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


 
                        FINANCIAL SERVICES AND GENERAL 

                       GOVERNMENT APPROPRIATIONS FOR 2010 

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


                                HEARINGS

                                BEFORE A

                           SUBCOMMITTEE OF THE

                       COMMITTEE ON APPROPRIATIONS

                         HOUSE OF REPRESENTATIVES


                      ONE HUNDRED ELEVENTH CONGRESS
                              FIRST SESSION
                                ________

       SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT 
                             APPROPRIATIONS

                   JOSE E. SERRANO, New York, Chairman

 DEBBIE WASSERMAN SCHULTZ, Florida      JO ANN EMERSON, Missouri
 ROSA L. DeLAURO, Connecticut           JOHN ABNEY CULBERSON, Texas
 CHET EDWARDS, Texas                    MARK STEVEN KIRK, Illinois
 ALLEN BOYD, Florida                    ANDER CRENSHAW, Florida
 CHAKA FATTAH, Pennsylvania
 BARBARA LEE, California
 ADAM SCHIFF, California            

 NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full 
Committee, and Mr. Lewis, as Ranking Minority Member of the Full 
Committee, are authorized to sit as Members of all Subcommittees.

                   David Reich, Bob Bonner, Lee Price,
                    Karyn Kendall, and Andria Oliver,
                           Subcommittee Staff

                                ________

                                 PART 6
                                                                   Page

 The Judiciary Fiscal Year 2010 Budget............................    1
 U.S. Supreme Court...............................................  137
 Testimony of Members of Congress.................................  175

                                   
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                                ________


         Printed for the use of the Committee on Appropriations





















                                 Part 6




















   FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2010


























                         FINANCIAL SERVICES AND GENERAL 

                        GOVERNMENT APPROPRIATIONS FOR 2010

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


                                HEARINGS

                                BEFORE A

                           SUBCOMMITTEE OF THE

                       COMMITTEE ON APPROPRIATIONS

                         HOUSE OF REPRESENTATIVES

                      ONE HUNDRED ELEVENTH CONGRESS

                              FIRST SESSION

                                ________

       SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT 

                             APPROPRIATIONS

                   JOSE E. SERRANO, New York, Chairman

 DEBBIE WASSERMAN SCHULTZ, Florida      JO ANN EMERSON, Missouri
 ROSA L. DeLAURO, Connecticut           JOHN ABNEY CULBERSON, Texas
 CHET EDWARDS, Texas                    MARK STEVEN KIRK, Illinois
 ALLEN BOYD, Florida                    ANDER CRENSHAW, Florida
 CHAKA FATTAH, Pennsylvania
 BARBARA LEE, California
 ADAM SCHIFF, California           
                                    

 NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full 
Committee, and Mr. Lewis, as Ranking Minority Member of the Full 
Committee, are authorized to sit as Members of all Subcommittees.
                   David Reich, Bob Bonner, Lee Price,
                    Karyn Kendall, and Andria Oliver,
                           Subcommittee Staff

                                ________

                                 PART 6
                                                                   Page

 The Judiciary Fiscal Year 2010 Budget............................    1
 U.S. Supreme Court...............................................  137
 Testimony of Members of Congress.................................  175

                   [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                                ________

                       U.S. GOVERNMENT PRINTING OFFICE

50-866                       WASHINGTON : 2009
































                        COMMITTEE ON APPROPRIATIONS


                   DAVID R. OBEY, Wisconsin, Chairman

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

                 Beverly Pheto, Clerk and Staff Director

                                  (ii)


























                          FINANCIAL SERVICES AND GENERAL 

                        GOVERNMENT APPROPRIATIONS FOR 2010

                              ----------                              

                                          Thursday, March 19, 2009.

                 THE JUDICIARY FISCAL YEAR 2010 BUDGET

                               WITNESSES

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

                  Chairman Serrano's Opening Statement

    Mr. Serrano. The subcommittee will come to order.
    We welcome our guests.
    And we welcome the audience. Am I allowed to say that?
    You know, when I sit in the Chair, in the Speaker's Chair, 
it is incredible. You are not allowed to say anything other 
than what you are supposed to say.
    There was once a resolution on the House floor by Mr. 
Capuano congratulating the Boston Red Sox on the World Series. 
So he says, ``And we do that, Mr. Chairman, Mr. Speaker,'' and 
I am in the Chair, ``with all due respect to you being a 
Yankees fan.'' And I said, ``You don't know the half of it.'' 
And they all went crazy, ``No, you can't say that. You are only 
supposed to say.'' Decorum.
    Today we will hear testimony on the fiscal year 2010 budget 
request of the Federal Judiciary.
    The Judiciary is an independent branch of government which 
submits its funding requests directly to Congress rather than 
going through the Office of Management and Budget. Therefore, 
we already have their budget for 2010 and can hold this 
hearing, even though the President's budget will not arrive 
until next month.
    The independent Federal Judiciary plays an important role 
in our constitutional system. Like other government 
institutions, the Judiciary needs sufficient resources to 
properly function and perform its constitutional duties. This 
subcommittee has made its priority to try to ensure sufficient 
funding for the proper functioning of the courts and their 
related functions included in the judicial budget, such as 
probation and pre-trial services and public defenders.
    For fiscal year 2010, the Judiciary is requesting $6.6 
billion in discretionary funding, an increase of more than $500 
million above fiscal year 2009. I look forward to discussion of 
this request today.
    Joining us to testify in support of the Judiciary's budget 
request is Judge Julia Gibbons of the U.S. Court of Appeals for 
the Sixth Circuit.
    We welcome you.
    Since 2004, Judge Gibbons has also served as Chair of the 
Budget Committee of the Judicial Conference. Judge Gibbons has 
testified before this subcommittee for the last few years, and 
we are pleased to have her again today.
    Also appearing before the subcommittee today is James Duff, 
the director of the Administrative Office of the U.S. Courts. 
Mr. Duff was appointed to this position in 2006 by Chief 
Justice John Roberts. In the late 1990s, he served for 4 years 
as administrative assistant and chief of staff to Chief Justice 
William Rehnquist.
    We welcome you both today, and we very much look forward to 
hearing from you about the resource needs of the Federal 
Judiciary.
    At this time, I would like to recognize my colleague and 
partner in this endeavor, Mrs. Emerson.

               Ranking Member Emerson's Opening Statement

    Mrs. Emerson. Thank you so much for appearing before our 
subcommittee today.
    An independent Judiciary that all of our citizens trust and 
respect which can resolve criminal, civil, and bankruptcy 
disputes in a fair and expeditious manner is a fundamental 
tenet of our Nation. In addition, the Judiciary's probation and 
pre-trial service officers supervise more than 200,000 
offenders and defendants living in our communities, a critical 
law enforcement and public safety mission.
    I have enormous respect for the essential work that the 
Federal Judiciary performs in administering our Nation's laws.
    This subcommittee will do our best to ensure that you all 
have the resources needed to accomplish your important mission. 
However, I want to mention that your budget request does 
propose the increase that Chairman Serrano mentioned of over 
$500 million, which is 8.6 percent above the fiscal year 2009 
omnibus level. As the witnesses know, the Federal deficit is 
projected to be $1.75 trillion this year. And the Congress will 
have some difficult spending decisions to make. But I assure 
you, I am going to work hard with the chairman to help make 
sure that the Federal Judiciary does have the resources to fill 
its constitutional duties.
    Judge Gibbons and Director Duff, you all have tough, 
thankless jobs that are so extremely important. And I thank you 
all so much for being here today and look forward to hearing 
your testimony.
    Mr. Serrano. Thank you so much.
    I ask my witnesses today, please, if you can keep your oral 
remarks to a maximum of 5 minutes, and your complete written 
statements will be submitted for the record.
    Thank you.
    Please proceed.

                    Judge Gibbon's Opening Statement

    Judge Gibbons. Chairman Serrano, Representative Emerson, as 
noted, I am Julia Gibbons of the Sixth Circuit Court of Appeals 
and Chair of the Judicial Conference Committee on the Budget. 
With me today is Jim Duff, Director of the Administrative 
Office of the United States Courts.
    Mr. Chairman, let me begin by thanking you and your 
colleagues for making the Judiciary a funding priority in the 
fiscal year 2009 appropriations cycle. The courts are in good 
financial shape for 2009. The funding you provided will allow 
us to finance continuing operations in the courts, as well as 
meet workload needs.
    We also appreciate your addressing some of our courthouse 
construction needs when you provided funds to the General 
Services Administration to complete the San Diego U.S. 
Courthouse Annex, the Judiciary's top space priority, and to 
construct a new courthouse in Cedar Rapids, Iowa, through the 
Disaster Assistance Bill.
    We are also grateful for several provisions of the 2009 
Omnibus Appropriations bill, most notably an increase in the 
non-capital hourly rate paid to panel attorneys who represent 
indigent defendants under the Criminal Justice Act and 
authority, consistent with that of the Executive Branch, to 
contract directly for space alteration projects not to exceed 
$100,000.


                         fy 2010 budget request


    Turning to our 2010 request, we are requesting $7 billion, 
an increase of $562 million over the fiscal year 2009 
appropriations assumed when the budget was transmitted to the 
Office of Management and Budget in October of 2008. We are in 
the process of reexamining our 2010 request based on final 
results contained in our 2009 enacted appropriations along with 
updated assumptions on caseload, fee collections, and 
carryover. I am confident that we will be able to reduce our 
request.
    Of the request before you, $482 million, or 86 percent, of 
the increase is for standard pay and nonpay inflationary 
adjustments and for adjustments to base reflecting increases in 
our space, information technology, defender services, and court 
security programs. The remaining $80 million of the requested 
increase is primarily for, first, 754 court support staff 
positions, largely in probation and pre-trial services offices 
and bankruptcy clerks' offices where the most critical workload 
increases exist; second, for program improvements in our 
information technology program; and third, for an enhancement 
in our defender services program to increase the hourly rate 
paid to private panel attorneys.
    We are appreciative of the panel attorney hourly rate 
increase you provided us this year, but as we said before and 
as discussed in my written testimony, we believe an additional 
increase is warranted.


                          the nation's economy


    Let me talk briefly about a topic in the forefront of all 
our minds, our country's economy. A court system that is 
adequately funded and operates sufficiently will be an anchor 
in these uncertain times. The economic situations we face 
affect all aspects of the Judiciary's work. Courts provide a 
forum for individuals or companies who are forced to file 
bankruptcy proceedings; for those who have suffered losses and 
are seeking civil monetary remedies; and for those accused of 
crimes.
    Not surprisingly, we have seen a marked increase in 
bankruptcy filings, and we also anticipate an impact on civil 
and criminal workload as a result of the economic downturn.
    Another area of continued growth is probation and pre-trial 
services, not only in terms of absolute numbers but also in the 
difficulty of the work due to the type of person being 
supervised. Today, over 80 percent of the offenders under 
supervision have served prison time as compared to 27 percent 
20 years ago. And now almost two-thirds of the offenders have 
been convicted of narcotics trafficking, or violent sex or 
weapons offenses, rather than the 38 percent 20 years ago.
    The offenders coming out of prison on supervised release 
generally have even greater financial, employment, and family 
problems than when they committed their crimes and they often 
lack adequate life skills to transition back into society 
smoothly. To ensure successful re-entry into the community, the 
Judiciary is developing a results-based management and 
decision-making framework for its community supervision program 
to determine the best methods for reducing recidivism and 
fostering long-term positive changes in individuals supervised.


                            cost containment


    Our budget request reflects our continuing efforts to 
contain costs. We are now more than 4 years into an intensive 
effort to reduce costs throughout the Judiciary, and our cost 
containment program is producing results.
    To date, we have achieved the most significant savings in 
our space and facilities program through an ongoing rent 
validation project in which court staff analyze the General 
Services Administration (GSA) rent billings and identify 
discrepancies so GSA can correct the bills and give us credits. 
GSA has cooperated with us in this endeavor.
    In the information technology area, we are consolidating 
computer servers throughout the country which generate savings 
from reduced maintenance and equipment replacement costs.
    We are also containing personnel costs. At its September 
2007 meeting, the Conference approved recommendations from a 
major compensation study which will slow the growth in 
personnel costs throughout the Judiciary.
    I assure you that containing costs is a top priority of the 
Judiciary.
    While we look to contain costs where feasible, we continue 
to make investments in technologies that improve Federal 
courthouse operations, enhance public safety, and increase 
public access to the courts.
    One of the innovations we are piloting is an electronic 
reporting system where defendants and offenders under 
supervision fill out routine reporting information at a kiosk 
prior to meeting with the probation officer. The officer can 
then spend more quality time meeting with the client and focus 
on supervision issues instead of filling out paperwork.
    The eJuror system is another pilot project that gives 
potential jurors the option of filling out their jury 
questionnaire electronically and also provides 24-hour-a-day, 
7-day-a-week access to obtain updated jury service information. 
This is a time and cost saver for the courts and for the 
jurors.
    I will conclude at this point and ask that my statement be 
placed in the record along with the statements of the 
Administrative Office of the U.S. Courts, the Federal Judicial 
Center, the U.S. Sentencing Commission, the U.S. Court of 
Appeals for the Federal Circuit and the U.S. Court of 
International Trade.
    And I am, of course, happy to answer your questions.
    [The information follows:]

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    Mr. Serrano. Thank you.
    Mr. Duff.

                   Director Duff's Opening Statement

    Mr. Duff. Good morning, Chairman Serrano, Representative 
Wasserman Schultz, Representative Emerson. I am pleased to be 
here this morning to present the budget request for the 
Administrative Office of the U.S. Courts (AO) and to support 
the overall budget request for the entire judicial branch.
    I will also make some brief remarks and ask that my written 
testimony be included in the hearing record.
    I join Judge Gibbons in thanking you and the committee for 
the support that you provided the Judiciary in the fiscal year 
2009 appropriations bill. It was very much appreciated.
    The AO was created by Congress in 1939 to assist the 
federal courts in fulfilling the mission to provide equal 
justice under the law. It is a unique entity in government. It 
doesn't operate as a headquarters for the courts, but rather, 
court operations are decentralized. The AO does, however, 
provide administrative, legal, financial, management, program, 
security, information technology, and other support services to 
all federal courts. We also support the Judicial Conference of 
the United States and its 25 committees. The AO has evolved 
over the years and matured to meet the needs of the judicial 
branch. Service to the courts, however, remains our basic 
mission.
    We collaborate with the courts in many ways to improve the 
operation of the Federal Judiciary. A central focus of the AO 
continues to be the successful day-to-day management, 
particularly financial management and stewardship, of court 
resources that you supply us with. In that regard, during the 
past year, we had 20 court unit executives and budget managers 
who worked with AO staff to complete a major undertaking, and 
that was the delivery of a National Court Budget Management 
Training Program to court units across the country. Over a 3-
year period, more than 1,000 court employees completed this 
mission-critical training. It is training to manage the local 
court budgets and to ensure that they keep pace with increased 
authorities that have been delegated to the courts.
    The program emphasized practical, hands-on budget 
management business processes as well as legal authorities, 
procurement regulations, and maximizing available resources.
    I want to also mention briefly our oversight and audit 
function. The AO plays a vital role in the oversight of the 
Judiciary's use of funds and conducts financial audits, program 
audits, reviews, assessments, and evaluations to promote 
effective and economical practices in the Administrative Office 
and in court operations.
    In fiscal year 2008, the AO conducted 540 onsite court 
reviews; 151 court and other financial audits; and 232 debtor 
audits, as required by the BAPCPA, the Bankruptcy Abuse 
Prevention and Consumer Protection Act of 2005.
    The AO recently began implementing an automated internal 
control program to enhance courts' accountability, and this 
program will enhance the internal control capabilities of court 
unit executives by identifying potential issues before they 
become a problem.
    The program will also assist court unit executives in 
protecting court funds and precluding improper disbursements by 
monitoring the separation of duties and reporting violations so 
corrective actions can be taken immediately.

                        COURTHOUSE CONSTRUCTION

    I next want to address the status of our courthouse 
construction program. We very much appreciate the funding you 
made available to replace the Cedar Rapids Courthouse, which 
was destroyed this past year in the flooding in the Midwest, as 
well as the additional funding we received to complete the San 
Diego Courthouse Project, which, as you know, has been very 
much needed.
    We also appreciate your efforts on our behalf during 
consideration of the stimulus bill which provides no less than 
$300 million that could be used to construct U.S. courthouses 
and Federal buildings. In December, the Judiciary and GSA 
developed a list of shovel-ready courthouse projects and 
provided it to the Congress. We are eager to see the final 
project list that GSA sends to you for your approval.
    With five courthouse projects that are ready to begin the 
construction phase--they have already completed the site and 
design work--I am hopeful that the full $300 million will be 
allocated for the construction of courthouse projects on our 5-
year plan.
    The cost of the shovel-ready courthouse projects total 
$1.239 billion. Unfortunately, the $300 million in the stimulus 
bill will not fund all of these projects. We have, therefore, 
asked the Administration to include funding for the GSA in its 
revised 2010 budget request to support the construction of the 
shovel-ready projects that remain.
    In testimony before the House Transportation and 
Infrastructure Committee, the GSA stated that more than one-
half of the total expenditures for construction of a courthouse 
would benefit a local economy in the form of salaries for 
construction workers. In other words, if the full $1.2 billion 
for the construction of these five courthouse projects were 
funded, there would be an infusion of more than $600 million in 
construction-related salaries, providing an estimated 5,397 
jobs in these five local communities over the next 3 years.
    While providing an economic boost to the States in which 
they are located, these courthouse projects were requested in 
these localities to address serious security, public health and 
safety deficiencies as well as critical space shortages.
    So I hope you will consider funding the new courthouse 
construction projects in your fiscal year 2010 appropriations 
bill. It will be a real boost to local economies.
    Earlier this week, the Judicial Conference approved the 
Judiciary's 5-year Courthouse Construction Plan for Fiscal 
Years 2010 Through 2014, which I ask to be included in the 
record.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

             ADMINISTRATIVE OFFICE'S FY 2010 BUDGET REQUEST

    Last, I want to talk about, very briefly, the AO's budget 
request.
    The fiscal year 2010 appropriations request for the 
Administrative Office of the U.S. Courts is $84 million. That 
is an increase of $5 million over the last year. For the third 
year in a row, the AO continues to operate under a no-growth 
current services budget.
    And Representative Emerson, you mentioned this morning the 
difficult tasks you all will have this year. I wanted to 
mention to the committee that when I became Director of the AO, 
one of the first things I did was impose a hiring freeze to 
assess our services. And the only new hires I have approved 
since being there and lifting the initial hiring freeze have 
been to backfill vacancies that are most critical to our 
mission.
    But I am pleased to report to the committee this morning 
that, since becoming Director, our staffing levels at the AO 
have been reduced below what they were 15 years ago. So we have 
tried to be good stewards of the funds you have provided to us.
    The requested increase for the AO this year is exclusively 
to cover base adjustments and maintain current services. And 
more than half of the increase is to annualize the fiscal year 
2009 pay adjustment and fund the proposed 2010 COLA for our 
employees. The balance is for inflationary adjustments.
    Chairman Serrano and members of the subcommittee, I 
recognize that fiscal year 2010 is going to be a very difficult 
year for you and your colleagues, and we will continue to work 
with you to meet reasonable budget needs. And I appreciate your 
past support of the Administrative Office and hope you will 
continue to keep in mind the role the AO plays in supporting 
our courts.
    I thank you again for the opportunity to be with you this 
morning.
    [The information follows:]

