[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
JUDICIAL TRANSPARENCY AND ETHICS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 14, 2017
__________
Serial No. 115-1
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan,
Wisconsin Ranking Member
LAMAR S. SMITH, Texas JERROLD NADLER, New York
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
STEVE KING, Iowa STEVE COHEN, Tennessee
TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
LOUIE GOHMERT, Texas Georgia
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina HAKEEM JEFFRIES, New York
RAUL LABRADOR, Idaho DAVID N. CICILLINE, Rhode Island
BLAKE FARENTHOLD, Texas ERIC SWALWELL, California
DOUG COLLINS, Georgia TED LIEU, California
RON DeSANTIS, Florida JAMIE RASKIN, Maryland
KEN BUCK, Colorado PRAMILA JAYAPAL, Washington
JOHN RATCLIFFE, Texas BRADLEY SCHNEIDER, Illinois
MIKE BISHOP, Michigan
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
DARRELL E. ISSA, California, Chairman
DOUG COLLINS, Georgia, Vice-Chairman
LAMAR S. SMITH, Texas JERROLD NADLER, New York
STEVE CHABOT, Ohio HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM JEFFRIES, New York
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
RON DeSANTIS, Florida BRADLEY SCHNEIDER, Illinois
MATT GAETZ, Florida ZOE LOFGREN, California
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
LUIS V. GUTIERREZ, Illinois
Joe Keeley, Chief Counsel
Jason Everett, Minority Counsel
C O N T E N T S
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FEBRUARY 14, 2017
Page
OPENING STATEMENTS
The Honorable Darrell E. Issa, a Representative in Congress from
the State of California, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
Mickey H. Osterreicher, Esq., General Counsel, National Press
Photographers Association (NPPA)
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Thomas R. Bruce, Professor, and Director, Legal Information
Institute, Cornell University
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Charles G. Geyh, John F. Kimerling Professor of Law, Indiana Law
School
Oral Testimony................................................. 31
Prepared Statement............................................. 33
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on Courts, Intellectual Property,
and the Internet..........................................47
deg.OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Material submitted by the Honorable Darrell E. Issa, a Representative
in Congress from the State of California, and Chairman,
Subcommittee on Courts, Intellectual Property, and the Internet.
This submission is available at the Subcommittee and can also be
accessed at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105547
JUDICIAL TRANSPARENCY AND ETHICS
----------
TUESDAY, FEBRUARY 14, 2017
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10:06 a.m., in
room 2141, Rayburn House Office Building, the Honorable Darrell
E. Issa (Chairman of the Subcommittee) presiding.
Present: Representatives Issa, Goodlatte, Chabot, Jordan,
Poe, Marino, Labrador, DeSantis, Gaetz, Biggs, Nadler, Conyers,
Deutch, Bass, Jeffries, Swalwell, Lieu, Lofgren, Johnson, and
Jackson Lee.
Staff Present: (Majority) Joe Keeley, Chief Counsel; Zack
Walz, Clerk; and (Minority) Jason Everett, Minority Counsel.
Mr. Issa. The Subcommittee on Courts, Intellectual
Property, and the Internet will come to order with or without a
gavel.
Without objection, the Chair is authorized to declare a
recess of the Committee at any time.
We welcome everyone here today for a hearing on judicial
transparency and ethics. And I now recognize myself for a quick
opening statement.
As we all know, there are three branches of government. The
first branch has a key responsibility to make laws. Those laws,
consistent with the Constitution, include the oversight of the
other two branches. No one doubts for one moment that Congress
has a responsibility to oversee Article II, the executive
branch.
Oddly enough, the courts have given us explicit rulings to
just that, the need for oversight, particularly the need to
oversight of our appropriation, moneys of the taxpayers. And
yet in many, many ways, the court, not just the Supreme Court,
but all of the courts, tend to be fairly insular and seem to
believe that they and they alone will determine what they and
they alone shall do. Up to a point, this Member would agree
with them. Agree that, in fact, its interference by the
executive branch or by Congress in their deliberative process
in how they go about determining what is justice, is in fact,
an area that we need not and should not tread upon lightly.
However, when it comes to the taxation of the American
people, which includes fees; when it comes to transparency,
meaning American citizens and others' right to know; when it
comes to the ethics of the judiciary, we have an obligation. We
cannot alone simply say we will wait to impeach a judge from
time to time about once every couple of decades. The real
question of whether or not judges are operating appropriately
in their courtroom, not just ethically but, in fact, since it
is a lifetime appointment, often we recognize that judges grow
old, judges have personal lives, and in fact, overseeing
whether or not that system is properly maintained to ensure
that every judge is doing and capable of doing their job when
they take the bench.
Additionally, today, we will talk about PACER. Most
Americans do not know what PACER is, but by the end of this
hearing, they will understand that everything that goes on in a
courtroom and then beyond, all the way through the appellate
process, is made available to the public through PACER, but not
necessarily for free. We all know that fees are paid when you
are prosecuting a case and judgments include court cost. What
most people don't know is that the court charges 10 cents an
electronic page for their records and makes a tidy profit on
it, which they use in any way they see fit and, in fact,
circumvent appropriations.
That is not to say that everything they spend the money on
is inappropriate or that this fund's use to ensure that we
expand the ability to keep up with records is in fact
inappropriate, but it does beg the question of, should the
American people in this day and age receive more information
more quickly and less expensively or should we allow the court
to set an amount in a vacuum that allows them to use it for
areas that are often well outside of their essential needs.
As I mentioned earlier, judges grow old, Alzheimer's is
real, aphasia is real, and there is no system that guarantees
that a judge in his or her everyday life is, in fact, being
properly checked to ensure that they are able to do their job,
one of the most important jobs in a democracy.
Today, we will hear about cameras in the courtroom. There
will be people on the dais for it and there will be people
against it. I will, for one, remain open minded, recognizing
that the Chief Justice is adamantly opposed to it but that, in
fact, there is a question of whether or not it is his right to
preclude that or it is our obligation to protect the Court from
becoming much like the House floor. And in each side of that
argument, there will be those who speak.
I think it is important today that we realize that this is
the first of many hearings that will be held on the courts. And
during this 2 years, I am dedicated, in addition to the
questions of the internet and questions of intellectual
property, to reassert this Committee's responsibility to
oversee the courts, to help them do their job better, to be a
conduit for what they want and, in fact, an oversight of what
they do.
And with that, I would like to recognize the Ranking Member
of the Subcommittee, the gentleman from New York, Mr. Nadler,
for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, the Federal judiciary is the envy of the
world. Dedicated to upholding the rule of law, our court system
provides a forum for private parties to resolve their disputes
peacefully and enable society to punish those who violate the
law. It also safeguards our treasured liberties and ensures
that the government stays within constitutional boundaries.
Unfortunately, however, we cannot ignore the fact that the
judiciary is under a sustained attack right now, and it is
coming from what should be one of the most unlikely of places,
the Oval Office. That's right, the President of the United
States, whose unconstitutional Muslim ban has been rightly
thwarted by the courts, has launched an unprecedented and
dangerous campaign to threaten and attempt to delegitimize the
judiciary and any judge who would dare enforce limits on his
power.
It is not uncommon for Presidents of both parties to speak
out against court decisions with which they disagree, but never
before have we seen such a brazen attempt by a President to
erode public confidence in the courts as fair and neutral
arbiters of the law. As most people are aware, after Judge
James Robart temporarily blocked enforcement of President
Trump's immigration executive order, the President took to
Twitter to label him a ``so-called judge.'' This was followed
by several other tweets that attacked Judge Robart personally,
called his decision political, and even claimed that if
something happened to the United States, the judge and the
court system should be blamed.
Next, the President turned his target to the Ninth Circuit
judges considering the appeal of Judge Robart's order. In his
speech the morning after the court's hearing but even before
its ruling, Mr. Trump called the proceedings ``disgraceful,''
and ``so political,'' while also claiming that the judges
failed to grasp concepts that even ``a bad high school student
would understand.''
Then after the Ninth Circuit left Judge Robart's order in
place, one of President Trump's top advisers, Stephen Miller
said, ``The judiciary is not supreme,'' and challenged the
court's legitimacy to question the President's interpretation
of the law.
Finally, the President summed up his thoughts on Twitter
this weekend writing ``our legal system is broken.'' I beg to
differ. I think our court system worked exactly as it is
supposed to. As chaos and confusion reigned at our Nation's
airports, the court stepped in to clarify that no one is above
the law and that the Constitution still provides certain
fundamental protections.
Although the drama surrounding President Trump's executive
order has been temporarily set aside, we must not become
complacent in the face of such attacks on the integrity and
legitimacy of individual judges or the court system generally.
Especially when they come from the President of the United
States, such attacks are both inappropriate and reckless and
dangerous.
Already there have been reports that judges involved in
legal challenges to the executive order have been threatened
and requiring increased security protection. Moreover,
President Trump's broadsides against the Federal courts
threaten to undermine public confidence in the institution of
the judiciary itself.
An independent judiciary is fundamental to the checks and
balances that are embodied in the separation of powers and is
essential to maintaining liberty and the rule of law. I am
disturbed that the President either does not appreciate the
role that an independent judiciary plays in our constitutional
system or it does appreciate it and seeks to undermine it. I
hope that my Republican colleagues, especially on this
Committee, will join me in demanding that the President cease
these attacks on the judiciary immediately.
My deep respect for the judiciary does not mean, of course,
that there are no improvements that we can make to the court
system, particularly when it comes to transparency. This
includes stronger ethics and disclosure requirements,
particularly with respect to the Supreme Court, which is not
bound by the code of ethics that applies to other Federal
judges.
Another important transparency measure would be televising
judicial proceedings, at least in the appellate courts. I know
that the judicial conference has undertaken a pilot project to
bring cameras to the courtroom, but I think it is time to
expand this across the Federal appellate courts. I recognize
there are privacy concerns when it comes to trial court
proceedings, but there is no reason to shield the appellate
courts from public view. Public scrutiny of governmental
proceedings and an informed citizenry is essential to
democracy.
Most courts are closed to cameras, effectively putting them
off limits to the public at large. Transcripts and audio
recordings, some of which are made public days or in some
weeks, even weeks later, are poor substitutes for the immediate
visual experience. That is why yesterday I reintroduced the
bipartisan Eyes on the Courts Act. This legislation would
finally bring important cases into public view by requiring
that cameras be allowed in all Supreme Court and Federal
appellate court proceedings.
I do not share the concerns of those who believe that the
highly trained lawyers and judges in appellate court
proceedings tackling some of the most important issues facing
our country will start playing to the cameras, nor am I aware
of any such problems occurring in those Federal courts where
cameras have been used.
The Nation was riveted by the live audio stream of the
Ninth Circuit's consideration of the President's executive
order last week. Clearly, there is great interest in wider
access to court proceedings, and I see no reason the public
should be prevented from witnessing the other important cases
considered in the Federal appellate courts.
I respect the difficulty and important job that the Federal
judiciary performs. If my bill becomes law, the public will
have an opportunity to watch them in action and to gain a
greater understanding and appreciation of their critical work.
I look forward to hearing from our witnesses on this issue
and the other important topics affecting the Federal judiciary.
And I yield back the balance of my time.
Mr. Issa. I thank the gentleman.
We now recognize the Chairman of the full Committee, the
gentleman from Virginia, Mr. Goodlatte, for his opening
statement.
Mr. Goodlatte. Thank you, Mr. Chairman.
This morning, the Judiciary Committee continues its
examination of our Nation's--I have a brief delay here. Excuse
me.
This morning, the Judiciary Committee continues its
examination of our Nation's Federal judicial system. It is
widely recognized that the trust that the American people have
in our court system is crucial to its success. While this trust
has been cultivated over many generations, it can be quickly
lost. This is why it is important that the judiciary continue
to operate in a transparent manner at all times and handle the
disputes before it efficiently, ethically, and impartially.
This morning, we will hear from three witnesses who will
present their ideas regarding ways to increase judicial
transparency and accountability. These suggestions include
greater use of audio and video recordings in courtrooms, free
or lower cost access to court documents through the PACER
system or potential replacements for it, and public disclosure
of recusal decisions.
Other issues we will consider today are the judicial
disability and disciplinary processes. Decisions made by judges
with undiagnosed medical conditions can be subject to challenge
years later. It is crucial that all judges have the resources
and confidential programs needed to assist them if they have
any questions about their fitness to serve.
Regarding judicial discipline, there have been relatively
few impeachments of Federal judges by the House of
Representatives. The Federal judiciary has its own internal
disciplinary system that, in theory, addresses misconduct
before the conduct escalates to the level where impeachment
would be warranted. However, many Members of Congress have
questions about the judiciary's disciplinary system.
