Joining us for this episode of She Thinks, guest-hosted by Jennifer Braceras, is Congressman Darrell Issa, representing the people of California’s 50th District in the U.S. House. Look behind the sensational headlines about court-packing to learn about reforms that might actually improve the functioning of our federal judiciary.
Congressman Issa is a senior member of the House Judiciary Committee and the House Foreign Affairs Committee. He has championed smart, limited government, advanced legislation to balance the federal budget, and promoted transparency to hold the government accountable to the people. Tune in!
Hi everyone. I’m Jennifer Braceras from the Independent Women’s Law Center. Today, I have the great privilege of speaking with Representative Darrell Issa about what is in my view, the foundational issue of the day. The issue that impacts all others. And that is the federal judiciary.
Congressman Issa, who represents California’s 50th Congressional District in the San Diego area, has been a leader when it comes to issues involving the federal courts. He is a senior member of the House Judiciary Committee and the House Foreign Affairs Committee and served as Chairman of the House Oversight and Government Reform Committee from 2011-2015.
Thank you for joining us, Congressman Issa.
Rep. Darrell Issa:
Well thank you, Jennifer, for having me on and thank you for the interest in the courts.
You know one of the things that I find rather odd in our Constitution in how we’ve gotten where we are, in the words of the late Justice Scalia who said, “We are designed to react in all cases. We are never designed to reach out and do or take anything.” And when he first said that, I was really just thinking about cases where Justice Scalia would say, well look, we can only decide on the case you got to us. If you don’t get the right case to us, you don’t get the answer you want even if it is out there waiting to be heard. But the same is true in the organization, the size, the pay, the administration. So much of what the court can do cannot be decided by the courts. Even whether they have daycare available for officers and employees of the court, is in fact falls constitutionally to Congress. And so I take that very seriously as we contemplate all the things that should be done to make the court work better.
That’s a very good point. And I think it’s one that most people don’t realize. And also, I think that so many Americans are focused on the Supreme Court and pay a lot of attention when there’s a Supreme Court resignation or vacancy. Everybody tunes in and watches the confirmation hearing and cares about the process. But the rest of the time, most people who aren’t lawyers are going about their lives and not paying attention to who’s being nominated to the lower federal courts and not paying attention to what provisions Congress is making for the administration of the courts. But I wonder if you could explain why it’s an issue that people should care about. Why judicial nominations and confirmations and the administration of the courts are something that in my view, really is foundational. That ends up impacting everybody.
Rep. Darrell Issa:
Let me give you one that is the esoteric beyond the esoteric. Unless you live in the Eastern District of Texas, you probably aren’t aware that there’s more than a cottage. There’s a large industry that has been built around patent litigation. We all get up every day, thinking about how important intellectual property is, and we understand that we buy things based on brand name. We understand that the portfolio of patents or technology that makes Apple or some other company, IBM, successful and repays them for their innovation. Not the least of which we were having a discussion, of course, about the patents on the vaccines that have been developed for COVID as we speak. But most people don’t know that, under the current setup that Congress has created, it is possible and every day, more than half those cases end up before a handful of judges in one small part of the country and not particularly a high tech area. The Eastern District of Texas, Tyler and Marshall, Texas, is not a treasure trove of R&D. But in fact, they find a few judges that are sympathetic to plaintiffs who typically have patents but typically don’t practice. Meaning, they’ve gotten some patent but they’re not the company that developed it and so on.
That sounds ridiculous, but it goes beyond the judges because the misbehavior, in my view, of a couple of judges who take these cases and seem to lopsidedly decide them based on what are often called patent trolls. The Supreme Court and all of the higher courts are in this case unable to change the law that causes that to be a legal transaction. And they tried. We’ve passed some laws. The courts have tried to uphold it. But these cases continue to be before a handful of judges. And because of the nature of patent cases, it can be extremely expensive to go through trial the first time. It is even more expensive to get to the federal circuit to run appellate court for them. And few, if any cases, are typically granted cert by the Supreme Court. As a result, if you get railroaded there, you’re more likely to pay a billion or more dollars if you’re a company like Intel or whatever, than to take your chances on the rest of the process. Happens every day. Congress created the situation and Congress is going to have to change it.