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          IMPACT OF 2005 BANKRUPTCY ACT ON BANKRUPTCY FILINGS

    Mr. Serrano. We thank you both for your testimony.
    I would like to start off by asking you some questions 
about the whole bankruptcy issue and bankruptcy courts. I will 
put together some questions basically to let us know if the 
2005, how the 2005 changes in law have affected the workload. 
My understanding is that, while less bankruptcy filings have 
taken place, each of those filings, in fact, have become more 
complex and more time-consuming.
    Secondly, in the last year, with the deep recession in 
place, has that affected dramatically the whole bankruptcy 
issue? And how does that affect the staffing needs and the 
workload, at the different courts?
    And lastly, what role does the court have in assisting 
people who are considering bankruptcy? Is there an educational 
role that the courts can play?
    Judge Gibbons. I will take a shot at that three-pronged 
question.
    First, the 2005 statute, while creating a disincentive to 
filing and thus resulting in reduced filings, did make the 
cases that were filed more time-consuming to handle. We see 
that in several objective ways. One is that the number of 
docket entries after the new statute was just about the same as 
it was before the statute's enactment even though the number of 
cases filed was much smaller.
    Also, the number of notices that the courts were required 
to send went up, as did the number of orders that bankruptcy 
judges were required to enter.
    There are some underlying reasons for that. For example, 
the new credit counseling requirements under the act, the Means 
Test, which sends more people into chapter 13 instead of 
chapter 7, require additional work; and there are more pro se 
filings in the bankruptcy courts now probably because of the 
attorney liability provisions of the Act. And, the pro se cases 
bring with them their own element of difficulty.
    Ever since the filings hit a low, just after enactment of 
the Act, they have been moving back up. We have seen some 
rather dramatic increases recently, as one might expect. We 
have seen about a 30 percent increase for the 20-month period 
ending June 2008. We expect another 27 percent increase for the 
12-month period ending June 2009, and another 13 percent 
increase for the 12-month period following that. Of course, 
these future figures are simply projections, and the 13 percent 
figure, in particular, might be open to question depending on 
how we see the economic situation unfold.
    Finally, in terms of education and help, for people who are 
considering bankruptcy, yes, the bankruptcy courts have seen 
that they have a role. Of course, the credit counseling, which 
I have already referred to, is built into the new statute. But 
there is also a program called Credit Abuse Resistance 
Education (CARE) which now operates in all 50 States. It was 
initiated by a bankruptcy judge who then enlisted the help of 
bar organizations and other bankruptcy judges. It provides 
education and counseling.
    In addition, many bankruptcy courts make an effort to get 
into the high schools to counsel students about financial 
pitfalls that may lie ahead.
    Mr. Duff. I would just add that there may be regional 
differences in the bankruptcy filing increases that we are 
starting to experience, and we will keep our eyes on that as 
well.
    Mr. Serrano. You said there may be or you already know 
there are?
    Mr. Duff. It looks like it is trending that way. There are 
pockets in the country where there are many more filings than 
in other areas of the country.
    Mr. Serrano. What areas would that be?
    Mr. Duff. Major urban areas, certainly, we have seen 
increases. But, the figures aren't firm enough yet to give a 
report.
    Mr. Serrano. I don't know if you mentioned this and I 
missed it. We spoke about the percentage increase, but in hard 
numbers, do we know, for instance, over the last year or so how 
many filings have taken place?
    Judge Gibbons. Yes, we do.
    I have the annual filings since 2005, on a chart, and 
perhaps it would be illustrative if I gave you the totals for 
each year: 2005, 1,783,422; 2006, 1,107,874, and these are the 
fiscal year figures, so the 2006 figure includes the huge peak 
in filings that occurred right before the statute took effect 
in October 2005; 2007, 802,408; 2008, 1,042,993; and year-to-
date in fiscal year 2009, 602,358. For March, the month we are 
now in, the projected filings are 115,000.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    Mr. Duff. And, as to the regional differences, we have seen 
dramatic rises in foreclosure rates most notably in California, 
Florida, and Nevada, and in States that have experienced surges 
in unemployment, most notably Ohio and Michigan. So we already 
have seen trends there.
    Judge Gibbons. I might add, too, with respect to education, 
that on our Judiciary Web site, there is a primer on 
bankruptcy, called ``Bankruptcy Basics,'' with information for 
the general public on bankruptcy laws, the different chapters, 
and answers to some frequently asked questions. There is also a 
program designed for high school students, called ``Your Day in 
Bankruptcy Court.'' And it is intended to be an educational 
program about the wise use of credit, the consequences of 
filing bankruptcy, and the like.
    Mr. Duff. In addition, the projections for March this year 
are the highest they have been since BAPCPA, the Bankruptcy Act 
was enacted in October 2005.
    Mr. Serrano. Thank you.
    Since my question, Mrs. Emerson, was really three questions 
in one, I will now recognize you.

                  JUDICIAL EXPERTISE IN COMPLEX CASES

    Mrs. Emerson. Thank you, Mr. Chairman.
    I might as well stay on the financial, economic frontier. 
And obviously, with such complex financial markets and 
spectacular cases of fraud associated with them, like Mr. 
Madoff's Ponzi scheme, can you explain to us how judges keep 
their skills and expertise current in order to hear and 
understand criminal and civil corporate fraud cases brought to 
them by DOJ and the Securities Exchange Commission? Do you all 
get tutorials on the financial markets? And I don't mean that 
at all disrespectfully, but seriously, they are such complex 
issues.
    I am just curious, you know, if you don't usually deal with 
credit default swaps or collateralized debt obligations or 
mortgage-backed securities, and suddenly, you know, these are 
terms all of us have had to learn, or learn more about, in the 
last many months, how does that work for you all on your side?
    Judge Gibbons. Well, Federal judges are among the last 
remaining generalists in the law, so we are not specialists, 
and obviously, we do not know everything about every kind of 
case when it walks in the door.
    But, if you were, say, a district judge, you are accustomed 
to having cases of a very complex nature that you may not have 
seen before come in the door, whether it is the complex patent 
case, the complex environmental case, or the complex financial 
or commercial case.
    In the financial commercial area, though, this sort of 
complex litigation is really a staple of the civil side of what 
Federal courts do, perhaps not to the extent or the degree that 
may be seen in the coming months and years, and certainly, some 
courts have more experience in that area than others. But 
judges are used to cases where they have to get up to speed 
quickly.
    The process of the case unfolding typically provides a good 
opportunity for the judge to do that as the parties file 
motions and the judge has an opportunity to read--typically not 
only the briefs in the case--but also much of the underlying 
discovery, depositions, affidavits, things of that sort. And, 
if the case is tried, basically each side has expert witnesses. 
The judge also has the authority, under our rules, to appoint 
an independent court expert who is not aligned with either 
party in the case if that is necessary.
    I referred to financial fraud cases as being a staple on 
the civil side. But in some districts, judges have pretty 
extensive experience with those on the criminal side as well, 
although I would expect that some of the fraud that has been 
tried criminally will be of a simpler nature than those we may 
be seeing in the coming months and years.
    But that is pretty much how it works. The Federal Judicial 
Center does provide some publications that are helpful to 
judges. I don't know specifically if there are any in this 
particular area or not.
    Mr. Duff. Actually, there was a program this past year on 
financial markets that the Federal Judicial Center put on for 
judges who wished to attend, and the feedback on that was very 
positive. It was very helpful on terminology and putting in 
perspective what was happening. And the FJC, the Federal 
Judicial Center, received very high marks from the judges who 
did attend.
    Mrs. Emerson. I appreciate that. Thank you.
    Mr. Chairman, do I still have time? I don't think I have 
talked for 5 minutes yet.
    Let me switch over to the defender services, and I must say 
for full disclosure that I do have an attorney husband.
    Mr. Duff. Our condolences.

                  PANEL ATTORNEY HOURLY RATE INCREASE

    Mrs. Emerson. And while he doesn't do, he is not a trial 
lawyer. Well, he is. He considers himself a trial lawyer. I 
don't know if he really is or not, but he spends a lot of time 
at court.
    Mr. Serrano. As a public disclosure, we are both law 
makers.
    Mrs. Emerson. But with regard to the requested increase for 
public defenders up to an hourly rate of $142 for your panel 
attorneys, I understand the fact that they have got to pay 
overhead and the like. And so I am empathetic, to some extent, 
because obviously, part of my own income is dependent on those 
sorts of things as well.

                   GEOGRAPHICAL PANEL ATTORNEY RATES

    But do you make any differentiation between regions, 
geographical regions of the country? For example, in Cape 
Gerardo, Missouri, I know that the going rate for an attorney 
is nowhere close to what it is in Washington, D.C., nor is St. 
Louis as close to Washington, D.C., as some might think. And so 
I don't know, how do you adjust those rates accordingly?
    Judge Gibbons. We have considered the possibility of 
geographic-based rates and, for various reasons, have concluded 
that that would not be appropriate for the Judiciary at this 
time.
    First, we think it would be difficult to develop the 
objective criteria that would be necessary. We also think it 
would be administratively quite burdensome to attempt to pay 
attorneys at one rate in one place and at another rate in 
another.
    It would make it more difficult to project our annual 
funding requirements as well.
    But you are correct that panel representation would 
definitely be more attractive to an attorney in an area where 
overhead fees were not generally so high. It is an issue we are 
aware of. We have looked at it. I am sure we will continue to 
look at it. But up to this point, we have not decided that it 
is the way to go.
    Mrs. Emerson. Let me just say that, you know, Federal 
employees, for example, get paid differently in different 
locations. My son, who is a lieutenant in the Army, you know, 
gets a temporary duty assignment somewhere, and he gets a 
certain pay for that particular area, but if he goes somewhere 
else, it is a lower pay. And so, I mean, there are certain 
criteria in place to make those decisions.
    I understand that sometimes it is cleaner just to do 
across-the-board. But there are different ways to do it.
    And in my congressional district, actually, for my budget, 
to go back and forth to my district, it is less than or 
probably more than the Chairman's because I live farther. So--
--
    Judge Gibbons. Well, the locality pay tables that are used 
for many Federal employees might provide a way of doing it. 
Within the Judiciary, we have employees who are subject to 
locality pay and others, like judges, who are not. And so far, 
the panel attorneys, they are not.
    Mrs. Emerson. I would just ask that perhaps it might be a 
consideration if money is going to be an issue or given our 
budget constraints.
    Judge Gibbons. I think that this hourly rate, although we 
are very appreciative for the increase, this is a pretty low 
hourly rate, even for a lawyer in a fairly small town or rural 
area these days. It certainly is a low rate for a small- to 
medium-sized city.
    So I think it is a low rate almost across-the-board, if not 
entirely across-the-board.
    Mrs. Emerson. Thank you.
    Mr. Serrano. Thinking about your son, I remember when I was 
in the Army, they would say, if you got assigned to Hawaii, you 
should pay the Army for sending you to paradise.
    Mrs. Emerson. Unfortunately, he has not gone to Hawaii.
    Mr. Serrano. Mr. Culberson.

                            JUDGES SALARIES

    Mr. Culberson. Thank you, Mr. Chairman.
    Thank you very much for your service.
    I know how difficult it is; one of the things I know that 
my colleagues hear commonly, as I do, is the difficulty that 
the judges have with the salary levels. I hear constantly about 
the problems of lack of pay raises over the years.
    I wanted to ask you to comment briefly on that. How 
substantial a problem do you think that is and how often do you 
hear about it from judges across the country?
    Mr. Serrano. Well, it is a very substantial problem, and I 
hear about it every day.
    Mr. Culberson. What effect does it have?
    Mr. Duff. The effect on their morale has been very, very 
significant within the Judiciary. I think it is having an 
impact on life tenure on the bench. We are seeing more and more 
judges leave the bench in record numbers, not to retire but to 
do other things. And those other things involve higher pay, 
usually, almost nine-tenths of the time. If they achieved the 
rule of 80, which is age 65 and 15 years of service, they will 
leave for more lucrative positions.
    Mr. Culberson. What is a judge's salary today?
    Mr. Duff. Well, now, after the COLA this year, a District 
Court judge makes $174,000 a year. Courts of Appeal judges make 
a little more. Judge Gibbons knows the precise number, I am 
sure.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

                         2009 JUDICIAL SALARIES
------------------------------------------------------------------------
                           Office                               Salary
------------------------------------------------------------------------
Chief Justice..............................................     $223,500
Associate Justices.........................................      213,900
Circuit Judges.............................................      184,500
District Judges............................................      174,000
Judges, Court of International Trade.......................      174,000
Judges, Court of Federal Claims............................      174,000
Bankruptcy Judges..........................................      160,080
Magistrate Judges (Full-Time)..............................      160,080
------------------------------------------------------------------------

    But it is having an impact on life tenure. It is having an 
impact on recruiting to the bench.
    Mr. Culberson. Record number of retirements I heard you 
say.
    Mr. Duff. Record number, well, we have had, I think there 
is now 55, I will get the exact number for you, former judges 
are in arbitration services now which is more lucrative. They 
are essentially doing some of the same kinds of things that 
they did on the bench but in private arbitration services.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    Mr. Culberson. That would be very helpful. I would love to 
see that. I know the committee would also be interested. I know 
the judge cannot necessarily advocate for that one way or the 
other. So I am glad you spoke up, Mr. Duff.
    Our chairman, I know, is very gracious with his time, and 
we do have a limited amount of time, so forgive me for diving 
back in.

                IMMIGRATION ENFORCEMENT AND PROSECUTION

    In another area, and I know, Judge, I would like to, if I 
could, direct this to you, Judge Gibbons, is, it is self-
evident that uniform and equal, uniform and equal 
administration of justice is vital to effective deterrent to 
criminal activity. And where you see the law enforced, you see 
decline in criminal activity.
    I was particularly struck on page 12 of your testimony that 
you point out that Congress has provided additional resources 
to fill Assistant U.S. Attorney positions, particularly in the 
five judicial districts along the southwest border, have had an 
impact on criminal case filings and that you are seeing a 
decline in criminal case filings. Nationwide, you said you are 
projecting a 4 percent decline in criminal filings.
    And I know from personal experience, I represent Houston, 
Texas. I don't represent the border. But I have worked very 
closely with my colleagues from Texas in both parties, I want 
to stress, particularly Congressman Ciro Rodriguez, he and I 
and Henry Cuellar were elected together in 1986 to the Texas 
House. And I have worked arm in arm with these guys and with 
the prosecutors, the judges, along the southwest border. Judge 
Alia Ludlum, a district judge in Del Rio, finally, the folks in 
Del Rio got tired of the crime and the drugs that spilled over, 
and Judge Ludlum actually initiated, along with the help of the 
sector chief there, Mr. Chairman, they got together, and they 
noticed a lot of the U.S. Attorneys were going home like 4 
o'clock in the afternoon, and crime was running rampant in the 
streets of Del Rio.
    So she initiated, got everybody together in the room and 
said, we are going to enforce the law. We are going to do this 
uniformly and consistently, and you guys are going to work the 
hours. And it was a cooperative effort, Mr. Chairman, with the 
Border Patrol, the sector chief of the Border Patrol, the U.S. 
Marshals, the sheriff, the prosecutors. The magistrates were a 
critical part of this process as well. And the local community, 
they did it with the mayor, the city council, the 
commissioners, the Chamber of Commerce. The local community was 
actively involved, and everybody supported it, and they 
initiated a program called Operation Streamline in the Del Rio 
sector with the overwhelming support of the local community, 
which is 96 percent Hispanic, in the border communities. As a 
result, the crime rates dropped about 80 percent in Del Rio. 
And then with essentially existing personnel, and however, 
needed a few additional prosecutors. Border Patrol assigned 
those. I also serve on the Homeland Security Subcommittee.
    And then it was rolled out about a year and a half ago in 
the Laredo sector. They have seen a 60 percent drop in the 
crime rate and a corresponding drop in the number of criminal 
cases. And the streets are peaceful. Kids can play in the 
streets and don't have worry about it. Local community loves 
it. We are trying to get it rolled out in Laredo--in the Rio 
Grande Valley sector. Again, this is all being done by the 
local community, local elected officials. Everybody is arm-in-
arm.
    What I am leading up to, Judge, is that in the Tucson 
sector--or let us say, if you cross the border in between Del 
Rio, Lake Amistad and Zapata County in Texas, you have about a 
90 percent chance of being arrested, prosecuted, and 
incarcerated for a brief period of time, and deported under 
existing law. And the officers, obviously, use good sense. They 
are not going to arrest women and children. They use good 
judgment, as you would expect an officer with a heart to do.
    But the effect has been that they actually have vacancies 
in the local jails, in the beds, and that people don't cross in 
Del Rio and Laredo.
    However, I wanted to ask you about, and bring this to the 
attention of the committee as well, in the Tucson sector, as a 
dramatic contrast, if you cross the border in the Tucson 
sector, you have a 99.6 percent chance of never being 
prosecuted if you are carrying less than 500 pounds of dope. 
They actually had the U.S. Attorney there, who is no longer 
there, she was--I think there is a vacancy in Tucson.
    What I wanted to ask, Judge, is these additional 
prosecutors, the additional resources that have been assigned 
to the five judicial districts along the southwest border and 
the U.S. Attorney's Office, the Department of Justice, Mr. 
Chairman, told me that if last year's budget request was 
fulfilled, and it was actually increased a little bit in the 
omnibus, that they would have ample resources to enforce, to do 
Operation Streamline, the zero-tolerance policy, up and down 
the entire border.
    I wanted to ask, Judge, number one, are you familiar with 
the complete lack of law enforcement in the Tucson sector, 
number one? And Judge Roll, by the way, has been very 
supportive and helpful in trying to find a solution to this. 
But the U.S. Attorney absolutely refuses to prosecute, not just 
cases from the Border Patrol, Mr. Chairman, but DEA arrests, 
FBI arrests, ATF arrests.
    They actually got on video, they had a caravan of vehicles 
coming over from Mexico carrying dope. And they had this all 
with the remote, the UAV, very expensive vehicle, like the 
aircraft like they use in Afghanistan. I saw this myself at 
Fort Huachuca in Arizona. Had the video, gave it on a silver 
platter to the prosecutor, carrying I don't know how many 
hundreds, thousands of pounds of dope. The Border Patrol, DEA, 
risked their lives at 2 o'clock in the morning to go in there 
and arrest these guys; snakes, cactus, guys are carrying 
weapons, heavy armor, you know, heavy artillery. They arrest 
them, and the U.S. Attorney says, ``No. I am not going to 
prosecute them.''
    Thank you for your indulgence. I know the Chairman has 
allowed me a little extra time.
    But, Judge, it is an important question, because where the 
law is enforced, the local community loves it, the people are 
safe, kids can play in the streets. Yet in Tucson, it is wide 
open.
    What, if anything, can you do to help us make sure that the 
law is enforced in the Tucson sector? It is absolutely the Wild 
West out there today.
    Judge Gibbons. I don't have any information about differing 
crime rates in different locations along the border, nor do I 
have any information about how particular U.S. Attorneys decide 
their own prosecutorial policy, but I do have a little bit of 
information about Tucson.
    And the information that I do have suggests to me that 
perhaps some of your concerns are being addressed. Although, I 
can't really speak to the way in which you phrased the 
question.
    The information I have about Tucson indicates that the U.S. 
Attorney's Office is working to fill 21 new positions 
authorized in May 2008 for the purpose of pursuing immigration 
prosecutions. Despite the fact that some of these positions are 
still vacant, the criminal felony filings in January 2009 for 
the Tucson division were up 72.2 percent over January 2008. And 
it is anticipated that that number will continue to rise as the 
vacant assistant positions are filled.
    I believe that Tucson does participate in a variation of 
Operation Streamline, and all of these border places of holding 
court seem to have adopted different versions and different 
local variations on Operation Streamline.
    When I use the term ``operation streamline,'' I am 
essentially using it to refer to a program under which large 
numbers of petty offenses are handled very expeditiously.
    Mr. Culberson. Yes, ma'am, that is correct.
    Judge Gibbons. Often it is same-day handling when the 
defendant appears, makes an initial appearance, enters a plea 
and is sentenced the same day. No formal pre-sentence is 
prepared, but rather the judge relies on a record check.
    The process is characterized typically by close cooperation 
by the U.S. Attorney, the Federal defender and the court 
because, otherwise, that sort of handling could not occur.
    In Tucson, the particular program, which is called Arizona 
Denial Prosecution Initiative, and it exists apparently in 
other Arizona locations as well, has a variation of this. In 
2008, a total of 13,786 petty offenses were handled in Tucson; 
70 cases prosecuted each day. That is the information I have. I 
can't speak to the particular situation there any further, 
really.
    Mr. Culberson. It needs your attention. I know that, in 
your role as a----
    Judge Gibbons. We are, of course, always concerned about 
what happens in our courts. But I am sure you are aware that 
the Department of Justice does not work for us nor do 
individual U.S. Attorneys, and we are the recipients of the 
cases they decide to bring rather than the originators of them.
    Sometimes judges do feel it is appropriate to wander into 
that a little bit, and sometimes U.S. Attorneys think those 
judges are meddling.
    Mr. Culberson. The 76 percent increase you referred to, 
there were only 76 prosecutions. Out of 800,000 people arrested 
by the Border Patrol, only 76 of those 800,000 were prosecuted 
by the U.S. Attorney in Tucson in January 2008. So that is the 
number, 76 percent increase. We just need your help.
    Judge Gibbons. I have kind of exhausted my statistics.
    Mr. Culberson. But it needs your attention is all I am 
asking.
    Thank you for your indulgence, Mr. Chairman.
    Mr. Serrano. Well, we may have a difference of opinion.
    When you say ``we need your help,'' we have to be careful 
with that because the neutrality of the court is in question. 
The court is supposed to deal with what comes before them, not 
encourage anything to come before them.
    I think that you might have a strong case about people not 
being prosecuted. But that certainly is not the role of the 
court. It is the role of the law enforcement agencies that are 
not prosecuting them.
    And there are many instances where I want more prosecution, 
but the very minute the court begins to discuss whether or not 
there should be prosecutions, I am not a lawyer, but that is a 
mistrial right there if this was a trial.
    Anyway, let me--but I don't downplay the issue around the 
border and the fact that the gentleman has been steadfast, from 
all of the time that I have seen him in Congress, speaking on 
the issue of prosecution and taking care of the border.
    Mr. Culberson. Fair and compassionate----
    Mr. Serrano. And I respect that. Fair and compassionate is 
important.
    Mr. Culberson. It is.