Today, we will explore this system further, including
examining the remedies available for judicial misconduct, their
application, and the constitutional and other limitations on
those remedies.
I want to thank our witnesses for making time available to
be here in order to provide testimony for improving our
Nation's judiciary.
Mr. Chairman, I yield back.
Mr. Issa. I thank the gentleman. It is now my pleasure to
recognize the gentleman from Michigan, Mr. Conyers, for his
opening statement.
Mr. Conyers. Thank you, Chairman Issa.
Welcome to all our witnesses.
Today's hearing gives us an important opportunity to
examine judicial transparency and ethics issues, but I would
like to begin my remarks by addressing some of the troubling
statements President Trump has made about judges and the
judiciary.
Earlier this month, the President disparagingly referred to
a member of the Federal bench as a so-called judge and
criticized his decision as ridiculous. This judge is now in
receipt of death threats.
Last year, while campaigning for the Presidency, he called
into question the validity of a ruling by a Federal judge
because of the judge's ethnic background.
Most recently, President Trump, in opposing a decision
rendered by the Ninth Circuit, said even a bad high school
student could understand that his immigration ban was
authorized by law and that it was a political decision.
President Trump's personal attacks against individual
judges as well as disrespectful comments regarding the Federal
judiciary as a whole threatened the fundamental principles of
our constitutional form of government, namely respect for the
rule of law and an independent judiciary. Even his Supreme
Court nominee, Neil Gorsuch, characterized President Trump's
comments about the judiciary as disheartening and demoralizing.
Respect for the Federal judiciary should be a nonpartisan
issue, and this hearing is an example, an excellent example, I
might add, of cooperation with respect to oversight of that
branch. Yet we must also be mindful of the potentially
destructive attacks against the Federal judiciary, even if
those attacks emanate from the executive office of the
President.
Accordingly, I hope my friends on the other side of the
aisle will join me today in condemning President Trump's
comments threatening the legitimacy of our judicial branch and
efforts to cast aspersions against individual Federal judges.
An independent judiciary is critical, of course, to our
Nation's constitutional system of checks and balances, and we
should do everything possible to ensure that that system is not
undermined.
As to the additional areas that we will consider today, I
do support having cameras in the courtroom, but continue to
believe their impact must be more carefully considered. The
Judicial Conference, for example, notes that cameras in the
courtroom could potentially impair the fundamental right of a
citizen to a fair and impartial trial, and Justice Elena Kagan
warns that televised coverage of Federal court proceedings
would encourage participants to play to the camera.
I would like to hear proponents of cameras in the courtroom
explain how those efforts will neither undermine a citizen's
right to due process and a fair trial, nor have a material
effect on an individual's willingness to testify out of fear of
being a target for retribution or intimidation.
Finally, I support increased transparency of the judiciary.
Last week, the Ninth Circuit Court of Appeals provided live-
stream coverage of the oral argument on the Administration's
appeal of the lower court's imposition of a nationwide stay of
President Trump's immigration order. Efforts such as these by
the Federal judiciary, which makes their processes more readily
available to the public, will promote even greater respect and
understanding of the Federal court system and the rule of law.
And as we promote transparency, we must also be mindful of the
need to ensure the safety and security of our judges, law
enforcement officers, and others participating in the judicial
process.
I thank and applaud the Chairman for holding this hearing.
And I yield back the balance of my time.
Mr. Issa. I thank the gentleman.
I now--without objection, other Members' opening statements
will be made in the record.
Today we have a distinguished panel of witnesses whose
written statements have been entered into the record. And
without objection, all your written statements and extraneous
material will be admitted into the record.
Without objection, so ordered.
But today, I would ask that you summarize your opening
statements in about 5 minutes. To help you stay within the
timing, you know the lights, you have all been here before,
please, green means go, yellow means you got a minute, and red
means you will get a ticket if you run the light.
Before introducing our witnesses, it is the rule of the
Committee that all witnesses be sworn. So I would ask that you
please rise to take the oath and raise your right hands.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth.
Please be seated.
Let the record indicate that all witnesses answered in the
affirmative.
Our witnesses today include Mr. Mickey Osterreicher.
Mr. Osterreicher. Osterreicher.
Mr. Issa. Osterreicher. More importantly, the general
counsel for the National Press Photographers Association, who
needless to say have been giving us images of the courts for,
more or less, a century. Professor Thomas Bruce is the
cofounder and director of the Legal Information Institute at
Cornell University. Welcome. And Professor Charles Geyh is
professor at Indiana University--your, what is it, Maurer----
Mr. Geyh. Maurer.
Mr. Issa.--School of Law. And each comes with a level of
expertise to help guide us through three different areas that
we are going to look at today. So welcome.
You are recognized for 5 minutes.
TESTIMONY OF MICKEY H. OSTERREICHER, ESQ., GENERAL COUNSEL,
NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION (NPPA)
Mr. Osterreicher. Chairman Issa, Ranking Member Conyers,
Ranking Member Nadler, and other Members of the Subcommittee,
good morning, and thank you for the opportunity to appear here
today.
My name is Mickey Osterreicher. I am of counsel to the law
firm of Barclay & Damon, and I am here today in my capacity as
general counsel for the National Press Photographers
Association, an organization which was founded in 1946 and of
which I have been a member since 1973.
As the voice of visual journalists, the NPPA vigorously
promotes and defends the rights of photographers and
journalists, including intellectual property rights and freedom
of speech in all its forms, especially as it relates to visual
journalism.
By way of background, I am an award-winning visual
journalist with over 40 years experience in print and
broadcast. During that career, I have covered hundreds of court
cases from the Attica trials to the murder trial of O.J.
Simpson. I was actively involved in the New York State
experiment between 1987 and 1997 entitled, ``Electronic
Coverage of Judicial Proceedings.'' And by electronic, I mean
audiovisual recordings, still photography, broadcasting,
televising, or internet streaming both in realtime or
hyperlinked replay.
In an era of fake news and alternative facts, there is no
better way to ensure transparency and promote confidence in the
fair administration of justice than to expand electronic
coverage of Federal court proceedings. Transparent court
proceedings improve the quality of testimony, persuade unknown
witnesses to come forward, make trial participants more
conscientious, and provide the opportunity to better observe
the workings of our judicial system. To foster that essential
principle, almost every State allows electronic coverage of
criminal, civil, and appellate proceedings, to some degree.
For many years, Congress has proposed legislation to allow
such coverage, most recently by Representative Connolly and
Judge Poe. Representative Nadler also introduced a bill in
2015, which he just reintroduced. The NPPA commends and
supports these ongoing efforts.
More recently, there have been some advances and some lost
opportunities in this area. For example, the Ninth Circuit
began live-streaming audio of oral arguments in 2015, and the
Second Circuit continues its policy of permitting electronic
coverage for cases with heightened interest. By comparison, the
Supreme Court has released same-day audio of an oral argument
only once, despite numerous requests to do so. In 2015, it
denied such a petition for two of the year's most important
cases.
The last Federal cameras pilot program officially ended in
2015, and while the judicial conference voted against expanding
or continuing that project, it did permit three of the
participating trial court programs in the Ninth Circuit to
remain operational. Just this month, electronic coverage was
allowed in the State of Washington v. Trump, which was recorded
and uploaded to the court's website.
Last week, the telephonic arguments of the appeal in that
case were heard live with approximately 137,000 connections to
the audio stream from the court's YouTube site. CNN, which also
broadcast the arguments, averaged 1.5 million total viewers
during that hour. Millions more may have tuned in on cable news
outlets, local news stations, and countless other news
websites.
These latest developments weigh strongly in favor of
electronic coverage and should also prompt the Judicial
Conference, along with the High Court itself, to finally
promulgate common-sense guidelines, permanently allowing such
access through the Federal court system, up to and including
the U.S. Supreme Court.
Justice Stewart noted in 1965, we move in an area touching
the realm of free communication, and for that reason, if nor no
other, I would be wary of any--of imposing any, per se, rule,
which, in light of future technology, may serve to stifle or
abridge true First Amendment rights.
The Framers envisioned court as being part of a public
square, a place in a merging--in an emerging Nation where
anyone could stop in to observe the proceedings and be assured
of the integrity of our system of justice. Given the increasing
complexity of our society and the size of our communities, that
aspiration is exceedingly more difficult to achieve. As Chief
Justice Burger stated in a 1980 case, people in an open society
do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from
observing.
The ability of the public to view actual courtroom
proceedings should not be trivialized. It touches on an
important right, which goes well beyond the mere satisfaction
of viewer curiosity. And that right, advanced by electronic
coverage, is the right of the people to monitor the official
functions of their government, including that of the judiciary.
Nothing is more fundamental to our democratic system of
governance.
The NPPA looks forward to working with you on these issues
and thanks you for the opportunity to testify. I welcome your
questions.
[The prepared statement of Mr. Osterreicher follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. Thank you.
Professor Bruce.
TESTIMONY OF THOMAS R. BRUCE, PROFESSOR, AND DIRECTOR, LEGAL
INFORMATION INSTITUTE, CORNELL UNIVERSITY
Mr. Bruce. Chairman Issa, Ranking Member Conyers, Ranking
Member----
Mr. Issa. If you could pull the mike slightly closer, I
would appreciate it.
Mr. Bruce. Sure.
Mr. Issa. Thank you.
Mr. Bruce. Chairman Issa, Ranking Member Nadler, Ranking
Member Conyers, Members of the Committee, thank you for
inviting me to appear before you today.
My name is Tom Bruce. I am the Director of the Legal
Information Institute at Cornell. We have been putting legal
information online for the public for 25 years and currently
reach an audience of approximately 32 million individuals each
year.
I am here to talk to you today about the operation and
future direction of the PACER system for public access to the
opinions of the Federal courts.
Let me begin with three things that define PACER: First,
PACER charges fees for access to public records. That has been
the cause of a great deal of criticism, not only because fees
erect a barrier for many, but because the revenue from fees at
current levels considerably exceeds the cost of operating the
system. That is inconsistent with policies established by the
Congress in the E-Government Act of 2002.
Second, PACER's technology has struggled to stay up to
date. That was, to some extent, an accident of history. PACER
was implemented shortly before the introduction of the
worldwide web, and it was all too quickly seen as outmoded and
out of touch with current technology. Over the last few years,
it has made up some of the gap, but the system still falls
short on a number of dimensions, notably in the area of search
and retrieval.
Third and most important, PACER suffers from a split
personality. On the one hand, it is an electronic filing and
case management system that supports the Federal courts with an
audience of lawyers, judges, and court administrative
personnel. On the other, and most important to the public and
the Congress, it is a data publishing system that offers the
work of the Federal courts to a very wide range of people,
including litigants, researchers, and government itself.
Equally, there are a number of things that PACER is not.
First, PACER is not transparent in its business model or
operations.
Second, PACER is not an adequate facility for research on
the activities of the Federal courts. That is chiefly because
it does not provide bulk access to its data. Significantly,
research activities that might be carried out on behalf of the
Congress are impeded. Social Security cases, prisoner appeals,
and immigration matters are all examples of areas in which
study of judicial outcomes is important to those who have
responsibility for investigation and evaluation of operations
across the full breadth of the government.
Third, PACER is not an effective protector of privacy. And
finally, it is not an adequate vehicle for citable legal
research because it lacks a system of unique identifiers.
These are hard problems, especially given the scale and
diversity of what is published in PACER, but they are soluble,
provided that Congress acts. Both the Congress and the Federal
courts have strongly and repeatedly announced their commitment
to providing full access, even to unpublished opinions, at
minimal or no cost.
So what needs to be done? First, fees need to be removed as
quickly as possible. Dissemination fees have strongly inhibited
beneficial uses of the data contained in the primary record of
the workings of our Federal courts. Consideration should be
givento removing per-page viewing fees, or at the very least,
paring them back to a level that more closely matches PACER's
cost of operation.
Second, the details of PACER's operations and business
model need to be far more visible to the Congress and to the
public. A CRS report describing the business and technical
operation of the system in detail would be more than helpful
and would bring welcome clarity to many of the issues involved.
Third, the users of PACER's data publication services need
representation in the planning and design processes. Published
articles by PACER's designers celebrate the responsiveness of
its design to the needs of users of the e-filing and case
management systems. That can be charitably interpreted as a
sound effort to respond to a range of important customers who
are in a position to express their needs to the designers.
Understandably, those to whom the designers answer are
preoccupied with the e-filing and case management portions of
the system and are not nearly as concerned with publication.
Fourth, PACER's data publishing operation should move to a
new home. Why not put responsibility for data publishing
operations with an organization that has publishing as its
primary mission? The Government Publishing Office and the AO
already have a pilot program for the publication of judicial
opinions underway. It has been successful. It appears to be
scalable to the dimensions that PACER would require.