So that goes beyond just picking a judge because, as you know, we choose judges for life and for whatever reason, that’s probably the only way that we can keep an independent judiciary—is to have the judges not find themselves at the whims of who the next President of the United States is and the next Congress. But having said that, as we’re looking to expand the court, we also have to look to level the playing field for private individuals and businesses so that they can have a greater chance of getting an impartial judge than they currently have. And I’m only giving that one example but we could go through a myriad of situations in which if you shop the right region of the country, you can get a different answer very often. And for better or worse, that’s a bad thing to have in the courts.
So let’s stick with that example for a moment. I know that you yourself are the holder of multiple patents. And I wonder what would be your proposed solution to that problem that you identify with forum shopping for certain judges?
Rep. Darrell Issa:
Well the current, last set, of legislation, and I was here for some of it, was clear that we wanted the plaintiff to have to go to … And this is a non-practicing plaintiff, to go to where the defendant’s principle place of business is. If you’re a practicing, let’s just say you’re actually making product that’s under the patent, you’re entitled to be where you make the product. But those are the two forums that Congress has given that you can sue where you make the product if they have any nexus to that region. And you can certainly sue where that business is principle location is. The challenge … And if that company is located outside the United States, then you’re free to go anywhere within the United States.
So we have a set of rules, but in spite of repeatedly doing it, we have found ourselves still with this heavy caseload before just a few chosen judges. So that’s an example that I think goes beyond just choosing judges. We’re going to expand the court in the years to come though. And one of the challenges is going to be to make sure that the expansion is level. We want to make sure that if you’re living in … I don’t know, let’s call it Kennebunkport, Maine, for example, that you have a reasonable expectation that the federal court works for you there just as it works for you if you live in San Jose or New York City. And so part of the challenge is to make sure that we have sufficient judges in each area and that the caseloads are appropriate to that region. And forum shopping is one of the things that Congress is going to be dealing with. But as we’ve been asked by the judicial conference on behalf of the Chief Justice to add roughly 70 new positions at the district court Level. We’re going to have to consider making sure that we allocate these judges to the right area and that the cases follow those judges. So the caseloads not be unfairly too great or too low somewhere else.
And Jennifer, as you know all too well, the reason for that is that old axiom that justice delayed is justice denied. The most important thing in America, of course, is the outcome being fair and appreciated by both parties to have been impartial. But if it’s delayed excessively, it can tilt the scale. Even if the eventual outcome might be right, many people can’t wait eight years to get through an antitrust case or even longer in some cases.
Right. I agree with that but what I think is interesting, the Judicial Conference’s proposes, as you said, more than 70 new judgeships. I’m not sure, however, that having more bodies in black robes solves the problem because as you know, and I’ve clerked for a couple of different federal judges, every judge runs their bench. They run their courtroom their own way. There’s no requirement that a judge get through a certain number of cases a year. Some judges take lots of vacations. Some judges try cases every day. Some judges don’t.
And it seems to me that if one wants to expedite the administration of justice, there are other rules or procedures that could be put in place. Visiting judges can be used, for example, in districts where … that are overloaded. You know the chief judge can implement certain workload processes. I’m not sure that adding dozens and dozens of new district court judgeships necessarily solves the problem. What’s your take on that?
Rep. Darrell Issa:
Well I couldn’t agree more that modernization of the court, a better and more uniform expectation for the load that a judge will take, in other words, the work ethic … The Constitution intends the judges to have a lifetime appointment based on good behavior. To me, good behavior includes coming to work and doing the job.
And I’ll just give you an example. Amy Bermham Jackson, Judge Jackson on the DC Court, violated no local rules when she took approximately seven years to bring to conclusion the case of holding Eric Holder in contempt to Congress. She took more than a year just to decide whether she was going to, essentially, give a standing. And of course, as it delayed, Eric Holder left office, even President Obama left office before the conclusion. So an example where theoretically, the United States House of Representatives, one of the most powerful bodies on Earth, was stymied by a judge who took dramatically longer on a case that was pretty similar to the one that Judge [Batesman 00:13:07] decided on behalf of the opposite party of Congress years earlier. The question of standing had been decided. But, she decided to ignore that and look at it slowly and carefully with plenty of time off for her own personal challenges in life. So I’ve been personally frustrated in a sense, an officer of the court, by being the plaintiff in that case. I’m very aware that we need some reform.
One of the challenges in the reform though, Jennifer, that I think is so important, is that we have created a great many magistrate judges. And we do not use magistrate judges nearly as much as we should. We do not have, if you will, from region to region, uniformity in what they do. And so one of the things that my committee is considering as we speak, is that although the Conference has asked for these additional judges, they really haven’t given us all of the facts that we want to have in order to decide can we harmonize the rules?