                  PANEL ATTORNEY HOURLY RATE INCREASE

    Mr. Serrano. Let me go back a second to the issue of panel 
attorneys.
    I want to know about the rationale for further increasing 
the Judiciary budget this year. I understand that you conducted 
some research in the past couple of years regarding fees for 
panel attorneys. What did the research find? What would be the 
effect of not providing any further increase?
    Judge Gibbons. We did a survey a little while back. But, in 
terms of talking to you about the increase, we think that we 
should not rely on a survey that was done before the $110 rate 
had been tried out. I think you might have been referring to 
the one we talked about last year.
    However, we did a survey in January of 2009 of panel 
attorneys, and we learned that their hourly average overhead 
cost is $70 an hour, which means that the part of that $110 
that will be going in their pockets is $40 an hour. We learned 
also from our 2009 survey that retained lawyers on average 
charge $246 an hour. Obviously, a big spread in terms of what 
is going into the pocket of the lawyer after overhead is paid.
    We also know that the Department of Justice pays $200 an 
hour for lawyers with 5 years experience who represent Federal 
employees in civil and criminal matters.
    We know, historically, in a general way that we have had 
trouble in many locations attracting qualified lawyers to be 
members of our Criminal Justice Act Panel.
    And, of course, our rationale for getting to the $142 we 
seek is that that is the rate that would apply had the annual 
inflationary increases that were authorized by the Criminal 
Justice Act in 1986 been fully funded. That is what influences 
the choice of the particular dollar amount we seek rather than 
any sense that that is the magic number that would allow us to 
attract the high-quality lawyers, those who would invariably 
render the effective assistance that defendants are entitled to 
under the Constitution.
    Mr. Serrano. Any comments on that?
    Mr. Duff. No. I would agree with Judge Gibbons.

                           AO STRATEGIC PLAN

    Mr. Serrano. Director Duff, I understand you have 
undertaken some initiatives designed to improve the 
Administrative Office of the Courts and in support of the U.S. 
Court System, including bringing in staff to provide input on 
the performance and management of the agency.
    Could you tell us a little bit about your strategic 
planning and management initiatives?
    Mr. Duff. One of the things we are very excited about is an 
exchange program that we are setting up between the courts and 
staff at the Administrative Office whereby we are sending staff 
from the Administrative Office out to the courts for hands-on 
experience and observation and learning firsthand the courts' 
needs and working with people. This is on a temporary basis. 
And vice versa, we are bringing people in from the courts, 
administrative personnel from the courts into the 
Administrative Office for a period of time to see how we 
function. And, we are integrating our services, I think, very 
effectively that way.
    The response we have been getting from the courts has been 
very encouraging in that regard. And as I mentioned earlier, we 
have reduced the staff levels at the Administrative Office to 
below what they were 15 years ago. We have managed to maintain 
services and become more efficient, I think. So that has been 
very encouraging, and the feedback from the courts has been 
positive, too.
    Mr. Serrano. And you had wide participation when you did 
this.
    Mr. Duff. Well, it is going to increase. We are phasing 
this in. Of course we are mindful of the funds that we have to 
do this, but it has been effective, even in the small numbers 
that we have started this with.

            FEDERAL PROTECTIVE SERVICE COURT SECURITY PILOT

    Mr. Serrano. Let me ask you a question about court 
security, the court security part of the program. The fiscal 
year 2010 budget request includes $7.3 million for one-time 
court security costs, including implementation of the court 
security pilot program, which this subcommittee authorized in 
fiscal year 2008. Last year we were told that the plan's 
implementation date was fall 2008. But to my knowledge, this 
pilot still has not gotten underway, at least not in more than 
one courthouse.
    Please update us on the progress of this part of the 
program, including why it is taking so long to get started.
    I also understand that you are requesting an increase of 
$7.3 million for 2010 for implementation of this project. Why 
are those funds needed? I thought the court security pilot 
project was supposed to be budget-neutral.
    Judge Gibbons. With regard to the cost of the pilot, I will 
certainly go back and see what we represented about that and 
why we are now saying something different, if we indeed are.
    The pilot project is underway in all of the seven 
locations. It did take a bit longer than we anticipated. And 
actually there are now, I think a bit surprisingly, given the 
state of the economy, some vacant CSO positions within the 
pilot program. We have been told that the reason for those 
vacancies is that perhaps court security officers who have been 
out of the workforce for a time are applying for the positions, 
and that there are being more incidents of failed medical 
examinations and unacceptable background checks than might be 
expected. So that has been a difficulty that they have had. But 
to my knowledge, the program is underway.
    We expect that the Marshals Service is establishing 
reporting requirements with respect to all the sorts of 
security incidents that occur in a building. And we expect to 
have good information from the pilot program at its conclusion.
    Mr. Duff. I am told that the budget increase is for FPS 
costs, but that the pilot project is cost-neutral. The request 
for increased funds is not related to the pilot program.
    Mr. Serrano. So it is neutral.
    Judge Gibbons. The FPS budget increase is a result of the 
estimate that the FPS has given us for maintaining current 
services. They charge us this fee, and only about $150,000 of 
the amount requested is for new space that we will be 
occupying. The remainder is just the amount that FPS is 
intending to increase the fee.

               VIOLENCE ON THE BORDER--SECURITY OF JUDGES

    Mr. Duff. Mr. Chairman, if I might, there is one other 
related follow-up point on what Congressman Culberson raised 
earlier about the violence on the borders. We are concerned 
about how that might spill over to the courts and judges. There 
may be a point in time where we would come to the committee for 
help in that regard. But you were absolutely right about the 
role of the courts in law enforcement. That is not within our 
jurisdiction. But that situation on the border has raised some 
security concerns for us, so that is something we are paying 
close attention to.
    Judge Gibbons. And I am not sure whether Representative 
Culberson was talking about the sort of spillover violence that 
we are concerned about from things that are happening in Mexico 
now, or whether he was just talking about crime that would 
occur otherwise, domestic crime as it were.
    Mr. Duff. My impression was it was the latter. And I think 
the Chairman was right about our role in that. It is very 
limited.
    Mr. Serrano. Well, in his absence, to his credit he has 
always been strong on the issue of border security and crime 
along the border, so I am sure he was speaking to all of the 
above.
    Mrs. Emerson.

                  OVERSIGHT OF GSA COURTHOUSE PROGRAM

    Mrs. Emerson. I actually have some kind of technical 
questions I would like to ask if I could. You were talking 
about the stimulus money and how that was going to enable you 
to at least get started on the five courthouses that you wanted 
to work on.
    But let me ask you a question. I guess you all pay about $1 
billion a year to the General Services Administration, as you 
all know. That is also under our jurisdiction. Do you play any 
oversight role, any oversight of GSA in their construction of 
courthouses, just to ensure that they stay on time and under 
budget? But I really shouldn't even--I can't equate a 
courthouse with on budget and on time, at least in my own 
personal history of courthouse construction. But there may be 
some.
    But I mean, how do you all--because in building our 
courthouse in Cape Girardeau, other than if I would call the 
judges and say, would you please get on them because we are 
having some issues here--because I figured it was best to come 
from both sides--I mean, is there a formal role that you all 
are supposed to play, or is it just like if someone like me 
calls you up and says you need to beat up on these guys.
    Mr. Duff. In my experience I never had to call the judges 
to encourage them to complain about anything with regard to 
their courthouse project. They take that initiative on their 
own. My experience has been that the judges are pretty vigilant 
about paying attention to the needs of the courts when there 
are construction projects in their districts.
    I don't know that I would say they micromanage these 
projects. But we do have judges and court administrators at the 
locations where the projects are undertaken involved in pushing 
and prompting and encouraging timely completion. Although we 
don't have ultimate control over the project, we certainly 
agitate where it is needed and encourage where it is needed.
    We also have a Judicial Conference Committee, our Space and 
Facilities Committee, that pays close attention to the projects 
around the country and the needs around the country.

                        NON-RESIDENT COURTHOUSES

    Mrs. Emerson. Are there any underutilized or nonresident 
courthouses that you don't need anymore?
    Judge Gibbons. I don't know the specific answer to your 
question. But there is a process by which our Space and 
Facilities Committee looks at those kinds of issues and 
determines whether facilities are no longer needed.
    You know, I am from the Sixth Circuit, and I recall an 
incident where a building in Ohio was turned back to--I can't 
recall whether it was GSA, but we are no longer occupying that 
building. And there is a formal process for doing it.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

    In March 2006, the Judicial Conference adopted revised 
criteria that included a cost-benefit analysis for circuit 
judicial councils to use when determining whether to close non-
resident facilities (JCUS--MAR 06, p. 28). Since that time, 
non-resident facilities in Thomasville, Georgia and Ft. Dodge, 
Iowa have been closed. At the present time, there are no other 
facilities under consideration for closure.

                         INFORMATION TECHNOLOGY

    Mrs. Emerson. I appreciate that. Let me ask you about the 
information technology tools and investments that you all want 
to make, particularly for both information technologies and 
telecommunications programs.
    I would like to know, number one, how you believe that 
investment will improve court operations. Would such an 
investment possibly reduce the need for additional staff, 
staffing requirements in the future? So answer those first, and 
then I have one follow-up.
    Judge Gibbons. The information technology projects that 
have been brought to fruition within the Judiciary have been 
very successful and have really enhanced the courts' ability to 
do their work.
    Probably the one that deserves most discussion is what we 
call CM/ECF. The Case Management Electronic Case Filing system 
was developed entirely within the Judiciary specifically for 
its users, extensively piloted and tested within the Judiciary. 
All of the bankruptcy courts and the district courts are now, 
and have been for some time, doing electronic case filing and 
case management. The appellate courts are now coming on-line. 
It is not just a great benefit to us and our staffs and the way 
we operate, but also to the public and to lawyers and parties 
who come before the court.
    We also have automated the system by which our probation 
officers get information that aids them in supervision. We have 
an automated accounting system, an automated personnel system. 
And then, of course, our e-mail system is Lotus Notes. 
Appellate courts, for example, function almost exclusively now 
through e-mail and sometimes fax communication.
    Mrs. Emerson. So----
    Judge Gibbons. Do you want me to go on to part two?
    Mrs. Emerson. Yes, do part two, please.
    Judge Gibbons. Okay. Staffing.
    Yes, there have been some staff savings, although it is 
sometimes hard to figure out what the direct correlation is. We 
know that in the bankruptcy area, bankruptcy courts were able 
to operate with fewer staff. When we went to the automated 
systems, and particularly automated noticing, prior to the new 
statute in 2005, even though the bankruptcy filings had 
continued to go up, bankruptcy staff was down 3.5 percent. And 
we attribute that to automation.
    In the probation and pretrial area there has really been a 
reconfiguration of who the personnel are. The Probation and 
Pretrial Services Offices now utilize 25 percent fewer support 
staff people, and they are able to function self-sufficiently 
and independently in the field with all the new tools they have 
been given.
    Consolidation of servers has also been a big saver for us. 
Time is saved by the processing of financial transactions 
automatically. And then there is the whole issue of the use of 
its technology in trial, which through presenting evidence, 
video evidence and the like, can really enhance the trial 
experience for jurors in particular.
    Mrs. Emerson. I appreciate that, because there are so many 
different agencies with whom we work who are trying to upgrade 
their IT capabilities--IRS, the Census, FBI, the Department of 
Agriculture--and it has been a total nightmare. Total 
nightmare. And they just keep asking for billions here and 
billions there, and there is no end in sight. And certainly no 
progress has been made in being able to either set up an entire 
new system, integrate the old stuff into some of the new things 
they have done. And it is a bottomless pit.
    Judge Gibbons. Well, the money we ask you for is not for 
systems that are not functioning. Our request will enable us to 
move to the next generation and to improve technology. The 
systems we have serve us very well. I am sure there are 
probably some things about our culture and our oversight of 
those systems that have enabled us to convert and develop IT 
programs successfully. I do not see the Judiciary as having 
those kinds of problems. We are moving forward, not trying to 
fix things we haven't gotten right in the first place.
    Mrs. Emerson. That is a breath of fresh air.
    Director Duff, you all are comfortable at the 
administrative office that you have all the technical expertise 
necessary to sort of look forward?
    Mr. Duff. Yes. We have new leadership in the IT area at the 
AO that we are very excited about. And we are interacting well 
with the courts. We work closely with them to figure out what 
makes more sense to do locally as opposed to nationally and try 
to maintain efficiencies that way. And we delegate where it 
makes sense. Where it is more cost-efficient to have a national 
system, we do that. So it is really trying to affect that 
balance. I think we have made great strides in improving 
communication on that, and we are pretty proud of the way that 
is developing.
    Mrs. Emerson. Might you be willing to lend that person or 
those people to some of these other agencies? Seriously.
    Mr. Duff. I would be happy to talk with them.
    Mrs. Emerson. Thank you.
    Mr. Serrano. Thank you. I have one last question. And we 
have a series of votes coming up, so it will give us an 
opportunity to finish up.

                       NATURALIZATION CEREMONIES

    Last December, the Office of the Ombudsman for Citizenship 
and Immigration Services at the Department of Homeland Security 
issued a report or recommendations on the conduct of 
naturalization ceremonies. In many areas Federal judges conduct 
these ceremonies and swear in new citizens, although ICE has 
the--Citizenship and Immigration Services has the authority to 
conduct citizenship ceremonies on its own if the courts prefer 
not to.
    Having a judge preside adds to the importance of the day, 
and I think it also sends a message that there is nothing more 
honorable than the courts, and therefore when you get sworn in, 
that is what you are looking at.
    While the report says that generally the Federal courts are 
very responsive to requests to make judges available for these 
ceremonies, it also found some problems. Among other issues the 
report notes that one district court refused to schedule 
additional ceremonies to accommodate the large number of 
applicants who had completed processing in the fall of 2008 and 
refused to allow the Immigration Services to administratively 
naturalize those applicants. As a result, 1,951 individuals had 
not received the oath in time to register to vote in the 2008 
elections.
    The report also cited other problems relating to scheduling 
payments of courts and other issues. While I realize that the 
Federal judges are quite busy, one would hope that they could 
make time for swearing in new citizens. That should be one of 
the most pleasant of their duties. In fact, I tell you, I wish 
we had the ability to do that, because I would be at every 
ceremony in my district.
    Mrs. Emerson. Absolutely.
    Mr. Serrano. Do you get to swear them in?
    Mrs. Emerson. I get to be there and make a little speech, 
yes.
    Mr. Serrano. Okay, just wanted to check because we may have 
to recall a few.
    I was saying I wish we could do what the judges do.
    Mrs. Emerson. There are some Members of Congress who are 
allowed to marry people, so if you are allowed to marry 
someone----
    Mr. Serrano. That is California, right?
    Mrs. Emerson. Yeah. You can do it on line, you can do an 
on-line application to allow us to do that.
    Mr. Serrano. Anyway, that should be one of the most 
pleasant duties was my last comment.
    Are you aware of the Citizenship and Immigration Services 
report or of any issues with the conduct of these ceremonies? 
Can you tell us what steps the courts are taking to ensure that 
these ceremonies are available in a timely manner?
    If neither of you are familiar with the issue I would 
appreciate it if you could get back to us with a response for 
the record.
    And I want to emphasize that I realize that there is a lot 
of work going on, and we don't want to load up more work, but 
this is such an important thing to carry out. And immigration 
continues to be a very difficult issue. So when you get folks 
who go through the process and become citizens--I have been to 
a few of them, and it is just wonderful. No one is unhappy. It 
is like a graduation. Everybody is waving the flag. It is just 
wonderful.
    I think if I was a judge I would want to get out of other 
work and go do the ceremonies.
    Judge Gibbons. I am itching to talk to you about this, 
because the Ombudsman and I do not see eye to eye on what the 
situation is in the Federal courts with respect to their 
eagerness to perform these ceremonies. Federal judges 
administered the oath to over 450,000 new citizens last year. 
In fact, I have never known a court that was not eager to do 
the ceremonies. Judges feel just as you described that they 
should feel.
    I was in the district court for 19 years and I don't know 
any experience I have had as a judge that is more a lump-in-
your-throat moment than those ceremonies in which I 
participated. We did a very large one during Law Week in May, 
and then we did other large ones throughout the year that were 
not quite as big as the May one, but over the years the numbers 
increased as well as the frequency.
    And I think that judges in general feel that way. We are 
there for so many low points of people's lives. And what a joy 
to be there for this high point in a person's life that is such 
a powerful reminder to all of us of the promise of citizenship 
in our country.
    I am confident that any delays or unwillingness to schedule 
a ceremony that the Ombudsman pointed out, are very isolated or 
the result of a lack of communication. I am just not sure. The 
Ombudsman Report seemed to reflect a preference or a lack of 
understanding as to why there should be a preference for the 
formality and the dignity and the specialness of a court 
proceeding. But the courts do not feel that way. I believe our 
record of holding these ceremonies is a very good one.
    There are many stories of judges who make a house call or 
who work with individuals to administer the oath in chambers if 
there is a particular deadline, in addition to all of these 
larger proceedings we do.
    And so the Ombudsman and I do not have the same view of the 
situation. And I fully share your take on how important this is 
and how eager the judges ought to be, to be participants in 
this process.
    The thing about the payments, I don't understand either. 
The funds don't go to the individual courts. There is an 
administrative processing fee for the courts to handle all the 
paperwork. It goes to the general operating fund. And I don't 
know why a court--no court would have a motive with respect to 
a payment to delay or not hold a proceeding or anything of that 
sort.
    Mr. Serrano. Well, Your Honor, your statement is pretty 
strong, and I know that I can feel the passion in your refusal 
to accept the report's allegations of findings. Is there a 
process by which you get to speak to the Ombudsman and discuss 
the findings?
    Judge Gibbons. I am not sure what the process is. We will 
get back to you if neither of us knows.
    [Clerk's note.--Subsequent to the hearing, the Judiciary 
provided the following additional information:]

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    Mr. Duff. Right. Well, we were surprised with some of the 
findings or allegations by the Ombudsman. But just to support 
what Judge Gibbons has said, we encourage our judges to 
participate in these ceremonies for all the reasons she 
articulated so well.
    Just to put in some perspective what the Ombudsman's 
criticisms were, one of the criticisms was that a ceremony was 
delayed for about an hour. Well, we looked into that. The 
reason it was delayed was because the judge wanted the Member 
of Congress to be there for the ceremony. The Member wasn't 
there.
    Mr. Serrano. Hey, traffic in the Bronx is not that easy.
    Mr. Duff. But we encourage these sorts of ceremonies. And, 
quite candidly, it is an opportunity for our judges to interact 
with Members of Congress. We are always here with our hands 
out, seeking money from you. We always want something from you. 
We are looking for ways to work with you on other matters of 
mutual interest. And this is one we have highlighted.
    In our Judicial Conference, in our meetings with judges, we 
encourage them to reach out to their Members of Congress, 
invite them to attend these ceremonies. It is a great 
opportunity, as Representative Emerson has indicated, to 
participate in and be out front publicly on a good event. So I 
assure you that this is something that we feel strongly about, 
too, and want it to be everything Judge Gibbons has described.
    Mr. Serrano. On a lighter note, I remember, Mrs. Emerson, 
that I went to a ceremony. On the way out, I said to one 
person, ``Congratulations. How are things now that you are a 
citizen?'' She said, ``Well, my taxes are too high.'' And I 
said, ``Do you know something? You are going to be a great 
American, you have got all the qualifications.''
    Anything else?
    Mrs. Emerson. Thanks Mr. Chairman. I have got a couple of 
questions I would like to submit for the record.