Much work would still be needed. GPO's system only extends
right now to about 100 courts. Its chronological range is
narrow, and better metadata is needed even within PACER itself.
But the potential benefits are many. First and foremost
will be the removal of barriers that prevent the public from
exercising the right to know the laws that govern them.
Publication systems that permit research utilizing the full
range of data available from PACER will make it easier for the
Congress to fulfill its responsibilities, improve the
efficiency and functioning of the judiciary, and stimulate new
approaches to legal information, while encouraging new and
innovative businesses.
Thank you for the opportunity to testify today. I look
forward to your questions.
[The prepared statement of Mr. Bruce follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. Thank you.
Professor Geyh.
TESTIMONY OF CHARLES G. GEYH, JOHN F. KIMERLING PROFESSOR OF
LAW, INDIANA LAW SCHOOL
Mr. Geyh. Mr. Chairman, it is a privilege to serve--to
appear before the Subcommittee I served on.
Mr. Issa. Perhaps the microphone a little closer in and on.
Mr. Geyh. There we go. If I turn it on, it works better.
Mr. Issa. Superb.
Mr. Geyh. It is a privilege to appear before the
Subcommittee that I served as counsel nearly 25 years ago, dry
gulp.
The Constitution works and the judiciary it established
works because we believe it works. If we lose that faith in the
judicial system, Congress can gut its budget, the President can
defy its orders, and the role the Framers envisioned for the
judiciary keeping the other branches in check will be lost. And
so I do share Mr. Nadler and Mr. Conyers' concern that there is
a difference between robust criticism, which I think we need,
it is essential to accountability; and assaults on the
legitimacy of the judiciary as an institution, which do worry
me because the judiciary is fragile in that regard.
Unlike Congress, which derives their legitimacy from the
voters, the judiciary doesn't have voters. They derive their
legitimacy from their perceived integrity, their perceived
impartiality, their perceived independence, which really is the
subject of this hearing today, because the mechanisms, like
recusal, like discipline, like codes of conduct, like
disclosure are ways that we hold the judiciary accountable.
They are the ways that we hold the judiciary, you know, make
sure that the judiciary is legitimate.
To those ends, let me talk first briefly about
disqualification. I think the substantive standards are fine. I
think that there is a concern, though, with process. Congress
has not legislated the process for disqualification, which
means that it is all over the map. And the norm that worries me
most is the norm that judges get to decide their own
disqualification, which is like grading your own homework.
I think it is problematic, from an appearance standpoint,
for judges to be put in a position of being asked, are you too
impartial to sit, too partial to sit, and the person who
answers that is the judge who may be too partial to sit. I
mean, we need to work on that one.
Second, when it comes to codes of conduct, the Judicial
Conference promulgated codes beginning in 1973, and they are
terrific. Unfortunately, the Supreme Court does not have a code
that applies to it, and I think that is a problem. Twenty-five
thousand judges in the United States, nine are not subject to a
code of ethics and they are the most powerful judges in the
country. The optics are bad.
Now, the Chief Justice tells us that they don't need a code
because they consult the code that applies to the lower Federal
courts. The trouble with that is that you know and I know that
you are going to react differently to a code that applies to
someone else as opposed to a body of rules that applies to you,
and the exhibit A for that would be Justice Ginsburg from last
fall when she starts criticizing then candidate Donald Trump,
under circumstances in which the Code of Conduct says, no, you
don't. Two days later, she retracts those statements after the
code is called to her attention. I would like to think that if
they had a code and bound themselves to it, this problem would
never have occurred.
Turning to discipline. The disciplinary process has been in
place since Congress created it in 1980. It did fall into some
disrepair about 10 years ago, and thanks to the vigilance of
this Committee, the process got jump-started. And I would like
to congratulate the Judicial Conference for making some
significant improvements in 2008 and again in 2015 that have
made it work better.
My lingering concern, frankly, is that--with the
disciplinary process is that, the statutory standard is
exceedingly vague. Misconduct is defined with reference to
conduct that is prejudicial to the effective and expeditious
administration of the business of the courts. I worry a little
bit that that lets the judiciary do whatever they want to and--
or more--and that is too strong. I think they do a
conscientious job. But the trouble is that from a perception
standpoint, that can mean just about anything.
The solution that virtually every State has employed is to
say we can have this general disciplinary standard, but we
define it with reference to the Code of Conduct. Has the judge
violated the Code of Conduct? If so, then is the violation
severe enough to warrant discipline? But by tethering this very
vague standard to the code, everybody understands what the
operative rules are and when a judge is going to be at risk.
Finally, I didn't talk about this at length in my
testimony, in my written testimony, but a point about
disclosure. You know, I think that the financial disclosure
statements are essential for the general public, they are
essential for--they are essential for lawyers who have clients
who appear before judges, and they are essential for watchdog
organizations. My concern is that we still don't have a system
in place where we are enabling the public to get ready and open
access online to those disclosure statements.
I understand where the judiciary is concerned, and I
suspect the judiciary's primary concern is for the safety and
security of its judges. There are nasty people out there who
appear before judges, and they worry that information about the
judge's family and addresses can be problematic. That, I think,
is best resolved by redaction rules and not by hiding the ball
when it comes to forms that the public is legitimately entitled
to receive. Thank you.
[The prepared statement of Mr. Geyh follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. I thank all three of you. I will now recognize
myself for a round of questioning.
And I would like to ask unanimous consent that the
statement by Professor Jonathan Zittrain be placed in the
record in which, essentially, he offers to make available PACER
for free.* And I will begin there.
---------------------------------------------------------------------------
*Note: The material referred to is not printed in this hearing
record but is on file with the Subcommittee, and can also be accessed
at:
http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105547
Mr. Issa. Professor Bruce, is that viable? Is it viable to
simply offload all of the information of the courts,
potentially, to make it free without commercial advertising?
Mr. Bruce. It is very difficult to tell, and that is part
of the reason that I am interested in getting more detailed
reporting of PACER's finances, and people have made various
suggestions over the years. There is some thought that, for
example, the entire cost of covering PACER could be generated
through filing fees. There is also--there is also the
possibility that one could go into some form of commercial
licensing for those who are actually making commercial use of
the data as another possible source of revenue.
But all of those, at this point, are merely informed
guesses because the finances of PACER are not particularly
transparent. I received this morning, as you have, a bunch of
information about PACER's financials that I have not seen
before.
As far as operating from a third party point of view, if
someone were to hand that to us tomorrow, it would be difficult
to do.
I do think that the people who are operating FDsys at the
Government Publishing Office are in a good position to do it.
They are a quarter of the way there already in terms of the
number of courts that they are covering.
Mr. Issa. Thank you.
Now we go to cameras in the courtroom. Mr. Osterreicher,
let me move away from cameras in the courtroom directly and
just go a round of quick questioning for my own edification. Is
it reasonable to assume that since the courts in most areas of
the country allow witnesses to be video deposed and those
depositions, in video form, are admissible, that in fact video
has a practical value to juries making decisions?
Mr. Osterreicher. I think it absolutely does. Part of a
jury's function is to look at the demeanor, character of those
people testifying. Sometimes just seeing a transcript or even
just hearing the audio is not enough. So I think that video is
a very important component.
I also think, even though most court proceedings are not
very compelling television, if you have high quality----
Mr. Issa. But you have been there for the good ones.
Mr. Osterreicher. Yes. But even then, sometimes, you know,
it has been said that most courtroom proceedings are like
watching paint dry. It just is not the Perry Mason confession
moments that we are used to seeing in an hour's worth of
television.
But that said, I think they are far more interesting than
just the transcripts and audio themselves. Though, in the
alternative, as we have seen just recently, there are a lot of
people that wanted to hear that oral argument in the Ninth
Circuit.
Mr. Issa. That is one thing we can count on is, even when
paint's drying, somebody will dump the bucket every once in
awhile and it will get very exciting in the room.
Professor Geyh, I want to spend the rest of my time asking
a few questions on ethics. You mentioned conflicts of interest,
and this is a great question. Do you believe that we have the
obligation to ensure that a system is in place that is
verifiable as to people who have conflicts and thus there has
to be disclosure in order to determine whether there may be a
hidden conflict?
Mr. Geyh. I would agree.
Mr. Issa. Do you believe that, at a minimum, a body in
camera must make that decision? And when I say in camera,
obviously, you talked about redacting, but however it is done,
it has to be sufficient to understand where the conflicts may
come while, in fact, protecting the privacy--necessary privacy
of judges.
Mr. Geyh. Right. And I would--there is a Judicial
Conference committee on financial disclosures that I assume
would be able to help with that, but yes.
Mr. Issa. Now, currently, each circuit is the highest
authority for whether a judge is competent. Isn't that correct?
Mr. Geyh. Competent to--oh, in terms of having a conflict?
Mr. Issa. No, if a judge becomes unable----
Mr. Geyh. The disability provisions.
Mr. Issa. Yeah, under disability, it is decided----
Mr. Geyh. The circuits control that.
Mr. Issa. And constitutionally, what basis is there for a
circuit to decide it when, in fact, the Constitution only gives
authority to the Supreme Court?
Mr. Geyh. What is the constitutional authority for the
legislation that provides for that, you mean?
Mr. Issa. Well, what is the constitutional basis for
putting it in the circuit rather than holding some level of
responsibility? In other words, do we have--have we written
statutes that negate the ultimate responsibility of nine men
and women on the court?
Mr. Geyh. Well, if we are talking about the competence
issue, I think that--I mean, the way I look at it is the 1980
legislation provided for a circuit-based disciplinary and
competence standard that dates back to 1939.
Mr. Issa. Okay. And I will be brief with the last two
wrap--quick questions. One, currently, there is no transparency
as to that. In other words, you really don't know whether
somebody is being considered for either their technical
competence, their health competence, or their ethical
competence.
Mr. Geyh. In the early stages of the process, it is not.
That is right.
Mr. Issa. And lastly, currently, there is no requirement
for physical or mental evaluations of judges even into their
70's, 80's, and 90's?
Mr. Geyh. Not that I am aware of.
Mr. Issa. Thank you.
I now recognize the Ranking Member for his questions.
Mr. Nadler. Thank you, Mr. Chairman. I have several
questions. Before I ask them, I ask unanimous consent that a
statement from our colleague, Mr. Connolly of Virginia, be
entered into the record regarding his legislation, the
``Cameras in the Courtroom Act,'' which would require
television coverage of the Supreme Court, along with a copy of
the bill.
Mr. Issa. Without objection, so ordered.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
__________
Mr. Issa. And we will not take that as an endorsement of
the alternate legislation, I trust.
Mr. Nadler. No, no, no, just as a reference. Thank you.
Mr. Osterreicher, it has been estimated that between the
live stream on YouTube, Facebook Live, and simulcast on the
cable networks, more than a million people tuned in to listen
to the Ninth Circuit's oral arguments in the executive order
case. Do you think that the ability to listen to the arguments
without any news filter helps people counter the President's
assertions or judge the validity of the President's assertions
about the integrity of those proceedings?
Mr. Osterreicher. I think it is critical that people in--as
I said, in this day and age of alternative facts and
accusations of fake news against the media, that the people
have an opportunity to see and hear for themselves how
government is conducted in all three branches. Unfortunately,
what we have seen is, in the judicial branch, that has not
always been available, at least at the Federal level.
Mr. Nadler. Well, here it wasn't the media's
characterization. It was the President's characterization of
the hearing as terrible and horrible and so forth. And do you
think that the fact that over a million people at least heard
the audio stream helped counter that?
Mr. Osterreicher. It is a much more direct form of
democracy where people can see and hear for themselves, just as
our Framers envisioned being able to, you know, stop by a court
on their way about their daily activities. Unfortunately, these
days, that can't happen, but we do have the capability of that
type of communication through audiovisual coverage.
Mr. Nadler. Thank you.
Now, the argument before the Ninth Circuit was a very high-
profile case, obviously, and on rare occasions, the Supreme
Court has released audio of high-profile cases within minutes
of the arguments' completion instead of at the end of the week,
as is the normal practice. Is there any rational distinction
between how the Supreme Court handles high-profile cases and
how it handles less newsworthy cases?
Mr. Osterreicher. I don't think that there should be. I
think that they should develop some standard practices. In
terms of releasing, they have only done that once. Most of the
time, even in high-profile cases, in the two that I mentioned
last year, they still said that, in a very terse statement,
they would stand by their Friday release. And as most people
know, Friday is not exactly the best day to get people's
attention when they are trying to start their weekend.
Mr. Nadler. It is a dump day. But is there any rational
distinction between the cases, other than that they were high
profile, where the Supreme Court released the audio transcript
quickly and most cases where they didn't?