Some of the cases that are the worst, for example, antitrust cases. Some years ago, we instituted what was called the Patent Pilot Program which helped to streamline the process of patents getting to judges who were both interested and were willing to put the time into these complex cases. Antitrust seems to beg for a similar process. And so this idea of modernizing the court by including, and I’ll call it quasi specialization, is going to be considered in the months to come. As will recognition that so much of the caseload really doesn’t need to be in front of the judge, him or herself, initially. And that many of the trials could be very much done not by a Article III judge. So all of these things are going to be put into the mix.
The other thing is that there are modernization techniques that need to be used that the court is reluctant on and that goes from if you [inaudible 00:15:41] at the appellate level, cameras in the courtroom. It goes to the publishing of opinions and making them free and available. The list goes on and on of all the things in which the court has a tradition of moving slowly, but not moving uniformly. Congress has the right to say you can make your rules, or that we will make some of the rules. But we certainly have a right to say that those rules must have a uniformity so that a plaintiff and a defendant can have somewhat even playing fields.
And as you know, having clerked for judges, although each judge runs their courtroom as they see fit, they are held to the guidelines given in the district and the circuit. And those circuits should not be different as to rules because, by definition, it means that an attorney practicing is at a disadvantage if they’re an out-of-towner. And I can understand in state court why that might happen. But there’s no reason that once you’ve practiced before the Federal Bar that you should have to relearn every time you go into a different region of the country. Particularly, when you may be dragged there as a corporate lawyer, you may be dragged there on behalf of a client from place to place. You should still … You might see different judges but you should see a court that operates much more similarly, particularly as to time schedules.
Right. So is it fair to say that of these 70 some-odd judgeships that the Judicial Conference has requested that you’ll consider all of the requests but that Congress, and your committee in particular, is not just going to rubber stamp that request. You’re going to look long and hard at exactly what’s needed in what district and whether or not they can combine that additional personnel with some modernization and reform.
Rep. Darrell Issa:
I think you said it very well. I’ll add just two small things to it. One of them is that there is a split between the majority and minority. The majority actually under subcommittee Chairman Hank Johnson has proposed nearly twice as many slots as were asked for by the court. And without being unfair to my subcommittee chairman, he feels very strongly that this is his party and his President’s time to expand the court in their vision and that includes some outright proposals that there isn’t enough diversity and that this is their chance to create that diversity.
So let’s talk about that a little bit. I mean I know that you’ve said that any legislation expanding the size of the court should delay the creation of new judgeships until 2025 or stagger the appointments over the course of several presidential terms. That makes eminent sense to me because people should know when they go and vote for presidents that this person’s going to have X-number of judgeships to fill or an approximate number of judgeships to fill. And we hear a lot about packing the Supreme Court but it seems to me that if President Biden is given an opportunity to appoint 100 new district court judges, even with the advice and consent of the senators in those states, that that’s another form of court packing. Would you agree?
Rep. Darrell Issa:
Oh, totally. It would be court packing if we allowed it. And it’s not that this hasn’t been viewed before. Three years ago, my legislation based on an earlier request anticipated exactly that. That if passed, it would have taken effect after the election we just had. Which, oddly enough, was one in which I was saying, no, Donald Trump could not get to take advantage of these additional slots unless he was reelected. Oddly enough, [crosstalk 00:20:15] –
Well, because what’s good for the goose is good for the gander, right? I mean these rules should apply universally no matter who’s in power.
Rep. Darrell Issa:
Exactly. Good for the country. And as it turns out, had the Democrats embraced my bill wholeheartedly and it got passed through the Senate, there would be some 60 new slots both at the district and a few at the appellate level, that would be available to this president. This president, by the way, has approximately 100 vacancies as we speak today where judges have retired or taken senior status and more coming all the time. And so it’s not that President Biden in the next 18 months isn’t going to have an opportunity to put a substantial amount of his views into the court. It’s just that it has been more than … Well, it’s been since 2005 to have any expansion of the court. And twice that since in the 90’s when we had the last major expansion in the court. When you only do these things every 20 years, there’s certainly no reason that you can’t phase them in in a way that lets multiple senates do the confirmation process and potentially multiple presidents participate.
