- FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011

[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]

FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011

_______________________________________________________________________

HEARINGS

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ON APPROPRIATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
________
SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS
JOSE E. SERRANO, New York, Chairman
DEBBIE WASSERMAN SCHULTZ, Florida JO ANN EMERSON, Missouri
ROSA L. DeLAURO, Connecticut JOHN ABNEY CULBERSON, Texas
CHAKA FATTAH, Pennsylvania MARK STEVEN KIRK, Illinois
BARBARA LEE, California ANDER CRENSHAW, Florida
ADAM SCHIFF, California
STEVE ISRAEL, New York
TIM RYAN, Ohio

NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full
Committee, and Mr. Lewis, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
Lee Price, Bob Bonner, Angela Ohm, and Ariana Sarar
Subcommittee Staff

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PART 6
Page
Judiciary........................................................ 1
U.S. Supreme Court............................................... 83
General Services Administration.................................. 123

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Printed for the use of the Committee on Appropriations

PART 6--FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR
2011

FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011

_______________________________________________________________________

HEARINGS

BEFORE A

SUBCOMMITTEE OF THE

COMMITTEE ON APPROPRIATIONS

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION

________

SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS
JOSE E. SERRANO, New York, Chairman
DEBBIE WASSERMAN SCHULTZ, Florida JO ANN EMERSON, Missouri
ROSA L. DeLAURO, Connecticut JOHN ABNEY CULBERSON, Texas
CHAKA FATTAH, Pennsylvania MARK STEVEN KIRK, Illinois
BARBARA LEE, California ANDER CRENSHAW, Florida
ADAM SCHIFF, California
STEVE ISRAEL, New York
TIM RYAN, Ohio

________

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COMMITTEE ON APPROPRIATIONS

DAVID R. OBEY, Wisconsin, Chairman

NORMAN D. DICKS, Washington JERRY LEWIS, California
ALAN B. MOLLOHAN, West Virginia C. W. BILL YOUNG, Florida
MARCY KAPTUR, Ohio HAROLD ROGERS, Kentucky
PETER J. VISCLOSKY, Indiana FRANK R. WOLF, Virginia
NITA M. LOWEY, New York JACK KINGSTON, Georgia
JOSE E. SERRANO, New York RODNEY P. FRELINGHUYSEN, New
ROSA L. DeLAURO, Connecticut Jersey
JAMES P. MORAN, Virginia TODD TIAHRT, Kansas
JOHN W. OLVER, Massachusetts ZACH WAMP, Tennessee
ED PASTOR, Arizona TOM LATHAM, Iowa
DAVID E. PRICE, North Carolina ROBERT B. ADERHOLT, Alabama
CHET EDWARDS, Texas JO ANN EMERSON, Missouri
PATRICK J. KENNEDY, Rhode Island KAY GRANGER, Texas
MAURICE D. HINCHEY, New York MICHAEL K. SIMPSON, Idaho
LUCILLE ROYBAL-ALLARD, California JOHN ABNEY CULBERSON, Texas
SAM FARR, California MARK STEVEN KIRK, Illinois
JESSE L. JACKSON, Jr., Illinois ANDER CRENSHAW, Florida
CAROLYN C. KILPATRICK, Michigan DENNIS R. REHBERG, Montana
ALLEN BOYD, Florida JOHN R. CARTER, Texas
CHAKA FATTAH, Pennsylvania RODNEY ALEXANDER, Louisiana
STEVEN R. ROTHMAN, New Jersey KEN CALVERT, California
SANFORD D. BISHOP, Jr., Georgia JO BONNER, Alabama
MARION BERRY, Arkansas STEVEN C. LaTOURETTE, Ohio
BARBARA LEE, California TOM COLE, Oklahoma
ADAM SCHIFF, California
MICHAEL HONDA, California
BETTY McCOLLUM, Minnesota
STEVE ISRAEL, New York
TIM RYAN, Ohio
C.A. ``DUTCH'' RUPPERSBERGER,
Maryland
BEN CHANDLER, Kentucky
DEBBIE WASSERMAN SCHULTZ, Florida
CIRO RODRIGUEZ, Texas
LINCOLN DAVIS, Tennessee
JOHN T. SALAZAR, Colorado
PATRICK J. MURPHY, Pennsylvania

Beverly Pheto, Clerk and Staff Director

(ii)
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011

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Thursday, March 18, 2010.

FY 2011 BUDGET HEARING FOR THE JUDICIARY

WITNESSES

HON. JULIA S. GIBBONS, CHAIR, COMMITTEE ON THE BUDGET OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES
JAMES C. DUFF, DIRECTOR, ADMINISTRATIVE OFFICE OF THE U.S. COURTS

Chairman Serrano's Opening Remarks

Mr. Serrano. Subcommittee will come to order. Before we
start I would like to take a moment to remember the attack that
occurred outside the Lloyd D. George U.S. Courthouse and
Federal Building in Las Vegas this past January, which took the
life of one court security officer and wounded a deputy U.S.
Marshal. I know that I speak on behalf of this whole Congress,
and Mrs. Emerson will have her own comments. Our hearts go out
to the deputy, the court security officer, and their families.
Court security is addressed in your budget's submission,
and this subcommittee will work closely with you to do all that
we can to protect employees and members of the public in and
around Federal facilities. And as we said to the IRS
Commissioner and to Secretary Geithner, there is no difference
of any kind, no difference of opinion of any kind by any member
of our society that justifies any action against any Federal
employee or any other human being for that matter. So please
rest assured that we will do what we have to do to be
protective, and at the same time we offer to you our
condolences to the families and coworkers.
Today we will hear testimony on the fiscal year 2011 budget
request of the Federal judiciary. The judiciary as an
independent branch of government submits its funding request to
Congress rather than having the Office of Management and Budget
vet it first. An independent Federal judiciary plays an
important role in our constitutional system. Like other
government institutions, the judiciary needs sufficient
resources to properly function and perform its constitutional
duties. Unlike other institutions, the workload of the
judiciary is to some extent determined by the direct actions of
certain parts of the executive branch, such as the Departments
of Justice and Homeland Security, by the numbers and types of
cases they prosecute.
Also, as I am sure will be addressed in this hearing at
some point, the judiciary's caseload has also been affected by
the downturn in the economy, which is reflected in the increase
of bankruptcy filings. This subcommittee has made it a priority
to try to ensure sufficient funding for the proper functioning
of the courts and their related functions included in the
judicial budget, such as probation, and pretrial services, and
public defenders.
For fiscal year 2011 the judiciary is requesting $6.9
billion in discretionary funding, an increase of $453 million
above fiscal year 2010. I look forward to the discussion of
this request today.
Joining us to testify in support of the budget request is
Judge Julia Gibbons of the U.S. Court of Appeals for the 6th
Circuit. Since 2004 Judge Gibbons has also served as Chair of
the Budget Committee of the Judicial Conference. Judge Gibbons
has testified before this subcommittee for the last few years,
and we are pleased to have you here again.
Also appearing before the subcommittee today is James Duff,
the Director of the Administrative Office of the U.S. Courts.
Mr. Duff was appointed to this position in 2006 by Chief
Justice John Roberts. In the late 1990s he served for 4 years
as Administrative Assistant and Chief of Staff for Chief
Justice William Rehnquist.
We welcome you both today, and we very much look forward to
hearing from you about the resources that are needed by the
Federal judiciary. We certainly do like to see you. Our
conversations are always lively, and you are probably the envy
of so many not having to vet your budget with that other place.
But that is not your comment, that is my comment.
And now my colleague, Mrs. Emerson.

Mrs. Emerson's Opening Remarks

Mrs. Emerson. Thank you, Mr. Chairman. Judge Gibbons,
Director Duff, thank you so much for appearing before us today.
Let me also add my sincere condolences to those of Mr. Serrano
for the loss of Court Security Officer Stanley Cooper in Las
Vegas. His death is a real tragedy and it really does remind us
of how important the security that these officers provide is to
the operations of our Nation's courts. His family and all of
the Las Vegas court's employees remain in our thoughts and our
prayers.
An independent judiciary that holds the trust and respect
of all of our citizens and can resolve criminal, civil and
bankruptcy disputes in a fair and expeditious manner is a
fundamental tenet of our Nation. In addition, the judiciary's
probation and pretrial service officers perform a critical
public safety mission by supervising more than 200,000
offenders and defendants living in our community.
We will try to ensure that you all have the resources
needed to accomplish your important mission, especially since
your criminal bankruptcy and probation workload is growing.
However, your budget request proposes an overall increase of
$469 million, or 6.8 percent, above the fiscal year 2010 level.
And I know, as you all are aware, our Federal deficit is
approaching $1.6 trillion and we are going to have some
difficult spending decisions to make. Let me assure you I am
going to work very, very hard with Chairman Serrano to make
sure that you all have at the Federal judiciary the resources
to fulfill your constitutional duties.
Thank you all for being here. I greatly appreciate the
very, very important work you do. Thanks, Mr. Chair.
Mr. Serrano. Thank you. You know the drill, each one of you
is asked to do 5 minutes and no more than that so that we can
then use 5 hours to just put you over the coals. Thank you and
please proceed.

Judge Gibbons' Opening Remarks

Judge Gibbons. Chairman Serrano, Representative Emerson, I
am Julia Gibbons, a judge on the 6th Circuit Court of Appeals
and Chair of the Judicial Conference Committee on the Budget.
With me today is Jim Duff, Director of the Administrative
Office of the U.S. Courts.
First, let me say how much all of us in the judiciary
appreciate your words about the death of Court Security Officer
Stanley Cooper and the wounding of Deputy Marshal Joe Gardner.
That tragedy serves as a poignant reminder to us of the fact
that those who strive to protect us may indeed give their lives
or their health for our protection. And of course these workers
are there not only to protect judges and the people who work in
the courts, but also all the citizens who have some occasion to
come before the United States courts. And so I think it is a
very sobering reminder to all of us of the serious nature of
security concerns and the work that these individuals do on our
behalf.
Let me begin by thanking you and your colleagues for making
the judiciary a funding priority in the fiscal year 2010
appropriations cycle. Because of the funding provided by
Congress, along with our aggressive cost containment
initiatives, the courts are in sound financial shape for 2010.
The funding you have provided will allow us to finance
continuing operations of the courts and to meet our growing
workload needs.
We are also grateful for several legislative provisions in
the omnibus bill, most notably an increase to $125 per hour in
the hourly rate for private panel attorneys who represent
indigent defendants in non-capital cases and the extension of
three temporary district judgeships that were about to expire.
All of us in the Third Branch, Mr. Chairman, remain
concerned about the economic problems facing the country and
understand the need to rein in Federal spending in the face of
historic budget deficits. In fact, this concern prompted the
Judicial Conference's decision to transmit a fiscal year 2011
request that reflects the lowest percentage increase sought by
the judiciary in more than 20 years. We are not only judges and
staff supporting the Third Branch; we are also citizens and
taxpayers and we recognize fully the need for fiscal austerity
in a period of mounting Federal debt.
We are very much aware that the President's 2011 budget
proposes freezing overall discretionary non-security spending
for the next 3 years. We note, however, that within that
overall freeze the President has requested increases for
several executive branch agencies' programs that directly
impact the judiciary's workload.
Our request for a 6.8 percent increase may appear high in a
tight budget environment, but I assure the subcommittee that we
are only seeking the resources we believe are needed to carry
out the work of the courts. In the salaries and expenses
account our requested staff increases are based only on
projected caseload growth, and our workload is increasing
nearly across the board. And if Congress approves the
President's request for the Department of Justice and the
Department of Homeland Security, our criminal and probation
workload will continue to grow.
Our bankruptcy workload continues to grow as well. In 2008,
bankruptcy filings grew 29 percent followed by a 35 percent
increase in 2009. We expect to see another 20 percent increase
in filings in 2010 to nearly 1.6 million. Most of these are
filings by individuals, but there are a growing number of
Chapter 11 business filings, some of which are large, complex
cases such as Lehman Brothers, General Motors, and Chrysler.
Many economists expect the unemployment rate to remain high
for several years, and if that prediction materializes, we will
continue to see workload growth in the bankruptcy courts that
will necessitate funding for additional court staff.
For the details of the 2011 request, we request $7.3
billion, an increase of $469 million over the 2010 enacted
appropriations level. Of the request before you, $385 million,
or 82 percent of the increase, is for standard pay and non-pay
inflationary adjustments and for adjustments to base reflecting
increases in our space, information technology, defender
services, and court security programs. The remaining $84
million is for new court support staff positions largely in the
bankruptcy clerks' offices, program improvements in our
information technology program and an enhancement in our
defender services program to increase the hourly rate for
private panel attorneys representing indigent defendants in
criminal cases to the statutorily authorized rate of $141 per
hour. We are very appreciative of the $125 rate you provided
for panel attorneys this year, and especially appreciative of
the $139 that this subcommittee recommended for 2010, but we
believe that the increase to $141 per hour is warranted to
ensure qualified representation for these defendants.
Our budget reflects our continued efforts to contain cost.
We are now more than 5 years into an intensive effort to reduce
cost throughout the judiciary, and our cost containment program
is producing results. To date we have achieved the most
significant cost savings in our space and facilities program,
and GSA has been very cooperative with us in the cost
containment efforts in this area.
There is a much more detailed statement about cost
containment in my written testimony. Containing cost is a top
priority for us.
I would ask that my entire statement be placed in the
record along with the statements of the Administrative Office,
the Federal Judicial Center, the Sentencing Commission, the
Court of Appeals for the Federal Circuit, and the Court of
International Trade. And of course I am available to answer
fully your questions.
[The statement of Judge Gibbons follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Serrano. Thank you so much.

Director Duff's Opening Remarks

Mr. Duff. Good morning, Chairman Serrano and Representative
Emerson. I am Jim Duff, Director of Administrative Office of
the Courts. It is a pleasure to be here with you this morning.
I know the families of Stanley Cooper and Joe Gardner will
very much appreciate your kind remarks this morning. Thank you.
I echo Judge Gibbons' remarks and thank you for making the
judiciary a funding priority for the 2010 appropriations cycle.
I would add we are also grateful for the funding the
subcommittee provided to GSA for four courthouse construction
projects even though they were not included in the President's
budget for 2010. You honored the request that we made for those
through the funding you provided to GSA.
The 2010 funding you provided will allow the Administrative
Office to continue to fulfill its mission providing a broad
range of support to the Federal courts nationwide. It is a
mission that we have been dedicated to since 1939 when the
office was created. We have evolved over the years to meet the
changing needs of the judicial branch, but service to the
courts has been and remains our basic mission.
Turning to our fiscal year 2011 budget request, the
Administrative Office seeks $87.3 million for the upcoming
fiscal year; that is a 5 percent increase over 2010. Our
requested increase is primarily comprised of pay and non-pay
inflationary adjustments that are needed to maintain current
services. The request also includes funding for four new
positions to address high priority program requirements that
are critical to the operation of the courts.
Specifically, two positions are requested to support a
comprehensive modernization and consolidation of the
judiciary's nationwide accounting system. It is a multi-year
effort that will provide the judiciary with significant
improvements in its accounting of appropriated funds. A third
position is for a database manager to oversee the replacement
of the primary information technology system in probation and
pretrial services, and the fourth position is to address the
very pressing workload demands in what are very high profile
and complex facilities and securities functions at the AO.
I will note that this is our first request to fund
additional staff at the AO in 6 years. When I arrived at the AO
we imposed a hiring freeze and haven't requested any funding
for new staff in the time I have been there, and now that the
budget is tightening up we are coming back and asking for four
additional positions. So I am very popular with my staff. They
say, we told you so. But this is our first request in 6 years
for additional staffing.
Before I close, let me return briefly to funding for
courthouse construction. For the second year in a row, the
President's budget for the GSA does not request funding for new
courthouse construction projects that reflect the priorities of
the judiciary as detailed in the Judicial Conference's 5-year
courthouse construction plan. But for 2011 the judiciary's
courthouse priorities are in Mobile, Alabama; Nashville,
Tennessee; Savannah, Georgia; and San Jose, California. Each of
those is critically needed to address major operational
deficiencies at those locations, and I have included our 5-year
plan as an attachment to my prepared testimony. I urge the
subcommittee to consider the priorities of the Judicial
Conference, with regard to courthouse projects and include
funding in your 2011 bill for the four projects I just
mentioned.
That concludes my oral remarks and I would be happy to
respond to any questions and ask that my written statement be
included in the record.
[The statement of Mr. Duff follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Mr. Serrano. Without objection, both statements will be
included in the record. We thank you for your testimony.
Obviously during the questioning period you can both decide to
answer.

BANKRUPTCY FILINGS

The fiscal year 2011 Federal judiciary budget request is
$7.3 billion, which would include funding for an additional
1,137 full time equivalent employees, an increase of 3.3
percent over the 34,663 FTEs provided for last year. The
largest of these increases is for bankruptcy staff, 483 FTEs.
According to CRS, in 2009 total bankruptcy filings in Federal
courts increased by 31.9 percent to about 1.4 million from 1.1
million in 2008. Bankruptcy filings due to non-business debts
total 1,412,838, a 32 percent increase from 2008. Business
filings in 2009 total 60,837, an increase of 40 percent from
2008.
So my questions are do you anticipate that bankruptcy
filings will increase at a similar rate for this year and in
2011? Secondly, can you talk in more detail how your requested
increase in funding for 2011 specifically addresses the
possible continuing upward trend of bankruptcy cases? And
lastly, are bankruptcy courts doing anything to promote
financial literacy?
Judge Gibbons. I will address first the filing situation
and then address the financial literacy piece of it. Our
projections, which are arrived at by means that are
understandable fully only to the people who do these
statistical projections, but we are thinking 20 percent growth
for 2010, which is still a very substantial increase, although
somewhat less than we saw in 2008 and 2009. I think you and I
are noting slightly different percentages, but that is probably
because our figures are from June to June and you may have
fiscal year figures. We have 29 percent and 35 percent growth
for 2008 and 2009, and 20 percent for 2010.
One thing that is worth noting about the bankruptcy
situation is that it is not just the increase in filings that
we have experienced. As you know, after the passage of the new
bankruptcy legislation in 2005 our filings declined
substantially, but the workload required to process an
individual bankruptcy case did not decline, but in fact
increased.
We now have data showing that, after the passage of that
statute, the typical Chapter 7 case required 12 percent more
processing time, and Chapter 13 cases required double the time.
The number of docket entries nationwide at the end of 2007, at
a time when the filings were quite depressed, was actually
about the same as it was prior to the passage of the statute,
and the number of motions filed and the number of orders that
judges were required to generate increased. So this increase in
filings comes in addition to the increase in per case workload
that was precipitated by the passage of the 2005 statute.
So that is all a part of the background of why we feel that
we really must have the increase in staffing in the bankruptcy
courts.

FINANCIAL LITERACY

With respect to financial literacy, the most prevalent
program is one called CARE, or Credit Abuse Resistance
Education program and it was started by a bankruptcy judge in
the Western District of New York and now is in all 50 States.
It is directed at high school seniors and college freshman.
Bankruptcy judges, attorneys, court staff, and bankruptcy
trustees all participate, and they engage in outreach to the
targeted group, explaining to them the wise use of consumer
credit, and this is a group that of course is most at risk for
credit abuse.
Our judiciary web site also contains a couple of tools that
are available to the public. I brought demonstrative evidence.
This DVD is Bankruptcy Basics, Chapter 7 and Chapter 13 for
Individuals. It is on our web site. It gets about 4,000 to
5,000 hits per month. The Spanish language version will be
posted this spring. It has basic information about bankruptcy.
Then there is another program that is more directed toward
financial literacy, Your Day in Bankruptcy Court, that is on
the web site and it is designed actually for young people,
principally high school students, and it leads them through a
series of scenarios that illustrate common financial pitfalls,
the consequences of bankruptcy, and so on.
So we are doing work in that area.
Mr. Serrano. Any comments?
Mr. Duff. Mr. Chairman, I would just like to compliment our
staff in the courts, particularly on the bankruptcy courts for
the work they have done this past year. I visited them after
the massive filings in New York. They handled it wonderfully.
They worked hard and prepared very well for it. And it is some
measure I think of how well they handled the matters in that it
received very little publicity, the big bankruptcy filings.
Mr. Serrano. Yes.
Just one side comment, one added comment, part of my
personal agenda is to make sure that our language changes. When
we say the 50 States, we always say and the Territories. And so
I would hope----
Judge Gibbons. Oh, I am so sorry, Mr. Chairman.
Mr. Serrano. It is not going to cost you a penny, trust me,
trust me. It is not you, it is the whole Congress, the Senate,
the staffs, you know. I am not going to get into it, but if you
look at the health care bill there is health care for 50 States
and there is a little addition for the Territories. The
education bill is for the 50 States and then there is a little
addition to the Territories. Only sending troops to Iraq and
Afghanistan is there equality across the spectrum where
everybody gets treated equally.
So I would be interested in knowing what units of the CARE
program could be available in the Territories, especially as
you move into the Spanish version, it certainly could be used
in other places.
Judge Gibbons. I, of course, unfortunately have no reason
to know--obviously to the extent the other programs I talked
about are on the web site, they are available. I don't know
about the CARE program, but I will certainly find out and
suggest that if we have not addressed the need in the
Territories, we do so promptly.
Mr. Serrano. Thank you so much.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

The Credit Abuse Resistance Education (CARE) program is a
free financial literacy initiative that makes experienced
members of the bankruptcy community available to teach the
importance of financial education. CARE's primary target
audience is high school seniors and college freshmen who are
most at risk because, as active consumers, they are
aggressively marketed by the credit card industry at a time
when they are not financially savvy.
CARE was founded in 2002 by Judge John C. Ninfo, II, a
federal judge in Rochester, New York. CARE is not a national
federal Judiciary program, rather it is a grassroots effort
that depends on professionals in local bankruptcy communities
to sponsor financial literacy programs. Many bankruptcy judges
and court staff are active participants who teach in the
program. While Judge Ninfo strongly encourages establishing a
CARE program in as many locations as possible, it is up to the
local bankruptcy community to sponsor a CARE program. CARE has
a presence in all 50 states and the District of Columbia but
there is not currently a CARE program in any of the U.S.
territories. Judge Ninfo has indicated he will continue to
reach out to the bankruptcy community in Puerto Rico to
encourage them to establish a CARE propgram there. Puerto Rico
led the territories in bankruptcy filings in calendar year 2009
with 11,342 filings. (Guam had 221 bankruptcy filings, the
Virgin Islands had 29 filings, and the Northern Mariana Islands
had 8 filings.)
There is also a broad range of CARE program materials
available online (www.careprogram.us) in the form of handouts,
videos, Powerpoint presentations, and games that can be used by
parents, teachers, and others to teach financial literacy. Some
of the materials are available in English and Spanish.

PANEL ATTORNEY NON-CAPITAL HOURLY RATE

Let me ask one more question before I turn to Mrs. Emerson.
For 2010 the non-capital panel attorney rate was increased to
$125, as you mentioned, as we know. The 2011 request for these
attorneys would increase to $141, which is $2 above what we
hoped, this committee hoped last year you would receive. Has
the increase had a positive affect on attracting and retaining
panel attorneys? Other than increasing the pay for panel
attorneys, what efforts are being pursued to recruit the best
attorneys in the Federal courts? And lastly, what do you
anticipate would be the effect of not receiving funding for an
increase in an hourly rate?
That is a softball question. You could tell me the system
will fall apart.
Judge Gibbons. Well, you know of course we hope and believe
that the increase will have some positive effect, but it is
really too early for us to be able to evaluate that and to tell
because there is a delay in the submission of vouchers. There
is a delay in knowing what the representation is, but certainly
I think we have to assume it would have a positive impact. At
the same time, we have long had the ultimate goal of taking the
panel attorney rate to the statutorily authorized maximum,
which was $139 last year, now would be $141.
Our feeling is that we are going to continue to have some
recruitment issues with respect to attracting the qualified
counsel and that, even at the statutorily authorized maximum,
this is a pretty modest hourly rate for attorneys who are
called upon to represent criminal defendants in a complex,
fairly specialized area of practice, particularly when you
consider, one, the important rights at stake and, two, the
complexities of the Federal sentencing system.
For retained counsel the average hourly rate is $246 an
hour, almost twice the $125. When you consider that overhead
averages $70 an hour, your panel attorney at $125 is left with
$55 an hour in compensation, while your average retained
counsel is left with $176.
So while we are very appreciative of the increase, and of
course we believe it will help, we do believe that there is a
real need for a greater rate.
You asked about attracting qualified attorneys into the
Federal court. Yes, there are some efforts that are made, but
they are generally not made on a national level. They are
generally made on the individual court level where a court, in
communication with the lawyers, local lawyers who are
available, seeks to recruit a highly qualified panel of
attorneys. I was in the district court for 19 years before I
went to the Court of Appeals, and over the years we did a good
bit to make sure that the lawyers on our panel were indeed
qualified. If somebody called up and said, I want to be on the
panel that didn't appear appropriate for the panel, we didn't
add them to the panel. And then we tried to encourage the very
best lawyers to stay on the panel even when they came to us and
said, judge, we just can't afford to do this anymore. We
weren't always successful, but yes, we did try. And I feel sure
most courts make similar efforts.
Now, was there another part of that that I forgot?
Mr. Serrano. I might have forgotten the question right now.
Mrs. Emerson.
Mrs. Emerson. I am trying to stop laughing.