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

    Mrs. Emerson. And thank you all so much for being here 
today.
    Mr. Serrano. We thank you for your testimony and we thank 
you for your continued service. The meeting is adjourned.
                                          Thursday, April 23, 2009.

                           U.S. SUPREME COURT

                               WITNESSES

CLARENCE THOMAS, ASSOCIATE JUSTICE, U.S. SUPREME COURT
STEPHEN G. BREYER, ASSOCIATE JUSTICE, U.S. SUPREME COURT

                 Opening Statement of Chairman Serrano

    Mr. Serrano. Our hearing will come to order, and our 
subject today is the Supreme Court and its appropriations 
request for the upcoming fiscal year. We will be hearing from 
two distinguished Justices of that Court.
    These annual hearings are a rare opportunity for our two 
branches of government to interact. Congress, of course, has 
constitutional responsibility over Federal spending, including 
appropriations for the Supreme Court and the rest of the 
judiciary. Although I always have some personal concern about 
asking the Third Branch to come and testify before us about 
buildings, staffing levels and computers rather than whether I 
can run for President or not, these hearings provide an 
important opportunity for the Nation's highest Court to bring 
to light issues affecting the judiciary as well as to help us 
understand their budgetary needs. If in the process our two 
branches get to know one another a little better, that is an 
added bonus.
    Meeting the needs of the judicial branch is a priority of 
this subcommittee. Courts have a vital role to play in a 
society like ours where the rule of law is a core principle. We 
need to be sure the courts have the resources they need to 
dispense justice with reasonable speed and care, and with 
proper regard for the rights of defendants and litigants and 
the needs of our society. At the same time, we also have a 
responsibility to exercise due diligence in spending matters 
and to balance competing needs.
    While appropriations for the courts are small relative to 
the total Federal budget, the judicial branch does account for 
more than a quarter of our Financial Services and General 
Government Appropriations bill. In some years, the percentage 
increases involved are substantial. Having said that, I should 
also add that we recognize and appreciate recent efforts by the 
judiciary, including the Supreme Court, to exercise budgetary 
restraint and find ways of holding down costs.
    We look forward today to a discussion of the budget of the 
Supreme Court, their needs. Our witnesses are Justice Clarence 
Thomas, who has been here before us, and we welcome you; and 
for the first time, his first appearance on this talk show, 
Justice Stephen Breyer. And we welcome you both.
    Justice Thomas was nominated to the Court in 1991 by the 
first President Bush after serving as Assistant Secretary of 
Education for Civil Rights, Chairman of the Equal Employment 
Opportunity Commission, and as a judge on the Court of Appeals 
for the District of Columbia Circuit, among other positions. 
Justice Breyer joined the Court in 1994 as a nominee of 
President Clinton. And many positions he held prior to that 
time include professor at Harvard Law School, staff member for 
the Senate Judiciary Committee, and judge, and then Chief Judge 
of the Court of Appeals for the First Circuit. Justice Thomas 
has been a witness before, and Justice Breyer is coming before 
us for the first time.
    We welcome both of you and thank you for joining us.
    As I said, I always feel a little uneasy, but I have gotten 
somewhat accustomed to talking to you folks. We take seriously 
who you are. This branch takes extremely seriously what it is 
that the Court does. And when I first became Chairman of this 
committee, and prior to that actually, and the other committee, 
the whole idea of having you guys discuss budgets, while there 
are Members, however, that say, yes, bring them there and put 
them there, I say, well, they are a special crowd, and I think 
they know they are a special crowd, and we always pray that you 
behave as a special crowd.
    With that in mind, let me introduce a special person, and 
that is my colleague and our Ranking Member Jo Ann Emerson.

                   Opening Statement of Mrs. Emerson

    Mrs. Emerson. Thank you, Mr. Chairman.
    And welcome to you both, Justice Thomas and Justice Breyer.
    An independent judiciary, trusted and respected by all 
citizens, and committed to fairly and expeditiously resolving 
difficult and controversial questions, is a fundamental tenet 
of our Nation. Although the Supreme Court budget is not large 
in comparison to other Federal programs, I am very pleased you 
all are here today, and recognize the importance of your 
testimony and appearance before the subcommittee.
    This hearing is one of the few instances when the Supreme 
Court and the legislative branch interact each year, and in my 
opinion it is a very worthy interaction as we recognize and 
respect the prerogatives of each branch.
    Justice Thomas and Justice Breyer, I look forward to 
hearing from you all about the resources necessary for the 
operation of our Nation's highest Court, as well as any 
thoughts you may have regarding our judiciary system as a 
whole. While I am concerned that the budget resolution that 
recently passed the House will burden future generations with 
an enormous Federal debt, I greatly, greatly appreciate the 
Court has submitted only a modest increase in funding. I 
promise to do my best as Ranking Member to ensure that you all 
have the resources necessary to meet your constitutional 
responsibilities. So I thank you.
    Mr. Serrano. Thank you.
    Mr. Serrano. As you know, your full testimony will go into 
the record. And I understand that the lead-off batter this year 
is you, Justice Thomas.

                      Statement of Justice Thomas

    Justice Thomas. Well, first of all, Justice Breyer and I 
are pleased to be here. And we are honored to appear before 
you, Chairman Serrano, for, I guess, more than a dozen times 
and for the first time, I think, with Congresswoman Emerson as 
Ranking. We appreciate your being here this morning and your 
interest in our branch of the government.
    I also would like to introduce William Suter who joins us, 
he is the Clerk of the Court; and Pamela Talkin, who is sitting 
next to him, is the Marshal of the Court; and Jeffery Minear, 
behind me, who is Counselor to the Chief Justice; and Kathy 
Arberg, to his far left; and Connie Phillip, who is sitting 
next to him, who is Budget Manager at the Court. They are 
instrumental and central in the preparation of our budget as 
well as the operation of the Court. I have always wondered why 
the more competent among us in these administrative matters 
would allow us to testify.
    Mr. Chairman, I will not read from the brief statement that 
we have submitted, but I do want to make a couple of points 
that we made in the statement. One, as you both have indicated, 
our budget is tiny compared to other agencies in the Federal 
Government and a minuscule percentage or part of the Federal 
Government's budget. But it is still for us important, and we 
recognize that in these difficult times, all budgets are to be 
looked at in a very disciplined way. And we have done that.
    In the years that I have appeared before you, in addition 
to the years that certainly I have been in the executive 
branch, we have always requested only what was necessary for 
the Court's operation, and it is no different this year. Our 
budget, as you know, is divided into two parts, the salaries 
and expenses of the Court and the care of the buildings and 
grounds. Now, Justice Breyer and I will only discuss the 
former. The latter, of course, is discussed by the Acting 
Architect of the Capitol, Stephen Ayers.
    But I do want to make one comment about the budget, about 
the grounds, the buildings and grounds portion of the budget. 
With respect to the renovations of the building, we are, as you 
know, behind. The project was late or slow in starting. So 
rather than being completed this year or last year--actually 
2008 was the scheduled year--it will be completed in the late 
summer or fall of 2010. Most of that delay, as I said, was at 
the beginning of the renovation process, and it has worked 
smoothly since.
    With respect to the salaries and expenses, the only 
increases are the mandatory increases. We are asking simply, as 
we did last year, as you remember when we were before you last 
year, we asked for no increase beyond the mandatory increases, 
inflation, the increases built into our retirement, those sorts 
of things.
    There is one addition this year that is rather important, 
and I would like to take a look, just a minute, to reflect 
back. I was looking over previous testimony before this 
committee and one question you asked me, I think, in 2004, and 
among these many papers I have here, I think I have that 
question. But in essence you asked me when our Website was 
going to be up and running so that it was useful--more useful 
and more timely. And I think it was March 17, 2004. At the time 
we were running about as fast as we could. In fact, if you go 
back to the year 1998, this committee prodded us about being 
more responsive to the public.
    When Chairman Wolf was here, he was very focused on the 
Court being accessible to the public with the new technologies. 
As a part of that, we made it our mission to develop a Website. 
We did not have that capacity within the building or 
intramurally, so we placed that Website at GPO in order to get 
it done. The first year that we had that Website available, we 
had 11 million hits.
    Well, times have changed. Just this past January we had 
almost 19 million hits. The Website is outdated. We are at a 
crossroads. It is time to do something with it. In the 
meantime, we have developed much more capacity internally. We 
have almost half of the infrastructure available in house to 
develop or to run the Website. It also makes more sense from an 
administrative standpoint and from an operational standpoint to 
have it in house.
    So to answer that question that you asked me in 2004 is to 
say the last piece of that puzzle is to bring it in house, and 
that will make it more responsive. To do that, we are 
requesting an additional $799,000; not 799 million or 7.99 
million, but 799,000. There is a one-time cost for the 
equipment and five individuals to actually operate it. We think 
this makes eminent sense, and it is consistent with the 
direction that we have been heading.
    Now, we recognize, as I said at the beginning, the 
difficulties, the budgetary constraints that we are operating 
under, and we do not submit this lightly, but as I said, we 
have never come before you and asked for anything more than we 
thought was necessary, and we think that this is necessary to 
complete a project that we have jointly, and often at your 
insistence and direction and suggestion, been involved in over 
the past decade.
    Mr. Serrano. Thank you, Justice Thomas.
    [The information follows:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Serrano. Before I go any further, Mrs. Emerson, I am 
going to bend one of the rules. I think there is a rule in the 
House that says you don't mention anybody in the audience. But 
I can't help but notice how many young people are sitting in 
the audience today, and I think that that is wonderful that 
they are here on a day when the Supreme Court Justices are 
before us. And one day, one hearing they will get to see the 
judicial branch in action in some ways, and the legislative 
branch. If you are lucky enough to run into President Obama 
today, you took care of all three branches. So I am not allowed 
to say you are welcome, but I think it is a proper bending of 
the rules to acknowledge that.
    Justice Breyer, please.
    Justice Breyer. I agree with Justice Thomas, and I really 
have nothing to add to that. But it is very nice to be here, 
and I appreciate it.
    Mr. Serrano. Well, that was quick.
    Let us talk about the Website, because we did come to you 
and speak a lot about it. And I know you have already mentioned 
it, but it was run by an outside entity, so to speak, in 
government. Now you want to run it yourself. The reason for 
that is closer control, quicker access?
    First of all, I commend you on the work you have done on 
the website, and I think it is important. You know, there are 
some things that I may be heavy on tradition about, you know, 
just how much I want to see cameras and reporters running 
around the Court and having pundits on TV reporting every 5 
minutes it looks like Thomas is going to rule this way or not. 
And I really don't want to hear that or see that. But I think 
the fact that the people have access to the decisions, to what 
is going on, that is a good thing. And so is it that you can 
run it better yourselves, have better access to it yourself, 
bring it up to date quicker?
    Justice Thomas. It is all of the above. We did what we had 
to do in 2001 when we developed that site, the Website at GPO, 
and it has worked well. But as I indicated, it is 9 years old, 
and it is due for an update. Before we had no capacity. So much 
of what goes on that Website now is developed in house in order 
to expedite the process. In the past, we would have--for 
example, any changes or updates would happen on a daily basis, 
so you already have a lag of 1 day, So you lose some of the 
value of the Internet. Now we have, by working in house and 
developing staff and equipment and capability in house, we have 
updates several times a day. Again, we are behind the curve. By 
bringing it in house, those updates and changes, correcting 
errors will occur instantaneously.
    There are also other things. By bringing it in house--just 
take something simple. You mentioned young people being here 
today. We schedule tours at the Court. Now you have no ability 
to do that over the Internet because we don't control the 
Website, it is off site. When you bring it in house, you are 
able to do all sorts of things that you are able to do at other 
Websites. And I think that the ability for us, for our people, 
to actually make changes, make corrections, make alterations, 
put information or data on the Website reduces the risk of 
errors, breach of security. It is just one step that we 
eliminate from the process.
    In addition, it is used more, and we are about to enter an 
era, if we have 19 million hits in January, which is 100 
percent increase over the previous January, what are we going 
to have next year? And I think we need to get started to get 
ahead of it to be ready for what is going to happen in the 
future, and bringing it in house is the logical step to doing 
that.
    Justice Breyer. I will give you an example, Mr. Chairman. 
It will let us react quickly; if we have an idea, suddenly we 
want to broadcast something on the Website.
    For example, you are pleased that the schoolchildren are 
here. When they come to the Court, I am pleased, too. And when 
I talk to children, and my colleague here does, too, quite a 
lot, the thing that worries me the most is that there are too 
few of them, not that there are too many.
    So a few years ago, Justice O'Connor and I had in the 
conference room--we had a hookup, and that hookup brought us 
students from Lowell High School, San Francisco, where I went 
to high school, and her high school in El Paso, Texas, and we 
had a group there from Virginia. And all three groups were 
asking us questions and talking. We had a good discussion.
    And if it were today, I would go to any of these people 
here; I would go to our fabulous staff here, if it were today, 
and I would say, hey, let us put this on the Web as we are 
doing it. And suddenly 18 million people or maybe 40 million--
you know, you give them more than 10 minutes advance notice--
would have tuned in. That would have been fabulous, because I 
think if there is one problem that faces us, and I think I can 
include you in that, it is the public not knowing how their 
institutions work.
    Mr. Serrano. Exactly. That is why a half an hour before I 
came here, I updated my status on Facebook to let people know 
that I was going to ask you about whether I could run for 
President or not. Actually serve. Anyone can run.
    Which brings me to another point, and I know this is a 
touchy one, but we always see anything we put out as for the 50 
States and the territories. So the issue of language has always 
been an issue. It is in English, of course, and nothing else. 
You know, it is a global Internet, and we have a lot to be 
proud of how we run our Court, how our system works. So I think 
the more languages that we put our information out in is not 
diluting English, it is just letting other folks know how good 
and how strong we are. So in future budgets, I would suggest to 
you that not for the reasons that Bill O'Reilly would be upset 
about, or Lou Dobbs or who somebody else--okay, I will pick a 
liberal.
    Mrs. Emerson. Keith Olbermann.
    Mr. Serrano. He won't be upset. I will find one. But there 
are folks on both sides who think that everything should only 
be in English. English is our language, but I am talking about 
you want people in Venezuela to read about what we are doing. 
You want people, as Cuba opens up and changes, to read what we 
are doing. You want it all over the world. So other languages 
are important, too.

                       ORAL ARGUMENTS AUDIOTAPES

    One last point before I move on. I commented on the fact 
that I don't want a process by which pundits on CNN or FOX will 
be commenting every 20 minutes on what you guys are going to 
do, and how you are going to do it, and why you are going to do 
it, and who influenced you. It will get out of hand. The 
statement I am making now, and this is being recorded, will not 
make my liberal friends happy because they believe in openness, 
and so do I, but there has got to be some desire to keep the 
integrity of the Court intact.
    So with that in mind, are you folks satisfied with the way 
you are handling the whole issue of the audio transcripts that 
are being made available I believe it is a couple of hours 
after a decision is made or a hearing takes place? How do you 
feel about that? Do you want changes there? Is there a better 
way of doing it?
    Justice Thomas. I will comment briefly on that. Justice 
Breyer has a special interest in this.
    In the past, the audiotapes as a matter of routine were not 
available during the term. They are archived, and they are 
available after the term. On select occasions we have 
simultaneously broadcast, I think 11 occasions, or provided 
them shortly after oral argument. What is available after oral 
argument are the transcripts of oral argument.
    Are we content with the way it is being handled? We 
certainly have no reason to be anything but content, I mean, in 
the sense that it doesn't affect our work. The difference is 
that we are beginning to feel some pressure or some interest 
in--increased interest from those--from media outlets for 
immediate access to the audio version, and we have maintained 
our policy that in certain select instances we would make them 
available shortly after or simultaneously broadcast. And we did 
that, I think, with Bush v. Gore. But we have not, as a matter 
of routine, made the audios available either during the term, 
the current term that it is recorded, or immediately after or 
during. It is always subsequent to.
    Justice Breyer. Well, I add that I think it is a process, 
an evolution, and the reason it is an evolution is simple. We 
have made the audios available either simultaneously or right 
after the argument, I think, 19 times since--in 2000 is it or 
2001? And the question is does that actually harm the Court or 
help the Court or what?
    It does make more access. I think in the 19 instances, 
there hasn't been--I think it is fairly universally felt that 
hasn't hurt. You have to get the Justices comfortable with the 
notion of allowing either that or other access, and the reason 
simply is we are a conservative institution, and we should be. 
The nine of us didn't invent this institution. We are trustees, 
and we are trustees for a process that has worked very well in 
the past in terms of building the confidence of the public in 
the rule of law. So if we are going to change that process, and 
any of these things is a change, we have to be made comfortable 
by understanding that that isn't going to hurt that institution 
where we temporarily find ourselves. That is why it goes 
slowly.
    Mr. Serrano. Thank you.
    Mrs. Emerson.

                         SUPREME COURT WEBSITE

    Mrs. Emerson. Thanks, Chairman.
    Let me ask you all just a follow-up on the Website. It will 
cost $799,000 for the equipment and--is the five personnel, are 
those people just going to be doing the upgrades on the 
equipment, or are those five extra people who will be 
continually working for you all to maintain it on a daily 
basis?
    Justice Thomas. The latter. They will be staff. They are 
the security people, the people who--the composition, the 
individuals who put it together, the administrator. There are 
people who will actually take the data to interface with the 
public, those sorts of things. I think they are GS-13s and GS-
11s.
    Mrs. Emerson. So, then, for future budgets they would----
    Justice Breyer. They would be built in. The one-time cost 
would be the equipment cost. The continuing costs will be the 
400,000 or so that we have committed to their salary and 
benefits.
    Mrs. Emerson. Okay. Well, I commend you for doing that, 
because seriously, my own Website is managed outside, and we 
can't update it fast enough. And so it is very frustrating. So 
I am pleased that you all are going to be doing this.
    I am interested, then, on you all said that the written 
transcripts are available after--how long does it take to 
actually get those transcribed and then up on the Web?
    Justice Breyer. It is about 3 or 4 hours. It is the same 
day. It helps us, too. I had the wonderful opportunity to fall 
on my face one night and was not able to make oral argument the 
following day as a result of it. In order to stay up to speed 
on the case and what occurred at oral argument, I simply went 
to our Website later that day, and it was there. You can do it, 
and we can do it, or any of us.
    The Website is enormously helpful. It is helpful to us 
internally. I went on last night just to look at it again. 
These were things we talked about sort of as an aspiration some 
years ago. It is a reality now. And when you reach a point 
where you say, I wonder who is the lawyer in this case 
tomorrow, I hadn't really thought about who is arguing it, you 
have the briefs, but you--sometimes that changes as to who is 
arguing it, and you can go right on the Website and you can 
find out.
    If you want the briefs, people who are interested, we 
receive the briefs in written copy as well as digital, we 
simply send that to--the digital copy to the ABA, and they put 
it on their Website, and we link to that. So it is all 
available, and it is a wonderful, wonderful site, but it needs 
to come in house.
    Mrs. Emerson. And I don't disagree with that at all.
    And I might just segue then to information technology, 
since we are talking about Websites, and your budget is $7 
million for 2009, I believe. And I was just curious, can you 
tell us how the Court uses information technology to become 
more efficient?

