    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                   THE FEDERAL JUDICIARY IN THE 21ST CENTURY:
                     ENSURING THE PUBLIC'S RIGHT OF ACCESS
                                 TO THE COURTS

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

                                    HEARING

                                   BEFORE THE

        SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 26, 2019

                                   __________

                               Serial No. 116-55

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available http://judiciary.house.gov or www.govinfo.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    42-327 PDF                 WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                   MARY GAY SCANLON, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              DOUG COLLINS, Georgia,
    SHEILA JACKSON LEE, Texas              Ranking Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    SYLVIA R. GARCIA, Texas              BEN CLINE, Virginia
    JOE NEGUSE, Colorado                 KELLY ARMSTRONG, North Dakota
    LUCY McBATH, Georgia                 W. GREGORY STEUBE, Florida
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            Perry Apelbaum, Majority Staff Director & Chief Counsel
                    Brendan Belair, Minority Staff Director
                                     ------

        SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                 HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                       LOU CORREA, California, Vice-Chair

    THEODORE E. DEUTCH, Florida          MARTHA ROBY, Alabama,
    CEDRIC RICHMOND, Louisiana             Ranking Member
    HAKEEM JEFFRIES, New York            STEVE CHABOT, Ohio
    TED LIEU, California                 JIM JORDAN, Ohio
    GREG STANTON, Arizona                JOHN RATCLIFFE, Texas
    ZOE LOFGREN, California              MATT GAETZ, Florida
    STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
    KAREN BASS, California               ANDY BIGGS, Arizona
    ERIC SWALWELL, California            GUY RESCHENTHALER, Pennsylvania
                                         BEN CLINE, Virginia

                          Jamie Simpson, Chief Counsel
                      Thomas Stoll, Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                               SEPTEMBER 26, 2019

                               OPENING STATEMENTS

                                                                       PAGE
    The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
      the Congress from the State of Georgia, and Chairman of the
      Subcommittee on Courts, Intellectual Property, and the Internet     1
    The Honorable Martha Roby, a Representative in the Congress from
      the State of Alabama, and Ranking Member of the Subcommittee on
      Courts, Intellectual Property, and the Internet................     3
    The Honorable Jerrold Nadler, a Representative in the Congress
      from the State of New York, and Chairman of the Committee on
      the Judiciary..................................................     4
    The Honorable Doug Collins, a Representative in the Congress from
      the State of Georgia, and Ranking Member of the Committee on
      the Judiciary..................................................     5

                                   WITNESSES
                                    PANEL I

    The Honorable Audrey G. Fleissig, U.S. District Judge, Eastern
        District of Missouri
        Oral Testimony...............................................     8
        Prepared Statement...........................................    10
    The Honorable Richard W. Story, U.S. District Judge, Northern
        District of Georgia
        Oral Testimony...............................................    32
        Prepared Statement...........................................    34

                                    PANEL II

    Ms. Lisa Girion, Reporter, Thomson Reuters Corporation and Mr.
        Daniel R. Levine, Legal Correspondent, Thomson Reuters
        Corporation
        Oral Testimony...............................................    58
        Prepared Statement......................................60
    Mr. Daniel R. Levine, Legal Correspondent, Thomson Reuters
        Corporation
        Oral Testimony...............................................    00
        Prepared Statement..........................................00 deg.
    Ms. Jodi M. Schebel, Co-Managing Partner, Bowman and Brooke, LLP
        Oral Testimony...............................................    92
        Prepared Statement...........................................    94
    Mr. Seamus Hughes, Deputy Director of the Program on Extremism,
        George Washington University
        Oral Testimony...............................................   103
        Prepared Statement...........................................   105
    Ms. Sunny Hostin, Co-Host, The View, ABC Television Studios
        Oral Testimony...............................................   112
        Prepared Statement...........................................   114
    Mr. Jeffrey Toobin, Staff Writer, The New Yorker
        Oral Testimony...............................................   121
        Prepared Statement...........................................   123

                                    APPENDIX

    A statement for the record from the Honorable Steve Leben, Judge,
      Kansas Court of Appeals........................................   137
    A letter for the record from the Honorable Bridget Mary
      McCormack, Chief Justice, Michigan Supreme Court...............   144
    A letter for the record from the Honorable Maureen O'Conner,
      Chief Justice, Supreme Court of Ohio...........................   146
    A letter for the record from the Honorable Elizabeth D. Walker,
      Chief Justice Supreme Court of Appeals, West Virginia..........   152
    A statement for the record from the National Press Photographers
      Association....................................................   153
    A letter for the record from Americans for Prosperity............   172
    A statement for the record from the American Association of Law
      Libraries......................................................   174
    A letter for the record from organizations in support of
      Electronic Court Records Reform Act of 2019....................   177
    A letter for the record from Elizabeth Chamblee Burch, University
      of Georgia School of Law; Martina S. Horner, University of
      Connecticut School of Law; and Adam Zimmerman, Loyola Law
      School.........................................................   178
    A letter for the record from the Reporter Committee for Freedom
      of the Press...................................................   181
    A letter for the record from the Electronic Privacy Information
      Center.........................................................   184

                          THE FEDERAL JUDICIARY IN THE
                           21ST CENTURY: ENSURING THE
                     PUBLIC'S RIGHT OF ACCESS TO THE COURTS

                                  ----------

                          THURSDAY, SEPTEMBER 26, 2019

                            House of Representatives

        Subcommittee on Courts, Intellectual Property, and the Internet

                           Committee on the Judiciary

                                Washington, DC.