Mr. Osterreicher. I don't think that there really should
be. Again----
Mr. Nadler. Should be. But is there--is there a rational
distinction that you can make that said: Well, here the Supreme
Court said yes, but there, they said no for the following
reason?
Mr. Osterreicher. No.
Mr. Nadler. There is no rational distinction here.
Mr. Osterreicher. Not as far as I can see.
Mr. Nadler. When the Supreme Court has released audio more
quickly, have we witnessed any ill effects?
Mr. Osterreicher. No. I mean, it is an appellate review, so
we are not looking at somebody's Sixth Amendment rights coming
into play as we might in a trial court.
Mr. Nadler. That is why my bill doesn't include trial
courts.
Mr. Osterreicher. I understand.
Mr. Nadler. One of the criticisms of bringing cameras into
the courtroom that we hear most often is that the lawyers or
judges may play to the cameras. Are you aware that this has
occurred in any of the courts that participated in the Judicial
Conference's pilot program?
Mr. Osterreicher. Not that I am aware of. And as a matter
of fact, in that 10-year experiment in New York, I think the
most telling statistic is the fact in the tens, if not hundreds
of thousands of cases that were heard, not one appeal was taken
in a criminal court case or in any case based on the fact that
someone didn't get a fair trial under the Sixth Amendment
because----
Mr. Nadler. In those----
Mr. Osterreicher [continuing]. Of the fact that there was a
camera in the court.
Mr. Nadler. In those trials--in that trial situation, I
suppose you would have to call it, are you aware of any
allegations by anyone that any--that any hearing was affected
by playing to the cameras?
Mr. Osterreicher. No, there has always been that
speculation, but----
Mr. Nadler. Speculation. But any allegation that in that
case this is what happened?
Mr. Osterreicher. None that I am aware of.
Mr. Nadler. Thank you.
And, Mr. Bruce, you have given a lot of careful thought to
various ways that you believe PACER could be improved, both
from a technical standpoint and ways to enhance public access
to the documents contained in PACER. Have you had the
opportunity to share your views with the administrative office
of the courts?
Mr. Bruce. No, I have not, sir.
Mr. Nadler. Oh. I was going to ask if they were receptive
to your recommendations, but obviously, you haven't shared it
with them.
Have you asked for the ability to share it with them?
Mr. Bruce. I have not.
Mr. Nadler. Is there a reason for that or----
Mr. Bruce. I am, to be honest with you, sir, fairly new to
the issue. I have monitored it for years. It has not been--it
has not been something to which I have paid deep attention
until recently.
Mr. Nadler. And finally, what sort of ability does the
public have to comment on PACER, if any?
Mr. Bruce. None that I am aware of.
Mr. Nadler. Thank you. I yield back.
Mr. Issa. I thank the gentleman.
We now recognize the Chairman of the full Committee, the
gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Geyh, in cases of alleged misconduct, this Committee
has deferred to the Judiciary Committee, in some instances, for
an initial investigation before its potential referral to us
for further action, including the possibility of impeachment.
Does the judicial branch operate in an efficient manner when it
is conducting its investigations?
Mr. Geyh. Much more so. I think that this Committee lit a
fire under the judiciary about 10, 15 years ago when this
Committee reached the point of actually considering the
impeachment of Judge Real. And part of it was to say: Look, if
you are not going to do your job, we are going to have to jump
in. And that, I think, resulted in some very positive things,
including some upgrades to the judicial disciplinary process.
I now feel as though they are taking it seriously. I think
that this kind of oversight is critical to maintain that. But
yes, I do think that they are doing a much better job than they
were if I were testifying 15 years ago.
Mr. Goodlatte. I generally agree with that. I have had
experience handling two impeachments of Federal district court
judges. In one of those instances, I am not sure that the
Committee would have had the wherewithal to proceed without the
preliminary investigative work that was done by the, I believe
in that case it was the Fifth Circuit Court of Appeals.
The Justice Department declined to prosecute in that case,
and it left us in a situation where we really had to develop
our own case. We had four Articles of Impeachment. In the end,
the Senate voted to convict that judge in all four instances.
And I would give a lot of credit to the work that was initially
done by the Fifth Circuit to lay the groundwork and provide
information to us that was the foundation for our building a
case.
However, I also recall that in that case there were a
number of judges that did not believe that the offenses that
had been committed by that judge were indeed impeachable
offenses. And so I am wondering if this process, the way it is
laid out today, puts the judiciary in an awkward situation
where people who work with each other on a regular basis are
called upon to pass judgment upon those same members of that
same circuit of the judiciary. I am wondering if you have any
observations about that?
Mr. Geyh. Well, I am not sure if you are talking about
Judge Porteous.
Mr. Goodlatte. I am talking about Judge Porteous.
Mr. Geyh. I was an expert witness for the prosecution in
that case.
I differentiate in my own mind between conduct that judges
may think is bad behavior warranting discipline and conduct
that is so bad that it warrants impeachment. And I felt as
though that was an example of the system working as it should
because they worked it through the pipeline and ultimately
recommended that impeachment be taken.
The Real case that I talked about before is more of a case
where I think it was dysfunctional, because then the system
ground out for years in the disciplinary phase without the
public having adequate notice.
I do think--what you are calling attention to is the
inherent problem of judges judging their own, and that is an
inherent problem. And to my way of thinking, the way we address
that problem best is by keeping, you know, feet to the fire in
a limited way by basically having hearings like this in which
we bring the judges forward and say, what is the process, how
does it work, tell us how it works, and whether we are getting
adequate transparency at what points in the process so that we
can look at it and say this is good.
The one last point I will make is that Congress abandoned
meaningful impeachment investigation in the 1940's because it
is bloody exhausting, that they waited for someone else, either
a prosecution or the judicial branch to go first. I think that
is preferable, given how much work this body has, if we can
manage to make that doable.
Mr. Goodlatte. I take it then, however, that you think we
should have another panel or another hearing in which we invite
judges themselves to come and talk about these same issues that
you are----
Mr. Geyh. I think so. I think that is important, yeah.
Mr. Goodlatte [continuing]. Addressing here today, and I
agree with you.
Mr. Osterreicher, some have expressed concern about
sensitive information being made public if cameras are allowed
into the courtroom. How can sensitive information best be
protected when cameras are present?
Mr. Osterreicher. Well, I think that every legislation that
I have seen really relies on the discretion of the trial court
judge. He or she should be the final arbiter as to what happens
in his or her courtroom.
At the appellate level, I think, you know, there is a
number, in all the briefings, if something needs to be
redacted, that is fine, but I can't imagine, during an oral
argument at the appellate level, that we would see that
sensitive information.
So at the trial court level, once again, I think that
should be in the discretion of the presiding judge.
Mr. Nadler. Would the gentleman yield? Would the gentleman
yield for a second.
Mr. Goodlatte. Yeah, I will be happy to yield.
Mr. Nadler. And in any event, if that problem exists, that
problem exists with the audio which is released now. The camera
doesn't really add or detract from that problem.
Mr. Goodlatte. I thank the gentleman for his comments. I
thank the witness, and I yield back.
Mr. Issa. I thank the gentleman.
And we now go to the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you so much.
I want to go back to the cameras in the courtroom for just
a minute. Some believe that cameras in the courtroom could
heighten the level of and the potential threats to Federal
judges, particularly those proceedings involving highly
controversial matters.
Mr. Osterreicher, how do you feel about that?
Mr. Osterreicher. Well, I think it is very difficult to put
the genie back in the bottle. As we have seen from the
internet, if you do a search, you can usually find somebody's
image with their name. The last time that I testified before
the Subcommittee, that issue was raised as well by the Federal
trial court judge who was also one of the witnesses. I had
never seen her before but was able to, once again, google her
name and come up with lots of images of her.
So the fact is that if somebody is testifying in court,
that their image will be shown, I think--I certainly understand
the concerns of the jurists there. But again, in terms of the
presiding justice, if there is a security issue with one of the
witnesses, then that judge has the ability to decide that that
video not be recorded or broadcast.
Mr. Conyers. Professor Geyh, in your testimony, you state
that there are 25,000 judicial offices in the United States.
All but nine, of whom are most visible and influential nine in
the Nation, are not subject to a Code of Judicial Conduct.
Should Congress consider legislation that requires the Supreme
Court to promulgate a code of conduct applicable to itself?
Mr. Geyh. I think so. Steve Gillers and I wrote an op-ed
last year in support of Mr. Murphy's bill that did just that.
And you know, in a perfect world, the judiciary would quietly
appoint a Committee and promulgate a code of its own based on
the Code of Conduct for U.S. judges, but it hasn't done that.
And I do think that if we are concerned about the legitimacy of
the judiciary, we really ought to think seriously about
insisting that they take that step.
Mr. Conyers. And let me add this. Is it possible that
President Trump's recent statements about the judiciary could
cause citizens to lose faith in the rule of law and the
judiciary, and why would that be a huge problem if that is so?
Mr. Geyh. In my view, sustained attacks not in the form of
criticism of judicial decisions, not in the form of criticism
of judges, but suggesting that the judiciary should not be
respected because the judges are so-called because they are
only deserving of respect if you--if they do what the President
wants, over the long term, that can erode public confidence in
the independent judiciary.
And let me just say that I am not a social scientist, but I
follow a lot of social science about this, and the social
scientists have drawn a line between talking about the courts
as legal realists where they are influenced by their ideologies
and so forth. The public understands that. Ninety percent of
the public is cool with that. They understand how that works.
It doesn't cause them to think twice about the legitimacy of
the courts.
The line gets crossed when they are perceived as just
politicians in robes. In other words, not just that these are
honorable people who may be influenced by their backgrounds and
experience, but they are politicians in robes. And the concern
I have is when you are calling them just political, when you
are saying they are so-called, when you are calling them
disgraceful is that you run that risk, and at that point, I
think you can--very quickly, the judiciary can fall like a
house of cards if we lose that legitimacy.
Mr. Conyers. Thank you so much. Is it possible then that
President Trump's recent statements about the judiciary could
cause citizens to lose faith in the rule of law and the
judiciary?
Mr. Geyh. I would like to think that the American people
are made of sterner stuff in the sense that if this persists,
we have a serious problem. My hope is that the response to
those attacks creates a public debate that allows for this
problem to be neutralized. So I regard--I join conservative
scholar Will Baude, who was in the Washington Post last
weekend, saying these attacks are deadly serious. By
themselves, I am not sure that they are going to diminish the
legitimacy of the judiciary, but if gone unresponded to or
uncorrected, they could.
Mr. Conyers. My final question is to Director Bruce. What
barriers should be removed that prevent the public from reading
the opinions of the court, in your estimation?
Mr. Bruce. The first and most important barrier is
economic. It is the per page viewing fee. The second is a
problem of sort of practical obscurity that has to do with the
data in the system. So, for example, in PACER currently, it is
actually not possible to retrieve, with any certainty, the
author of a specific opinion. In other words, if you want to
see all the opinions by Judge Smith, that cannot be done with
complete confidence. And there are other metadata lacks we
could point at, but that is the most striking one.
Mr. Conyers. Thank you so much.
Thank you, Mr. Chairman.
Mr. Issa. I thank the gentleman.
We now go to the gentleman from Pennsylvania, Mr. Marino.
Mr. Marino. Thank you, Mr. Chairman.
Welcome, gentlemen, and let me get directly to the issue.
Do any of you support cameras in the courtroom other than,
other than appellate arguments? And start with you, Mr. Geyh.
Mr. Geyh. I support it only in appellate arguments. I
support it in limited use in trial scenarios, carefully
circumscribed to protect litigant rights.
Mr. Marino. Professor Bruce?
Mr. Bruce. I agree with Professor Geyh.
Mr. Marino. Okay. Sir?
Mr. Osterreicher. I support them in all aspects of the
judicial proceedings. For all these years, all of the concerns
that have been expressed have been shown to just be
speculative.
The last time the Supreme Court heard a case based on the
fact that somebody claimed they didn't get a fair trial, due to
cameras was 1981 in Florida v. Chandler.
So I think, again, under the discretion of the trial court
judge, that cameras are absolutely crucial to allow the public
to see what goes on in courtrooms.
Mr. Marino. But sir, don't you think that speculation is
something that really should not play a part in this,
particularly in a criminal proceeding?
In a capital murder case for the person--the defendant, for
the family members, who are sitting there because of the
victim, anything that we can prevent from swaying a decision
other than the facts before the jury, I think, is most
paramount. Do you have a response?
Mr. Osterreicher. I believe having been in courtrooms,
throughout that 10-year period and beyond, that the jury, the
participants, are completely unaware of the fact that there are
cameras.