                         INFORMATION TECHNOLOGY

    Justice Breyer. Oh, it is in many ways. Let us give you one 
example. I mean, it is in every aspect from the operation of--
our security operations, personnel operations, our accounts. 
Finances are now being automated, payroll. There is just no 
aspect of what we do now that does not interface with the 
computer. I was away for--at a law school, and each day, early 
morning, late in the evening, I would check in. You can connect 
off site through VPNs, and it is--we have double encryption and 
all the sorts of things that you normally do. And to be able to 
work 3 or 4 hours in the morning and 3 or 4 hours in the 
evening after work that is here, you don't have to be on 
location to do it.
    So just the way that we work is different. You are never 
away. But also something simple. Let us say that you have a lot 
of prisoners who filed claims. Often times these claims are 
inadequate. There are mistakes. Now, in the old days we would 
have to send that back to someone who is incarcerated. Now what 
we do is simply make those minor corrections, because we can go 
on the Internet, we can find the case, cite those. Similarly in 
the capital cases where there are executions, there are 
filings, that is done electronically now. Those things come up 
on emergency motions, and we get quite a few of those. And that 
is done in a very, very quick time frame. So we are able to do 
that electronically. So those are just a few examples, but it 
permeates everything we do now.
    Mrs. Emerson. Have you been able over the years to reduce 
staff or perhaps docket clerks or support staff because of 
utilization or increased utilization of IT?
    Justice Thomas. I think what we have been able to do is 
utilize staff better. If you notice, in our budgets we don't 
come back and add significant staff. As the work increases, or 
it become more complicated, or we attempt to do more, what you 
see is we do more, and we do it more effectively and more 
efficiently.
    Mrs. Emerson. Do you believe that the Court has the program 
and contract management and technical expertise to successfully 
implement and maintain your IT systems? And the reason I ask 
this is because there are other departments within the 
government who we have given billions of dollars for such 
upgrades, and we still are not there yet. You are actually 
asking for such a modest amount in comparison. Do you feel 
comfortable with your technical expertise and ability to 
maintain things?
    Justice Thomas. Well, I would actually bet the ranch on the 
people we have. We built the system. When I arrived at the 
Court, which seems an eternity ago now, this is my 18th term, 
we were just setting out the word processors in the hall, and 
we were at the beginning of it. There was no connectivity, and 
I mentioned to then-Chief Justice Rehnquist my interest in 
doing this since we built the infrastructure for our data 
systems at EEOC, that we needed to get ahead of the curve, that 
a new era was coming.
    He was not interested in it, so he--when you do something 
like that, that means you volunteered for that committee. So I 
effectively volunteered for this committee. And we built the 
system, and if you notice, we have done it in conjunction with 
this committee. We have had many conversations over the years. 
We were prodded, we were encouraged, we were supported, and I 
think that the interaction with this committee is a classic 
example of how things work, because there were times we might 
not have focused as much on the Website because we had so much 
else to do. This committee thought that was important. So we 
did the Website, and we worked in conjunction with the 
committee to get it done. So I am very comfortable with where 
we are.
    Justice Breyer. I think Justice Thomas has done a great job 
on this, and it has made light years of improvement.
    I have to mention one obstacle in any situation. The 
obstacle in any given situation is normally me. The staff is 
fabulous, but, I mean, they have to put up with me. I am 
impatient. I don't take the time to learn the thing, and if I 
do learn it--and they will make me do it--they spend that 10 or 
15 minutes to figure out why I push the wrong button. Now, once 
we have done that, it works. And I will be on a Sunday working 
on something in my house I have to get written. So I am sitting 
there writing, and I push the wrong thing, and I have lost it, 
and I telephone. Within 15 minutes there is somebody right 
there who says, now, look, try it this way. Okay? And if 
necessary, they will come out. So it really does--it is 
amazing. It really has made a difference.
    Mrs. Emerson. I appreciate that. I would ask perhaps if 
there is a lull when perhaps you all are not being seated that 
you might send them over to the U.S. Department of Agriculture. 
It would be very helpful.
    Anyway, thank you very much.
    Mr. Serrano. Did you say you would bet the ranch?
    Justice Thomas. I don't have one.
    Mr. Serrano. I turned to my staff, and I said this Justice 
just made a safe bet.
    Mr. Culberson.
    Mr. Culberson. Thank you very much, Mr. Chairman.
    Justice Thomas, Justice Breyer, delighted to have you here. 
And I have to tell you, Mr. Chairman, of all the agencies that 
appear before this committee--excuse me, not agencies--the 
Supreme Court, the superb job they do as an equal branch of 
government. You are one of the only folks that I think ever 
appear before this committee--certainly me as a fiscal 
conservative, my starting answer is no on all spending requests 
because of the deficit. I try to avoid spending money, but the 
request is so reasonable. I mean, this is one where you go 
whack and just yes. I mean, certainly you have my support.
    Mr. Serrano. Do you mean via rubber stamp?

                        CAMERAS IN THE COURTROOM

    Mr. Culberson. Yes, for the Supreme Court, on a funding 
request this modest, absolutely. On a request this reasonable 
and appropriate and thoughtful and--yes, certainly you have my 
support. I think it is eminently reasonable. I am very 
impressed with the request for the Website.
    The work that you will do in every year is so vitally 
important. The Supreme Court--isn't it true in a very real 
sense any five Justices can, in essence, amend the United 
States Constitution? Is that true?
    Justice Breyer. We interpret the Constitution. We don't 
amend it.
    Justice Thomas. Oh, I hope not. Oh, my goodness.
    Mr. Culberson. In a sense, the opinions you render, 
however, have the effect of reshaping the Constitution, right?
    Justice Thomas. It has an effect applying that document to 
changed circumstances and to, in some instances, actually 
correcting past mistakes.
    Mr. Culberson. Certainly. No question.
    Justice Breyer. Since you gave me the opportunity, I will 
say this about it: The way I think most of us see it is that 
document, the Constitution, creates a set of boundaries. They 
are boundaries, and they are designed to ensure democratic 
process; to protect human rights; to assure a degree of 
equality; divide powers, as you know, the three branches, 
State, Federal; and ensure rule of law. But we are the 
boundary. You are in the middle. And life at the boundary is 
sometimes tough. People disagree about those boundaries, and we 
get tough questions. But nobody disagrees that whatever the 
right answer is at the boundary, the middle is the democratic 
system. All right?
    So we don't see ourselves as amending the Constitution. We 
see ourselves as engaging in some very difficult boundary 
interpretations of the Constitution, and you are quite right 
when you say if we decide something as to its meaning, then the 
recourse seems to be a constitutional amendment, which is very 
hard to bring about.
    Mr. Culberson. The effect is as profound as though the 
Constitution were--it is being interpreted, you are right, 
absolutely.
    And I have to tell you how much I admire, Justice Thomas, 
your focus on the importance of the 10th amendment. I know you 
are exactly right, Justice Breyer, the Constitution's 
limitation. And it begins with ``We, the people.'' We all 
learned from English class the most important parts of the 
document are the beginning and the end. And the 10th amendment, 
of course, so vitally important as a limitation. All power not 
given to the Federal Government is reserved to the States.
    And this goes right into the Website question, Mr. 
Chairman, because the transparency is so important. And my 
point is what you do is so profoundly important and so vital 
for the Nation to see and understand what you do. And I am 
delighted to hear that the transcripts are now available the 
same day. You are moving into the 21st century.
    I think the world has already moved under our feet with the 
Internet. I think it was Buckminster Fuller once said that 
Gutenberg made us all readers, and Xerox made us all 
publishers. Now the Internet has now made us all journalists in 
a very real sense and opened up the government.
    And transparency is so vital that the work that you do, I 
hope that you will reach the point where you will be able to 
broadcast the oral arguments of the Court. Once you get your 
Website up and running, it is a very simple matter to transmit 
live on the Internet, and I hope you will seriously consider 
doing so to allow the public to see the actual oral argument on 
the Website.
    Have you all discussed that? And what is the potential for 
allowing--because there is no logical distinction between the 
audience in the room and the audience in the country out there.
    Justice Thomas. Well, we have discussed it and discussed it 
and discussed it. I think there is some disagreement on that. 
Justice Breyer said earlier that the Court is a place that 
resists change. One example of that was some years ago Chief 
Justice Burger decided that fluorescent light bulbs would be a 
good thing for the Court, and he installed them in various 
rooms around the Court. One member of the Court who had been 
there for quite some time commented to him in a somewhat less 
than supportive manner, all these changes. That is the reaction 
in many ways.
    I think what Justice Breyer said, in seriousness, is 
correct. We are just there. I am the 106th member of the Court, 
and you recognize after a while that you are small compared to 
the institution and to the document and to the rest of the 
country. And any time you make a change, you think twice about 
it. Well, more than twice. You are very, very concerned that 
you are changing something that will affect the institution.
    One of the things that has impressed me about this 
institution, and having met great members of the Court such as 
Marshall, Brennan, White, Blackmun, Burger, toward the end of 
their tenure--Justice Powell--that they all felt much smaller 
than the institution; that no one of them at any time would say 
to you, do your job this way or that way, and that none felt 
that he was responsible for changing the institution. If 
anything, they all exhibited a certain sense of humility.
    So I make that point to say this: I think among the 
individual members you find no one who will aggressively push 
something that changes the institution in a way that will 
result in some diminishment of the institution. So if, to them, 
it could be shown that this will enhance the institution, that 
it will enhance the country, enhance the process, I think you 
will have the members who--they would support it. But if--and 
we have our doubts--they think it will diminish the institution 
and diminish the process and actually harm it for the country, 
they are reluctant.
    So there is some discussion. It has actually been quite a 
bit of discussion about that, particularly since this 
legislation introduced to do precisely that, to broadcast the 
Court's oral arguments. But it still had, from our standpoint, 
some disagreement about it.
    Mr. Culberson. And you would be controlling the Website, 
which I think is important, Mr. Chairman, that the Court have 
for security reasons, for accuracy of the pleadings, for 
accuracy of the documents, to make sure that amendments can be 
made quickly, if you are in control of the Website and can 
control the input, the output, what is being broadcast and what 
is not. And again, I would really encourage you to do it. It 
is, I think, a vitally important part of the role of the Court 
that the public understand what you do and remove some of the 
mystery that this great institution and the work that you do be 
made accessible. And it is actually very, very simple. In fact, 
Mr. Chairman, with your permission, may I demonstrate very 
quickly?
    Mr. Serrano. Absolutely.
    Mr. Culberson. I actually----
    Justice Thomas. You are not going to YouTube us, are you?
    Mr. Culberson. Not without your permission. I actually love 
technology, and I think I was the first elected official in the 
country in January 1987, when I was a freshman in the Texas 
House, I used a Macintosh, leased a computer to set up a 
bulletin board and communicated with my constituents. And this 
is a very simple service.
    With your permission, Mr. Chairman----
    Mr. Serrano. I wonder what I am agreeing to.
    Mr. Culberson. I am showing how easy it is to broadcast 
live on the Internet. We are now broadcasting live on my 
Website. This is a service called quik.com. This is a public 
hearing, and we are--in the 21st century, it is so important 
that the government be absolutely transparent and that people 
be able to see what we are doing.
    Mr. Serrano. In that case, let your constituency see what a 
liberal looks like.
    Mr. Culberson. What a good man you are. And what a good man 
you are.
    But I just wanted to demonstrate, Justice Thomas and 
Justice Breyer, that really in this age of full transparency 
and availability of this technology to everyone, that the 
government should indeed be transparent. It is easy to make it 
transparent.
    And I will shut it off. This is actually broadcasting live 
instantaneously on my Website. This is a way for all of us as 
Representatives--I think for the Court also--to make yourselves 
completely transparent to the public. It is that simple.
    Now I will shut it off.
    Mrs. Emerson. Now, you will have to let us know how many 
hits you got.
    Mr. Culberson. Actually this is a great service. It is easy 
to do. And what I want to leave up, I hope that the country 
will evolve. It is wonderful technology, and I know your 
commitment to transparency, the leadership's commitment to 
transparency. We had a little disagreement. I, for example, 
would like us to make sure that bills are actually posted on 
the Internet for 72 hours as the House rules require. That has 
not always happened. Or, as the new President has promised, 
that bills be posted for 5 days before he signs them. That 
hasn't happened.
    But, see, the beauty of this system is, Mr. Chairman--in 
conclusion, if I could have about a minute and a half to wrap 
up--is that the Internet will, I think, help the--we have, I 
hope, moved beyond the days where people used violence to 
overthrow the government. We can use bullets and electrons to 
change the government. And I think really the next American 
Revolution is going to come through the Internet in allowing 
the government to be completely transparent.
    I hope we reach the day, and I encourage you to go back and 
read my hero, Thomas Jefferson, his favorite letter--the best 
letter I ever think he wrote that explained his vision was a 
letter he wrote to Joseph Cable in February 1816. And it wasn't 
possible, Mr. Jefferson wasn't able to achieve it in his day, 
but he talked about--and, Mr. Chairman, you are very gracious, 
but this is important. This is the only reason I am here in 
Congress. Mr. Jefferson wrote in that letter, Justice Thomas 
and Justice Breyer, that it was his dream for the country that 
each individual American would be able to participate so 
completely in their government, that, as he said in the letter, 
they would rather have their heart torn from their chest than 
lose that participation to a Bonaparte.
    And he used as the example the New England town hall 
meetings where when he as President used an economic weapon, 
the embargo, for the first time in history. The entire country 
supported the embargo, he said, but this tiny minority in New 
England opposed it. And he said, it was as though the Earth had 
moved under my feet because this tiny minority was so well 
organized, was so--their local townships, their town councils, 
the locally elected representatives, the Governor, the 
Congressman from New England worked in unison to fight the 
embargo, and they overturned it.
    We are not really a democracy, Justice Breyer. We are a 
republic. And if the Republic is going to work the way it is 
intended--if you read Mr. Jefferson's letter, he envisioned 
that we would subdivide the country into elementary republics, 
all the way down to the county and township level, where each 
individual American would control everything that they could 
see and touch.
    And what I am driving at ultimately is I think the Internet 
gives us that ability for the first time, that free Americans--
we are all now so--it is possible for each one of us to see 
what a good man you are, Mr. Chairman, and I mean that 
sincerely. We have our philosophical disagreements, but you are 
a good man with a good heart, and you do your best for the 
people of New York, as I do. And if people can see and hear 
what we do, it strengthens the institution, Justice Thomas, as 
the United States Senate and the Congress were strengthened 
when C-SPAN opened up to broadcast live.
    C-SPAN is now in the 30th year that they have broadcast 
live. The Senate went through much of the same debate about 
whether or not it strengthened or diminished the institution. 
And since your opinions can change the course of American 
history, and any five of you at any given time can reshape the 
future of the American Republic, I would encourage you to break 
down that wall. It is as easy as me pushing this button.
    And that is where the next American Revolution is going to 
come is when we, the people, truly can see and hear how the 
sausage is made here, Mr. Chairman. I think we will see those 
tea parties that were such an--I think a very important 
reflection of a deep-seated fear, need for that fear. If we can 
see and understand what our government is doing, then we, the 
people, take back control of it and give that 10th amendment 
real meaning again and put each of us in control of our lives, 
our freedom, our prosperity.
    So I would encourage you to break down the walls. It is as 
easy as pushing this button. When you get that Website up and 
running, broadcast those oral arguments and let the people see 
what wonderful work that you do. And I think you would 
strengthen the Republic.
    Justice Breyer. That is a very, very good point. I think I 
like the technology.
    I think I would make two points that I think are important. 
One is the judiciary is much more transparent than people 
normally realize. Our work is done in public. The work consists 
of reading the briefs, listening to some oral argument, which 
is about 2 percent of the matter, and writing opinions that 
describe our real reasons for reaching the conclusions that we 
do. And the reason that people don't necessarily know all that 
much about it is unfortunate, but much of the reason lies not 
in the fact that the briefs are where the work is, not in the 
fact that they are not public, but rather for most people they 
are boring. Now, judges don't find them boring, but a lot of 
people don't want to go read it. That is why the reporters read 
them and report.
    The true problem with oral argument is this, in my opinion: 
On the one hand, of course, it would help people see how in 
some of these difficult issues we struggle with them, as do 
you. But on the other hand, we worry about one more symbol. If 
we suddenly had it in there as an oral argument, would it be in 
every criminal proceeding in the United States? Would it be? 
And if it would, what about the witnesses? What about the 
jurors? There are problems there. And, you know, people relate 
to people, and would they know that this is 2 percent of the 
matter, what they are seeing, and would they, in fact, 
understand that most of what we do does not involve the two 
people in front of us, the lawyers on either side. It involves 
the 300 million people who are not there physically in the 
courtroom.
    Now, maybe the answer to that is the gains are worth the 
risks, or maybe the answer is the risks are not, are such it is 
not worth the gain.
    So what I have always said, which I am happy to repeat, is 
I would like to know more of what I am doing, and there are 
ways of finding out. You can do serious social science 
research. I know that is sort of a bad word in a lot of places, 
but there is such a thing, and it can be unbiased, and you can 
find out how it shapes attitudes, and you can find out whether 
or not having that television in that oral proceeding does or 
does not make a difference. What, will it help people 
understand what is going on, or will it make matters worse in 
terms of their understanding? It is an open proceeding, you are 
right.
    Now, all of those are questions, and my own view is you 
have to be very careful about proceeding on this until you know 
a few answers.
    Mr. Culberson. Thank you, Mr. Chairman, for allowing me to 
go a little bit beyond my time.
    Mr. Serrano. Thank you.
    I think your points are well taken. We are living in a new 
era, and we have to understand what the ramifications of that 
is. I think we all agree, most of us agree, that we want to get 
as much information out as possible. You know, I represent the 
poorest district in the Nation and all that that entails in 
terms of technology. Ironically it is within walking distance 
of the wealthiest district in the Nation, and it sits within 
the richest city on Earth, in the Bronx, New York, and all the 
contradictions that entails. And I am constantly trying to 
figure out with that particular constituency how to get my 
message out. And my message simply meaning they should know 
what I am doing, and the Internet is the way to go. It is 
everything from Facebook to your Website to the fact that I am 
now hearing little tweets on my----
    Mr. Culberson. I am trying to make it go away.
    Mr. Serrano. But, you know, it is the way to go, and your 
comments are well taken. It is an institution that has been 
around before many of us. It is one institution that has made 
changes in the country and our society, but maybe has resisted 
changes as to how it reaches those conclusions to make those 
changes. We understand that. And the whole idea is that I think 
in many cases that train left the station already.
    When you see how this President was elected, and you 
realize that there were a couple of candidates who were sure 
that they were going to be the next President, and he went to 
kids and computers and websites in places where he was not 
supposed to even visit, some people thought, because he wasn't 
going to pick up any votes, and the next thing you know, the 
bandwagon started rolling. You know, a President gets elected, 
and the right thing to say and the right thing to know is that 
you owe your election to everybody. But let us understand that 
in Iowa and those first places, it was all college kids on the 
Internet carrying the message, and that was a revolution.
    So it is a revolution. It is a new day, and everybody has 
to understand what role we play in that new day. Of all the 
things you said, and I am glad you said it on the record, on 
tape, to hear you say that you are a revolutionary is the best 
thing.
    Mr. Culberson. I am. I am a Jeffersonian revolutionary.
    Mr. Serrano. I understand.