        The subcommittee met, pursuant to call, at 2:05 p.m., in
    Room 2141, Rayburn Office Building, Hon. Henry C. ``Hank''
    Johnson, Jr. [chairman of the subcommittee] presiding.
        Present: Representatives Johnson of Georgia, Nadler,
    Stanton, Roby, Collins, Chabot, Jordan, Biggs, Reschenthaler,
    and Cline.
        Staff present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Moh Sharma, Member Services and Outreach
    Advisor; Madeline Strasser, Chief Clerk; Jamie Simpson, Chief
    Counsel, Courts & IP Subcommittee; Danielle Johnson, Counsel,
    Courts & IP Subcommittee; Matthew Robinson, Counsel, Courts &
    IP Subcommittee; Rosalind Jackson, Professional Staff Member,
    Courts & IP Subcommittee; Thomas Stoll, Minority Chief Counsel;
    Dan Ashworth, Minority Counsel; and Andrea Woodard, Minority
    Professional Staff Member.
        Mr. Johnson of Georgia [presiding]. Welcome to the
    Subcommittee's second hearing in our ongoing examination of the
    state of the Federal Judiciary in the 21st century. Our first
    hearing focused on judicial ethics and accountability. Today's
    hearing shifts our oversight to an equally vital topic, the
    public's right of access to the business of the courts, a right
    centuries older than our republic and fundamental to our
    conception of justice in a democratic society.
        To paraphrase an old judicial aphorism, it is not enough
    that justice is done. The public must all see justice being
    done. That is why images like the one that is on the screen,
    the long lines trying to get into the United States Supreme
    Court, are so troubling. This is the only way Americans can
    watch the Court's oral arguments. Lines start forming days
    before high-profile arguments. Often they are filled with
    people who have paid $50 an hour to save someone a spot. Most
    of the people who make it inside are quickly rotated through a
    small courtroom, only able to hear a few minutes of the
    hearing.
        These scenes are deeply disturbing to the ideal of an open
    and transparent judiciary. You can't make it out in this photo,
    but the words, ``Equal Justice Under The Law,'' are inscribed
    above the doors of the Court. When the public see those words,
    they should see a message of welcome. I worry that instead they
    see a ``keep out'' sign. I understand that judges here today
    represent the Judicial Conference and cannot speak for the
    Supreme Court, but I do want to make sure we are all aware that
    it is images like this one that frame the debate.
        This photo is also a reminder that today the question of
    whether our Federal courts are truly open is not answered by
    looking at whether the physical doors of our courtrooms stand
    ajar. Instead, the public's right of access must keep pace with
    the fact that we are entering the 3rd decade of the 21st
    century. That means that it is not enough to simply have case
    law recognizing the public's right of access to court records.
    There is a need to make sure that judges are scrutinizing even
    an uncontested motion to file court records under seal,
    especially when those records contain information that could be
    crucial to public health and safety. It means that the public
    shouldn't have to pay to see court filings.
        The same goes for the public's right of access to court
    hearings. We need only look to State judiciaries to see what
    open justice means today. Nearly every State court system
    allows cameras in their hearing rooms, and many of them have
    livestreamed their proceedings for years. As the chief Justice
    of the Ohio Supreme Court writes, ``Livestreaming increases
    trust in judges, in our decisions, and in the rule of law.''
    Their experiences undermine some common counter-arguments about
    having cameras in courtrooms with the chief justice of the
    Michigan Supreme Court writing, ``Some say TV cameras distract
    participants. In the courtroom, cameras are simply a fixture of
    proceedings, no more distracting than a podium or a chair, but
    just as necessary.''
        Before I yield to the Ranking Member, I need to recognize
    that our committee has a long bipartisan history of working to
    improve public access to our courts. Both Chairman Nadler and
    my colleague, Mr. Chabot, are long-time advocates of putting
    cameras in Federal courtrooms, as are Ms. Lofgren and Mr.
    Deutch. And, of course, one of the reasons we are having this
    hearing is because Ranking Member Collins' efforts to modernize
    access to court records and make it free has been important
    work. I am glad to be a co-sponsor of his and Mr. Quigley's
    bill.
        Chief Justice Burger once traced the unbroken,
    uncontradicted history of public access to the courts that he
    noted was supported by reasons as valid today as centuries
    past. Today's hearing is about making sure that history remains
    unbroken by collaboratively and constructively resolving any
    contradictions in our shared responsibility to open justice in
    both principle and practice.
        To our witnesses, I look forward to hearing your testimony
    on these important topics. I also hope you will be willing to
    work with us after this hearing. There is a lot that we can
    accomplish if we work together. Thank you, and I look forward
    to your testimony. And it is now my pleasure to recognize the
    Ranking Member of the Subcommittee, the gentlewoman from
    Alabama, Mrs. Roby, for her opening statement.
        Mrs. Roby. Thank you, Chairman Johnson, and thank you to
    the witnesses from both panels for being here today to share
    their experiences with the Federal court system. Our two panels
    testifying today will cover many different topics, including
    the Public Access to Court Electronic Records system, also
    known as PACER, consolidating the Case Management/Electronic
    Filing system, audio and visual recordings in district and
    appellate courts, and changes to the standards for sealing
    court filings.
        While some of these ideas are worth exploring further, I
    have significant concerns that some of the proposals will have
    a negative impact on judicial proceedings and the parties
    involved, especially cameras in courtrooms. I am particularly
    interested in hearing from our two distinguished district court
    judges here representing the Judicial Conference about their
    views on these ideas. So I really want to thank you both for
    being here and taking time out of your schedules to be with us.
        The PACER system is currently widely viewed as outdated and
    difficult to use. If you ask almost any attorney or law student
    if they have used PACER, they will respond negatively and let
    you know how bad the system is. And while we should certainly
    be looking at ways to improve the system and modernize it, we
    must not do it in a way that deprives our court system of very
    much-needed funding. I look forward to hearing from our
    witnesses on different proposals for how we can improve PACER
    to work for everyone.
        The Case Management/Electronic Filing system has been
    widely viewed as a success and has made it easier to
    electronically file and manage cases. However, every district
    and appellate court system operates their own system and much
    of this information can be fragmented. Hopefully we can hear
    today how this successful system can be improved upon and
    consolidated.
        I have strong concerns, and I am opposed, to placing
    cameras within courtrooms. Our Federal courts here have
    important cases that can deal with highly-sensitive issues,
    national security concerns, and very heinous crimes. Having
    live broadcasts at these proceedings can place witnesses in
    jeopardy, subject jurors to intimidation, cause disruptions,
    and cast doubt over the outcomes of a case, amongst many other
    potential problems. Live broadcasts are simply something I am
    unable to support. I would like to hear from our witnesses
    about the feasibility of doing same-day audio or whether enough
    safeguards could be established to address the concerns that I
    have already outlined.
        Finally, we will also hear from our witnesses about the
    standards for sealing documents and filings. This is a complex
    issue that highlights the differences in standards amongst the
    circuits and balancing the needs of the public and the rights
    of the parties involved. It is important that the public has
    access to as much information as possible, but I am very
    hesitant to restrict or second guess a judge's discretion to
    review motions to seal documents or settlements. I look forward
    to learning more about this topic and the difference in
    standards across our country. I am a strong believer in our
    Federal court system and ensuring the public's access to
    justice. So while we must always make sure our courts are
    working effectively and efficiently, I have some concerns with
    these issues before us today.
        So I, again, want to thank our witnesses for being with us
    and hearing more about these proposals. And with that, Mr.
    Chairman, I yield back.
        Mr. Johnson of Georgia. Thank you. I am now pleased to
    recognize the Chairman of the Full Committee, the gentleman
    from New York, Mr. Nadler, for his opening statement.
        Chairman Nadler. Thank you, Mr. Chairman, and thank you for
    holding this important hearing on the public's access to the
    courts. No one in this room takes for granted the complexity
    and importance of the Federal judiciary's job of administering
    justice and doing so fairly. That role is fundamental, but it
    is undermined when the public cannot see the judiciary's work
    being done. Every day Federal appellate judges across the
    country review complex cases of public interest, and each term
    the Supreme Court examines important constitutional and Federal
    issues that have a long-lasting impact on society.
        Despite these courts' influence, only a few Federal courts
    have been in step with modern standards of access and have
    allowed visual media coverage or provided real-time audio
    streaming. And at the Supreme Court, the public must wait until
    the end of the week to hear recordings of oral arguments, with
    some exceptions. This means that most of the public rarely has
    the ability to see the courts' public deliberations as they
    happen in real time. Many people do not live near or even in
    the same State as their circuit court of appeals. They find it
    difficult to travel to Washington and stand outside for hours
    or even days or to pay someone to stand in line for them to
    witness history at the Supreme Court.
        The public's right of access is fundamental, and it is not
    adequately protected when our courts fall far behind modern
    standards of media access. The realization of this right should
    not be left to the lucky or the wealthy or the well-connected
    few. In most Federal courtrooms, real-time access to court
    proceedings is no more available today than it was in the 19th
    century. The ability to stream from almost anyplace and on
    almost any device has also become so pervasive and inexpensive
    that this is the immediacy that the public has come to
    reasonably expect from their government.
        The Federal judiciary's progress has been slow paced in
    this area, and our Federal courts have fallen behind their
    peers in the States and even courts abroad. Most State court
    systems allow livestream video of their proceedings. So do the
    supreme courts of the United Kingdom, Canada, and Australia. It
    is surprising and disappointing that our courts have been so
    willing to keep their doors closed and have so grudgingly
    allowed them to be open even a crack to the public. Live video
    ought to be the rule, tempered by judicial discretion, due
    process, and privacy concerns.
        Many of my colleagues and I have long been advocates for
    increasing access to the courts through media coverage and
    real-time streaming of proceedings. On this front, last
    Congress, I introduced the Eyes on the Court Act, which would
    establish a presumption of audiovisual access to the Supreme
    Court and circuit court proceedings, but leave judges with the
    discretion to turn the cameras off when the interest of justice
    requires it. I anticipate reintroducing this legislation, and I
    look forward to hearing the views of our witnesses on the bill
    and on the issue of cameras in the courtroom more generally.
        Of course, accessibility and openness entail more than
    cameras and audio. It is critical that the public has a
    meaningful and modernized way to access court records, and I
    appreciate the leadership of Ranking Member Collins on efforts
    to reform the PACER system. I also look forward to discussing
    the disturbing trend of routine sealed court filings that
    conceal vital health and safety information from the public. I
    have been concerned for many years about secret settlements and
    protective orders that companies obtain to prevent the public
    from learning important information regarding the health and
    safety effects of their products. That is why I plan to
    reintroduce the Sunshine in Litigation Act, which would require
    that information relating to public health and safety and
    protective orders or settlement agreements be made public,
    unless a court makes a finding that there is a specific and
    substantial interest in keeping such information secret that
    outweighs the public interest. As two of our witnesses have
    documented, the problem of shielding critical health and safety
    information from the public extends also to sealed court
    filings, and I appreciate their work in bringing this issue to
    light.
        Transparency is vital to the integrity of the judiciary,
    and it is vital to maintaining the public's trust in our
    courts, particularly as attacks on judicial independence and
    the rule of law have become more common. I am pleased that we
    are examining these issues today, and I am optimistic that
    today's hearing will lead to a productive dialogue about how
    the judiciary can best reach the public in a way that reflects
    modern standards and makes sense in this 21st century
    environment.
        I know that Chairman Johnson sees today's hearing as part
    of an ongoing conversation and collaboration with our Federal
    courts, and so do I. I look forward to hearing from all our
    witnesses on these important topics, and I yield back the
    balance of my time.
        Mr. Johnson of Georgia. Thank you. It is now my pleasure to
    recognize the distinguished Ranking Member of the Full
    Committee, the gentleman from Georgia, Mr. Collins, for his
    opening statement.
        Mr. Collins. Thank you, my friend from Georgia. And, Mr.
    Chairman, I appreciate that. Before I start, I want to take
    just a moment, especially this first panel, our two judges,
    Judge Fleissig, and also my dear friend and mentor in many
    ways, Judge Story. Your contributions to the bench are amazing,
    and I appreciate both getting to know you, but watching literal
    history, Judge Story, in your life as you have lived that out
    in our circuit, in our district. Our district in Georgia is
    definitely the better for your service, and I appreciate that
    and your insight here as well as we go forward.
        And I think many times we overlook the work of our judges,
    and, you know. And this is a committee in which we deal with it
    all the time, but it is also something which we also can
    celebrate. We may disagree on the outcome, but the judges are
    there to actually make sure that the folks in the world can
    look at us and see this is the most fair and equitable process
    that we can go through, and I want to thank both of you for
    being here. Our second panel is outstanding as well. I have
    watched many of their commentaries on TV, and looking forward
    to their comments here as we go forward to do this.
        And I want to thank the chairman and ranking member and, of
    course, the full chairman for being here and looking at this
    here. This is definitely, as you can tell by looking around,
    this is only for the true believers. This hearing is the
    Judiciary Committee at its purest, actually dealing with the
    judiciary and looking at what we deal with, and that is a good
    thing. And this subcommittee is valuable to that, and it is a
    way to promote public interest in judicial proceedings and
    protect parties' rights.
        You know, the Federal Judiciary has always served its vital
    role by ensuring Americans have access to the fair and
    impartial system of justice. And for centuries, our Federal
    judicial system has been the pillar of our democracy because it
    has held itself to the highest of legal standards. But in the
    area of employing technology, well, maybe we need to catch up a
    little bit.
        For example, let's look at the Federal court's outdated
    electronic records system, PACER. States like my home State of
    Georgia have electronic records systems that enable easy
    searches and free access to records, yet the Federal court
    records are very difficult to search through, and the system
    charges users to view each page. While State courts and law
    firms are in sports cars, the Federal courts are riding
    bicycles, and we need to make a change. The need to improve
    access to electronic Federal court records has long been a
    concern of mine. That is why I reintroduced the Electronic
    Court Records Reform Act to bring the Federal courts'
    electronic records system into the 21st century, and I look
    forward to considering and passing this legislation soon.
        Transparency is important, but we must be careful not to
    create more problems than we solve. And I have significant
    concerns with proposals to put cameras into Federal courts
    because I have seen their impact here in Congress. Federal
    courts hear and adjudicate politically-charged and impactful
    cases every day. The addition of cameras to such contentious
    proceedings is likely to result in less trust and greater
    politicization of our courts. All we need to do is look at
    their effect on this Congress to see what a distractions and
    obstacles at times it can be.
        Finally, I also have significant concerns with the effort
    to limit the discussion afforded district court judges to seal
    filings in instances where the disclosure of information would
    unnecessarily harm a party. Under current law, Federal judges
    have discretion to review requests to seal records and balance
    the public's First Amendment right to access against the
    party's right to protect their confidential information. It
    sort of amazing to me here sort of the double standard we use
    here. Many times my friends across the aisle want discretion
    for judges in sentencing, but they don't want to have
    discretion in judges for sealing cases when they are the
    closest to the cases to start with. I think we just need to
    find a common ground here, and we can do that. And with these
    two fine judges, I am sure they will have discussions on that.
        Litigants in courts use tools, such as sealings, filings,
    and protective orders, to protect intellectual property, the
    personal information of individuals, and, as such, their
    financial and medical records. Sealed filings and protective
    orders also expedite litigation by enabling parties to share
    sensitive documents relevant to the case without the risk of
    inadvertent disclosure or misappropriation. As we strive for
    transparency in our Federal court system, I must insist that we
    respect litigants' rights and confidential information.
        In closing, I am thankful we are holding this hearing, and
    I am cautiously optimistic it will result in proposals that
    ensure transparencies and accountabilities without unintended
    consequences. We all have our ideas, and that is the place for
    this committee. And handling those ideas and finding good
    results is something I think we can all come together with. And
    with that, Mr. Chairman, I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Collins. I will now
    introduce the witnesses for the first panel. The Honorable
    Audrey Fleissig is a U.S. District Judge for the Eastern
    District of Missouri, and is the Chair of the Judicial
    Conference's Committee on Court Administration and Case
    Management. Before becoming a District Judge, Judge Fleissig
    was a magistrate judge on her court, a position she held from
    2001 to 2010, and previously served as an Assistant U.S.
    Attorney and then U.S. Attorney in St. Louis. Judge Fleissig
    earned her bachelor's degree from Carlton College and her J.D.
    from the Washington University School of Law. And welcome,
    Judge.
        The Honorable Richard Story is a Senior U.S. district judge
    for the Northern District of Georgia, and is a Member of the
    Judicial Conference's Committee on the Judicial Branch. Judge
    Story joined the Federal bench in 1998 after serving more than
    a decade as Chief Judge of the Superior Court of Georgia's
    Northeastern Judicial Circuit. Judge Story has also served as a
    judge for the Hall County Juvenile Court, as a special
    assistant attorney general for the State of Georgia, and in
    private practice in Gainesville, Georgia. Judge Story holds
    degrees from LaGrange College and the University of Georgia
    School of Law. Welcome, sir.
        Before proceeding with testimony, I remind the witnesses
    that all of your written and oral statements made to this
    subcommittee in connection with this hearing are subject to
    penalties of perjury, pursuant to 18 U.S.C. Section 1001, which
    may result in the imposition of a fine or imprisonment of up to
    5 years, or both.
        Please note that your written statements will be entered
    into the record in its entirety, and, accordingly, I am asking
    that you summarize your testimony in 5 minutes. To help you
    stay within that time, there is a timing light on your table.
    When the light switches from green to yellow, you have 1 minute
    to conclude your testimony. When the light turns red, it
    signals your 5 minutes have expired. I am sure that both of you
    would love to have such an arrangement in your courtroom.
        Judge Fleissig, you may begin.

