[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]


    THE JUDICIAL BRANCH AND THE EFFICIENT ADMINISTRATION OF JUSTICE

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                     COURTS, INTELLECTUAL PROPERTY,
                            AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              JULY 6, 2016

                               __________

                           Serial No. 114-83

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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      Available via the World Wide Web: http://judiciary.house.gov
                       
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 
                                 
                                 ------                                

    Subcommittee on Courts, Intellectual Property, and the Internet

                 DARRELL E. ISSA, California, Chairman

                  DOUG COLLINS, Georgia, Vice-Chairman

F. JAMES SENSENBRENNER, Jr.,         JERROLD NADLER, New York
Wisconsin                            JUDY CHU, California
LAMAR S. SMITH, Texas                TED DEUTCH, Florida
STEVE CHABOT, Ohio                   KAREN BASS, California
J. RANDY FORBES, Virginia            CEDRIC RICHMOND, Louisiana
TRENT FRANKS, Arizona                SUZAN DelBENE, Washington
JIM JORDAN, Ohio                     HAKEEM JEFFRIES, New York
TED POE, Texas                       DAVID N. CICILLINE, Rhode Island
JASON CHAFFETZ, Utah                 SCOTT PETERS, California
TOM MARINO, Pennsylvania             ZOE LOFGREN, California
BLAKE FARENTHOLD, Texas              STEVE COHEN, Tennessee
RON DeSANTIS, Florida                HENRY C. ``HANK'' JOHNSON, Jr.,
MIMI WALTERS, California               Georgia

                       Joe Keeley, Chief Counsel

                    Heather Sawyer, Minority Counsel
                            
                            
                            C O N T E N T S

                              ----------                              

                              JULY 6, 2016

                                                                   Page

                           OPENING STATEMENTS

The Honorable Darrell E. Issa, a Representative in Congress from 
  the State of California, and Chairman, Subcommittee on Courts, 
  Intellectual Property, and the Internet........................     1
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of New York, and Chairman, Committee on the Judiciary     3

                                WITNESS

James C. Duff, Director, Administrative Office of the United 
  States Courts
  Oral Testimony.................................................     4
  Prepared Statement.............................................    19

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Rodney W. Sippel, Chief 
  Judge, U.S. District Court for the Eastern District of Missouri     5

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Questions for the Record from James C. Duff, 
  Director, Administrative Office of the United States Court61
                       deg.OFFICIAL HEARING RECORD
          Unprinted Material Submitted for the Hearing Record

Additional Material submitted for the Record. This material is 
    available at the Subcommittee and can also be accessed at:

    http://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=105113

 
    THE JUDICIAL BRANCH AND THE EFFICIENT ADMINISTRATION OF JUSTICE

                              ----------                              


                        WEDNESDAY, JULY 6, 2016

                        House of Representatives

            Subcommittee on Courts, Intellectual Property, 
                            and the Internet

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 10 a.m., in Room 
2237, Rayburn House Office Building, the Honorable Darrell E. 
Issa, (Chairman of the Subcommittee) presiding.
    Present: Representatives Issa, Goodlatte, Chabot, Franks, 
Jordan, Cohen, and Johnson.
    Staff Present: (Majority) Joe Keeley, Chief Counsel; Eric 
Bagwell, Clerk; and (Minority) Jason Everett, Minority Counsel.
    Mr. Issa. The Committee will come to order. Members will be 
continuing to come in, and the Ranking Member, and the full 
Committee Chairman and Ranking Member--when they arrive--will 
make their opening statements, but we will not interrupt 
testimony.
    Today we are here for the Subcommittee on Courts, 
Intellectual Property, and the Internet; and, without 
objection, the Committee Chair will be authorized to declare 
recesses of the Subcommittee at any time.
    We welcome today's hearing on the judicial branch and the 
effective administration of justice. Today's hearing is about 
ensuring the proper oversight measures exist in our court 
system, and that justice is administered fairly by those who 
live up to the ethical standards required of our judges.
    Respect for our government seems to be at an all-time low. 
Various scandals at executive branch agencies seem to be on a 
rise, on a regular basis. A Member of Congress from 
Philadelphia was recently convicted on 23 counts of fraud and 
racketeering before resigning just 2 weeks ago. It is 
absolutely critical that the judicial branch be an honest 
broker when called upon. However, the judicial branch is the 
least well known branch, and many say, the smallest, although 
its power, when addressed, is considerable.
    It also has historically lacked transparency. It is time, 
however, for the judicial branch to come from the shadows. 
Americans expect an open and transparent government. Americans 
expect disclosures of potential conflicts of interest, along 
with financial disclosures. Their expectation, rightfully so, 
belongs to three branches.
    Finally, they expect to see their government officials 
doing their job. While C-SPAN may not be everyone's favorite 
channel today, it is an important part of making government 
accessibility to its citizens. There are cameras in this 
hearing room today, and citizens can judge for themselves 
whether or not elected officials are doing what they were sent 
to Washington to do. And, I might note that today's hearing 
will be archived and available immediately and for years to 
come.
    Depending upon their offices, elected officials face the 
voters every 2, 4, or 6 years. Federal judges, Article III 
Federal judges, have a lifetime appointment, while other 
Federal judges have long-term appointments. That was set by the 
U.S. Constitution, and we respect that, with the absence of 
term limits, the court is, in fact, a permanent body; once 
confirmed, unaccountable, except in the case of high crimes and 
misdemeanors.
    Judicial transparency is also lacking elsewhere. For 
example, the court system has no inspector general or, in other 
words, no watchdog of the judiciary. There are only a few 
cameras in a few courtrooms on a test basis, and the cameras in 
the courtroom are controversial and rare. In the Northern 
District of California, involving the NSA data collection, 
cameras were permitted, and I would like to take this 
opportunity to show just a little bit of what was voluntarily 
captured, if I may.
    [Video shown.]
    Mr. Issa. Could you pause it right there, please? Thank 
you. Oops. Okay, perhaps no pause button. If we can figure out 
ways to consistently broadcast, capture, and retain this type 
of information that you saw in the case of what was, in fact, a 
case involving a sensitive national security issue, without 
jeopardizing secrets, then I believe that we can find a similar 
way for the purposes of archiving and, when appropriate, 
capturing evidentiary events in the courtroom. And, I want to 
be very brief, but there are a couple of areas that people 
often forget.
    Although we capture a transcript and, in many cases, an 
audible recording, and have for years, one cannot necessarily 
capture a pointing at a document, or a misrepresentation that 
may, in some way, be captured by a video.
    Additionally, any disturbance within the courtroom, it 
cannot be effectively captured by a transcribed interview. But, 
in fact, a video can capture misconduct. This could lead, in 
the case of disturbances and/or some action of a person, to 
have facial identification. These are all sensible reasons, 
over and above the basic question of, would the American people 
feel more comfortable if they could sit in their own home and 
watch exactly what the jury is watching, and what the limited 
amount of people in the audience are able to watch in any case, 
at any time, before the Federal court? Just like the THOMAS and 
PACER System is fundamental to making the court transparent, 
Americans believe that paying 10 cents a page for those 
documents is not, in fact, giving them the transparent access.
    So, lastly, as I close, one of the important parts of a 
video capture would be that they would receive, in real time 
and by recorded means, the ability to capture any and all 
information that was presented to the jury, without having to 
pay for it. As I said earlier, I will recognize the Ranking 
Member when he arrives but, at this point, we will go on to 
introducing our witness.
    Today I want to thank our distinguished witness for taking 
time out of his busy schedule to be with us. The witness 
statements will be placed in the record in the entirety, and 
you know how the lights work, because you have done this 
before, and additionally--this is the opposite order I am used 
to.
    I want to introduce our witness, Mr. James Duff, Director 
of the Administrative Office of the United States Courts; in 
other words, the man who spends about $13 billion in various 
ways on our behalf, and, pursuant to the rules of the 
Committee.
    Mr. Duff, would you please rise to take the oath, and raise 
your right hand? You know this from other parts of government. 
Do you solemnly swear or affirm that the testimony you are 
about to give will be the truth, the whole truth, and nothing 
but the truth?
    Please be seated. Let the record indicate that Mr. Duff 
answered in the affirmative. Again, you are the only witness. 
You are the person most knowledgeable of the spending and who, 
as a matter of your job, works closely with the justices of the 
Supreme Court and the other administrative judges around the 
country. So, I am not going to limit you in your opening 
statement strictly to the 5 minutes, but as close as possible.
    And, with that, I will recognize the Chairman of the full 
Committee for his opening statement, Mr. Goodlatte.
    Mr. Goodlatte. Thank you very much, Mr. Chairman, and I 
appreciate your holding this hearing. America, as a Nation of 
laws; with laws, come disputes and differences of opinion. The 
American people look to our Nation's courts to be efficient, 
transparent, and fair arbiters for settling disputes when they 
arise. To achieve these expectations, the judiciary must 
efficiently administer justice, despite the fact that the 
judiciary receives only a small portion of our Nation's budget.
    As this Committee has seen previously in the disastrous GSA 
renovation of the Poff Courthouse in my hometown of Roanoke, 
and in other wasteful GSA expenditures, not all spending on 
judicial needs is directly within the judiciary's control.
    However, it is healthy for Congress, which has 
responsibility for authorizing funding for the judiciary, to 
review spending by the judiciary, and have an opportunity to 
ask questions, to assess the efficiency of that spending.
    In addition to efficiency, the American people expect 
transparency with respect to judicial actions. Transparency 
bolsters American's trust in fair and independent judges who 
are above ethical reproach.
    The PACER system helps to deliver transparency, and has 
enabled anyone with an internet connection to read court 
filings and decisions, much like THOMAS, the legislative search 
tool allows the public to see what Members of Congress do on 
their behalf.
    However, THOMAS, unlike PACER, comes with no direct fee. To 
be sure, there is a budgetary cost to operating both THOMAS and 
PACER, but in today's interconnected world, Americans 
increasingly demand access to information, including court 
documents, freely and without a direct surcharge.
    Another possible way to deliver transparency is to allow 
Americans to watch court proceedings. Our hearing today is 
being webcast to anyone who wants to watch it, but hearings 
only a few blocks away at the District Court for the District 
of Columbia and at the United States Supreme Court will never 
be seen by anyone. The idea of allowing cameras in our Nation's 
courtrooms is not a new one, but I look forward to hearing more 
about this issue today.
    In addition to the efficient and transparent administration 
of justice, the American people look to the judicial branch to 
be the fair arbiter of disputes that arise in civil and 
criminal contexts, and expect impartial and ethical judges.
    While the vast majority of Federal judges exercise their 
duties with the highest moral and ethical standards, 
regretfully, there have been recent situations in which Federal 
judges have fallen short of these standards.
    For example, one judge in Alabama abused his wife and then 
lied about it to his colleagues before he resigned under 
pressure. Another judge appears to have engaged in deplorable 
conduct before he became a Federal judge, only to resign on 
disability days, days after widespread news reports appeared 
about his conduct.
    To investigate ethical breaches like these, as well as, to 
ensure that instances of fraud and waste are discovered and 
addressed, former Judiciary Committee Chairman Sensenbrenner 
and current Senate Judiciary Chairman Grassley have supported 
the creation of an inspector general for the judiciary.
    While the judiciary has strongly resisted the creation of 
such an inspector general, I look forward to exploring this 
idea further, as well. I look forward to hearing from our 
witnesses today about these and other issues concerning the 
operation of the judiciary, and, Mr. Chairman, I thank you for 
your forbearance and yield back.
    Mr. Issa. Thank you, Mr. Chairman, and I want to take a 
moment to thank you for the work that you have done in guiding 
the areas of reform that you are looking forward in the court 
system. I serve at your pleasure, but I also serve at your 
guidance. So thank you. And, Mr. Duff, with no further ado, 
please, you are recognized.

