[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE FEDERAL JUDICIARY IN THE 21ST CENTURY:
ENSURING THE PUBLIC'S RIGHT OF ACCESS
TO THE COURTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 26, 2019
__________
Serial No. 116-55
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
42-327 PDF WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota
LUCY McBATH, Georgia W. GREGORY STEUBE, Florida
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
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SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
LOU CORREA, California, Vice-Chair
THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama,
CEDRIC RICHMOND, Louisiana Ranking Member
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
TED LIEU, California JIM JORDAN, Ohio
GREG STANTON, Arizona JOHN RATCLIFFE, Texas
ZOE LOFGREN, California MATT GAETZ, Florida
STEVE COHEN, Tennessee MIKE JOHNSON, Louisiana
KAREN BASS, California ANDY BIGGS, Arizona
ERIC SWALWELL, California GUY RESCHENTHALER, Pennsylvania
BEN CLINE, Virginia
Jamie Simpson, Chief Counsel
Thomas Stoll, Minority Chief Counsel
C O N T E N T S
----------
SEPTEMBER 26, 2019
OPENING STATEMENTS
PAGE
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
the Congress from the State of Georgia, and Chairman of the
Subcommittee on Courts, Intellectual Property, and the Internet 1
The Honorable Martha Roby, a Representative in the Congress from
the State of Alabama, and Ranking Member of the Subcommittee on
Courts, Intellectual Property, and the Internet................ 3
The Honorable Jerrold Nadler, a Representative in the Congress
from the State of New York, and Chairman of the Committee on
the Judiciary.................................................. 4
The Honorable Doug Collins, a Representative in the Congress from
the State of Georgia, and Ranking Member of the Committee on
the Judiciary.................................................. 5
WITNESSES
PANEL I
The Honorable Audrey G. Fleissig, U.S. District Judge, Eastern
District of Missouri
Oral Testimony............................................... 8
Prepared Statement........................................... 10
The Honorable Richard W. Story, U.S. District Judge, Northern
District of Georgia
Oral Testimony............................................... 32
Prepared Statement........................................... 34
PANEL II
Ms. Lisa Girion, Reporter, Thomson Reuters Corporation and Mr.
Daniel R. Levine, Legal Correspondent, Thomson Reuters
Corporation
Oral Testimony............................................... 58
Prepared Statement......................................60
Mr. Daniel R. Levine, Legal Correspondent, Thomson Reuters
Corporation
Oral Testimony............................................... 00
Prepared Statement..........................................00 deg.
Ms. Jodi M. Schebel, Co-Managing Partner, Bowman and Brooke, LLP
Oral Testimony............................................... 92
Prepared Statement........................................... 94
Mr. Seamus Hughes, Deputy Director of the Program on Extremism,
George Washington University
Oral Testimony............................................... 103
Prepared Statement........................................... 105
Ms. Sunny Hostin, Co-Host, The View, ABC Television Studios
Oral Testimony............................................... 112
Prepared Statement........................................... 114
Mr. Jeffrey Toobin, Staff Writer, The New Yorker
Oral Testimony............................................... 121
Prepared Statement........................................... 123
APPENDIX
A statement for the record from the Honorable Steve Leben, Judge,
Kansas Court of Appeals........................................ 137
A letter for the record from the Honorable Bridget Mary
McCormack, Chief Justice, Michigan Supreme Court............... 144
A letter for the record from the Honorable Maureen O'Conner,
Chief Justice, Supreme Court of Ohio........................... 146
A letter for the record from the Honorable Elizabeth D. Walker,
Chief Justice Supreme Court of Appeals, West Virginia.......... 152
A statement for the record from the National Press Photographers
Association.................................................... 153
A letter for the record from Americans for Prosperity............ 172
A statement for the record from the American Association of Law
Libraries...................................................... 174
A letter for the record from organizations in support of
Electronic Court Records Reform Act of 2019.................... 177
A letter for the record from Elizabeth Chamblee Burch, University
of Georgia School of Law; Martina S. Horner, University of
Connecticut School of Law; and Adam Zimmerman, Loyola Law
School......................................................... 178
A letter for the record from the Reporter Committee for Freedom
of the Press................................................... 181
A letter for the record from the Electronic Privacy Information
Center......................................................... 184
THE FEDERAL JUDICIARY IN THE
21ST CENTURY: ENSURING THE
PUBLIC'S RIGHT OF ACCESS TO THE COURTS
----------
THURSDAY, SEPTEMBER 26, 2019
House of Representatives
Subcommittee on Courts, Intellectual Property, and the Internet
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 2:05 p.m., in
Room 2141, Rayburn Office Building, Hon. Henry C. ``Hank''
Johnson, Jr. [chairman of the subcommittee] presiding.
Present: Representatives Johnson of Georgia, Nadler,
Stanton, Roby, Collins, Chabot, Jordan, Biggs, Reschenthaler,
and Cline.
Staff present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Moh Sharma, Member Services and Outreach
Advisor; Madeline Strasser, Chief Clerk; Jamie Simpson, Chief
Counsel, Courts & IP Subcommittee; Danielle Johnson, Counsel,
Courts & IP Subcommittee; Matthew Robinson, Counsel, Courts &
IP Subcommittee; Rosalind Jackson, Professional Staff Member,
Courts & IP Subcommittee; Thomas Stoll, Minority Chief Counsel;
Dan Ashworth, Minority Counsel; and Andrea Woodard, Minority
Professional Staff Member.
Mr. Johnson of Georgia [presiding]. Welcome to the
Subcommittee's second hearing in our ongoing examination of the
state of the Federal Judiciary in the 21st century. Our first
hearing focused on judicial ethics and accountability. Today's
hearing shifts our oversight to an equally vital topic, the
public's right of access to the business of the courts, a right
centuries older than our republic and fundamental to our
conception of justice in a democratic society.
To paraphrase an old judicial aphorism, it is not enough
that justice is done. The public must all see justice being
done. That is why images like the one that is on the screen,
the long lines trying to get into the United States Supreme
Court, are so troubling. This is the only way Americans can
watch the Court's oral arguments. Lines start forming days
before high-profile arguments. Often they are filled with
people who have paid $50 an hour to save someone a spot. Most
of the people who make it inside are quickly rotated through a
small courtroom, only able to hear a few minutes of the
hearing.
These scenes are deeply disturbing to the ideal of an open
and transparent judiciary. You can't make it out in this photo,
but the words, ``Equal Justice Under The Law,'' are inscribed
above the doors of the Court. When the public see those words,
they should see a message of welcome. I worry that instead they
see a ``keep out'' sign. I understand that judges here today
represent the Judicial Conference and cannot speak for the
Supreme Court, but I do want to make sure we are all aware that
it is images like this one that frame the debate.
This photo is also a reminder that today the question of
whether our Federal courts are truly open is not answered by
looking at whether the physical doors of our courtrooms stand
ajar. Instead, the public's right of access must keep pace with
the fact that we are entering the 3rd decade of the 21st
century. That means that it is not enough to simply have case
law recognizing the public's right of access to court records.
There is a need to make sure that judges are scrutinizing even
an uncontested motion to file court records under seal,
especially when those records contain information that could be
crucial to public health and safety. It means that the public
shouldn't have to pay to see court filings.
The same goes for the public's right of access to court
hearings. We need only look to State judiciaries to see what
open justice means today. Nearly every State court system
allows cameras in their hearing rooms, and many of them have
livestreamed their proceedings for years. As the chief Justice
of the Ohio Supreme Court writes, ``Livestreaming increases
trust in judges, in our decisions, and in the rule of law.''
Their experiences undermine some common counter-arguments about
having cameras in courtrooms with the chief justice of the
Michigan Supreme Court writing, ``Some say TV cameras distract
participants. In the courtroom, cameras are simply a fixture of
proceedings, no more distracting than a podium or a chair, but
just as necessary.''
Before I yield to the Ranking Member, I need to recognize
that our committee has a long bipartisan history of working to
improve public access to our courts. Both Chairman Nadler and
my colleague, Mr. Chabot, are long-time advocates of putting
cameras in Federal courtrooms, as are Ms. Lofgren and Mr.
Deutch. And, of course, one of the reasons we are having this
hearing is because Ranking Member Collins' efforts to modernize
access to court records and make it free has been important
work. I am glad to be a co-sponsor of his and Mr. Quigley's
bill.
Chief Justice Burger once traced the unbroken,
uncontradicted history of public access to the courts that he
noted was supported by reasons as valid today as centuries
past. Today's hearing is about making sure that history remains
unbroken by collaboratively and constructively resolving any
contradictions in our shared responsibility to open justice in
both principle and practice.
To our witnesses, I look forward to hearing your testimony
on these important topics. I also hope you will be willing to
work with us after this hearing. There is a lot that we can
accomplish if we work together. Thank you, and I look forward
to your testimony. And it is now my pleasure to recognize the
Ranking Member of the Subcommittee, the gentlewoman from
Alabama, Mrs. Roby, for her opening statement.
Mrs. Roby. Thank you, Chairman Johnson, and thank you to
the witnesses from both panels for being here today to share
their experiences with the Federal court system. Our two panels
testifying today will cover many different topics, including
the Public Access to Court Electronic Records system, also
known as PACER, consolidating the Case Management/Electronic
Filing system, audio and visual recordings in district and
appellate courts, and changes to the standards for sealing
court filings.
While some of these ideas are worth exploring further, I
have significant concerns that some of the proposals will have
a negative impact on judicial proceedings and the parties
involved, especially cameras in courtrooms. I am particularly
interested in hearing from our two distinguished district court
judges here representing the Judicial Conference about their
views on these ideas. So I really want to thank you both for
being here and taking time out of your schedules to be with us.
The PACER system is currently widely viewed as outdated and
difficult to use. If you ask almost any attorney or law student
if they have used PACER, they will respond negatively and let
you know how bad the system is. And while we should certainly
be looking at ways to improve the system and modernize it, we
must not do it in a way that deprives our court system of very
much-needed funding. I look forward to hearing from our
witnesses on different proposals for how we can improve PACER
to work for everyone.
The Case Management/Electronic Filing system has been
widely viewed as a success and has made it easier to
electronically file and manage cases. However, every district
and appellate court system operates their own system and much
of this information can be fragmented. Hopefully we can hear
today how this successful system can be improved upon and
consolidated.
I have strong concerns, and I am opposed, to placing
cameras within courtrooms. Our Federal courts here have
important cases that can deal with highly-sensitive issues,
national security concerns, and very heinous crimes. Having
live broadcasts at these proceedings can place witnesses in
jeopardy, subject jurors to intimidation, cause disruptions,
and cast doubt over the outcomes of a case, amongst many other
potential problems. Live broadcasts are simply something I am
unable to support. I would like to hear from our witnesses
about the feasibility of doing same-day audio or whether enough
safeguards could be established to address the concerns that I
have already outlined.
Finally, we will also hear from our witnesses about the
standards for sealing documents and filings. This is a complex
issue that highlights the differences in standards amongst the
circuits and balancing the needs of the public and the rights
of the parties involved. It is important that the public has
access to as much information as possible, but I am very
hesitant to restrict or second guess a judge's discretion to
review motions to seal documents or settlements. I look forward
to learning more about this topic and the difference in
standards across our country. I am a strong believer in our
Federal court system and ensuring the public's access to
justice. So while we must always make sure our courts are
working effectively and efficiently, I have some concerns with
these issues before us today.
So I, again, want to thank our witnesses for being with us
and hearing more about these proposals. And with that, Mr.
Chairman, I yield back.
Mr. Johnson of Georgia. Thank you. I am now pleased to
recognize the Chairman of the Full Committee, the gentleman
from New York, Mr. Nadler, for his opening statement.
Chairman Nadler. Thank you, Mr. Chairman, and thank you for
holding this important hearing on the public's access to the
courts. No one in this room takes for granted the complexity
and importance of the Federal judiciary's job of administering
justice and doing so fairly. That role is fundamental, but it
is undermined when the public cannot see the judiciary's work
being done. Every day Federal appellate judges across the
country review complex cases of public interest, and each term
the Supreme Court examines important constitutional and Federal
issues that have a long-lasting impact on society.