      STATEMENT OF HON. AUDREY G. FLEISSIG, U.S. DISTRICT JUDGE,
     EASTERN DISTRICT OF MISSOURI; AND HON. RICHARD W. STORY, U.S.
              DISTRICT JUDGE, NORTHERN DISTRICT OF GEORGIA

                  STATEMENT OF HON. AUDREY G. FLEISSIG

        Judge Fleissig. Thank you. Chairman Nadler, Ranking Member
    Collins, Chairman Johnson, Ranking Member Roby, and members of
    the subcommittee, thank you for the invitation to testify
    today. Judge Story and I are here on behalf of the Judicial
    Conference of the United States, the national policymaking body
    for the Federal courts. I would remind you, as Conference
    witnesses, we do not speak for the Supreme Court.
        I will briefly highlight four points. First, we are
    committed to the public's right of access to the courts.
    Secondly, we are continually working to improve the public's
    access to PACER. Third, proposals to change the Case Management
    system, or PACER, fee structure could have serious unintended
    consequences, both for public access and court operations. And
    fourth, the Judicial Conference has carefully developed
    policies on audio and video usage in both Federal trial courts
    and courts of appeals.
        First, let me assure everyone that the Federal judiciary
    shares Congress' commitment to the public's right of access to
    the courts, which Federal judges must constantly balance with
    the rights of parties to the case. The primary mission of the
    court is to be accessible to the public as a fair and efficient
    forum for the resolution of cases and controversies between
    parties. Federal courts for hundreds of thousands of
    individuals and organizations is their chosen forum to seek
    justice, protect rights and liberties, and adjudicate disputes
    under law. Litigants' access to courts is, therefore,
    paramount.
        Almost every step of the Federal judicial process is open
    to the public. All case opinions are available free to the
    world online. Case dockets are posted online, and anyone may
    attend court and may review case pleadings and other documents
    for free at a Federal courthouse. We have also developed a
    successful electronic filing system and a portal for court
    documents called PACER, which processed half a billion requests
    for documents last year.
        Second, the judiciary is working to improve PACER and
    public access to PACER. Most users pay nothing to use PACER
    because of fee exemptions or waivers, which, effective in
    January, will be doubled. Of the remaining users, a small
    percentage of so-called power users pay the bulk of the fees.
    We have improved public access through other initiatives
    described in my written testimony and intend to continue to
    improve PACER with the advice of a newly-forming public access
    user working group.
        Third, proposed changes to eliminate PACER fees and to
    reengineer the Case Management system could be unfair to
    litigants, greatly disrupt court operations, and would likely
    cost an enormous amount of time and money. Our Case Management
    and Public Access systems can never be free because they
    require over $100 million per year just to operate. That money
    must come from somewhere. No additional taxpayer appropriations
    have been proposed. Remaining alternatives are to drastically
    increase the fees for litigants seeking to file court cases or
    slash spending on essential court operations, such as clerks,
    probation officers, and courtroom hours.
        The judiciary has serious concerns about the removal of the
    current funding mechanism with no replacement source of funds,
    effectively turning the PACER system and other elements of
    electronic filing into a massive unfunded mandate. Shifting
    funds from PACER users to litigants through increased filing
    fees would increase barriers to filing suit for many litigants
    and, thus, unduly hinder access to justice. Legislation
    proposes a new consolidated case management system, possibly
    even to include State court systems. Two examples in my written
    statement illustrate how hundreds of millions of dollars and
    many years of effort would likely be required to accomplish
    this. Allowing unlimited free access to PACER, along with a
    consolidated filing system, could impact the speed and
    reliability of the system and raise additional concerns
    regarding security, quality control, and data integrity.
        Finally, regarding video and audio usage, we have carefully
    considered how they can be used to improve public access
    without jeopardizing the fairness and integrity of the
    proceedings. Today a member of the public can easily access on
    the internet an oral argument audio from any Federal court of
    appeals for free, and, in some cases, in real time, or
    appellate courts also provide video of some or all arguments.
    At the trial court level, recording of proceedings is
    restricted in order to preserve and protect the litigant's
    right to a fair and impartial trial.
        Mr. Chairman and members of the subcommittee, thank you
    again for the opportunity to testify, and I will be happy to
    answer your questions. I request my full statement be entered
    in the record.
        [The statement of Judge Fleissig follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, Judge. Judge Story, you
    may begin your testimony.