TESTIMONY OF JAMES C. DUFF, DIRECTOR, ADMINISTRATIVE OFFICE OF 
                    THE UNITED STATES COURTS

    Mr. Duff. Thank you very much, Chairman Issa, and Ranking 
Member Nadler, who is due to arrive, and Members of the 
Subcommittee, and I appreciate very much Chairman Goodlatte's 
invitation to appear before you, and I am grateful for the 
opportunity to discuss the judicial branch and our goals and 
efforts to provide the most efficient and effective 
administration of justice in the world.
    We regret that Judge Rodney Sippel, who was to appear here 
today too, could not be present because of a death in his 
family, and our thoughts are with Judge Sippel this morning as 
we testify here before your Committee. We ask that his written 
statement be included in the record.
    Mr. Issa. Without objection, so ordered.
    [The information referred to follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
                             __________
                             
    Mr. Duff. Thank you. One of the most distinctive features 
of our form of government is our independent judiciary, and its 
administration of justice. When judicial representatives from 
foreign countries and developing democracies visit our offices, 
they are usually familiar with the constitutional structure we 
have in the United States that provides for an independent 
judiciary, its provisions for life tenure for judges, and its 
prohibitions against any reduction of salary.
    But, what has been very interesting to me is that our 
visitors are most interested in learning about the 
administrative office of the branch, and our Judicial 
Conference of the United States, and how these administrative 
structures both operate and help enable the branch to maintain 
its independence. I would like to address some of those 
features here today too, as they also demonstrate how we strive 
for efficiencies in administering the branch.
    The judiciary is, of course, dependent on Congress for its 
funding, and we are very grateful that Congress has made us a 
funding priority in the past three budget cycles after 
sequestration. It is clear from our appropriators in Congress 
that we are recognized as careful stewards of public funds, and 
I would like to speak briefly as to how the judiciary is 
managing and being responsible stewards of those funds in its 
efficient administration of justice, and I focused on just 
three areas from my expanded written statement, which I also 
ask be submitted for the record.
    Mr. Issa. Without objection, so ordered.
    Mr. Duff. Thank you, Mr. Chairman. To summarize the three 
areas in my written statement very briefly--first, we have 
highlighted several case management practices that are 
implemented, both by the courts locally and at the national 
level, through coordinated programs that are structured in our 
Judicial Conference committees, and the Administrative Office 
of the U.S. Courts.
    We encourage every court to employ the best practices we 
have gleaned from local courts. A prime example of this is, in 
fact, electronic filing in our Federal courts. This started in 
one court in the Northern District of Ohio, and now all Federal 
courts have it. I would point out that, by contrast, some State 
courts still do not have this service, and it saves significant 
funds for the taxpayers.
    Second, we are effectively and efficiently managing public 
funds through workforce and resource management practices that 
include: the utilization of magistrate judges, inter and intra-
circuit assignment of judges to courts with the heaviest 
caseloads, sharing administrative services among courts, and 
employing improved work measurement tools to determine our 
needs more accurately. Our senior judges, those who could 
retire, but have chosen to continue their service, are frankly 
keeping the branch afloat.
    We are managing financial resources through a realistic 
budget formulation, and we have developed very strong working 
relationships with our appropriators and our work with them to 
find savings wherever possible, at every stage of the budget 
process, is paying great dividends. And, we have employed cost-
containment initiatives for over 10 years now, even before 
sequestration, and those have enabled us, among other things, 
to bring down our rent projections, and our space and 
facilities needs down.
    And, Chairman Goodlatte had mentioned our work with GSA and 
some of the issues we have had with GSA in the past. I am very 
pleased to report this morning that we have an improved service 
validation initiative with GSA that is getting good results, 
and I think can save us as much as $10 million annually, as we 
go through that program with GSA.
    We have also utilized an aggressive auditing program that 
relies on independent, certified public accounting firms, as 
well as, our staff of auditors at the administrative office, to 
audit our financial systems, our programs, and operations that 
support the courts among many other audits.
    All told, 205 separate audits were conducted in fiscal year 
2015, and I would add that we respond routinely to GAO requests 
for studies, 12 such requests alone in 2014.
    Third, we are working toward enhanced access to the 
judicial process, even during austere budgets. Our caseload 
statistics fluctuate over time, but the overall trend since the 
last comprehensive judgeship bill was enacted in 1990, has 
grown far faster than the number of judges that we have. Our 
ability to stay current in most courts is a testament to our 
increasing efficiencies, and the hard work of our judges and 
staff.
    There are, however, some districts that simply cannot keep 
up with the enormous number of new cases and we, therefore, 
have asked the Congress to provide more judges in those 
districts with extraordinarily high caseloads, and to convert 
certain temporary judgeships to permanent status. We also asked 
Congress to please be mindful of the judiciary's needs when new 
legislation is passed that adds to the workloads of the courts, 
such as in sentencing, in criminal justice reform, and 
immigration reform.
    Mr. Chairman, this is only a brief summary of my written 
testimony, which elaborates on these and other points, and I 
would be very pleased to answer any questions you may have 
about that, as well as, to address the issues you have raised 
in your opening statement this morning.
    [The prepared statement of Mr. Duff follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
                               __________
    Mr. Issa. Thank you, and since we have been joined by 
Congressman Franks, Mr. Franks, if you would like to--if you 
have questions, I will be glad to take yours first.
    Mr. Franks. Thank you, Mr. Chairman, very much. Thank you, 
Mr. Duff, for being here. Mr. Duff, as you know, other branches 
of government have comprehensive disclosure and ethics rules, 
and I am wondering if you think the judiciary should also have 
disclosure and ethics rules for all judges, including those on 
the Supreme Court, and should there be reforms to impeachment 
standards, or should an inspector general be appointed for the 
judicial branch?
    Mr. Duff. Well, to answer them in order, we do have 
financial disclosure reports that are filed by----
    Mr. Franks. These are financial disclosures, not general 
ethics, correct?
    Mr. Duff. Well, and we follow ethics standards certainly. 
We have codes of conduct within the branch, and we follow 
those, and they are modeled after similar codes and, with 
regard to----
    Mr. Franks. I am sorry. I do not mean to interrupt you, but 
these are written?
    Mr. Duff. Yes, there are standards within the branch for 
conduct of judges, and we have a very robust system within the 
branch of overseeing and reviewing allegations of misconduct.
    Mr. Franks. Do those apply to the Supreme Court?
    Mr. Duff. Pardon me?
    Mr. Franks. Do those apply to the Supreme Court?
    Mr. Duff. No, sir. The Administrative Office of the Courts 
and the Judicial Conference of the United States only oversees 
and works with the Federal courts, not the Supreme Court. The 
Supreme Court has its own court administrator.
    Mr. Franks. Yeah, own everything?
    Mr. Duff. Yes, and it is a constitutional court, unlike 
the--created in the Constitution. The Federal courts, by 
contrast, have been created by the Congress. So, there is that 
distinction and I should mention that I appear here today only 
on behalf of the Federal courts, the Federal court system, and 
not on behalf of the Supreme Court.
    Mr. Franks. Not the Supreme Court.
    Mr. Duff. Yes, sir.
    Mr. Franks. Okay. Well, then I will just move on here. What 
do you think the negative consequences, if any, have been to 
cameras in a limited number of the Federal courthouses?
    Mr. Duff. Well, we have had pilot programs, and we do 
permit cameras at the Court of Appeals. Only two such circuits 
are utilizing cameras now. The camera issue has been around for 
quite some time. We have very serious concerns in criminal 
trials. The ability to bring witnesses in to cases are affected 
by cameras; threats to individuals who appear as witnesses are 
very serious, and cameras publicize that and their images. 
There may be techniques to block that out, but they are not 
perfected.
    We have had a pilot program for cameras in the courts in 