And that was when there were actual personnel in the
courtrooms. Now we have multiple cameras in this room. I think,
for the most part, eventually, people get used to the fact that
they are there. We're videotaped and photographed a dozen if
not more times a day----
Mr. Marino. Don't you think that a witness--a witness,
particularly a child, would have reservations about testifying
in front of a camera? Don't you think that--look, there's
enough grandstanding in Congress before the cameras in hearings
and on the floor. Can you imagine what would take place in a
courtroom?
Mr. Osterreicher. Well, I kind of saw what took place in
the courtroom during the O.J. Simpson trial.
Mr. Marino. And that was a circus in and of itself. Even
the judge--even the judge, in my opinion, spent too much time
looking at the cameras as did defense and prosecution. This is
a dangerous, dangerous area to get into.
I was a prosecutor for 18 years and a rule of law person,
you know, and the last thing we need is speculation that, well,
nothing will happen. What if something happens?
Mr. Osterreicher. But that in itself is speculation. I
think, you know, in terms of----
Mr. Marino. It's not a speculation as to whether a person's
going to be executed, whether a victim or a victim's family is
going to seek to receive justice.
I have no problem at the appellate level, but going into
the courtroom is--it's just another entertainment to be turned
into a circus, as we see now, particularly with video cameras,
people with their cell phones. This is--we're treading on
dangerous, dangerous area here as far as rights are concerned
and the rule of law. I'll let you respond.
Mr. Osterreicher. I understand and respect your opinion. I
think when you're talking about a child or a reluctant witness,
once again, the trial court can decide whether or not----
Mr. Marino. So who makes this determination? Every single
judge? Who makes the determination? A panel of judges? You
three? Us in Congress? Who sits down and determines what the
guidelines are?
Mr. Osterreicher. I think that each judge in--that is
presiding over that courtroom, just like they have to make
rulings----
Mr. Marino. Well, we have numerous--we have numerous,
multiple decisions made as to whether there'll be a camera
there or whether there will not be a camera there and nothing
consistent. I think you understand my position on this. And I
yield back the remainder of my time.
Mr. Issa. Can I--would you yield to me?
Mr. Marino. Certainly.
Mr. Issa. I want to follow up on his question. In a
criminal trial, you have somebody who is innocent until proven
guilty. If you stream live even their testimony or their face,
are you or are you not, in fact, making a public
characterization? And is that something that's--and I know they
do it in State court. Is that something that we must do, or is
it something that we'd like to do?
And I think that's where the gentleman from Pennsylvania's
question goes, where he looks at appellate and says, we could
be onboard, because we don't have this question of innocent
people, whether they're witnesses, plaintiffs, defendants.
So I would follow-up and just ask, is this something that
would be nice to do, that you would like to do, or, in fact, is
getting the appellate made universally available, including the
Supreme Court, more likely to be something where the American
people have a right to know, and there's less conflict
involved?
Mr. Osterreicher. I would be happy to start anywhere. And
if it's at the appellate level, I think there should be a
rebuttable presumption that courtrooms are open and open to
cameras. And then if there is something that can refute that,
for whatever reason, at either the appellate level, the Supreme
Court, or a trial court level, then that can be dealt with. But
that's just something that I think the public has a right to
see.
We've all, I think, are in agreement that courtrooms are
open to the public, and kind of blaming the camera for the
circus-like atmosphere that goes on sometimes inside and
sometimes outside the courtroom, I think, is shooting the
messenger.
The example that I would use at a Federal level is during
the trial of the Oklahoma City bomber. There were cameras in
the courtroom that were used to broadcast closed circuit TV so
that people back home where the bombing took place could watch
that. And, unfortunately, the public missed an opportunity to
see a well-conducted trial by Judge Matsch there versus the
circus that we saw in O.J.
Mr. Issa. I appreciate that.
We now go to the gentleman from Georgia, Mr. Johnson, for 5
minutes.
Mr. Johnson of Georgia. Thank you, Mr. Chairman, for
holding this hearing.
And thank you, gentlemen, for being here today to testify.
Mr. Osterreicher, in Professor Geyh's remarks, his written
remarks, and also his testimony, he lays out the principle that
Federal judges derive their legitimacy from the respect that
they command as a result of their personal competence,
impartiality, independence, and integrity? Do you agree with
that statement?
Mr. Osterreicher. I do.
Mr. Johnson of Georgia. And how you about, Professor Bruce?
Mr. Bruce. Yes, I do.
Mr. Johnson of Georgia. And to maintain that respect that
they command as a result of the perception of competence,
impartiality, independence, and integrity, judges should make
decisions according to the law, unclouded by personal bias or
conflicts of interest. That's another statement that Professor
Geyh makes in his written testimony.
Do you both agree with that as well?
Professor Bruce and Mr. Osterreicher?
Mr. Osterreicher. I do.
Mr. Bruce. Yes, I do.
Mr. Johnson of Georgia. And do you also agree that when the
public perceives a lack of competence, impartiality, or bias in
favor of one party against the other, then the integrity of the
judicial branch is undermined?
Mr. Bruce. Of course.
Mr. Osterreicher. Yes, but that's a more subjective view
depending on your point of view then.
Mr. Johnson of Georgia. Well, but judges should strive to
avoid an appearance that they might be biassed in favor of one
party?
Mr. Osterreicher. Absolutely.
Mr. Johnson of Georgia. And this is the reason why judges,
Federal judges, are bound by the code of conduct for United
States judges--excuse me--for United States--yes, for the
United States judges. Correct?
Mr. Osterreicher. Yes.
Mr. Johnson of Georgia. Is to protect those ideals and to
ensure that they abide by those ideals.
But it's troubling that U.S. Supreme Court justices are not
bound by a--or by that code of conduct for United States
judges.
Do you have the same bad feeling about that that I and
Professor Geyh have, Mr. Osterreicher?
Mr. Osterreicher. I think that it should apply across the
board to all the judges.
Mr. Johnson of Georgia. You, Professor Bruce?
Mr. Bruce. For what the opinion of a computer scientist is
worth, yes, I do.
Mr. Johnson of Georgia. Well, tell me, is there any reason
why there is some uniqueness of the United States Supreme Court
justices that would exempt them from some code of ethics or
code of conduct?
And you've already answered that question, so let me--let
me ask this: Professor Geyh, is there any reason--is there any
constitutional basis that would prevent Congress from imposing
upon the U.S. Supreme Court justices a rule that they abide by
the code of conduct for United States judges, or that they
write a code of conduct for themselves and abide by it?
Mr. Geyh. Steve Gillers and I are both of the opinion that
the necessary and proper clause, coupled with the power to
regulate the appellate jurisdiction of the Supreme Court, gives
this body the power to insist on a code of conduct.
I think for those of us who are originalists, I think it's
useful to know, you know, that the original Congress was happy
to identify how many judges that would have to be on the
Supreme Court, when they would sit, where they would sit. It
made them get on horseback and run around the country.
And so against the backdrop of those early regulations, the
idea that you would simply say, look, we want to make sure that
our judiciary, as a condition of the appellate process, that
our judges subscribe to basic ethical principles strikes me as
being within the zone.
I'm not sure--there might be a counter. There may well be
others who disagree, but I think there is congressional power
for that.
Mr. Johnson of Georgia. Thank you.
Mr. Osterreicher, do you agree with that?
Mr. Osterreicher. I absolutely do. I think that,
unfortunately, I believe what we're seeing now is the Supreme
Court promulgates its own rules. So that, I think, would be the
explanation for why they don't have rules that are in line with
the other justices.
Mr. Johnson of Georgia. Well, I'm sure that justices,
unlike judges, want to be judges of their own cases. And I
think that whenever you have a justice that is solely
responsible for judging an issue of recusal, then it diminishes
the respect that people have for the court's perception of
abiding by the law and being unbiassed, impartial, and all the
rest.
And with that, I will yield back. Thank you.
Mr. Issa. I thank the gentleman.
We now go to the gentleman from Idaho, Mr. Labrador.
Mr. Labrador. Thank you, Mr. Chairman. Pleased to be
joining this Subcommittee and look forward to talking about
this issue and many other issues about the Federal judiciary.
Mr. Osterreicher, I have a quick question. I appreciate
your approach to transparency in the courtroom and the role
that cameras and live streaming can play. I was actually a
criminal defense attorney, and I practiced in Federal courts. I
was also a law clerk in the Federal courts in Idaho, and I'm
ambivalent and a little bit conflicted about having cameras.
Because I do see--you just gave the example of the O.J.
Simpson trial and then you mentioned how unfortunate it was
that another trial didn't have cameras because of how well it
was conducted. But then that begs the question, was it properly
conducted because there were no cameras in the----
Mr. Osterreicher. No, there were cameras, they just were
closed circuit cameras.
Mr. Labrador. Correct. Correct. Because they knew that they
weren't--it wasn't a nationally televised circus that they were
presiding over. So that's the question that--and I'm not taking
a position. That's the conflict that I have, because I have
seen how it has had a deleterious effect on some trials, and I
think the justice was not served in some of those trials.
Mr. Osterreicher. I think that, unfortunately, that
atmosphere, in the O.J. trial, would have gone on with or
without cameras. There was a whole lot more circus going on
outside the courtroom when people--when both--all the parties
went through the gauntlet of the media that was outside.
I think, once again, it really shows that if the public--
and, for example, the civil trial that followed regarding Mr.
Simpson, again, there were cameras there. It was broadcast, and
people got to watch that trial. There wasn't a whole lot of
commenting going on, a whole lot of spin as to what happened or
what you just saw.
I think we need to give the public credit, just as we have
for them listening to the oral arguments the other day in the
Ninth Circuit to be able to see and hear for themselves what
went on. And that will also----
Mr. Labrador. And I don't disagree with that. I have no
problem with the oral argument in the Ninth Circuit. I actually
enjoyed listening to it myself.
Do you believe that cameras should be allowed in all types
of trial court proceedings, including criminal matters and
preliminary matters addressed without a jury present?
Mr. Osterreicher. I do, once again, within the discretion
of the presiding judge.
Mr. Labrador. How do you answer the concerns of those that
suggest that broadcasting trials will have a chilling effect on
whistleblowers and other possibly reluctant witnesses?
Mr. Osterreicher. Once again, I would say this has been
unfounded speculation for, you know, scores of years already.
And there's really no proof of that.
In the New York 10-year experiment, they did four different
studies where they asked judges, parties, witnesses,
prosecutors, lawyers, to fill out forms, and both the empirical
and anecdotal data show exactly the opposite happened where
cameras were in the courtroom.
Mr. Labrador. Professor Geyh, do you believe that the
grounds for disqualification are well-stated in the statute?
Mr. Geyh. Pretty well, yeah. They are mostly uniform across
the country at this point.
Mr. Labrador. To what extent, if any, have you seen or
learned of attorneys using these sections of law to shop for
more favorable judges?
Mr. Geyh. It happens, but it is a very risky gambit. In
other words, I think the opposite is almost more likely the
case. In other words, lawyers think long and hard before
they're going to show up in front of a judge and point a finger
in his face and say, you're too biassed to sit, because more
likely than not, the judge will say no, and then they're going
to have a case heard by a pissed off judge.
Mr. Labrador. So, hypothetically, should a judge's
political leaning or proclivity for or against a certain
political position be sufficient ground for disqualification?
Mr. Geyh. No.
Mr. Labrador. Your testimony recounts the procedural
hurdles and resulting issues with employing section 144. Can
Congress amend 144 so that attorneys could conceivably use it
as a method for moving--of moving for disqualification of a
judge?
Mr. Geyh. It could.
Mr. Labrador. How?
Mr. Geyh. How could they do it?
Mr. Labrador. Yes.
Mr. Geyh. I think that I would recommend----
Mr. Labrador. Well, what changes do you suggest?
Mr. Geyh. Well, I mean, I think I would borrow changes that
are made in Alaska and Montana both have statutes, which
essentially allows for substitution of judges. It's a one-time
only--a one-time only arrangement in which a party can request
a different judge without making the allegation that the judge
was biassed. And it's judge shopping, but it's a one-shot deal.
And the word--you know, the word that I received when I was
working this issue was that it cut way back on disqualification
for cause later, so--and the people who use it like it. The
people that don't resent it. The people who don't use it, sort
of, worry that it creates this judge shopping thing.
But the people who use it, well, if that's one way to
preserve public confidence in the courts by a one-shot only
deal, it will work.
Mr. Labrador. Thank you.
I yield back my time.
Mr. Issa. Did you mention also California has that----
Mr. Geyh. California--about 20 jurisdictions do, and most
of them are in the West. And most of the ones that use it are
pretty--are okay with it. Not all, but--I think mean, I think
I've heard some judges complain, but it's the ones that don't
use it that find it difficult to fathom.
Mr. Issa. Thank you.
We now go to the gentleman from Florida, Mr. Deutch.