COURTHOUSE SECURITY

Judge Gibbons, we mentioned the terrible tragedy that
happened in the courthouse in Las Vegas. We have had the plane
crash in the IRS building in Austin, Texas. We have had the
shootings at the Pentagon and all of it highlights the need for
more security or some other form of security at our Federal
facilities. I know that you all within the judiciary operate a
lot of older buildings, having had an office in one of those in
previous years, and I think that obviously there are many
courthouses that don't meet today's security standards.
So if you could just fill me in a little bit on whether you
are working with the Marshals Service or with GSA to, number
one, identify all of those facilities that don't meet the
security standards and then how you are addressing those
security shortfalls, and can we do that without building
entirely new buildings?
Thank you.
Judge Gibbons. Because the Administrative Office has been
extensively involved in that work, I believe Jim might be the
more natural person to answer that question. So I will turn to
him.
Mr. Duff. Thank you, Judge Gibbons. What we have done,
Representative Emerson, is to adjust our priorities on
courthouse construction projects. In a sense security remains a
very important element obviously in protecting our judges and
the public who go to our courthouses, but security was an
aspect of new courthouse construction projects. It fueled the
formula that determined which new courthouses we sought. When
the budget started constricting and the money became tighter
for courthouse construction, we haven't shifted priorities on
security, but we are creating a new security priority list for
courthouses that need security upgrades. And we haven't taken
it entirely out of the courthouse construction criteria for
funding, but it is a reduced proportion, I guess, in the
formula we use in seeking new courthouse construction projects.
But we have created a new list for security priorities and we
are focusing on the courthouses that need security the most,
and there are a lot. Many of the buildings are outdated in that
regard, and we have been very aggressive about identifying
those and seeking funding for security upgrades.
Mrs. Emerson. You know, Mr. Chairman, I wonder if it might
not be something worth looking into, the idea of perhaps
designating a certain fund within the General Services
Administration that would be designated just for this sort of
thing as opposed to having to duke it out with everybody else
who is trying to get those sorts of funds. But it seems to me
that we seem to have increasing number of incidents here. It
might be something just to explore. I don't know. As long as
you all get the money to do it, it doesn't matter which pot but
I am just thinking it might be something that is worth pursuing
anyway.
Mr. Duff. Thank you for that idea.
Mrs. Emerson. We will try to have a discussion about it.
Mr. Serrano. I am listening, I am listening.

IMPACT OF HIGH THREAT TRIALS IN FEDERAL COURT

Mrs. Emerson. Let me turn to the Gitmo detainee trials if I
might. I know that the budget request includes a $22 million
increase for high threat trials. I also understand that this is
an estimate of your costs for defender services, for jurors,
for security requirements associated with potential trials of
Khalid Sheikh Mohammed and other 9/11 coconspirators. It is
also obvious that it is going to be an enormous cost, not only
at the Federal level, but also at the State and the local level
as well.
Now the chairman and I may disagree about where they think
these trial should be. I personally don't think they should be
in U.S. Federal courts, but that is not your decision and it is
probably not my decision either. But nonetheless, I do know
that if these terrorists are tried in the U.S. Federal courts
the judiciary and the Marshals Service is going to have to do
everything possible to perform these in a safe and efficient
manner.
So I would like to hear from you on how high threat
terrorism trials impact the operations of a court and other
litigants; for example, on days when there is a high threat
case, what happens to the other cases and what other security
concerns might come into play?
Answer that and then I have got a couple of follow-ons.
Judge Gibbons. Well, your question really recognizes, I
think, that you understand that of course the $22 million is
our guess, because of course we don't know what the situation
will be, and there are many, many variables that affect the
cost depending on what location we are talking about. For
example, if you are talking about a district court, among the
things that could be involved from a cost perspective are what
kind of technology is already available in the court and what
sort of technological needs there might be for the trial. There
is a public information function. I mean the courts aren't
normally in the business of going out and telling folks what
they are doing because there is usually plenty of room for the
press in the courtroom. But a big trial, a high security trial
raises some issues in how you are going to make information
about what is going on available and how you are going to
accommodate the news media and the public interest. There are
case management issues, high numbers of filings, there may be
more court personnel required to handle the case than normal.
There will be additional jury costs, there will be costs and
issues to be considered concerning jury selection, are the
jurors at risk, sequestration issues possibly. Just what do we
need to do with respect to the jurors? Are there extra viewing
areas, are we going to set up remote locations? Is the
defendant demanding his speedy trial rights promptly? Are we
going to have a situation where there is a protracted time for
preparation because everybody wants time to get ready or are we
going to have a more compressed time?
Defenders are another potential cost. Is the defendant
going to need court appointed counsel? What sort of security
clearances may defense counsel need to obtain? Is this a death
eligible crime and what expenses will be associated with the
process of determining whether the Justice Department will seek
the death penalty?
Security is another cost. Additional equipment perhaps,
additional areas; for example, the coordination issue you
talked about with folks entering for this trial versus folks
entering for a normal court proceeding. And how do you ensure
that the people aren't mixed up and that you get people where
they need to be in order to be properly screened. Personnel to
conduct the screening and the security exercises is another
cost. How high risk is the defendant? What risk is there to
witnesses or what risk do witnesses pose? Are there external
threats coming in involving the people involved in the
proceedings because it is high risk trial? Is somebody
threatening to disrupt or harm?
So many, many, many things.
Mrs. Emerson. What about the impact on the surrounding
community?
Judge Gibbons. Well, that is another thing, and that is a
part of the assessment obviously that the marshals would have
to do presumably in conjunction with local law enforcement.
So there are just many things to consider in connection
with this, many variables. Our expense figures represent our
best estimate, but obviously without a great deal of knowledge.
No, I don't mean knowledge, we don't lack knowledge about how
to do it, we just lack knowledge as----
Mrs. Emerson. As to whether or not.
Judge Gibbons. As to whether or not we are going to have to
do it.
Mrs. Emerson. Believe me I got it, I understood what you
were saying.

DEFENSE COSTS IN HIGH-THREAT TRIALS

You also include $15 million of an increase for the
defender services costs for these types of trials, and I
understand that in many cases it is less expensive to use a
Federal public defender to provide representation instead of a
private panel attorney, but that in multi-defendant cases the
Federal defender can only represent one person.
So how would you manage the cost of representing KSM and
the other 9/11 coconspirators, defendants if these cases go to
Federal court, one? And do you know what the representational
costs were for other high profile people like Timothy McVeigh
or Ted Kaczynski or Moussaoui?
Judge Gibbons. I do not have specific figures for either
the Kaczynski or McVeigh trials. I don't have the specific
figures for the Moussaoui situation either, but I do know that
our $15.6 million estimate was based in part at least on the
defense costs for him.
As far as getting a handle on the cost, there are things
that courts can do, that we often do in death penalty cases,
case budgeting where the lawyer essentially prepares a budget
and then it is subject to court approval, not just at the level
of the judge who is going to be trying the case, but sometimes
involving a circuit approval in advance. There are a number of
tools that can be used to try to get an advance view of how
costly it is going to be, but I am sure that you recognize that
in the course of representation it would be a little hard to
predict what is going to happen in these cases if you only look
at the course of the Moussaoui trial and all the various things
that happened. Neither defense counsel nor the court could have
predicted that.
Mrs. Emerson. I appreciate that. If there is any way you
could get your hands on at least the cost of the Moussaoui
situation I would be grateful to you.
Judge Gibbons. I think we can provide that and I think we
also can probably provide the costs associated with earlier
proceedings.
Mrs. Emerson. Thank you, Judge.
Mr. Duff. I am told that the McVeigh trial was about $16
million, but we will get the other figures for the record.
Mr. Emerson. Thank you.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

The information in the table below provides defense
representation costs for the McVeigh, Kaczynski, and Moussaoui
cases. The information provided below for defense
representation costs in the McVeigh case ($13.8 million)
refines the $16.0 million figure quoted by Director Duff in his
testimony.
----------------------------------------------------------------------------------------------------------------
Defense
representation Charged with death
Defendant Case costs penalty-eligible Case disposition
(millions) offense?
----------------------------------------------------------------------------------------------------------------
Timothy McVeigh.................. Oklahoma City $13.8 Yes................ Convicted and
Bombing. sentenced to
death. Executed
June 11, 2001.
Theodore Kaczynski............... Unabomber.......... 2.5 Yes................ Pled guilty and was
sentenced in May
1998 to life in
prison without the
possibility of
parole.
Zacarias Moussaoui............... September 11th Co- 9.7 Yes................ Pled guilty and was
Conspirator. sentenced in May
2006 to life in
prison without the
possibility of
parole.
----------------------------------------------------------------------------------------------------------------

HIGH-THREAT TRIALS

Mr. Serrano. Thank you so much. Let me just pick up on
that.
You just painted a very bleak picture if we do this in
Federal court, and I am not suggesting that you did it
purposely. You just told us what your feelings are. But we have
had, my understanding, over 100 of these trials in this country
already. Is it that everybody reacted to New York City, that
wonderful town, and that somehow every media outlet in the
world would show up and the tourists from Times Square would
want to see the trial?
For the record, I am the last standing New York City
elected official who supports the idea of having the trials in
New York. That train left the station. On that issue I am
probably the most unpopular of any party in New York. But my
feeling is that the terrorists have different ways of winning
or trying to win, and one of the ways that we cannot win is if
we run away from our own system and hide them somewhere because
we are afraid to take them on in open court.
One of the things they did on September 11th that nobody
wrote about, people forget, we know certainly the most
important part is the lives they took and the destruction they
caused and the disease condition of the workers that are still
being felt in New York. But if you were writing a book about
the impact and the symbolism of attacking the financial center
of our country, the military center of our country, and then
they were either heading for the White House or for the Capitol
as a legislative branch or the executive branch. They also did
something else that nobody has ever written about. It was
election day in New York and that election was canceled or
stopped about 11 o'clock in the morning. So they disrupted our
electoral system, which is at the center of our democracy.
I may be wacko on this, but I continue to think there is
nothing wrong with trying them openly in front of everybody in
our courts and showing them that we don't run away from
ourselves or run away from our system.
However, my question really is if we have had all these
trials why all a sudden the feeling that we can't afford it,
that we can't handle it, that we can't accommodate, the people
will show up, the security? And lastly, there is $73 million
for part of these trials already in the Justice Department's
budget set aside? And lastly, why do I suspect, and this part
we probably agree on, that if we do it in a military base the
Department of Defense with all the money they have will come
back to us and say guess what, you know those $1,700 trillion
you give us every month? It is not enough. We need much more in
our supplemental budgets to pay for those trials.
Am I wrong on all this? I don't want you to answer to the
fact that I am the only New Yorker who still says it is okay in
New York.
Judge Gibbons. You can understand of course that the
judiciary is neutral on this issue. I mean, we are not taking a
position and would not take a position----
Mr. Serrano. But with all due respect, you may be neutral,
but the picture you just painted----
Judge Gibbons. I know. I am about to get to that. I
certainly did not mean to paint a bleak picture, and that is
why I said at the end of my answer to Representative Emerson's
question that I was not trying in any way to say that we could
not do it. And yes, you are quite right, there are many high
threat trials that have been handled in the Federal courts.
One of the points we make frequently with this subcommittee
is that if it comes in the door we handle it because we are
courts and that is what we do. And so none of that should be
interpreted as a statement on my part that we can't do it, that
we can't afford it. My only purpose was to try to communicate
to this subcommittee the indefiniteness of our estimate about
the cost because of all the variables. It does not have any
other connotations and should not be interpreted as having any
other connotations.
It is probably best that I not go into a little song and
dance about the wonders of the Federal courts at this point,
but I certainly have the greatest confidence in our judicial
system and in all my colleagues in the system, and also great
confidence in our employees and the folks who when they are
presented with a situation handle it appropriately and are very
much up to the task.
So please don't read more in that than I intended. It was
just intended to be a listing of the variables that will come
into play in terms of how one would handle such a situation
when presented with it.
Mrs. Emerson. Let me say, Mr. Chairman, that I did not
assume in any case whatsoever that Judge Gibbons was making a
judgment one way or the other. I just was curious as to all of
the different pieces that went in and whether $15 million would
possibly cover even one high risk--so I did not interpret you
as being anti at all, I just want you to know.
Mr. Serrano. And again for the record, you are highly
respected by this subcommittee and everybody in this Congress.
We didn't intend to say that either. It is just that you almost
painted a picture of we can't handle it.
Judge Gibbons. Oh, no, no, no, not intended to be the
message at all.
Mr. Serrano. I know you can handle it if we had to do it
that way.

NATURALIZATION CEREMONIES

Let me bring you to a happier issue, an issue which for
many people is a problem at the beginning but ends up being
very happy, and that is when people take their oath of
allegiance to become citizens. During last year's hearing we
discussed a report from the ombudsman for the Citizenship and
Immigration Services that criticized the judiciary for delaying
ceremonies and have recommendations for improving the process.
I know that you strongly disagree with both the results of the
report and how it was conducted. That aside, I understand there
were some delays in the process from time to time.
Have there been any changes in the handling and scheduling
of these ceremonies since last year?
Judge Gibbons. To the extent there was a problem then, and
you know we do quibble about that to some extent, we believe
that any problem has been resolved. Staff from the AO met with
staff of the U.S. Citizenship and Immigration Services several
times, invited those folks to meet with our District Court's
advisory group. That meeting went well. We offered to set up a
focus group of clerks from courts that have a high number of
citizens to be naturalized to deal with ongoing issues, but we
were never taken up on that offer, and we believe that the
relationship between the court that was the main subject of the
ombudsman complaint and the regional office for the Citizenship
and Immigration Service, we believe that the issues pertaining
to that relationship have improved greatly, that their
relationship has improved greatly.
Mr. Serrano. I must say I will make an announcement here
that it is not official yet, and I will make it here and it is
open to both of my colleagues to join me. I am going to try to
lighten the burden on the courts. To me there is nothing better
than going to a citizenship ceremony. So I put in a bill
yesterday that will allow Members of Congress and Senators to
swear in, to give the oath of allegiance to new citizens. And I
am just tired of seeing all those other folks have all that
fun. I want to be able to give the oath to people in my
district because that is a great day and you see those American
flags waving and you see all the different folks of different
cultures and different communities. It is just wonderful. So I
am going to try to alleviate the burden by having some of us do
the swearing-in.
Judge Gibbons. As an experience I highly recommend it. It
is really one of those lump in the throat moments.
Mr. Serrano. It happened because a lady in my district who
became a citizen, very active person, said I want you to swear
me in. I said, gee, what a great thing. Then I called up and
said oops, oops, you can't do it, it is not allowed.
Speaking of that, I now turn to a man who comes from a
State that has a lot of swearing-in ceremonies, Mr. Boyd.
Mr. Boyd. Thank you very much, Mr. Chairman. You are right
we do have a lot of swearing-in ceremonies.
First, let me apologize for being late to the witnesses and
to you, Mr. Chairman and Mrs. Emerson. You know how these
schedules are, but I appreciate----
Mr. Serrano. Besides there is another little issue being
discussed these days around here that takes time.
Mr. Boyd. Yes.
Mr. Chairman, I was interested in your comments about your
legislation. I take part in a swearing-in ceremony every 4th of
July that is done in our City of Tallahassee, and I have always
enjoyed that. It is a great honor to be there. So now we won't
have to have the Federal judge do it, I understand, I can do it
myself.
Mr. Serrano. My bill, if you care to cosponsor, was
introduced yesterday, would allow you to give that oath.
Mr. Boyd. Only if I could cosponsor it though, right?
Mr. Serrano. No, no, my bill covers you even if you vote
against it.
Mrs. Emerson. We could attach it to the appropriations bill
and make sure it gets through and not have to hassle around
with omnibus.
Mr. Serrano. You don't legislate on an appropriations bill.

PANAMA CITY COURTHOUSE

Mr. Boyd. Judge Gibbons and Mr. Duff, thank you for being
here. I will be very brief, and I know this is not part of your
budget. The construction part is GSA.
I represent the Northern District of Florida, including
Panama City, and we have been trying desperately, myself and
the people in that community for the 14 years that I served in
Congress, to build a new Federal building because that one
there is a leased building and, according to your folks, it is
very inadequate. And we think we have gotten close sometimes
but gotten on the list, and then it drops back and so on and so
forth. My question really to you is if you would care to share
with us your thoughts on the pace of the courthouse and Federal
building funding and whether or not you believe it is keeping
pace and how far behind are we falling?
Judge Gibbons. Do you want me to try?
Mr. Duff. You go ahead and start and I will wrap it up.
Judge Gibbons. You know certainly I think within the
judiciary from time to time we have wished that the execution
of our 5-year plan was more within our control, but of course
it is not only a matter of getting an appropriation, but it is
not an appropriation to us directly for it. We do have a very
controlled process for assessing needs for new courthouse
construction. It is called Asset Management Planning. We
adopted it as a part of our cost containment initiative and it
replaced our earlier methodology for determining courthouse
needs. Cost is more of a driver now than it was previously.
And so I don't know anything about your specific situation,
perhaps Jim does, but sometimes localities do think they need a
courthouse and sometimes they do have a real need, but
sometimes that need doesn't quite get the courthouse to the top
of the list.
Mr. Duff. And I would just add----
Mr. Boyd. If you could when you address it, the list, I
know we have been on the list, we have slipped back and those
kinds of things. I understand you are trying to strengthen the
process you are involved in, but can we strengthen the whole
process?
Mr. Duff. Well, Representative Boyd, I think it is a
function of the overall budget of the country, too, trying to
be tightened. We are seeing some more restrictions placed on
projects that we would like to see move that have been on the
list before.
One clarification for Federal buildings, not just
courthouses, but for Federal buildings, GSA really takes the
laboring oar on that and requests money for Federal buildings.
Our 5-year plan really only provides for stand-alone
courthouses. But we certainly participate in and inform the GSA
decisions.
Mr. Boyd. Just to clarify, and to make sure we are on the
same track, this is a courthouse.
Mr. Duff. Stand-alone courthouse?
Mr. Boyd. Yes.
Mr. Duff. We would like more, too, but I think it is a
function of the overall effort to hold the budget in check as
best the government can.
Mr. Boyd. So I assume from that answer that you think the
building, the funding of the buildings that we have been doing
is not adequate, it is slipping us further behind as we go? And
can you speak to how you can strengthen that process? I
understand that you can point to us rightfully so, but how can
we solve this problem?
Mr. Duff. Well, we have been very aggressive in our cost
containment efforts to try to reduce the costs of the
courthouses. We have done studies on space. We are doing some
courtroom sharing now, and our magistrate judges and senior
judges are sharing courtrooms. We have been very vigilant as
stewards of public funds to try to find ways to reduce the
overall cost of building courthouses and thereby advance other
projects and move them along more quickly than perhaps they
could have been moved before. But the ultimate funding decision
of course rests with all of you.
Mr. Boyd. In your experience does solving the location and
site purchase problem? I even had a situation where we had the
location, we had the location donated to us, and we still
weren't making the kind of progress we needed to make, slipped
back instead of up.
Mr. Duff. There are a number of factors that go into the
priority list, and some become more urgent than others, some
are very critical. It is hard to explain to those in line
waiting for it because everyone's needs are great, but we do
the best we can with leveling the playing field and treating
all equally with limited funding. We do the best we can with
it.
Judge Gibbons. I was just going to say it is a very
difficult thing because there are many, many good, sometimes
even compelling arguments with respect to courthouses that end
up not being built for a very long time.
Mr. Boyd. Mr. Duff, I see you were just passed a note. Do
you have something to add?
Mr. Duff. Well, I could read it. I don't think I can absorb
it yet. The 2004 moratorium only went forward with 15 projects
that already had money for site and design. In the meantime we
have been reassessing all the others, and that process is
almost completed. That is just off the top of my head.
Mr. Boyd. No, off the top of her head. So that
reprioritization process is underway and will be completed
soon?
Mr. Duff. Yes, sir.
Mr. Boyd. Mr. Chairman, thank you for your time.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

The court in question is currently located in a leased building in
downtown Panama City, FL. Constructed in 1977, this leased courthouse
has been renovated multiple times. The building cannot be renovated any
further to accommodate growth.
In 1997, the Judicial Conference approved Panama City, FL for
inclusion in its FY 1998-2002 Five-Year Courthouse Project Plan for
site and design funding in FY 2002. Because sufficient funding was not
provided to support the projects preceding it on the FY 1998-2002 Five-
Year Plan, the Panama City project slipped into subsequent years until
a moratorium on all projects was imposed by the Judicial Conference in
FY 2004.
In a move to control costs, 35 courthouse projects that had not yet
received appropriated funding for site, design, or construction,
including the Panama City project, were subject to the moratorium and
underwent a thorough reevaluation. A separate 15 courthouse projects
that had received some Congressional funding, many of which were shovel
ready, have been allowed to proceed since 2004. The Judiciary's FY 2011
Five-Year Courthouse Project Plan includes funding through FY 2014 to
complete these projects currently on the Plan.
The reevaluation of the space needs associated with districts where
the 35 projects are located has been completed and a list of courthouse
projects ranked in order of urgency has been compiled. The entire list
will be considered by the Judicial Conference Committee on Space and
Facilities at its June 2010 meeting. The Urgency Rank Evaluation places
the Panama City project at number 12 on that list. However, the
Judiciary has been hesitant to add new projects to the Five-Year
Courthouse Project Plan until more of the projects currently on the
Plan receive appropriated funding. Therefore, despite the reaffirmed
need for a new facility in Panama City, it is unlikely it will be added
to the Judiciary's Five-Year Plan for several years.

CAMERAS IN THE COURTROOM

Mr. Serrano. Thank you. Under the Judicial Conference
policy each Court of Appeals may permit television and other
electronic media coverage of its proceedings, but only two of
13 courts of appeals, the 2nd and 9th Circuit Court of appeals
have chosen to do so. Has there been any data collected on the
two circuits' decisions to allow electronic coverage and any
associated costs? If so, what has been learned about cost and
potential savings? Also do the 2nd and 9th Circuits have limits
on the types of cases that they allow television coverage for?
Have other circuits indicated that they are considering
coverage of court proceedings?
Judge Gibbons. I am not aware of any data that the 2nd and
9th Circuits have collected. I do know that with respect to
broadcasting proceedings in appellate courts I would be
surprised if there were any significant costs one way or
another given the growing technology that is available in
courts. So I think that from the Conference's standpoint it has
really not been a cost issue, but more of a policy issue.
Mr. Serrano. Now, I don't know if you answered this part,
do you know of any other districts that are thinking of doing
the same thing?
Mr. Duff. Of having a pilot project with cameras?
Mr. Serrano. Yes.
Mr. Duff. We do know other districts that are considering
it. We are trying to come up with a uniform approach to it, and
we are on the verge, I think, of doing so. We still have a
Judicial Conference policy with regard to cameras in the
courtroom. The Conference itself is opposed to cameras at trial
court level for a variety of reasons, for example in criminal
trials where witnesses can be intimidated. There are elements
of the trial that if, we think, were put on television, could
change the course of a trial. It could change even the fact
that a matter would go to trial. If witnesses are intimidated,
if plaintiffs don't want the vast public exposure that comes
with television in the courtroom, it might intimidate
plaintiffs who have civil rights claims or sexual assault
claims not to feel like they could or would want to proceed.
So we have been very cautious about it, Mr. Chairman, and
to answer your question more directly, I think there are types
of matters that certainly the Judicial Conference feels it
wouldn't be a problem.
Mr. Serrano. So tell me how these two districts are doing
this, because I am getting a little confused here. If the
Judicial Conference has problems with it, why are these two
districts doing it anyway?
Judge Gibbons. The Conference has a different policy for
the appellate courts than for the district courts. The
Conference policy is that trials in district courts should not
be broadcast. The Conference policy permits appellate courts to
do it. The 2nd and 9th are the only ones that have adopted a
courtwide policy permitting the broadcasting of arguments. I
have a feeling, just based on nothing other than my own
experience, that probably there is other broadcasting going on
and certainly other requests to broadcast that are not
occurring as a result of a court policy.
I know that I was a member of a panel within the last
couple of years and I can't even remember what the case was,
but we were presented with a request to broadcast a particular
argument. And so I am sure that I was not on the only panel
within the United States courts where that has ever happened.
But I think we know only when there is a court policy of
permitting it across the board, which is the case in the 2nd
and the 9th.