civil cases in recent years, and we had a study done by the 
Federal Judicial Center as to the benefits and detriments of it 
in the pilot program. That was considered by one of our 
Judicial Conference committees, and it was determined that 
there is not, at the current date, an overwhelming or pressing 
need to televise all trials at the Federal court level.
    Mr. Franks. Would it be fair to suggest that your 
assessment might be--what would be--and let me just ask what 
would be the net effect, do you think, on balance? Do you think 
it has been a positive or not?
    Mr. Duff. I think where they were utilized in the pilot 
program, there was no recognized positive effect. In fact, if 
you look at the statistics in the pilot program that we ran, 
the individuals who were the litigants in the case--each party 
was given the chance to determine whether they would prefer or 
have any objection to it being televised or not--and the 
overwhelming majority said that they did not want it televised. 
And so, it was a very small percentage of the participating 
courts in the pilot program that actually utilized cameras in 
the courtroom as a result. I would point out that there are 
distinctions between the branches, and among the branches, in 
this regard. Certainly, our trials are open to the public. 
Anyone can go into the courtroom and attend. So, they are not 
closed in that sense.
    The determination as to whether or not they should be 
televised is a different question, and there are different 
aspects of this that apply to the branches. The general public 
has no vote in the cases before a court. The courts are there 
to serve the litigants, and the parties, and to resolve 
conflicts.
    And so, there are different aspects of, perhaps, the need 
for televised hearings, unlike, by contrast, in Congress and 
your Committee hearings and this Committee hearing today. The 
public has every right and interest, and a vote in many, if not 
most, of the issues that appear before your Committees.
    So, there are some distinctions in the branches that I 
think need to be recognized as we consider the question, and we 
are all for public access, and the Chairman has raised a couple 
of issues I know we will address further this morning about the 
ability to access information from the courts, in our opinions.
    Just as an aside, I would point out that our PACER system 
that the Chairman referred to, our PACER system and the costs 
involved in our PACER organization within the courts--that was 
a determination, and you mentioned 10 cents a page for getting 
transcripts and so forth. The opinions of the courts on PACER 
are free.
    Seventy percent of the users in the PACER system do so for 
free. The costs involved to the courts are passed on to the 
users, and most of them are institutional users that have to 
pay for access in PACER. Those costs are passed on because the 
Congress wanted us to do that, frankly. We were going to have 
to incur increased expenses in our budget when we went to 
Congress about providing information on PACER to the public. 
And, the Congress decided, and I think wisely so, that those 
costs should be passed on to users who can afford the costs, 
and they are not extraordinary costs, and those who cannot 
afford it should have access for free.
    So, there is a user fee associated with PACER, but that was 
at the direction of Congress, so that we did not have to seek 
more money in our budget. We were going to have to pay for it 
somehow.
    Mr. Franks. Yeah. Well, thank you, Mr. Duff. I wish to 
thank the Chairman. Thank you for being so gracious here.
    Mr. Issa. Thank you, Mr. Franks. We now go to the gentleman 
from Ohio, Mr. Chabot, for his questions.
    Mr. Chabot. Thank you very much. Thank you for being here, 
Mr. Duff.
    Mr. Duff. Thank you.
    Mr. Chabot. Sorry I was not here in time to hear your 
testimony. We have got various hearings going on at different 
rooms around here. I would like to follow up, I think, along 
the lines that my colleague, Mr. Franks, asked, and it is 
relative to cameras in the courtroom. Do you know what the 
number is; how many States actually allow cameras within the 
court rooms?
    Mr. Duff. I am sorry, I do not know off the top of my head, 
but we can get that.
    Mr. Chabot. Okay. Would you agree that it started out 
pretty small, and has now grown to most of the States?
    Mr. Duff. Yes, and I am sure that is right.
    Mr. Chabot. Okay. What makes the Federal level different? 
Why should we not learn from the experience that the States 
have had in this, and had they had a lot of problems, it would 
seem that that trend would not have continued where they have 
opened up the courtrooms to the public.
    Mr. Duff. I think that there has been some genuine 
hesitation to open up, and certainly in criminal cases, open up 
Federal courts to cameras. There are a lot of concerns about 
how the trials are conducted and the impact that they have on 
witnesses and----
    Mr. Chabot. Well, let me stop you there if I can. We will 
put the criminal part aside for a moment then. But, at the 
present time, in the overwhelming majority of the Federal 
courtrooms across the Nation, you are not allowing cameras in 
the civil cases either. Is that correct?
    Mr. Duff. That is at the district court level. Yes, sir. 
But at the appellate court level, there is a provision that 
would permit cameras.
    Mr. Chabot. All right. Would you agree that probably to 
most of the public, the actual trial itself would be more 
interesting for the public to see what is going on in the 
courtrooms that they, after all, pay for than at the Federal 
level where, you know--it tends to be a bunch of lawyers 
talking to each other about fairly obscure legal issues most of 
the time, if it please the court. So, would it not be more 
interesting to most people, probably at the trial level, to 
begin with?
    Mr. Duff. Are you speaking of criminal trials or civil 
trials?
    Mr. Chabot. Let's stay with the civil for the time being, 
yeah.
    Mr. Duff. Well, as I mentioned at the outset, any 
individual can go to any court in the country and attend a 
trial if they want.
    Mr. Chabot. Right. Well, let me ask you about that. 
Obviously, you have got people that, you know, that work; 
support their families; take care of their families; are doing 
what it takes to live in our society nowadays. Should we not 
make it more accessible to the public, more convenient to them, 
so that if they want to watch--if it is a court TV channel or 
whatever they want to watch, you know, should we not leave that 
up to the public to make it easier for them?
    Mr. Duff. Well, there are advantages and disadvantages, and 
I think the Federal court system, we are considering this. We 
have been looking at it and we have done a pilot program in it. 
We just have not felt that at this time that there is an 
overwhelming need or interest in doing it. I think the 
viewership in civil trials, frankly, is not a compelling reason 
to televise civil trials. There is a concern that it changes 
behavior. It changes behavior in the courtroom. It changes the 
behavior of the judges and the lawyers.
    Mr. Chabot. Well, I know that was a concern. It was a 
concern at the State level that it would change the behavior. 
Maybe it changes it for the better, for that matter, but most 
of the studies that I have seen indicates that it really does 
not change behavior significantly. I mean, they said the same 
thing--and I know we are different branches of the government--
but they said that about C-SPAN years ago, and that happened 
prior to me getting here about 20 years ago.
    And, in general, we just take it for granted now. There are 
cameras there and, if you do not want to be embarrassed, do not 
do anything embarrassing in front of the cameras. And, I think 
most of the legislation that I have seen, and, to be open and 
honest, that I have introduced in the past to allow cameras in 
the courtroom, we would leave it up to the Federal judge and 
the parties to determine if they want cameras in the courtroom 
or not. If a judge does not want it in the courtroom, then do 
not have it.
    And, there are judges that do think that we should do this, 
although it is obviously not unanimous. Maybe it is not even 
the majority, but it would seem to me that if the judge thinks 
that it is okay and that he can keep control, just as we have 
these cameras here, you know, and the parties themselves do not 
have any opposition--it just seems to me that since the public 
pays for this and they pay your salary and my salary, that they 
ought to have access.
    I am sure that you have heard the expression about sunshine 
being the best disinfectant, and I am not saying that there is 
anything going on wrong in the courtrooms, but it would just 
seem the public ought to have access to those things.
    So, we talked about civil and, as far as I am concerned, 
the same thing would apply to criminal cases, insomuch as if 
you have got a case--let's say, you know, it is organized crime 
or it is some sort of situation where witnesses do need to have 
their identities protected and, of course, the judge could at 
the very beginning of the case could decide, ``This is the kind 
of case we do not want to have that, so no cameras on this 
case.'' That would be fine.
    But Jerry Nadler, who was, you know, a Democrat still on--I 