                   STATEMENT OF HON. RICHARD W. STORY

        Judge Story. Committee Chairman Nadler, Ranking Member
    Collins, Subcommittee Chair Johnson, and Ranking Member Roby,
    good afternoon. I am pleased to be here to testify on the topic
    of ensuring the public's right of access to the courts. I have
    to say I would be remiss if I didn't just momentarily thank
    Congressman Collins for his very kind words. I appreciate those
    words. And I will say also that this is even more special for
    me because being from the Northern District of Georgia, this is
    the first time I have appeared before a congressional committee
    since my confirmation hearing. To have the Chair be from the
    Northern District of Georgia and to have the Ranking Member of
    the committee from the Northern District of Georgia, that is a
    special aspect for me as well. So thank you very much for this
    opportunity.
        I want to assure you that each Federal court and----
        Mr. Johnson  of Georgia. I will gladly grant you an
    additional minute on your time. [Laughter.]
        Judge Story. I will try not to need it, Chairman. Thank
    you. I want to assure you that every Federal court and every
    Federal Judge takes very seriously the subject of public access
    to the courts. Federal judges adhere to a presumption of
    openness whereby court proceedings are open to the public. That
    presumption also applies to court records, including documents
    filed by litigants in the case, written orders and decisions
    issued by the judges. Sometimes judges are asked to balance the
    right of public access with a litigant's request for
    confidentiality. In my brief remarks to you, I will focus on
    how judges weigh those competing interests.
        Let me first point out an important distinction between
    protective orders and sealing orders. In the early state of
    litigation, the parties engage in discovery. Typically,
    material exchanged in discovery, which, let me assure you, in
    this electronic age can be massive, are not filed with the
    court typically. Parties often ask the court to enter a
    protective order to govern the disclosure of certain materials
    that are exchanged during that discovery process. If protective
    orders were not entered, the parties would have to litigate
    over the protection of their confidential materials, causing
    the case to likely bog down and become much more costly for the
    litigants.
        Even so, most courts are very circumspect about entering
    protective orders. We endeavor to draw such orders in as narrow
    a fashion as possible so as to allow meaningful public
    disclosure while affording some protection to the litigants.
    Once parties file materials with the court as part of the
    adjudicative process, they must be made a part of the public
    record unless the court enters an order that seals those
    documents. Again, realizing that a sealing order places a
    matter outside the public purview, the courts impose a
    significant burden on the party that is requesting the
    materials be sealed.
        The primary mission of the courts is to provide a fair and
    efficient forum for the resolution of real controversies
    between both public and private parties. In exercising our
    constitutional duty, a judge has a certain level of discretion
    in hearing an individual case. When a request for sealing is
    made, the judge weighs the need for confidentiality against the
    public presumptive right of access to court proceedings and
    records. The law recognizes if there are situations where that
    access must yield because of a party asserts a compelling
    interest in protecting that information from the public for
    reasons such as intellectual property, trade secrets, or
    private, personal information.
        On occasion, there are good reasons for courts to grant a
    litigant's request to keep parts of the proceedings
    confidential. In deciding to seal material in cases, judges
    must consider and articulate why the interests and support of
    non-disclosure are compelling, why the interests supporting
    access are less so, and why the seal is no broader than is
    necessary.
        Even when a document is sealed, courts continue to take the
    public's right of access into account. The specific
    requirements of binding case law varies somewhat from district
    to another, but I have included in my written testimony some
    examples of that. But because there are so many competing
    interests to be considered in every case, the best approach is
    to allow the trial judge to have discretion concerning the
    sealing of documents. He or she is in the best position to do
    so based on the facts of the case, governing case law, and the
    district's local rules and practices.
        Keep in mind that a judge's decision to seal is subject to
    appeal. The strength and thoroughness of the appellate process
    provides reviews and checks on those decisions. Also third
    parties have the ability to intervene and assert the rights of
    public access to documents as well.
        Thank you for the opportunity to address you here today.
    Let me close where I began. All Federal courts and all judges
    take very seriously public access to the work of the courts.
    That is how we are justified in the public having confidence in
    what we are doing, and they do have to be able to have access
    to that, and we understand that and appreciate it. And I look
    forward to answering any questions that you may have. Thank
    you.
        [The statement of Judge Story follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you. We will now proceed
    under the 5-minute rule with questions, and I will begin by
    recognizing myself for 5 minutes.
        Judge Fleissig, both of the Judicial Conference's camera
    pilots were reviewed favorably by judges who participated,
    which seems at odds with the strict limitations against cameras
    that currently exist. Why did the Judicial Conference continue
    to impose strict limits, particularly on district courts, in
    the face of such seemingly strong evidence that the presence of
    cameras was beneficial?
        Judge Fleissig. Thank you, Chairman Johnson. I am so sorry.
    Thank you, Chairman, for the opportunity to address this
    important question. The Judicial Conference has engaged in two
    multiyear, in-depth studies with respect to cameras in the
    courtroom, and each time that has happened, the results that
    have come back have, in fact, been mixed. And while some have
    had favorable experiences, others have not.
        And the Judicial Conference has carefully reviewed those
    studies, and in balancing all of the information presented,
    felt that the detriment to allowing cameras in the courtroom
    outweighed the benefits of it, separate and apart from the cost
    of technology and resources that it would take to implement
    such a policy. We feel that on balance, it can be very
    destructive to the integrity of the trial court process and be
    detrimental on balance.
        Mr. Johnson of Georgia. What factors led to that
    conclusion?
        Judge Fleissig. Various factors, including the fact that
    trials, as we know as trial judges, are incredibly stressful
    events to begin with. Witnesses come from far away. They are
    not comfortable coming to testify in court. Frequently, very
    embarrassing information can come forth when a witness is on
    the bench in cross examination from trial counsel on the other
    side, and often very confidential matters are discussed as
    well. And we have certainly seen some notorious trials in our
    past where cameras did not help in instilling any respect for
    the court process. And we believe that the litigants' interests
    are what is paramount.
        Mr. Johnson of Georgia. Well, let me ask you this question.
    Is the wealth of data and experience from State courts of
    relevance to the Judicial Conference's policy on cameras in the
    courtroom and allowing same-day livestreaming?
        Judge Fleissig. Absolutely, Chairman, and our understanding
    is that the experience of State courts has been mixed. And
    while many State courts do, in fact, allow cameras in the
    courtroom, many of them very rarely offer any televised
    accounts of any court proceedings. So while it is possible,
    those courts could go for long periods of time without any
    court proceedings actually being televised. So it is a full
    range of experiences that we see from the courts.
        Mr. Johnson of Georgia. Thank you. Judge Story, your
    testimony states that you want to emphasize the sealing court
    filings is the exception, not the rule, in civil litigation.
    But it is not just a quantity problem. It is also a quality
    problem. Reuters reporters here today have documented a
    troubling amount of information relevant to public health and
    safety that has been kept under seal. If information of
    greatest public relevance is kept under seal, it is not
    counterbalanced by the fact that other potentially mundane
    aspects of a court proceeding are publicly available. Do you
    agree with me on this point and that, accordingly, courts must
    be careful even if only a relatively small amount of material
    is to be sealed?
        Judge Story. Mr. Chairman, I absolutely agree that we have
    to be extremely careful because what we are talking about is
    public access, and so a decision to seal matters has to be
    carefully considered. And you mentioned public health and
    safety. Those are substantial matters that have to be
    considered by the judge and weighed against the other interests
    that are being proposed to counterbalance that. Yes, the answer
    to your question is, yes, that is an important matter. Will it
    always carry the day? No, it is a balance, and you have to look
    at the factors from both sides and make a determination. And
    that is what I think a judge is uniquely in the place to be
    able to do.
        Mr. Johnson of Georgia. Thank you. I will now recognize the
    gentlelady from Alabama, Ranking Member Roby, for 5 minutes.
        Mrs. Roby. Thank you, Chairman. Judge Fleissig, State
    governments have access to far fewer resources than the Federal
    government, yet many State courts have public access systems
    that are far more user friendly than the PACER system. So what
    are the courts doing to improve searchability and public access
    to these documents?
        Judge Fleissig. Thank you. We do continue. Making PACER as
    user friendly and effective as it can be is very important to
    us and something that we continue to work on. We continue to
    upgrade the user interface systems for PACER. We have proposed
    recently and approved in the Judicial Conference to increase
    the exemption level for access to PACER. And we have just begun
    to form a user group, a user working group, with
    representatives from the media, academia, the legal profession,
    and others to help us understand how best to improve our
    system.
        Our system, we exist for the most part to have these
    filings come into our court, come in with integrity, be
    available and accessible, and that has occurred, and it has
    occurred well. And while many State court systems have systems
    that allow free access, that free access often does not involve
    the documents themselves. It will involve free access to a
    docket sheet, and we are endeavoring to make the full scope of
    information available through our PACER system. We do take it
    very seriously.
        Mrs. Roby. So all 94 district and 13 appellate courts
    administer their own case management electronic case filing
    systems. So what are the cost savings if the courts
    consolidated the administration of the Case Management/
    Electronic Filing system?
        Judge Fleissig. It is difficult for me to imagine any cost
    savings if they were to be consolidated. As I am sure the
    Ranking Member knows from our written testimony, we have some
    examples of situations where other agencies have attempted to
    do so on courts, and not done so successfully or done so at
    great cost.
        Right now both the statute and the rules provides that each
    court will maintain its own docket, and while consolidation is
    something that can be considered, it has to be considered in
    the context of what will the cost of that be. What level of
    disruption will it cause? What will be the impact on the speed
    and integrity of the system if we do that? What cybersecurity
    risks will be created by that? If there is an attack on a
    particular district's system that is handling a very notorious
    case, is that going to affect the speed and integrity of the
    filing system across our Nation? These are things that we must
    consider in considering any notions of consolidation, and I
    would hope that they would be studied and determined before any
    steps toward consolidation could be taken.
        Mrs. Roby. Sure, that is all very helpful. Just building
    off, Judge Story, with what the Chairman was asking as it
    relates to sealing documents and protective orders. Are there
    situations in which businesses and individuals would be harmed,
    either personally or financially, by making public case files?
    You have touched on this, but I think it would be helpful from
    your experience on the bench if you could provide maybe some
    specific examples.
        Judge Story. I think the best example is we are concerned
    in our country today with protecting intellectual property. In
    this committee, it is a subject of your concern. And it is
    troubling to me that in order for an entity that has valuable
    intellectual property to assert its rights relative to that
    property and come into the Federal courts that should provide
    them a forum in order to access that, they are risking
    releasing that intellectual property. So then there is no need
    to go out and try to find a way to get to it. Come to the
    courthouse, and come to the public desk, and open PACER, and
    there it is.
        I think that there are a number of instances. But, again,
    that doesn't always win either because that is why we need that
    human factor that weighs it and considers it as a neutral
    person, but who understands the presumption for public access
    to the courts. That is the safest way, I think, to assure
    fairness to everyone.
        Mrs. Roby. Thank you very much. I yield back.
        Mr. Johnson of Georgia. Thank you. I now recognize the
    chairman of the full committee, Representative Nadler, for his
    5 minutes.
        Chairman Nadler. Thank you very much. I want to begin by
    making clear that my express support for video and audio taping
    in courtrooms is for appellate courts only. It does not extend
    to trial courts for reasons of witness intimidation or
    whatever. Whoever wants to handle it, the Michigan Supreme
    Court is a court that operates on the presumption that its
    proceedings should be video recorded. In a letter to the
    committee, the Chief Justice of that court wrote, ``My view in
    opening the doors of the Federal courts to television coverage
    is simple. It is the public's court. They should be able to
    watch it work with as little difficulty as possible.'' First,
    Judge Fleissig, then Judge Story. What is your response to the
    Chief Justice's statement?
        Judge Fleissig. We do take this very seriously, and the
    Judicial Conference has permitted each circuit to make its own
    determination with respect to the audio or video recording of
    appellate-level oral arguments. And four of the circuits do, in
    fact, either routinely or periodically allow the video all.
    Many others allow streaming of their arguments, and all of the
    appellate courts in our country allow access to audios of their
    arguments for free, oftentimes same time. And, for instance, in
    my circuit in the Eighth Circuit, they are available within 2
    hours of the oral argument.
        And so the audio of those recordings is available across
    the country, and we believe that it is important for each
    circuit to make its own determination about how it is going to
    approach this important subject. And they have each approached
    it differently, which permits us over time to see how it has
    worked in each of the circuits in real life.
        Chairman Nadler. Judge Story?
        Judge Story. I agree.
        Chairman Nadler. Okay.
        Judge Story. I have nothing to add, quite honestly.
        Chairman Nadler. Well, thank you. Then let me continue with
    Judge Fleissig leading on from what you just said. Can you
    explain why the public's right of access to court proceedings
    should vary by circuit, which is the Judicial Conference's
    policy? What factors do the Conference and your committee
    consider when it decides to let each court of appeals formulate
    its own cameras and audio policies? Do you have any plans to
    reevaluate that policy or to adopt a policy encouraging circuit
    courts to provide livestreaming video and audio? I mean, one
    would think, I would think, that if it is a good policy in
    terms of justice and opening the courts, that allowing video
    and audio access the courts in real time is a good policy
    period, in this circuit, but not in the circuit. Why should it
    vary by circuit?
        Judge Fleissig. Well, we do have a decentralized system in
    our country, and so each circuit does have the ability to make
    its own decisions in this regard. Judge Story and I both sit on
    committees that study these issues and make recommendations to
    the Conference.
        Chairman Nadler. All right. Would you think it a good idea
    for Congress to say do it across the board in all circuits?
        Judge Fleissig. I think that this is a matter that should
    be decided by the courts, and we are moving in that direction.
    I realize that the pace is of some frustration to certain
    members of the public and to members of this committee. But as
    we develop this, policies are able to be developed in this
    arena so that we can find the right way to approach these
    issues.
        Chairman Nadler. Thank you. I will not take that as a
    comment on the PACER question. Judge Story, your testimony
    describes clearly how things ought to work when it comes to law
    governing motions to seal. What evidence is there to show that
    things are working the way they should, that judges, in fact,
    are giving reasons why a materially-given case ought to be
    sealed?
        Judge Story. The only evidence would be the orders issued
    by the judge. As to whether it happens in every case, I would
    not represent to you that it does. The truth of the matter is
    under the press of business, when a judge in a busy trial court
    is presented with a consent order from parties resolving a
    matter, that order may be entered and perhaps not looked at as
    closely in terms of the effect on access. That can happen. I
    will be honest with you.
        Do we need to step back and realize that that is an issue
    that has come to the fore? Yes, I believe we do. I think that
    the courts need it, we don't operate in a vacuum. We realize
    what is being said. We understand and appreciate the criticisms
    of the court, and we take those into account. I can say to you
    I hear you saying this. I can tell you right now there is a
    motion pending before me, and I am looking at differently
    because I have had to think more about it now. And if we move
    these things to the front burner, they get more attention, and
    I think this has more attention. And that is as candid with you
    as I can possibly be. I think that is the case.
        Chairman Nadler. Thank you. My time has expired. I yield
    back.
        Mr. Johnson of Georgia. Thank you. That is a compliment to
    the Committee for having this hearing today, and we appreciate
    that. I will next turn to the gentleman from Virginia, Mr.
    Cline, for 5 minutes.
        Mr. Cline. Thank you, Mr. Chairman. I thank the judges for
    coming in today, for their willingness to answer questions as
    well. We had Members' Day for our own colleagues on the
    committee last week, and we weren't allowed to ask them
    questions, so I commend you all for making yourselves
    available.
        This is a very important topic that we have jurisdiction
    over in the Judiciary Committee, the Federal judiciary. Courts
    affect our daily lives, and they oversee everything from
    divorces and criminal cases in State courts to major U.S.
    Supreme Court decisions that shape our jurisprudence for
    decades and centuries. The purpose of today's hearing is to
    discuss the public's right to access court information, whether
    it be through the PACER system or the standards for sealing
    documents.
        Transparency in government is vitally important as it
    improves the public's trust in their government, but our