Having said that, we do have a challenge in the court. Caseloads are going up. The times to get your day in court, particularly if it’s not a criminal case, are going out in length. And the Supreme Court continues to take, in total, less cases which means that if you don’t get it right the first time and you don’t get it right at the appellate court, their chances of getting it reversed or made right by the Supreme Court go down. And I think that’s one of the most important things that people are looking at is, if you have very little chance, then you’ve got to get it right at the district court and you’ve got to get it timely.
Right. And in terms of appointing individuals to the lower courts, both in the district court and to the courts of appeal, the Democrats in recent months have made a big deal about diversity; that that should be a primary factor in who the president selects and who the senators help him select for those positions. What is your take on that?
Rep. Darrell Issa:
Well, I think it’s important that the court start off reflecting people who have … I will include youth, youth being the bigger to serve 20 or more years because that’s in the best interest of the country that judges serve for a longer period of time, not a shorter period of time. Secondly, that they have a background education and capability. And third, that they reflect in total the best of America’s diversity.
And I think, I always put it third because first of all, if the audience of people under 50 or under 55 who have good experience, efficient experience in whatever as a trial court lawyer or as a partner working administrative law of some sort, that’s the first thing that I want to look to in a judge’s capability. But the second one and probably [inaudible 00:23:54], many of these judges have already been judges in state court.
But then the second part, I think, is so important, that we not exclude anyone. Famously, Richard Nixon asked the promotion of a number of officers why there was not a single African-American. And when they came back, they came back with Colin Powell as a highly qualified, fine officer, who then was favorably considered. So I’m not beyond sympathy to legitimate questions of is the mix in some way wrong for some reason? Perhaps just overlooking. But having said that, that’s not what’s going on. They’re specifically looking for qualities that they want to reach out to, they want to specifically rebalance the court rather than looking through the best and the brightest that have applied and asking from that group, is there something missing? Or why is there something missing?
Jennifer, I’ll make it clear that one of the challenges that I think we all face is that the biggest question is, if there were more women going to law school and practicing law, why are there not an equal amount, at least, of women on the courts? And the answers are complex and need to be looked at. But on the day that an equal number of men and women apply for the court with equal qualification, I certainly want to see and hope their president would give equal consideration. That’s not what’s going on now. They’re looking for set-asides for specific, what they would call, need to create or deal with past wrongs. And that usually causes you to grab people out of tokenism rather than the best and the brightest.
Well, unfortunately, sometimes, I believe that diversity for the left is a pretext for left-wing ideology. And, in fact, many members aren’t that interested in diversity when it comes to Republican nominees. I’m old enough to remember how the Senate treated Miguel Estrada when he was appointed to the US Court of Appeals for the District of Columbia. I’m certainly old enough to remember how they treated Clarence Thomas. And so diversity is one of many important qualities that I think politicians can rightfully consider when making appointments. But let’s not pretend that what the Democrats are proposing here is really about representation. In my view, it’s not.
Rep. Darrell Issa:
No, it clearly isn’t. And one of the other things that I think that my Democratic friends often don’t give enough credit for is that trendlines are in fact to be considered for whether we’re becoming or transitioning to where somebody thinks we should be. When you look at, and I’ll just give you a number that I happened to look up for this interview, in 2020, 37.4 percent of lawyers were females and 62 percent were men. If we go up into mid-career and higher career, the number of women drop off. That is a decision based on who applies to law school and then who practices and continues to practice. You can’t fix that by reaching out and saying we’re going to engineer changes. You can only say let’s look to find those people who apply who have the background and experience, have taken the time. I happen to be in the Southern District of California. We have a long history of some very good women on the bench. Our courthouses, or one of our two courthouses, is named for two women who served on the bench who were fairly early on in the process of federal judges being on the court in significant numbers.
Having said that, the example of Clarence Thomas is such a good example of … His problem was not that he was African-American, it was that he was conservative and they would set aside the fact that he was clearly a “diversity” candidate because they disagreed with his ideology. That is the most repugnant of all of the processes and the one that I think all of us need to reject.
Having said that, we have another problem in the court system that I’d like to make sure that we understand and that is, you notice I mentioned youth. The current retirement system in the court, the rule of 80, really does create a lot of pressure for judges who would very likely serve longer to make an economic decision that basically, they can take more than half of their pay and go on and do something else while they’re still young enough to do it.