IMPACT OF TRIAL PUBLICITY ON YOUTH CRIME

Mr. Serrano. All right. I remember a long, long time ago
when I was in the State Assembly in New York that I opposed
cameras in the courtroom and I did it based--that was the era
of the beginning of the hip-hop generation, the hip-hop
culture. And a lot of people think hip-hop is rap music, it was
also dance and graffiti art form, and so on. And folks who were
allegedly or supposedly, Jo Ann, smarter than I said that the
kids were drawing their name on the walls as a form of
identification, of being somebody or having people notice them.
If that was the case, I wondered out loud then in my opposition
if seeing a local thug on TV being tried for a crime that
pretty much anybody knew he had committed because there were
witnesses and everything, that would inspire people to say look
at that publicity he is getting for that negative act.
Fast forward to now, there are plenty of other ways
unfortunately for young people to be invited into doing the
wrong thing. So has anyone ever done a study on the effect on
young people of having--because we have many ways in this
country of being famous and well-known, you know. You could
hold this hearing and be famous tonight on webcast to the
dismay of half the Nation maybe or you could do something
terrible and get all that publicity for it. Do you know if
there are any studies that show the link between that? And by
the way, to me those trials are totally different from Supreme
Court proceedings. That I may also have problems with because I
think to reach a great decision sometimes people have to bicker
or something amongst themselves and the public wouldn't
understand maybe how that happens. Anyway any thoughts on that?
Judge Gibbons. I am not aware of any studies. I will say
that I think that over time folks have begun to think about
obviously the broadcasting of anything. I mean we live in an
age in which communications have been entirely revolutionized
in our lifetime, but among the reasons that still remain and I
think are most compelling in support of the Conference policy
are the security concerns, which seem more relevant today than
they ever were. If you broadcast trials and you have concerns
about safety of jurors, safety of witnesses, just many, many
things, it would be undesirable to raise the profile of people
who are participants in trials within the community.
So I think those are among the gravest concerns that exist
today.
Mr. Serrano. I am reminded of those old black and white
movies where the accused, the defendant is giving dirty looks
to the jury and intimidating half of them. I can just imagine
if that is being seen by everybody.
Mrs. Emerson.
Mrs. Emerson. You know, ever since we put cameras in the
House of Representatives we don't have real debate anymore.
Everybody does their talking points and they are totally on
message because heaven forbid if a constituent would see you.
And so I think it actually diminishes our ability to have good
dialogue in the House of Representatives. So I tend to agree
with you, Mr. Chairman, that it is not a good idea.

PROBATION AND PRETRIAL SERVICES

Let me ask a few questions about probation and pretrial
services if I could. You all project that in fiscal year 2010
there will be 105,000 charged defendants awaiting trial and
127,000 convicted offenders being supervised in our communities
by probation and pretrial service officers. You request an
increase of $7 million and 154 additional positions for
probation and pretrial services.
So my first question is how will these additional resources
help ensure that people serving under supervised release are
not posing a risk to the communities in which they are living?
And perhaps I will add one more question with this series? How
will the additional resources help offenders released from
Federal prison become productive members of society and
particularly those who have substance abuse and some mental
health problems?
Judge Gibbons. The numbers that we are requesting in terms
of staff increases are driven by the workload increases we have
seen, but there are some very, really very exciting things
happening in our probation offices in terms of real progress in
effective supervision. The Federal probation offices have
always been in my judgment highly professional, but success in
supervision was always tied to frequency of contact and to the
threat of violation involving proceedings before a judge.
We now, as a result of some more modern research, are
moving to the utilization of what are called evidence-based
practices in supervision. We have a lot of research that we
believe will help us in reducing recidivism. Probation officers
have available to them data from the States, and I hope the
Territories.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

While the Judiciary is able to access recidivism data for the 50
states as part of its evidence-based practices initiative, the
Judiciary is unable to access recidivism data for offenders in the U.S.
territories because those jurisdictions lack automated criminal history
records accessible through NLETS. NLETS is a service that links
together state, local, and federal law enforcement and justice agencies
for the purpose of information exchange and is the Judiciary's primary
source for accessing and analyzing recidivism data.

Mr. Serrano. That will make me happy.
Judge Gibbons. And they also have data that examines the
cases of 100,000 Federal offenders to determine--some of the
data shows recidivism patterns of Federal offenders, as I
understand it--what has been effective with particular
individuals. Now the probation officers are using this data to
individualize their approach to the offender. They first look
at this data in light of a number of factors involving the
defendant. And the four areas they examine are anti-social or
criminal thinking and values, whether the individual has a
dysfunctional social network, whether his primary issues are
lack of employment and education, and whether there is
substance abuse, and they can determine which one of these
areas they should focus on initially and determine whether the
person is most in need of treatment, for example, of some kind,
whether mental health or substance abuse, whether the person
might be in need of education or job training, just whatever it
is. It is a much more individualized and we hope a very
effective approach.
Mrs. Emerson. It is very interesting. Sometimes treating
mental health and substance abuse issues are best done in a
different kind of a setting.

SUPERVISING SEX OFFENDERS

Tell me then, once we pass the Adam Walsh Act and we have
been able to increase the apprehension of sex offenders, it is
a different situation in many cases, do your probation officers
have sufficient resources to effectively supervise sex
offenders and protect the citizens in the surrounding
communities from them?
Judge Gibbons. I don't think we would complain about the
lack of resources, particularly in light of the adequacy of our
funding, for which we are once again most grateful. I will say
that supervising sex offenders and helping to prevent that
person from reoffending, that is one of the most challenging
tasks a probation officer faces. If you get into all--and I am
certainly no expert on this, but if you get into the data about
sexual offenders and the difficulty of rehabilitation and that
sort of thing, it is really a difficult task.
They do have a lot of tools at their disposal. There is not
only treatment, but they also do testing and polygraphs. There
is another test that they use to ascertain whether the
individual is succeeding with treatment and whether the sexual
thought patterns have been altered. They can do GPS or other
location monitoring technology to make sure the person is
staying away from schools and other locations where children
would be present. If the person has been an offender against
children, they make sure there is compliance with various
registration laws.
Child pornography is a very common offense seen in the
Federal courts, and it is usually accessed by the individual
via the Internet. So the person may be prohibited from working
around computers and often personal use of computers. So there
is that sort of monitoring they are able to do not only for
sexual offenders, but they are able to do in appropriate cases
things like surveillance or searches to make sure there is
compliance.
Mrs. Emerson. Thank you very much, Judge.
Mr. Serrano. Let me ask a question having to do with Mrs.
Emerson's favorite Federal agency, GSA.
Mrs. Emerson. No doubt.

GSA RENT AND GREEN TECHNOLOGY

Mr. Serrano. The judiciary is working with GSA on a
memorandum of agreement on rent calculation to limit rental
costs. In your testimony, Judge Gibbons, you indicate that the
2011 rent is expected to be $300 million less, 23 percent of
the amount projected, in 2005. Is the 2010 projected payment
for rent on target? Your cost projection for 2011 is $1
billion, what savings are you taking into account with that
projection and does the Administrative Office of the U.S.
Courts work with GSA in efforts to explore and implement policy
and practices to make the court facilities more energy
efficient and more green?
Judge Gibbons. Well, that sort of touches a number of areas
and let me try to address the rent savings first, and then I
will probably turn to Jim to talk about our relationship with
GSA, the memorandum of understanding and the green technology
issue.
Really our progress in containing our rent cost is
attributable to a number of steps we took as a part of our cost
containment effort. We do believe that we are on target in
saying what we have saved in terms of rent costs that were
projected in 2005. First, you know we had that moratorium on
courthouse construction, but then we followed up with a number
of steps. We had our rent validation effort in which we worked
with GSA to identify areas where we were not being charged
properly. We believe that we saved and had cost avoidances of
about $50 million as a result of that effort. We have had
changes in the Design Guide, we instituted a rent cap of 4.9
percent to contain the rate of growth in rent. We have
instituted a new circuit-based program of managing the funds
available for space improvement where the cap is a major player
in restraining the cost. We have the new Asset Management
Planning process, which we have referred to previously, and
then the Memorandum of Understanding.
All of those things have contributed to this savings we
have seen in rent. For the future obviously the courtroom
sharing as new construction comes online will help us avoid
costs that we otherwise might have incurred.
Mr. Duff. Yes, Mr. Chairman, I would just add the two
things we started when I was appointed. One was trying to
improve relations with GSA and two, get the rent under control,
and I think we made great progress in that regard with this
Memorandum of Understanding. We have taken the play out of rent
projections as much as we could. They used to use a market-
based rent calculation, and we were finding that it was
inconsistent and it was above market rate in many instances. So
this new memorandum of understanding we entered into took the
play out of it and provided some definition to our rent so we
can project it more accurately going forward, we think.
And with regard to the green issue, GSA is really
responsible for that, but we certainly encourage it and work
with them in any way we can to promote that.
I met with the new Administrator of GSA about 2 weeks ago,
Martha Johnson, and was very impressed with her, and I think we
are going to have a good working relationship with them going
forward. She was certainly very mindful of our needs and called
us her biggest customer, which we like to hear, and wanted to
work with us. So I was encouraged by the meeting.
Mr. Serrano. You realize that if you get rents reduced it
would be revolutionary. It is just improper use of the language
in this country to think that rents can be reduced. Why do I
know Mrs. Emerson has something to say?
Mrs. Emerson. Because I was able to negotiate my rent at
GSA at my new office building and told them that I would only
pay what I paid my old Federal building. They wanted to charge
me double, I said then we are not going to move in, and so they
caved in. What can I tell you? So it was a negotiation, right?
Mr. Serrano. It is her way of reminding me that I don't
have a Federal office building in my district.
Mrs. Emerson. Mr. Chairman, it was not. I didn't know that
you didn't.
Mr. Serrano. No, I don't.
Mrs. Emerson. Well, we will have to get you one.
Mr. Serrano. There you go. Please write it up.
Mrs. Emerson. Instead of a portrait you can get a building.
Mr. Serrano. Thanks a lot.
With that, let me turn to our colleague the distinguished
gentlewoman from the great State of California, Ms. Lee.
Ms. Lee. Thank you, Mr. Chairman. I apologize for being
late, but as you can imagine, it is a pretty busy time.
Mr. Serrano. If you need me, let me know.

WORKFORCE DIVERSITY

Ms. Lee. Welcome, I am glad to see you both. I appreciate
the efforts of the Judicial Conference in its commitment to
reduce costs and especially during these very difficult times,
but I want to make sure that we find the right balance between
of course cost savings and that we continue to ensure everyone
access to the courts and timely decisions in the court system
for all Americans.
Let me ask you, because I asked you last time and I
appreciate you submitting the information as it relates to
diversity. And I am looking at the numbers here, you know, some
areas in terms of the workforce you are progressing, in other
categories you are not. I think you have a lot of room for
improvement, and I am wondering if you do recruitment at
minority serving institutions, Hispanic serving institutions,
African American, tribal colleges to boost diversity numbers on
this.
Judge Gibbons. Our Judicial Conference Committee on
Judicial Resources has an Ad Hoc Subcommittee on Diversity that
grew out of a recognition that we perhaps needed to do a better
job in the area of recruitment, and through the efforts of this
subcommittee and through that committee we are identifying
minority law students--this is particularly for law clerk
positions and staff attorney positions obviously, but that has
been an area in which we feel we have been particularly lacking
in racial and ethnic diversity. But we have been identifying
minority law students and other minority organizations and bar
associations in hopes of creating pipelines there.
We are in the process or have been, I am uncertain as to
the status of sending correspondence to law school deans, we
are preparing correspondence to hiring partners at the Nation's
top law firms. All that goes largely toward addressing the law
clerk/staff attorney piece of this. Of course, that is only a
small part of the courts' overall workforce.
I will leave it to Jim to address anything that has been
done on a national level, but I do know that local courts
typically elect how and where to advertise their vacancies, and
I know that many of them have become increasingly aware of the
need to make sure that they are advertising in places where
their advertisements will be seen by folks of diverse racial
and ethnic backgrounds.
Mr. Duff. Yes, I would just add to that the local court
hiring practices, we have encouraged reaching out and
diversifying the best we can. The hiring at the courts is done
locally for staffing purposes, not nationally. But from a
national standpoint we certainly encourage that.
Ms. Lee. It is one thing to encourage and post, but it is
another to do really do the outreach. I don't know if you have
the resources to really establish a good outreach recruitment
effort, and that is something, if it makes sense, you should
let us know.
Mr. Duff. Yes.
Ms. Lee. Do you think that makes sense?
Mr. Duff. Yes, we are committed to that.
Ms. Lee. But do you have the resources?
Mr. Duff. I think we probably have the resources now to--I
will look at it more closely, but as we have said from the
outset, we have been very pleased with the funding that we have
been receiving. If we need more in that regard, we would
certainly seek it.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

The Judiciary believes it has received sufficient funding from
Congress in order to continue implementation of its workforce diversity
initiative. The Judicial Conference Committee on Judicial Resources' Ad
Hoc Subcommittee on Diversity was established in 2004 to examine
diversity within the federal judicial workforce and to consider
programs, policies, and training on fair employment practices that
would benefit the federal Judiciary. The goal of this initiative is (1)
to expand the Judiciary's job applicant pool in terms of diversity, and
(2) to allow individuals to better understand the role and mission of
the federal courts.
As part of the Judiciary's workforce diversity initiative,
Committee members attended and made diversity presentations at all
circuit judicial conferences during fiscal years 2007 through 2009,
with the emphasis that new judges be made aware of the issue and the
important role that they can play when making hiring and promotion
decisions. The Committee also sends letters to judges encouraging their
colleagues to make an extra effort to identify and interview minority
individuals for a non-Article III judicial vacancy in their respective
districts.
A Diversity Initiative Blueprint was formulated and is revised
continuously with input from the Committee and a variety of Judiciary
advisory groups. Key components of the Blueprint include:
Ongoing Outreach to Judges. Completion of a judge-to-judge
presentation, emphasizing the critical role that judges play in hiring
and promotion decisions. The presentation (contained on a DVD) is
included with orientation materials for new judges.
Outreach to Potential Judicial Employees. Upgrading the
Judiciary website (www.uscourts.gov/careers) to allow the Judiciary to
compete better with other federal agencies for talent. The website now
includes a series of Judiciary recruitment videos designed to attract
America's best talent to the federal courts with a focus on promoting
diversity in the Judiciary's workforce.
Diversity Toolkit. Recently, the Judiciary distributed a
recruitment toolkit to the courts intended to provide information and
practical tools to assist courts in reaching out to ``hard-to-find''
candidates, improving interview techniques, and implementing formal and
informal mentoring programs to increase the retention of diverse
employees.
Continued Judiciary representation at college/law school
employment fairs.
Coordinating with external organizations for outreach and
recruiting (Minority Bar Association, minority publications, minority
corporate counsels, DC Women's Bar Association.)

Judge Gibbons. It may be that more could be done at the
national level to encourage the outreach with respect to
individual court hiring for the law clerk positions. It is kind
of a national hiring market, not so for other positions in the
courts. I think we might take a more national approach to
encouraging local courts to become more actively involved in
outreach; in other words, to go beyond just the advertising and
the making available.
Even though under our court governance system the hiring is
really within the hands of local courts, certainly there is
always more that you can do to create a climate in which folks
are thinking about doing these things that they ought to do and
that would be positive in terms of enhancing diversity.
Ms. Lee. Great. And I think when you think through this and
you look at the local courts, we have the tri-caucus, the
Black, Hispanic, Asian Pacific American Caucus that could help
in your local courts in recruitment efforts.
Judge Gibbons. I will say that on another note, while we
have not done so well in racial, in ethnic diversity, we have
done very well in gender diversity even in the lawyer ranks
where a majority of all the Federal law clerks in the system
are now female and have been for a number of years.
Ms. Lee. Yes. May I have one more minute, Mr. Chairman.
Mr. Serrano. Sure.
Ms. Lee. And the dismal record for the judges, I am looking
at this in terms of African American, Asian and Hispanic
judges, on page 128 of the report here. I don't know how you
deal with that.
Mr. Duff. That is a little bit out of our control.
Ms. Lee. I know, but just for the record it is horrible.

MINORITY CONTRACTING

Finally, on the minority contracting piece in the report we
asked you that question in our last hearing and you came up
with a certain percentage. You say of this total 500 of the
total of 4,800 contract awards, 591, 12.11 percent, were
awarded to minority and women-owned businesses.
Judge Gibbons. I think the most striking thing about those
figures is what it doesn't include. We were only able to
furnish figures for a few entities like the Administrative
Office, but not for all of the courts throughout the country. I
think we were able to provide some figures perhaps maybe for
the Federal Circuit, but not for other courts. So those
figures, they really don't tell you much at all. And I believe
that I was told in preparation for this hearing when I asked
about that that we had made an effort to get those figures and
had found that those statistics were just not maintained. We do
nationally maintain pretty complete statistics on hiring, and
not just who is hired but who is in the applicant pool. But we
apparently do not maintain those statistics with respect to
contractors.
Ms. Lee. Can we ask you to begin to develop a central
repository or some kind of a data gathering mechanism or
procedure? Because until we know what is what, it is really
very difficult to know what is what.
Judge Gibbons. I think we can tell you we will begin to
look at it. Our courts operate on a system of decentralized
budgeting.
Ms. Lee. I know.
Judge Gibbons. And so----
Ms. Lee. We have got to do something. So beginning to look
at it is fine, but we have got to know as we begin to look at
it, we have to have an outcome or a goal and we can help you
maybe come up with some mechanisms to develop that, but I think
it is absolutely essential that we know what is going on with
these contracts.
Judge Gibbons. Perhaps we can take--I mean it would seem to
me that the key thing is collecting the information, and
apparently why we don't have the information is because when
our courts make a contracting decision they don't collect
information. And certainly we could begin to look at how we
could collect the information.
Ms. Lee. Yes, I think so because given that America is a
diverse country, I think our courts want to see some fairness
in every aspect of the court system and this is one big aspect
of it that there should be some equity and some fairness, and
how do you know that until you know it.
Mr. Duff. Representative Lee, if I might supplement the
answer a bit. Part of the request we made today is for
increased funding in our accounting system and that new
accounting system I think will enable us better to monitor and
respond to and be responsive to these sorts of concerns.
Ms. Lee. As long as you have some categories in there that
will give us the information in this new accounting system
which some--most accounting systems don't have. You have to
have a special database, a special repository, a special
skills, you know? So look at it within a broader context if you
want to attach it to that.
Mr. Chairman, can we make sure we do whatever we need to
do?
Mr. Serrano. I want the record to show that the chairman
joins Ms. Lee in that request. She is always on target with
this. You know, no reflection on your comments, both of you,
but it reminds me when I started in public office 37 years ago.
I would ask people what does your department look like in New
York State. The answer was we don't keep records because we
treat everybody equally. Well, no, we want you to keep records.
The Census Bureau this week is asking very pointed questions
about who you are and I think you need to know within the court
system who is there. So I sign up with that.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

As Judge Gibbons stated in here response to Rep. Lee's question
regarding contract awards to minority-owned and women-owned businesses,
procurement in the federal Judiciary is decentralized throughout the
courts nationwide so there is no central repository containing
information relating to federal Judiciary contracting actions. A
procurement module that will capture Judiciary-wide procurement data,
including data on contract awards to minority-owned and women-owned
businesses, is expected to be implemented in the courts in 2013. Data
from this module would be available from the system beginning in 2014.
At the present time, the Administrative Office of the United States
Courts is able to provide information from its financial accounting
system relating to FY 2009 contract awards to minority-owned and women-
owned businesses for the following judicial organizations which all
share a single procurement database: Administrative Office of the
United States Courts, Federal Judicial Center, United States Court of
Federal Claims, United States Court of International Trade, United
States Court of Appeals for the Federal Circuit, United States Judicial
Panel on Multidistrict Litigation.
There was a total of 3,429 contract awards in FY 2009 for the six
Judiciary organizations listed above. Of this total, 435 contract
awards (12.69%) were to minority-owned and women-owned businesses.

Let me do something here, Ms. Lee. We are trying to wrap
up. So if you have another question to ask.
Ms. Lee. One more question.
Mr. Serrano. Go ahead.

SHARING FEDERAL PROBATION PRACTICES WITH STATES

Ms. Lee. Evidence-based practices, just in terms of
recidivism at the Federal level, how can we ensure that this
information can be shared at the State level with law
enforcement officials in the court system, what you are doing,
because evidently the recidivism rate has been significantly
reduced for Federal levels?
Judge Gibbons. Well, our recidivism rate was lower to begin
with, substantially lower. We hoped to make it even lower. I am
not aware of any studies that explain why that is. It may be
partly because of the nature of the offenders that we have had,
but certainly we are no longer a Federal system where our
offenders are not dangerous, because there are in fact many of
them very, very dangerous to society and have done very
substantial time in prison. But I would attribute it to the
fact that we have always just had a really professional,
excellent probation system. Evidence-based practices provide a
chance for us to be even better, but I was in the district
court for 19 years before I went to the court of appeals and
one of the great privileges in my life was working with the men
and women in our probation system, and I think they just get
good results because of the caliber of people they are and the
work they do. I don't know what else to attribute it to. And I
will bet that has been a position to which probation officers
aspire because historically the Federal system has paid better
than the State systems.
And I am not telling you it is a high paying job. I am just
saying that it has been treated as more of a professional job.
They virtually all have at least Master's Degrees in relevant
areas and they approach the job with as much professionalism
and seriousness as any group of people that I know.
Ms. Lee. If there is no empirical evidence to tell us why,
maybe the anecdotal evidence will help, having an evaluation,
send something out to the States saying we think this may be
why this is working. You may want to consider it, something,
really because it is really horrible in all the States. So I
would like to talk with you further on how we would do that.
Mr. Chairman, thank you.
Mr. Serrano. It is okay if you have another question. I
need you to cosponsor my new bill.
Ms. Lee. I am.
Mr. Serrano. You don't even know what it is.
Ms. Lee. But I am going to cosponsor it. I thank you, I
want to make sure we follow up on this anecdotal evidence and
replicate best practices.
Thank you again.
[Clerk's note: Subsequent to the hearing, the Judiciary
provided the following additional information:]

We do not know for certain why the federal recidivism rate
is lower than that of state and local systems, but we are
building a comprehensive outcome measurement system to support
empirical research that will be able to answer that question
definitively. The infrastructure for that system will be
complete in two years, but part of it is already done. That
part now enables us to gather arrest data from the FBI and all
state systems, which provides a baseline recidivism rate for
all federal districts and will allow us to measure changes in
the future. Our goal is to be able to conduct empirical
research to determine what interventions help to foster lasting
positive changes in individuals under the supervision of
probation officers, and thereby reduce recidivism.
In the meantime, we can offer possible explanations for the
difference in recidivism rates between federal and state and
local systems. A good portion of federal cases, around 40
percent, are considered low risk as measured by the Risk
Prediction Index and reflected in the Criminal History Score
computed for sentencing guidelines purposes. It is possible
that state and local systems do not have such a high percentage
of low risk cases.
In addition, federal probation officers have more
experience and education than their state and local
counterparts. Typically, the federal system recruits from state
and local systems and selects only the best available
candidates who already have several years of experience in
community corrections. Candidates are attracted to the federal
system partly because of better pay and benefits in most
jurisdictions, but also because of the excellent reputation of
the federal system. On average, federal probation officers have
12 years experience in community corrections. All have
bachelor's degrees, and half also possess master's degrees.
About 12 percent are fluent in a second language, usually
Spanish.
One reason for the excellent reputation of the federal
probation system is the exceptional training that federal
probation officers receive. All new officers participate in a
six-week basic training program on the campus of the Federal
Law Enforcement Training Center. Also, probation officers are
required to participate in a minimum of 40 hours of training
each year, on top of any training they receive in the use of
firearms and officer safety. Federal probation officers
participate throughout their careers in advanced programs
offered by the Federal Judicial Center, the United States
Sentencing Commission, and the Administrative Office of the
U.S. Courts.
Federal probation and pretrial services officers and their
state and local counterparts are increasingly exchanging
information about evidence-based practices at conferences such
as those of the American Probation and Parole Association and
the National Association of Pretrial Services Agencies. Also,
the Administrative Office of the U.S. Courts has long published
Federal Probation, a journal with three issues per year that is
available to the public and contains articles written not only
by academics, but by practitioners at the federal, state, and
local level.