believe he is still on this Committee. I know he is on the 
Judiciary Committee. Yeah, there you are. Mr. Nadler over 
there, he and I worked on an amendment that--he was concerned 
about that; that obscured the identity of witnesses to make 
sure that they were protected.
    So, I just think that virtually any roadblock that is 
thrown up to say, ``No, we cannot have cameras,'' can be 
reasonably dealt with, and I think we ought to do it. So, I 
hope you will reconsider, but I am guessing you probably will 
not.
    Mr. Duff. No, actually we have had the pilot program. The 
Ninth Circuit is continuing the pilot in the courts there that 
participated in it. We are going to continue to take a look at 
the issue. We have some concerns. I think there are some 
distinctions in the branches that I pointed out a little 
earlier, as to the purpose of trials and the public's interest 
certainly is very important, but the trials and the courts are 
there to serve the litigants. And, it is a little different 
than issues on which the public at large have a vote, and so 
there are different considerations.
    We are looking at the State court systems and where they 
are successful. Our pilot program, though, was instructive in 
this way. When given the choice to have cameras in the case or 
not, the vast majority--and I will get the statistic for you--
said no, that they did not want them there. And, we are trying 
to resolve conflicts between two parties in the court system, 
and that is a little different dynamic, frankly.
    And, while they are open to the public generally, I agree 
that it is not open to every citizen because they cannot come 
to one individual court and get in and see the case. But, we 
are trying to find the right balance. We are going to continue 
to look at it. It is an important issue, and we are studying it 
within the court system.
    I will share something with you anecdotally, though, about 
the success or issues, and I know you have already committed, 
and I am friends with C-SPAN, so I admire what they have done 
for the public. But, I was at dinner one evening with Senator 
Howard Baker, for whom I worked for a number of years, and 
someone asked him if he had anything to do over again ``when 
you were Majority Leader of the Senate, what would it be?'' 
And, he said, ``I would''--without hesitation he said, ``I 
would never have allowed cameras in the Senate.'' And----
    Mr. Chabot. Can I ask you what year that was?
    Mr. Duff. This was 2000.
    Mr. Issa. You can refuse to answer if it is incriminating.
    Mr. Duff. Let's see, he passed away 2 or 3 years--a couple 
of years ago, so it has been within the last 5 or 10 years. 
But, you know, there are advantages and disadvantages----
    Mr. Chabot. Speeches are not as good over in the Senate as 
they are in the House anyway so----
    Mr. Duff. Well, his point was, and this is the point I 
would raise, and we are having a good, healthy discussion about 
this. And, I am glad we are having this, because we want to 
have this conversation with you, and the more communication 
about it, the better.
    But, I think that Senator Baker's point was it changed the 
behavior of the members, because they used to get work done on 
the floor of the Senate. It was a buzz of activity, and now 
today you go into the Senate and, with apologies to C-SPAN, 
there is one individual member speaking to a camera and it is 
empty, for the most part. This was his point. I am paraphrasing 
his issue with it.
    And so, he was not convinced it was a positive that the 
proceedings in the Senate are now televised on balance because 
he thought they got more work done when there were not cameras 
on the floor.
    So, the point I would make about that is cameras do change 
behavior. I mean, I am not as comfortable here today, frankly, 
because there is a camera, but I welcome it, because I have 
nothing to hide, as you say, about sunshine. But when it comes 
to trials and cases involving litigants' interests, there is a 
different element that we have to take a careful look at, and 
what our purpose is in the judicial branch, and it differs 
slightly than the other two branches, is all I would add to 
that.
    And so, I hope that you all could appreciate that aspect of 
it. We are not trying to hide anything. We are just trying to 
provide the best form of justice in the world to our citizens.
    Mr. Chabot. Mr. Chairman, do I have time to make a follow-
up?
    Mr. Issa. Absolutely.
    Mr. Chabot. Yeah. And, I think that is the reason I think 
we in the legislative branch are trying to be as understanding 
and accommodating as possible by saying we will leave it up to 
the judges to decide whether or not, in that particular case, 
they will allow cameras or not; or if they do not want them at 
all, that is fine. So, that is about as accommodating as I 
think this branch could get to that branch.
    And, the final thing I would note is a full disclosure, 
when I was Chairman of the Constitution Subcommittee of this 
Judiciary Committee for 6 years, shortly after our new Chief 
Justice was sworn in, Justice Roberts, I met with him over in 
his office over there, and we discussed this and a lot of other 
issues, but this one in particular with great gusto. And, I did 
not win that argument. So, in any event, I hope someday we 
will. Thank you.
    Mr. Duff. Thank you, Congressman Chabot, and I want to 
mention I was just home last weekend for a 45th high school 
reunion and came into Cincinnati. I am from Hamilton 
originally, but----
    Mr. Chabot. Hamilton High School.
    Mr. Duff. Hamilton Taft.
    Mr. Chabot. Oh, very good. Yeah, excellent. I am a La Salle 
Lancer, a proud La Salle Lancer which, since this is on camera, 
I will mention won the State Championship, Football State 
Champion; the last 2 years in a row; La Salle Lancers. 
``Lancers roll deep,'' is what they say so----
    Mr. Duff. I wanted to give you that opportunity.
    Mr. Chabot. I appreciate that. Thank you very much. I am 
still not changing my opinion on cameras.
    Mr. Duff. We will work on it. Thank you.
    Mr. Issa. Recognizing myself as a Clevelander, there is a 
lot to be said about, you know, the camaraderie of southern 
Ohioans, the people who go to Kentucky to go to their airport.
    Mr. Duff. Well, I will say that when I grew up in southern 
Ohio, we did not have the Bengals, so I was a Browns fan 
growing up. So----
    Mr. Issa. I was too until they went to Baltimore. Moving 
right along, you know, we have had a lot of discussion about 
cameras, but I want to close the camera discussion with two--
hopefully, only two points. One is repeatedly you said we serve 
the litigants.
    Mr. Duff. Yes, sir.
    Mr. Issa. Would it be fair to say you serve the American 
people and, particularly, when you are dealing with criminal 
cases you really represent, if someone is guilty, the victims, 
and if someone is innocent, then justice for the innocent?
    Mr. Duff. Yes.
    Mr. Issa. Which goes well outside the courtroom, does it 
not?
    Mr. Duff. It goes beyond those participants, certainly.
    Mr. Issa. So leaving civil cases, which are a big part of 
your caseload aside.
    Mr. Duff. Right.
    Mr. Issa. I want to touch on just one area, and like my 
brother and former--I am a former Ohioan, he is an Ohioan--but 
I have had that time with Chief Justice Roberts, and he is 
still as resolute as ever. But, I am going to appeal to 
something today that goes beyond that.
    Justice, when someone has committed a crime; justice, when 
someone goes up on appeal, is best served when the greatest 
amount of information is available to the victims, their 
families, and, of course, if appropriate, to the appellate 
court. And, I might suggest that there is an in between, if you 
will, cameras/no cameras.
    When someone proffers or, you know, admits their guilt--I 
am saying it wrong, but I do that once in a while--or when they 
are, in fact, going through the process of the jury coming 
back, finding them guilty, and going through the sentencing--
two distinct phases--these events are often--many of the family 
attend, some of the friends; but, in fact, they are not 
captured in perpetuity.
    And, when 20 or 30 or 40 years later, someone who is on 
death row is saying, ``But, I was not that bad,'' those moments 
are lost forever, and the family or the police officer or a 
lawyer comes in and tries to explain to a parole board those 
terrible grievous, you know, events. I might suggest that the 
cases and the outcomes drive a lot of the question of, ``Is 
there a reason to capture it?''
    I am from Southern California, and we have had video 
depositions as a mandate. You cannot get out of them under the 
local rules, and that has changed, I am sure, how people answer 
questions. But, it has also captured in a way that is usable as 
evidence.
    So, I might suggest that, as you go back and begin working 
with, not just the Chief Justice, who we have talked about 
here, but with all the judges, and ask the question of, should 
we not, at the soonest possible date, enhance the tools that 
remain in perpetuity for that 20, 30 years later when someone 
is, you know, trying to say, you know, ``I did not really kill 
him,'' so to speak.
    And, that value of those cases, and we are talking strictly 
criminal at this point; and the value, in some cases, for an 
