their brevity, which allows you to enjoy your 
lunch. The only thing I will say in passing is if any of you 
would like to enjoy a lunch at the members' dining room, I am 
happy to sponsor it. My staff will take you over there. If you 
have better plans, then I thank you for your service both to 
our country and to the Congress.
    Mr. Johnson of Georgia. Am I included, Mr. Chairman?
    Mr. Issa. Sure, you have got an account there. We stand 
adjourned.
    [Whereupon, at 11:59 a.m., the subcommittee was adjourned.]
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