Mr. Deutch. Thank you, Mr. Chairman. Mr. Chairman, I have
very mixed feelings about today's hearing. On the one hand, I
agree----
Mr. Issa. About the hearing or the subject matter?
Mr. Deutch. About the hearing and the subject matter. I do
agree that there's a lot to be done and needs to be done to
improve public access to the PACER service. As someone who has
personally--has had the joy of muddling through PACER, I can
see what a difference improvement would make, and I'm glad
we're having the opportunity to talk about that.
Similarly, revisions to Federal court policy on cameras are
long overdue as well. Policies prohibiting cameras in the
courtrooms impose severe limitations on the public's ability to
observe court proceedings, interpreting laws that can impact
the daily activities of every American. These restrictive
broadcasting policies shroud the Supreme Court, and Federal
court proceedings in secrecy and raise questions in the minds
of the public on the administration of justice.
You can walk into any State or Federal courtroom in America
and see rows of benches or seats to accommodate public
audiences interested in watching the legal proceedings. The
U.S. Supreme Court also has public seating available to
accommodate the lucky few courtroom seating for audiences
recognizes and accommodates our Nation's long tradition of
public court watching.
The U.S. Supreme Court and our Federal courts hear and
consider some of the most important issues facing our country.
The proceedings and the decisions issued from the proceedings
by the Supreme Court and Federal courts impact every facet of
lives of Americans. The Supreme Court and the Federal courts
need to recognize and adapt to these changes to permit the next
generation of court watchers' access to proceedings on
important legal issues. Such changes should include permitting
television broadcasting.
I've long supported the efforts of Mr. King, Mr. Nadler,
and others in trying to open our Nation's courts to public
access through cameras with appropriate protections for the
parties and judicial discretion ever-sensitive matters. It's
time that the Supreme Court and Federal court's practices
change.
But I cannot help feeling the twinge of regret at the focus
this week on judicial transparency and ethics when the
executive branch had such glaring problems with both.
It doesn't take a constitutional law scholar to see that
President Trump should not continue to have an ownership stake
in the company that bears his name. His family's operation of
the Trump Organization has already given foreign governments
the opportunity to funnel improper payments through Trump
hotels and golf courses and rental properties to curry favor
with the Administration with no accountability to the American
people.
The complete inadequacy of President Trump's approach to
conflicts begs us here, the House Judiciary Committee, to
investigate ethics violations of the President and his
nominees. His choice to violate the Constitution and complete--
and his complete disregard for the well-established norms
followed by previous Administrations expose our democracy to
potential foreign influence and to the risk that he will use
the power of his office to divert the public good for his own
private benefit.
These, Mr. Chairman, I would respectfully suggest, are the
most pressing issues of transparency and ethics facing our
country today.
But, since executive transparency and ethics falls outside
the jurisdiction of the Subcommittee on the Courts,
Intellectual Property and the Internet, and since this
Committee as a whole seems fiercely determined to ignore our
executive oversight responsibilities in the face of
unprecedented threats by the Trump administration, I suppose
the judicial transparency is the most we can hope for, and I am
grateful for our witnesses for sharing their thoughts on this
important topic today.
And with that, I yield back.
Mr. Issa. The gentleman yields back.
With that, we go to the gentleman from Texas, Mr. Poe.
Mr. Poe. Thank you, Chairman.
Thank you all for being here. During my other life, I was a
proud judge in Texas for 22 years. I tried only felony cases,
everything from stealing to killing and everything in between.
And I was one of the first, if not the first, trial judge in
Texas to allow cameras in the courtroom. We had a very
structured system where we had to--it was very discreet. The
jury never saw the camera.
The camera did not film the jury, did not film child
witnesses, sexual assault witnesses, or any other witness that
the lawyers did not agree should be filmed. And those that
opposed that system, you know, said the world would end if we
had cameras in the courtroom, where all lawyers would play to
the cameras, and all of those things that--and no offense to
the academics, but the academics were opposed to it, because
they had never been in a courtroom and never had tried a case
in their life, from either point of view.
But none of that happened. Lawyers don't play to the
cameras. They play to the trier of fact, whether it's the court
or the jury. And we tried very serious cases, including death
penalty cases, and we allowed cameras to film those cases. And
it worked, and it was great for not just the public, but for
law students and their universities to see those cases tried
from gavel to gavel.
And I'm a great fan of that, because we have the greatest
judicial system in the world for determining guilt or
innocence. No, it's not perfect, but it is the absolute best
that anybody has ever come up with. And why would we not want
the world to see it? And the public is stuck with a 90-second
sound bite on the news by what some reporter thinks took place
in the courtroom that day, whether it's in a trial court or
whether it's in the Supreme Court, or appellate court, or a
Federal District Court, because they are not permitted to see
what took place in that courtroom. And I think it is shameful
that the public cannot see that.
So I am absolutely in favor of cameras in the courtroom,
cosponsoring with Mr. Connolly a bill that would allow cameras
in the Supreme Court unless the court decides due process would
be violated. There are other bills. Mr. Nadler has a bill
that's even more progressive, if I could use that word--than--
--
Mr. Nadler. All right with me.
Mr. Poe [continuing]. If it's all right with you, Mr.
Nadler--than just the Supreme Court to let Federal courts be
open. I think that the recent case of the--that was in Seattle,
before a Federal court, would have been a perfect example of
allowing that case to be heard with a camera in the courtroom
and let the public see for themselves, without having to rely
on the news media's 90-second sound bite, as to what took place
in that courtroom.
Mr. Swalwell. Would the gentleman yield?
Mr. Poe. Yes.
Mr. Swalwell. Judge, I appreciate your thoughts and
personal experience on this. Could you share what you did in
the courtroom to protect--if there was a sexual assault victim
or a victim who had been threatened by the defense? Because I
share a lot of your beliefs here, but was wondering what you
did in your personal experience presiding over the court to
protect those victims?
Mr. Poe. If there was a--reclaiming my time.
If there was a sexual assault victim, that victim was not
televised in the courtroom. That was the rule. Sexual assault
victims are never televised. And only the audio sometimes was
allowed, but only by agreement of the prosecutor and the victim
and, of course, the defense attorney. But the video was never
televised in those cases.
And child witnesses--the same was true with a child
witness, never a child witness. Even if it was not a--the
witness was not a victim, the child witness was never televised
as well.
And so we had certain rules. And the media abided by those
rules. We never had a problem with the media violating the
rules. They knew they--there were consequences. They might be
in jail if they violated the rules. We never had a problem with
it.
So it worked out very well. We went through all of the so-
called problems, and I was impressed, really, how smoothly all
of that worked.
Mr. Johnson of Georgia. Mr. Chairman, by unanimous consent
I'd ask that the gentleman be granted an additional minute to
conclude his remarks.
Mr. Issa. Without objection.
Mr. Poe. I thank the Chairman.
Anyway, I will get to a question in a minute--in less than
a minute.
So it's just, I think, in this day and time, and has been
said by many people, that we show the world that the most
important court in the world, the Supreme Court of the United
States, where you can go and sit--but you can't sit but 15
minutes until they kick you out and bring in another bunch of
folks. Because that's their rule over there. You can't watch
the whole trial unless you're on this side of the bar--that
they get to see everything that takes place in the Supreme
Court. I think it would be of tremendous benefit to law
students to see that and to lawyers, God bless them, let them
see what takes place before the Supreme Court and, of course,
the public as well.
Mr. Osterreicher, would you agree with that--that scenario
or not?
Mr. Osterreicher. Oh, I would absolutely agree. I commend
you for your progressive attitude. I'm admitted to the Supreme
Court. And we have filed amicus briefs in a number of cases.
I've appeared for oral arguments in those cases, and I just sit
there and shake my head at the fact that there's only about 300
people in that room that get to see what goes on in that
courtroom. We're seeing people, you know, pay a lot of money
for somebody to hold their place to get a spot in.
But in terms of the snippets, that's the other thing that
was always a contention. Well, you're only going to show a
small part of the trial or a 15-second sound bite. The fact is
that nowadays with live streaming, with the fact that not only
live streaming on the internet, but by broadcast websites, by
print websites, you can have the public be able to see the
whole trial for themselves. Yes, we'll still be relegated to a
small part on the news, but right now the public has no other
opportunity to see what goes on in the courtroom other than
that snippet where cameras are allowed. In this case, with live
streaming, I think that will be available for everybody to
either watch live or watch later.
Mr. Poe. I thank the Chairman for the extra time.
Mr. Issa. You can thank Mr. Johnson.
Thank you. The gentleman yields back.
We now go to the gentleman from New York, Mr. Jeffries.
Mr. Jeffries. I thank the Chairman for yielding and for
convening us here today.
I thank the panel for the information that you've presented
for your expertise, for your presence here today. This
certainly, is an otherwise important topic, although I would
suggest that the timing of this hearing is a bit perplexing.
There is a swamp of corruption that's percolating at 1600
Pennsylvania Avenue. The national security adviser has resigned
in disgrace. Our national security has been placed in jeopardy
as a result of the Trump administration continuing to play
footsie with Vladimir Putin and the Russians. It's impossible
to figure out where the Trump family business ends and the
White House begins.
The President himself is a living, breathing, conflict of
interest. Seventeen different intelligence agencies have
concluded that the Russians interfered with our election in
order to help Donald Trump, and yet, we're here today talking
about the PACER system. It just seems to me that there are more
pressing issues related to the existential threat that this
Administration presents to our democracy that we could be
spending our time on.
Now, we have a President who is in the illegitimacy
business. He peddles illegitimacy with all the viciousness of a
street corner dealer. He spent 5 years perpetrating the racist
lie that Barrack Obama was not born in the United States of
America, trying to undermine the legitimacy of a duly elected
and re-elected President.
He regularly attacks the legitimacy of the news media, the
so-called fourth estate, which is essential to the
constitutional fabric of our democracy. It's why we have a
First Amendment. He has questioned the legitimacy of the
intelligence agencies that now report to him. I wonder why? And
he's also gone after the legitimacy of the judiciary.
And so to the extent we've got the expertise available on
this panel to deal with that issue, Professor Geyh, let me ask
a question. You state that the survival of our courts depends
upon the perceived legitimacy with the people in this country
that they serve. Is that correct?
Mr. Geyh. Yes.
Mr. Jeffries. And is that largely because members of the
judiciary are appointed and they're not elected and, therefore,
they derive any respect and legitimacy that they have from the
factors that you've set forth as it relates to their
competence, integrity, and independence?
Mr. Geyh. In part. I mean, part of it also is that every
branch of government, really, does have the power to bring the
other branches of government to their knees unless they believe
in it. And to the extent we lose faith in the judiciary,
there's no incentive not to abuse the other branches.
And so part of it is that the judiciary is uniquely
vulnerable, because they aren't elected and don't have that
reservoir of legitimacy from the electorate. But the other part
of it is that in the absence of that legitimacy, the President
and the Congress, both, can essentially delegitimize the
judiciary themselves.
Mr. Jeffries. Donald Trump recently attacked a member of
the Article III judiciary as a so-called judge. Is that
correct?
Mr. Geyh. Correct.
Mr. Jeffries. What exactly is a so-called judge in your
view?
Mr. Geyh. The reason I look at that as different than just
robust criticism, it is implied--it implies that this is not a
judge at all. This is someone masquerading as a judge, who is
undeserving of our respect. And when you combine that with the
statement later that if they want our respect, they will simply
do what we want them to do, that tells me that I don't want an
independent branch of government. I want someone who will
simply do my wishes. And that worries me. That to me,
delegitimizes the judiciary as a separate and independent
branch of government.
Mr. Jeffries. It's amazing to me that we have a President
who was helped by the Russians in terms of his election. The
FBI director interfered in an unprecedented fashion. He
benefited from the fake news industry throughout the election.
He didn't win the popular vote. He lost the popular vote. A
majority of the Americans didn't vote for him. They voted
against him.
The Administration is now shrouded in scandal, and he calls
an Article III member of the judiciary a so-called judge. It's
shameless, and this Committee needs to do something about these
independent attacks on the judiciary.
I yield back.
Mr. Issa. If the gentleman would yield?
Mr. Jeffries. Certainly.
Mr. Issa. I'm going to associate myself with one part of
what you just said, and that is that I don't believe we should
ever use terms about judges that question their competence or
integrity in--on this Committee unless we have a reason or
anywhere else.
I will say that perhaps we all should entertain not
delegitimizing the other branches except where we have a
specific claim and in that venue. But I do want to share my--
appreciation that we do need to all raise the standard of how
we deal with the court, how we refer to differences, and how we
believe something should have been decided or how they believe
it.
I want to share that, because I think that--although I
didn't necessarily associate with everything you said, I think
it's important that this Committee, as we look at judicial
responsibility, that we not disparage the court, which as you
say, has generally done an extremely good job of delivering
honest representation through the Federal court system.