appellate where somebody has said something and the visual is 
very powerful. So, I might suggest that there is some middle 
ground, just as the court was kind enough to work on the pilot 
in the ninth circuit, that we do not yet know what the value of 
capturing those certain aspects might be, and I have had the 
luxury of talking to a number of Federal judges around the 
country who have sort of brought that up--that they would love 
to have the tool to use when they would love to have the tool 
to use. You are nodding your head yes and we are capturing that 
on video so, I am hoping that is a good sign.
    Mr. Duff. I thank you, Mr. Chairman. We will certainly 
continue to take a look at this issue. It is of importance to 
not only the branch but to the American public, and we are 
stewards of their funds and, you are right. Everyone has an 
interest in the outcome of cases in some fashion.
    Mr. Issa. I want to touch on just one thing that I want 
your input on. It is clear that social media is now affecting 
jurors in a way that it did not just a small part of a 
generation ago. How do you see the court being able to handle 
that, and are there additional tools necessary to keep a jury 
from being tainted under the circumstances of the proliferation 
of social media?
    Mr. Duff. It is challenging. You have to be vigilant about 
it, and I do not know how it can be monitored entirely 
successfully. There have been issues that have arisen. I think, 
for the most part, we are doing a good job.
    Mr. Issa. But you still have iPhones for lunch, so to 
speak.
    Mr. Duff. Exactly, and so it is a challenge to us. We have 
to stay on top of it to preserve the integrity of the jury 
system, and we certainly are committed to doing that.
    Mr. Issa. Well, and my follow up on that is jury pools are 
becoming more demanding.
    Mr. Duff. Yes.
    Mr. Issa. They are becoming demanding, both at the State 
and Federal. And, when you look at the makeup of these pools, 
disproportionately retirees, disproportionately government 
workers--do we have--at the Federal level--do you have the 
tools you need to get a jury of people's peers, or are you 
getting a subset of this jury of people's peers? Maybe fair and 
impartial, but certainly not the same cross-section of society 
as it would be if it were 100 percent at random?
    Mr. Duff. Well, we are working on making certain that we do 
have the cross-section. We have added, and this goes to a point 
you made in your opening statement with regard to access and 
transparency. We have made it easier, we think, for jurors to 
be selected and chosen through our e-juror system. There are 
electronic mechanisms now to make that whole process work more 
smoothly. Can we do better? Sure, and we will work toward that. 
But, you are right. The challenges are greater today because of 
social media.
    Mr. Issa. The income you receive from that 10 cents a 
page--from our looking, there is very little transparency as to 
where the money goes in excess of the operating costs. Do you 
want to go through, just for people watching here today, I 
think, how you feel that it is appropriate not to have those 
funds come back to the Congress for appropriations but, rather, 
be in funds controlled by your branch?
    Mr. Duff. Well, the funds are intended to be put to use to 
improve the access to opinions and court records. And so, it is 
rolled back into the costs that we incur for improving systems 
to make these available to the public. And, we have certainly 
talked with our appropriators about it, and we will continue to 
do so.
    Mr. Issa. Can you assure us today that all funds are used 
within that system, and that no funds are diverted to more 
general information? In other words, it is not printing 
pamphlets about how great the court is. It is strictly 
providing access to this information that, in fact, you are 
charging 10 cents a page for?
    Mr. Duff. Yes, sir. That is what we intend to use the funds 
for, is to support that system. And, you know, there are 
tangential issues that come up that we think are appropriate 
for the funds to be used for, but they all really focus around 
access to the information.
    Mr. Issa. Now, there are a couple of more that are also 
perennial issues, and I want to go through them quickly. We 
mentioned in opening statements that we have had judges who, 
under the Constitution, had committed impeachable offenses.
    As you know, impeachment is lengthy, laborious and, as you 
also mentioned, we cannot take away a judge's salary while he 
or she sits and says, ``Nah, nah, nah. It will take you a long 
time to get rid of me, by which time I will be on disability or 
retired.'' Do you have any proposals for any kind of a faster 
administrative remedy for clear and convincing misconduct, 
other than a constitutional change or an expedited impeachment?
    Mr. Duff. Well, let me----
    Mr. Issa. And, this is just recognizing that judges are 
human beings, and out of any set of human beings, no matter how 
well chosen, some will be awful.
    Mr. Duff. Let me address, I think, a very good and serious 
issue you have raised, with regard to conduct matters that come 
to our attention that are short of impeachable offenses, 
although some that have come to our attention we have referred 
to the Congress for impeachment proceedings. And, thankfully 
they are rare, but they happen.
    Mr. Issa. Judges normally resign if they have done wrong, 
is one of the reasons that we have had so few in our history
    Mr. Duff. I think that that speaks well to the review 
process we have, and you mentioned the time it takes, and we do 
want to--I would welcome meeting with you to elaborate on this 
even more with the Chairman of our Conduct and Disability 
Committee, Judge Scirica, and would welcome the opportunity to 
walk you through it, sort of a typical conduct review, some of 
which I am restrained from speaking about publicly because 
there are confidentiality requirements built into the statutes 
that give us authority to investigate allegations of 
misconduct, and we are not permitted to reveal publicly some of 
the aspects of that.
    But just speaking generically about that process, I think 
it is a very healthy and robust and thorough process that we 
have within the branch. And, I think it was Chairman Goodlatte 
who raised the matter in Alabama, where the judge did resign. 
From beginning to end in that particular matter, that took 1 
year. And, you might say, ``Well, why did it take that long?'' 
Well, in that case, from the time the allegations surfaced----
    Mr. Issa. The timeline of 1 year, that is the timeline of 
the investigation, not the timeline from beating his wife to 
removal, is it?
    Mr. Duff. I think----
    Mr. Issa. That was slightly longer.
    Mr. Duff. I believe it was when it became public that he 
was arrested and then that was the issue, to the time of 
resignation was about a year. And, in the course of that, there 
was a thorough investigation. There were witness statements 
taken, and throughout--the process--if I can be brief about it 
and summarize it--from the time a conduct complaint was filed, 
misconduct complaint was filed with the chief judge of the 
circuit, the chief judge of the circuit then brought it to the 
attention of the Judicial Council of that circuit, the Judicial 
Council of the circuit. Then there was created a special 
committee to review the matter within the circuit.
    The special committee reviewed it, made its recommendations 
to the Judicial Council of that circuit. Those judges then, and 
the chief judge of that circuit, made a recommendation to the 
conduct or to the Judicial Conference of the United States, 
which then referred it to its Conduct and Disability Committee, 
and it reviewed the matter. And then it, at that time, referred 
the matter to the full Judicial Conference of the United 
States. All in all, 54 judges were involved in the review of 
that conduct allegation. It ultimately resulted in the 
resignation of the judge. That took a year.
    Mr. Issa. And, we verified. You are exactly right. It did 
take a year, so thank you for clarifying that. One quick 
follow-up on that, and then I think Mr. Cohen is going to ask a 
round of questions.
    Mr. Duff. Sure.
    Mr. Issa. The Constitution does not allow us to reduce the 
pay of a judge. But there is, as far as my reading, no 
prohibition on an ultimate reduction for someone terminated for 
cause. Effectively, if we passed a statute that required that, 
once someone went into an ``investigation,'' that if that 
investigation led to their resignation or their dismissal 
through any number of procedures, including impeachment, that 
their retirement date would cease as of the date of the 
beginning of that crime or misconduct.
    In your opinion, would you say that that is not a 
diminishment or, if it was, we could certainly define 
retirement in a way that it would not be? And, I shared that 
with a number of judges, because one of our challenges has been 
individuals who choose to say, ``I am going to be vested or 
vested at a higher level,'' and they simply delay the tactic 
and that often leads to judges saying, ``Well, why go through 
this, if he or she is going to be gone in 18 months?'' That is 
a tool not presently available to you.
    Can you opine on whether you think that would be 