Despite these courts' influence, only a few Federal courts
have been in step with modern standards of access and have
allowed visual media coverage or provided real-time audio
streaming. And at the Supreme Court, the public must wait until
the end of the week to hear recordings of oral arguments, with
some exceptions. This means that most of the public rarely has
the ability to see the courts' public deliberations as they
happen in real time. Many people do not live near or even in
the same State as their circuit court of appeals. They find it
difficult to travel to Washington and stand outside for hours
or even days or to pay someone to stand in line for them to
witness history at the Supreme Court.
The public's right of access is fundamental, and it is not
adequately protected when our courts fall far behind modern
standards of media access. The realization of this right should
not be left to the lucky or the wealthy or the well-connected
few. In most Federal courtrooms, real-time access to court
proceedings is no more available today than it was in the 19th
century. The ability to stream from almost anyplace and on
almost any device has also become so pervasive and inexpensive
that this is the immediacy that the public has come to
reasonably expect from their government.
The Federal judiciary's progress has been slow paced in
this area, and our Federal courts have fallen behind their
peers in the States and even courts abroad. Most State court
systems allow livestream video of their proceedings. So do the
supreme courts of the United Kingdom, Canada, and Australia. It
is surprising and disappointing that our courts have been so
willing to keep their doors closed and have so grudgingly
allowed them to be open even a crack to the public. Live video
ought to be the rule, tempered by judicial discretion, due
process, and privacy concerns.
Many of my colleagues and I have long been advocates for
increasing access to the courts through media coverage and
real-time streaming of proceedings. On this front, last
Congress, I introduced the Eyes on the Court Act, which would
establish a presumption of audiovisual access to the Supreme
Court and circuit court proceedings, but leave judges with the
discretion to turn the cameras off when the interest of justice
requires it. I anticipate reintroducing this legislation, and I
look forward to hearing the views of our witnesses on the bill
and on the issue of cameras in the courtroom more generally.
Of course, accessibility and openness entail more than
cameras and audio. It is critical that the public has a
meaningful and modernized way to access court records, and I
appreciate the leadership of Ranking Member Collins on efforts
to reform the PACER system. I also look forward to discussing
the disturbing trend of routine sealed court filings that
conceal vital health and safety information from the public. I
have been concerned for many years about secret settlements and
protective orders that companies obtain to prevent the public
from learning important information regarding the health and
safety effects of their products. That is why I plan to
reintroduce the Sunshine in Litigation Act, which would require
that information relating to public health and safety and
protective orders or settlement agreements be made public,
unless a court makes a finding that there is a specific and
substantial interest in keeping such information secret that
outweighs the public interest. As two of our witnesses have
documented, the problem of shielding critical health and safety
information from the public extends also to sealed court
filings, and I appreciate their work in bringing this issue to
light.
Transparency is vital to the integrity of the judiciary,
and it is vital to maintaining the public's trust in our
courts, particularly as attacks on judicial independence and
the rule of law have become more common. I am pleased that we
are examining these issues today, and I am optimistic that
today's hearing will lead to a productive dialogue about how
the judiciary can best reach the public in a way that reflects
modern standards and makes sense in this 21st century
environment.
I know that Chairman Johnson sees today's hearing as part
of an ongoing conversation and collaboration with our Federal
courts, and so do I. I look forward to hearing from all our
witnesses on these important topics, and I yield back the
balance of my time.
Mr. Johnson of Georgia. Thank you. It is now my pleasure to
recognize the distinguished Ranking Member of the Full
Committee, the gentleman from Georgia, Mr. Collins, for his
opening statement.
Mr. Collins. Thank you, my friend from Georgia. And, Mr.
Chairman, I appreciate that. Before I start, I want to take
just a moment, especially this first panel, our two judges,
Judge Fleissig, and also my dear friend and mentor in many
ways, Judge Story. Your contributions to the bench are amazing,
and I appreciate both getting to know you, but watching literal
history, Judge Story, in your life as you have lived that out
in our circuit, in our district. Our district in Georgia is
definitely the better for your service, and I appreciate that
and your insight here as well as we go forward.
And I think many times we overlook the work of our judges,
and, you know. And this is a committee in which we deal with it
all the time, but it is also something which we also can
celebrate. We may disagree on the outcome, but the judges are
there to actually make sure that the folks in the world can
look at us and see this is the most fair and equitable process
that we can go through, and I want to thank both of you for
being here. Our second panel is outstanding as well. I have
watched many of their commentaries on TV, and looking forward
to their comments here as we go forward to do this.
And I want to thank the chairman and ranking member and, of
course, the full chairman for being here and looking at this
here. This is definitely, as you can tell by looking around,
this is only for the true believers. This hearing is the
Judiciary Committee at its purest, actually dealing with the
judiciary and looking at what we deal with, and that is a good
thing. And this subcommittee is valuable to that, and it is a
way to promote public interest in judicial proceedings and
protect parties' rights.
You know, the Federal Judiciary has always served its vital
role by ensuring Americans have access to the fair and
impartial system of justice. And for centuries, our Federal
judicial system has been the pillar of our democracy because it
has held itself to the highest of legal standards. But in the
area of employing technology, well, maybe we need to catch up a
little bit.
For example, let's look at the Federal court's outdated
electronic records system, PACER. States like my home State of
Georgia have electronic records systems that enable easy
searches and free access to records, yet the Federal court
records are very difficult to search through, and the system
charges users to view each page. While State courts and law
firms are in sports cars, the Federal courts are riding
bicycles, and we need to make a change. The need to improve
access to electronic Federal court records has long been a
concern of mine. That is why I reintroduced the Electronic
Court Records Reform Act to bring the Federal courts'
electronic records system into the 21st century, and I look
forward to considering and passing this legislation soon.
Transparency is important, but we must be careful not to
create more problems than we solve. And I have significant
concerns with proposals to put cameras into Federal courts
because I have seen their impact here in Congress. Federal
courts hear and adjudicate politically-charged and impactful
cases every day. The addition of cameras to such contentious
proceedings is likely to result in less trust and greater
politicization of our courts. All we need to do is look at
their effect on this Congress to see what a distractions and
obstacles at times it can be.
Finally, I also have significant concerns with the effort
to limit the discussion afforded district court judges to seal
filings in instances where the disclosure of information would
unnecessarily harm a party. Under current law, Federal judges
have discretion to review requests to seal records and balance
the public's First Amendment right to access against the
party's right to protect their confidential information. It
sort of amazing to me here sort of the double standard we use
here. Many times my friends across the aisle want discretion
for judges in sentencing, but they don't want to have
discretion in judges for sealing cases when they are the
closest to the cases to start with. I think we just need to
find a common ground here, and we can do that. And with these
two fine judges, I am sure they will have discussions on that.
Litigants in courts use tools, such as sealings, filings,
and protective orders, to protect intellectual property, the
personal information of individuals, and, as such, their
financial and medical records. Sealed filings and protective
orders also expedite litigation by enabling parties to share
sensitive documents relevant to the case without the risk of
inadvertent disclosure or misappropriation. As we strive for
transparency in our Federal court system, I must insist that we
respect litigants' rights and confidential information.
In closing, I am thankful we are holding this hearing, and
I am cautiously optimistic it will result in proposals that
ensure transparencies and accountabilities without unintended
consequences. We all have our ideas, and that is the place for
this committee. And handling those ideas and finding good
results is something I think we can all come together with. And
with that, Mr. Chairman, I yield back.
Mr. Johnson of Georgia. Thank you, Mr. Collins. I will now
introduce the witnesses for the first panel. The Honorable
Audrey Fleissig is a U.S. District Judge for the Eastern
District of Missouri, and is the Chair of the Judicial
Conference's Committee on Court Administration and Case
Management. Before becoming a District Judge, Judge Fleissig
was a magistrate judge on her court, a position she held from
2001 to 2010, and previously served as an Assistant U.S.
Attorney and then U.S. Attorney in St. Louis. Judge Fleissig
earned her bachelor's degree from Carlton College and her J.D.
from the Washington University School of Law. And welcome,
Judge.
The Honorable Richard Story is a Senior U.S. district judge
for the Northern District of Georgia, and is a Member of the
Judicial Conference's Committee on the Judicial Branch. Judge
Story joined the Federal bench in 1998 after serving more than
a decade as Chief Judge of the Superior Court of Georgia's
Northeastern Judicial Circuit. Judge Story has also served as a
judge for the Hall County Juvenile Court, as a special
assistant attorney general for the State of Georgia, and in
private practice in Gainesville, Georgia. Judge Story holds
degrees from LaGrange College and the University of Georgia
School of Law. Welcome, sir.
Before proceeding with testimony, I remind the witnesses
that all of your written and oral statements made to this
subcommittee in connection with this hearing are subject to
penalties of perjury, pursuant to 18 U.S.C. Section 1001, which
may result in the imposition of a fine or imprisonment of up to
5 years, or both.
Please note that your written statements will be entered
into the record in its entirety, and, accordingly, I am asking
that you summarize your testimony in 5 minutes. To help you
stay within that time, there is a timing light on your table.
When the light switches from green to yellow, you have 1 minute
to conclude your testimony. When the light turns red, it
signals your 5 minutes have expired. I am sure that both of you
would love to have such an arrangement in your courtroom.
Judge Fleissig, you may begin.
STATEMENT OF HON. AUDREY G. FLEISSIG, U.S. DISTRICT JUDGE,
EASTERN DISTRICT OF MISSOURI; AND HON. RICHARD W. STORY, U.S.
DISTRICT JUDGE, NORTHERN DISTRICT OF GEORGIA
STATEMENT OF HON. AUDREY G. FLEISSIG
Judge Fleissig. Thank you. Chairman Nadler, Ranking Member
Collins, Chairman Johnson, Ranking Member Roby, and members of
the subcommittee, thank you for the invitation to testify
today. Judge Story and I are here on behalf of the Judicial
Conference of the United States, the national policymaking body
for the Federal courts. I would remind you, as Conference
witnesses, we do not speak for the Supreme Court.
I will briefly highlight four points. First, we are
committed to the public's right of access to the courts.
Secondly, we are continually working to improve the public's
access to PACER. Third, proposals to change the Case Management
system, or PACER, fee structure could have serious unintended
consequences, both for public access and court operations. And
fourth, the Judicial Conference has carefully developed
policies on audio and video usage in both Federal trial courts
and courts of appeals.
First, let me assure everyone that the Federal judiciary
shares Congress' commitment to the public's right of access to
the courts, which Federal judges must constantly balance with
the rights of parties to the case. The primary mission of the
court is to be accessible to the public as a fair and efficient
forum for the resolution of cases and controversies between
parties. Federal courts for hundreds of thousands of
individuals and organizations is their chosen forum to seek
justice, protect rights and liberties, and adjudicate disputes
under law. Litigants' access to courts is, therefore,
paramount.
Almost every step of the Federal judicial process is open
to the public. All case opinions are available free to the
world online. Case dockets are posted online, and anyone may
attend court and may review case pleadings and other documents
for free at a Federal courthouse. We have also developed a
successful electronic filing system and a portal for court
documents called PACER, which processed half a billion requests
for documents last year.
Second, the judiciary is working to improve PACER and
public access to PACER. Most users pay nothing to use PACER
because of fee exemptions or waivers, which, effective in
January, will be doubled. Of the remaining users, a small
percentage of so-called power users pay the bulk of the fees.
We have improved public access through other initiatives
described in my written testimony and intend to continue to
improve PACER with the advice of a newly-forming public access
user working group.
Third, proposed changes to eliminate PACER fees and to
reengineer the Case Management system could be unfair to
litigants, greatly disrupt court operations, and would likely
cost an enormous amount of time and money. Our Case Management
and Public Access systems can never be free because they
require over $100 million per year just to operate. That money
must come from somewhere. No additional taxpayer appropriations
have been proposed. Remaining alternatives are to drastically
increase the fees for litigants seeking to file court cases or
slash spending on essential court operations, such as clerks,
probation officers, and courtroom hours.