I thank you.
Mr. Jeffries. I thank the Chairman for his remarks.
Mr. Issa. Thank you.
We now go to Mr. Biggs, who has been patiently waiting.
And I want to apologize to you. I got a mixed signal, so
you, actually, should have been before Mr. Poe, but I'm sure he
appreciates your indulgence. Thank you.
Mr. Biggs. Thanks, Mr. Chairman. And Mr. Poe can go before
me any time he wants.
And I appreciate the subject for the hearing today, and I
appreciate those who are here on this panel testifying today. I
appreciate you being here.
You know, what I find interesting is that tensions,
actually, between the three separate branches of our government
are nothing new. Indeed they've been present in America since
its inception. In fact, the very famous first case that laid
the foundation for judicial review, Marbury versus Madison,
arose specifically because of that tension between the
executive branch and the judicial branch at that time.
So I think it's interesting to be--hear folks be critical
of the current executive because of comments that he made with
regard to the separate coequal branch of government. But it's
not new, these types of discussions, whether it be Andrew
Jackson or Thomas Jefferson or FDR's idea of packing a court,
increasing the number of justices so you can get a desired
outcome. This kind of tension is not new. It is as old as the
republic is.
Mr. Swalwell. Would the gentleman yield?
Mr. Biggs. I haven't finished my statement yet. I'd like to
finish my statement.
Mr. Swalwell. Would you yield after?
Mr. Biggs. I'm not yielding yet, so hold your question.
Additionally, when we look at the Article III branch of
particularly the Federal judges here that we're talking about,
many refer to them as being lifetime appointments, but in fact,
that is only the de facto arrangement that has emerged and
evolved over time. The actual language of Article III, section
1 says that they will hold their offices during good behavior.
And so, really, what we're talking about today, when I hear
the testimony--and I appreciate it, because we're talking,
really, in my opinion, about transparency and getting--having
practiced law and having tried many cases, there is a certain
mystery that kind of shrouds what goes on in the courts, and
whether it's the broadcasting of court cases, whether it is the
idea of making the PACER system more accessible to the public,
whether we're talking about the ethical determination and
processes within the courts themselves, I think those are
really important issues to be sitting and discussing today.
And that's why I'm grateful that you're here and grateful
for the Chairman for organizing and conducting this Committee
hearing today.
So my question would be--for Professor Geyh is: As we look
at this, what do you see are the real checks for the
legislative branch on the judicial branch?
Mr. Geyh. The checks include the 100-ton gun, as it's so-
called, is impeachment. You do have a check. You control the
judiciary's budget. You control the lower court's jurisdiction.
You are enabled by virtue of the fact that you have the
discretion to establish courts that implies a lot of regulatory
authority over things like a disciplinary process. And so
because you can, theoretically, disestablish courts, you can
regulate them in between. And so--and so there are all kinds of
powers that can be used.
And, you know, getting back to the point you made before, I
think it's an important point to recognize, that there's very
little new under the sun, but that it's also true that we have
a constitutional crises every now and then. That's not
precedent for it being a good thing, it's just a precedent for
it happening.
And one of the great things about our system of democracy,
I think, is that we have--we know when to hold them and when to
fold them. We know when to stay our hand and when to get
aggressive. And I think that having all of these powers used
wisely has kept us going as long as it has.
Mr. Biggs. Thank you. And I--thank you, Professor Geyh. And
I agree with you that there are a series of checks that the
legislative branch has, and I'm not sure that we exercise those
too often. But I think the discussion today with regard to
disciplinary process that needs to be put in place, and maybe
we discuss that with the U.S. Supreme Court itself, I think
that is integral to exercising the article empowers--the checks
against the courts itself.
Mr. Geyh. Fair point. Certainly, the inquiry is a fair one,
yes.
Mr. Biggs. So in line with that, when we start looking at
transparency. And I think I'm just about out of time, but, Mr.
Osterreicher, I was going to ask you, I want to know how we get
access to the broadcast, and if that--in the 10-year study in
New York, how was that made available?
Because it seems to me that as you're broadcasting, you are
creating a separate record that is going to be relevant to any
kind of appellate procedures when you're videotaping and
recording lower court proceedings.
Mr. Osterreicher. Well, I think right now what we're
seeing, at least at the Federal level during the pilots, is
that they were operating the equipment rather than the media.
So that becomes part of their----
In the Ninth Circuit, they have their own YouTube site. I
would assume that they are retaining those records as public
records. During the 1987 to 1997 10-year experiment, it was
prior to live streaming, and, really, the only time you would
get anything was--was that broadcast unless you're actually
recording videotape of it as well for later broadcasts.
Mr. Biggs. Thank you, Mr. Chairman.
Mr. Issa. I thank the gentleman.
We now go to the also very patient, Mr. Swalwell of
California.
Mr. Swalwell. Thank you, Chairman, for this important
hearing. And I will go back to the gentleman, Mr. Biggs, and
ask--and I would yield to him, do you agree with Judge Gorsuch
that it was demoralizing for President Trump to call the judge
in Washington a so-called judge?
Mr. Biggs. Mr. Chairman, I will take the time.
Thank you so much for yielding time to me.
On that specific issue, I don't know what--apparently,
Judge Gorsuch was demoralized. I don't know who else might have
been demoralized. I don't know anybody else who might have been
demoralized when Members of Congress say this President's----
Mr. Swalwell. I'll reclaim my time, and I'll ask again, do
you believe that it's demoralizing to call a judge a so-called
judge? And I'll yield to the gentleman.
Mr. Biggs. Thank you. And hearkening back to my trial court
days, I'll say that I'm not sure that's relevant to anything
what I specifically think on this. But you're asking a really
broad question, and so I will tell you that I think that there
are probably some judges that are more sensitive than others.
Mr. Swalwell. I'll reclaim my time.
Mr. Biggs. Some may be demoralized and some may not be, I
don't know.
Mr. Swalwell. I was a trial court prosecutor and look
forward to working with the gentleman on this issue, but I
guess I'll ask Mr. Geyh, you said, ``We believe in the
tripartite system of government that our Founders frame. We
believe that the checks and balances that systems provide and
the role that a strong separate and independent judiciary plays
in keeping the executive and legislative branch in check.''
So I guess I'd ask each person: Do you believe that calling
a Federal District Court judge a so-called judge is respectful
or disrespectful?
Mr. Osterreicher?
Mr. Osterreicher. I'm not sure that I'm going to be the one
qualified for this. The only analogy I will draw is, this
weekend I judged a moot court contest for law students, I was
the presiding judge. I called myself the so-called judge only
because I wasn't one. So I think using that reference to an
actual judge is--certainly, calls into question why anyone
would do that.
Mr. Swalwell. Sure.
Mr. Bruce, respectful or disrespectful?
Mr. Bruce. I would consider it, again, for what the opinion
of a computer scientist is worth, I would consider it
disrespectful.
Mr. Swalwell. Thank you.
And Mr. Geyh?
Mr. Geyh. My testimony would suggest yeah, I don't think
it's respectful.
Mr. Swalwell. And how about your home State judge, Judge
Curiel, being referred to as not being able to be impartial
because of being a Mexican American?
Mr. Geyh. He's actually an alum of our law school as well.
My concern there--I mean, to be clear, I'm less concerned about
whether you're respectful than I am whether you are attacking
the integrity of the court itself. And when you're implying
that someone is incapable of rendering impartial justice
because of the color of their skin, I think you've got trouble.
That's more than disrespectful.
I think, similarly, calling someone so-called, I mean, it's
a snippet. It's a tweet, but it's what we have to work with.
It's trouble. I'm not going to go so far as to say it's the end
of the world, but it is indicative of a larger problem that
attacks the legitimacy of the court, and that's what worries
me.
Mr. Swalwell. Thank you. I want to go to the purpose--one
of the purposes of the hearing. And after practicing in trial
courts for 7 years, I've given a lot of thought to the O.J.
trial. I was 13-years-old as I watched that unfold, and just
like most of America, could not believe that he was acquitted.
But as time passed by and as I spent time in a courtroom and I
watched the recent documentaries--Mr. Osterreicher, do you
think that--and this is quite an existential question, I guess,
but do you think had there been cameras on the streets for the
police officers of Los Angeles in the years leading up to the
O.J. trial, do you think that would have actually been more
informative, and that would have held them to account rather
than folks blaming the cameras in the courtroom as being the
reason that he was acquitted? Do you understand the question?
Mr. Osterreicher. I'm not quite sure I do.
Mr. Swalwell. If the police officers had body cameras, and
there was more transparency on those officers at that time, do
you think that may have been more helpful and brought them into
account? Because it seems to me that it wasn't the cameras in
the courtroom that poisoned the jury, that it was really that
there weren't cameras in the streets and that police officers
in Los Angeles weren't being held accountable and their
credibility was devastating.
Mr. Osterreicher. I think it may, but the fact was that
most officers that responded to that crime scene were
detectives. And at least as we see it now, only patrol officers
are wearing body cams. So I think even if the program was fully
implemented, I highly doubt that those detectives would have be
wearing body cams. But, certainly, it would have helped to see
who went where and did what with evidence collection.
Mr. Swalwell. Thank you.
Mr. Issa. Would the gentleman yield?
Mr. Swalwell. Yes.
Mr. Issa. I want to engage in a quick colloquy, because--do
you think that, perhaps, politicians have gotten in the habit
of--that extends between each other and then, you know, flows
over into Article III?
You weren't here, but when I came to Congress, it was
popular for many people to say that President Bush was an
appointed not an elected President. Many people didn't come to
his inauguration for that reason.
Obviously, here, today, we had a Member on the dais cite
delegitimizing President Trump because he didn't win a
majority, and because of ``Russia'' getting him the election.
Is it, perhaps, just a spillover, and is it something that all
of us, executive branch and here in the House and Senate, need
to get out of the habit of delegitimizing ourselves, and thus,
spilling over into Article III? I just wonder if you thought
about that.
Mr. Swalwell. Reclaiming my time. And I appreciate the
question.
I guess the prosecutor in me says, just stick to the
evidence. If you follow the evidence, you'll find the truth.
I yield back.
Mr. Issa. The gentleman ends with a good yield back.
We now go to the gentlelady from California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
I, actually, agree that it seems a little out of body to be
discussing the PACER system when the national security adviser
resigned and people are questioning what did the President know
and when did he know it. But that's what we're doing here, and
so that's what I would like to pursue, which is the PACER
system.
Professor Bruce, 10 years ago there was a pretty
comprehensive privacy audit that academics performed on the
PACER system, and they found that there were Social Security
numbers included in the records. The audits were sent to the 31
district courts, administrative office of the courts, judicial
conference, and the like. However, it's my understanding that
despite those findings, you still have Social Security numbers
scattered throughout the PACER system.
The technology of the systems is a little bit bulky, and
I'm wondering if you have observations on what steps could be
taken to redact sensitive information in the system or whether
we might be well-advised to take up some of the private sector
offers to take the data and maybe use better technology and as
a condition of doing that, providing it for free to the public
to redact sensitive information?
Mr. Bruce. Let me make four points, actually, around the
whole privacy issue. This is one of the places that has
suffered the most from the inability to do comprehensive
research across the entire system. If there were bulk access to
the data, you would certainly have a lot better eyes on what
was going on there.
Secondly, just as with the problems of privacy that
surround cameras in the courts, this is a problem that's
unevenly distributed across the courts, so it's sort of--sort
of hard to know where to look.
We know from experience that a lot of this stuff can be
very easily dealt with in software. It's been done in other
jurisdictions. Mostly on something like Social Security
numbers, that's going to be an easy problem to solve, because
they are very easy to identify. There are harder problems and
some that are completely insoluable. As for example, when you
have a victim of domestic violence named as a 39-year-old
school teacher from Gordon, Nebraska where there is maybe one
39-year-old school teacher. That, you're never going to get rid
of.
In smaller jurisdictions in Canada and Australia, this has
been done successfully with automation or more accurately
automated support for some editorial redaction for a
considerable period of time, at least 10 years or 15 in the
case of Canada, shorter time in Australia. Should we take
outside offers to do that? Yes, if they've got the technology,
absolutely.
Ms. Lofgren. Let me ask you something that's always
bothered me. You can get some documents for free, but you have
to create an account, and the account actually asks for your
full name, your address, your phone number, your email address,
your date of birth. It seems to me rather intrusive to have to
provide all that information to get access to data that,
really, the public should have.
Mr. Bruce. That seems intrusive to me, too.
Ms. Lofgren. I think--you know, what I'm interested in, Mr.
Chairman, from this hearing is what steps we might take to
recommend changes in this system.