constitutional, or whether you would need a statute, and then 
still a constitutional challenge to, I guess, eight men and 
women?
    Mr. Duff. I would like to study it a little more before--
and I am not sure it is proper for me to speak to the 
constitutionality of it--but I would be very interested in 
working and talking with you about it.
    Mr. Issa. And, we are going to go to Mr. Cohen, but I 
wanted to leave that public, because it would seem that it is a 
tool not available to you today. It would seem that the 
retirement system, different than the current pay, may well be 
one in which we could define that, ultimately, that, you know, 
we normally--we can suspend an employee, potentially without 
pay, in the executive branch.
    In Congress, we passed the statute after Randy Duke 
Cunningham, essentially, took bribes, that would make it 
possible to eliminate their retirement altogether for that 
crime, which he pled to. So, it is not that we are not doing it 
to ourselves. We are doing it to ourselves, but we lack such a 
tool currently. So, if you would study it, I would be happy to 
work with you, and at some future hearing, perhaps, bring it up 
again.
    Mr. Duff. I would be very happy to do so, Mr. Chairman.
    Mr. Issa. Thank you. Well, and now we have the gentleman 
who represents Saint Jude and other important areas of 
Tennessee for his questions, Mr. Cohen.
    Mr. Cohen. Thank you, Mr. Chair, and, indeed, I am proud to 
represent Saint Jude and the Ninth District in Tennessee. The 
Ninth District of Tennessee has a district court judge that is 
pending in the United States Senate. President Obama nominated 
the present United States Attorney, Ed Stanton III, who has an 
impeccable record of an outstanding job as a United States 
Attorney, formerly a counsel with Federal Express, and in 
private practice as well, and an esteemed graduate of the 
University of Memphis Law School and an undergraduate. He is 
next on the list.
    Do you have any insight into what the Senate's rationale 
is, and what they will do, as far as having more nominations 
come to a vote than have been approved by the Senate Judiciary 
Committee and are pending the final vote in the Senate?
    Do you have any idea what their present perspective is? Are 
they limiting themselves by the number of people that were 
approved during Bush's last year, or are they trying to help 
the Federal courts get judges who can then make the flow of 
cases proceed?
    Mr. Duff. I do not know, Congressman Cohen, what their 
intent is from here, through the election. We continue to 
encourage and press for the vacancies that exist to be filled. 
And, there are some nominations pending and we want the 
vacancies filled.
    Mr. Cohen. There are 90, as I understand, vacancies with 59 
nominees pending. Some have been there for more than a year. I 
think Mr. Stanton has been there, obviously, the longest time, 
I think, because he is next in line. How has the lack of 
filling these vacancies affected the workload of the current 
judges and Federal district courts?
    Mr. Duff. Well, vacancies have been with us for a long, 
long time. And, it is an issue that we work on with every 
Administration regardless of party. And, we push for getting 
those vacancies filled as best we can. This is not a new issue 
for us.
    Our workload, as I mentioned, that we are really beholden 
to, our senior judges for helping us absorb increased workload. 
If you look at the trends in the Federal courts over the last 
50 years, the workload has gone up probably four-fold for the 
courts. And yet, we only have twice the number of judges that 
we had 50 years ago.
    Mr. Cohen. But let me ask you this, the administration of 
justice is being harmed by not passing and approving judges who 
have been approved by the Committee? Would that be an accurate 
statement?
    Mr. Duff. Well, we do want the vacancies filled. Yes, sir.
    Mr. Cohen. Okay. And, let me ask you this--at one point, I 
think the rationale was that X amount of judges were approved 
in the last year of President Bush II and that--I think they 
have gone beyond it by one or two now. Do you know what the 
caseload vacancy was at that time? Or not the caseload vacancy, 
but the judicial vacancies? There are 90 vacancies now, do you 
know how many vacancies there were at that time?
    Mr. Duff. Off the top of my head, I do not, Mr. Cohen.
    Mr. Cohen. But, I believe there were a lot less. So, I 
think that is a better way to look at it is the harm to the 
judicial system and not just a raw number. And, I think it is 
an error. And, of course I would like him to approve Mr. 
Stanton and at least do one more. The issue has come up about 
television in the courtrooms.
    Mr. Duff. Yes, sir.
    Mr. Cohen. And, as I understand it, you all have a pilot 
program, but you are not so much in favor of it. And, did you 
take a position, you did not think that should exist at the 
Supreme Court level?
    Mr. Duff. Well, our pilot program really has nothing to do 
with the Supreme Court, we are----
    Mr. Cohen. Well, I understand that, but did you take a 
position on the Supreme Court and cameras?
    Mr. Duff. No, sir.
    Mr. Cohen. Okay.
    Mr. Duff. The Supreme Court makes its own decisions about 
that.
    Mr. Issa. I might note for the record that Chief Justice 
Roberts has not changed his adamant opposition.
    Mr. Cohen. And, I have great respect for Chief Justice 
Roberts. I have had the opportunity to have interchanges with 
him on several occasions, I respect him greatly, but I think he 
is flat wrong on this issue. I can see people being against it, 
thinking that in certain places that some lawyers might use it 
to, you know, act and maybe increase their client base, et 
cetera.
    But, I do not think that is going to happen at the Supreme 
Court. The government body, the three equal branches, they are 
not three equal branches. There is one big branch, and it is 
the Supreme Court. They make more of a difference in this 
country than the executive or the legislative, in my opinion. 
They decided Bush v. Gore, they decided Citizens United, they 
have got choice, they have got the Second Amendment, they have 
got--all the big issues are there, and they do it.
    And, the American public should be able to see the 
arguments, listen to the arguments, and see the responses and 
see the questioning. I have only been up there once. It was an 
edifying experience, and every American should have it, and you 
should not have to go over there and sit there and to watch it, 
it should be on C-SPAN. I have no more time, so I will yield 
back the balance.
    Mr. Issa. I thank the gentleman. Do you need more time?
    Mr. Cohen. No.
    Mr. Issa. Okay. Mr. Duff, I want to not get you out of here 
without thanking you and all of those who work with you for the 
fact that the cost of courtrooms is high, the building security 
is high, and in the now 15 plus years since 9/11, a lot of 
demands have been placed on those building funds.
    And, I want to make it clear that the dozen or so billion 
dollars, which in Washington--everywhere else is a lot of 
money--in Washington it is amazing that the courtroom security, 
everything, and I recently dealt with one related to just 
getting the babysitting--if you will--into the Federal building 
in San Diego because, in fact, the place we had, which was 
secured, was being taken back by the city. And, there was a 
basic problem of, these are high targets and how do you 
transport people who are targets between dropping off their 
child in one place and another?
    And, I think the American public does not fully appreciate 
the actual security requirements that you deal with every day. 
So, as a result, I am not spending a lot of time talking about 
your building funds, your construction, because I think that 
you--between the appropriators in this Committee--have been 
great and transparent.
    But, speaking of transparency, everyone up here on the dais 
fills out--and everyone in the executive branch at certain 
levels--fills out an incredibly detailed, but confusing, form 
for financial disclosure. And, it does not happen the same way 
in judicial branch.
    And, I want to know from you, can you find and give us any 
guidance as to why we should not mandate, if we cannot get 
voluntarily from the court, a similar level of transparency for 
the question of possible conflicts of interest? We understand 
that a judge's job is to say, ``Oh, I have this conflict, I 
own, you know, eight million shares of something belonging to 
somebody who is a litigant.''
    But, in fact, money flowing in and out is not necessarily 
that transparent sometime. And, I will take one example in my 
question from the public. I do not know who paid for trips by 
various justices and judges on a regular basis because it is 
not disclosed with the kind of transparency we have. And, my 
understanding is, there is much less limitation on who can pay 
for and have somebody be their guest speaker at a first class 
resort. So, would you touch on that? Because people pretty much 
understand the President's disclosure--even candidates' 
disclosures of their tax returns. They certainly can go online 
and see the outcome of our extensive requirement to provide 
information, not only as to our financial well-being, but 
disclosing every single individual stock trade within a very 