The judiciary has serious concerns about the removal of the
current funding mechanism with no replacement source of funds,
effectively turning the PACER system and other elements of
electronic filing into a massive unfunded mandate. Shifting
funds from PACER users to litigants through increased filing
fees would increase barriers to filing suit for many litigants
and, thus, unduly hinder access to justice. Legislation
proposes a new consolidated case management system, possibly
even to include State court systems. Two examples in my written
statement illustrate how hundreds of millions of dollars and
many years of effort would likely be required to accomplish
this. Allowing unlimited free access to PACER, along with a
consolidated filing system, could impact the speed and
reliability of the system and raise additional concerns
regarding security, quality control, and data integrity.
Finally, regarding video and audio usage, we have carefully
considered how they can be used to improve public access
without jeopardizing the fairness and integrity of the
proceedings. Today a member of the public can easily access on
the internet an oral argument audio from any Federal court of
appeals for free, and, in some cases, in real time, or
appellate courts also provide video of some or all arguments.
At the trial court level, recording of proceedings is
restricted in order to preserve and protect the litigant's
right to a fair and impartial trial.
Mr. Chairman and members of the subcommittee, thank you
again for the opportunity to testify, and I will be happy to
answer your questions. I request my full statement be entered
in the record.
[The statement of Judge Fleissig follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Judge. Judge Story, you
may begin your testimony.
STATEMENT OF HON. RICHARD W. STORY
Judge Story. Committee Chairman Nadler, Ranking Member
Collins, Subcommittee Chair Johnson, and Ranking Member Roby,
good afternoon. I am pleased to be here to testify on the topic
of ensuring the public's right of access to the courts. I have
to say I would be remiss if I didn't just momentarily thank
Congressman Collins for his very kind words. I appreciate those
words. And I will say also that this is even more special for
me because being from the Northern District of Georgia, this is
the first time I have appeared before a congressional committee
since my confirmation hearing. To have the Chair be from the
Northern District of Georgia and to have the Ranking Member of
the committee from the Northern District of Georgia, that is a
special aspect for me as well. So thank you very much for this
opportunity.
I want to assure you that each Federal court and----
Mr. Johnson of Georgia. I will gladly grant you an
additional minute on your time. [Laughter.]
Judge Story. I will try not to need it, Chairman. Thank
you. I want to assure you that every Federal court and every
Federal Judge takes very seriously the subject of public access
to the courts. Federal judges adhere to a presumption of
openness whereby court proceedings are open to the public. That
presumption also applies to court records, including documents
filed by litigants in the case, written orders and decisions
issued by the judges. Sometimes judges are asked to balance the
right of public access with a litigant's request for
confidentiality. In my brief remarks to you, I will focus on
how judges weigh those competing interests.
Let me first point out an important distinction between
protective orders and sealing orders. In the early state of
litigation, the parties engage in discovery. Typically,
material exchanged in discovery, which, let me assure you, in
this electronic age can be massive, are not filed with the
court typically. Parties often ask the court to enter a
protective order to govern the disclosure of certain materials
that are exchanged during that discovery process. If protective
orders were not entered, the parties would have to litigate
over the protection of their confidential materials, causing
the case to likely bog down and become much more costly for the
litigants.
Even so, most courts are very circumspect about entering
protective orders. We endeavor to draw such orders in as narrow
a fashion as possible so as to allow meaningful public
disclosure while affording some protection to the litigants.
Once parties file materials with the court as part of the
adjudicative process, they must be made a part of the public
record unless the court enters an order that seals those
documents. Again, realizing that a sealing order places a
matter outside the public purview, the courts impose a
significant burden on the party that is requesting the
materials be sealed.
The primary mission of the courts is to provide a fair and
efficient forum for the resolution of real controversies
between both public and private parties. In exercising our
constitutional duty, a judge has a certain level of discretion
in hearing an individual case. When a request for sealing is
made, the judge weighs the need for confidentiality against the
public presumptive right of access to court proceedings and
records. The law recognizes if there are situations where that
access must yield because of a party asserts a compelling
interest in protecting that information from the public for
reasons such as intellectual property, trade secrets, or
private, personal information.
On occasion, there are good reasons for courts to grant a
litigant's request to keep parts of the proceedings
confidential. In deciding to seal material in cases, judges
must consider and articulate why the interests and support of
non-disclosure are compelling, why the interests supporting
access are less so, and why the seal is no broader than is
necessary.
Even when a document is sealed, courts continue to take the
public's right of access into account. The specific
requirements of binding case law varies somewhat from district
to another, but I have included in my written testimony some
examples of that. But because there are so many competing
interests to be considered in every case, the best approach is
to allow the trial judge to have discretion concerning the
sealing of documents. He or she is in the best position to do
so based on the facts of the case, governing case law, and the
district's local rules and practices.
Keep in mind that a judge's decision to seal is subject to
appeal. The strength and thoroughness of the appellate process
provides reviews and checks on those decisions. Also third
parties have the ability to intervene and assert the rights of
public access to documents as well.
Thank you for the opportunity to address you here today.
Let me close where I began. All Federal courts and all judges
take very seriously public access to the work of the courts.
That is how we are justified in the public having confidence in
what we are doing, and they do have to be able to have access
to that, and we understand that and appreciate it. And I look
forward to answering any questions that you may have. Thank
you.
[The statement of Judge Story follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. We will now proceed
under the 5-minute rule with questions, and I will begin by
recognizing myself for 5 minutes.
Judge Fleissig, both of the Judicial Conference's camera
pilots were reviewed favorably by judges who participated,
which seems at odds with the strict limitations against cameras
that currently exist. Why did the Judicial Conference continue
to impose strict limits, particularly on district courts, in
the face of such seemingly strong evidence that the presence of
cameras was beneficial?
Judge Fleissig. Thank you, Chairman Johnson. I am so sorry.
Thank you, Chairman, for the opportunity to address this
important question. The Judicial Conference has engaged in two
multiyear, in-depth studies with respect to cameras in the
courtroom, and each time that has happened, the results that
have come back have, in fact, been mixed. And while some have
had favorable experiences, others have not.
And the Judicial Conference has carefully reviewed those
studies, and in balancing all of the information presented,
felt that the detriment to allowing cameras in the courtroom
outweighed the benefits of it, separate and apart from the cost
of technology and resources that it would take to implement
such a policy. We feel that on balance, it can be very
destructive to the integrity of the trial court process and be
detrimental on balance.
Mr. Johnson of Georgia. What factors led to that
conclusion?
Judge Fleissig. Various factors, including the fact that
trials, as we know as trial judges, are incredibly stressful
events to begin with. Witnesses come from far away. They are
not comfortable coming to testify in court. Frequently, very
embarrassing information can come forth when a witness is on
the bench in cross examination from trial counsel on the other
side, and often very confidential matters are discussed as
well. And we have certainly seen some notorious trials in our
past where cameras did not help in instilling any respect for
the court process. And we believe that the litigants' interests
are what is paramount.
Mr. Johnson of Georgia. Well, let me ask you this question.
Is the wealth of data and experience from State courts of
relevance to the Judicial Conference's policy on cameras in the
courtroom and allowing same-day livestreaming?
Judge Fleissig. Absolutely, Chairman, and our understanding
is that the experience of State courts has been mixed. And
while many State courts do, in fact, allow cameras in the
courtroom, many of them very rarely offer any televised
accounts of any court proceedings. So while it is possible,
those courts could go for long periods of time without any
court proceedings actually being televised. So it is a full
range of experiences that we see from the courts.
Mr. Johnson of Georgia. Thank you. Judge Story, your
testimony states that you want to emphasize the sealing court
filings is the exception, not the rule, in civil litigation.
But it is not just a quantity problem. It is also a quality
problem. Reuters reporters here today have documented a
troubling amount of information relevant to public health and
safety that has been kept under seal. If information of
greatest public relevance is kept under seal, it is not
counterbalanced by the fact that other potentially mundane
aspects of a court proceeding are publicly available. Do you
agree with me on this point and that, accordingly, courts must
be careful even if only a relatively small amount of material
is to be sealed?
Judge Story. Mr. Chairman, I absolutely agree that we have
to be extremely careful because what we are talking about is
public access, and so a decision to seal matters has to be
carefully considered. And you mentioned public health and
safety. Those are substantial matters that have to be
considered by the judge and weighed against the other interests
that are being proposed to counterbalance that. Yes, the answer
to your question is, yes, that is an important matter. Will it
always carry the day? No, it is a balance, and you have to look
at the factors from both sides and make a determination. And
that is what I think a judge is uniquely in the place to be
able to do.
Mr. Johnson of Georgia. Thank you. I will now recognize the
gentlelady from Alabama, Ranking Member Roby, for 5 minutes.
Mrs. Roby. Thank you, Chairman. Judge Fleissig, State
governments have access to far fewer resources than the Federal
government, yet many State courts have public access systems
that are far more user friendly than the PACER system. So what
are the courts doing to improve searchability and public access
to these documents?
Judge Fleissig. Thank you. We do continue. Making PACER as
user friendly and effective as it can be is very important to
us and something that we continue to work on. We continue to
upgrade the user interface systems for PACER. We have proposed
recently and approved in the Judicial Conference to increase
the exemption level for access to PACER. And we have just begun
to form a user group, a user working group, with
representatives from the media, academia, the legal profession,
and others to help us understand how best to improve our
system.
Our system, we exist for the most part to have these
filings come into our court, come in with integrity, be
available and accessible, and that has occurred, and it has
occurred well. And while many State court systems have systems
that allow free access, that free access often does not involve
the documents themselves. It will involve free access to a
docket sheet, and we are endeavoring to make the full scope of
information available through our PACER system. We do take it
very seriously.
Mrs. Roby. So all 94 district and 13 appellate courts
administer their own case management electronic case filing
systems. So what are the cost savings if the courts
consolidated the administration of the Case Management/
Electronic Filing system?
Judge Fleissig. It is difficult for me to imagine any cost
savings if they were to be consolidated. As I am sure the
Ranking Member knows from our written testimony, we have some
examples of situations where other agencies have attempted to
do so on courts, and not done so successfully or done so at
great cost.
Right now both the statute and the rules provides that each
court will maintain its own docket, and while consolidation is
something that can be considered, it has to be considered in
the context of what will the cost of that be. What level of
disruption will it cause? What will be the impact on the speed
and integrity of the system if we do that? What cybersecurity
risks will be created by that? If there is an attack on a
particular district's system that is handling a very notorious
case, is that going to affect the speed and integrity of the
filing system across our Nation? These are things that we must
consider in considering any notions of consolidation, and I
would hope that they would be studied and determined before any
steps toward consolidation could be taken.
Mrs. Roby. Sure, that is all very helpful. Just building
off, Judge Story, with what the Chairman was asking as it
relates to sealing documents and protective orders. Are there
situations in which businesses and individuals would be harmed,
either personally or financially, by making public case files?
You have touched on this, but I think it would be helpful from
your experience on the bench if you could provide maybe some
specific examples.
Judge Story. I think the best example is we are concerned
in our country today with protecting intellectual property. In
this committee, it is a subject of your concern. And it is
troubling to me that in order for an entity that has valuable
intellectual property to assert its rights relative to that
property and come into the Federal courts that should provide
them a forum in order to access that, they are risking
releasing that intellectual property. So then there is no need
to go out and try to find a way to get to it. Come to the
courthouse, and come to the public desk, and open PACER, and
there it is.
I think that there are a number of instances. But, again,
that doesn't always win either because that is why we need that
human factor that weighs it and considers it as a neutral
person, but who understands the presumption for public access
to the courts. That is the safest way, I think, to assure
fairness to everyone.
Mrs. Roby. Thank you very much. I yield back.
Mr. Johnson of Georgia. Thank you. I now recognize the
chairman of the full committee, Representative Nadler, for his
5 minutes.
Chairman Nadler. Thank you very much. I want to begin by
making clear that my express support for video and audio taping
in courtrooms is for appellate courts only. It does not extend
to trial courts for reasons of witness intimidation or
whatever. Whoever wants to handle it, the Michigan Supreme
Court is a court that operates on the presumption that its
proceedings should be video recorded. In a letter to the
committee, the Chief Justice of that court wrote, ``My view in
opening the doors of the Federal courts to television coverage
is simple. It is the public's court. They should be able to
watch it work with as little difficulty as possible.'' First,
Judge Fleissig, then Judge Story. What is your response to the
Chief Justice's statement?