    efforts to ensure this trust should not be taken likely,
    especially in the court system where some of the most private
    aspects of an individual's life may be discussed. It is a
    balancing act, as you said, that we are here to discuss today.
    However, it is concerning to me that despite trends toward more
    transparency in other sectors of the government, access to our
    Federal courts is often less so, with the PACER system
    continuing to charge a per-page fee for access to documents.
        As an attorney, I practiced in my home State of Virginia
    where I believe we have a robust system to access our court
    files online, constantly improving, but maintaining a system
    that is free of charge from general district courts to the
    Supreme Court of Virginia. Access to juvenile and domestic
    relations courts is limited only for the purposes of payments
    and select JDR courts. And I am pleased to co-sponsor the
    ranking member's PACER bill.
        While I am in favor of same-day audio, I do have
    reservations about allowing cameras in the courtroom in real
    time as there are many issues that must be addressed to ensure
    the privacy and constitutional rights of those in the
    courtroom, witnesses and others, but also to ensure that in
    this of 24-hour news coverage, we don't experience the problems
    that often plague our own institution here with people playing
    to the camera. The current policy of audio coverage strikes the
    right balance.
        And that is why this past spring I led a bipartisan letter
    to the Supreme Court requesting to make available same-day
    audio for a single case, Department of Commerce, et al., v. New
    York, et al., regarding redistricting. Although video coverage
    of Supreme Court hearings has never been allowed, audio files
    usually are released at the end of the week. Unfortunately, our
    request was denied.
        We have important topics to deal with today, and I look
    forward to the discussion. I really don't have any questions
    for the judges, except for one. Judge Fleissig, you mentioned
    power users. Can you tell me what a power user is? Give me an
    example.
        Judge Fleissig. Yes, sir. Thank you for the opportunity to
    explain this. A small percentage of the users of the PACER
    system account for an inordinate amount, three percent,
    accounts for approximately 87 percent of the fees that are
    generated by PACER. And these are entities that obtain
    information from the system and then use it as part of their
    business model. They will repackage it in some fashion and make
    it available to others who are able to access it through their
    interface system.
        Mr. Cline. So commercial entities.
        Judge Fleissig. Yes, sir.
        Mr. Cline. Okay. Thank you. I don't have any other
    questions, Mr. Chairman. I yield back.
        Mr. Johnson of Georgia. Okay. Thank you. Can you give us
    some examples of those commercial interests that monetize the
    PACER system?
        Judge Fleissig. For instance, Bloomberg. There are entities
    that obtain the information from the system, and then they
    resell it to the legal community and to others. And people are
    able to access these systems at law schools, in law firms,
    other places, and there are numerous such individuals. I hate
    to name them by name here.
        Mr. Johnson of Georgia. Thank you. I will next turn to the
    gentleman from California, Mr. Stanton, for 5 minutes.
        Mr. Stanton. Mr. Chairman, you just demoted me to
    California. I proudly represent Arizona here in Congress. That
    is all right. [Laughter.]
        Mr. Stanton. And I want to say good afternoon to Judge
    Story and Judge Fleissig. Adequate access to our courts is
    essential to ensure equal justice under the law. That is why
    this past July I worked for the passage of H.R. 1569, a bill
    adding the cities of Flagstaff and Yuma to the list of
    locations in which Federal district court can be held in the
    State of Arizona. That legislation addressed the physical
    barrier often presented to rural and tribal communities,
    including the Hope and Navajo nations, that need better access
    to the Federal court system.
        As we talk about other accessibility measures to the
    courts, such as video and audio, tribal communities must be
    part of that conversation. The complexity between statutes,
    government policies, and U.S. Supreme Court precedents lead to
    tribal members appearing in Federal court proceedings at far
    higher rates than non-Native Americans. Given the higher
    interactions with our judicial system, it is critical that
    accessing the courts is a tangible option for them. Yet as my
    staff was preparing for this hearing, it was hard to find
    information on tribal communities accessing the courts from a
    telecommunications perspective. So I would like to start there.
        How is the Judicial Conference addressing the lack of
    infrastructure, both in terms of courtroom proximity and
    telecommunications, for our tribal communities?
        Judge Fleissig. Thank you, and I do want to say I was
    pleased as a member of the CACM Committee to recommend the
    change in the places where in your State.
        Mr. Stanton. Thank you. Thank you.
        Judge Fleissig. And I have to be honest with you. I don't
    know that our committee has really focused on tribal
    communities in particular. I know that we have, for instance,
    recently developed a new telephone system that makes court
    information available both in English and in Spanish to try and
    increase access to the courts. And as a member of the CACM
    Committee, I think that is a question that bears examination.
        Mr. Stanton. That is a fair answer. I really appreciate
    that. It was mentioned in your testimony that PACER can be used
    to access court documents. Of course, PACER requires an email
    account and a payment method. It is another reason why in the
    other committee I am lucky to serve on, Transportation and
    Infrastructure, we need to make sure we do more to support
    broadband access in rural areas and, in particular, in tribal
    communities so they get access to justice through the PACER
    system.
        One recommendation I might have is that the Judicial
    Conference reach out to our tribal communities and ask them
    directly how they can better access our court system moving
    forward.
        Judge Fleissig. Thank you.
        Mr. Stanton. I would like to shift gears to address an
    issue about the courts in Arizona and that we are facing an
    extreme shortage of Federal judges. Arizona is one of the
    fastest-growing States in the country. There are 22 tribal
    nations in the State that need to access to the Federal courts,
    and because of the State's proximity to the border, judges have
    high numbers of immigration- and border-related cases. We
    desperately need more judgeships to account for these factors.
        There are currently only 13 authorized judgeships in
    Arizona, one of which is temporary. The temporary judgeship was
    authorized in 2002, and while the district's total filings have
    increased more than 85 percent since then, no new judgeships
    have been authorized since. That is 17 years of growth without
    any new judges in our State. The lack of judges in Arizona run
    parallel to the larger conversation about accessing the courts.
    If there aren't enough judges to efficiently manage caseload,
    then people's access to justice is inhibited.
        As you know, the Judicial Conference does a comprehensive
    review of caseloads and judgeship numbers for courts across the
    country, and subsequently recommends how many new judgeships
    district courts should have. When will the Judicial Conference
    release their next set of recommendations?
        Judge Fleissig. Is this the next set of recommendations
    with respect to judicial positions?
        Mr. Stanton. Yeah, where new judges should be located.
        Judge Fleissig. I am afraid I don't have that information.
        Mr. Stanton. That is all right.
        Judge Fleissig. But we will be happy to get that to you.
        Mr. Stanton. The most recent survey for Arizona indicated
    seven new judgeships were needed. We were only granted four new
    judgeships, so we will obviously be advocating for that in the
    next set of recommendations. We do need to close the gap
    between tribal communities and the judicial system, and we need
    to ensure Arizona has the adequate number of judges to address
    the increasing caseloads that they are handling. Thank you, Mr.
    Chairman. I yield back.
        Mr. Johnson of Georgia. And, Judge, you can answer that
    question.
        Mr. Stanton. Oh, please.
        Judge Fleissig. If I may, the information I have just
    received----
        Mr. Stanton. In real time, all right.
        Judge Fleissig. In real time, yes, but not electronic, is
    that the Conference has recommended new judgeships for Arizona.
    We still wait the introduction of a bill to address our
    judgeships requests, and every 2 years we do an audit, and it
    is released in 2019. I hope that assists.
        Mr. Stanton. That does. Thank you so much.
        Mr. Johnson of Georgia. Thank you. And now we will
    recognize the other gentleman from California--I am sorry--
    Arizona----[Laughter.]
        Mr. Biggs. Thank you.
        Mr. Johnson of Georgia [continuing]. Mr. Biggs for 5
    minutes.
        Mr. Biggs. Thank you, Mr. Chairman, and I will say that
    when you announced that he was from California, it certainly
    explained his voting record to me. So thank you, Mr. Stanton.
        Mr. Stanton. I will be asking for more time after Mr. Biggs
    is done.
        Mr. Biggs. I knew you would, my friend. So thank you so
    much for being here today and appreciate the Chairman holding
    this hearing. I think it is an important topic. And I had the
    privilege of trying a few cases myself, literally hundreds of
    cases. And I want to talk a little bit about the camera in the
    courtroom and those issues because there is some advocacy from
    some of my friends who would like to see that. Have either one
    of you worked with cameras in the courtroom?
        Judge Story. I have as a State judge.
        Mr. Biggs. Mm-hmm. Can you comment on what your perception
    of how that may have changed non-camera proceedings?
        Judge Story. There were mixed results in all honesty. It
    depended upon who was in the courtroom at the time.
        Mr. Biggs. Meaning?
        Judge Story. It would affect conduct at times.
        Mr. Biggs. Okay. On the part of the witnesses, attorneys,
    all of the above?
        Judge Story. All. All. Not jurors because jurors were never
    shown. They are always protected from being shown.
        Mr. Biggs. Yeah.
        Judge Story. But I think in terms of certainly as to
    witnesses and at least times as to lawyers.
        Mr. Biggs. Okay. Judge?
        Judge Fleissig. And if I may, my district, the Eastern
    District of Missouri, was one of the districts that
    participated in the most recent pilot. And I would speak to
    attorneys at my pretrial conferences and encourage them to
    agree to cameras for their proceedings, and I was unable to get
    any of the attorneys to have both sides agree to that. They
    were concerned about it disrupting their trial, their court
    proceeding.
        Mr. Biggs. Yeah, I would have to say that I kind of lean
    that way myself. We never had live TV proceedings in any of my
    trials. And some of the attorneys that were on the other side,
    never me. Boy, I would never play to the camera, I can tell you
    that. But I think some of my colleagues on the other side would
    have been more than happy to play to the camera, so I think
    that is probably it. In fact, I am going to read something from
    Chief Justice Roberts on cameras in the courtroom and just get
    you reaction to that if I could.
        ``I think that having cameras in the courtroom would impede
    that process. We think the process works pretty well. I think
    if there were cameras, that that lawyers would act differently.
    I think, frankly, some of my colleagues would act differently,
    and that would affect what we think is a very important and
    well-functioning part of the decision process. I do not think
    that there are a lot of public institutions, frankly, that have
    been improved by how they do business by camera.''
        Senator Howard Baker told me at one point that he thought
    that televising of the Senate proceedings, he used a strong
    word. I am sure it is not right, whether it is ruined, but it
    certainly hurt the proceedings. And, you know, Judge Story,
    since you actually had that experience, do you think that
    cameras actually ruin the proceedings? And if not, because you
    said that you had mixed results. How it might have improved the
    proceedings and what you?
        Judge Story. And I unfairly left out one other person that
    maybe was affected by the cameras in the courtroom, and it was
    the judge. And it was because the case, it was one of the first
    cases with cameras in my State, and it was a death penalty
    case. The victim was a child. The defendant was a former deputy
    sheriff. And so there was tremendous public interest, and the
    cameras ran the entire trial, and they never were turned off.
        And I was conscious of those cameras because of my concerns
    that I would have facial expression that would be
    inappropriately being displayed on the news that night as there
    was discussion about some horrific event that had occurred and
    was in the evidence, and I would appear to be smiling as they
    were talking about that. And I was conscious of it was another
    factor for me in how I conducted myself in the trial.
        Mr. Biggs. Well, so we have talked now about cameras in
    jury trials, but we haven't really talked bout in appellate
    proceedings. And I think Chief Justice Roberts largely probably
    about appellate proceedings because he doesn't like it, is my
    understanding. What are your thoughts on cameras in appellate
    proceedings? Judge Fleissig.
        Judge Fleissig. I am not sure I know exactly how much is to
    be gained from having a video camera capture a person standing
    at a lectern speaking to the judges and having the three judges
    respond. And, in fact, when I have watched some of these, I
    found it distracting to even listen to it because you end up
    focusing on a judge who may be thumbing through the brief. I
    find that the audio is far more effective for me when I am
    trying to capture what happened in an appellate argument.
        And I am not sure how much more is to be gained when
    exhibits are not being offered, witnesses are not there. The
    video is of two lawyers standing at a lectern and three judges
    who are periodically asking questions. I realize we live in a
    TV age, but I am not sure how much more is gained.
        Mr. Biggs. My time has expired, but it is not unlike CSPAN
    showing Congress, I guess. Thank you, Mr. Chairman.
        Mr. Johnson of Georgia. Thank you. The gentleman from
    Pennsylvania, Mr. Reschenthaler, has arrived. Sir, I will
    recognize you for 5 minutes, questions.
        Mr. Reschenthaler. Thank you, Mr. Chairman. I am good. I
    appreciate it. I yield the remainder of my time. Thank you.
        Mr. Johnson of Georgia. Thank you. And with that, that ends
    the questioning for this panel. We will reconvene to hear
    testimony of our second panel after a 5-minute recess. Thank
    you all for coming.
        [Recess.]
        Mr. Johnson of Georgia. I will now introduce our second
    panel of witnesses. Lisa Girion is a reporter in Reuters' Los
    Angeles Bureau and previously served as top news editor at the
    Bureau. Much of Ms. Girion's reporting has been based on
    internal records produced in court proceedings, sometimes under
    seal. Before joining Reuters, Ms. Girion was a 16-year veteran
    and investigative reporter at the Los Angeles Times, where she
    produced stories on the intersection of government, commerce,
    health, and welfare. Ms. Girion also served as City Editor and
    Reporter for the Los Angeles Daily News and held previous
    reporting roles at the Dallas Times Herald, the Dallas Morning
    News, and the Wilmington News Journal. Ms. Girion received her
    undergraduate degree from Northwestern University's McGill
    School of Journalism. Welcome.
        Mr. Daniel Levine has been reporting on the U.S. Judicial
    system for 15 years, the last 9 of them at Reuters. His stories
    cover a range of high-profile legal issues across a range of
    issues. Before joining Reuters, Mr. Levine reported on legal
    issues for ALM Media, where he covered the Department of
    Justice and Federal courts. Mr. Levine received his bachelor's
    degree form McGill University. Welcome today, sir.
        Jodi Schebel is Co-Managing Partner at Bowman and Brooke
    LLP. She focuses her practice on product liability, premises
    liability, and personal injury defense litigation, and manages
    all facets of high-exposure litigation from case inception to
    trial. Ms. Schebel also serves as National Discovery Counsel
    for a major automotive manufacturer on class action and other
    product liability matters in both State and Federal courts.
    Since 2013, Ms. Schebel has served as pro bono counsel for
    Focus: HOPE, which is a nonprofit organization. Ms. Schebel
    received degrees from Wayne State University and Wayne State
    University Law School. I hope that I pronounced your name
    correctly.
        Ms. Schebel. It is Schebel.
        Mr. Johnson of Georgia. Schebel. All right, thank you.
    Please accept my apologies.
        Ms. Schebel. My husband will be happy it is pronounced
    correctly.
        Mr. Johnson of Georgia. Thank you. Seamus Hughes is the
    Deputy Director of the Program on Extremism at George
    Washington University, and is an expert on terrorism, home-
    grown violent extremism, and countering violent extremism. Mr.
    Hughes previously worked at the National Counterterrorism
    Center, serving as a lead staffer on U.S. government efforts to
    implement a security strategy, and for the Senate Homeland
    Security and Governmental Affairs Committee, serving as the
    senior counterterrorism adviser. Mr. Hughes is a graduate of
    the University of Maryland, and a recipient of the National
    Security Council Outstanding Service Award and two national
    Counterterrorism Center Directors Awards for Outstanding
    Service. Welcome, sir.
        Sunny Hostin is the Emmy-nominated co-host of The View and
    the Emmy-winning Senior Legal Correspondent for ABC News. From
    2007 to 2016, Sunny was a host and legal analyst at CNN. Prior
    to working at CNN, Ms. Hostin filled in as a co-anchor for ABC
    News World News Now and America This Morning. Originally from
    the South Bronx, Ms. Hostin began her career as an Appellate
    Law Clerk at the Maryland Court of Appeals. She then joined
    private practice and later became a trial attorney for the
    Department of Justice and an Assistant U.S. attorney for the
    District of Columbia. During her time as Assistant U.S.
    attorney, Sunny was awarded the Special Achievement Award by
    Attorney General Janet Reno for her prosecution of child sexual
    predators. Ms. Hostin received her undergraduate degree in
    communications from Binghamton University and her law degree
    from Notre Dame Law School. Welcome.
        Last but not least, Mr. Jeffrey Toobin is a staff writer
    for The New Yorker and Chief Legal Analyst for CNN. He is
    author of several books, including The Oath: The Obama White
    House and the Supreme Court, and The Nine: Inside the Secret
    World of the Supreme Court. Mr. Toobin previously served as an
    Assistant U.S. Attorney in Brooklyn and as an associate counsel
    in the Office of Independent Counsel, Lawrence Walsh. Mr.
    Toobin earned his bachelor's degree from Harvard College and
    his law degree from Harvard Law School. Welcome, sir.
        We welcome all of our distinguished guests, and we thank
    you for participating in today's hearing. Before proceeding
    with testimony, I hereby remind each witness that all of your
    written and oral statements made to the Subcommittee in
    connection with this hearing are subject to penalties of
    perjury pursuant to 18 U.S.C. Section 1001, which may result in
    the imposition of a fine or imprisonment of up to 5 years or
    both.
        Please note that each of your written statements will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in 5 minutes. To help you
    stay within that time, there is a timing light on your table.
    And when the light switches from green to yellow, you have 1
    minute to conclude your testimony. When the light turns red, it
    signals your 5 minutes have expired.
        Ms. Girion and Mr. Levine, you may begin. First, Mr.
    Levine.