short period of time, for example.
    Mr. Duff. Well, our judges do fill out financial disclosure 
reports as much as you do. There is a provision that permits 
when someone has sought access to the financial and wants to 
review the financial disclosure report, there is a period of 
time at which we alert the judge to that. So, there is an 
opportunity to review it, once again, for information that 
could be redacted that would put the judge in jeopardy or his 
family in jeopardy by disclosing certain locations----
    Mr. Issa. But in a nutshell, they file a financial report 
that is not public. If someone wants to review it, there is 
another round available to the judge prior to someone being 
able to see it and those redactions, in good faith, might be 
appropriate, but that is not the same as a Member of Congress 
buys 1,000 shares of Google today, it has to be reported.
    Mr. Duff. Right. Well, those things are reported again, in 
the annual disclosure reports. I think the redaction period is 
only about a 30-day period. And, it was really implemented for 
security reasons for the judges. We have had more than one 
incident of judges and/or family members being killed. And so, 
we just have to----
    Mr. Issa. No, we understand the addresses, although our 
addresses are very public. But, one more follow-up on this to 
make it clear--if Judicial Watch asked for every single judges' 
financial disclosures, so that the financial holdings in some 
range were available, 30 days from now, would they be able to 
publish those on the internet so that everyone would know----
    Mr. Duff. I believe they do. I will check into that, but I 
believe they probably already do that. I think those are well-
publicized. It may well be Judicial Watch who does that, but I 
would like to follow up on that if I might, Mr. Chairman, just 
so I am accurate about that.
    Mr. Issa. Here is the last one--and this one I have voiced 
before the Judicial Conference once--we have a problem in 
Marshall and Tyler, Texas. Judges, by any stretch of the 
imagination, are abusing discretion to keep patent cases in 
vast numbers there. They do not transfer them, and they will 
not prioritize the motions to move them to a more appropriate 
venue, but rather, they go through discovery.
    It is good for Tyler, it is good for Marshall, it is good 
for the Chamber of Commerce, and your Federal judges are doing 
it. Not on an individual basis, but on a group basis. It has 
been going on for a decade; it is a growth industry. I am 
currently being asked to provide more judges to that district.
    Now, it will be a cold day in hell before I give more 
judges, at my authority to the extent that I have it, in any 
way shape or form, to an area that is abusing discretion and 
causing legislation--Chairman's legislation--vastly bipartisan, 
the Ranking Member and others'--looking at legislation to try 
to stem misconduct within a district.
    So, my question for you today--and this was the question I 
have asked the Chief Justice and late Justice Scalia and 
others--if you have the power to do administrative--you can 
move cases, you can, in fact, speak to your brethren--and you 
have not been able to handle this--then why is it that it 
should be our problem and not your problem to fix it?
    Mr. Duff. Well, you and I have had this conversation 
before, too. And----
    Mr. Issa. I got to tell you, I talk to everybody, because 
it is frustrating that Congress should even be looking at one 
district for its misconduct.
    Mr. Duff. Well, if I may----
    Mr. Issa. And, misconduct is a word maybe misused, but the 
growth of these cases and the other judges around the country 
rolling their eyes about Tyler and Marshall in the Eastern 
District of Texas, it is not a--it is the most open secret 
there is on your side of government.
    Mr. Duff. Well, if I might speak to it in a general sense, 
what the Judicial Conference through its rules committee has 
done most recently in this realm that may have some impact on 
it, although it may not address entirely concerns you have 
raised.
    But, we have tried to streamline litigation, make it more 
efficient with regard to motions, for example, the discovery 
periods, bringing those into certain bounds and limitations 
that move cases along more quickly and make it more--the 
consideration of motions to be moved along more quickly than 
they have been.
    Similarly, we eliminated some of the forms in the rules, 
the Civil Rules amendments in 2015. One of the forms eliminated 
was Form 18, which was a form that was used for patent filings. 
And, it was deemed to be no longer valuable and useful and 
perhaps did not give all the proper elements of a patent claim 
in the form itself. So, that form was abrogated. And so, we are 
taking a look at this, and the FJC is studying patent 
litigation and potential reforms.
    I think your institution and encouragement of the Patent 
Pilot Program--there are elements in the Patent Pilot Program 
that I think we can glean information from that may well help 
us address this more specific issue that you have raised today. 
And so, our 5-year report is due, as you know, because you--
this was--you were----
    Mr. Issa. You are doing a great job of sucking up to the 
Chairman here. But, you know, the fact is that Patent Pilot was 
designed to recognize that judges could, in fact, move 
caseloads better; that we want judges that are knowledgeable.
    The challenge that we face today--and I am going to go to 
Mr. Johnson--but we also know that we want cases to be held--
you know, we want them to either be where the plaintiff clearly 
has a logical nexus, the inventors, the et cetera; or where the 
defendant has a primary place of business. And, that is just a 
general rule, that when all there is, is a doughnut shop that 
is using a product by a manufacturer and it is in Tyler, Texas; 
that is not where the plaintiff or defendant is; not where the 
invention is; it is not where the witnesses are.
    And, it is frustrating because I have as you note--look, I 
have been both the plaintiff and the defendant in these cases, 
and I know how burdensome it is to move people to a completely 
inappropriate place. It is always burdensome to have it in the 
other guy's place, but if it is going to be the other guy's 
place, at least I want it to be appropriate other guy's place.
    I appreciate your kindness and your working on it. We will 
continue to monitor it. It happens to be important to the 
Chairman of the full Committee and the Ranking Members, so I 
will keep bringing it up.
    Mr. Duff. Sure. And, I do think the 5 year report that is 
due may address some of these issues, and we would hope to work 
with you on that.
    Mr. Issa. And, I would note that there has been some 
progress on the caseloads reduction and transfer. So, it is not 
without some upside. Mr. Johnson, are you ready? The gentleman 
is recognized for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman, and thank you, the 
Ranking Member, as well. And, this is a very important hearing. 
And, I thank the witness for appearing. As the senior Member of 
the House Judiciary Committee, I have long championed the 
issues of access to the courts for all citizens, not just the 
wealthy and the well-connected. Specifically, I have worked to 
ensure that every American has the opportunity to assert his or 
her right--a constitutional right under the Seventh Amendment--
to a trial by jury.
    Over the last 15 years, we have witnessed repeated attacks 
against our judicial system; the courthouse doors have been 
shuttered, or threatened to be shuttered by legislative 
maneuvering, and highly politicized Supreme Court cases.
    Indeed, very limited funding, significant legislative 
reforms, paradoxical pleading standards created under Twombly 
and Iqbal, an aging bench, and anti-litigation legislation here 
in Congress, makes me wonder how capable our venerated judicial 
system is at administering justice in the face of all these 
hurdles.
    In the 11th circuit alone, we have 11 vacancies, four 
future vacancies, and seven judicial emergencies. Furthermore, 
prosecutors and public defenders, at the State and Federal 
level, are facing significant funding cuts. To avoid layoffs, 
public defenders find themselves working unpaid cases, facing 
delayed compensation, or enduring furloughs. Advances to court 
technology have also taken a back seat, despite the fact that 
such measures are needed to make the courts more accessible.
    While this is in response to tightening budgets and 
sequestration, it has a corrosive effect of increasing court 
backlog and discouraging citizens from seeking redress through 
the courts. Rather than making the process more streamlined for 
the public, Americans face higher litigation costs, a confusing 
process, and longer wait times between proceedings.
    Instead of reaching a speedy resolution, citizens find 
themselves frustrated and disheartened by the legal system. 
And, I am glad that we have an opportunity today to hear how 
Congress can support the courts, give rights back to the 
people, and ensure everyone has the opportunity to have their 
proverbial day in court.
    Mr. Duff, while the Senate has grown famous for its 
stalling tactics in this year's SCOTUS nomination, they also 
have a historically low confirmation rate for all Federal 