Judge Fleissig. We do take this very seriously, and the
Judicial Conference has permitted each circuit to make its own
determination with respect to the audio or video recording of
appellate-level oral arguments. And four of the circuits do, in
fact, either routinely or periodically allow the video all.
Many others allow streaming of their arguments, and all of the
appellate courts in our country allow access to audios of their
arguments for free, oftentimes same time. And, for instance, in
my circuit in the Eighth Circuit, they are available within 2
hours of the oral argument.
And so the audio of those recordings is available across
the country, and we believe that it is important for each
circuit to make its own determination about how it is going to
approach this important subject. And they have each approached
it differently, which permits us over time to see how it has
worked in each of the circuits in real life.
Chairman Nadler. Judge Story?
Judge Story. I agree.
Chairman Nadler. Okay.
Judge Story. I have nothing to add, quite honestly.
Chairman Nadler. Well, thank you. Then let me continue with
Judge Fleissig leading on from what you just said. Can you
explain why the public's right of access to court proceedings
should vary by circuit, which is the Judicial Conference's
policy? What factors do the Conference and your committee
consider when it decides to let each court of appeals formulate
its own cameras and audio policies? Do you have any plans to
reevaluate that policy or to adopt a policy encouraging circuit
courts to provide livestreaming video and audio? I mean, one
would think, I would think, that if it is a good policy in
terms of justice and opening the courts, that allowing video
and audio access the courts in real time is a good policy
period, in this circuit, but not in the circuit. Why should it
vary by circuit?
Judge Fleissig. Well, we do have a decentralized system in
our country, and so each circuit does have the ability to make
its own decisions in this regard. Judge Story and I both sit on
committees that study these issues and make recommendations to
the Conference.
Chairman Nadler. All right. Would you think it a good idea
for Congress to say do it across the board in all circuits?
Judge Fleissig. I think that this is a matter that should
be decided by the courts, and we are moving in that direction.
I realize that the pace is of some frustration to certain
members of the public and to members of this committee. But as
we develop this, policies are able to be developed in this
arena so that we can find the right way to approach these
issues.
Chairman Nadler. Thank you. I will not take that as a
comment on the PACER question. Judge Story, your testimony
describes clearly how things ought to work when it comes to law
governing motions to seal. What evidence is there to show that
things are working the way they should, that judges, in fact,
are giving reasons why a materially-given case ought to be
sealed?
Judge Story. The only evidence would be the orders issued
by the judge. As to whether it happens in every case, I would
not represent to you that it does. The truth of the matter is
under the press of business, when a judge in a busy trial court
is presented with a consent order from parties resolving a
matter, that order may be entered and perhaps not looked at as
closely in terms of the effect on access. That can happen. I
will be honest with you.
Do we need to step back and realize that that is an issue
that has come to the fore? Yes, I believe we do. I think that
the courts need it, we don't operate in a vacuum. We realize
what is being said. We understand and appreciate the criticisms
of the court, and we take those into account. I can say to you
I hear you saying this. I can tell you right now there is a
motion pending before me, and I am looking at differently
because I have had to think more about it now. And if we move
these things to the front burner, they get more attention, and
I think this has more attention. And that is as candid with you
as I can possibly be. I think that is the case.
Chairman Nadler. Thank you. My time has expired. I yield
back.
Mr. Johnson of Georgia. Thank you. That is a compliment to
the Committee for having this hearing today, and we appreciate
that. I will next turn to the gentleman from Virginia, Mr.
Cline, for 5 minutes.
Mr. Cline. Thank you, Mr. Chairman. I thank the judges for
coming in today, for their willingness to answer questions as
well. We had Members' Day for our own colleagues on the
committee last week, and we weren't allowed to ask them
questions, so I commend you all for making yourselves
available.
This is a very important topic that we have jurisdiction
over in the Judiciary Committee, the Federal judiciary. Courts
affect our daily lives, and they oversee everything from
divorces and criminal cases in State courts to major U.S.
Supreme Court decisions that shape our jurisprudence for
decades and centuries. The purpose of today's hearing is to
discuss the public's right to access court information, whether
it be through the PACER system or the standards for sealing
documents.
Transparency in government is vitally important as it
improves the public's trust in their government, but our
efforts to ensure this trust should not be taken likely,
especially in the court system where some of the most private
aspects of an individual's life may be discussed. It is a
balancing act, as you said, that we are here to discuss today.
However, it is concerning to me that despite trends toward more
transparency in other sectors of the government, access to our
Federal courts is often less so, with the PACER system
continuing to charge a per-page fee for access to documents.
As an attorney, I practiced in my home State of Virginia
where I believe we have a robust system to access our court
files online, constantly improving, but maintaining a system
that is free of charge from general district courts to the
Supreme Court of Virginia. Access to juvenile and domestic
relations courts is limited only for the purposes of payments
and select JDR courts. And I am pleased to co-sponsor the
ranking member's PACER bill.
While I am in favor of same-day audio, I do have
reservations about allowing cameras in the courtroom in real
time as there are many issues that must be addressed to ensure
the privacy and constitutional rights of those in the
courtroom, witnesses and others, but also to ensure that in
this of 24-hour news coverage, we don't experience the problems
that often plague our own institution here with people playing
to the camera. The current policy of audio coverage strikes the
right balance.
And that is why this past spring I led a bipartisan letter
to the Supreme Court requesting to make available same-day
audio for a single case, Department of Commerce, et al., v. New
York, et al., regarding redistricting. Although video coverage
of Supreme Court hearings has never been allowed, audio files
usually are released at the end of the week. Unfortunately, our
request was denied.
We have important topics to deal with today, and I look
forward to the discussion. I really don't have any questions
for the judges, except for one. Judge Fleissig, you mentioned
power users. Can you tell me what a power user is? Give me an
example.
Judge Fleissig. Yes, sir. Thank you for the opportunity to
explain this. A small percentage of the users of the PACER
system account for an inordinate amount, three percent,
accounts for approximately 87 percent of the fees that are
generated by PACER. And these are entities that obtain
information from the system and then use it as part of their
business model. They will repackage it in some fashion and make
it available to others who are able to access it through their
interface system.
Mr. Cline. So commercial entities.
Judge Fleissig. Yes, sir.
Mr. Cline. Okay. Thank you. I don't have any other
questions, Mr. Chairman. I yield back.
Mr. Johnson of Georgia. Okay. Thank you. Can you give us
some examples of those commercial interests that monetize the
PACER system?
Judge Fleissig. For instance, Bloomberg. There are entities
that obtain the information from the system, and then they
resell it to the legal community and to others. And people are
able to access these systems at law schools, in law firms,
other places, and there are numerous such individuals. I hate
to name them by name here.
Mr. Johnson of Georgia. Thank you. I will next turn to the
gentleman from California, Mr. Stanton, for 5 minutes.
Mr. Stanton. Mr. Chairman, you just demoted me to
California. I proudly represent Arizona here in Congress. That
is all right. [Laughter.]
Mr. Stanton. And I want to say good afternoon to Judge
Story and Judge Fleissig. Adequate access to our courts is
essential to ensure equal justice under the law. That is why
this past July I worked for the passage of H.R. 1569, a bill
adding the cities of Flagstaff and Yuma to the list of
locations in which Federal district court can be held in the
State of Arizona. That legislation addressed the physical
barrier often presented to rural and tribal communities,
including the Hope and Navajo nations, that need better access
to the Federal court system.
As we talk about other accessibility measures to the
courts, such as video and audio, tribal communities must be
part of that conversation. The complexity between statutes,
government policies, and U.S. Supreme Court precedents lead to
tribal members appearing in Federal court proceedings at far
higher rates than non-Native Americans. Given the higher
interactions with our judicial system, it is critical that
accessing the courts is a tangible option for them. Yet as my
staff was preparing for this hearing, it was hard to find
information on tribal communities accessing the courts from a
telecommunications perspective. So I would like to start there.
How is the Judicial Conference addressing the lack of
infrastructure, both in terms of courtroom proximity and
telecommunications, for our tribal communities?
Judge Fleissig. Thank you, and I do want to say I was
pleased as a member of the CACM Committee to recommend the
change in the places where in your State.
Mr. Stanton. Thank you. Thank you.
Judge Fleissig. And I have to be honest with you. I don't
know that our committee has really focused on tribal
communities in particular. I know that we have, for instance,
recently developed a new telephone system that makes court
information available both in English and in Spanish to try and
increase access to the courts. And as a member of the CACM
Committee, I think that is a question that bears examination.
Mr. Stanton. That is a fair answer. I really appreciate
that. It was mentioned in your testimony that PACER can be used
to access court documents. Of course, PACER requires an email
account and a payment method. It is another reason why in the
other committee I am lucky to serve on, Transportation and
Infrastructure, we need to make sure we do more to support
broadband access in rural areas and, in particular, in tribal
communities so they get access to justice through the PACER
system.
One recommendation I might have is that the Judicial
Conference reach out to our tribal communities and ask them
directly how they can better access our court system moving
forward.
Judge Fleissig. Thank you.
Mr. Stanton. I would like to shift gears to address an
issue about the courts in Arizona and that we are facing an
extreme shortage of Federal judges. Arizona is one of the
fastest-growing States in the country. There are 22 tribal
nations in the State that need to access to the Federal courts,
and because of the State's proximity to the border, judges have
high numbers of immigration- and border-related cases. We
desperately need more judgeships to account for these factors.
There are currently only 13 authorized judgeships in
Arizona, one of which is temporary. The temporary judgeship was
authorized in 2002, and while the district's total filings have
increased more than 85 percent since then, no new judgeships
have been authorized since. That is 17 years of growth without
any new judges in our State. The lack of judges in Arizona run
parallel to the larger conversation about accessing the courts.
If there aren't enough judges to efficiently manage caseload,
then people's access to justice is inhibited.
As you know, the Judicial Conference does a comprehensive
review of caseloads and judgeship numbers for courts across the
country, and subsequently recommends how many new judgeships
district courts should have. When will the Judicial Conference
release their next set of recommendations?
Judge Fleissig. Is this the next set of recommendations
with respect to judicial positions?
Mr. Stanton. Yeah, where new judges should be located.
Judge Fleissig. I am afraid I don't have that information.
Mr. Stanton. That is all right.
Judge Fleissig. But we will be happy to get that to you.
Mr. Stanton. The most recent survey for Arizona indicated
seven new judgeships were needed. We were only granted four new
judgeships, so we will obviously be advocating for that in the
next set of recommendations. We do need to close the gap
between tribal communities and the judicial system, and we need
to ensure Arizona has the adequate number of judges to address
the increasing caseloads that they are handling. Thank you, Mr.
Chairman. I yield back.
Mr. Johnson of Georgia. And, Judge, you can answer that
question.
Mr. Stanton. Oh, please.
Judge Fleissig. If I may, the information I have just
received----
Mr. Stanton. In real time, all right.
Judge Fleissig. In real time, yes, but not electronic, is
that the Conference has recommended new judgeships for Arizona.
We still wait the introduction of a bill to address our
judgeships requests, and every 2 years we do an audit, and it
is released in 2019. I hope that assists.
Mr. Stanton. That does. Thank you so much.
Mr. Johnson of Georgia. Thank you. And now we will
recognize the other gentleman from California--I am sorry--
Arizona----[Laughter.]
Mr. Biggs. Thank you.
Mr. Johnson of Georgia [continuing]. Mr. Biggs for 5
minutes.
Mr. Biggs. Thank you, Mr. Chairman, and I will say that
when you announced that he was from California, it certainly
explained his voting record to me. So thank you, Mr. Stanton.
Mr. Stanton. I will be asking for more time after Mr. Biggs
is done.
Mr. Biggs. I knew you would, my friend. So thank you so
much for being here today and appreciate the Chairman holding
this hearing. I think it is an important topic. And I had the
privilege of trying a few cases myself, literally hundreds of
cases. And I want to talk a little bit about the camera in the
courtroom and those issues because there is some advocacy from
some of my friends who would like to see that. Have either one
of you worked with cameras in the courtroom?
Judge Story. I have as a State judge.
Mr. Biggs. Mm-hmm. Can you comment on what your perception
of how that may have changed non-camera proceedings?
Judge Story. There were mixed results in all honesty. It
depended upon who was in the courtroom at the time.