     STATEMENTS OF DANIEL R. LEVINE, LEGAL CORRESPONDENT, AND LISA
    GIRION, REPORTER, TOMSON REUTERS CORPORATION; JODI M. SCHEBEL,
      CO-MANAGING PARTNER, BOWMAN AND BROOKE, LLP; SEAMUS HUGHES,
    DEPUTY DIRECTOR OF THE PROGRAM ON EXTREMISM, GEORGE WASHINGTON
       UNIVERSITY; SUNNY HOSTIN, CO-HOST, THE VIEW; AND JEFFREY
                  TOOBIN, STAFF WRITER, THE NEW YORKER

             STATEMENT OF DANIEL R. LEVINE AND LISA GIRION

        Mr. Levine. Well, good afternoon, and thank you, Chairman
    Johnson, Ranking Member Roby, for the opportunity to testify
    about Reuters' investigation of court secrecy, and to present
    our findings on the judicial supervision of sealed court
    filings that impact public safety.
        The courthouse is one of the great public forums of
    American government. Controversies litigated there, even those
    nominally involving two particular parties, often impact
    thousands, if not millions, of people. U.S. appeals courts have
    long recognized that documents filed in court are presumed to
    be public and that transparency is fundamental to ensuring
    accountability and confidence in the courts. To be sure, there
    are legitimate reasons for keeping some evidence confidential,
    like medical records or trade secrets. But the public has an
    interest in learning about drugs' undisclosed side effects,
    unsafe car parts, or other dangerous defects.
        That is why rules and precedents require judges to weigh
    requests for confidentiality against the public interest, and
    if they decide evidence must stay secret, to explain their
    reason in the record. We have found that is simply not
    happening much of the time. Our investigation focused on large
    cases involving allegedly defective products used by millions
    of people. We reviewed documents files in 115 of the largest
    product liability multi-district cases litigated over the past
    20 years. Those cases consolidated about 250,000 individuals'
    lawsuits, each involving an injury or death.
        We found that indiscriminate secrecy is a systemic problem.
    Federal judges sealed evidence relevant to public health and
    safety in about half of the largest product liability cases.
    And in 85 percent of those cases where Reuters found health and
    safety information under seal, judges provided no explanation
    for allowing the secrecy in spite of their duty under the law
    to do so.
        Ms. Girion. Courthouse transparency is more than a lofty
    ideal. Secrecy has consequences. We found that hundreds of
    thousands of people were killed or seriously injured by
    allegedly defective products after judges in just a handful of
    cases allowed litigants to keep secret evidence that could have
    raised alarms about potential danger. The opioid epidemic, of
    deep concern to several members of this committee, is the most
    significant example that we have found of the tragic toll of
    secrecy.
        The epidemic has been blamed on greedy drug makers,
    feckless doctors, and lax regulators, but our investigation
    found that judges, too, contributed to the depth and duration
    of the catastrophe. In 2001, just a few years after the pain
    pill, OxyContin, hit the market, West Virginia became the first
    State to sue Purdue Pharma, accusing the drug maker of duping
    doctors into widely prescribing the narcotic by convincing them
    it was less addictive than other opioids. West Virginia filed
    some of the evidence it gathered in court, but the judge
    allowed that evidence to come in under seal, and he put no
    explanation in the record.
        Because the case settled before trial, the evidence
    remained hidden, out of sight of regulators, doctors, and
    patients. Over the next few years as OxyContin sales and
    opioid-related deaths soared, more than a dozen other State and
    Federal judges overseeing similar lawsuits against Purdue took
    the same tact, keeping company records secret. It was not until
    my L.A. Times colleagues and I reported on the contents of some
    of those sealed documents in 2016 that doctors would learn that
    for many patients, OxyContin did not work as promised. The
    evidence showed that Purdue knew of the shortcomings.
        Further evidence that might help explain the opioid
    epidemic continued to be covered up, even as the prices and the
    litigation exploded. Our reporting showed that Dan Polster, the
    Federal judge overseeing ongoing opioid lawsuits, has
    repeatedly allowed important evidence to be filed under seal,
    again, without any public explanation. In a stern rebuke
    earlier this year, the Sixth Circuit Court of Appeals reminded
    Judge Polster than when evidence is filed in court, secrecy is
    the exception, not the rule. Every decision to seal, the court
    said, must be justified by a compelling reason.
        We encourage you to read our stories attached to our
    written testimony. They relate other examples of judges
    allowing important evidence to remain under seal to the
    detriment of public health and safety. Thank you for your
    attention to this issue.
        [The statement of Mr. Levine and Ms. Girion follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you. I will now recognize
    Mrs. Schebel for 5 minutes.