nominations--only 11 in 2015. How does this appalling low 
confirmation rate, combined with an aging bench throughout the 
Federal judiciary, affect the court's ability to administer 
justice? And, I think closely associated with that, is the rate 
of pay that we give to judges. I mean, they make less than a 
first-year associate at a major law firm, these days. Can you 
comment about that?
    Mr. Duff. Well, you have raised a number of issues, and I 
will try to address them in order--and maybe reverse order, 
because I will remember them more easily, then. And, I want to 
thank you for your efforts in years past for our judges and the 
salary issue. You were a leader on that for us, and it was very 
much appreciated in the branch.
    With regard to vacancies, across Administrations, we have 
pressed for filling the vacancies where they exist. We need our 
judges to help us with the workload. You referred to, also, our 
aging bench. I would reiterate something we discussed a little 
bit earlier, which was our senior judges are the reason why we 
are keeping up with the workload to the extent that we are.
    We have a number of judges who are serving, who could 
retire and draw their salaries in retirement; as you know with 
the life appointment that is possible for our Federal judges. 
But many, if not most, stay on the bench even after they are 
eligible to retire. And, that has been an enormous service to 
the country and to the judicial branch.
    But, you have raised other challenges that we do wrestle 
with. I want to mention that after sequestration we have been 
very--I hesitate to use the word ``favorably,'' but certainly 
given very healthy budgets in the last three cycles. They are 
enabling us to pay defenders now where through sequestration 
we--that we had to make cuts. We are very grateful to the 
Congress for the appropriations we have been given over the 
last 3 years. And, I think that is a reflection of recognition 
that we have been good stewards of public funds. And, if I 
might correct the Chair on something--I hesitate to do that, 
but----
    Mr. Issa. Oh, please, feel free.
    Mr. Duff. Well, I would love to have a $12 billion budget, 
but ours is $7 billion. And, it may be that you were referring 
to courthouse construction projects and others that GSA gets 
funding for.
    Mr. Issa. I was lumping all of it in. You know, some if it 
goes to those underpaid Federal judges.
    Mr. Duff. But, we have been given healthier budgets in the 
last three cycles because, I think, our appropriators have 
recognized that we are efficient, which was the topic of this--
of the hearing, the efficient administration of justice.
    And, we are grateful for that. Could we use more resources? 
Sure. Do we need the judges filled? Yes. The vacancies. Do we 
need more judgeships? And, we have focused on areas where there 
is an extraordinarily high caseload, and we have asked for more 
judgeships in some key districts around the country where the 
caseload is overwhelming to our judges.
    But, if I could speak to what the branch is doing to handle 
that within the branch, we are utilizing inter-circuit 
assignments of judges and intra-circuit assignment of judges to 
move judges whose workload may not be as heavy in some 
districts into courts where the workload is overwhelming.
    And so, we are trying to manage within the branch without 
getting more funding from Congress, and more judges, frankly. 
We are trying to manage within the branch the increasing 
workload. And, we do not have as many judges, workload-wise, as 
we did 50 years ago. If you look at the case trends and the 
growth in the cases in the Federal courts and the number of 
judges has not kept pace with that.
    But, we have become more efficient, and I am very proud of 
our judges and the staff for the hard work that they have put 
in around the country. But, you have raised serious issues and 
questions; they are ones that we take to our appropriators as 
we go through our budget process.
    Many of these issues are--you know, money does not solve 
everything, but there are areas where it is needed. We have 
asked for more, and the Congress has been responsive, for the 
most part. So, we are encouraged about that part of it. But, 
there are other elements that you have raised that we have a 
long way to go yet.
    Mr. Johnson. Well, the issue of judicial pay, if you would 
get a little bit further into that. Tell us what the lay of the 
land is in terms of judicial pay; how it incentivizes or 
disincentivizes good public service.
    Mr. Duff. Well, our pay has been adjusted. The cost of 
living increases, that were denied over the past years, have 
been reinstated. And so, adjustments have been made that have 
made up for the lost cost of living adjustments.
    And so, the pay issue that you and I worked so hard on a 
few years back has been alleviated to a great degree. But, it 
is certainly an issue, I think, for public servants, generally. 
The rate of pay, your salaries, are, I think, frankly, in need 
of review. And so, that is an issue that thankfully within the 
branch, because of the makeup on the lost COLAs, has been 
relieved somewhat.
    But it is important--as we have talked in years past--it is 
a very important incentive to get people into public service. 
People do not devote their careers to this to get wealthy, 
obviously. They are devoted public servants and they want to 
serve the country.
    But, to attract the best, you have to be at least 
competitive with, you know, the cost of living in an area of 
the country, certainly here and in major cities, that you can 
attract good people to the service. So, it is a very important 
element of public service, and I think it deserves 
consideration. It is not a time, of course, when that is going 
to get a lot of sympathy.
    I think the Chairman alluded in his opening remarks about 
the views of the public about our public service, generally, 
and the low regard the polls would indicate. We have got work 
to do to persuade the public that we are serving them well, and 
then we can look at the pay issue again, I think. But, not 
until.
    Mr. Johnson. Thank you. I want to thank the Chair for being 
quite judicious with the--or more than judicious with the time 
for my questions. Thank you.
    Mr. Issa. The gentleman's questions were very appropriate. 
I thank the gentleman. In closing, I will recite from my 
prepared notes: ``$13.29 billion is the budget, much of it not 
discretionary.''
    Obviously, you have pay, you have retirements in that. 
About less than half of it goes to the court operations as you 
would oversee it. And, I bring it up, actually, because it is 
so small. You are a very small branch of government, the total 
amount that is allocated, considering there is 320 million 
Americans, is small.
    And, I am going to close with a comment, but it is one that 
I want to make sure that is on the record: the growth of the 
use of the Federal court system, far beyond what it was ever 
intended to adjudicate, is part of the reason that we, today, 
spend a considerable amount of time talking about Federal 
judges; and the 90 or so vacancies, 31 not referred yet to the 
Senate, but the remainder who pend before the Senate.
    If we took every gun case, every car theft case, every 
civil suit that could be in State court, what we would discover 
is, the vast majority of that--other than immigration--
considered by the court--and I am leaving bankruptcy and the 
specialties out--would in fact, not be there.
    As someone who has watched patent cases be put behind 
endless amounts of criminal cases, all of which are illegal in 
every State in the Union for crimes committed in a single 
State, what we discover is that we, in Congress, have, in fact, 
given you a growth opportunity that we have not fully funded, 
and are unwilling to fully fund.
    So, I might suggest, in closing, that a future hearing by 
this Committee, and a series of looks that go along with 
Chairman Sensenbrenner's view, that we need to take a close 
look at why we federalize that which the States could do, while 
we ask our Federal judges to spend a great deal of their time 
reliving their time as D.A.s and State judges, rather than 
focusing on immigration, patent, true interstate activity, and 
other areas that would only be possible to be tried in the 
Federal courts. That is sort of my talking point close.
    At this point, I would like to thank our witness for his 
very lengthy discussion, it has been very helpful. This does 
conclude today's hearing. But, without objection, all Members, 
both present and not present, will have 5 legislative days to 
provide additional written material, and, with the indulgence 
of our witness, provide additional questions and follow-ups 
that you may be able to answer.
    Mr. Duff. Happy to, Mr. Chairman.
    Mr. Issa. I thank you. And, with that, we stand adjourned.
    [Whereupon, at 11:32 a.m., the Subcommittee was adjourned 
subject to the call of the Chair.]

                            A P P E N D I X

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               Material Submitted for the Hearing Record

  Response to Questions for the Record from James C. Duff, Director, 
           Administrative Office of the United States Courts
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

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