Mr. Biggs. Meaning?
Judge Story. It would affect conduct at times.
Mr. Biggs. Okay. On the part of the witnesses, attorneys,
all of the above?
Judge Story. All. All. Not jurors because jurors were never
shown. They are always protected from being shown.
Mr. Biggs. Yeah.
Judge Story. But I think in terms of certainly as to
witnesses and at least times as to lawyers.
Mr. Biggs. Okay. Judge?
Judge Fleissig. And if I may, my district, the Eastern
District of Missouri, was one of the districts that
participated in the most recent pilot. And I would speak to
attorneys at my pretrial conferences and encourage them to
agree to cameras for their proceedings, and I was unable to get
any of the attorneys to have both sides agree to that. They
were concerned about it disrupting their trial, their court
proceeding.
Mr. Biggs. Yeah, I would have to say that I kind of lean
that way myself. We never had live TV proceedings in any of my
trials. And some of the attorneys that were on the other side,
never me. Boy, I would never play to the camera, I can tell you
that. But I think some of my colleagues on the other side would
have been more than happy to play to the camera, so I think
that is probably it. In fact, I am going to read something from
Chief Justice Roberts on cameras in the courtroom and just get
you reaction to that if I could.
``I think that having cameras in the courtroom would impede
that process. We think the process works pretty well. I think
if there were cameras, that that lawyers would act differently.
I think, frankly, some of my colleagues would act differently,
and that would affect what we think is a very important and
well-functioning part of the decision process. I do not think
that there are a lot of public institutions, frankly, that have
been improved by how they do business by camera.''
Senator Howard Baker told me at one point that he thought
that televising of the Senate proceedings, he used a strong
word. I am sure it is not right, whether it is ruined, but it
certainly hurt the proceedings. And, you know, Judge Story,
since you actually had that experience, do you think that
cameras actually ruin the proceedings? And if not, because you
said that you had mixed results. How it might have improved the
proceedings and what you?
Judge Story. And I unfairly left out one other person that
maybe was affected by the cameras in the courtroom, and it was
the judge. And it was because the case, it was one of the first
cases with cameras in my State, and it was a death penalty
case. The victim was a child. The defendant was a former deputy
sheriff. And so there was tremendous public interest, and the
cameras ran the entire trial, and they never were turned off.
And I was conscious of those cameras because of my concerns
that I would have facial expression that would be
inappropriately being displayed on the news that night as there
was discussion about some horrific event that had occurred and
was in the evidence, and I would appear to be smiling as they
were talking about that. And I was conscious of it was another
factor for me in how I conducted myself in the trial.
Mr. Biggs. Well, so we have talked now about cameras in
jury trials, but we haven't really talked bout in appellate
proceedings. And I think Chief Justice Roberts largely probably
about appellate proceedings because he doesn't like it, is my
understanding. What are your thoughts on cameras in appellate
proceedings? Judge Fleissig.
Judge Fleissig. I am not sure I know exactly how much is to
be gained from having a video camera capture a person standing
at a lectern speaking to the judges and having the three judges
respond. And, in fact, when I have watched some of these, I
found it distracting to even listen to it because you end up
focusing on a judge who may be thumbing through the brief. I
find that the audio is far more effective for me when I am
trying to capture what happened in an appellate argument.
And I am not sure how much more is to be gained when
exhibits are not being offered, witnesses are not there. The
video is of two lawyers standing at a lectern and three judges
who are periodically asking questions. I realize we live in a
TV age, but I am not sure how much more is gained.
Mr. Biggs. My time has expired, but it is not unlike CSPAN
showing Congress, I guess. Thank you, Mr. Chairman.
Mr. Johnson of Georgia. Thank you. The gentleman from
Pennsylvania, Mr. Reschenthaler, has arrived. Sir, I will
recognize you for 5 minutes, questions.
Mr. Reschenthaler. Thank you, Mr. Chairman. I am good. I
appreciate it. I yield the remainder of my time. Thank you.
Mr. Johnson of Georgia. Thank you. And with that, that ends
the questioning for this panel. We will reconvene to hear
testimony of our second panel after a 5-minute recess. Thank
you all for coming.
[Recess.]
Mr. Johnson of Georgia. I will now introduce our second
panel of witnesses. Lisa Girion is a reporter in Reuters' Los
Angeles Bureau and previously served as top news editor at the
Bureau. Much of Ms. Girion's reporting has been based on
internal records produced in court proceedings, sometimes under
seal. Before joining Reuters, Ms. Girion was a 16-year veteran
and investigative reporter at the Los Angeles Times, where she
produced stories on the intersection of government, commerce,
health, and welfare. Ms. Girion also served as City Editor and
Reporter for the Los Angeles Daily News and held previous
reporting roles at the Dallas Times Herald, the Dallas Morning
News, and the Wilmington News Journal. Ms. Girion received her
undergraduate degree from Northwestern University's McGill
School of Journalism. Welcome.
Mr. Daniel Levine has been reporting on the U.S. Judicial
system for 15 years, the last 9 of them at Reuters. His stories
cover a range of high-profile legal issues across a range of
issues. Before joining Reuters, Mr. Levine reported on legal
issues for ALM Media, where he covered the Department of
Justice and Federal courts. Mr. Levine received his bachelor's
degree form McGill University. Welcome today, sir.
Jodi Schebel is Co-Managing Partner at Bowman and Brooke
LLP. She focuses her practice on product liability, premises
liability, and personal injury defense litigation, and manages
all facets of high-exposure litigation from case inception to
trial. Ms. Schebel also serves as National Discovery Counsel
for a major automotive manufacturer on class action and other
product liability matters in both State and Federal courts.
Since 2013, Ms. Schebel has served as pro bono counsel for
Focus: HOPE, which is a nonprofit organization. Ms. Schebel
received degrees from Wayne State University and Wayne State
University Law School. I hope that I pronounced your name
correctly.
Ms. Schebel. It is Schebel.
Mr. Johnson of Georgia. Schebel. All right, thank you.
Please accept my apologies.
Ms. Schebel. My husband will be happy it is pronounced
correctly.
Mr. Johnson of Georgia. Thank you. Seamus Hughes is the
Deputy Director of the Program on Extremism at George
Washington University, and is an expert on terrorism, home-
grown violent extremism, and countering violent extremism. Mr.
Hughes previously worked at the National Counterterrorism
Center, serving as a lead staffer on U.S. government efforts to
implement a security strategy, and for the Senate Homeland
Security and Governmental Affairs Committee, serving as the
senior counterterrorism adviser. Mr. Hughes is a graduate of
the University of Maryland, and a recipient of the National
Security Council Outstanding Service Award and two national
Counterterrorism Center Directors Awards for Outstanding
Service. Welcome, sir.
Sunny Hostin is the Emmy-nominated co-host of The View and
the Emmy-winning Senior Legal Correspondent for ABC News. From
2007 to 2016, Sunny was a host and legal analyst at CNN. Prior
to working at CNN, Ms. Hostin filled in as a co-anchor for ABC
News World News Now and America This Morning. Originally from
the South Bronx, Ms. Hostin began her career as an Appellate
Law Clerk at the Maryland Court of Appeals. She then joined
private practice and later became a trial attorney for the
Department of Justice and an Assistant U.S. attorney for the
District of Columbia. During her time as Assistant U.S.
attorney, Sunny was awarded the Special Achievement Award by
Attorney General Janet Reno for her prosecution of child sexual
predators. Ms. Hostin received her undergraduate degree in
communications from Binghamton University and her law degree
from Notre Dame Law School. Welcome.
Last but not least, Mr. Jeffrey Toobin is a staff writer
for The New Yorker and Chief Legal Analyst for CNN. He is
author of several books, including The Oath: The Obama White
House and the Supreme Court, and The Nine: Inside the Secret
World of the Supreme Court. Mr. Toobin previously served as an
Assistant U.S. Attorney in Brooklyn and as an associate counsel
in the Office of Independent Counsel, Lawrence Walsh. Mr.
Toobin earned his bachelor's degree from Harvard College and
his law degree from Harvard Law School. Welcome, sir.
We welcome all of our distinguished guests, and we thank
you for participating in today's hearing. Before proceeding
with testimony, I hereby remind each witness that all of your
written and oral statements made to the Subcommittee in
connection with this hearing are subject to penalties of
perjury pursuant to 18 U.S.C. Section 1001, which may result in
the imposition of a fine or imprisonment of up to 5 years or
both.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in 5 minutes. To help you
stay within that time, there is a timing light on your table.
And when the light switches from green to yellow, you have 1
minute to conclude your testimony. When the light turns red, it
signals your 5 minutes have expired.
Ms. Girion and Mr. Levine, you may begin. First, Mr.
Levine.
STATEMENTS OF DANIEL R. LEVINE, LEGAL CORRESPONDENT, AND LISA
GIRION, REPORTER, TOMSON REUTERS CORPORATION; JODI M. SCHEBEL,
CO-MANAGING PARTNER, BOWMAN AND BROOKE, LLP; SEAMUS HUGHES,
DEPUTY DIRECTOR OF THE PROGRAM ON EXTREMISM, GEORGE WASHINGTON
UNIVERSITY; SUNNY HOSTIN, CO-HOST, THE VIEW; AND JEFFREY
TOOBIN, STAFF WRITER, THE NEW YORKER
STATEMENT OF DANIEL R. LEVINE AND LISA GIRION
Mr. Levine. Well, good afternoon, and thank you, Chairman
Johnson, Ranking Member Roby, for the opportunity to testify
about Reuters' investigation of court secrecy, and to present
our findings on the judicial supervision of sealed court
filings that impact public safety.
The courthouse is one of the great public forums of
American government. Controversies litigated there, even those
nominally involving two particular parties, often impact
thousands, if not millions, of people. U.S. appeals courts have
long recognized that documents filed in court are presumed to
be public and that transparency is fundamental to ensuring
accountability and confidence in the courts. To be sure, there
are legitimate reasons for keeping some evidence confidential,
like medical records or trade secrets. But the public has an
interest in learning about drugs' undisclosed side effects,
unsafe car parts, or other dangerous defects.
That is why rules and precedents require judges to weigh
requests for confidentiality against the public interest, and
if they decide evidence must stay secret, to explain their
reason in the record. We have found that is simply not
happening much of the time. Our investigation focused on large
cases involving allegedly defective products used by millions
of people. We reviewed documents files in 115 of the largest
product liability multi-district cases litigated over the past
20 years. Those cases consolidated about 250,000 individuals'
lawsuits, each involving an injury or death.
We found that indiscriminate secrecy is a systemic problem.
Federal judges sealed evidence relevant to public health and
safety in about half of the largest product liability cases.
And in 85 percent of those cases where Reuters found health and
safety information under seal, judges provided no explanation
for allowing the secrecy in spite of their duty under the law
to do so.
Ms. Girion. Courthouse transparency is more than a lofty
ideal. Secrecy has consequences. We found that hundreds of
thousands of people were killed or seriously injured by
allegedly defective products after judges in just a handful of
cases allowed litigants to keep secret evidence that could have
raised alarms about potential danger. The opioid epidemic, of
deep concern to several members of this committee, is the most
significant example that we have found of the tragic toll of
secrecy.
The epidemic has been blamed on greedy drug makers,
feckless doctors, and lax regulators, but our investigation
found that judges, too, contributed to the depth and duration
of the catastrophe. In 2001, just a few years after the pain
pill, OxyContin, hit the market, West Virginia became the first
State to sue Purdue Pharma, accusing the drug maker of duping
doctors into widely prescribing the narcotic by convincing them
it was less addictive than other opioids. West Virginia filed
some of the evidence it gathered in court, but the judge
allowed that evidence to come in under seal, and he put no
explanation in the record.
Because the case settled before trial, the evidence
remained hidden, out of sight of regulators, doctors, and
patients. Over the next few years as OxyContin sales and
opioid-related deaths soared, more than a dozen other State and
Federal judges overseeing similar lawsuits against Purdue took
the same tact, keeping company records secret. It was not until
my L.A. Times colleagues and I reported on the contents of some
of those sealed documents in 2016 that doctors would learn that
for many patients, OxyContin did not work as promised. The
evidence showed that Purdue knew of the shortcomings.
