[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
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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
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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:]
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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:]
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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
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