                      STATEMENT OF JODI M. SCHEBEL

        Ms. Schebel. Thank you, Chairman Johnson and Ranking Member
    Roby for having me here today.
        So I think the main thing that I would like to talk about
    is the fact that we have really got three areas. There are
    three stages with respect to litigation where confidential
    information that is maintained by a party might be put into the
    court record or might request to be sealed. The first is really
    through a protective order, and we have a court rule, Rule 26,
    Federal Rule of Civil Procedure 26, that governs the entry of a
    protective order.
        And the rule specifically states, and this is 26(c)(1)(G).
    It states that ``A court may issue an order to protect a party
    or a person from annoyance, embarrassment, oppression, or undue
    burden or expense,'' including that which relates to a trade
    secret or other confidential research development or commercial
    information, that it not be revealed, or it be revealed in only
    a specific way. So there is a court rule that prohibits or--
    excuse me--permits courts to keep certain information exchanged
    during pretrial discovery as confidential when parties have
    confidential information that is requested of them in a case.
        The second stage is really where it comes in in filing of a
    motion. So you ask the court for some sort of relief in
    connection with a motion, and that you attach to it a party's
    confidential documents. That motion is going to be filed in the
    court record. We talked about PACER. It will be filed publicly
    so everyone can see it. But if a party's confidential
    information is appended to that filing, making that document
    public would or could strip that party of their property
    interest in the information that is contained in that document.
        And so there is a way for litigants to request the court to
    seal the record. That is made upon a showing of good cause
    generally, unless that is a motion that affects the substantive
    rights of the parties. As long as it is during pretrial
    discovery, the standard is good cause. And as long as it is
    substantiated by the party and the lawyer demonstrates that
    there is good cause to seal the information, it should be
    sealed, and generally is sealed from the public record.
        The last stage is really when you get to the adjudication
    of the merits of the case. So either that is at a summary
    judgment stage, or it could be a preliminary injunction. Some
    courts find that to be an adjudication on the merits, or it
    could be at trial. In that case, again, remember that the
    standard that the court employs, and it differs among the
    circuits, and this is set out in my written statement, the
    disparity and the differences between the circuits as to how
    they determine what the right standard is to seal. But in most
    instances, it is a compelling interest that in order to prevent
    the public from seeing a document that is appended to court
    filing that relates to the merits of the case, the party
    seeking to seal has to demonstrate a compelling interest to
    keep that information sealed.
        In my experience, courts weigh that very carefully. It is a
    big burden to overcome. But yet we do it, and we do it on
    behalf of our clients every day, so that we are balancing the
    public's interest to see information that the public has an
    interest in or might have an interest in, against our client's
    property interest in that information. And that could be
    confidential information. It could be a trade secret. It can be
    other intellectual property.
        And, of course, the tenet of our judicial system is based
    on the concept that, you know, we are innocent until proven
    guilty. And when it comes to tort law, we are not talking about
    guilt. We are talking instead about some sort of a liability.
    But still, just because a corporate defendant has been sued
    does not mean that they are liable for whatever they have been
    sued for. They have an opportunity to litigate that fully. And
    just because they have been sued doesn't mean that their
    confidential information and their propriety documents should
    be made public, you know, without them having an opportunity to
    show that there is a compelling interest to keep the documents
    as confidential.
        And I think the rules that are set out in allowing the
    judiciary to have discretion to consider those motions when
    they are made by the litigants is the appropriate way to go.
        [The statement of Ms. Schebel follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, Ms. Schebel. Next we
    will hear from Mr. Hughes for 5 minutes.

                       STATEMENT OF SEAMUS HUGHES

        Mr. Hughes. Thank you. Chairman, Ranking Member,
    distinguished Members of the Committee, thank you for the
    opportunity to testify today.
        Access to public records is an inherent right in a healthy
    democracy. The current system prevents the public from
    effectively exercising that right. As the deputy director of
    the Program on Extremism, I track the legal development of
    hundreds of Federal terrorism cases on a system called PACER,
    the acronym being the Public Access to Court Electronic
    Records. The name is a misnomer, though. Public access comes at
    an exorbitant cost, a cost that the general public cannot
    afford.
        PACER is unnecessarily complex and convoluted. It is
    outdated. Simple tasks are hard to complete, and the costs are
    too high. Barring significant structural changes, the current
    approach will continue to fall short of its goal of providing
    access to the public.
        Quite simply, it is not easy to access court records on
    PACER. The website routinely crashes, it kicks you out, and
    then it charges for said attempt. The National Case Locator
    does not get updates quickly, requiring the users to go to
    individual district sites to get a breaking court record. The
    individual court websites are also badly outdated. If you
    attempt to do a search for an individual charge, you might be
    out of luck because that charge hasn't been update with the
    latest statute. There is no way to do a nationwide search for
    individual charges of bribery, of terrorism, things like that.
    Quite frankly, the local rules of each district vary widely.
    The judiciary would do well set baseline standards and
    requirements for all local rules.
        In some districts, documents that were once sealed and
    later unsealed by court order are never filed electronically on
    PACER. To access these documents, we are forced to build up an
    ad hoc system of local GW alumni who go to courthouses around
    the country for us and grab documents. Some districts have
    automatic unsealing at times, but those implementing the court
    order do not post the unsealed documents in a timely manner,
    which means you have to call a clerk's office, get it unsealed
    again, and then post it on PACER.
        In other districts, there is no set time for unsealing,
    resulting in documents that remain sealed on eh criminal
    docket, even when there is no legal reason for the information
    to remain unsealed. In other districts, search warrants are
    always filed electronically, others none. Sometimes a little
    investigative spotlight shuts down the whole system.
        In January, I found a search warrant related to a wide-
    ranging investigation into public corruption in the L.A. City
    Council. When I made that discovery public, the Central
    District of California locked down all search warrants filed on
    PACER. Most, if not all, search warrants recently filed in that
    district are no longer available online. This is against the
    spirit, arguably, of the letter of legislation requiring the
    public to have ready access to court filings, barring a court
    order sealing them.
        Information on PACER is limited. The Program on Extremism
    repeatedly had to go directly to courthouses to receive
    documents on terrorism trials in the mid-2000s. Trial exhibits
    introduced into evidence are routinely unavailable in PACER.
    You have got to call the U.S. attorney's office or the defense
    attorney and get those documents. The naming convention for how
    documents are filed in PACER is not uniform. In some districts
    it is ``United States v.,'' others ``U.S. v.,'' ``In the matter
    of,'' ``U.S.A. v.,'' which makes it hard to do nationwide
    searches. You have got to know the naming conventions for local
    districts.
        The Federal court fee system rakes in more than $145
    million annually from its users. However, the judiciary takes
    an overly broad reading of congressional intent, which calls
    for only charging reasonable fees. The judiciary states that
    approximately ``87 percent of all PACER revenue is attributable
    to just 2 percent of users, large financial institutions, and
    major commercial enterprises.'' I am part of that 2 percent of
    users, the power used the judge called it. I do not feel
    particularly powerful using PACER.
        I am neither a financial institution nor a major commercial
    enterprise. We are an academic institution tracking extremism
    in the United States. The judiciary may suggest that I could
    get a waiver, but that waiver process is completely convoluted,
    and if I get that waiver, I can't post the documents on our
    public website. I can't inform other researchers on how to get
    this stuff. I can't give it to policymakers and congressional
    staffers. Without this service, the public is less informed
    about the nature of the homeland threat.
        There are a few proposed changes that would make a
    significant difference. One, baseline, make PACER free. Access
    is an inherent right in a functioning democracy. Two, the
    judiciary should set up a baseline standard for all local
    rules, which would provide guidance and direction on issues
    such as uniform naming conventions, sealing of documents, and
    the use of electronic devices.
        Documents uploaded on PACER should be text searchable
    wherever possible. RSS feeds can be done tomorrow. If you turn
    on the RSS feeds for all the courts, that would open up access
    in a way you wouldn't have seen before. Court proceedings that
    are recorded should be posted on PACER as standard practice,
    assuming there is not a court order to seal. Finally, PACER as
    a website is maddening and it is must fixed. The changes on the
    margins will not be enough.
        I appreciate the opportunity to testify today, and I look
    forward to your questions.
        [The statement of Mr. Hughes follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you. Ms. Hostin, 5 minutes.