Further evidence that might help explain the opioid
epidemic continued to be covered up, even as the prices and the
litigation exploded. Our reporting showed that Dan Polster, the
Federal judge overseeing ongoing opioid lawsuits, has
repeatedly allowed important evidence to be filed under seal,
again, without any public explanation. In a stern rebuke
earlier this year, the Sixth Circuit Court of Appeals reminded
Judge Polster than when evidence is filed in court, secrecy is
the exception, not the rule. Every decision to seal, the court
said, must be justified by a compelling reason.
We encourage you to read our stories attached to our
written testimony. They relate other examples of judges
allowing important evidence to remain under seal to the
detriment of public health and safety. Thank you for your
attention to this issue.
[The statement of Mr. Levine and Ms. Girion follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. I will now recognize
Mrs. Schebel for 5 minutes.
STATEMENT OF JODI M. SCHEBEL
Ms. Schebel. Thank you, Chairman Johnson and Ranking Member
Roby for having me here today.
So I think the main thing that I would like to talk about
is the fact that we have really got three areas. There are
three stages with respect to litigation where confidential
information that is maintained by a party might be put into the
court record or might request to be sealed. The first is really
through a protective order, and we have a court rule, Rule 26,
Federal Rule of Civil Procedure 26, that governs the entry of a
protective order.
And the rule specifically states, and this is 26(c)(1)(G).
It states that ``A court may issue an order to protect a party
or a person from annoyance, embarrassment, oppression, or undue
burden or expense,'' including that which relates to a trade
secret or other confidential research development or commercial
information, that it not be revealed, or it be revealed in only
a specific way. So there is a court rule that prohibits or--
excuse me--permits courts to keep certain information exchanged
during pretrial discovery as confidential when parties have
confidential information that is requested of them in a case.
The second stage is really where it comes in in filing of a
motion. So you ask the court for some sort of relief in
connection with a motion, and that you attach to it a party's
confidential documents. That motion is going to be filed in the
court record. We talked about PACER. It will be filed publicly
so everyone can see it. But if a party's confidential
information is appended to that filing, making that document
public would or could strip that party of their property
interest in the information that is contained in that document.
And so there is a way for litigants to request the court to
seal the record. That is made upon a showing of good cause
generally, unless that is a motion that affects the substantive
rights of the parties. As long as it is during pretrial
discovery, the standard is good cause. And as long as it is
substantiated by the party and the lawyer demonstrates that
there is good cause to seal the information, it should be
sealed, and generally is sealed from the public record.
The last stage is really when you get to the adjudication
of the merits of the case. So either that is at a summary
judgment stage, or it could be a preliminary injunction. Some
courts find that to be an adjudication on the merits, or it
could be at trial. In that case, again, remember that the
standard that the court employs, and it differs among the
circuits, and this is set out in my written statement, the
disparity and the differences between the circuits as to how
they determine what the right standard is to seal. But in most
instances, it is a compelling interest that in order to prevent
the public from seeing a document that is appended to court
filing that relates to the merits of the case, the party
seeking to seal has to demonstrate a compelling interest to
keep that information sealed.
In my experience, courts weigh that very carefully. It is a
big burden to overcome. But yet we do it, and we do it on
behalf of our clients every day, so that we are balancing the
public's interest to see information that the public has an
interest in or might have an interest in, against our client's
property interest in that information. And that could be
confidential information. It could be a trade secret. It can be
other intellectual property.
And, of course, the tenet of our judicial system is based
on the concept that, you know, we are innocent until proven
guilty. And when it comes to tort law, we are not talking about
guilt. We are talking instead about some sort of a liability.
But still, just because a corporate defendant has been sued
does not mean that they are liable for whatever they have been
sued for. They have an opportunity to litigate that fully. And
just because they have been sued doesn't mean that their
confidential information and their propriety documents should
be made public, you know, without them having an opportunity to
show that there is a compelling interest to keep the documents
as confidential.
And I think the rules that are set out in allowing the
judiciary to have discretion to consider those motions when
they are made by the litigants is the appropriate way to go.
[The statement of Ms. Schebel follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Ms. Schebel. Next we
will hear from Mr. Hughes for 5 minutes.
STATEMENT OF SEAMUS HUGHES
Mr. Hughes. Thank you. Chairman, Ranking Member,
distinguished Members of the Committee, thank you for the
opportunity to testify today.
Access to public records is an inherent right in a healthy
democracy. The current system prevents the public from
effectively exercising that right. As the deputy director of
the Program on Extremism, I track the legal development of
hundreds of Federal terrorism cases on a system called PACER,
the acronym being the Public Access to Court Electronic
Records. The name is a misnomer, though. Public access comes at
an exorbitant cost, a cost that the general public cannot
afford.
PACER is unnecessarily complex and convoluted. It is
outdated. Simple tasks are hard to complete, and the costs are
too high. Barring significant structural changes, the current
approach will continue to fall short of its goal of providing
access to the public.
Quite simply, it is not easy to access court records on
PACER. The website routinely crashes, it kicks you out, and
then it charges for said attempt. The National Case Locator
does not get updates quickly, requiring the users to go to
individual district sites to get a breaking court record. The
individual court websites are also badly outdated. If you
attempt to do a search for an individual charge, you might be
out of luck because that charge hasn't been update with the
latest statute. There is no way to do a nationwide search for
individual charges of bribery, of terrorism, things like that.
Quite frankly, the local rules of each district vary widely.
The judiciary would do well set baseline standards and
requirements for all local rules.
In some districts, documents that were once sealed and
later unsealed by court order are never filed electronically on
PACER. To access these documents, we are forced to build up an
ad hoc system of local GW alumni who go to courthouses around
the country for us and grab documents. Some districts have
automatic unsealing at times, but those implementing the court
order do not post the unsealed documents in a timely manner,
which means you have to call a clerk's office, get it unsealed
again, and then post it on PACER.
In other districts, there is no set time for unsealing,
resulting in documents that remain sealed on eh criminal
docket, even when there is no legal reason for the information
to remain unsealed. In other districts, search warrants are
always filed electronically, others none. Sometimes a little
investigative spotlight shuts down the whole system.
In January, I found a search warrant related to a wide-
ranging investigation into public corruption in the L.A. City
Council. When I made that discovery public, the Central
District of California locked down all search warrants filed on
PACER. Most, if not all, search warrants recently filed in that
district are no longer available online. This is against the
spirit, arguably, of the letter of legislation requiring the
public to have ready access to court filings, barring a court
order sealing them.
Information on PACER is limited. The Program on Extremism
repeatedly had to go directly to courthouses to receive
documents on terrorism trials in the mid-2000s. Trial exhibits
introduced into evidence are routinely unavailable in PACER.
You have got to call the U.S. attorney's office or the defense
attorney and get those documents. The naming convention for how
documents are filed in PACER is not uniform. In some districts
it is ``United States v.,'' others ``U.S. v.,'' ``In the matter
of,'' ``U.S.A. v.,'' which makes it hard to do nationwide
searches. You have got to know the naming conventions for local
districts.
The Federal court fee system rakes in more than $145
million annually from its users. However, the judiciary takes
an overly broad reading of congressional intent, which calls
for only charging reasonable fees. The judiciary states that
approximately ``87 percent of all PACER revenue is attributable
to just 2 percent of users, large financial institutions, and
major commercial enterprises.'' I am part of that 2 percent of
users, the power used the judge called it. I do not feel
particularly powerful using PACER.
I am neither a financial institution nor a major commercial
enterprise. We are an academic institution tracking extremism
in the United States. The judiciary may suggest that I could
get a waiver, but that waiver process is completely convoluted,
and if I get that waiver, I can't post the documents on our
public website. I can't inform other researchers on how to get
this stuff. I can't give it to policymakers and congressional
staffers. Without this service, the public is less informed
about the nature of the homeland threat.
There are a few proposed changes that would make a
significant difference. One, baseline, make PACER free. Access
is an inherent right in a functioning democracy. Two, the
judiciary should set up a baseline standard for all local
rules, which would provide guidance and direction on issues
such as uniform naming conventions, sealing of documents, and
the use of electronic devices.
Documents uploaded on PACER should be text searchable
wherever possible. RSS feeds can be done tomorrow. If you turn
on the RSS feeds for all the courts, that would open up access
in a way you wouldn't have seen before. Court proceedings that
are recorded should be posted on PACER as standard practice,
assuming there is not a court order to seal. Finally, PACER as
a website is maddening and it is must fixed. The changes on the
margins will not be enough.
I appreciate the opportunity to testify today, and I look
forward to your questions.
[The statement of Mr. Hughes follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. Ms. Hostin, 5 minutes.
STATEMENT OF SUNNY HOSTIN
Ms. Hostin. Mr. Chairman and members of the committee,
thank you for inviting me today. I am especially thrilled to be
seated with my good friend, Jeff Toobin. We were colleagues at
CNN and spent most of our time sparring about nuance points of
law. While we often disagreed and I was almost always right, I
believe we are on the same page today.
I haven't done the research, but I have been told that I am
the only network African-American journalist with a journalism
degree, a law degree, I am a former Federal Prosecutor and a
Member of the Supreme Court Bar. So I am somewhat of a unicorn,
not the most qualified person perhaps to give a perspective,
but I do believe I have a unique perspective representing a
particular community.
The absence of cameras in Federal proceedings and in
Supreme Court, in particular, has a profound effect on African-
Americans in the U.S. The judicial system disproportionately
affects the African-American community in this country because
African-Americans are the most incarcerated people in the world
because the U.S. criminal justice is the largest in the world.
African-Americans are 5.9 times as likely to be incarcerated
than white Americans.
As of 2001, 1 of every 3 black boys born in 2001 could
expect to go to prison in his lifetime. My son was born in
2002, so I take this rather personally. The vast majority of
African-Americans distrust the American judicial
disproportionately than other Americans. The descriptors most
often used: ``unfair,'' ``illegitimate,'' ``excessive.''
African-Americans, though no different than most Americans,
learn about the intricacies of the criminal justice system
through the news media. However, African-Americans consume more
news media than any other group in the U.S. African-Americans
watch 37 percent more television than any other demographic.
They also consume more social media and more streaming. In my
view, given these facts, there exists no better cure for the
fundamental mistrust and perceived illegitimacy of the system
than the transparency of the court that define it, in
particular, the highest court in our land.
The constitutional right of the public to attend
proceedings is critical and indeed has been upheld by the
Supreme Court. While it is a congressional right to attend
every proceeding, no American is able to do so. A
constitutional substitute for the level of judicial
transparency demanded and envisioned by the framers is
necessary if the trust of those most affected is to be restored
and maintained. In my judgment, that substitute is television
or livestreaming proceedings.
Public access to a judicial proceeding must not be limited
to seeing a report of a decision distilled by a journalist,
more often than not without a legal background. Many of my
legal journalist colleagues go to a 3-day law school course to
prepare them for a career as a legal journalist. I watch as
well-intentioned reporters doing the very best they can, with
networks in a rush to be first, get the law wrong instead of
getting it right. There is no better example in recent history
than when the ACA decision came down. Audiovisual coverage of
proceedings improves the media's overall ability to accurately
report on proceedings. When televised, accuracy is a given.
Veracity is a given. Charges of fake news easily dismissed. The
courtroom camera always gets it right.
Thank you, Mr. Chairman, for the opportunity to testify
before your committee today.
[The statement of Ms. Hostin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. Last but not least, Mr.
Toobin. Five minutes.
STATEMENT OF JEFFREY TOOBIN
Mr. Toobin. Thank you for the opportunity to testify, Mr.
Chair and Ranking Member. My name is Jeffrey Toobin. I am a
staff writer at The New Yorker and the chief legal analyst for
CNN. My views today are my own.
I graduated from law school in 1986. After a judicial
clerkship, I had the honor of being a Federal prosecutor for 6
years, first with the Office of Independent Counsel and then as
an assistant United States attorney in the Eastern District of
New York, Brooklyn. There is no greater privilege for a lawyer
than to appear in a courtroom representing the United States.