                          MINORITY LAW CLERKS

    But let me go to my next question, which really fits into 
this. If this is a new day, if this is a new time, then we have 
to make sure that as many people as possible share in it. And 
one of the issues that I speak about, as you know, Justice 
Thomas, every year is what progress is being made in increasing 
the representation of minorities within the ranks of law clerks 
and other professional staff in the Court.
    Although the situation is improving, minorities are still 
significantly underrepresented in the legal profession. 
Further, it appears that minorities are even more 
underrepresented in the clerkships in the high-level courts 
that are so important to future legal careers, whether in 
private practice or in public service.
    When we had our general hearing on the Judiciary budget 
last month, I asked the question for the hearing record about 
minority representation among law clerks in the Federal 
appellate and district courts. While the statistics are no 
doubt an improvement over previous decades, they still leave a 
long way to go. For example, while African Americans represent 
about 14 percent of the population and about 7 percent of 
current law students, they account for only about 3 percent of 
law clerks at the Federal appeals court and only about 4 
percent at the district court level. As for Hispanics, they 
represent about 15 percent of the population, 6 percent of 
current law students, and 2 or 3 percent respectively of law 
clerks at the courts of appeals and the district courts.
    Do you know if the Supreme Court maintains similar 
statistics about the representation of minorities among its law 
clerks and among the Court staff? And second, are there any 
special steps that the Court has taken to increase the number 
of minority law clerks and professional staff, outreach to law 
schools or to minority law students or bar association, for 
example?
    Justice Thomas. Well, over the years, Mr. Chairman, you and 
I have discussed this. The Court has 36 law clerks, and there 
are currently 36 law clerks there. And I believe, if my memory 
serves me correct or properly, 13 are women, at least 
identified from the--we don't keep statistics. And I really 
can't say I focus on it very much except when I come to this 
hearing. Thirteen are women, and I think four or so are 
minorities. Last year I think six or seven were minorities----
    Justice Thomas [continuing]. Just judging from our photos 
in our materials at work.
    With respect to the numbers, as I have said in the past, we 
receive what the law schools prepare. We hire from--I tend to 
have a very broad net. I hire from quite a few law schools. 
Others tend to hire from a more narrow or narrower band than I 
do. But we take the kids from the law schools. We hire from a 
certain portion of that law school population. That is 
important because the way that we work there is no start-up 
time. You hit the ground running and you are ready to go, and I 
am not Mr. Nice guy with my law clerks. I want things done; you 
have to be ready to do it.
    I think each of us has had minority law clerks with whom we 
were very satisfied and done outstanding jobs, but they are 
not--there is not a plethora coming from the band that we 
select from in law schools. It is as simple as that.
    I think in your statistics, it might help us, and I think 
be more reflective, if you look at where we get law clerks. And 
you have been encouraging us to broaden that, and I think the 
Court has done that. But I do believe that the numbers that we 
have and that you see in the judiciary are reflective of what 
is in the law schools, at least in the population that we pull 
from. I would like to see it increase, but it is the reality.
    Justice Breyer. I think if I can add one thing, Mr. 
Chairman, change is important here. I have had far more than 10 
percent, I think minority, far more. And on the African-
American side, far more than the 7 percent I am sure because I 
can think of them in my own mind. And I don't know about the 
Hispanic population, probably closer to the law school 
population. But I know my own.
    But taking this, when I started I made an effort, all 
right? Now, 15 years ago you had to make an effort. 15 years 
ago it required what I called outreach, a conscious outreach. 
And that means you go around and look where you get your 
sources and so forth.
    Today, it does not take that. It just does not take it. 
There is no problem that I see. I get plenty of applicants. I 
don't have to make the outreach to find good applicants, and 
once I find the good applicants they appear on the staff.
    Mr. Serrano. Well, I have always found it sort of tricky 
suggesting to the Court, Justice Thomas and Breyer, that I 
understand that you have a pool from which you select. And 
traditionally what I have heard from the court is from that 
pool we don't see as many minority candidates--but that is what 
I always read between the lines--as we do from other places. 
But then maybe you should expand your pool. I mean, the reason 
that there are so many Asian and Dominican baseball players now 
is because the major leagues went out and looked in other 
places other than around the neighborhood.
    But here is my point, and again it is a very delicate thing 
for me because I have tremendous respect for the Court. But 
there are these institutions in our country that are just 
incredibly important and good, and the more diversified they 
are, not only in its membership but in who is behind the scenes 
doing the work, the better it is for the country. This is not a 
numbers thing. You know. I could easily as a Hispanic Member of 
Congress hire only Hispanics. I choose not to do that. I am in 
some ways blind to that also because I want the best qualified 
people, but I also want a message to go out to people that if 
you elect someone like me, you are not going to be left out.
    Well, the Court I think--all courts should be able to send 
a message that all are welcome to participate at some level.
    Justice Breyer. I agree with you. And my point really is 
that the pool that I draw from in any case has not really, it 
seems to me, in later years had this problem. That is, just 
look at who is there. And everybody is there. And everybody is 
there. Go look at the pool today, my pool, and look at it 
compared to what it was. And my goodness, it is not just 
comparative. That change is there. And you say continue doing 
this, and I agree.
    Justice Thomas. I agree with Justice Breyer. I just don't 
make these arbitrary distinctions. I have a broad net. And 
whoever shows up shows up. Some clerks have shown up, I had no 
idea what their ethnicity was. I mean they may have told me in 
subsequent conversations during their clerkship. But it is just 
by casting a wider net.
    But the net always includes the best kids, kids who are 
academically and by their preparation in a position to do the 
work. I have never had a problem.
    Now, I think we should narrow, as I have said in the past, 
Mr. Chairman, what we are talking about. The numbers if we are 
looking at individuals who are Asian, we have large numbers of 
whether they are Asian or Indian. And again I don't like these 
categories. But that is not a problem. We are talking about 
black and Hispanic. Those are the numbers that you are really 
talking, those are the two categories that you are really 
talking about. The Asian population simply is not a problem.
    Mr. Serrano. Well, I am talking about all numbers. Those 
are the numbers that always come up. But look, I think I have 
made my point throughout the years, and I think you have made 
your point throughout the years--the Court has made its point 
throughout the years, and maybe when the Court says that it 
finds difficulty in change, maybe that is the area where it 
finds the most difficulty in change. But that is something that 
will evolve hopefully as we push for more folks to go to law 
school and to prepare for the profession and to be available.
    It still troubles me somewhat, but it even troubles me 
having to bring it up because it is a delicate subject. But it 
is one that I could not avoid, else I would not be honest to 
myself or to this chairmanship or to why I happen to be here in 
this moment in history.
    Justice Thomas. I don't think that that is an area, Mr. 
Chairman, where the Court has been resistant to change. We may 
be more resistant to the cameras, but not to that. I think that 
the members of the Court to a very great extent have bent over 
backwards making an effort. Now, you may not agree with the 
result, but I think that your questions have not fallen on deaf 
ears. Your concerns have not been ignored.
    And I agree with Justice Breyer, I don't have all of these 
problems. I think it is--I agree with what you say, you want to 
say to people: You are welcome here. You have a shot. Whether 
you are at Rutgers or whether you are at Harvard. You have a 
shot. Whether you are from the Bronx or you are from 
Westchester County. And that message has been sent. And I think 
I would not, if I were you, be frustrated. I think you have 
been effective in making that point. Not one that you have to 
hire a certain percentage, but that all are welcome to give it 
a shot.
    Mr. Serrano. Thank you. And for the record we sometimes 
speak to who is before us and we are also speaking to a lot of 
people that are not before us. It is across the Judiciary that 
there is this concern, not only in the Supreme Court.

                         SUPREME COURT WORKLOAD

    Let's talk briefly about caseload, which we have also 
discussed over the years. Statistics the Court includes with 
its annual budget submission show the trend basically 
continuing of a lower caseload. For the term that was completed 
last summer the Court heard arguments and issued opinions on 72 
cases compared to 160 cases 20 years earlier.
    Are there any thoughts you want to share as to the reason 
for this trend? Is it something we should be concerned about? 
One would argue that the less things that come before the 
Supreme Court, the better things are. Everybody is happy.
    Since most of the Supreme Court caseload is under its 
control, is this decline because the Court is becoming more 
discriminating in the cases it takes or are there just fewer 
cases that require Supreme Court review?
    Justice Thomas. We have asked ourselves that question over 
the years. When I first arrived at the Court I think we were at 
about 120. So I tend to think between 100 and 120 is a good 
number. I think much above that is too much. The Court never 
made a conscious effort to reduce those numbers. And I don't 
think the Court has been particularly parsimonious in 
exercising its discretionary jurisdiction.
    I think the answer is the cases simply are not there. Most 
of our jurisdiction is discretionary. If we have erred in any 
way, it has been in those instances when we have granted cert 
in cases that should not have been there, and then we would 
have to dismiss them as improvidently granted. But the Court 
has not limited--or intentionally limited the number of cases.
    But that is not the only thing we do. We still get the 
8,000 to 10,000 cert petitions that we have to deal with. There 
is always work to do. There is always the capital cases, the 
emergency motions. But with the argued cases, that decline is 
at this point inexplicable. I think we have tried to pinpoint 
the reasons. I may have speculative justifications for it or 
reasons for it, but it is nothing more than my speculation.
    Mr. Serrano. And just be clear that I was not suggesting 
that you should have more work. You are busy enough. In fact, 
there are some who want less government and others who want 
less court decisions. So it works both ways. Thank you.
    Justice Breyer. I agree with Justice Thomas. Justice 
O'Connor used to sit at the table and she would say we have 
space on our docket and we are looking for cases to take rather 
than the contrary. I have my own subjective views as to why 
this has come about.
    Mr. Serrano. Mr. Crenshaw.
    Mr. Crenshaw. Thank you, thank you, Mr. Chairman. And I 
apologize to you all. It is interesting, I know that you are 
dealing with a lot of issues that affect our country. I just 
came from--the reason I was late, Secretary of State Clinton 
was testifying and you listen to what is going on around the 
world and probably be glad you are on the Supreme Court. But I 
am sure it is tough there as well.
    And again I apologize, but I think somebody asked a 
question, I read or was encouraged that all the grounds and all 
those architectural components are kind of on track and 
actually did I read correctly it said that the requests are 
less than last year. I guess that is good. You don't find any 
agencies coming in and requesting less money than they did the 
year before. So it sounds like the buildings are on track, 
within budget, et cetera. That is encouraging.
    I was curious about moving--and maybe somebody asked about 
it--but moving the Web site in-house. Does that save money or 
just make it more efficient? Or what is the purpose of that? Is 
it more timely? What is the reason for moving it in-house?

                         SUPREME COURT WEBSITE

    Justice Thomas. Well, all of the above. As we discussed 
earlier, it does save money for us. Certainly it will reduce 
the expenditures at GPO. And for us, it saves not only time for 
us in-house in moving it, getting information to them, 
correcting errors, but it gives us control to make it more 
timely, to make it more responsive, to make it more 
interactive, to begin to uplink things like videos or materials 
that we think should be on it. In other words, to make the 
Court more accessible.
    This is the last piece of a large puzzle that we have been 
working on for more than a decade now. It is an important 
piece. But it has to be in-house.
    We are almost there. We have the infrastructure--we have 
about one-half, we have 45 percent of the infrastructure in-
house now because we prepare it for GPO to put it on the Web 
site. So 50 percent that we are bringing in is the rest of it. 
It gives us more control and it is an important piece.
    Mr. Crenshaw. It doesn't cost any more money to bring it 
in-house? Part of that money is just to do a better job of 
having it available?
    Justice Thomas. Well, it costs a little more because we 
have to bring--300,000 or so for the equipment, which is 
nonrecurring, and five people to do the work. But the advantage 
is this. It is not being done by GPO and we are doing a lot of 
the work now anyway. It also gives us control. I mean you have 
security problems. You have problems with errors. You have 
problems with timeliness that we get to correct in-house.
    Mr. Crenshaw. I get you. And I am sure you all talked about 
this before, but if the reason is to make the Court more 
accessible, more open and more transparent. The next step 
obviously is to televise all the hearings. And I imagine you 
have talked about that over the years. If you haven't talked 
about it already, I would be curious just what goes into that 
decision.
    On the one hand you say we want people to have more 
openness and access. Why do you stop there in terms of 
transparency? The next step would obviously just be to, like 
the floor of the House and the Senate, and C-SPAN is there, et 
cetera. I don't want to--if you have already answered that 
question, but I would be interested in just knowing what the 
theory is.

                        CAMERAS IN THE COURTROOM

    Justice Thomas. Congressman Culberson has made an 
impassioned plea for that and an impassioned case for that and 
has shown us how small the cameras can be. But as we indicated, 
the Court is reluctant to change the institution without 
knowing what the effect of opening the institution further will 
be on the institution, whether it will somehow harm it or 
whether it will enhance our processes. We don't know. There is 
constant discussion about that. But there is some disagreement. 
And I am trying to in a general way represent all the views 
that are at the Court, because there are strong views and there 
are views in the middle. There are strong views on the poles 
and there are significant views in the middle.
    So in representing all of them, it is something that the 
members of the Court are all concerned about and hopefully that 
the institution will not be harmed if we go one way or the 
other.
    We also discuss it in the context that there is pending 
legislation on this. But we don't all agree, but no one is 
resisting it just for the sake of resisting it.
    Mr. Crenshaw. Thank you very much. And just finally, I 
would say that I am from Jacksonville, Florida, and I know some 
friends of mine that travel around the country in motor coaches 
with you. So if you ever come back to Jacksonville feel free to 
stop by.
    Justice Thomas. I am going to run through there in a few 
months, over on I-10.
    Mr. Crenshaw. Yes, great.
    Justice Thomas. I have lots of friends down there. You must 
be somehow conflicted because you are Georgia and Florida, 
aren't you?
    Mr. Crenshaw. Actually I went to the University of Georgia 
and I went to the University of Florida, and a lot of people 
say you always knew some day you were going to be in politics 
so you were covering yourself for the big Georgia-Florida game 
in Jacksonville, and I of course say that is absolutely not 
true. But I am taking a correspondence course at FSU.
    Thank you, sir.
    Mr. Serrano. Well, we go from one Florida member to another 
Florida member. Mr. Boyd.
    Mr. Boyd. Thank you, Mr. Chairman. And Justice Thomas, 
Justice Breyer, thank you for being here and for your service. 
And unlike Congressman Crenshaw, I didn't go to Georgia. I only 
went to the University of Florida and I want to remind him that 
today over at the Library of Congress they are honoring the 
2009 national football champions. That is the University of 
Florida Gators, Mr. Crenshaw. So you could probably upgrade 
yourself by going and taking a correspondence course at FSU, 
too.
    Mr. Serrano. Take Spanish while you are at it.
    Mr. Boyd. Thank you, gentlemen, and thank you for your 
fiscally conservative request. I know these are very, very 
tough times. And I know to present that, to put that together 
you had to turn down some things or cross out some things. And 
I apologize for being late, but I understand that has not been 
talked about. Could you briefly talk about that?

                            FUTURE REQUESTS

    Justice Thomas. Well, some things have to be put aside. I 
think that we would perhaps at some point in the future want to 
come back and discuss some more security issues. Particularly 
our police force and with the new security requirements and the 
pressures on us now, I think we may be back on that.
    But we understand that we cannot have, even if it is just 
several positions, these are difficult times. So our effort was 
to choose something that at this time needed to be done to 
finalize our Website because we are at crossroads. We have to 
decide whether to upgrade what we have at GPO or bring it in-
house. And what we do now will be our decision certainly for 
the next decade or so.
    But yes, there are things that we did not put before this 
committee. Security is one of them.
    Mr. Boyd. Thank you. Thank you, Mr. Chairman. That is all I 
have.
    Mr. Serrano. Ms. Emerson.

                           PERIMETER SECURITY

    Mrs. Emerson. Speaking of security, let me ask you a few 
questions about that or is that something you would prefer to 
talk about at a different time? Okay.
    Obviously given the dangers of terrorism and your all's 
high profile and the building itself, security ought to be a 
top priority in your budget. And I know that you are requesting 
3 million for perimeter security along Maryland Avenue and 
Second Street. And I also understand that you have a hundred or 
more than 100 Supreme Court police officers. So I would like to 
know, one, how the 3 million requested for the perimeter 
security, how you feel that will improve the security of the 
Court, and I would also like to know whether or not the opening 
of the Capitol Visitor Center has actually had an impact on the 
way that you all--your visitor screening processes, and then 
why you all have police that are just for the Supreme Court 
versus using the Capitol Police. Curious about that.
    Justice Thomas. This is the first I have been asked about 
the latter. It is certainly not because we are provincial in 
that sense or we have to be--it is part of our history. I would 
have to go back and look at the history of that. But with 
respect to the security, the Maryland Avenue perimeter is a 
part of the ongoing security development. That is last or among 
the last changes from a security standpoint. We have done the 
south side--I think the east side of the building, we have done 
the west side, but we have ongoing construction on the north 
side. But that has always been a part. This is just one phase 
of the perimeter security, and that of course has been planned 
for quite some time.
    With respect to the--I think your overall question has to 
do with whether or not we think it is adequate. I do think that 
we have upgraded our security over the years. This is even 
before 9/11. We began upgrading our police force to essentially 
bring it in line with the Capitol Police force and to 
coordinate with Capitol. After 9/11, of course, we all became 
very concerned about security, and that concern continues, and 
we may well be before this committee to discuss in more detail 
some of our specific security issues in the next budget cycle.
    Justice Breyer. I asked Marshal Talkin and I know she said 
the Capitol Visitor Center has increased by 100,000 the number 
of visitors. That is her estimate, a guess really. We get 
500,000 or so a year, and I think probably the number would be 
higher were all this construction not going on. So I am looking 
forward to that. I think the more the better. And the place is 
open and it should be open to people, and the more that come in 
and see it, it is their building, it is not ours, and the more 
that come in, the better.

                         BUILDING MODERNIZATION

    Mrs. Emerson. And with regard to the modernization, Justice 
Thomas, you said at beginning of your remarks that the overruns 
were on the front end of the process. Do you feel comfortable 
with the existing resources that you have been allocated to 
complete everything?
    Justice Thomas. We are actually under budget. And this 
committee has been very accommodating throughout the process. 
And so from a time standpoint we are late, a year and a half 
late. But that problem occurred early on. From the standpoint 
of the budget, we are under budget and hopefully the project, 
just as the building did back in 1935, will come in under 
budget. But as it appears now it will come in under budget.
    Mrs. Emerson. Shockingly. That is wonderful to hear and 
perhaps sets a good example for some other ongoing projects 
that we have to deal with. But fortunately that is not your 
problem.
    Have you all had--I mean, this is a touchy subject, but I 
raise it. Have you all had a good working relationship with the 
Architect of the Capitol over the course of this project?
    Justice Thomas. I think we have worked well with the 
Architect of the Capitol. It has worked out. I have never 
worked with him, but based on what I heard, it is a 
relationship that has functioned fairly well throughout some 
very, very difficult projects.
    Mrs. Emerson. I appreciate that, thank you. Thanks, Mr. 
Chairman.
    Mr. Serrano. Thank you. Ms. Lee.
    Ms. Lee. Thank you, Mr. Chairman. I apologize for being 
late. Several committees at one time, but it is good to see you 
both.
    Let me just follow up and say I was vice chair of Leg 
Branch during the construction of the Capitol Visitors Center 
for a large portion of that. I am glad to hear you say you are 
under budget, and also say that the Architect of the Capitol, 
Mr. Ayers, and the team did a fine job in bringing it to its 
final conclusion. Final conclusion.