RETENTION OF FEDERAL JUDGES

Mr. Serrano. Mrs. Emerson has no further questions. I just
want to add to the question she was talking about. Diversity in
courts, in general there is an issue of retention of Federal
judges. I don't know if you have touched on that in your
testimony, but the whole issue in that case was compensation.
Has that changed at all or is that still a problem?
Mr. Duff. We are still having a problem, Mr. Chairman. The
number of judges leaving the bench is increasing and we are
seeing troubling trends. It seems to be affecting the gains we
have made in putting a diverse bench together. It has been
slow, it is out of our control a bit, but it has had a
disproportionate impact on minorities leaving the bench because
of the economic impact.
So we have not received pay restoration that we have been
seeking and it continues to be an issue, but we are mindful of
the difficulty of doing that in this economic climate.
Mr. Serrano. I understand the judges look around and see
people with the same law degrees doing 10 times better than
they have, not to make light of it, but tell them that you know
a chairman of a committee that represents the area of Yankee
Stadium and there are 27 guys there and the minimum salary is
$660,000 a year for a rookie and the other is making $27
million a year, so I understand. I understand.

CHAIRMAN SERRANO'S CLOSING REMARKS

I want to thank you both for your testimony. I have more
questions for the record and, Ms. Lee, if you have more
questions it will be submitted for the record and same to you,
Mrs. Emerson.
We want to thank you for your testimony and want you to
know this committee all stands ready to assist you and when we
do ask you hard questions and present to you that which we
think is fair as diversity in the courts, we do it because it
is the right thing to do and we hope you pay attention to that
and work on trying to resolve those issues. We thank you for
your testimony.
Judge Gibbons. We thank you very much for the opportunity
to be here.
Mr. Duff. Thank you, Mr. Chairman. If I might add, I wish
you all the best with your new bill on naturalization. I will
say that I have encouraged our judges to include Members of
Congress in the naturalization ceremony, so if your bill passes
we will have less opportunity to interact.
Mr. Serrano. My bill will allow you to give the oath to new
citizens.
Ms. Lee. Is that the bill you want me to cosponsor?
Mr. Serrano. Yes.
Ms. Lee. You got it. Thank you for clarifying.
Mr. Serrano. The hearing is adjourned.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

Thursday, April 15, 2010.