I joined The New Yorker in 1993 and CNN in 2002. I am
working on my eighth book about the Mueller investigation and
now Ukraine. Two of my books, The Nine and The Oath, were about
the United States Supreme Court, which I have covered as a
journalist for more than 20 years. I have also had the
opportunity to cover many high-profile trials, including those
of O.J. Simpson, Timothy McVeigh, Martha Stewart, and Michael
Skakel. Some were televised. Some were not.
I should note that in the course of my work in the Federal
courts, I have had the occasion to try to rely on the PACER
system many times. Frankly, PACER is a disaster, and I would
like to express my appreciation in particular to Congressman
Collins, who has been such a leader in trying to reform PACER.
My point here today is simple. The Sixth Amendment mandates
public trials. In the 21st century, the only meaningful
definition of ``public'' is one with audio and visual access.
By now, we as a Nation have a lot of experience with cameras in
the courtroom. In the States where it is legal and in the
Federal experiments, we have seen by and large the public
educated and the cause of justice advanced. Here is one
example.
I suspect many of you remember the case of Amadou Diallo,
the unarmed immigrant from Africa, who was mistakenly shot and
killed by four white New York City police officers in the Bronx
in 1999. The judge in that case granted a change of venue to
Albany, but he allowed cameras. The public saw the trial, which
ended in acquittals. Before the trial, there were worries that
the acquittals would lead to violent reactions in New York as
in the Rodney King case in Los Angeles. But I think the fact
that the public got to see the trial and hear the officers'
testimony for themselves contributed to the peaceful reaction
in New York. Every one could tell it was a hard case, even
among people who disagreed with the verdicts. Cameras helped
keep the peace.
At the Supreme Court, all the justices, without regard to
their ideological orientations, are protective of the
institution. They don't want to jeopardize the respect the
Nation has for their judgments. They are understandably
cautious about making changes, but over the years, the Court
has made changes. It installed a sound system in the courtroom.
It changed the arrangement of the bench. It streams audio of
the arguments, albeit with a significant delay. At a minimum,
livestreaming of Supreme Court audio would be a major positive
step and pose no risk at all to the customs of the Court.
But live audio, which would be an improvement, is not
enough. Cameras are necessary. As for the Supreme Court, I need
hardly remind this committee of the importance of their
decisions. As Congressman Chabot, who has long been a leader on
this subject, has long reminded us, the justices pass judgment
on the constitutionally of your actions, but you are prohibited
from watching them do so. That is not right, and that is not
fair.
And here is one more fact to consider about the Supreme
Court. I have been with many people who are attending their
first Supreme Court argument, and they almost all say the same
thing. ``Wow, the justices are impressive.'' ``They know their
stuff.'' ``They are well prepared.'' ``They are working hard.''
I suspect if there were cameras in the courtroom, the broader
public would say the same thing, and I look forward to that
day. Thank you for the opportunity to testify here.
[The statement of Mr. Toobin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. I will now recognize
myself for questions for 5 minutes. Ms. Girion and Mr. Levine,
were you surprised by what you ultimately reported on, and what
is one takeaway from your work that you think is important for
Congress to know?
Ms. Girion. I think we were surprised at the prevalence of
secrecy in the courts that went unexplained by the judges, and
where we had no opportunity to understand what the rational
was, and what factors were weighed, and how the law was applied
in those decisions. So that was a big surprise to us. And I
think, I mean, one takeaway that I have is, as the other
panelists said here today, you know, access and transparency of
court proceeding sis vitally important to, you know, the public
trust in the institution.
But the court's transparency goes beyond that. When people
who use products and may be harmed by them don't have an
opportunity to learn information about them that is filed in
court and is part of a, you know, a major dispute, you know,
that is a real significant problem and a real harm.
Mr. Johnson of Georgia. Thank you. Ms. Hostin, in your
testimony you described the challenges of being a journalist
with a legal background who is often called on to explain the
complexities of an ongoing criminal case. How would greater
camera or audio access to court proceedings help you do your
job better?
Ms. Hostin. I certainly think it would make my job a lot
easier because I am now not in the position of having to
regurgitate what happened because the viewer can see it for
himself and herself. Now I am in the position of explaining
perhaps the law. I am in the position of analyzing the law.
That is very different than having sort of the burden of
explaining exactly what happened.
The other piece of it is that it provides, I think, access
for other reporters as well. You need only press ``rewind'' to
make sure that we all get it right as opposed to just relying
on one person. It is just very, very clear that the few of us
that have the ability to be in the courtroom, it is a very,
very heavy burden to get it right each and every time. And we
also have the added burden of our networks wanting us to be
first, and that can be very problematic.
Mr. Johnson of Georgia. Mm-hmm. Mr. Toobin, do you have
anything to add?
Mr. Toobin. Well, you know, one of the pieces of advice
that journalists and all writers get is show, don't tell. You
know, show people, don't tell them, and that is what cameras in
the courtroom are allowed to do. And also just, you know, we
really try to be accurate as much as possible, and if we can
show what the judge is saying, what is actually going on in the
courtroom as opposed to putting it through our own filter. You
know, we do our best, but we make mistakes. But as Sunny said
during her testimony, the cameras don't lie, and I think
cameras would be simply a force for accuracy, and that is
nothing but a good thing.
Mr. Johnson of Georgia. Thank you. Mr. Hughes, I think you
had a chance to hear the testimony from the Judicial Conference
about PACER. Is there anything about that testimony that you
would like to address?
Mr. Hughes. Sure. Respectfully, I think they were arguing
facts not in evidence. When you look at some of the arguments
being if we open it up free, then the website will crash. Well,
that is not a valid argument to not allow access for the public
on these things. When the judges talked about, well, an outside
or third party could file to unseal, well, that is true in some
districts, but in Maryland where there was an ongoing in the
first-of-its-kind Isis-funded plot going on trial, I filed to
unseal the 70 documents. I was denied because the local rules
don't allow for non-lawyers to file for unsealing, which then I
had to go to GW's counsel to file a motion, right? We are
restricting the ability for the public to have access to
information they should have, and the website does not allow
for it.
So if you look at John Smith gets arrested and John Smith
is a terrorist, and I want to look at John Smith, I also want
to look at the search warrant associated with John Smith, and
that search warrant is always unsealed right before trial. But
that search warrant is not tied to John Smith's name, so I have
to search every single search warrant in that district to find
John Smith's search warrant just to get more information as a
researcher to understand the nature of the threat. It is not
user friendly. It is not useful for researchers. It is painful.
Mr. Johnson of Georgia. Thank you. Ms. Schebel, in the case
of a civil litigation and there is a pattern and practice that
is apparent that judges are sealing documents, sealing
pleadings without stating in an order the reasons for doing so,
and there is no third parties that are contesting the sealing
of a document, what is the legislative branch to do? And if you
would----
Ms. Schebel. Sorry. I think the courts are doing a great
job of analyzing the public's interest in information that
comes to the court as a court document and weighing that
against corporate litigants' interests in their private
property or their confidential documents. I think the courts
are doing a very good job of weighing that. What the
legislature is to do, I think, is to leave that in the court's
discretion.
It is, as Judge Story said earlier, and I think we were all
here to hear that testimony, that, you know, stripping the
judiciary of its discretion and enacting some sort of a
legislation to supplant what the judiciary has expertise in
doing would not help the legal system. And I don't think it
would further the interests of either the plaintiffs or the
defendants, whether it is a corporate party or an individual
who wants to see information protected.
Mr. Johnson of Georgia. Thank you. With that, I will now
turn to the Ranking Member, Representative Roby, for 5 minutes.
Mrs. Roby. Thank you, Chairman, and I will try not to be
repetitive. I may ask you to just go a little bit further than
you have in your previous answers. But, again, thank you all
for being here, and thank you for your candidness and your
willingness to appear before this committee.
Mr. Hughes, I particularly appreciate the level of detail
that you went into. All of my questions have been answered by
your testimony here today, but I would like to suggest since
you were here in the room with the first panel, that we were
referred to the working group Electronic Public Access, the
Public User Group. I think that you contribute greatly to the
courts' openness in that working group. I am not really sure
how it is set up----
Mr. Hughes. I applied. I am waiting to hear back.
Mrs. Roby. Okay. Well, good.
Mr. Hughes. The jury is still out.
Mrs. Roby. I am encouraged to hear that because I do think
that because you are a user of PACER, a power user--is that
what it was--I think you could really, really help give some
insight moving forward about how to improve upon the PACER
system. And then I would just ask, Ms. Schebel, if you would
just, we were just talking about judicial discretion. And the
things that I really wanted for you to focus in on and maybe
expand upon is, you know, there have been arguments out there
that we should mandate that evidence related to public health
and safety should not be sealed. And so I just wanted to give
you an opportunity to maybe even dive a little deeper in your
response to those arguments beyond what you might have already
stated.
Ms. Schebel. Sure. I mean, I think it is important to
recognize that just because a party is sued, and let's say that
that party is a manufacturer of some sort, whether it is a drug
or a consumer product. It doesn't really matter, but that party
has been sued. There hasn't been a finding that the product
injures the health, safety, you know, welfare of the general
public until the finding is made, and usually that is after
trial. Until that time, I think that corporate defendants have
an interest in protecting their property and their intellectual
property rights that are set forth in their documents.
And, again, just because someone is sued, they shouldn't
lose those rights to their documents until there has been some
sort of a finding. And even if there is a finding made, so even
if you get to trial and even if there is a ruling that a
product is defective or has caused harm in some way, there is
an appellate process, and sometimes an appeal after that one
that is permitted in the Federal courts. And so information,
again, should not be made public provided the corporate
defendant can substantiate that there is a compelling need to
maintain the documents as confidential. They just shouldn't be
public, and to make them public before that finding has been
made really would strip those corporate defendants of their
property rights and their documents.
It really isn't any different than someone's Social
Security Number or having your own personal information made
public, say your medical information made public. Corporate
defendants have the same interest in privacy to their documents
as you do in your medical records. And I think that that has to
be respected in the process and has to be respected by the
courts.
Mrs. Roby. Thank you. Mr. Toobin, never ask a witness a
question you don't already know the answer to, right? But I am
about to ask you for your perspective, and I don't actually
know what you are going to say. But you referenced in your oral
testimony and in your written testimony about the opportunities
that you have had to cover many very high-profile cases over
your career, some of which have been televised and some which
have not. And you were also present for the conversation we had
with the first panel where you heard from Judge Story that it
was mixed reviews on having cameras in the courtroom, but he
specifically cited behavior. And so I am curious based on your
experience in both televised trials and those that have not,
how you perceived those cameras in the courtroom affecting
behavior.
Mr. Toobin. It is a great question, Congresswoman, and I
can't, you know, give you a blanket answer for every case. And
I certainly understood the perspective of the judge who said,
well, maybe in certain circumstances people's behavior was
affected. I am not going to lie to you, not least because the
chairman told me it would be a crime if I did. But the O.J.
Simpson case was one where, I think, the cameras affected it,
and unfortunately that has had a poisonous effect on this whole
debate, even more than 2 decades later.
But with the exception of the O.J. Simpson case, which was
so aberrational in so many ways, my impression has been that
the cameras mostly are forgotten about after about a day in the
courtroom, that people just go about their business. And I
guess if there was one thing I objected to about the way the
judge characterized it, he said, well, there was a possibility
of a problem here and a possibility with the, you know,
witnesses and with the judge. You know, I think that is a
backward way of looking at it. I think the presumption should
be on openness. The presumption should be that people get to
see these trials, and if there are certain circumstances that
require, you know, closing a courtroom to cameras.
But the idea that every time the cameras have to justify
themselves and have to prove a negative, that people will not
be affected, I think that is not the right way to look at it.
And I think the public will never get the appropriate access if
that is the way we think about it.
Mrs. Roby. Well, again, my time has expired, and I just
want to thank the panel for, again, your candidness and
appreciate you all taking the time to be here today. So thank
you very much.
Mr. Johnson of Georgia. I will now yield 5 minutes to the
gentleman from Ohio.
Mr. Jordan. Thank you, Mr. Chairman. I appreciate you
having this hearing. Mr. Toobin, this morning on national
television, you said in talking about the whistleblower
complaint relative to the phone conversation the President of
the United States had with the president of Ukraine, and the
President's conduct relative to that country, you said
``Today's Justice Department has been corrupted.'' Is that an
accurate representation of the statement you made----
Mr. Toobin. It sure is.