                         STUDENT LOAN PAYMENTS

    So let me ask you, and I briefly perused your testimony and 
I didn't see anything about an initiative or program that helps 
employees pay their student loans. When I first came to 
Congress, boy, 11 years ago, I worked on a student loan 
repayment benefit for employees because of course our employees 
work day and night, night and day, salaries really are not 
comparable to the private sector, and so we thought this would 
be a good benefit. And we included that in the budget for that. 
And I am wondering if the Supreme Court has any type of a 
student loan repayment program that is similar to the House 
staff benefit package for student loans.
    Justice Thomas. Well, primarily we looked into that several 
years ago, and I cannot remember exactly what became of that. 
But the individuals who would most use this would be law 
clerks, and for the most part the law clerks are in a 
financially substantial position after they leave. And by that 
I mean financially substantial. Unlike most staffers who stay 
on as a part of their career and may or may not after their 
clerkship, for the most part, some teach, some go into public 
interests, some go into government, but those who go into the 
private sector receive significant bonuses and salaries.
    Ms. Lee. Okay. And so support staff, you don't have a large 
percentage of staff members who are support staff who would be 
researchers or----
    Justice Thomas. I don't think so. I think for the most part 
I have had a number of my staffers who have gone to night law 
school but they have worked and paid as they have gone along 
the way and they didn't have substantial indebtedness. Maybe 
some, but not $150,000, $200,000 as some of those kids have.
    Justice Breyer. I can add, I would like to add that I do 
encourage my clerks when they leave the Court, I would like to 
see a lot of them go into public service. And they have plenty 
of opportunity in the private sector, believe me. But it stays 
there and to spend a period of time in public service is 
fabulous, and so I think if your program throughout the 
government or wherever you put it can encourage those law 
students and those graduates, recent graduates, including our 
clerks, to go into public service, I think that is wonderful.
    Ms. Lee. Well, I think this is a benefit for our 
congressional staffers after they leave. And finally, let me 
say I understand you went through the diversity question 
because I too of course have many of the same concerns in terms 
of diversity, hiring and making sure that the Supreme Court 
reflects the numbers that we should see in terms of diversity.
    You got that information, Mr. Chair? Right? Okay. I will be 
talking to the chairman about it. Thank you very much, good to 
meet both of you.
    Mr. Serrano. Mr. Culberson.

                           COURTHOUSE LEASES

    Mr. Culberson. Thank you, Mr. Chairman. I wanted to ask if 
I could about the workload that the courts are having to deal 
with at the District Court level, the Appellate Court level. 
Certainly your workload has just increased dramatically. And 
just give you an open-ended opportunity to talk to us about 
what we could do in Congress, the Appropriations Committee, to 
help ease some of that burden. I know one chokepoint, certainly 
courthouse space is a terrible problem, one of the most 
expensive things we build because of the security requirements. 
One suggestion I would throw out, for example, Harris County 
government has the ability--has got very good bonding 
authority, do a good job of building new structures, and I have 
not seen courts lease courthouse space from local government. I 
don't know that that has been done before. But certainly it is 
something we should consider.
    So I wanted to ask you, if I could, both of you, Justice 
Breyer and Justice Thomas, if you could offer us your thoughts 
on what the Congress could and should do to help ease the 
burden when it comes to the workload. Are there a couple of 
areas that you would recommend that we should look at in 
particular?
    Justice Thomas. I think the Chief Justice's year-end report 
covers most of that, and his point there is that we are trying 
to do more with less, and I am not going to undercut that by 
making any personal suggestions. But the only point that he was 
concerned about, or his major point of concern was this: Even 
in light of making the cuts and doing more with less, his 
concern was again the retention of judges, the fact that we 
still have the pay issue. That is the elephant in the room. And 
it is one of continuing concern, particularly the District and 
Court of Appeals level.
    But beyond that, I am not going to undercut his 
recommendations. And again the workload issue depends on where 
you are. I think what we have is manageable, is fine. But if 
you are at the Central District of Florida, that is a very 
intense and high volume area. So I am not going to suggest 
anything for them. I think that if I were--I am the circuit 
justice for that area. I would actually like to see them have 
more. I would like to see some of the cuts go away so that they 
can be more flexible with staff, but the circumstances are not 
such that we can do that.
    Mr. Culberson. Do the courts have the authority now under 
existing statutes to contract with local governments?
    Justice Thomas. I don't know. I don't know.
    Mr. Culberson. I am sorry, Justice Breyer, did you want to 
add anything?
    Justice Breyer. If you are saying what could Congress do, I 
don't have short run suggestions but I do have longer run 
suggestions. One is if you do have a judge, you do have to have 
a courtroom. And in Los Angeles there is a big hole in the 
ground because the money was not appropriated to build the 
courthouse. I was in Hawaii and the Federal courthouse that was 
built there, a quarter of it, in my estimate, is closed because 
when it rains it rains more inside that courthouse than it 
rains outside.
    These, I add, are very good stimulus projects in place and 
they end. They end when it is built. There is a second thing, 
and the second thing is simply this. I hope that when you look 
at things, as I am sure you do, I hope you look at the longer 
run. For example, it is very hard for the courts to get through 
in their budget things like pretrial services and supervision 
and probation, and so forth, but if you are worried about a 
crime problem, quite often it saves you money to take that 
person on the drug charge and to run him through pretrial 
services than to put him in a prison and keep them there for 20 
or 30 years. So in the long run a lot of these things if you 
look at them in the long run, I believe you will find in the 
long run they save money.
    Mr. Culberson. And reducing crime, the certainty of swift 
and sure punishment has a terrific effect on reducing caseload, 
and I can testify to that personally, Mr. Chairman. In the Del 
Rio sector on the border and the Laredo sector, with my 
colleagues Henry Cuellar and Ciro Rodriguez, we very 
successfully implemented a program called Operation Streamline, 
which is a zero tolerance program where anyone--and our 
Secretary of Homeland Security apparently doesn't understand it 
really is a criminal offense to cross the border illegally. But 
if they cross the border in the Del Rio or Laredo sector, they 
are prosecuted, using good judgment of course obviously, but 
there are existing laws up to 6 months. They are incarcerated 
for a few days up to 6 months and then deported, and the result 
is there is actually vacancies in the Val Verde County jail. 
There are vacancies and the crime rate has dropped 70 percent 
in the Del Rio sector and over 60 percent in the Laredo sector, 
which was one of the most dangerous sectors. And this is 
bipartisan, the local community supports it. This is something 
that we worked on together. It works beautifully. So don't 
forget swift and sure punishment also works, with a 
compassionate heart because we do need to fix the visa system 
as well. And you trust officers to use their good judgment.
    But the courthouse question, if I could very briefly, Mr. 
Chairman, I would encourage the committee and the Congress 
should look at. As you mentioned, Justice Breyer, in Los 
Angeles there is a hole in the ground and in Hawaii the 
building leaks. I don't think it is permissible for the courts 
to contract with local government to lease courthouse space, 
but it is certainly something we should consider. I am 
confident in California and Florida, New York, Missouri, 
certainly in Texas our local governments build first class 
facilities and the Harris County government I know is ready, 
willing and able to build a new courthouse for the Federal 
courthouse in Houston which was built in the 1950s. They could 
build it quickly with bonding authority and then lease it to 
the Federal judiciary and I think solve that problem for you 
very, very quickly.
    And then finally, I do hope you will not wait to do a big 
social science study, comprehensive as to whether or not you 
should broadcast on the Internet. Trust your heart and your 
instincts. I hope you on the Court will just make the 
decision--I am frankly not sure--I see that Congressman Poe has 
filed legislation to allow broadcast of the Supreme Court's 
oral arguments. I hope the Congress would not impose that on 
you, you should do it of your own free will, but would such a 
statute be valid? I mean, isn't that an internal proceeding of 
the Court?
    You can't I guess even speculate, but I hope it is 
something that you will do of your free will. Don't wait for a 
social science study. Remember the tea parties on April 15th. 
The country is fed up. Let's just open the doors and let the 
sun shine in and trust the judgment and good sense of the 
American people.
    Thank you.
    Mr. Serrano. It only took him two rounds to mention 
immigrants. He usually does it on the first round of 
questioning. The country is not fed up.
    Mr. Culberson. With taxes and spending they are fed up.
    Mr. Serrano. Trust me, the country isn't fed up. Just some 
folks from TV are going out and starting parties all over the 
place.
    Mr. Boyd.
    Mr. Boyd. Thank you, Mr. Chairman. I know that Mr. 
Culberson's point was about facilities, specifically 
courthouses. I guess your specific question, Mr. Culberson, was 
could they contract with local governments? I know you can 
contract with other entities, private folks who can lease back; 
is that correct?
    Justice Thomas. I don't know. Why I am reluctant, 
Congressman, is that that is something that is within the 
jurisdiction of the AO. The Administrative Office of the 
Courts, and I am reluctant to comment on something that I have 
no authority over.
    Justice Breyer. The Chief Justice I think has spoken about 
this, and I know the Judicial Conference has views on it, and 
there is a continuous tussle here with the GAO. We pay a lot of 
rent. The court system pays a huge amount of rent to the GSA, 
and there is always a big argument about that and some people 
feel the judiciary could lower the rent maybe a little, and 
some people feel the opposite. So we are not in the midst of 
that problem here. We are not. We are not experts on that.
    Mr. Boyd. I am talking about out in the country, your 
fellow courts, many of your courthouses are leased.
    Justice Breyer. GSA has leased space. Yes.
    Mr. Boyd. Would either one of you be willing to or feel 
comfortable talking about what Congress can do to make this 
better? And here is my question: ultimately, you guys put forth 
a facility needs request. That comes to Congress, and Congress 
makes those decisions about which ones get funded and which 
ones don't ultimately. And I ask this question because I have 
been involved in trying to fix a very inadequate courthouse 
facility in the Northern Florida District. And we have been 
working for years to see what could be done or couldn't be 
done, and so I have learned a little bit about what Congress 
does and doesn't do. Would either one of you be willing to talk 
here to the committee today how we might better that process to 
more efficiently use the funds and appropriate the funds that 
we do have?
    Justice Breyer. I can't specifically, but when I was on the 
Court of Appeals we built a new courthouse in Boston. I got 
very much involved in this process and very much involved with 
GSA, and I know that there is tension and I know that we have a 
committee, the Space and Facilities Committee in the Judicial 
Conference, that has a set of recommendations. And that is 
going through the Executive Committee, approved by the Judicial 
Conference, and I think that there are lots of things that 
could be done. So my suggestion now because I am so out of 
touch with this because it doesn't come into my life now, is if 
you are interested in that, which I am glad you are, that you 
get your staff to get ahold of those reports and go to the 
Judicial Conference or the Administrative Office with Jim Duff, 
and I am sure he could present the judiciary side of that.
    Justice Thomas. I think you would profit more from working 
with Jim Duff, who heads the Administrative Office of the 
Courts. I have not been a chief judge as Justice Breyer has and 
built a courthouse, but I think you would get a better sense of 
the priorities of the various courthouses and the construction 
projects that are ongoing.
    And the problem a lot of times is simply that you have 
needs, and you have Central Florida, for example, that has huge 
workloads and it is bursting at the seams. Of course they need 
another courthouse or they did need it, they have a new one 
now. But there are also places that do not. I am not familiar 
with that. I am aware of my circuit. I am aware of the 11th 
Circuit. Jim Duff would have an idea of the entire country and 
would be much, much more helpful to you.
    Mr. Boyd. I will do that, and I thank you for that counsel 
and advice. And my question really is, I don't so much have a 
problem with the judicial process. It is what happens after the 
Judicial Conference, or whatever makes those determinations, 
and it goes on a list, then what happens? I think more of the 
problem is in Congress than it is with you being objective 
about what the needs are and where they are.
    Justice Thomas. But Jim Duff works with that process and 
trying to get it through and with the chief judges in the 
respective areas, and I think it would be extremely helpful to 
talk with him.
    Mr. Boyd. I appreciate that counsel. Thank you, Mr. 
Chairman.
    Mr. Serrano. Thank you. Mr. Crenshaw.
    Mr. Crenshaw. Just to say in my area of Florida we have a 
brand new Federal courthouse and it is just state of the art 
and it is fantastic, and my colleague from Florida if I can 
help him work on one for his area I would be happy to do that, 
because he went to the University of Florida, as you all know.
    Mr. Serrano. You realize that this committee oversees GSAs 
and this will cost me a lot of money, this deal you guys are 
making.
    Mr. Crenshaw. I don't have any other questions. I would 
just like to thank both of you for being here today and for the 
work that you do. We really appreciate it. Thank you.
    Mr. Serrano. Ms. Lee. I wanted to ask one last question and 
then we will let you folks go and we will see you on TV later. 
No, I am just kidding.
    Incidentally, I like Mr. Culberson and I was not making any 
comments about those parties. They are real, there are 
feelings, it is just that everything that is going wrong didn't 
start January 20th. It has been around for a little while. As 
long as we understand that.

               JUDICIAL AND LEGISLATIVE BRANCH RELATIONS

    In its end of year report on the Federal judiciary last 
year, Chief Justice Roberts talked about the need to improve 
relations between the judicial and legislative branches of 
government. Do you have any thoughts about what steps we, the 
Congress, and you the courts, can take to improve communication 
and understanding on matters of mutual interest? I mean, I do 
not fully understand what he thought the problems were. We get 
along just fine once a year. But any thoughts?
    Justice Thomas. I am not going to speculate. I think there 
have been some tensions and there is a sense among Federal 
judges that there is an effort to not assist them but rather to 
impede their abilities to do their jobs.
    With this committee, I think this committee has been a 
perfect example of oversight and assistance and prodding and 
yet helping. We have worked extremely well together on some 
very important things for the Court. We have worked on 
security. We have worked on the upgrading of the infrastructure 
of that building. We have worked on personnel issues. We have 
worked on our IT problems.
    And we haven't always agreed, but you have always been 
helpful and respectful. I think it starts in the way that you 
have approached it, with your approach, with your attitude, 
that we are not going to agree, but it is important that we get 
the job done.
    I do think that the concerns that Federal judges have about 
some of the legislation, the withdrawal of the COLA, the pay 
issue has been a very important issue for many Federal judges, 
concern about the legislation that precludes them from modest 
things that they were doing, just honorary memberships in 
clubs. I am not a member of anything other than the, you know, 
Nebraska Cornhusker clubs or something like that, or motor home 
associations. But the point is that they see that as negative, 
it is not helpful.
    So it does not foster a good working relationship, and I 
think perhaps the legislative branch may see other things that 
they think is an affront to them. But I think that the way that 
you have approached it and we have worked together is a good 
example of the relationship that he is hoping to develop 
throughout the government. The model. I think it has been a 
wonderful model. When Chairman Wolf was here, when you were 
more junior and I was more junior.
    But I am not going to speculate on all the concerns that 
the Chief might have. I have my own personal ones, I am not 
going to list those. And I have my own views of what is 
happening. But I am not going to in any way impute that to the 
Chief or to the whole judiciary, but I think you are an example 
of what is good. This committee is an example of what is good. 
You are doing your job, but you are helping us to do ours.
    Justice Breyer. I agree with that. I think this works well. 
This is my first time here, but it seems to me that it works 
very well, because we have a problem, an issue, and we can deal 
with it together. That is fine, and it is cooperative.
    I worked on the Senate staff for a while, and I would say 
that there is an enormous difference in the institution. If I 
have to say it in one word it is the factor of time. You have 
no time. Your time is--you are torn in a thousand directions, 
you have to make decisions instantly. You have all of these 
different people you have to talk to, and your job is one where 
it is minute by minute. Our job is one where the virtue of the 
job is to take a long time, often by ourselves thinking out a 
problem. So they are not in gear, you see.
    So we don't come into your life very much, and there is not 
much reason. You come into our lives all the time. So that is--
I have a suggestion which I would like you to follow up on, but 
I understand if you don't. And that is that you sometimes--and 
you like to do it and then you never get around to doing it--is 
come over, call up my office or Justice Thomas's and sit down, 
have a cup of coffee, and listen to an oral argument. And we 
will take the time. We are there. And we will say look at my 
shelf over here this is what my day is like, and it is very 
different from yours. And once you see that and once you 
understand how we think about these things, I mean, that helps. 
I think that helps. You are all invited.
    Justice Thomas. You be careful looking at those shelves. 
Senator Danforth came over to my office after I arrived at the 
Court and he saw all the briefs that we have go through and 
prepare for argument. I will never forget his words. He said 
Clarence, this is really boring.
    Mr. Serrano. Not everything is as exciting as some people 
would think. I thank you for your testimony today. I thank you 
for your service to this country. Maybe what Justice Roberts 
was speaking about at times is the fact that there was a period 
of time here, which I hope has ended, where some Members of 
Congress who didn't like certain decisions coming from courts 
throughout the country decided that they were going to try to 
legislate those decisions after the fact.
    I am much to the left of the spectrum politically speaking, 
and so there are many decisions I don't like, but I am smart 
enough or understanding enough or respectful enough of the 
Constitution to know that there is a process and that I want 
this branch to be respected and I have to respect that branch. 
I feel this branch sometimes lately has been slightly under 
attack by the whole question of what other branches can do to 
Congress. And as you said before, and it was a very profound 
statement, we are just here for a while. These institutions 
will stay. And some people sometimes say to me you are 
confusing me, you are a liberal but then you are worried about 
this change and that change. And I say well, because I want 
this institution to be here after I am gone. I didn't come here 
to be part of its destruction. I came here to diversify it and 
to make it stronger. And I think some folks would love to leave 
some institutions in shambles when they leave, and they could 
care less. We don't need any governments. Well, they tried that 
in some places and it didn't work. And as far as this whole 
technology thing, which I agree with Mr. Culberson on, it is 
just a way of letting people know. I know that change 
sometimes--it took me awhile but now I am crazy on Facebook and 
twittering and the whole thing. People are not going to in any 
way infringe on us, but to keep them informed, to let them know 
that we are people at times. I sometimes put out information 
that talks about what I am doing at this hearing and I also put 
down how difficult it was to run 3 miles this morning, and I 
feel like I was carrying somebody on my back.
    Justice Thomas. That was me.
    Mr. Serrano. And so it is just a new age, we adapt to it 
and we change with it. But one thing that doesn't change is the 
respect we have for what you do for this Court and for our 
institutions. And you know, we disagree, we sometimes are angry 
and not happy with the way things are going, but at the end of 
the day both the people to my left--no, there is no such 
thing----
    Mrs. Emerson. Sitting on my left.
    Mr. Serrano. People sitting on my left and people sitting 
on my right, we know that we have a pretty good thing going in 
this country. We just want to make it available to all of its 
residents and not push it down anybody's throat. Just make it 
available for people to see how we do it and maybe learn from 
us.
    With that, we thank you.
    Justice Breyer. Thank you.
    Justice Thomas. Thank you.
                                           Tuesday, April 28, 2009.

                    TESTIMONY OF MEMBERS OF CONGRESS

                               WITNESSES

HON. HENRY CUELLAR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 
    TEXAS
HON. RUSH HOLT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW 
    JERSEY
    Mr. Serrano. The committee will come to order.
    We welcome everyone.
    This is the hearing where Members of Congress come to speak 
to us about any appropriation subject related to their district 
or for funding at the national level. All committees are having 
these hearings, and so we will be conducting the hearing today.
    We have two folks who have asked for time to speak, 
Representative Henry Cuellar of Texas and Representative Rush 
Holt of New Jersey. We may have another Member who comes in. 
However, I want to make it very clear that, as soon as we are 
finished with this hearing, we will gavel quickly so some of us 
can go to other hearings, in my case the Commerce Secretary's 
hearing.
    With that in mind, I recognize and welcome my colleague, 
the ranking member, Mrs. Emerson.
    Mrs. Emerson. Mr. Chairman, I appreciate your doing this 
hearing today, and I look forward to hearing from all of our 
colleagues.
    Mr. Serrano. Our first witness is Mr. Cuellar of Texas.
    You are free to put a full statement within the record, and 
we beg you to stay within 5 minutes.