FY 2011 BUDGET REQUEST FOR THE U.S. SUPREME COURT

WITNESSES

JUSTICE CLARENCE THOMAS, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE
UNITED STATES
JUSTICE STEPHEN BREYER, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE
UNITED STATES
Mr. Serrano. The subcommittee will come to order. Just two
personal notes at the beginning. Number 42 is in honor of April
15th, 1947, for those of you who are a little young in the
crowd. That is the day that a man named Jack Roosevelt Robinson
stepped on a baseball field for the first time and, in my
opinion, in the process integrated not only baseball, but
integrated America. And we honor him today throughout Major
League Baseball, and I thought it would be fitting to honor
number 42.
By the way, a good story in the New York Times about
Mariano Rivera of the Yankees as the last player to wear number
42, and your favorite committee chairman is quoted in the
story.
Mrs. Emerson. And what is, if I may ask, the Yankee's
record so far, Mr. Chairman?
Mr. Serrano. You are out of order.
Also I would like to note before we begin this hearing that
there has been a change at the Court which has special meaning
to the Court, to the American society in general and to me
personally, because Sonia Sotomayor comes from the South Bronx
from the area that I represent, the area that I grew up in, and
her parents were born on the same island of Puerto Rico that I
was born on. So of course it was a special time to see her
become part of the very prestigious and very honorable Court.
This morning we gather to hear about the fiscal year 2011
budget request for the Supreme Court. We have the distinct
honor of being joined by two distinguished Justices of the
Supreme Court regarding its appropriations request for the
upcoming fiscal year, and we do so at a time when the Court's
longest-serving member, Justice John Paul Stevens, has recently
announced that he will retire when the Court finishes the work
for the summer. I know that I speak for every member of this
committee when I ask the Justices here today to pass along this
subcommittee's appreciation and thanks to Justice Stevens for
his decades of service to our country.
These annual hearings are a rare and important opportunity
for our two branches of government to interact. Congress, of
course, has constitutional responsibility over Federal
spending, which includes appropriations for the Supreme Court
and the rest of the judiciary. Although I always have some
concern about asking the third branch to come and testify
before us, these hearings provide a valuable chance not just to
help us understand the Supreme Court's budgetary needs, but for
the Nation's highest court to discuss issues affecting the
judiciary as a whole. Hopefully our two branches get to know
one another a little better as well.
Meeting the needs of the judicial branch is a priority for
the subcommittee. The courts have a vital role to play in our
society where the rule of law is a core principle. We need to
be sure that the courts have the resources they need to
dispense justice with reasonable speed and care, as well as
proper regard for the rights of defendants and litigants and
the needs of society.
At the same time we must also exercise due diligence in
spending matters and balance competing needs. In some years the
percentage increases requested by the courts have been
substantial, as have those of many agencies. As we put together
our plans for fiscal 2011, we face a more austere environment
for nonemergency spending. We look forward today to a
discussion of the budget needs of the Supreme Court as well as
a broader conversation about the Federal judiciary as a whole.
Our witnesses are Justice Clarence Thomas and Justice
Stephen Breyer, both of whom have appeared before the
subcommittee previously. In fact, I think Justice Thomas may be
on his way to setting a record for appearances before the
committee. We will have to put up your number. Justice Thomas
was nominated to the Court in 1991 by the first President Bush
after serving as Assistant Secretary of Education for Civil
Rights, Chairman of the Equal Employment Opportunity
Commission, and as a judge on the Court of Appeals for the
District of Columbia, among other positions, and we welcome you
again to the committee. I say that with great admiration when I
say that you have been here so many times before us to share
your testimony with us.
Justice Breyer joined the Court in 1994 as a nominee of
President Clinton. Before that he was a professor at Harvard
Law School, staff member for the Senate Judiciary Committee,
and judge and then chief judge on the Court of Appeals for the
First Circuit.
We welcome both of you today, and we are glad that your
previous appearances before the subcommittee were pleasant
enough that you agreed to return for repeat performances. Thank
you for joining us today.
Mr. Serrano. And now I would like to turn to my colleague
and my sister Mrs. Emerson, our ranking member.
Mrs. Emerson. Thank you.
Welcome, Justices Thomas and Breyer. I really appreciate so
much that you come before us today.
An independent judiciary, trusted and respected by all
citizens and committed to fairly and expeditiously resolving
difficult and controversial questions, is a fundamental
institution for our Nation. Although the Supreme Court budget
is not large in comparison to other Federal programs, I am
pleased you are here today and recognize the importance of your
testimony and appearance before the subcommittee. Outside of
the confirmation process, which we have no opportunity to
participate in, which should be quite interesting this year,
today's hearing is one of the few instances when the Supreme
Court and the legislative branch interact, and it is, in my
opinion, a worthy interaction as we recognize and appreciate
and respect the prerogatives of each branch. I look forward to
hearing from you both about the resources necessary for the
operation of our Nation's highest court as well as any thoughts
you all might have regarding our judiciary system as a whole.
As the witnesses are aware, the Federal deficit is
projected to be $1.6 trillion this year, and the Congress is
going to have some difficult spending decisions to make not
only this year, but for many years to come. Please know that I
will work with Chairman Serrano to make sure you all have the
necessary resources to fulfill your constitutional duties.
Thank you all.
Thanks, Mr. Chairman.
Mr. Serrano. Thank you.
By the way, that question about the Yankee record, is that
because the Cardinals are having a better start?
Mrs. Emerson. The Cardinals are doing phenomenally well,
knock on wood.
Mr. Serrano. There is always September.
Mrs. Emerson. Well, that is what happened last year, but
for now I am enjoying it, you know.
Mr. Serrano. Justice Thomas and Justice Breyer, the floor
is yours. As you know, the routine is that your written
testimony will be printed in the hearing record. Please proceed
with whatever oral statements you care to make, and then we
will have some questions.
Justice Thomas. Good morning, Chairman Serrano, Mrs.
Emerson, Members of the committee. Justice Breyer and I are
pleased to return, and we will pass along your kind wishes to
our colleague Justice Stevens. We will certainly miss him. He
is a wonderful man.
We have with us today a number of members of the Supreme
Court staff. We have the Clerk of the Court, Mr. Bill Suter. We
have Marshal Pamela Talkin, and the counselor to the Chief
Justice, Jeffrey Minear. And we have our Public Information
Officer Kathy Arberg, and our Acting Budget Manager Venita
Acker.
As I said, we are pleased to be here, and we have submitted
a statement for the record, as is our custom.
And you are right, Mr. Chairman, I may well be the longest-
serving member of this committee. I think it is 15 years now.
And maybe I will get off for good time or good behavior.
But the Court's budgetary needs, as you have indicated or
alluded to, are tiny. We understand this is a period of
austerity, and we have, as in previous years, been very serious
about our responsibility to review our budget needs. And I
emphasize the word ``needs.'' We do not look at this as wants
or a wish list.
In the years I have been before the committee, we have only
asked for what the Court has needed. In some years, in my
opinion, we haven't even asked for that. The largest request,
as you remember, was actually--it had to do with the
modernization project, which is simply a matter of keeping the
building from falling down around us.
The budget request as in previous years is in two parts. We
have the salary and expenses, which Justice Breyer and I will
address, and we have the building and grounds, which the Acting
Architect of the Capitol Stephen Ayers will address. But on
that latter category, let me make a couple of comments, and I
will be brief.
The modernization commenced in 2003, fiscal year 2003. And
there is some confusion about the year simply because the first
portion of the modernization actually had do with the
construction of an annex, which is an underground facility, and
that was necessary to handle the portions of the building that
were going to be occupied with construction initially or
changed. With respect to the completion date, we had some
initial slippage in the early part of the modernization
project. Since then it has been timely. It is scheduled to be
completed this summer, and with the close-out activities
finishing early next calendar year.
With respect to our salaries and expenses request, that
portion of our total budget this year request is $77,758,000
for fiscal year 2011. That is an increase of $3,724,000, a 5
percent increase. Now, 70 percent of that increase is
nondiscretionary, it is mandatory. It is basically what is
required to continue operating at our current level. It is an
adjustment to our base. It is increases in salary. It is
mandatory increases in benefits. There is an additional
$173,000 that is simply in there for inflation to cover
inflationary increase.
Last year we asked for an increase of $799,000 in addition
to those base adjustments, and we did that to hire personnel
and to get the appropriate equipment to bring our Web site in
house. That has been an early success. In the first 2 weeks
that that system, that the Web site, has been up, we have had
25 million hits from around the world. As you remember from
discussions in the early years, we were ecstatic about 1
million hits in a month. It has been well received and
universally praised. This allows us now to make adjustments,
the things that we talked about early on. If you visit it, you
will see it is a much better site. Things that used to take
several hours to get on site, changes that could only be made
within a matter of hours or not made at all are now made in a
matter of minutes, 3 to 5 minutes to put something there.
As I indicated last year, though, there is one area where
we would probably come back this year to ask for some increase.
And we do this again with some reluctance, but recognizing in
all candor that this is a need. It involves the security area.
I think in parting last year, I was asked whether there was one
area in which I thought we would have additional needs beyond
the technical area, and I said it would be security.
What we did is we had our security personnel do a complete
review of our needs, and their suggestion or their request,
which was pretty well documented, was that we needed 24
additional police officers. And the reason that you need the
additional police officers is with the opening of the building
after the construction, we will have more pedestrian traffic.
In addition to that, we will have an entrance to the building,
an underground entrance, that was closed and did not need to be
policed in the way that the other entrance was policed. That
will require additional police officers. We also have
additional needs at our command center.
Now, rather than coming here with a request as required or
the personnel or security people asked for, we are going to ask
for half of that. We are going to ask for 12 rather than the 24
and make do with that. But as I indicated, that is a request
that our security personnel feel pretty strongly about. That
again will result in an $886,000 increase in our nonadjustment
to the base request.
With that, Mr. Chairman, I will just simply respond to your
questions at the appropriate time.
Mr. Serrano. Thank you.
Justice Breyer. That is fine.
Mr. Serrano. Thank you so much.
Justice Thomas. That is the first time he has ever agreed
with me. Well, it is not the first time.
Justice Breyer. No, I agree with him all the time.
Mr. Serrano. I hope somebody is taking notes of this.
Mrs. Emerson. C-SPAN is.
Mr. Serrano. My first question would be one that you
touched on, but I just wanted to clarify. So you believe that
the modernization project will be completed on time this
summer?
Justice Thomas. Well, on time as is currently projected,
not from the initial completion date--we are a year behind.
Mr. Serrano. Well, yes, on time based on last year's
testimony where you said it would be this summer.
Justice Thomas. That is right. It is expected to be done
this summer with the close-out activities drifting into the
early part of next year.
Mr. Serrano. What would those close-out activities be?
Justice Thomas. I think it is basically we have got some
grounds, perimeter work to do. We also have some cleanup to do,
removal of construction trailers, et cetera, those sorts of
things.
Mr. Serrano. Overall how would you characterize the Court's
experience with the modernization process in terms of adequate
budget, resources, and disruption, if any, to the Court's
operation?
Justice Thomas. From my perspective, I think it has been
spectacular. In any big projects we have a choice. We could
move out of the building as they, in essence, rebuilt it. You
are talking about plumbing, and wiring, structural work,
heating and air, and some security issues. Now, if you look
around town, many people evacuate the buildings in order to
accomplish this. We chose to stay, and they have had to work
around us. Now, there have been glitches, things weren't
perfect, but I would characterize the resources, the handling
of this, from my perspective, as excellent, recognizing that
there are imperfections.
Mr. Serrano. Well, as difficult as it must have been to
have this work going on while were you there, I always felt it
was very important and symbolic that you would stay. If I was a
bad stand-up comic, I would say if you move, where would the
protesters know where to go?
Justice Thomas. They would figure it out.
Mr. Serrano. But there was definitely a need for
continuity, and I am glad you chose to do it that way.
Question. You said you could really use 24 officers, but
you are only going to ask for 12. You are not going to get too
many committees asking why you are asking for the lesser
number; they actually applaud that. So do you feel that the 24
was maybe too much of an ask, or are you being nice to us
because of the budget problems, or do you actually think you
can do it with 12?
Justice Thomas. We have not asked for a budget or any
increase in security personnel since 2006, and we have managed
to do with what we had, or what we have. We try to do that
before we come to this committee. Now, we would like--we think
the appropriate number is 24. It is a comfortable number. It is
a number that gives us some leeway. But we can with a minimum
or baseline number of 12 make it work. So it would be not a
luxury, but a better, more practical, a more flexible number to
have the 24. And I think most agencies would come in and ask
for the 24.
Mr. Serrano. Right.
Justice Thomas. But as I have said, we have never in the
time that I have been coming here ever asked you for more than
we have needed. We have been very stringent, particularly
during Chief Justice Rehnquist's tenure. He was very strict
about what we asked for.
Mr. Serrano. One last question on that. These 12 new
officers, I am just curious, do you select them from an
existing law enforcement force, are they trained only for the
Supreme Court, are they totally new hires, or do they get
transferred from Capitol Police or somewhere else?
Justice Thomas. I think in the past we used to take quite a
few people from, say, the District police force, Metropolitan
Police, and various agencies around town. We normally now hire
new people, and we send them off to the Federal law enforcement
facility and training facility down in Brunswick, Georgia,
which probably is excellent merely because it is in Georgia.
And so it is normally an entry-level job. We have had good luck
with keeping them. We have had very little turnover. In the
early years we had quite a bit of turnover, and that got to be
a problem. But after we reached parity in benefits and salary
and retirement, that has pretty much ended.
Mr. Serrano. Let me ask you one last question before I turn
it over to Mrs. Emerson. The Court has requested $6.3 million
for 2011 to finish roof repairs to the Court building. Is this
request part of the Court's modernization project, or is this
something new?
Justice Thomas. That is separate. That is in the buildings
and grounds category. The Architect of the Capitol will handle
that, but that roof, that is a part of the maintenance. The
roof is an old roof, it is the original roof. And this has been
an ongoing project, and this 6.3 million is to finalize the
repairs on the roof. It is the final phase of that, but it is
not a part of the modernization project.
Mr. Serrano. I think you spoke about this in the past,
forgive me if I am wrong, but I think you said part of what we
wanted to accomplish was not only to make the building more
workable for everyone, but also to make it easier for folks to
visit. Do you think we have accomplished that?
Justice Thomas. I think we have. I think we can always
debate around the margins, as to whether or not this approach
or that is a better approach. I think we all have different
opinions about that, but I can remember my own first venture up
steps in the Supreme Court. I was overawed by it, and it is a
national treasure, but it is also a building where we work. And
I think we have managed to maintain that balance both in the
modernization project and the additions. There are going to be
new things, such as a new film. I think there is more artwork
there. I think the building is maintained in an excellent
fashion. So the answer to that, I would say, is yes.
Also on the Web site, I think, is an opportunity to see
more of the building and more of what we do. Just the ability
to show what is there without actually having the physical
intrusiveness or disturbances that you would have is
outstanding. So I think there are a number of opportunities to
do that. I think the building--and you have been there--it is a
fabulous place to work and to visit. So I think that we have
accomplished that. Justice Breyer may have a different view of
that.
Mr. Serrano. Do you have a different view of that?
Justice Breyer. I will wait to see what happens. We had at
one point, I think, about a million people a year coming
through. I think that is good. I think the number has dropped a
lot because of the construction probably, and I hope to get
back to a million or more. I think it is important that people
go through that building. It is their building, and they ought
to know about it.
Mr. Serrano. Thank you.
Mrs. Emerson.
Mrs. Emerson. Let me ask a combination modernization/
security question just back related to the 12 officers. Given
the recent events, the plane crash into the IRS building in
Texas, the shootings at the Las Vegas courthouse and at the
Pentagon, that shows that we perhaps, perhaps not, need
heightened security at some of our Federal buildings. Obviously
you all are a high-profile building. You are being very kind by
asking for 12 officers, but have you all had any additional
security threats over the last year or so that might give us
reason to think 12 new officers won't be enough?
Justice Thomas. Without getting into too many details in an
open hearing, one of the reasons for the request is actually we
have individuals who work on--one person actually now--who
actually do the work on threat assessment. And we are going to
upgrade that because of the volume, without getting into the
details of it. We understand the importance of analyzing those
threats and remaining current and following up on that.
Mrs. Emerson. So within the new modernization project, you
will have a new police command center in the building, correct?
Justice Thomas. That is already----
Mrs. Emerson. You have that already?
Justice Thomas. Yes.
Mrs. Emerson. And what about the additional entrances to
the buildings once the modernization is completed; how many
additional entrances will there be for purposes of security? In
other words, if we have 3 new entrances and only have 12 new
officers----
Justice Thomas. We will have enough officers to cover the
entrances, but the point is that, as I said, it would be
sometimes you can have things that are adequate that you can
get through the process with, and then sometimes you could have
a little more. And what we try to do is not to come here before
this committee, particularly now in this austere period, and
ask for more than we actually need.
Mrs. Emerson. And Justice Breyer mentioned having--
hopefully once the modernization project is complete, more
visitors will come, and so that is important, too.
In fiscal year 2010, we funded the $3 million building and
grounds request for perimeter security. Has the Architect of
the Capitol implemented those security improvements as of
today, for example?
Justice Thomas. We are in the final phases. We have one
side of the building to do.
Mrs. Emerson. Okay.
Justice Thomas. And that will be done after the
construction is done.
Mrs. Emerson. So you think it will be on schedule and
within budget?
Justice Thomas. Based on everything I have heard, yes.
Mrs. Emerson. That is good.
Let me switch subjects. According to your-all's budget
submission, in 2009 there were 88 cases argued and 84 cases
disposed of by opinion. Back in the 1970s, 1980s, early 1990s,
there were well over 100 cases argued per year and disposed of
by opinion of the Court. So one could ask the question then is
the Court less efficient than in previous decades, or it could
be other factors.
So I am just curious. Could you describe how the Court,
number one, decides what cases it will accept? And do you
consider this decrease in cases argued compared to earlier
decades to be significant? I am just interested in your
thoughts on these trends and whether you expect it to continue
in future years or not.
Justice Thomas. First of all, with respect to the future, I
don't know. When I went on the Court in 1991, we had about 120
cases a year. I liked that number. Some members of the Court
may not agree with it, but I think 100 to 120 would be good.
But the question is what is in our pool of cases. In the
8,000 petitions we get each year, each member of the Court goes
through those petitions. I do it usually on the weekend. You go
through 2 or 300 that come in that are filed or that are
received during the week, and you make an assessment. What you
are looking for is whether or not it is a Federal issue that is
substantial or significant. And then you have other problems,
whether there are some--we call them vehicle problems; in other
words, a jurisdictional problem or some other reasons you can't
take the case. Then we go to conference, and we do that
individually, and we show up and we cast our votes. Four votes
in the case is, of course, the cert petition is granted.
I don't know why the number has gone down. People have had
different theories. I suspect that there has been a change in
our--to some degree in our mandatory jurisdiction. It is
virtually all discretionary now. It may be that the courts of
appeals are agreeing more, I simply don't know. There haven't
been until recently, or hasn't been, comprehensive legislation
that would produce the kinds of cases that would fill our
docket. I asked that this be looked into before, and I don't
know anyone yet who has more than a theory. I see nothing, no
documented reason yet, for the trend. I thought I happened upon
one, but to this date I haven't had that substantiated.
Mrs. Emerson. Thank you, Justice Thomas.
Justice Breyer, you look like you want to say something.
Justice Breyer. No. I think it is a very good question. I
will try to keep it to the 2-minute version. The 10th-graders
are the ones that I really like to talk to about this because
it helps them understand what we do.
And I make a couple of points. Justice Thomas likes to have
evidence. I used to be a professor, and so I don't need any
evidence; I like theories. I try to point out most laws in the
United States, almost all of it, is State law. Federal law is
about 3 percent. That is the law passed by you in Congress and
the Constitution, and we only handle Federal cases. And Justice
Thomas very well said which Federal cases.
The basic rule is that we are there really to work out
differences among other judges. If all the other judges in the
United States who handle these questions are in agreement on
what these words mean, why us? Jackson said that; he said, we
are not final because we are infallible, we are infallible
because we are final. Now, no one knows what that means. What
it means is we don't have the last word because we are so
brilliant. We are, of course, brilliant, but only, only, only
in the sense that someone has to have the last word. So if they
all agree, why us? And if they disagree, though, then we have
to work it out. So there you have the basic criteria.
Now, why has that criteria ended up with fewer cases in the
last few years? Here is where I bring in the theory, and it is
a very old theory. You can read it in 1584 in Montaigne. He
says this king or whoever it was was so stupid, he thought by
writing a lot of laws, he was going to reduce the number of
lawyers because he was going to explain everything. Doesn't he
know every word in a bill is a subject for an argument in court
and a decision?
So I think what has happened is our diet has become like
AEDPA, ERISA, and that is because if we go back 10 years, those
are the laws you passed. And now you, I gather, have passed a
law with 2,400 pages. If you have passed a law with 2,400
pages, it probably has a lot of words, and I would predict as a
test of the theory that 3 or 4 years today, no one is ever
going to ask us again why we have so few cases.
Mrs. Emerson. Oh, that was a good answer. Thank you.
Mr. Serrano. It was a great answer.
Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman. And as I always have
to begin my statement when the Chairman brings up the subject,
I just want to begin by saying, Go, Sox. That limits my time.
Mr. Serrano. Is that White Sox or Red Sox?
Mr. Schiff. Red Sox.
Mr. Serrano. Red Sox? You have 3 minutes.
Mr. Schiff. You have to stick by your principles, and it is
worth it.
I have a couple of questions in looking at the request in
terms of salaries and expenses. It says this sum reflects an
increase of 5 percent over the appropriation for 2010. What
does that represent in terms of percentage increase of salary
for staff? I didn't know whether the 5 percent meant a 5
percent salary increase, or 5 percent was including salary and
benefits, and therefore the salary increase was less than 5
percent?
Justice Thomas. No, 5 percent is the overall--the increase
of the overall budget. And the increase of the salaries are
merely--it is less than that, it is whatever we have--it was
the cost-of-living increase plus whatever in-grade natural
promotions that are required. But beyond that, they are not
arbitrary increases, and it is not 5 percent. Five percent is
the overall increase. For example, if we are required to
increase benefits because of the benefit package, that goes up.
If you are required to pay into whatever you are required to
pay additionally into retirement systems, that has increased.
Mr. Schiff. Justices, if you could get back to us with an
indication whatever that will mean on average salary increase
for staff if you don't have that figure available.
Justice Breyer. He says it is about 1.4 percent.
Mr. Schiff. Thank you. And I appreciate that frugality. All
our staff are facing the same kind of difficult economic
challenges as well as people around the country, and appreciate
your efforts to keep your budget reflective of economic times.
I do want to say that I hope, continue to hope, this year
with the longer term in mind and the broader issue of judicial
salaries that we can delink judicial salaries from our own,
which I think has not served us well, and has not served you
well, but particularly hasn't served judges well. But that is a
topic for probably another discussion.
I wanted to raise an issue that I have been studying for
some time and increasingly feel more and more strongly about,
and I think it may be a difference of opinion. I think Justice
Breyer and I have discussed this perhaps in the past, and that
is the issue of cameras in the courtroom. Is there any plan in
the works to change, to pilot or in any way increase the use of
cameras at the Supreme Court?
Justice Breyer. Mr. Minear tells me that the Judicial
Conference is currently considering a pilot project that I
guess they are favorably disposed to it.
Mr. Schiff. That would be a pilot project in your
courtroom?
Justice Breyer. No, it wouldn't be in our courtroom.
Justice Thomas. No.
Justice Breyer. It would not. The Judicial Conference does
not have to do with--our Court--it has to do with the lower
courts.
Mr. Schiff. Well, let me raise specifically the issue in
your courtroom. I will share my thoughts on that. I would be
interested to hear your own.
I would think probably of any courtroom within the system,
appellate courts, both the courts of appeal and the Supreme
Court, would be probably the best situated for cameras in the
sense that you don't have the same kind of jury issues that you
might have at the trial court level. You have the ability of
the judges to consider whether counsel are playing to the
cameras. And I would think particularly at the level of the
Supreme Court that counsel would be very circumspect about
playing too much to the cameras, given that if that is not the
predisposition of the bench, it would not help them in their
advocacy. And I think that this is one of the few areas of the
public sector that remains free of cameras, and we are still
using sketches and audiotapes, which seems anachronistic.
I just think that change is inevitable. I would be
interested to hear whether you would contemplate a pilot in
your own Court or why the dynamic is so different with an
audiotape versus a videotape.
Justice Breyer. The answer is I think I don't know. I think
I know fairly well after a long time the arguments for and
against. If you bring courtrooms into--cameras into the oral
argument, there is a big plus for the Court and for the public.
I think they will see that we do our job seriously; we don't
always get everything right, but we take it very seriously.
People are well prepared, the lawyers are well prepared, the
judges are trying to think out problems that are difficult
problems. And for the public to see that, I think, would be a
plus.
So why not do it? The concerns are not, I think, totally
the ones you have mentioned, but that is part of it. The
concerns are if we bring it into our Court, we are assembled,
and if it is in our Court, it is likely to be in every court in
the country, including criminal procedures where there are
separate problems raised as well, judges, juries, witnesses and
so forth.
A second problem is will understanding be promoted if you
can--because you can only show the oral argument, which is 1
percent of what goes on. And people relate to what they see
much more than they relate to what is in writing. And we are
deciding cases that we have results for 300 million people, and
only 6 of them are in front of us, and we have to worry a lot
about what our ruling will do to the 299,999,000, et cetera,
that aren't there, and so will there be misunderstanding about
that?
And the third, which I think is minor, but it is possibly
there, it is not that the lawyers or judges or anybody would
act up. I don't thing they really would. We just had the
Canadians in a visit to us, and they have it in there, their
Supreme Court, and it has worked out all right. But there is
some concern about what--I mean, we have a group of people in
our press room who know how the Court works, and when you read
what they say, you know it is being written about by someone
who knows how the Court works. That isn't always so. The
cameras don't always have the time, and will there be
misperception given?
Now, you can take those three worries I have listed and say
in your own mind, they don't stack up against the plus. I can
understand that. But our jobs are those of trustees for this
institution that has served America well, and there is no going
back. I think there is no such thing as an experiment on this
in the Supreme Court; you have to decide it. And that is why I
think what is needed is a comfort level; that by giving a
comfort level, it may come sooner rather than what I tend to
agree with you on, inevitably later.
Now, how to get that comfortable is a long, complicated
matter. I have always said it will involve studies, and serious
studies, not just ones promoted by the press, serious studies
of what has happened in different places. And when I say that,
everyone goes to sleep, because when you mention the word
``study,'' that is a good somnorific. But I think something
like that is necessary.
I like these pilot programs even in other courts. I think
there are things to be learned, and I think eventually we will
get the comfort level, but I think we are not there yet.
Mr. Schiff. If I can engage a little bit on that, because I
think you mention three different points, probably the most
substantial being that, well, people could misunderstand
because the case only ostensibly applies to the litigants in
the Court, but it affects millions. There is, in my view, a far
greater chance of misunderstanding if the public isn't able to
see. There is far greater, I think, opportunity for people to
be suspicious of the outcome or misunderstand the process or
misapprehend the process. They don't have the window into the
Court's workings that would be provided by actually watching.
And so your first observation, I think, is the much more
compelling one, which is it would be beneficial to the Court
because people understand what it does better. It would be
beneficial to the public to gain that understanding. I think
that clearly trumps any risk of misunderstanding, which is
always going to be present, and I think is more present when
things are done less visibly than with more visibility.
Is that the tapping of the gavel?
Mr. Serrano. The 9-minute gavel, yes.
Mr. Schiff. Okay. I will wrap up, Mr. Chairman. Thank you.
I knew I shouldn't have made the comment about the Red Sox.
I also think that the kind of slippery slope point that if
you do it in the appellate court, you must do it in the trial
courts isn't necessarily so. And there are different factors
that work when you have a jury and when you don't.
And finally, the fact that the print media may be very good
and very professional, and you have less control with the
electronic media, that is true in our profession as well. A lot
of what we do is in writing, and a lot of what all government
bodies do is in writing, and I don't find that a compelling
reason not to go forward.
At the end of the day, I think you put your finger up and
you said, we just have to decide. I don't think a study is
going to give you a comfort level. I think the only thing that
will give you a comfort level is by taking the plunge. I also
think, Justice, it is just inevitable. And if it is inevitable,
we might as well plunge forward.
And I appreciate the chairman's indulgence. Thank you, Mr.
Chairman.
Mr. Serrano. Thank you.
The gentleman brings up an interesting issue, one that the
chairman, since his days in the State assembly, has dealt with
about cameras in the courtroom. My concern, just on the record,
is one that will probably get me badly spoken of tonight on
some talk shows, but it is precisely the fact both on the left
and on the right there will be evening talk shows, not the
news, but the talk shows, grabbing clips from that day's
Supreme Court proceedings and saying, did you hear Breyer? What
a jerk. Did you hear how many questions he had? Did you hear
Thomas? Oh, my God.
Justice Thomas. Or you didn't hear me.
Mr. Serrano. Did you see them there?
That is my concern. And I am sure, in the desire for full
disclosure, people are going to say tonight that, you know,
what am I, for covering things up? I wish there was a way that
we could let the public see more and not just invite people to
treat the Court the way they treat us.
Justice Breyer. There is a difference. Can I?
Mr. Serrano. Sure.
Justice Breyer. It is sometimes overlooked, but I think it
is an important one in the nature of the jobs. Your job is to
write some words on a piece of paper, and those words tell
people what to do or what not to do. But they don't tell on
that paper, they don't say why you wrote the words. That is not
the nature of the job. So obviously there is an inside story
that is not on that paper.
A judge's job is different. A good appellate judge, the
ideal is you write not just the words, but you write the
reasons why you wrote the words. And if you are honest and
good, they explain the real reasons why you wrote the words.
So in that sense the process is quite different, and it is
a process that takes place much more in writing and much less
even in conversation among us than, say, a job like yours. They
are different, but I can see your concern there, and, of
course, it is something that worries us.
Mr. Schiff. Mr. Chairman, if I could just jump in, one
quick point.
Mr. Serrano. You know, Mr. Crenshaw here is not happy. Go
ahead.
Mr. Schiff. Mr. Crenshaw is such a gentleman, he will allow
me 30 seconds, please.
No one is suggesting that your job is the same as ours, but
I am suggesting that the public would benefit from a better
understanding of your job just as it benefits from a better
understanding of ours. People watch your arguments and listen
to your arguments because they find the questions you ask shed
light on sometimes your own thinking, sometimes on the issues
in the case. I think the more the public has a chance to see