Mr. Jordan. And you were making that relative to the
complaint that was filed and that you guys were talking about
in the, it was a group discussion on the show this morning. Is
that right?
Mr. Toobin. Yep.
Mr. Jordan. Okay. Have you read the Department of Justice
statement relative to this matter?
Mr. Toobin. I have.
Mr. Jordan. I might just read it here so we all have it.
``The President has not spoken with the Attorney General about
having Ukraine investigate anything relating to former Vice
President Biden or his son. The President has not asked the
Attorney General to contact Ukraine on this or any other
matter. The Attorney General has not communicated with Ukraine
on this or any other subject, nor has the Attorney General
discussed this matter or anything relating to Ukraine with Mr.
Giuliani.'' You are familiar with that.
Mr. Toobin. I am.
Mr. Jordan. And you stand by your statement that the
Justice Department----
Mr. Toobin. I sure do.
Mr. Jordan [continuing]. Is corrupt, and it is based on
what the whistleblower said in the complaint.
Mr. Toobin. No, it is not based entirely on that.
Mr. Jordan. I just asked you what you were talking about
the whistleblower, and you said it was based on the
whistleblower. You said the Justice Department is corrupt based
on what you saw in the complaint.
Mr. Toobin. It was based on the whistleblower's complaint.
It was based on the partial----
Mr. Jordan. Well, it was based on the whistleblower's
complaint----
Mr. Toobin. In part and if you let me finish my answer, it
is also based on the further----
Mr. Johnson of Georgia. I am going to interject and caution
my friend from Ohio that this subject is not germane to this
hearing, and it is disruptive, and it is disrespectful to our
process----
Mr. Jordan. Mr. Chairman, you have been through this----
Mr. Johnson of Georgia [continuing]. That we would have----
Mr. Jordan. Respectfully.
Mr. Johnson of Georgia. Well, no, let me finish.
Mr. Jordan. All right.
Mr. Johnson of Georgia. It is disrespectful to the process
that we would bastardize it for political purposes. It is
within my discretion to allow you to continue along this line,
and I am going to allow you to continue. But I just want to
caution you that in the future, I am not going to tolerate this
kind of imposition in my subcommittee hearings.
Mr. Jordan. All due respect, it is entirely germane. Plus I
would like my time----
Mr. Johnson of Georgia. It is my decision that----
Mr. Jordan [continuing]. Reset at 3 minutes, 35 seconds.
Mr. Johnson of Georgia. I will restore. Well, you have no
right to demand that.
Mr. Jordan. The heck I don't.
Mr. Johnson of Georgia. But I will----
Mr. Jordan. The heck I don't.
Mr. Johnson of Georgia. No, you don't.
Mr. Jordan. It was my time, and it was 3:35.
Mr. Johnson of Georgia. No.
Mr. Jordan. And I have every right to ask. The witness
actually in his opening statement brought up Ukraine. I didn't.
The witness said on national television the very statement I
said that he said on TV, and he said he agreed that that was an
accurate representation of what he said. He brought up Ukraine
in his opening statement.
Mr. Johnson of Georgia. I am going to----
Mr. Jordan. You know I have full discretion to ask the kind
of question I want----
Mr. Johnson of Georgia. I am going to----
Mr. Jordan. And I need 3 minutes and 35 seconds on the
clock.
Mr. Johnson of Georgia. I am going to restore your time.
Mr. Jordan. I appreciate it.
Mr. Johnson of Georgia. I am going to ask you that in the
future, you respect the integrity----
Mr. Jordan. This is----
Mr. Johnson of Georgia. Hold on. I want to respect the
integrity of my subcommittee hearings and not bring in this
extraneous issue that has----
Mr. Jordan. Would you yield for a question?
Mr. Johnson of Georgia [continuing]. That has no----
Mr. Jordan. Would the chairman yield for a question?
Mr. Johnson of Georgia [continuing]. That is not germane to
this particular----
Mr. Jordan. This is the Judiciary Committee. We have a
witness testifying in front of the Judiciary Committee who
today on national television said the Justice Department is
corrupt. If that is not relevant, tell me what is for this
committee.
Mr. Johnson of Georgia. No, this hearing is about secrecy
in the judicial----
Mr. Jordan. That doesn't change the fact that the witness
brought up Ukraine in his opening statement. This morning on
national television he said the Justice Department is corrupt.
Mr. Johnson of Georgia. Mr. Jordan. Mr. Jordan, if we are
going to have a discourse, I am going to need for you to listen
to me just as I am listening to you. I object to you bringing
this subject into his hearing because it is not germane, but I
am going to allow you to continue.
Mr. Jordan. Thank you, Mr. Chairman.
Mr. Jordan. But I am going to ask that in the future, you
limit yourself to this hearing intruding with extraneous
material such as this. And with that, I will yield to you----
Mr. Jordan. I will do my best, Mr. Chairman.
Mr. Johnson of Georgia. Well, thank you, and I will yield
you 3 minutes and 30 seconds to continue your questioning.
Mr. Jordan. A witness who said this morning this morning
the Justice Department is corrupt on national television,
basing that, at least in part, earlier said, basing it on the
whistleblower complaint. We need to remember a few things about
this whistleblower. He has no firsthand knowledge of the phone
call. He wasn't on the call. But we do know one thing about
this whistleblower, Mr. Toobin. He had a political bias. We
learned that from the inspector general. The inspector general
told us there was indicia of arguable political bias. Do you
know what that is? That is Washington speak for this guy hated
Trump. And yet that is the basis for our witness telling us
that the Justice Department is corrupt. Let me give you some
facts----
Mr. Toobin. Would you like an answer?
Mr. Jordan. I will in a second. Let me give you a few facts
just to give a little context to this, facts that happened in
the Justice Department prior to Bill Barr taking over the
Justice Department, in fact, things that happened in the Obama
Justice Department. Are you familiar with this, Mr. Toobin?
That the Obama Justice Department FBI spied on two Americans
associated with the presidential campaign? Are you familiar
with that? Are you familiar with the fact that the Obama
Justice Department FBI's opened a counterintelligence
investigation on the Republican Party's presidential candidate
and didn't tell the candidate they had an investigation, a
counterintelligence investigation, opened on him? Didn't tell
him what was going on? Are you familiar with the Obama Justice
Department's FBI allowed Peter Strzok and Andy McCabe to run
that investigation? Peter Strzok, the guy who said, don't
worry, Lisa, we will stop Trump. Trump should lose 100 million
to zero. Andy McCabe.
This is not Jim Jordan talking. This is now the inspector
general. The inspector general said Andy McCabe lied 3 times
under the oath. The inspector general, Michael Horowitz, said
that Peter Strzok should have never been allowed to head up
that investigation, not because he had this bias against
Clinton or bias against Trump in favor of Clinton, I should
say, but because he ran the Clinton investigation. He should
have been prohibited from running that. But the Obama Justice
Department allowed it to happen.
The Obama Justice Department allowed the Clinton Campaign,
paid for a document, the dossier, to be used to go to a secret
court, Mr. Toobin, to spy on one of the people associated with
the Trump Campaign. And the former FBI director leaked
information through his friend to the New York Times in an
effort to get a special counsel, which he was successful in
doing. And finally, I would just say this. On January 6th, the
Obama Justice Department went to the Trump Tower when it was
President-elect Trump, January 6th, 2017. They told the
President-elect he was not under investigation, all the while
trying to set him up as part of their Trump-Russia
investigation.
And, again, not my words. That was in the report released
just 3-and-a-half weeks ago by the inspector general, Michael
Horowitz. And yet today, based on a whistleblower that had no
firsthand knowledge, wasn't on the phone call, has a political
bias against the President, you are saying this Justice
Department is somehow corrupt.
Mr. Toobin. Well, if you want to just to talk about the
whistleblower, one of the extraordinary things about the
whistleblower was that in the whistleblower's report, there is
a summary of the phone call between the President of the United
States and the president of Ukraine. And, of course, as you
point out, the whistleblower did not have access to the partial
transcript that we have now seen. But notwithstanding the
absence of firsthand access to that transcript, the
whistleblower summary of that phone call was extremely
accurate, which suggests a great deal of credibility on the
part of the whistleblower, wouldn't you say?
Mr. Jordan. How do you know it is extremely accurate?
Mr. Johnson of Georgia. The gentleman's time has expired.
Mr. Jordan. Mr. Chairman, are you kidding me?
Mr. Johnson of Georgia. Yes, it has expired. The
gentleman's time has expired, and let me say that----
Mr. Jordan. Are we doing a second round?
Mr. Johnson of Georgia. It won't be a second round on this
line of inquiry.
Mr. Jordan. The heck it won't.
Mr. Johnson of Georgia. No, it won't. And I want the
gentleman to know that the next time he comes in----
Mr. Jordan. Would the Chairman allow one more question for
Mr. Toobin?
Mr. Johnson of Georgia. No, I want the gentleman to know
that the next time he comes into my subcommittee and disrupts
it in this way, that we----
Mr. Jordan. How is this disruptive?
Mr. Johnson of Georgia. Yeah, because you are off topic.
And so if this should happen again, I am going to be prepared
through our rules to hold you accountable. And with that----
Mr. Jordan. Mr. Chairman, the rules allow me to ask the
question I want to ask. The only thing disruptive is your
behavior in limiting and interrupting my questions. It was my 5
minutes. You interrupted. I got one more question that I would
appreciate being able to ask the witness.
Mr. Johnson of Georgia. With that, the gentleman is no
longer recognized, and I will proceed to----
Mr. Jordan. That is how the Democrats are going to----
Mr. Johnson of Georgia. I will proceed to round two of the
questions, and I have a question for Hostin and Mr. Toobin.
Gallup regularly surveys Americans' views of the Supreme Court,
and for years, approval or disapproval of the Court has fallen
on partisan lines. This partisan divide can depend on which
part has the most representation on the bench or even the
outcome of certain decisions from the previous term. I am
interested in both of your views on whether the Supreme Court's
secrecy plays a role in this divide and how providing video
access would help ease the divide.
Ms. Hostin. I think there is no question that providing
more transparency will help that. And this is purely anecdotal,
but I had the opportunity to interview Justice Sotomayor
recently in New York about 2 weeks ago at the 92nd Street Y
regarding her new book, her children's book. The audience was a
sold-out audience. It was filled to capacity. And I can tell
you while we did not address any current political issue, any
current legal issue, as per the Justice's wishes, there was a
line around the block of people that could not get into the
event, and they also waited for 3 hours, those that were
admitted to the event, for her signature on the books and just
to meet her.
And I stayed the entire event, and what I heard over and
over again was she just seems like a regular person. She is so
wonderful. She is so warm. They just wanted to get to know her.
And I think given an experience like that, if more Americans
were able to just see the justices on television, just to see
them doing the business of the Court, if we were able to pull
back the curtains, I think, as my friend, Jeffrey Toobin said
earlier, we would get that reaction more and more and more. I
mean, I think Justice Brandeis said it very clearly, ``Sunlight
is the best disinfectant.'' I think we would have much more
trust in our system if people were able to see the justices and
get to know them, and see the business of the Court.
Mr. Toobin. Mr. Chairman, I have a somewhat different view.
I really don't know if more access would mean more respect for
the Supreme Court. I don't have that ability to predict. My own
sense is that the reason the Court has fallen in public
estimation is that it is bound up, as so many institutions in
our country are bound up, with the partisan divisions that are
so familiar to us. It is increasingly seen as, you know, as
driven along partisan lines as the Congress, as the race for
the White House. And I think that is what really is driving the
diminished respect for the Court.
I see public access to the Court as an independent value. I
don't really see it as an instrument to make the Court more
popular. I think it is a good thing in and of itself.
Mr. Johnson of Georgia. I am sorry. I want to thank the
witnesses for coming today.
Mr. Jordan. Mr. Chairman, you get two rounds of questions
and I----
Mr. Johnson of Georgia. And with that, the hearing is
adjourned. The hearing is adjourned.
Mr. Jordan. We were told there was a second round of
questions. This is truly unbelievable the way you guys do----
[Whereupon, at 4:13 p.m., the subcommittee was adjourned.]
APPENDIX
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