               Testimony of Representative Henry Cuellar

    Mr. Cuellar. Thank you, Mr. Chairman and Ranking Member 
Mrs. Emerson, and Chet also.
    I put a statement in for the record, but I want to 
emphasize one thing that the border Members have requested, and 
that is to put in more money for GSA funding. I think we had 
asked for $500 million for the ports of entry.
    I think the U.S. has done a good job of putting money into 
the airports and the seaports but not a good job in putting 
money into land ports; 80 to 82 percent of all of the goods 
coming into the U.S. come through land ports. But at the same 
time, we have not put the money into our ports. And I would ask 
you to consider our $500 million request. I think we got the 
border folks to sign onto this.
    Last time, under the stimulus package, it was $300 million 
that got added, but it is only a drop. I think the full amount 
for Customs and Border Protection that we need for the southern 
and northern borders, I think it was $4.9 billion. So the $500 
million is just a drop in the bucket. But $500 million for both 
the southern and northern ports of entry would do a lot to help 
us. We are asking you all to consider that.
    I have put some language, some proposed language, to help 
streamline the process in the building of the ports of entry. 
There has always been a tug between GSA and CBP, and I ask you 
to put some strong language to help them consolidate and 
streamline the process. I know that they say they have done 
that. But the reality is that to build something in 7 years is 
too long.
    Laredo is an example. We get 13,500 trucks a day, that is a 
day, just through the ports of entry in Laredo. And to wait 7 
years would be too long.
    I ask you to consider that request.
    [The written statement of Representative Cuellar follows:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Serrano. Thank you.
    The time issue that you mentioned, you say to expedite the 
program, what seems to be the problem as they tell you?
    Mr. Cuellar. What they tell us is, you basically have two 
agencies. You have the landlord, which is GSA, and then you 
have the tenant which is CBP, the border protection; Customs 
and Border Protection CBP, should I say.
    They have one priority, and they have another priority, and 
to try to get them together and streamline the process, I have 
gone through this over and over with them. They say that they 
have streamlined the process, but I think they can do this 
quicker. Seven years, in my opinion, maybe I am not used to 
Federal Government standards, but I still think that type of 
limitation is too long.
    If you can put some strong language, even though they will 
come up to you and say we have done this, but I think they can 
streamline and consolidate a lot of the process.
    Mr. Serrano. If we consider that in our argument, we say 
what do some people, some experts, some professionals claim 
this can be done in?
    Mr. Cuellar. I would say in a lot less. I would say about 3 
years. For example, if you get the cities on the border, the 
city managers, they can tell you that this can be done a lot 
quicker than the time that they are doing it. I mean, the 
Federal Government just moves a lot slower.
    Mr. Serrano. Thank you.
    Mrs. Emerson.
    Mrs. Emerson. What is puzzling to me, seriously, Henry, is 
that you have got GSA getting $5.5 billion of stimulus money 
basically to do upgrades of buildings and stuff like that. But 
in this particular case, to me, if that is such a critical port 
of entry, then it is imperative that we get it done. But I 
guess DHS in essence is the one who has to sign off on it since 
Customs and Border Patrol comes within that Department, right?
    Mr. Cuellar. Right. And the thing is, when you look at the 
budget for GSA, the ports of entry are about this much because 
the rest are Federal courthouse buildings in New York and 
Chicago and other places. So the ports of entry is just a small 
portion of their budget. And, therefore, their priorities, in 
my opinion, are just less.
    But if you look at it, over 80 percent of all the goods 
coming into the U.S. come through land ports. Why have we not 
done more? This is not just the southern part, but also in the 
northern part.
    Mrs. Emerson. Did not GSA get some emergency money in 2008 
to be working on this? I think they did.
    Mr. Cuellar. I don't know what they got on that. But under 
the stimulus package, the signed amount was $300 million. Total 
was $720 million, but $420 million went to CBP for the CBP 
owned ports of entry. But GSA, which owns the majority of the 
ports of entry, just got $300 million on the stimulus package. 
And again, their needs, I believe, are closer to $5 billion. 
And $300 million is not going to do that; $500 million is not a 
lot, but I thought it was reasonable for the committee.
    Mrs. Emerson. What do you get for the $500 million?
    Mr. Cuellar. It depends what they have. It depends. They 
have a priority list that unfortunately they jumped around. 
They jumped around on even the priority list that they had. It 
depends on what ports they cover and what priority they have. 
They could cover some ports, but not all of them. It just 
depends on how far they go down the priority list. I believe 
you all should have a list. If you haven't seen it, I would ask 
you to get the GSA priority list and then ask them how the 
stimulus money, and I don't want to get into the politics of 
it, but the stimulus package went from number one and number 
two, and then they jumped down to number 25. So they didn't 
even follow their own GSA. We have a meeting with them next 
week.
    Mrs. Emerson. It did not just happen with ports of entry.
    Mr. Serrano. Thank you.
    Mr. Edwards.
    Mr. Edwards. Mr. Chairman, thank you.
    I just want to thank you, Henry, for bringing this to our 
attention. The numbers are astounding: 30 percent of 
international truck traffic moves through Texas land ports of 
entry, and is $100 billion in goods with Mexico. Clearly, there 
is a need here, and thank you for bringing it to the attention 
of the chairman and the ranking member of the committee.
    Mr. Cuellar. Again, I know you have got to move on, but I 
would ask you to just to look at the GSA or the Customs and 
Border Protection needs that they have. I think you will see 
about $4.9 billion. And I know $500 million is not a lot, but 
if you start looking at the long plan, I would ask you to 
consider that, because over 80 percent of all of the goods come 
through land ports, not seaports or airports, we have to 
support seaports and airports, but over 80 percent of the goods 
coming into the U.S. come through land ports, but we haven't 
really done much on that.
    Thank you. I don't want to keep you.
    Mr. Serrano. Thank you.
    Our next witness is the gentleman from New Jersey, Mr. Rush 
Holt.
    You are free to submit a statement for the record.

                 Testimony of Representative Rush Holt

    Mr. Holt. Chairman Serrano, Ranking Member Emerson, Member 
Edwards, I thank you for giving me an opportunity to testify in 
support of the request for a billion dollars in funding for 
election reform programs for the Election Assistance Commission 
for fiscal year 2010.
    In the half dozen years since HAVA was enacted, citizen 
watchdog groups have been created across the country that have 
tracked, reported and catalogued irregularities in the 
elections and failures of the systems.
    In 2008, for example, one of these groups, Our Vote Live 
Hotline, received reports of almost 2,000 voting machine 
problems in a dozen States.
    Now while some might argue that the lack of a meltdown in 
the most recent Presidential Election suggests that voting 
system reform is no longer necessary, in fact, I think it 
suggests just the opposite. Between 2003 and the 2008 election, 
31 States have established some form of paper ballot 
requirement. Eight more are using paper ballots without having 
them mandated, and 18 have established audit requirements.
    So 2008 was one of the first elections, in fact, was the 
first election that we have experienced since the advent of 
computer-assisted voting, which benefited largely from what 
should be mandated, which is auditable, independently audited 
elections. In other words, many of the States are making the 
transition in the right direction.
    The Election Assistance Commission under HAVA from the 
Federal Government should be offering more assistance to them, 
and that is the reason for this request for funding.
    The ongoing recount of the U.S. Senate race in Minnesota 
illustrates why we need these reforms. The Minnesota Secretary 
of State Mark Ritchie, as the person responsible for the 
State's routine audit and recount, has sung the praises of 
their paper-based, optically-scanned ballot system because it 
made it possible for him to do a recount quickly, fairly, 
accurately and with a high degree of trust. Without that 
system, he couldn't even have done a meaningful recount.
    I want to make clear that not only are paperless voting 
machines fundamentally insecure and not only do software errors 
occur on every voting system used in every State in this 
Nation, but the United States appears to be the only developed 
nation in the world that uses computer-assisted elections 
without requiring some sort of voter-verified paper ballots as 
an independent audit mechanism.
    An analyst from the CIA testified at a public meeting of 
the Election Assistance Commission Standards Board and said in 
a couple of quotes here, ``wherever the vote becomes an 
electron and touches a computer, that is an opportunity for a 
malicious actor potentially to get into the system and tamper 
with the vote count or make bad things happen.''
    He also said, ``The bottom line is that all the countries I 
have looked at, about 36, 37 countries, all the scenarios by 
which they use electronic voting, they produce a paper ballot 
receipt, and that is part of the social contract they have.''
    It is time the United States took the lead again in 
verifiable, reliable elections and established ourselves as a 
model of open and transparent democracy for the rest of the 
world.
    I commend the committee for its recognition in the fiscal 
year 2009 bill of the problem of unverifiable, accessible paper 
ballot voting. As you know, the bill included language 
explicitly directing $5 million in funding to the study of 
voting systems that ensure accessibility for voters with 
disabilities so that such voters can vote privately and 
independently, ``including through the use of official paper 
ballots.''
    And you included $1 million in funding for pilot programs 
for preelection logic and accuracy testing and post-election 
audits.
    I would offer to you that the experience of the States in 
these areas confirms that they are ready to implement more 
broadly and rigorously requirements such as we are talking 
about here, and they simply lack the funding to do so. Fully 
funding HAVA would alleviate that problem.
    I thank you.
    [The written statement of Representative Holt follows:]

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Serrano. We thank you for your testimony.
    As you know, the last administration would try to zero out 
HAVA. So even coming up with $105 million or $106 million was a 
big deal. I don't know that anyone can commit themselves to a 
billion dollars anywhere in any of these subcommittees, but you 
can rest assured that this continues to be a top priority of 
this committee, the fact that we have to have a system that can 
be verified. We have had too many situations where these 
recounts just take too long. There has got to be a better way.
    Mr. Holt. I am pleased to hear you say that.
    Mr. Serrano. Minnesota might be another issue. Has that 
been decided in any way yet?
    Mr. Holt. It is still in the courts. But my point is, if I 
may repeat, they had something to recount. There were well-
marked, well-collected ballots, not just electrons on a hard 
drive somewhere or a memory somewhere in the ether. So in a 
real sense, that is a success story, and the secretary of State 
will tell you so.
    So, again, I am pleased to hear you say that. I often 
remind students and adults that a self-governing country works 
only if you believe it does. If there are doubts about the 
electoral process, it can undermine everything else.
    Mr. Serrano. Absolutely.
    Mrs. Emerson.
    Mrs. Emerson. I happen to agree that we have to have 
verifiable, auditable records. Let me say that up front.
    As far as we have come with computer technology, I still 
get a little nervous. Obviously, we worry about things like a 
smart grid being hacked into, and the same can happen in this 
particular case. I do agree with you.
    I would like to know, with the billion dollars, do we have 
a breakdown by State of how much each State needs to fully 
implement HAVA?
    Mr. Holt. The Election Assistance Commission has records of 
money requested, spent, and unspent for the various States.
    Mrs. Emerson. And there is money unspent, correct?
    Mr. Holt. For some States there is. I don't know the 
details.
    The Election Assistance Commission is another whole 
question. I mean, I think the committee would do well to look 
at that. There probably is more attention that should be paid 
from authorizing committees. But I do think that this is 
something that your committee should also pay some attention 
to.
    But I am proposing that the assistance to the States go 
through the Election Assistance Commission the way that HAVA 
was set up.
    Mrs. Emerson. We will try to get some more of that 
information.
    Thanks, Rush.
    Mr. Serrano. Mr. Edwards.
    Mr. Edwards. Rush, just one question on the Minnesota 
recount. Could you have someone look at the question of 
whether, if they had not had a paper-based system, would the 
outcome have been different based on the counts that are valid 
as of today through the court system? It wouldn't undermine 
your argument if the outcome weren't changed, but it would 
certainly add great power and emphasis to your argument if, in 
fact, a United States Senate seat would have been, the outcome 
would have been different if it had not been for the fact that 
they had a paper-backed system.
    Mr. Holt. I am not expert on the lawsuit and the legal 
challenges in Minnesota. But I believe it has to do with both 
the eligibility of the voters and the intentions of the voters. 
In a purely electronic system, who votes, who signs in on 
election day is still a matter of record and can be challenged. 
But the intention of voters, any information about that is 
lost. An electron in a memory says nothing about what the voter 
intended to do.
    So the secretary of State of Minnesota would say, as others 
in other States that have made the transition, and I think it 
is worth noting that every jurisdiction in the country that has 
made a change in voting equipment between 2006 and 2008 
converted to a paper ballot optical-scan voting system; no one 
was going the other way.
    Mr. Edwards. Is this where they fill in with pen or pencil 
the circle?
    Mr. Holt. Yes. It could be done manually. It could be done 
by a ballot-marking device that would assist somebody who is 
unwilling or incapable of marking the ballot manually.
    So, however the ballot is marked, that would be the vote of 
record. It can be counted electronically or by hand in any 
manner. But there is a permanent record of the voters' 
intention, and that is the key point.
    In Minnesota, or in other States, if it were a purely 
electronic system, they could give you the result at 9:05 p.m. 
and it would not be subject to question ever again, even if it 
is not right.
    Mr. Edwards. Thank you.
    Maybe the appropriate time would be after the final 
decision is made on the Minnesota Senate race to contact the 
Secretary of State of Minnesota and just ask that question, 
that hypothetical question. Had Minnesota not had a paper 
system, given the ballots that they counted didn't count, how 
they counted them, would the outcome have been different?
    Thank you. Thank you for your testimony.
    Mr. Holt. Thank you, Mr. Edwards.
    Mr. Serrano. Ms. Lee.
    Ms. Lee. Thank you very much and thank you for your 
persistent and consistent leadership on this. You would think 
by now, given all of the problems of the past and given the 
work that you have done, it would be done. You would think that 
it would be done. This is the essence of our democracy, and we 
have been close to the edge, I think, in what we have seen over 
the last few elections.
    I just wanted to ask you about the State-Federal role in 
this. Where are we? Are we saying with your request here, and 
what is it, $5 million?
    Mr. Holt. No, no, the request is $1 billion. In the 2009 
appropriations, there was $5 million. That included $1 million 
for pilot programs and preelection testing for a study of 
voting systems to ensure accessibility.
    Ms. Lee. So are we allowing the States now to make the 
decision of whether or not they want to go to paper ballots?
    Mr. Holt. For 200 years we have allowed the States to run 
their own elections, including Federal elections. The departure 
from that, if my history is correct, was the 1965 Voting Rights 
Act. It was the first time that the Federal Government actually 
got involved in the administration of elections.
    So I think the principle has been established that the 
Federal Government can and should ensure the integrity.
    Ms. Lee. Are we saying then that the Federal Government, we 
are directing the States to use paper ballots?
    Mr. Holt. The States are voting with their feet. More and 
more are moving to paper ballots; and every State that made a 
change, every jurisdiction, county or State that made a change 
in its voting equipment between 2006 and 2008, converted to a 
paper ballot optical-scan voting system, not the other way, 
even if they had already invested money into purely electronic 
voting and so forth.
    So your committee, and just to be clear, I maybe wasn't 
complete enough in my answer a moment ago, your committee, as 
the Chairman pointed out, appropriated $100 million for HAVA in 
the current year for fiscal year 2009. My request is that you 
increase that tenfold to assist the States in doing what they 
are already choosing to do, moving toward reliable, verifiable, 
accessible voting.
    Ms. Lee. But if a State chooses not to do that?
    Mr. Holt. I have other legislation that would set Federal 
standards.
    Ms. Lee. Okay. I just wanted to make sure that we were 
clear on the distinction between that legislation and this 
funding request.
    Thank you. Thank you very much, Congressman Holt, for your 
leadership.
    Mr. Serrano. We thank you for your testimony.
    I can tell you, as one who, and it is funny, although it 
wasn't funny then, in 1985, I ran for something called Bronx 
Borough President, which is the equivalent of sort of a county 
executive, and they are still looking for missing ballots.
    Mr. Holt. I lived there a few years before that. I was not 
there at the time to vote for you then. I am sure I would have.
    Mr. Serrano. I lost an election. Out of 150,000 votes, I 
lost by less than 1 percent, and they are still looking for 
votes. And then the Justice Department got involved. It was 
very interesting. The Justice Department, and I am not a 
lawyer, but they gave me reverse attorneys' fees. I understand 
that means that you won the case. Then they ordered New York 
City, the Bronx, to be put under Voting Rights Act scrutiny 
more than it was before. It then mandated that the Board of 
Elections advertise in a special way to people telling them 
that they didn't need their voting registration card to vote. 
In other words, everything that I claimed that was done against 
me, the Justice Department agreed with. But they couldn't call 
for a new election because the person who was there had been 
removed to move to a bigger house at the Federal expense level, 
if you know what I mean, and the person who was appointed by 
the City Council was not the one who had been involved in the 
first election, so how do you remove him? But I won in the end 
because those are term-limited offices, and I am in Congress.
    Mr. Holt. We are pleased to have you in Congress and in the 
Chair.
    Mr. Serrano. And as Ms. Lee said, we thank you for just 
continuing to be a leader on this.
    And Mr. Edwards and Mrs. Emerson know that you are what we 
call in Spanish a ``nudge'' on this issue.
    Mr. Holt. Thank you.
    Mr. Serrano. That concludes our hearing for today. The 
committee will adjourn. We thank you.


                           W I T N E S S E S

                              ----------                              
                                                                   Page
Breyer, S. G.....................................................   137
Cuellar, Hon. Henry..............................................   175
Duff, J. C.......................................................     1
Gibbons, J. S....................................................     1
Holt, Hon. Rush..................................................   175
Thomas, Clarence.................................................   137


                               I N D E X

                              ----------                              


                 The Judiciary Fiscal Year 2010 Budget
                        Thursday, March 19, 2009

                                                                   Page
2008 Year-End Report on the Federal Judiciary....................    69
Administrative Office of the United States Court's FY 2010 Budget 
  Request........................................................    51
AO Strategic Plan................................................    87
Biography of James C. Duff, Director, Administrative Office of 
  the United States Courts.......................................    68
Biography of Judge Julia S. Gibbons, Chair, Committee on the 
  Budget, Judicial Conference of the United States...............    30
Cost Containment.................................................     4
Courthouse Construction..........................................    49
Federal Protective Service Court Security Pilot..................    87
Five-Year Courthouse Construction Plan...........................    50
FY 2010 Budget Request...........................................     3
Geographical Panel Attorney Rates................................    78
Immigration Enforcement and Prosecution..........................    83
Impact of 2005 Bankruptcy Act on Bankruptcy Filings..............    74
Information Technology...........................................    89
Judges Salaries..................................................    79
Judicial Expertise in Complex Cases..............................    77
Nation's Economy.................................................     3
Naturalization Ceremonies........................................    91
Non-Resident Courthouses.........................................    89
Opening Statement, James C. Duff, Director, Administrative Office 
  of the United States Courts....................................    48
Opening Statement, Ranking Member Jo Ann Emerson.................     2
Opening Statement, Judge Julia S. Gibbons, Chair, Committee on 
  the Budget, Judicial Conference of the United States...........     3
Opening Statement, Chairman, Jose Serrano........................     1
Oversight of GSA Courthouse Program..............................    88
Panel Attorney Hourly Rate Increase..............................78, 86
Questions for the Record, Representative John Culberson..........   131
Questions for the Record, Ranking Member Jo Ann Emerson..........   122
Questions for the Record, Representative Barbara Lee.............   125
Questions for the Record, Chairman Jose Serrano..................    97
Violence on the Border--Security of Judges.......................    88
Written Testimony of James C. Duff, Director, Administrative 
  Office of the United States Courts.............................    52
Written Testimony of Judge Julia S. Gibbons, Chair, Committee on 
  the Budget, Judicial Conference of the United States...........     6
Written Testimony of Chief Judge Paul R. Michel, United States 
  Court of Appeals for the Federal Circuit.......................    40
Written Testimony of Chief Judge Jane A. Restani, United States 
  Court of International Trade...................................    45
Written Testimony of Honorable Barbara J. Rothstein, Director, 
  Federal Judicial Center........................................    31
Written Testimony of the United States Sentencing Commission.....    34

                   Supreme Court of the United States

U.S. Supreme Court:
    Building Modernization.......................................   165
    Cameras in the Courtroom.....................................   152
    Cameras in the Courtroom.....................................   163
    Courthouse Leases............................................   167
    Future Requests..............................................   164
    Information Technology.......................................   150
    Judicial & Legislative Branch Relations......................   170
    Minority Law Clerks..........................................   158
    Opening Statement............................................   137
    Oral Argument Audiotapes.....................................   149
    Perimeter Security...........................................   164
    Statement of Justice Thomas..................................   139
    Student Loan Payments........................................   166
    Supreme Court Website........................................   150
    Supreme Court Website........................................   162
    Supreme Court Website Appendix...............................   145
    Supreme Court Workload.......................................   161

                                  
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