how thoughtful and probing those questions are, I think, as
your original comments indicated, it is good for the Court, and
it is good for the public.
I yield back, Mr. Chairman.
Mr. Serrano. Mr. Crenshaw.
Mr. Crenshaw. Thank you, Mr. Chairman.
I might make the observation that today's hearing is being
televised, and one thing is irrefutable: When you put Members
of Congress on television, they tend to talk longer than they
do when they are not on television. So I don't know if that is
true to the Supreme Court, but we have kind of seen that over
the years.
Let me say that I have looked at the numbers and listened
to your testimony. The budget requests are certainly
reasonable, a modest increase. The building is pretty much on
time and on budget. You are asking for 12 instead of 24
additional security folks. So I don't have a lot to quarrel
with in terms of budget requests.
I just have a couple of questions I am kind of curious
about. Number one, how does the Court decide who comes here to
testify? Is that an opportunity that everyone seeks and that
you have done such a good job that you are invited back, or is
it because you draw straws and you come up short every time?
Justice Thomas. Well, actually it is probably a
combination. But if you would bear with me 1 minute, I would
like to just address the question of the increases on--the 5
percent increase that Mr. Schiff asked before, and that is the
proposed increase for 2011 for the members of the Court is 1.4
percent. That is the mandatory increase. And for the Court
personnel it is 1.4 percent also. So it is different from the 5
percent that is the overall budget. They are unrelated.
I was asked in my early years on the Court to participate,
to be a part of the budget committee, and that meant that you
came up here as a part of that and testified. I don't know how
that selection was made except when the Chief Justice asks you
to do something, you normally try to be positive and be a part,
help him out. I think it is good for the Court and good for the
institution to be asked to do these things. And I think, like
anything else, you get used to it, and you would know the
process, and they like that continuity, especially with a new
Chief Justice. And he asked that we participate in this, and I
think we--I think I--speaking for me, I enjoy this. I have
gotten to know the members of the committee, and I think it is
good for both institutions.
Mr. Crenshaw. Well, you do a great job, and I am glad you
are here.
Let me ask you a more serious question. That is as we get
ready to kind of watch the nomination process of a new Justice,
the discussion about diversity will come up, ethnic diversity,
racial, gender diversity. I know you-all don't have a whole lot
to do with the selection. That is outside your hands. But you-
all do select clerks. And I was just looking at the kind of
list of the clerks who have served over the years, and it seems
to me there is a disproportionate share of clerks that come
from either Harvard or Yale. And I look out in the audience and
I see some young people who might aspire to be a clerk for a
Supreme Court Justice someday. I wonder what they think when
they look at that, and the kind of question becomes--is the
reason for that because people from Harvard or Yale are more
qualified to be Supreme Court Justice clerks, or do a
disproportionate share of students from those schools apply?
And is that something that you-all think about, you know, the
educational diversity aspect of being a clerk?
Justice Thomas. Well, that is an interesting question. The
courts are predominantly Harvard and Yale. There is no
educational diversity there to speak of. The only member of the
Court who is non-Ivy League is the member who is retiring, who
announced his retirement. So I don't think that is unusual. You
do have excellent candidates from those two schools, Harvard
and Yale.
I, for one, think that there are excellent kids all over
the country. I think there are excellent potential nominees to
the Court all over the country. And I would be concerned about
it, but I am not--I think you have elections for that. That is
up to the President.
With respect to the selection of the law clerks, I tend to
hire from a very broad pool. I have a clerk from Harvard and
one from Yale this year, and one from Utah and one from Notre
Dame. I really don't see it as a negative when a kid is number
1 or top of the class. The pool may not be as deep at some of
the other schools, but there is a pool nonetheless. But others,
you know, it is an individual thing. I hire my own clerks, and
I have my own criteria. And I am certain the other members of
the Court have theirs, and with that may go their comfort level
with moving beyond the Ivy Leagues or too far beyond.
Mr. Crenshaw. Mr. Chairman, one last question. I have
always got two bright people in front of me today, and when I
was reading law, one time I read a case, and I can't remember
the case and I can't remember the Justice, but the statement
was that versatility of circumstance often mocks the natural
desire for definitiveness. Does that ring a bell with you-all?
Was that Felix Frankfurter? Not that you would know that, but I
always wondered who said that. I need to go back and look that
up.
Justice Breyer. Google.
Justice Thomas. You should Google it, yes.
Mrs. Emerson. I will do it.
Justice Thomas. On your BlackBerry.
Mr. Crenshaw. I will do that. I once Googled a quote by
Jonathan Swift. There was a book called Confederacy of Dunces,
and interestingly enough, I just Googled that because it was
based on a quote by Jonathan Swift, who Mr. Schiff knows, who
said, whenever a true genius appears on the scene, you will
know him by the sign. The dunces all form a confederacy against
him. So I will go Google that quote, and maybe I can find out
who said that.
Mrs. Emerson. I will do it for you. Write it down.
Mr. Crenshaw. Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
Ms. Lee.
Ms. Lee. Thank you very much.
Good morning. Let me just say once again how delighted I am
to see you both. It is really a rare opportunity that we have a
chance to interact with the judiciary, so thank you for being
here.
I want to follow up Mr. Crenshaw. Boy, he asked my
question, but let me just follow up a little bit and take it a
little bit deeper in terms of how I would like to see your
answer a little bit more in terms of a broader answer.
First of all, I started here on Capitol Hill as an intern
in the early 1970s, became a chief of staff, and then went to
California, ran for the legislature, and now I am back here. It
has been very difficult. And I have seen some progress in terms
of women and people of color in these key positions. Not
enough. Actually we have, to the Speaker's credit, looked at
diversity here on Capitol Hill, and we are still not where we
should be in terms of reflecting the diversity of our great
country.
Now we are in the midst or the final stages of the census.
We know based on the previous census we are looking at 15.4
percent persons of Hispanic decent, 12.8 percent African
American, 4.5 percent Asian, 1 percent American Indian. And so
I know that the courts want to strive to be representative of
the American people in terms of your staffing and law clerks,
but we have to examine, I think, each agency and each branch of
government to really look at how it does reflect the diversity
of our country.
And Harvard and Yale are great law schools, they are
excellent institutions. However, we know that there are few
minorities attending these law schools. And so I want to find
out if you have an actual concerted effort to identify law
clerks from schools like Howard or Texas Southern or even, in
terms of regional diversity, Boalt Hall in California? And how
do you do this, and is there a way we can look at what those
numbers are currently?
And secondly, just in terms of I know your budget is a
relatively small budget, but if you do contract out any of your
activities or services in terms of vendors and projects, and if
you do contract these out, do you have any information as it
relates to women and minority-owned vendors and how you are
doing in that respect, if you do have a contracting program? I
know I asked this question last year, and, Justice Thomas, your
response was the law clerks reflected, or you thought they
reflected----
Justice Thomas. Well, the pool that we--that is the pool
for us. All of our clerks, or virtually all, with rare
exception come from the courts of appeals. So you start with
the courts of appeals, that is our base. Then it is individual
after that. But I know of very few clerks who have not at least
clerked at the court of appeals. Some clerk more than once or
clerk at various levels. So the clerks that you are looking at,
you look first at the courts of appeals; then you look at what
we pull from that.
Now, I have to admit I have a broad base as far as the law
schools, probably as broad as anyone at the Court with
exception of maybe Justice Stevens, and so there are quite a
few in the pool. The reality is that it is the Hispanics and
Blacks who do not show up in any great numbers.
Ms. Lee. They don't show up why?
Justice Thomas. Well, you just look in the pool.
Ms. Lee. So how do we increase the pool?
Justice Thomas. Well, I don't think it is up to us.
Ms. Lee. I would hope there would be a strategy.
Justice Thomas. I don't think it is up to us to increase
the pool. The pool comes from law schools and from other
judges. And then there are other things that go into that. But
with that aside, as far as--I don't really--I have to admit, I
don't really disaggregate my selection process that way. I just
broaden it, and the kids show up. I have had very good success
in kids who have done well. But----
Ms. Lee. Who are people of color and minorities?
Justice Thomas. Yes, I mean, but mostly--you know, again,
that is not as big an aspect of what I do. It happens. There
are some who show up, and I don't even know what their color--
--
Ms. Lee. No, I understand that, but in a country where we
have a history of discrimination, to show up----
Justice Thomas. I understand that.
Ms. Lee [continuing]. Just to show up, but we need to have
a concerted effort to make sure those who show up are inclusive
of the population.
Justice Thomas. But what is there is there. I think that
what you look at is what is in the pool.
Ms. Lee. But what is in the pool has to do, unfortunately,
with some of your decisions on the Supreme Court that have
really shut out many people of color in some of these
institutions. So if we go there, we could really have a good,
healthy discussion about some of your decisions. But I would
think that we would want to see a broader pool.
Justice Thomas. I think everybody wants it.
Ms. Lee. And you would find ways to help at least at the
court of appeals.
Justice Thomas. The wanting and the reality are two
different things. I think that we should have people from all
over the country on the Court. And as I have indicated, we tend
to heavily lean toward one region in the country.
Ms. Lee. Justice Thomas, I am trying to figure out how do
we change that? Because you don't want to see a Supreme Court
that is discriminatory, de facto, and that is what happens.
Justice Thomas. I think you do that--as I said, you broaden
the areas that you look. Many of us do that. I don't think we
have the capacity to change other Federal judges' hiring
practices.
Ms. Lee. You don't have the capacity, but----
Justice Thomas. To change other Federal judges' hiring
practices.
Ms. Lee. Wouldn't it be great if you sent out an edict to
say, Wouldn't it be nice to have a diverse law clerk pool that
reflects this whole country?
Justice Thomas. I think they know that. I think that that
is one thing----
Ms. Lee. They may not if you don't have the pool of people
there to pull from. They may not know that; that that is what
you all want to see. Somehow you need to communicate if that is
what you would like to see, rather than just say, We will take
who shows up. Because we know who is going to show up,
especially from Harvard and Yale.
Justice Breyer. I would say this conversation is not as in
date as you might think. That is, when I came to the Court 15
years ago, I was a little surprised at the small number of
minorities and people of color and Hispanic background who were
law clerks. I would say in the last 15 years, there has been a
sea change, and I think that it has not been as difficult as
people might think. And I think once you establish credibility
in the areas of people who might think, ``Well, I don't even
have a chance,'' you say, ``No, you do have a chance.'' I can't
say that, but I have to know people who will know other people
who will tell other people. And then gradually people begin to
think, ``Oh, yeah, maybe I do have a chance''. And then they
maybe get into this pool, whatever the pool might be. In other
words, like anything else, when you are hiring people or anyone
else hires people, you have to do so through networks and
contacts. That is at least part of it. And I have seen that
change.
So I don't think I have had a huge problem here in this
respect. Not perfect, but not the kind of problem that I think
you might be thinking of. I think there have been quite a few
in my office of very, very diverse backgrounds. And it has
not--I will even tell the chairman, I have even, Mr. Chairman,
had a law clerk y sus abuelos son de Ponce--I don't even know
if Ponce should be considered part of Puerto Rico because after
all, if you are from Ponce, you are really special.
Ms. Lee. Mr. Chairman, I think the facts would speak for
themselves. I would just like to ask to see a report of ethnic,
gender, and regional diversity. Is that possible, a current
report, so we can look at that?
Mr. Serrano. This is a very important issue for us and for
this committee and it has been for me as it has been for you,
Ms. Lee. I can understand what the justices are saying, and
maybe it is not their role to say, Send me this person or that
person. So in view of that----
Ms. Lee. I understand that.
Mr. Serrano. In view of that, this committee asked the
Judicial Conference to give us a report. And the report that
came back was pretty pathetic about the numbers at that level
in their courts. So what this committee wants to continue to
try to do is apply pressure, if you will, where the pressure
needs to be, which is at those so-called lower levels, to make
sure that the pool is increased.
Our information is that that is not happening; it continues
not to happen. And I intend for this committee to begin to tie
what we do to an understanding that the federal judiciary can't
come every year and ask for a lot of support from us and then
continue to give us those numbers.
Ms. Lee. Sure. And I understand that, and I have seen those
numbers. And I hope we get an updated report also, Mr.
Chairman. But I also think somehow there should be some sense
of intent, or the Supreme Court justices should make a
statement that this is something you would like. You can't say,
Yes, send us a diverse pool. But you can at least indicate in
some way that it would be nice to see diversity reflected, and
anything you could do would be very helpful. You all would know
how to nuance that.
Justice Breyer. I agree with that.
Ms. Lee. I am just asking if somehow you can do that
minimally.
Justice Breyer. Done. I agree with you.
Ms. Lee. Thank you very much.
Mr. Serrano. For the record, I want to state that Ms. Lee
asked a question I was going to ask and----
Ms. Lee. Mr. Crenshaw asked it.
Mr. Serrano. Justice Thomas, you and I have discussed this
publicly for a while. This is still a concern. And I add to my
concern in the past to Ms. Lee's current concern which I think
is important; that in a way that does not compromise the
integrity of the Court, the Supreme Court itself speak in some
way on this issue. I am not asking for a Court decision. I am
still waiting on the one where the Puerto Rican can run for
President of the United States. That is another issue.
But you make some kind of a statement that things have to
change at the lower level because there is a problem. And,
unfortunately, every year when you folks come here, it is the
Court that takes the brunt of the questions when, in fact, I
agree with you that the pool is a problem.
But in addition to the pool being a problem, or in spite of
the pool being a problem, I think if the Court was to say we
need this to change, we could begin to see change. And I have
nothing against Harvard or Yale. There are different places
throughout the country that can provide good folks.
Now, whenever we have you before us, we try to speak only
to budget issues and we can't pass up the opportunity to touch
slightly on other things. We won't get into any decisions. As
we honor the long tenure and important contributions of Justice
Stevens over the next few months, I cannot help but notice that
we lose certain unique characteristics from the demographics of
the courts with his or anyone's retirement at the end of this
term. Justice Stevens is our last remaining member of the Court
to serve in the military during World War II. He is the one
remaining Protestant member of the Court and the last justice
whose Supreme Court confirmation hearing was not televised,
amongst other things.
As we reflect on what we lose from Justice Stevens's long
tenure and experience, we must also begin to look forward to
what people want and expect of a new nominee. Absent any
judicial philosophy, which all of us here probably have a
different opinion on, are there any experiences, legal or
otherwise, that you believe the Court would be well served by
in a new justice?
And secondly, do you think having all the current justices
with previous judicial experience at the Federal courts of
appeals helps or hinders deciding cases? Do you think the Court
would do well to have a justice with experience at the State
level of our judicial system, as Justice Souter did, or perhaps
to have an experience as an elected official, as some other
members have had? So without again getting into philosophy,
what best serves the Court in your opinion?
Justice Thomas. Well, to all of the above, Mr. Chairman, I
would say yes. I don't think it matters as much what the
experience is, as long as it is experience making decisions,
and hard decisions. Just as I think it helps us if someone is
from a different part of the country, it helps us if someone
practiced law or maybe taught a particular area or prosecuted
or defended in a particular area. A judge on a lower court, a
trial judge versus an appellate judge, all of those things
help--Byron White was a wonderful judge, another World War II
veteran. He had not been a judge at all. He was a deputy
attorney general and in private practice before he came on the
Court. Just an excellent member of the Court.
So I think all of the above works. What we look for, those
of us who have been there a while, someone we can get along
with, an honest person, a person who will be conscientious, a
person who will realize it is a small group of us making hard
decisions. I don't think we ever discussed, at least during my
tenure, how a particular person would vote. And that is the way
we operate. But I don't have a formula for what a judge should
actually have. I like the way the Court is; people come at
problems with different perspectives and with a different
background. I think it is helpful to have that sort of mix. And
I think that most sitting judges learn in doing this job that
it is a humbling job, simply because the only people who have
ready answers are the people who have no authority to make the
decision and no responsibility to make the decision. Those of
us who have to make it, have to be more cautious and have to be
more humble about our abilities. So I don't think any of us
would come out and say to you, We have a formula for what the
next member should look like. Just as long as the person is a
capable, good person.
Justice Breyer. I think in respect to what you are talking
about, you should keep in mind the job--and it's why it is a
better job for an older person, in a way--it is sitting in a
room. That is how I spend my day; I spend my day looking at the
word processor. You are reading and you are writing. I told my
son that. I said, ``If you do your homework really well, you
get a job and you can do homework the whole rest of your
life.'' But what that means is you have to know not just what
those books say--that is part of it--and what all those cases
say and what the briefs say--that is part of it--but you have
to have what I would call a certain kind of imagination because
you have to be able to think yourself beyond the room into the
lives of the people whom these decisions will actually affect,
and you have to have a realistic imagination so you will
understand what the impact of this decision is going to be on
those people.
I cannot give you a magic touchstone that will tell you
whether you have that kind of person. All I can tell you is
that the nine people that are there try as hard as they can,
and sometimes they succeed and sometimes they don't. But it is
that kind of imaginative experience of others that really, I
think, makes the difference in terms of how you write those
words.
Justice Thomas. Yeah.
Mr. Serrano. It is interesting, Justice Thomas, when you
say it is a humbling experience. I will tell you a quick
experience that I had. I represent, as you know, the South
Bronx and there are a lot of immigrants in the South Bronx,
there are a lot of folks with English as a second language, a
lot of poor folks, a lot of folks with little education. So I
have been explaining on a daily basis, after 20 years in
Congress, what it is a Member of Congress does. It is a daily
routine for me, either in a school or in a community center or
on the street.
When Sonia Sotomayor was being considered, granted, a lot
of the excitement was that she was a woman from the Bronx, that
she was a Hispanic woman, that her parents were from Puerto
Rico. But there was no explanation on my part as to what she
was being nominated for. Everybody understood ``el Corta
Supremo.'' It was as if they knew that this was huge, this was
big, this was important, this was the coming of age for the
community; and it became something where everywhere I went you
are going to make sure this happens: Right, oh, yeah, I spoke
to the Senate and it is a done deal.
But the importance--I have told you in the past, much to
the dismay of some of my friends on the left, that I feel a
little uneasy about having a hearing for the Supreme Court
because of the respect I have for the Court. I don't always
agree with its decisions, but I have a respect for what it is.
It is humbling, but the public understands. The public
understands the importance of what you do and the bearing it
has on the future of our country. So we always thank you for
your service and tell the other seven that we do the same for
them.
Justice Thomas. Thank you, Mr. Chairman. And it is always
an honor being here. You and I have been at this together for a
decade and a half.
Mr. Serrano. I am glad to hear that you don't think there
has to be a judge on the court up here, because I am not a
judge.
Justice Thomas. And you don't have to be born in the United
States. You never have to answer that question.
Mr. Serrano. Really? So you haven't answered the one about
whether I can serve as President, but you answer this one?
Justice Thomas. We are evading that one. We are giving you
another option.
Mr. Serrano. Thanks a lot.
Justice Thomas. Thank you, Mr. Chairman.
Mr. Serrano. Mrs. Emerson.
Mrs. Emerson. Carrying on this thread a little bit, so the
last three justices appointed to the Supreme Court were 55, 56
and 50. The last retiree, 90. Some have referred to becoming a
justice or an appellate judge as taking the veil. And I am just
curious, do you all think that it is good for the Court to have
these younger justices serve terms that could be easily 40
years in length? I am curious.
Justice Thomas. Well, you are talking to a person who was
appointed in his forties. I guess I am sort of an extreme
example of your example. I can say this, and let me answer it
this way: I am very pleased that I had the opportunity to work
with members of the Court who had long tenures. Each of them
brought something unique. They have a view of the law and the
job that is different and has more depth to it than when those
of us in our first 2 or 3 years. They have been there.
To hear Justice Stevens talk about being there in the early
days with Justice Stewart, and what the decisions were, and
having sat on so many cases that now form the precedential
foundation for much of our jurisprudence, it gives you an
advantage when you have people with that much experience.
I don't have a magic formula for how long judges should be
on courts. If it was 25 years, I would be close to done; I
would move on to another phase of life. But it is not that. It
is a lifetime appointment in this country. And I see from my
perspective, not necessarily for me, but I see some advantages
to it and some disadvantages. But so far I just simply do not
see, in serving with members who were in their later years, I
just haven't seen all that many disadvantages. They have been
wonderful colleagues, to a person.
Mrs. Emerson. I appreciate that. Justice Breyer.
Justice Breyer. I don't know if the right number is 40. I
don't know what it is. It needn't be that long. But you would
have missed Holmes, some of Holmes's service and Brandeis. What
I think is important is that they be long-term. And the reason
I think that is because it means that you will have members
appointed by different Presidents. And while Presidents make a
huge mistake if they think they are going to appoint somebody
who is going to agree with them all the time, they--Teddy
Roosevelt appointed Holmes. Three months later he is on the
wrong side of the Northern Securities case and Roosevelt says,
``I can carve a judge with more backbone out of a banana.'' He
was pretty annoyed.
But on general philosophy, on general philosophy, there is
more of a correlation. All right. I came to this Court. I have
been a judge in New England. I grew up in San Francisco. I
spent a lot of time teaching, and I suddenly thought, my God, I
have met a lot of people who I disagree with on something, but
boy they are really here and they really disagree. And then I
think about that for 5 minutes, and I think that is a very good
thing. This is a very big country. There are 300 million
people. They have 900 million points of view. There is every
race, every religion, there is everybody under the sun in this
country. And they have learned how to live together under law.
And our greatest perk, our greatest benefit, is we get to sit
there and see that.
So it is a very, very good thing that I serve with people
who don't always agree with me--sometimes they might--but who
don't always agree with me and have different points of view. I
think you ought to serve at least long enough to be sure you
pick up a lot of that.
Mrs. Emerson. I appreciate that.
Let me ask another question that is a rather touchy
subject. And I promise you, I am not trying to put you on the
spot. But this is a big issue, given the fact there are a lot
of judicial vacancies around the country at all levels. Are we
having a tough time retaining judges because we are not giving
any cost-of-living increases?
Justice Breyer. Yes.
Justice Thomas. Yes.
Justice Breyer. In my opinion, yes.
Mrs. Emerson. Easy enough.
Justice Thomas. Not only are you having trouble retaining
some of the ones who are on the bench, we are beginning to see
pushback or resistance to even being nominated by some of the
best talent in the country. But that is just a part of the
reality.
But I would like to just take a brief second to touch on
just one aspect of the diversity question because I think Ms.
Lee had a good point. One of the things that you run into when
you visit law schools that are not the Ivy Leagues is a sense
among the students--and it doesn't matter whether they are
minorities or women or males--that is, just many of the
students--that there is no chance that they can be here at our
Court as law clerks or any other capacity. That is something
that I think we certainly can eliminate in saying that that
possibility exists. And that spreads throughout.
I also think that Justice Breyer is absolutely right that a
lot of our hiring--there are only four to each of us a year.
There is no system. We all do it individually. It depends on
the people you know. So if you know more people, say, at the
University of Georgia or George Mason or other schools, the
University of Missouri or Creighton, you have a tendency to
rely on their advice about a young person who is applying. And
it is very individualized. So the broader that net is and the
more--the least resistance you have to people applying, the
more chances you have of bringing some of the individuals in
who are now being excluded on a large scale or a significant
scale.
Mrs. Emerson. And I am grateful for you saying that. I look
at my husband, who is a brilliant attorney, who got into two
schools, the University of Missouri and Yale. He applied to
only two and chose to go to the University of Missouri to prove
that he could be as good, if not better, than a Yale lawyer.
That is a terribly silly reason and risky. But nonetheless, I
just think it is important to move just beyond the Ivy Leagues
because there are so many young people, who just simply can't
afford to go to the Ivy League schools, who are brilliant and
deserve to have opportunities. And I am glad to see the
sensitivity toward bringing in more diverse schools.
Mr. Serrano. We are going to wrap up in a couple of
minutes, both of you. When you spoke about the lack of pay or
other reasons, I am reminded of a thought I have every so
often; and that is that we are a people who love our country.
We love our system, and we should. It is the greatest system in
the world. We love our democracy, and we should. It is the
greatest democracy in the world. We love it so much that at
times we act like we are trying to impose it on other people in
other countries because we like it so much.
We don't care so much for the people who run the system or
the people who make the judging systems. It seems like a lot of
Americans think this runs by itself, it was set up and it runs
by itself.
So there is this incredible contradiction, but healthy, I
guess, where we love what we have going, but somehow the roads
get built by themselves and nobody has to approve that budget,
and the hospitals get funded by themselves, and there is no one
in the courts except a computer.
Let me ask you just a couple of more questions and we will
wrap up. This one, bear with me, there is a brief statement
before. There has been some confusion as to the Supreme Court's
requirements for granting cert and stays in capital cases; that
is, in cases involving the death penalty. My understanding is
that generally the Supreme Court only requires four votes to
grant cert, which allows that case to be reviewed by the Court.
However, it is also my understanding that the Court has
never made explicit its policy for granting stays in cases
involving the death penalty, although many scholars of the
Court indicate that the Court needs a five-person majority to
grant a stay in death penalty cases. This results in potential
situations in which the Court could grant cert to hear a case
involving the death penalty for a particular individual, but
not stop an execution from going forward.
Would it be possible to get a firm explanation of the
voting requirements that are necessary to grant a stay of
execution in capital cases? Do you think that cases such as
those discussed in the recent New York Times article on this
issue where the Supreme Court decided to hear a case involving
the death penalty, but refused to stop an execution going
forward until the Court had heard the merits of the appeal,
does that present a problem? And I apologize if you feel that I
may be going into Court decisions. I am trying not do that at
any of these hearings.
Justice Thomas. I think it is a fair question, without
discussing the actual case involved. I think that would be
inappropriate. The practice has been, since I have been at the
Court, to be very sensitive to this difference between the
number of members of the Court it takes to grant cert versus
the number it takes to stay any action, not just executions.
And in the past, the reason it rarely comes up is because it is
resolved internally with individuals casting a vote to stay it,
even if they don't agree with it. So you don't have that
inconsistency. And occasionally you might have a difference of
opinion as to the underlying merit of the grant. But there are
reasons in these sort of exceptional cases why you don't get
the fifth vote, but the normal practice is that the five is
almost automatic. So it is rare.
Justice Breyer. It is important to see, in things like
this, because it is a very important matter, that there are
informal ways of working things out. And so the four who would
like it granted also are thinking, well, there is an issue
here. And you might have enough discussion with the other
members of the Court where you would think, well, it would be
an issue, but it is not necessarily a winning issue you have
here. And others might test the strength of feeling, and it is
perhaps a little bit like you might have in a caucus or
something, or a discussion where you try to get things to work
out. And normally it works out, not always to everybody's
satisfaction, but normally it works out.
Mr. Serrano. Thank you.
Justice Thomas. That difference is always there. And just
by the rarity of the occurrence you can see that it works out.
And I think Justice Breyer's keyword there is these
``informal'' arrangements, of which we have many at the Court,
allow you to make adjustments as circumstances change.
Mr. Serrano. Right. Just ending here.
March 18th, you started hosting the Web site, the Court
itself. Will you be keeping records of the different pages or
parts within the site that get hits? And how will you use that?
Justice Thomas. I am not aware of whether or not we are
going to do it for each page. But let me have our Web people,
our IT people, prepare a report and get back to you.
Mr. Serrano. Great it would be good to find out and also
how you are going to use that data.
Justice Breyer. If you have a chance, it is
www.supremecourt.gov.
Mr. Serrano. I have been there.
Justice Breyer. Good.
Mr. Serrano. And by the way, I apologize--talking about
technology--for being a little late today. I was putting on
Facebook that we were going to be on C-SPAN. So I thought it
was important.
And to make our C-SPAN friends happy, my last question is:
Last year C-SPAN aired a special series on the Supreme Court.
All the justices agreed to be interviewed. The series enabled
the public to hear directly from the justices about their work.
What other steps have the justices taken, either
individually or collectively, to help inform the public about
the Court's operations and its important role in our democracy
and in our constitutional structure? I just say that I am a big
fan, as I told you before about the whole situation with
Sotomayor, of informing the public more and more and more of
what the Court is all about, because it is so important.
Justice Thomas. I think that on what you see--when we
started this conversation about informing the public, think of
the things we were talking about--making the briefs available.
All of the briefs are now available.
Mr. Serrano. A short time after.
Justice Thomas. That is right. It is a joint arrangement
with the ABA. It is right after they are filed.
Now, with a joint arrangement with C-SPAN, you saw that
wonderful presentation where every member participated. And C-
SPAN does a particularly good job because they don't have an
angle other than to get it done right. And I think you are
going to see that the Web site, the fact that we have control
of it now, allows us to do more and more of this; to do things,
for example, to work with our historical society, to work with
other institutions, the ABA and organizations like C-SPAN, to
make the Court accessible to people who can't get there.
We can talk about oral arguments. Oral arguments are a
minuscule part of the decision making process in my opinion.
And it is also a minuscule part of what we do and what happens
at the Court.
But there is so much more that is already there, and more
that will be accessible to the public on the Web site and in
other ways. You will see more cooperation with, I think,
organizations like C-SPAN and the American Bar Association.
Justice Breyer. I think that may be the only single thing
we can do in response to your earlier question; and that is,
Why do people in this country not understand what it is we do?
And although you, I am sure--and I know that we do, and I have
seen him give an infinite number of speeches, Justice Thomas,
to the Horatio Alger Society, any group that comes into the
Court. We are talking to high schools, we are talking to
grammar schools when they come in.
Yesterday I was at Duke, talking to some law schools. And
C-SPAN is such a help in this, beyond belief, because they will
put these things on. I grant you sometimes it is for
insomniacs, but nonetheless it is very helpful. I mention it
because----
Mr. Serrano. When it is midnight in New York, it is 9:00 in
California.
Justice Breyer. Justice O'Connor has been devoting her
retirement years to this, as has Justice Souter. And what the
``this'' is, is trying to get teaching of civics restored to
the high schools and trying to get, say, you or others in the
government to explain to children through a lesson plan,
through a lesson plan, what it is you do, so they take it in in
an organized way.
She has a Web site. The Annenberg Foundation has been
supporting it. There are other foundations, Carnegie, that
support it. And I believe in it completely and I am sure you do
too. And we love spending time doing that.
Mr. Serrano. I know that the last time I was at the Court
seeing certain people that I see here at this hearing dressed
in a special attire to make a presentation, that was quite
historic and beautiful.
Once again, thank you for coming before us. Thank you for
the service to our country. As we move forward on this budget
process, we will take into consideration your request. And you
know that in the past, we have done the right thing and we will
continue to do the right thing.
Justice Thomas. Thank you, Mr. Chairman. Thank you, Mrs.
Emerson.
Mr. Serrano. The hearing is adjourned.