I believe that part of the challenge in the court today is that the retirement system encourages … And they don’t all succumb to that. Many of those who take senior status and continue to take heavy caseloads are doing so essentially when they could do much better by going and being a [inaudible 00:29:45] or with some other advocate or judge. The fact is that we should look at everything including the court’s retirement system to say are we in fact encouraging the loss of judges three, five, or ten years earlier than we should?
Conversely—and I had this in my last bill and Justice Roberts, who did not like it—have we come up with a system to ensure that older judges are fairly evaluated for whether or not they can continue to serve effectively? And I say that because as you know, sometimes the most ideological judges remain the longest. But sometimes, many of the circuits are not very good at limiting cases or dealing with a judge who no longer cognitively are really able to handle the load. And we test for the president of the United States for his cognitive capability. We have no such similar test whatsoever. And we have had cases of judges who are well on their way to dementia who do not want to step aside.
Right -who are often propped up by their clerks who are not appointed and confirmed to these posts. It’s a very interesting point that you make. And I wonder, I mean obviously, judges have life tenure by the Constitution but would you favor a Constitutional Amendment to impose mandatory retirement at say 80? Or do you think just think that the circuits and the administrative offices of the court need to step in and play a bigger role?
Rep. Darrell Issa:
You know I tread lightly on touching what has worked for our Republic for so long. One of the reasons that I do support periodic physical and cognitive exams for judges at government expense, and then a decision, certainly not to be made public, but a decision by the chief judge of that circuit of that district as to what the caseload should be for that judge. I think that there’s a balance there that would help. I think that many judges don’t recognize their own shortcomings and they’re not going to recognize it unless there’s, what we used to call a come to Jesus meeting. And I think that we can … We in Congress have an obligation to say if you’re going to serve for a lifetime, it does create more questions of your physical and mental ability to do so. But that we need to do it in an apolitical way. So I continue to believe that that’s one of the reforms.
One of the other reforms I’d like to touch on briefly is how we fill slots. Currently, no slot may be put before the Senate for a judge until there’s a vacancy. What’s interesting about that is that’s not how we replace members of the House and Senate for the most part. Members of the House and Senate typically have a period of time in which they announce that they’re not going to run again. Or even if they’re defeated, there’s a smooth transition in which it’s only an hour’s time or less between the departure of a House member, let’s say, a House or Senate member, and his or her replacement. In the case of the president of the United States, there’s a statutory overlap of the two presidents so that there’s normally a smooth handshake on January 20th. The modernization of the court should anticipate the same thing.
And I believe strongly that judges at least should be able to declare their intent to take senior status or retire. And that, for example, a year ahead of time that should empower the president to propose to nominate a replacement which the Senate would be free to vet and vote on. And once they were voted on, in my opinion, they could take a temporary slot. Temporary only in the sense that the other slot has not been vacated. And if we did so, then what could potentially happen is legislative takes six months to fill a slot, you would have judges coming on four, six, maybe even eight months ahead of the retirement of their predecessor. They would be available to begin taking cases. It wouldn’t be a dramatic increase in the number but it would mean that for example, today, with 100 vacancies on the court, if instead of 100 vacancies you had 100 people giving notice that they were going to take senior status, you would then begin filling those slots.
From a human resource standpoint, just good business practice, that’s a better way to make sure that the court has the people and that they’re in place without a rise and fall in vacancies. And this is particularly important when you have a political environment in which many judges choose to retire only at a time when they believe that a like-minded replacement would be nominated. You and I aren’t going to change that likelihood, but we are in a position to create a smooth transition. So with the modernization it would mirror what we do for the president, what we do for the House and Senate. I believe we should be able to do that. And for that matter, what we do for cabinet positions where someone can notice that they’re leaving and the president can send to the Senate the replacement even before that individual has left. I believe we should be able to do the same thing for federal judges.
Interesting idea. And I want to thank you Congressman, for your leadership on this and all of these issues surrounding the courts. And, particularly, your commitment to reforms implemented in a nonpartisan way. And implemented in a way that impacts the ability of both parties to influence the courts in the same way. That’s something that’s really lacking these days, in many ways, with each side trying to use the courts as a political football. And your leadership in keeping the courts apolitical is greatly appreciated.
So thank you so much for talking to us about the federal courts today and for all you do on the judiciary committee.
Rep. Darrell Issa:
Thank you, Jennifer. I look forward to coming back with some status reports on what we’ve been able to accomplish.
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