First, I don't think we're ever going to get the technology
upgrades we want in the current system. I think we ought to
aggressively and systematically pursue private sector options
that would allow free access to this data that is not--that
provides adequate privacy protections for individuals whose
presence is revealed in the documents and that provides it on a
basis that is not intrusive for the public that should have
every right to see this information.
Mr. Bruce. If I may, this circles back a bit to the
question that Mr. Nadler asked me earlier. If you look at the
2015 report from the AO on development of the NextGen system,
it was actually a journal article that was published by the two
senior designers, it's very clear from that that very, very
little consideration was given to, really, any outside source
of information beyond the judges who were--who were serving on
the, you know, sort of, the media customer committee.
And that, in fact, the AO completely dismissed the
recommendations of Mider Corporation, which is a very well-
respected consulting group for this kind of judicial
administration.
So I don't think I--I agree with you. I don't think we
could expect a good deal of receptivity from the AO.
Ms. Lofgren. Well, I would just say, I respected the judges
for their insight into the law more than I respect the judges
for their technology expertise.
And I would yield back.
Mr. Nadler. Mr. Chairman----
Mr. Issa. Yes. For what purposes does the gentleman seek to
be recognized?
Mr. Nadler. Mr. Chairman, I ask unanimous consent that the
gentlelady from Texas, who is a Member of the full Committee
but not of the Subcommittee, be permitted to ask questions?
Mr. Issa. Without objection, so ordered.
The gentlelady from Texas is recognized.
Ms. Jackson Lee. Let me thank the Ranking Member and the
Chairman for their extended courtesies for a very important
hearing.
And thank you, gentlemen, for your testimony but also for
your advocacy.
I am going to follow a certain line of questioning, but let
me give a question for a premise upon which it is based. I
happen to be a member of the Bar. Sometimes we humorously ask
which one, but I'm a member of the Bar and came through law
school at the time that this was of great high honor.
And the whole idea of the sanctity of the Constitution and
the strength of the Constitution was very much enshrined, if
you will, in our law school, but more importantly, it was a
document that we held with the highest of esteem and thought as
we graduated we were going to be advocates, the single sponsors
of the value of the Constitution to the American public or to
our immediate constituencies, and at that time, we were not
elected persons but just those who had graduated from law
school.
With that in mind, Professor Geyh, I would like to go on a
line of questioning that the other gentlemen made comment on,
but I know that the issues that they are advocating I am very
much familiar with, and I believe in their advocacy.
The good news about what has happened over the last couple
of weeks has been the increased, by the American public, of
understanding civics, understanding their government,
understanding what role their government plays. And I've
enjoyed speaking about the three branches of government; the
judiciary, the legislature, and the executive which by the
Constitution three equal branches of government. I love saying
that.
We saw one episode with President Nixon in the Saturday
night massacre and Elliot Richardson deciding to go a different
way, then Attorney General of the United States. So because the
American public's eyes are on all of us, I think it's important
and as much as we can to be on our best behavior, but also to
share with them some of the responsibilities that we have as a
legislature, judiciary, and, of course, the executive.
So I'd be interested--I'm starting, first, with Mr.
Miller's comments that were made over the weekend, Steve
Miller, who indicated the executive power is all one singular
and without any possibility of oversight or questioning. I
think many of us took a step back, step to the side, and were
either aghast or were trying to struggle with the Constitution
or court precedent to find out what the basis of that was.
I'd appreciate your comment on that. And also appreciate
the fact that the judiciary, likewise, does not have the
authority to reach beyond its boundaries, to rule in a way that
would skew the rights of the American people. They have--they
interpret the law. And so I would love for you to, with this
whole concept of transparency but also the judicial ethics as
well, give the boundaries of the judiciary. And I'm, obviously,
speaking about the Federal judiciary.
And then I'd appreciate as well that if American people--
the American people, probably have not paid attention to the
judiciary except for--let me not suggest that they're not
engaged, but I was a judge in the municipal court, so except
for their coming before municipal judges dealing with their
citations or they may be in court for their own personal
matters, now we've open the door for them to appreciate the
value of this Nation.
What happens to their attitude about the courts and judges
if--and I'm sure some of my colleagues raised this, if so-
called judges, if he's a Mexican judge, so he has to be
biassed? We are held together in this country by our adherence
to the principles of our underpinning documents.
I yield to you, Mr. Geyh.
Mr. Geyh. This is a teaching moment. I think it--it is--the
events, to me, had been troubling, but they offer an
opportunity to talk to be people the way you describe. I think
it's important to understand that--you know, earlier--earlier,
I think it was Mr. Biggs who spoke, one spoke in terms of
Marbury versus Madison being the first point at which judicial
review was brought into the conversation.
But, in fact, it predated the formation of the
Constitution. The judiciary has long been understood to have
these powers to hold the other branches in check through the
use of judicial review, through, you know, independent
assessment of the law.
And when a member of the Administration stands up and says
what the President says goes and implies that its power is
absolute, I think it raises a flare for me, because it suggests
that, first of all, that he doesn't understand the way the
system works and that he is counting on people he is talking to
not understanding the way the system works, and not
understanding the judicial review is not just a bunch of people
having second opinions.
They have a different role to play that--you know,
throughout this conversation about whether the judges
overreached in this scenario, I never once heard any discussion
of the actual constitutional issues that were in play. This was
all about judges overplaying their hand simply because they
disagreed with the President. And I think this is a moment for
all us to stop and say this is how the system works in very
simple ways.
And honorable and men and women of integrity have a right
to--not a right--have a duty to look at the law and decide how
it goes. And you, in this room, have a right to criticize those
decisions and say it is wrong during part of this public
dialogue. But that stops short of saying: Because I disagree
with you, you are illegitimate. Because I disagree with, you
are someone who should be ignored or marginalized. And that is
what worries me, that line between vigorous disagreement and
delegitimization.
Ms. Jackson Lee. Anyone else want to comment? Any anyone
else?
All right. Let me thank--let me thank you very much. And
might I, Mr. Chairman, just finish on this note. This is the
body of people that will be dealing with these issues for a
period of time, and I think this hearing, and to the Ranking
Member, is a potent hearing, and I hope that as we go forward,
we will understand that protecting these three branches of
government is a bipartisan effort and we should strongly do so,
as well as utilize our investigatory powers in ensuring the
integrity of all aspects of government. And I hope we will be
doing that for the American people.
I yield back. Thank you.
Mr. Issa. I thank the gentlelady. I thank you for coming
over and participating today. It was a welcome addition. I am
going to try to close. Hopefully, I won't open any new wounds
as I do it.
But, Professor Geyh, at the end, I detected something that
I would like to not rebut but to add on to. You know, you
talked about the executive branch feeling like, in national
security, they had such broad powers as to not be questioned,
and that is a debate that is not new. I have never seen a
President who believed the War Powers Act actually affected
them. The moment they get sworn in, it seems like that--you
know, even if they were a former Member of this body, they move
beyond that, so that is not uncommon.
But the court, the Ninth Circuit, does seem to have taken
what it has been used to, and I live in the Ninth Circuit. It
has been used to questioning the process of--in civil rights
cases, of what intent is. So if--if somebody--if somebody's
motives are not pure, then the law, even if perfectly written,
is invalid in the Ninth Circuit. That is--they haven't been
sustained very often when going to the Supreme Court, but they
have had that view.
And in this case, it appears to me, as a bit of a layperson
far removed, that they are doing the same thing in that they
are determining that the President's statements and/or motives,
in fact, are justification to overturn his ban not on the
letter of it, not on the statute but, in fact, on his motives.
Would you agree that they have--they have taken that
liberty, whether it is theirs or not, but they certainly
indicated it.
Mr. Geyh. I have no opinion on that, but----
Mr. Issa. You don't have an opinion on what the Ninth
Circuit did?
Mr. Geyh. I don't--I have not studied the opinion in detail
sufficient to draw that conclusion.
Mr. Issa. You heard their words.
Mr. Geyh. But I don't disagree with you. I just have--I
don't disagree with you. I am not challenging it. I am simply
saying that I don't----
Mr. Issa. Did either of you listen to the court review?
Because I mean, I certainly heard it pretty loud and clear that
they believe that they can judge the intent of the President in
crafting something as invalidating it, regardless of the words.
And I know that is not your subject expertise.
Mr. Osterreicher. If I may. I mean, at least in my
listening to it, I think the court was trying to get evidence.
I think they were listening to the government's side saying,
no, this wasn't our intent, and then they looked toward the
President's statements as being evidence of some intent.
Whether or not that comes into play, as you said, in terms of
the law versus the facts, obviously, we will see.
Mr. Issa. And I do look forward to this, the case going to
the court on--to the Supreme Court on that. Yes.
Mr. Nadler. Mr. Chairman, strike the last word. I would
simply point out, first of all, the court, the--neither Judge
Robart nor the Ninth Circuit decided the case. They were ruling
on it on a temporary restraining order in which you don't go
through all the evidence and make determinations, but you do
say, well, who has a likelihood of prevailing on the merits,
and as a matter of equity, who, in balancing the equities, who
would be harmed if we let it stand or not stand. On that basis,
the Ninth Circuit, I think, had ample reason to rule as it did
because there had been no evidence showing harm if they
overthrew it and plenty of evidence, obviously, the plaintiffs
would be harmed if they didn't. I shouldn't say overthrown.
Stay it.
And in terms of the constitutionality that you were
referring to, they didn't make a finding. They couldn't until
after the hearing, but they said there is a--not a
possibility--likelihood of success on the merits, and they did
look to intent there, which at this stage of the game they
should.
Mr. Issa. Well, and I am not in a position to agree or
disagree. I was asking the question because the Ninth Circuit
does look to intent. They have even overturned--they have
overturned laws that were written in which a witness who came
before the body that wrote the law, city council, the witness
said something which they said went to intent. In other words,
a tainted witness thus taints the decision of it. And it is--in
looking at city council's laws, that may seem fairly benign,
but in looking to a President who is entitled to, essentially,
a right to privacy of his thoughts in deliberation and
executive power, it will be interesting to see it before the
Ninth Circuit.
I would like to quickly close--and I appreciate your input
on that--and try to summarize what I think I have heard here
today.
And, Mr. Osterreicher--I apologize. I have not gotten your
name right once, but I have noticed it has been said several
different ways.
Mr. Osterreicher. Just don't call me late for dinner.
Mr. Issa. I think--I think the one thing, without calling
you late for dinner, is that you have got agreement that there
has been no showing that convinced anyone here at the dais that
there is a reason not to video capture appellate activities
broadly, which would potentially include the Supreme Court, but
clearly would include all of the circuits. So I think you
walked away today making your case for that. Obviously, I think
it is fair to say there was less agreement as we got down to
witnesses and victims and so on.
Professor Bruce, I think you made a compelling case. The
only thing that I didn't hear was an oddity that is unique to
this Member, and that is, that we have required the
Administration, under the DATA Act, to put all information in
machine-readable format. And one of the interesting things
about PACER is, even if they handed you all the information, in
order to make it usable to a broad public, it would have to be
converted into machine readable with metadata attached. Isn't
that true?
Mr. Bruce. That is true. And frankly, I chose not to
approach that issue today because I thought it was a bridge too
far, but it is absolutely the case that it would need to be put
into XML to be maximally used.
Mr. Issa. Well, and I waited till the end to cover this
because it is my intent to offer legislation that expands the
DATA Act, which Senator Warner and I were the original authors
of, to include Article III with the recognition that they have
broad authority that does not happen to be one that is
exclusive to them.
And so I will be offering that again with Senator Warner as
a Senate companion for just that reason, that the bridge too
far is, no matter what they do, the information they have is
not currently as valuable as it should be.
Mr. Bruce. That's correct. Thank you.
Mr. Issa. And I think when it came to the questions of
integrity of the court, although it was--there was a
considerable discussion about the so-called judge comment, I
think you made a compelling case here that it is a fragile
court that even a 140-character statement by one individual,
who happens to be the President of the United States, can have
an effect on a court as can a question of whether this 80-year-
old judge is competent, as is this judge biased, as is does the
court system hold its own accountable, as is the question of
whether or not there is a recognition of the financial holdings
in some format of the--of members of the court as there are in
the other two branches.
And so I think you made a good case that we will follow up
on that we need to work with the court and/or work with our
constitutional powers to add those so that no one can second-
guess the court in those areas, which I think is a particularly
important area, and I think you made a good case on it.
I would recognize Mr. Nadler if he had any other closing
comments.
Mr. Nadler. No.
Mr. Issa. Hearing none, I want to thank all of you. We will
keep the record open for 5 days. If you have additional
comments or thoughts afterwards, we would accept them into the
record.
And with that, we stand adjourned.
[Whereupon, at 12:18 p.m., the Subcommittee was adjourned.]
[all]