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Wednesday, April 28, 2010.

FY 2011 BUDGET REQUEST FOR THE GENERAL SERVICES ADMINISTRATION

WITNESS

MARTHA N. JOHNSON, ADMINISTRATOR OF GENERAL SERVICES
Mr. Serrano. Good morning. I am sorry I am somewhat late. I
was trying to reach a group that came from Puerto Rico for
tomorrow's big bill, and so we are all running all over the
place. And yes, we ran that race this morning, and I finished
the race.
Mrs. Emerson. You ran it or walked it.
Mr. Serrano. I ran it. It might have looked like I was
walking, but trust me.
Mrs. Emerson. Oh, no, no, no, I thought it was a walk race,
not a run race.
Mr. Serrano. You mean versus like a Republican-Republican
and a Democrat-Democrat.
Mr. Serrano. No, it was a race.
And my team, the Serrano Peppers did very well.
Mrs. Emerson. What a cute name.
Mr. Serrano. Yes. Okay. Today we hear testimony on the
fiscal year 2011 budget request of the General Services
Administration, GSA. We welcome Administrator Martha Johnson,
who was confirmed this February to discuss this agency's fiscal
year 2011 budget submission. Ms. Johnson served as co-lead for
the Obama Presidential Transition Agency Review Team for GSA.
Among other positions, she served as GSA chief of staff from
1996 to 2001 under then Administrator David Barram. From 1993
to 1996, she was assistant deputy secretary at the Department
of Commerce.
Congratulations on your confirmation. We are glad to have
an administrator in place and are happy to have you here for
your first hearing before us.
The GSA has been supporting Federal agencies and their
workers since 1949 by acquiring goods and providing services
and facilities to support the needs of those agencies. The GSA
performs a wide range of services from the construction of
Border Patrol stations through the management of many e-gov
initiatives.
Additionally, the GSA coordinates and evaluates government-
wide policies related to the management of government property,
technology and administrative services.
The Recovery Act provided GSA with $5.55 billion for green
projects, new construction, including Federal Court houses,
lands ports of entry and initial construction of the DHS
consolidated headquarters on St. Elizabeths campus in D.C. This
project, at 4.5 million total square feet, is the single
largest commission in GSA's history. I look forward to a
discussion of GSA's continuing implementation of the Recovery
Act funds.
The administration is requesting $674.8 million in
discretionary funding for 2011, which is a 13.5 percent
increase over 2010. Given the President's freeze on nonsecurity
discretionary spending, we will need to take a close look at
all agency requests for increases.
Administrator Johnson, this subcommittee looks forward to
the remarks you will make today. I would like to ask that you
please keep your opening statement to 5 minutes. Your entire
written statement will be submitted for the record.
And now I would like to turn to my colleague, my sister,
the greatest ranking member in the world, and a person who
believes that races are walks.
Mrs. Emerson. Probably because I would have had to have
walked it, Mr. Chairman.
Mr. Serrano. Or because every race for you in November is a
walk.
Mrs. Emerson. I only wish. Is that an endorsement?
Mr. Serrano. I stand by my previous statement.
Mrs. Emerson. Thanks, Mr. Chairman.
We really appreciate your being here, Ms. Johnson, and we
welcome you for your first appearance before the Appropriations
Committee.
I must tell you that having spent a lot of time reviewing
the GSA budget, I find it one of the more complex budgets in
our jurisdiction. So I really appreciate the Chairman holding
this hearing. And I appreciate the fact that you all really
touch the lives and workings day to day of every Federal agency
and every Federal employee. And the fact is that the level of
business you all do is quite staggering.
Just to make a couple of comments. The Federal Buildings
Fund has grown to over $9 billion a year, and that is not
including the one time influx of the $5.5 billion that we gave
you of stimulus funds last year. You all manage a portfolio of
almost 9,000 buildings and structures for the Federal agencies
that have a replacement value of $70 billion, and you procure
over $40 billion in goods and services for the Federal
agencies.
So even though it has been a year since the stimulus bill
was enacted, I am still having some issues with that $5.5
billion worth of stimulus money that we gave to the General
Services Administration. Many of the buildings that, as I told
you, that were receiving funds for modernization were or are
recently constructed buildings, and I am still not satisfied,
or I guess it is just not clear to me, why these new buildings
were prioritized when you were still facing about a $5.5
billion backlog in building repairs.
With regard to annual energy savings it is unclear to me
how much in energy savings will be realized from the
modernizations, as well as the appropriations accounts which
reflect the savings.
And I will just make a side comment that apparently in the
Greening of the Capitol, we are all getting new toilets in our
offices. And in order to save the amount of water that we need
to save for energy purposes, one would have to flush their
toilet 69 times a day in order to achieve the water savings
that we have been told that these $660 toilets will cost. So
therein lies my real sort of antipathy about this particular
issue.
I am opposed to the use of stimulus money to fund the
escalation costs of buildings already being constructed. And I
will be curious as to how many new jobs, if any, were created
by devoting millions of so-called stimulus funds to cover
escalation costs.
Mr. Chairman, I hope to continue working with you to ensure
oversight of billions of taxpayers' dollars being managed by
GSA. I just want to make sure that GSA is not just spending
money because we gave it to them and because they have lots of
it, but that every dollar is being used to improve the
efficiency and operations of the Federal Government.
So thanks so much for being here today and I look forward
to your testimony.
Mr. Serrano. Thank you so much.
Please proceed. As I said, please limit it to 5 minutes,
and we will put your full statement in the record.
Ms. Johnson. Thank you so very much.
All right. Chairman Serrano, Ranking Member Emerson and
distinguished members of the subcommittee, thank you for
inviting me to appear before you today to discuss GSA's fiscal
year 2011 budget request. I would also like to thank you for
your continued support of GSA through the appropriations
process. The funds you provided to GSA in the Recovery Act and
in our fiscal year 2010 appropriation are being dedicated to
some of the most pressing problems our Nation is facing:
stimulating the economy through job creation, reducing the
Federal Government's carbon footprint, and increasing energy
security, and ensuring that taxpayer dollars are being spent
wisely and transparently.
As Administrator, my vision is to transform GSA into an
innovative change agent for the government. We will change the
way we acquire, manage and dispose of our assets to improve the
environmental and financial performance of the government. We
will accelerate our efforts to open government through our
government-wide policies and expertise in citizen engagement
and collaboration. GSA will offer new sustainable products and
services to our customers and, in so doing, will influence
their behaviors to reduce consumption, reduce waste, improve
efficiency and effectiveness.
We will make this transformation and improve our
performance so that GSA is known across the government for
three things: innovation, customer intimacy and operational
excellence. We have demonstrated our commitment to improving
these three dimensions of performance by embedding them in our
new mission statement, which is, GSA's mission is to use
expertise to provide innovative solutions for our customers in
support of their missions and by so doing foster an effective,
sustainable and transparent government for the American people.
With that said, GSA's fiscal year 2011 budget request
further supports our efforts to achieve our mutual goals of
economic recovery, sustainability, and open government. Our
budget requests $675 million in net budget authority. This
amount is just 2.8 percent of our total planned obligations of
$24 billion. The majority of our funds come in the form of
customer reimbursements for goods purchased or rent paid for
space under GSA jurisdiction, custody or control.
For the Public Buildings Service, GSA requests $9.2 billion
in new obligational authority. Of these funds, $676 million are
requested for the construction and acquisition of critical
facility projects for the Department of Homeland Security, Food
and Drug Administration, Federal Bureau of Investigation,
Customs and Border Protection, and the exercise of the lease-
purchase option to acquire a building used by the Internal
Revenue Service in Martinsburg, West Virginia.
We also request new obligational authority of $703 million
for repairs and alterations to Federal buildings. These funds
are used to prevent deterioration and damage to buildings,
which not only protects the government's investment but helps
to ensure the health and safety of building occupants.
For GSA's operating appropriations our fiscal year 2011
budget requests $321 million. Our operating appropriations
provide for GSA's Office of Government-Wide Policy, the many
government-wide programs of the Operating Expenses account, the
GSA Office of the Inspector General, the Electronic Government
Fund, the pensions and office staffs of former Presidents and
the Federal Citizen Services Fund. This year's budget also
requests funding for a new appropriation, the Federal
Acquisition Workforce Initiatives, whose purpose is to improve
Federal contracting.
In fiscal year 2009, GSA's Federal Acquisition Service
realized positive net operating results for all portfolios for
the first time since establishment. Revenues increased in all
FAS portfolios, resulting in total revenues of $9.9 billion, an
increase of nearly 7 percent over fiscal year 2008.
In fiscal years 2010 and 2011, GSA anticipates continued
growth in FAS business, as we foster collaboration and develop
new partnerships.
The Recovery Act just over one year ago provided GSA with
$5.85 billion, including $4.5 billion to convert existing GSA
facilities into high-performance green buildings; $1.05 billion
for the construction of new Federal buildings, U.S. courthouses
and land ports of entry; and $300 million to replace motor
vehicles across the fleet. As of March 31, 2010, we have
obligated over $4.3 billion in Recovery Act funds and used the
full $300 million provided for the energy efficient motor
vehicles.
These funds have a tremendous impact on the economy, and we
have acquired a number of motor vehicles and demonstrated
significant impact on energy usage. We have done our best to
maximize economic impact of our recovery funds. We are awarding
construction contracts for less than initial estimates. Using
our existing authorities, we sold motor vehicles that we
replaced with Recovery Act funds and retained nearly $45
million in proceeds, which we can then reinvest in new hybrid
vehicles.
To conclude, your approval of GSA's budget request for 2011
is a critical step towards helping GSA achieve our mutual goals
of economic recovery, sustainability, and open government.
Thank you.
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Mr. Serrano. Thank you.
Thank you for your testimony. One of the objectives of the
Recovery Act was to commence with expenditures and activities
as quickly as possible, and that is a quote, in order to help
create jobs and stimulate the economy. Some observers have
expressed concern that while GSA should ensure funds are
prudently managed, its Public Buildings Service has not
expended the $5.5 billion in funds it received as rapidly as
the Recovery Act intended. In March 2009, GSA identified 254
projects it would fund through Recovery Act appropriations,
including $4.2 billion in new construction and building
projects upon which GSA could start construction quickly. That
is another quote. Seven months later, GSA had only expended $57
million in Recovery Act funds. And the latest report from GSA
indicates that $295 million has been expended.
So the question is, why does it take so long to begin
expending funds on these projects? And if GSA last year
testified that it would streamline its procurement process in
order to speed the award and execution of Recovery Act
contracts, what is the status of the accelerated initiative,
and how effective has it been in reducing the time it takes to
get Recovery Act funds into the economy?
And I think if there was a criticism that you are going to
hear over and over again, it would be, how come the money is
not being spent as quickly as it should have been? It would
seem to many Members of Congress that your agency is one that
can expend money quicker than others, and you have got things
in the pipeline all the time, so why isn't it happening?
Ms. Johnson. There are a couple of ways of approaching
that.
First of all, as I arrive at GSA, one of my critical goals
is to help GSA do some significant business process
reengineering. I think we need to work on our systems and
reduce significantly some of the bureaucratic process that we
are working with.
With respect to recovery funds, the thing that is important
to lay out is that when we have actually funded projects, there
is a tremendous amount of economic activity that is already
under way, because when we obligate the money, that is a
contract to a contractor. The contractor then goes to the bank,
gets the money that will allow them to borrow against, then
goes and hires people, then puts them to work, then finishes
the job to our satisfaction, then bills us, and then we fund
it.
So the obligation and the funding are separated
substantially, but a fair amount of economic activity is under
way. We are actually leveraging the American taxpayer dollar by
encouraging and engaging in private financing, which then we
essentially reimburse when the project is done. So there is
that--our funding is a lagging indicator of the activity, and
that is where I think some of the confusion is.
Obviously, that process, the initial contracting, the
initial obligation, needs to be done as promptly and
sufficiently as possible, and those projects need to be managed
well. We do have a PMO across the entire country which is
watching those and trying to stay on top of the project
management calculus of them. But it is that delay that is not
to demonstrate that there is no money moving; there is a
significant amount of money moving. It is private money, and
then we will reimburse at the end.
Mr. Serrano. All right. I am trying to follow this. So you
say the key here is that you reimburse at the end?
Ms. Johnson. We fund at the end.
Mr. Serrano. So if you obligate to me $100 million, I begin
to hire people and spend my own money?
Ms. Johnson. You go to the bank and get money. You go and
get financing for your project, knowing that you have the
backing of this contract with which you can go to the bank.
Then you hire the staff, and you start moving on the project.
They do the work. And then as the project reaches certain
milestones, they can come and bill us for the dollars, and then
that will be returned to the contractor.
Mr. Serrano. Okay. So then the accusation, if you will, or
the criticism of GSA, would be you are not spending the money
as quickly as you promised. You would say, we are, it is just
that we haven't made the payments because the project is not
completed. But the money is moving around, and dollars that
would ordinarily not have been expended by these contractors
are because you are backing them up with the dollars? I don't
want to put words in your mouth.
Ms. Johnson. Yes. I think this is not simple, and I think
that the notion of spending money is--you know, we fund it at
the end, but there is money moving, and there are people
working.
But I think it is useful to look at when we obligate, when
we do that contracting, so that you know what to expect. Trying
to reconcile this number to this number is sort of a lot of, I
think, unnecessary, you know, complexity. But the fact that we
are letting out those contracts is a critical milestone. And
then when the money--it is really a lagging indicator. When the
whole recovery project is over, we are going to be able to look
back and be able to tell you, you know, the final big numbers.
Mr. Serrano. Well, I would suggest to you that, not your
public relations, but your public information effort to be one
that explains that a little clearer to the Congress because we
see it totally differently. And what you are explaining now to
me makes sense, which is scary, because any time a Federal
agency makes sense to us, we have to be very nervous about
that. But it does make sense, but that is not the criticism.
The criticism is just the opposite. So I think that message, if
it is correct and I take it at your word, then it has to be put
forth.
Ms. Johnson. Thank you. I will certainly pay attention to
that. I believe probably 90 percent of my job is going to be
communications, and I think it is because our processes are
complicated.
Mr. Serrano. Let me tell you, the administration is
requesting $674.86 mi4lion, an increase of $80.4 million, or
13.5 percent, above fiscal year 2010. Could you explain what
the increase accounts for?
Ms. Johnson. The delta there, about $25 million of that is
for the Federal Buildings Fund. The rest of it is sort of the
$55 million; about $5 million of that is $1 million for the e-
gov fund, some money for the Inspector General, some money to
deal with benefits for former Presidents, sort of some catch-
all of a couple of things like that.
The big chunks, there is about $24.9 million, $25 million,
that is being tagged we hope for the acquisition workforce for
working on the acquisition workforce, which the President has
identified as a critical issue that we need to pay attention
to.
The other chunk, the other approximately $25 million, is a
combination of two things. One is the Integrated Acquisition
Enterprise. And that is working with all of the contracting
information, which is now in many different places, to pull
that together so that it is integrated, and we can really take
command and understand the procurement process better.
And then another $4 million, I believe, for the Office of
Federal High-Performance Green Buildings, which is a
particularly special project in my mind with respect to our
sustainability challenge, a place where we can have the
expertise and the combined capacity to share ideas and
understand what is happening in terms of green building work.
Mr. Serrano. Thank you.
Mrs. Emerson.
Mrs. Emerson. We may disagree on this, but let me start
that way. But you said in your testimony with regard to ARRA
money that the Recovery Act provided you all at GSA with an
unprecedented $5.85 billion, including $4.5 billion to convert
existing GSA facilities into high-performance green buildings.
To the best of my knowledge, there was nothing in the
language of the ARRA that said you should use that $4.5 billion
to convert existing facilities into high-performance green
buildings, and we are double-checking that. So, in other words,
you were given the money, but it wasn't directed for that
purpose, to the best of our knowledge, and I will double check,
and I could be wrong.
Ms. Johnson. And I need to double-check that, too. I am
assuming that, but--it is specific word for word?
Mrs. Emerson. It is specific that it did for high-
performance green buildings, because I did not recall that when
I read the bill that it did say that.
Ms. Johnson. My staff is telling me it is.
Mrs. Emerson. Well, and I will readily admit to being
incorrect about that.
However, just to go back, I know Joe was correct in saying
that you know, obviously, there is a lot of confusion out there
among the public about moneys that are obligated and not spent,
but you know, obligation--I actually interpret obligated the
way that you describe it, that is just how I personally would.
But that is just because we built a courthouse in my district,
and I used to have fights about that all the time.
However, I went to your Web site that tracks the spending
of the stimulus funds, and it says that 1,700 jobs have been
created as a result of GSA's stimulus funding. So that was as
of December 31, I think. And at that time, you all had
obligated $2.2 billion, so let's just say you had spent $2.2
billion. But 1,700 jobs, $2.2 billion, works out to $1.3
million per job. Is that correct?
Ms. Johnson. That is one way of cutting the numbers. And I
am not sure that it is really apples and apples.
Mrs. Emerson. I know. But that is why it shouldn't be on
the Web site then.
Ms. Johnson. I appreciate that comment, and I appreciate
the need to be ever more clear and accurate. And we need to be
reporting jobs funded by the quarter, because that is really
the best way for people to see.
Mrs. Emerson. Well, yeah, because, I mean--okay. So if the
next jobs report will be based on activity through March 31st
and you all have obligated over $4 billion, there sure as heck
better be a whole lot more jobs than 1,700 jobs for people, or
it has to be calculated different because people are going to
go berserk.
And if I can say, well, you know, GSA, we gave them all
this money, and they have created 1,700 jobs, and every person
is getting paid $1.3 million--well, I mean, technically I could
say that based on what the Web site says, and that wouldn't be
incorrect, but it is also misleading to your disadvantage.
Ms. Johnson. Yes, it certainly is. And I think that the
whole notion that we are creating jobs is actually the wrong
way to characterize it, because we are funding jobs that have
to be done. And being very clear with the public about that is
very important.
Mrs. Emerson. Yeah, because, I mean, people will just not
be happy and already are not happy with the fact that it is
costing an awful lot per job, and they are government-paid jobs
instead of private-sector jobs. So it is my recommendation that
you all go back and try to rework that, okay?
Ms. Johnson. I will do so.
Mrs. Emerson. Also, it is my understanding that GSA
considers one phase of a multi-year project to be one project,
and therefore, all projects started with stimulus funds or the
ARRA funds are fully funded, by your definition. However, many
of the projects are multi-year projects or multi-phase projects
that were started with stimulus funds, such as the Department
of Commerce headquarters, I guess, is a good example.
So could you provide for the committee the out-year funding
requirements of following phases for stimulus projects, like
escalation costs? You know, I need to have--well, I will go on
to this next question. But if you could provide for us a list
of all those things, that would be really helpful.
Ms. Johnson. We will certainly work to keep you informed on
what we see as--I mean, if you take the DHS St. Elizabeths
project, we have a notion that it is a $3.4 billion project,
and we know specifically what the Coast Guard piece is and what
phase 1 and 2 and so on are. And of course, when you have
projects that are that long, they don't just cover multi-year.
They actually cover whole business cycles, where you know the
cost of steel can go up and then suddenly the cost of labor can
go down. So I think we need to do a good solid job on
projecting it.
Mrs. Emerson. But we are at this point in time--I mean, I
think every single bid for every construction project that is
going on in my district--and these are not government-funded,
these are private--I mean, every single one of my developers
who are actually building anything are getting bids that are
you know far lower than before because people just want this
work to go on. So I suspect that, you know, to your advantage
you could probably get more work done for less money now.
Ms. Johnson. Yes.
Mrs. Emerson. And that is what--that whole multi-phase
thing makes me nervous because it is projected. And I don't
necessarily--the way that GSA has said, well, this is--you
know, like my courthouse in Cape Girardeau, it is going to cost
this much. Well, based on today's prices, it is going to cost
this much, but usually, it is not based--it is not calculated
that way, so you know, it could be that it could be, you know,
$10 million cheaper, and $10 million cheaper is a lot of money.
Ms. Johnson. It is.
Mrs. Emerson. Even though it doesn't sound like it.
Ms. Johnson. Yes. And I think that we need to do a better
job in doing our risk assessments and explaining them as well.
Because when you are doing projections, anyone can do all kinds
of projections, so we need to help people understand what they
are based on.
Mrs. Emerson. Yeah. So, then, back--do you want me to stop,
Mr. Chairman?
Mr. Serrano. No.
Mrs. Emerson. Okay. I just didn't know if I had gone over.
Mr. Serrano. You did.
Mrs. Emerson. You are correct on this language, and I
apologize.
I just want to ask you about escalation costs. After the
stimulus bill passed, GSA decided to devote over $150 million
to cover escalation costs of ongoing construction projects, and
right now, there shouldn't be any escalation costs, but that is
beside the point. Given that you all have requested over $600
million in reprogramings to address cost overruns in capital
projects over the past 6 years, you all have had a history of
underestimating project costs. I mean, I am not blaming you.
You weren't at least in your present position at the time.
So could you update us on how your estimates from the
original spend plan have changed over the past year? And what
are you--given the fact that construction costs have pretty
well declined over the past few years, what are you all doing
with those savings?
Ms. Johnson. For the Recovery Act money, what we are doing
is realizing some lower bids than we expected. And that means
that we have, therefore, more money to go further down the
project list with, which we are delighted to be able to do. So
we are actually able to move further than we thought we were
going to be able to given the original allocations.
I agree with you that in a market that is moving, first up,
in the beginning of the decade, and then down, that we need to
be very tightly communicating what that is meaning for our
projections. And I am happy to do our best to share that and to
lay out a risk profile next to it.
In some cases, the project escalations, as I understand it,
are simply to get projects going that have for some reason been
stopped. But I will supply you more detail with that
afterwards.
Mrs. Emerson. I really would appreciate it just because if
I hadn't lived and breathed those projects for 5 years on a
daily basis, I probably wouldn't be quite as concerned.
Ms. Johnson. You can understand the difficulties, yes.
Mrs. Emerson. And it was frustrating. And it is not all the
fault--no party is at fault totally, but the communication and
probably the lack of transparency was very troublesome.
Ms. Johnson. Yes. One of my goals is transparency.
Mrs. Emerson. Thank you.
Ms. Johnson. Thank you.
Mr. Serrano. From the great State of Florida and one of the
greatest Members in the history of Congress.
Mrs. Emerson. He is looking for your vote, Deb.
Ms. Wasserman Schultz. Really? I am shocked. You had me at
hello.
Thank you, Mr. Chairman.
And welcome. It is good to see you. Thank you for being
with us this morning.
I have a more locally oriented question as well as a
broader public policy question. And since all politics is
local, I will ask you the local one first. From what I have
observed in looking at the President's budget, the budget for
GSA does not request funding, again, for new courthouse
construction projects that were included on the Judicial
Conference's 5-year courthouse construction plan. And I know
under the leadership of Chairman Serrano, in the last fiscal
year, we were able to include construction funding for those
courthouses, for some courthouses on the list, in spite of that
fact in the last fiscal year.
But in reviewing the 5-year courthouse project plan for
2011 to 2015, as approved by the Judicial Conference, I was
particularly disappointed to note that the Federal courthouse
in Fort Lauderdale was not on that 5-year list, despite having
been included on the list as recently as 2007. You may or may
not be familiar with the serious deficiencies in the Federal
courthouse in Fort Lauderdale. It leaks like a sieve. They are
out of room. They have judges sitting on top of each other, a
very antiquated facility, and many potential safety risks for
both people who work there and constituents of mine who go
there every day.
So I would like to know why the Federal courthouse in Fort
Lauderdale was not included on the 2011 to 2015 list, and if
you can explain the process moving forward, and what role you
play in that process for GSA?
Ms. Johnson. We have over the last 15-plus years of course
been engaged in a significant judiciary relationship in
building and renovating courthouses. The first customer visit I
paid when I came into this job was to the Administrative Office
of the Courts. It is a very important relationship for us, and
we are working very hard to have a good and rational and fair
and open process with them. And what we do is work off their
priority list, so it is in conjunction with them that we
develop our priorities. And so I----
Ms. Wasserman Schultz. Fort Lauderdale was on the list as
recently as 2007. Why is it not on the list anymore?
Ms. Johnson. I don't know that I have the answer to that
right now. I can supply that to you. I believe it is because it
is not currently on the list, but I will verify that and get
back to you.
Ms. Wasserman Schultz. Well, it was on the list, and now it
went off the list.
Ms. Johnson. It dropped off.
Ms. Wasserman Schultz. Yeah. I need to know why it dropped
off the list.
Ms. Johnson. It is not on the judiciary's list, so we need
to discuss with the judiciary to understand how they set their
priorities.
Ms. Wasserman Schultz. And how quickly can a feasibility
study be completed in the event that it was on the list?
Ms. Johnson. It depends upon what the judiciary instructs
us to do. Feasibility studies, we can launch one fairly
rapidly. But I think what we need to do is really understand
the needs in order to do a proper study.
Ms. Wasserman Schultz. Well, I can assure you that there is
no greater need than in Fort Lauderdale for a Federal
courthouse.
Ms. Johnson. I stand advised.
Ms. Wasserman Schultz. So I look forward to working with
you on helping others to understand.
Mr. Serrano. Now have we finished discussing this
courthouse?
Ms. Wasserman Schultz. Yes. Higher on the priority list and
my broader policy question, Mr. Chairman, is last year GAO
investigative staff reported that they were actually able to
smuggle bomb-making materials into 10 high-security Federal
facilities in four different cities. They were actually able to
assemble those items once inside the buildings. And apparently,
a lot of those bomb-making components weren't even on
prohibited lists coming into those facilities.
Now, from what I understand, each Federal building has a
security committee, and they come up with their own list of
prohibited items, as opposed to there being a one central, you
know, broader general list of prohibited items. That doesn't
really make very much sense in this age of homeland security
and our need to make sure that we protect our facilities. You
have some courtrooms that ban cell phones, and others allow
them. I mean, it is very inconsistent.
So what role does GSA play in building security, and do you
have anything to do with determining what is included on those
lists?
Ms. Johnson. The Federal Protective Service, which is with
the Department of Homeland Security, is our partner in building
security matters. Together we work on understanding the risk
profiles of buildings, and we rely on the interagency security
committee's standards around that. So there is a process, to
that extent, that I understand. Beyond that, I would need to
learn a little bit more and get back with you with fuller
details. But this is very much of a partnership within another
agency.
Ms. Wasserman Schultz. It is pretty disturbing that there
isn't any consistent list of prohibited items and that bomb-
making materials could be brought into any government facility.
You know, especially just having passed the Oklahoma City
bombing anniversary, you know, we are being vigilant through
TSA at making sure that we have a standardized list of
materials and people know what is expected of them. I mean, I
think just for day-to-day life in America, going into a Federal
building in Oklahoma City versus going into one in Miami, there
shouldn't be a difference in what you can carry into those
buildings.
And I would hope that you could work towards making sure
that there was one consistent policy and that we tighten up the
list to the degree that you don't already have control over it.
Ms. Johnson. I think it is very important for the American
public to have the expectation that Federal buildings are
consistently accessible. I do know that with the various
missions of agencies, we have different levels of security, so
I will look into that and get back to you on it.
Ms. Wasserman Schultz. Thank you very much.
Thank you, Mr. Chairman, I yield back the balance of my
time.
Mr. Serrano. Thank you.
Following her line of questioning but being more global
here, the 2011 budget request does not include funding for the
acquisition or construction of additional space for the
judiciary. This subcommittee has supported these projects in
previous bills, and the judiciary's caseload will likely
continue to grow. What were the major factors that resulted in
an old courthouse construction in an acquisition project
scoring too low to be funded in 2011? And given that it takes
years to construct courthouses, are you confident that the
judiciary's future space needs will be met without initiating
any new courthouse construction projects in 2011?
So we have a situation here where we have been very
supportive in this subcommittee of these construction projects.
You are proposing none this year. They need space. What do you
project will be the bearing of this decision on their space
needs? And do you anticipate courthouse funding will continue
to be limited to alteration and expansion rather than new
construction in future years?
Ms. Johnson. There are a number of different pieces that I
need to bring to this answer.
First of all, of course, as I said earlier, we have been
under way with a massive judiciary program and appreciate the
support that we have received with respect to funding new
construction as well as repairs and alternations.
The Recovery Act allowed us to fund construction on seven
courthouses. And so, within the last period of time, there are
a number of courthouses that received some additional support
or some support so we could move forward on them through the
Recovery Act. We are currently looking at the judiciary's
priority list, and the top one is Austin, and that one was
funded to get under way through the Recovery Act. The second
one I believe is Salt Lake City. And that courthouse we have
procured the space, and we have done the design, and we are now
waiting for authorization, so there is an authorization need in
order to proceed.
So we are continuing to work down the list that the
judiciary supplies, and with recovery money, we have been able
to continue aggressively with seven other courthouses.
Mr. Serrano. Well, that answer is a mixed bag. I will tell
you why. Those of us who voted for the Recovery Act and voted
for all these massive programs to move our economy ahead were
under the understanding that where there was no money to
contract something or to fill out the needs of a project, that
Recovery Act moneys can go in there and fill that gap, but
where there was money being expended, the idea was not to
supplant that money but actually add to it.
So we actually had had from this committee, generously,
moneys in the budget for the judiciary. Now basically what you
are telling us is, we are not going to spend that money because
we are getting it from another place, but then that was not the
intent. That certainly was not the reason I voted for it.
Again, let me repeat it: Where there was no money to spend, go
ahead, that highway that has been sitting out there for 10
years and you could never build it, build it now, that will
help the economy. But where you were spending money, we are
giving you more to spend, again for the same reason, but not
for you then to say, I am not going to spend that. So the
administration's request and GSA's request almost contradicts
the presentation made to Congress, am I correct?
Ms. Wasserman Schultz. It cancels it out.
Mr. Serrano. Yeah. That is how you understood it, right?
Mrs. Emerson. Exactly.
Mr. Serrano. We have three people here. That is how we
understood it.
Ms. Johnson. I appreciate that.
The Recovery Act certainly did give us some room to support
courthouses, and that was not meant to displace budget, annual
budget processes. In addition, however, we are balancing a
large portfolio of requests. And in this year's budget request,
a substantial portion of it is for St. Elizabeths, which is
another major priority of the administration, the FDA and some
remuneration work with the Denver Federal Center. So there are
other pressing needs on the portfolio. And in this year's
calculus, it was important also to support those other
projects. So we are trying to play a careful calculus of all of
the needs on the portfolio.
Mr. Serrano. Okay.
Well, two points. First, it should be obvious to you by now
that this subcommittee wants the judiciary to be taken care of
with their physical needs, and it is a shame that the request
came the way it came. Secondly, it is easier for a committee
chairman and it is easier for a ranking member to respond to a
request for dollars rather than to create a request.
Ms. Johnson. I appreciate that, yes.
Mr. Serrano. So if you ask for $1 billion, I could always
go to leadership, I could go to everybody else and say they
asked for $1 billion. That agency asked for $1 billion. I need
to give them something, even in a tight economy. But if you ask
for nothing and then I am going to give you something, then I
will be the one you know spending money, not reacting. So you
put us in a difficult situation when you don't ask.
We had an agency here that never wanted money. It is called
the SEC, and you see why they didn't want money; they didn't
want to supervise anybody. I mean oversight.
So keep in mind that you put us in a difficult situation
here in trying to do what we want to do.
Ms. Johnson. I appreciate that you are intent and eager to
help us with the courts, and I will hold that thought in my
mind.
Mr. Serrano. Okay. Talk to us about the DHS headquarters
consolidation. GSA is working with the Department of Homeland
Security to consolidate DHS operations for more than 40
locations around the Washington, D.C., area into 7 to 10
locations. St. Elizabeths will become the new DHS headquarters,
ultimately employing more than 14,000 Federal employees.
Establishing a new headquarters at St. Elizabeths will cost an
estimated $3.4 billion. What is the status of this project? Are
there any emerging issues that might push completion beyond
2016, as currently scheduled?
Ms. Johnson. Right now, we are quite confident that we are
moving forward on St. Elizabeths, and it is a good story. In
fact, Friday, I am going to go over and see the site, and it
was featured in the Washington Post recently. It is not just
shovel-ready. The dirt is moving over there. There is activity
going on for the Coast Guard headquarters, which is the first
major piece of the project. The next phases involve
consolidating and renovation of about seven headquarters
buildings, and some of the utility and security fencing and
historic preservation work, as well as highway interchange. So
there is a lot of work going on and expected.
We are comfortable that the Coast Guard building will be
completed and online in 2013 and that the full project should
be delivered by 2016. Our current slogan is, on schedule, on
budget, and on green. We are really excited about St.
Elizabeths.
Mr. Serrano. Okay. And as a result--so you are confident
still for the 2016?
Ms. Johnson. Yes, I am. Yes, I am.
Mr. Serrano. Now, as a result of moving folks out of there,
out of the different places, you will have empty space. Do you
have a plan for backfilling, and how do you see this working
itself out? Will you have space that you don't have any need
for?
Ms. Johnson. Yes. We have quite--it is a complex plan, but
it is an important one to understand. We have something like 50
Federal locations that are housing DHS employees at this point,
and we also have a number of leased buildings as well, leased
space, something like 84 leases with another 9 pending. The
overarching, the arc of work is going to be moving people out
of those leases and into Federal space, backfilling either DHS
people moving to St. Elizabeths or simply moving to St.
Elizabeths. So it is the leased space that is housing employees
that will then be able to fill up the Federal spaces that will
be vacated. See, it is sort of a little bit of a moving game
that way. At the end, I think we will only have about five
leases. Some of them--between now and 2016, when all of the
people will be relocating to St. Elizabeths, I believe we are
very confident that we will find Federal workers to fill the
Federal space that we have. So, yes, it is an integrated plan,
and it is not a simple one, but I think it is a very sensible
one.
Mr. Serrano. Okay.
Mrs. Emerson.
Mrs. Emerson. These are easy questions.
Ms. Johnson. Oh, good.
Mrs. Emerson. As we talked in my office and as you know, in
our statement of managers accompanying the fiscal year 2010
appropriations bill, you were directed to review the 10 largest
Federal agencies to determine levels of funds spent on office
products through the GSA schedules and to do comparisons based
on the fact that we had--well, actually, the Department of
Homeland Security had voluntarily decided to try to save money.
I mean, the whole thing started when DHS said, we are going to
save $42 million or something over 5 years because we can go
directly to Staples or any other entity to buy our office
supplies. So, anyhow, that report is due to the committee here
in June.
Ms. Johnson. Yes.
Mrs. Emerson. Do you suspect that we will receive it on
time?
Ms. Johnson. Yes, I do. It is under way. I am looking
forward to it myself. I am going to learn a lot from it. We
have been looking at the 2009 expenditures for office supplies
across about 10 agencies, looking at credit card records and
GSA advantage records and e-mall records over at the Department
of Defense. It does look as if the spend on office supplies is
somewhere between $700 million and $1.3 billion. It is a
significant amount.
However, it is also really hard to be sure we are tracking
it well, because many of the purchases are in that $300 to $500
range, and they are just so granular it is hard to track. But
at least we are getting our arms around it, and I think out of
that we are going to have some real good lessons learned and
ability to figure out ways in which we can consolidate buying.
Mrs. Emerson. So is it too early to say that there are
certain issues that you have uncovered in the study?
Ms. Johnson. I think it is too early, certainly for me.
Mrs. Emerson. And I suspect, too, that then, based on what
the study finds, you are going to implement certain steps to
ensure that employees who use the schedules are getting the
best possible prices?
Ms. Johnson. Yes. We actually have a fair amount of
activity under way already.
Mrs. Emerson. Can you share a little bit about that?
Ms. Johnson. Yes. First of all, we are working hard with
our own contracting officers so that they understand the
schedules even better and have better information about what
pricing has been obtained on those schedules and what options
they have.
Mrs. Emerson. Let me ask you something. How many
contracting officers do you have?
Ms. Johnson. I am sorry, I don't know. I will have to----
Mrs. Emerson. I mean, would it be 100?
Ms. Johnson. Oh, thousands.
Mrs. Emerson. Thousands.
Ms. Johnson. Yes. So training is a significant leverage
point for them, and getting them the information about pricing
is a significant leverage point across the agency. I mean, in
the Public Buildings Service as well.
Mrs. Emerson. Thousands of people. But I am talking about
thousands--you don't have thousands of people doing office
supplies?
Ms. Johnson. No, no, no. In terms of the contracting work.
Mrs. Emerson. Right. I would understand that there would--
yes, across the board, I know. I was just talking about office
supplies. I am so sorry.
Ms. Johnson. I am so sorry.
Mrs. Emerson. If you have thousands doing that, that is not
a good thing.
Ms. Johnson. No, no. I will see if I can answer that more
granulated question in writing. We are also embarking on
training contracting officers in the 10 agencies across the
government so that they will understand the schedules better
and how to use them. We are keen on helping compliance with the
regulation out of the Defense Authorization Act, which is about
getting three bids for every schedule's contract. And that is
something that we follow, but not everyone has, and that
regulation is where we are trying to help people train and
understand that. And we are also keen on putting online the
terms and conditions of contracts so the contracting officers
have more information available to them. So it is about
openness as well as training.
Mrs. Emerson. Okay. I appreciate that. And I will really
look forward to reading that report. I am sure we both will.
Ms. Johnson. Yes, I will, too.
Mrs. Emerson. Let's talk about the State Department Foreign
Affairs Security Training Center in the stimulus bill; $70
million was appropriated to the Department of State to
construct this Foreign Affairs Security Training Center in
Queen Anne's County, Maryland. Obviously, we all know that you
have received a lot of attention for the way that this project
has been handled, including charges that the site was selected
without the involvement of the local community and that there
were some press reports that said GSA sent reps to the
community. Your representatives weren't able to answer any
questions, even the most basic ones.
And I know that it is always a little touchy when you are
going into a new area and trying to build a new facility. But
if you could just fill us in, number one, what the status of
the project is to date? Have the local, the concerns of the
local residents been addressed? And I also understand that the
State Department is concerned that the funds won't be obligated
before the availability of the stimulus funds expire, so can
you just tell me if you think that is likely?
Ms. Johnson. Yes. Currently, I will say that we have been
concerned about, devoting resources and time and some energy to
being sure the community learns what it needs to know and is
engaged in a dialogue about this project. We have held--we held
the prerequisite two community meetings, and we delayed one
because of the snowstorm. And then we held two more in which we
had some particular workshops on the issues that seemed to be
the most contentious.
So I think we have done a solid job of doing outreach.
There is no question that there is concern in the community. We
have taken some people on visits of other training centers, so
we have taken them to see what the kinds of facilities would be
and tried to do some extra work to be sure that that
information is conveyed.
Currently we are waiting for the environmental assessment.
The draft of the environmental assessment should be arriving
the first part of May. With that draft, I think we will have a
kind of a fork of decision. One is, should we release that for
public comment, or should we move directly into an
environmental impact statement process? And we are waiting to
see what the draft says.
Mrs. Emerson. Does NEPA require you to do an EIA before
construction would begin, or are you doing that just in case
there is a lawsuit?
Ms. Johnson. I don't know what the process requirements
are. We certainly feel the environmental impact statement needs
to be done before construction.
Mrs. Emerson. No, I mean, it would have to be. But I don't
know if the law requires just for you to have an environmental
assessment as opposed to the whole, the 2 or 3 year long
environmental impact statement, because that is how long that
takes and the EA is much shorter.
Ms. Johnson. We are waiting to see what the EA is telling
us, because we simply are doing that due diligence to
understand actually what we are facing in terms of the issues.
And we do want to be very careful about that because the
community is concerned. So that is where we are. We are also
doing everything we can to be sure that the money from the
State Department is obligated, yes, so that it can be secured
and behind this whole process to support it.
Mrs. Emerson. Now that we know what obligated means, before
it is spent.
Mr. Serrano. On its way.
Mrs. Emerson. It is on its way.
Ms. Johnson. Nailed and tagged, not dispersed.
Mrs. Emerson. Well, any information you can get to us
beyond what you have said today would be helpful.
Ms. Johnson. I would be happy to.
Mrs. Emerson. Okay. I appreciate that.
Let me ask you about this, and don't get sensitive about
this, but this is an issue.
Mr. Serrano. You are going over your time or what?
Mrs. Emerson. No. What I am going to mention.
Mr. Serrano. No problem.
Mrs. Emerson. In Missouri, approximately $41 million of
stimulus funds are for buildings in our State. And we have got
about a 9.5 unemployment rate. But within the construction
industry, it is anywhere from 35 to 40 percent. And so it is
important for me that the benefits of this spending are being
felt in our local job market. Can you tell me how GSA
guarantees that your contractors and subcontractors employ
people who are legally authorized to work in the United States,
and are the procedures the same for construction contractors as
well as for service providers?
Ms. Johnson. Let me answer the parts of that that I know
for sure. GSA has some 23,000 contractors with HSPD-12 badges,
which means a substantial, a substantial effort has gone into
being sure that our contracting workforce is secure. The terms
for getting an HSPD-12 badge I think are something like you
will be working in the building or you are on a job that is
going to be over 6 months, so it makes it worthwhile. For sites
that workforce is not yet in buildings or that is a shorter-
term assignment, we bake into the contract that the contractor
has to guarantee that the workforce that they are using, the
workers that they are using, will conform to all of the rules.
Mrs. Emerson. So does that go down to the subcontractor,
and the subcontractor of the subcontractor, and that
subcontractor of that third subcontractor?
Ms. Johnson. My expectation is that it does. Let me confirm
that.
Mrs. Emerson. If you would, just because, this is where we
are having some issues in my congressional district. Because I
have got, you know, with such high unemployment in the
construction industry, we have a number of subcontractors of
subcontractors who are actually hiring people who don't have
appropriate documentation to be in the United States. And I am
not--and so it is the employer who should be in trouble here.
But our overall general contractors are not responsible for
the two, say if you are going down two subcontractors. And at
least that is what we have been told; the law would not--they
don't have to be responsible for, you know, the final
subcontractor, if you will, on verifying employment. So I am
just troubled by this because we have had two or three
instances in my district in the last month where, you know, my
folks in those communities can't win bids. They haven't been
able to win any of the bids to put their people to work because
we are using undocumented workers.
Ms. Johnson. I will look into that. You are talking
basically about a double-click or the double-click-through and
how far the reach of our requirements extend.
Mrs. Emerson. Right. I mean, I would hope that they would
be more strict than--you know, because it is a government-
sponsored project. But I just want to be sure given the trouble
we have had.
Ms. Johnson. I will learn about that myself and communicate
it right back to you.
Mrs. Emerson. Very good. I appreciate it.
Thanks, Mr. Chairman.
Mr. Serrano. That does not upset me, what you just said.
Mrs. Emerson. Thank you.
Mr. Serrano. However, the other side of that issue is that
when the economy was doing well, there were always these folks
employed. Some people have said they were undocumented. Others
have said they were not citizens. When the economy went back
and the construction industry was hit, they were let go in the
same numbers as everybody else was let go. So that this is
really only an issue if you are letting people go, some were
kept who were not documented or not citizens, and those who
were American citizens were let go. But prior to this, the
comment always was that, without that community, you couldn't
just about build anything in this country because they were
very much a part of that community.
Mrs. Emerson. And I am not saying that at all. I am just
saying that the employer should be at fault here. I am not
blaming the folks who are working because they are trying to
help their families.
Mr. Serrano. What I am saying is that this was not an issue
before the economy hit bottom, so it is only an issue now----
Mrs. Emerson. Oh, right, right, right.
Mr. Serrano [continuing]. If these folks were let go and
those folks were not let go. But everybody across the board was
let go. Those folks we talk about, whether they were just
documented or undocumented immigrants, are as unemployed in
that area of employment as everybody else.
But anyway, Mr. Boyd, Mrs. Emerson claims that I am being
extra nice to all members of the committee in my presentation
because I am looking for votes for tomorrow. That is not true.
I do think you are one of the greatest Members in the history
of Congress, and I now recognize you.
Mr. Boyd. Thank you, Mr. Chairman.
I was delighted to get that call from you over the weekend.
Mrs. Emerson. Good for you, Allen.
Mr. Serrano. Thank you.
Mr. Boyd. I didn't know who that New York number belonged
to. I quickly figured out.
Mr. Chairman and Ms. Johnson, let me first apologize to you
all for being late and beg your forgiveness for not being here
on time.
But also, Ms. Johnson, thanks for your service, and I want
to follow up on a question that was asked earlier by
Representative Wasserman Schultz relative to the Federal
building situation.
I have a similar situation in the congressional district
that I represent in Panama City with a Federal courthouse that
is, according to your predecessor, extremely inadequate and
needs to be replaced. I have a letter from your office here in
front of me with a report, a building project survey. That
report is fairly detailed, as you know--I am sure you are quite
familiar with those reports--and a certification of need. And
this project actually was on the 5-year plan at one time and
dropped off. And my question really to you is, what can you
tell the committee about, when this report leaves your office,
about the funding, I noticed in your report, you said that you
had not gotten a request from AOUSC. Obviously, that would be
the case. What can you tell the committee about how we can--
what we can do to correct some of this?
Ms. Johnson. My----
Mr. Boyd. Panama City, Florida, I am sorry. Make sure that
note has got Panama City, Florida, on it.
Ms. Johnson. You got it. Thank you.
Mr. Boyd. Not Panama.
Ms. Johnson. We have struggled for a long time with the
fact that the judiciary has a very long list of needs. And of
course, we have been really aggressively working that for,
well, over a dozen years, 15, 20 years. We are trying very hard
to work with the courts against their internally derived
priority listing. I think it is through the judiciary that we
need to--they are our customers. We are trying very much not to
assume that we know more than they do about this sort of thing.
So we really do try to pay attention to their list of
priorities.
Currently the list is--you know, we can get going on their
top list one, Austin. The second one we are sort of stalled
right now because of authorization matters. But we are always
trying to be on top of their top priority. So I think the
straight-up response is, we need to work with the judiciary to
help them work their portfolio so that it has the right
priority listing.
Mr. Boyd. I thank you for that, and I know that your job is
just to do the building, not to prioritize. And I totally
understand that.
Mr. Chairman, I want you to know, this is something that I
have been working on for many, many years. On the list, off the
list, you know, I don't understand that honestly. Maybe I do
and just want to be in denial. But it is--you know, I hope that
whatever this committee under this leadership can do with you
and Mrs. Emerson, that we would try to do better.
Mr. Serrano. I should tell you, before you came into the
committee meeting, a lot of the questioning was around the
needs of the judiciary. Debbie spoke about it. I spoke about
it. Mrs. Emerson spoke about it. This committee has been good
to the judiciary for obvious reasons, and we are concerned that
they are not asking for a request.
Before you came in, the answer was, which I said in a
respectful way, was not the greatest answer, was that there
were recovery moneys that were spent on the courthouses, and
therefore, they were not asking for money. I told them that
puts me in a difficult situation because it is easier for me to
respond to a request up or down on the amount than it is to
create an amount in a budget that wasn't requested. And that is
what we are faced with now.
Mr. Serrano. We stand ready to move ahead and continue to
put the message forth that the needs of the judiciary have to
be met.
Mr. Boyd. Thank you very much, Mr. Serrano.
Mr. Serrano. Let me ask you a question about construction
versus leasing. It is one that troubles me somewhat. I see a
trend moving away from ownership by GSA towards leasing, and I
don't fully understand it. I don't know if it is GSA's economic
recovery package for landlords other than for the Federal
Government, but I trust this landlord.
By the way, could you look up to the ceiling? If this was
the GSA Building, you wouldn't allow that, would you?
Ms. Johnson. Absolutely not.
Mr. Serrano. Just for the record, it is pretty
embarrassing. I am glad we are not on C-SPAN. It could be very
embarrassing to see that.
So my question is: What factors has GSA taken into account
in deciding whether a particular facility's needs should be met
through direct Federal construction or through leasing? Which
do you tend to prefer?
And also, if leasing has any of the characteristics that it
has in areas of my congressional district, the condition of any
of the buildings require so much repair that it may not be
cheaper in the short run, but certainly in the long run, to
build something that is up-to-date; something with the
technological needs in mind, not where you have to rewire a
whole building. You and I could come up with a million reasons
why a modern building is better.
So why this trend to move away?
Ms. Johnson. The proportion of the Federal building
inventory--that is, leased as opposed to owned--has sort of
tipped over the 50 percent mark, which is raising this kind of
question regularly.
We are a very steady tenant. The government is often in a
building that has particular needs for the government agency.
So we are keen on having our own buildings wherever it makes
sense, and that would be our preference. It is also important
because when we own the buildings, then we are collecting rents
which then fuel the Federal Buildings Fund and allow us to do
the repairs and alterations and future construction. It is the
notion of the Federal Buildings Fund replenishment that pushes
us towards wanting to have owned inventory.
The difficulty, of course, is that there are needs by our
customers for flexibility and short-term needs. The Census is
the prime example of a lot of leasing done to support a
particular mission. And I am aware that something like 70
percent of the requests for space right now are for space that
is in the under 10,000 size and in a shorter time frame. So it
just fits in flexibility terms for that.
However, I do believe that the way the leasing--agencies
come to us, and if we cannot supply them a new building, we do
need to turn to the leasing alternative rather than not meet
their mission needs. And so there are times when we would much
rather be building and constructing and owning the buildings,
buying in the inventory that we have been using and so on. But
there are simply some funding constraints that keep us from
being able to engage in capital building projects.
Mr. Serrano. That may be the case momentarily, but we seem
to see a trend that is moving away. You say you were what, now,
50 percent or more is leasing?
Ms. Johnson. Yes.
Mr. Serrano. If you were a GSA analyst or an outside
analyst on the future of GSA, is that the way to go? Is that
healthy for GSA to be leasing so much?
Ms. Johnson. I think we would agree that, as I said, if we
had our druthers we would like to be in owned inventory more
aggressively, but that the leasing alternatives are what we are
coping with given the way the funding mechanisms support the
long-term capital projects.
Mr. Serrano. Okay. Well, again, we told you what this
committee thinks on the judiciary, and I think we are clear on
the fact that it is probably not the best way to go, to
continue to grow in the leasing category. And I think the
repairs and the other issues will become a major problem.
Mrs. Emerson. Let me ask a follow-up to that.
What do you think is the cause of the annual deficit in the
whole?
Ms. Johnson. The whole building fund problem? There are
about four things; let me see if I can get to the four. First
of all, as we are growing the leasing inventory, we are not
collecting rents that replenish it. There is no question that
that is the cycle that I was just talking about. In addition,
our inventory is aging. Our average age of buildings is 46
years. Over 30 percent of the inventory was built before 1949.
It is an old inventory, so to speak, and that means it is much
more expensive to maintain. So more and more dollars are
required to replenish and renovate the current inventory. I
think that is putting stress on the fund.
The building fund has enjoyed appropriations something like
28 out of the 37 years it has been in existence. So we know
this cycle is not self-sustaining. So there are those economic
pressures on it.
Mrs. Emerson. The long-term impact on the buildings fund,
though, is not good.
Ms. Johnson. Right. Not good.
Mrs. Emerson. I am interested in--this isn't a ``gotcha''
thing, but it is a pet peeve of mine.
Again, one of your performance goals says that you want to
award leases at an average rental rate of not less than 7.5
percent below industry averages for comparable office space in
fiscal year 2011. Which is a wonderful thing, until it comes to
the Census. Where in my home town you are paying--let's see,
similar space to what Census is running at. I know that this is
a short-term lease, but it is seriously 70 percent more than
what the market cost is today. I mean, even my office space at
the Federal building that I did have to negotiate with you all,
because I didn't like the price you offered me, so we
negotiated it down. So I thought it was very much of a win-win
for everybody. But the office space at my beautiful new
courthouse in Cape Girardeau is less than half of this office
space for the Census.
And I am not saying--I know they didn't want to go in the
Federal building because it scares people, and I understand the
psychology of not putting a Census office there. But needless
to say, that sort of flies in the face of what your performance
goal is. I just point that out as something that I think we
would be happy to work with you on, but I think it means we are
going to have to----
Ms. Johnson. Yes. The short-term leasing is expensive. And
not being able to put Census offices in Federal buildings is
also a bit of a constraint. And that is something that we
always struggle with when we are sending out the Census teams
to secure space.
In addition, we have to do all of the build-out, which is
all paid back in that short time frame. So there are expenses
associated with that short-term lease that also jack up the
price.
This is one of the reasons it is a performance goal. We
need to be continuously monitoring this and managing this.
Mrs. Emerson. I can't imagine that a Census office would
need anything particularly fancy. Who am I to know? I just
thought you had to work with workers. If they set it up like
our office, it wouldn't be much build-out at all, other than
for new toilets.
Mr. Serrano. Mrs. Emerson and I have to move on today to a
couple of events, and we don't want to keep you here much
longer. But I do have a question. What you heard here is what
you heard here also; it is this whole leasing thing that makes
people nervous.
So you are moving into a GSA building?
Mrs. Emerson. I am in Federal--in our courthouse, that I
told you, I have day-to-day involvement in the construction.
Mr. Serrano. Good rent?
Mrs. Emerson. I negotiated a great rent, actually. I said I
would only pay the same rent at the new courthouse that I paid
at the old courthouse.
Mr. Serrano. I wish I had a Federal building in my
district.
You are requesting $9 million in IT funds.
Mrs. Emerson. Excuse me. Do not increase my rent.
Mr. Serrano. I don't have a Federal building.
You are requesting $9 million in IT funds for the Federal
Acquisition Workforce Initiative; $24.9 million in funding for
Federal Acquisition Workforce Initiatives Fund; and have $8
million projected carryover from fiscal year 2010 for the
Acquisition Workforce Training Fund.
I understand that the proposal for this was developed so
late in the process, that GSA is one of the few agencies to
actually properly have a budget for IT. That is good for you,
but makes us concerned that plans for it may not be that well
thought-out.
If you understand what I just said, you are much better
than I am. But I have been rehearsing this for the last 2 days.
But I do understand.
Do you have other funds that will be used for the same or
similar purposes?
Ms. Johnson. For acquisition workforce; government, if you
will. There are two funds. One is for training. And then this
Acquisition Workforce Initiative is about a number of different
things: improving the materials, the curriculum for training
across more than just contracting officers to include programs
in project management. It is also meant to fund sort of the
inventory to understand who is in the workforce, who are the
contractors, what kind of skills do they have--sort of track
and know what our workforce is.
And then the third is to build that community. There is so
much now available to people that they can share among
themselves. They don't have to go off and get a degree, but
they can be sharing their best practices in communication and
mentoring and helping each other through their career paths.
That would be a third piece that we would be paying attention
to.
So I come from the world of leadership development and
talent development, and I do believe that the acquisition
workforce needs some real attention and some support. I think
we do need to upgrade the curriculum. We need to create the
communities where they can be working with each other. And I
think we also need to have an inventory so we know who they
are, where they are, and be much more informed about it. I
think this is driving us to better data so we can manage it
better.
Mr. Serrano. And is there still interest, as there was in
the past, in working not only at GSA but in government in
general? Do you get that sense? People still think it is a good
job? I am not talking about Members of Congress.
Ms. Johnson. Speaking for myself, I was delighted to come
to GSA. I think we are entering a period of a bit of a
renaissance. And I will say at GSA it is because we are so
profoundly involved in sustainability. Young workers want to
join GSA because we have a huge role to play in the green
agenda.
Mrs. Emerson. Let me also tell you that a lot of young
professionals who are in commercial real estate and the like
really like the idea of going to work at GSA. The hardest part
of going to work at GSA or any Federal agency or department is
the crazy application process. And I know John Berry at OPM is
trying to really, really work hard on making it resume-based
now.
So the only downside to trying to apply is that if you
don't get referred for one job, you have to start from scratch
again. I think that is frustrating. But I know a lot of people
who have great expertise, and there is a lot of opportunity for
growth there because you all do things that other agencies
don't.
Ms. Johnson. Yes, we are in a wonderful position that way.
Mr. Serrano. Before we let you go, let me just say that
there is an ongoing back-and-forth between Mrs. Emerson and me
about the St. Louis Cardinals and the New York Yankees. And
just for the record, in 1949 when the Agency was formed, the
Yankees won the World Series--but then they were winning all of
those years.
Mrs. Emerson. I was just born the next year after that.
Mr. Serrano. The next year after that, I came to New York
saying someday I want to be a Congressman.
Thank you so much for your testimony and for your service.
Please understand that while we are a committee who wants to be
supportive, we do have concerns. You have some concerns from
everybody here about the judiciary and its needs and the
difficult position you have put us in by not asking for any
money.
And the whole leasing issue is one also that is of great
concern to us.
I will submit some questions for the record. One of them
speaks to the territories. We hope that when you look at what
you do, you remember there are millions of people, American
citizens who live under the American flag, but who don't live
in a State, and they should be treated equally as we allocate
resources.
Thank you.

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Breyer, Justice, Stephen......................................... 83
Duff, J. C....................................................... 1
Gibbons, J. S.................................................... 1
Johnson, M. N.................................................... 123
Thomas, Justice Clarence......................................... 83