                       STATEMENT OF SUNNY HOSTIN

        Ms. Hostin. Mr. Chairman and members of the committee,
    thank you for inviting me today. I am especially thrilled to be
    seated with my good friend, Jeff Toobin. We were colleagues at
    CNN and spent most of our time sparring about nuance points of
    law. While we often disagreed and I was almost always right, I
    believe we are on the same page today.
        I haven't done the research, but I have been told that I am
    the only network African-American journalist with a journalism
    degree, a law degree, I am a former Federal Prosecutor and a
    Member of the Supreme Court Bar. So I am somewhat of a unicorn,
    not the most qualified person perhaps to give a perspective,
    but I do believe I have a unique perspective representing a
    particular community.
        The absence of cameras in Federal proceedings and in
    Supreme Court, in particular, has a profound effect on African-
    Americans in the U.S. The judicial system disproportionately
    affects the African-American community in this country because
    African-Americans are the most incarcerated people in the world
    because the U.S. criminal justice is the largest in the world.
    African-Americans are 5.9 times as likely to be incarcerated
    than white Americans.
        As of 2001, 1 of every 3 black boys born in 2001 could
    expect to go to prison in his lifetime. My son was born in
    2002, so I take this rather personally. The vast majority of
    African-Americans distrust the American judicial
    disproportionately than other Americans. The descriptors most
    often used: ``unfair,'' ``illegitimate,'' ``excessive.''
        African-Americans, though no different than most Americans,
    learn about the intricacies of the criminal justice system
    through the news media. However, African-Americans consume more
    news media than any other group in the U.S. African-Americans
    watch 37 percent more television than any other demographic.
    They also consume more social media and more streaming. In my
    view, given these facts, there exists no better cure for the
    fundamental mistrust and perceived illegitimacy of the system
    than the transparency of the court that define it, in
    particular, the highest court in our land.
        The constitutional right of the public to attend
    proceedings is critical and indeed has been upheld by the
    Supreme Court. While it is a congressional right to attend
    every proceeding, no American is able to do so. A
    constitutional substitute for the level of judicial
    transparency demanded and envisioned by the framers is
    necessary if the trust of those most affected is to be restored
    and maintained. In my judgment, that substitute is television
    or livestreaming proceedings.
        Public access to a judicial proceeding must not be limited
    to seeing a report of a decision distilled by a journalist,
    more often than not without a legal background. Many of my
    legal journalist colleagues go to a 3-day law school course to
    prepare them for a career as a legal journalist. I watch as
    well-intentioned reporters doing the very best they can, with
    networks in a rush to be first, get the law wrong instead of
    getting it right. There is no better example in recent history
    than when the ACA decision came down. Audiovisual coverage of
    proceedings improves the media's overall ability to accurately
    report on proceedings. When televised, accuracy is a given.
    Veracity is a given. Charges of fake news easily dismissed. The
    courtroom camera always gets it right.
        Thank you, Mr. Chairman, for the opportunity to testify
    before your committee today.
        [The statement of Ms. Hostin follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you. Last but not least, Mr.
    Toobin. Five minutes.

                      STATEMENT OF JEFFREY TOOBIN

        Mr. Toobin. Thank you for the opportunity to testify, Mr.
    Chair and Ranking Member. My name is Jeffrey Toobin. I am a
    staff writer at The New Yorker and the chief legal analyst for
    CNN. My views today are my own.
        I graduated from law school in 1986. After a judicial
    clerkship, I had the honor of being a Federal prosecutor for 6
    years, first with the Office of Independent Counsel and then as
    an assistant United States attorney in the Eastern District of
    New York, Brooklyn. There is no greater privilege for a lawyer
    than to appear in a courtroom representing the United States.
        I joined The New Yorker in 1993 and CNN in 2002. I am
    working on my eighth book about the Mueller investigation and
    now Ukraine. Two of my books, The Nine and The Oath, were about
    the United States Supreme Court, which I have covered as a
    journalist for more than 20 years. I have also had the
    opportunity to cover many high-profile trials, including those
    of O.J. Simpson, Timothy McVeigh, Martha Stewart, and Michael
    Skakel. Some were televised. Some were not.
        I should note that in the course of my work in the Federal
    courts, I have had the occasion to try to rely on the PACER
    system many times. Frankly, PACER is a disaster, and I would
    like to express my appreciation in particular to Congressman
    Collins, who has been such a leader in trying to reform PACER.
        My point here today is simple. The Sixth Amendment mandates
    public trials. In the 21st century, the only meaningful
    definition of ``public'' is one with audio and visual access.
    By now, we as a Nation have a lot of experience with cameras in
    the courtroom. In the States where it is legal and in the
    Federal experiments, we have seen by and large the public
    educated and the cause of justice advanced. Here is one
    example.
        I suspect many of you remember the case of Amadou Diallo,
    the unarmed immigrant from Africa, who was mistakenly shot and
    killed by four white New York City police officers in the Bronx
    in 1999. The judge in that case granted a change of venue to
    Albany, but he allowed cameras. The public saw the trial, which
    ended in acquittals. Before the trial, there were worries that
    the acquittals would lead to violent reactions in New York as
    in the Rodney King case in Los Angeles. But I think the fact
    that the public got to see the trial and hear the officers'
    testimony for themselves contributed to the peaceful reaction
    in New York. Every one could tell it was a hard case, even
    among people who disagreed with the verdicts. Cameras helped
    keep the peace.
        At the Supreme Court, all the justices, without regard to
    their ideological orientations, are protective of the
    institution. They don't want to jeopardize the respect the
    Nation has for their judgments. They are understandably
    cautious about making changes, but over the years, the Court
    has made changes. It installed a sound system in the courtroom.
    It changed the arrangement of the bench. It streams audio of
    the arguments, albeit with a significant delay. At a minimum,
    livestreaming of Supreme Court audio would be a major positive
    step and pose no risk at all to the customs of the Court.
        But live audio, which would be an improvement, is not
    enough. Cameras are necessary. As for the Supreme Court, I need
    hardly remind this committee of the importance of their
    decisions. As Congressman Chabot, who has long been a leader on
    this subject, has long reminded us, the justices pass judgment
    on the constitutionally of your actions, but you are prohibited
    from watching them do so. That is not right, and that is not
    fair.
        And here is one more fact to consider about the Supreme
    Court. I have been with many people who are attending their
    first Supreme Court argument, and they almost all say the same
    thing. ``Wow, the justices are impressive.'' ``They know their
    stuff.'' ``They are well prepared.'' ``They are working hard.''
    I suspect if there were cameras in the courtroom, the broader
    public would say the same thing, and I look forward to that
    day. Thank you for the opportunity to testify here.
        [The statement of Mr. Toobin follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you. I will now recognize
    myself for questions for 5 minutes. Ms. Girion and Mr. Levine,
    were you surprised by what you ultimately reported on, and what
    is one takeaway from your work that you think is important for
    Congress to know?
        Ms. Girion. I think we were surprised at the prevalence of
    secrecy in the courts that went unexplained by the judges, and
    where we had no opportunity to understand what the rational
    was, and what factors were weighed, and how the law was applied
    in those decisions. So that was a big surprise to us. And I
    think, I mean, one takeaway that I have is, as the other
    panelists said here today, you know, access and transparency of
    court proceeding sis vitally important to, you know, the public
    trust in the institution.
        But the court's transparency goes beyond that. When people
    who use products and may be harmed by them don't have an
    opportunity to learn information about them that is filed in
    court and is part of a, you know, a major dispute, you know,
    that is a real significant problem and a real harm.
        Mr. Johnson of Georgia. Thank you. Ms. Hostin, in your
    testimony you described the challenges of being a journalist
    with a legal background who is often called on to explain the
    complexities of an ongoing criminal case. How would greater
    camera or audio access to court proceedings help you do your
    job better?
        Ms. Hostin. I certainly think it would make my job a lot
    easier because I am now not in the position of having to
    regurgitate what happened because the viewer can see it for
    himself and herself. Now I am in the position of explaining
    perhaps the law. I am in the position of analyzing the law.
    That is very different than having sort of the burden of
    explaining exactly what happened.
        The other piece of it is that it provides, I think, access
    for other reporters as well. You need only press ``rewind'' to
    make sure that we all get it right as opposed to just relying
    on one person. It is just very, very clear that the few of us
    that have the ability to be in the courtroom, it is a very,
    very heavy burden to get it right each and every time. And we
    also have the added burden of our networks wanting us to be
    first, and that can be very problematic.
        Mr. Johnson of Georgia. Mm-hmm. Mr. Toobin, do you have
    anything to add?
        Mr. Toobin. Well, you know, one of the pieces of advice
    that journalists and all writers get is show, don't tell. You
    know, show people, don't tell them, and that is what cameras in
    the courtroom are allowed to do. And also just, you know, we
    really try to be accurate as much as possible, and if we can
    show what the judge is saying, what is actually going on in the
    courtroom as opposed to putting it through our own filter. You
    know, we do our best, but we make mistakes. But as Sunny said
    during her testimony, the cameras don't lie, and I think
    cameras would be simply a force for accuracy, and that is
    nothing but a good thing.
        Mr. Johnson of Georgia. Thank you. Mr. Hughes, I think you
    had a chance to hear the testimony from the Judicial Conference
    about PACER. Is there anything about that testimony that you
    would like to address?
        Mr. Hughes. Sure. Respectfully, I think they were arguing
    facts not in evidence. When you look at some of the arguments
    being if we open it up free, then the website will crash. Well,
    that is not a valid argument to not allow access for the public
    on these things. When the judges talked about, well, an outside
    or third party could file to unseal, well, that is true in some
    districts, but in Maryland where there was an ongoing in the
    first-of-its-kind Isis-funded plot going on trial, I filed to
    unseal the 70 documents. I was denied because the local rules
    don't allow for non-lawyers to file for unsealing, which then I
    had to go to GW's counsel to file a motion, right? We are
    restricting the ability for the public to have access to
    information they should have, and the website does not allow
    for it.
        So if you look at John Smith gets arrested and John Smith
    is a terrorist, and I want to look at John Smith, I also want
    to look at the search warrant associated with John Smith, and
    that search warrant is always unsealed right before trial. But
    that search warrant is not tied to John Smith's name, so I have
    to search every single search warrant in that district to find
    John Smith's search warrant just to get more information as a
    researcher to understand the nature of the threat. It is not
    user friendly. It is not useful for researchers. It is painful.
        Mr. Johnson of Georgia. Thank you. Ms. Schebel, in the case
    of a civil litigation and there is a pattern and practice that
    is apparent that judges are sealing documents, sealing
    pleadings without stating in an order the reasons for doing so,
    and there is no third parties that are contesting the sealing
    of a document, what is the legislative branch to do? And if you
    would----
        Ms. Schebel. Sorry. I think the courts are doing a great
    job of analyzing the public's interest in information that
    comes to the court as a court document and weighing that
    against corporate litigants' interests in their private
    property or their confidential documents. I think the courts
    are doing a very good job of weighing that. What the
    legislature is to do, I think, is to leave that in the court's
    discretion.
        It is, as Judge Story said earlier, and I think we were all
    here to hear that testimony, that, you know, stripping the
    judiciary of its discretion and enacting some sort of a
    legislation to supplant what the judiciary has expertise in
    doing would not help the legal system. And I don't think it
    would further the interests of either the plaintiffs or the
    defendants, whether it is a corporate party or an individual
    who wants to see information protected.
        Mr. Johnson of Georgia. Thank you. With that, I will now
    turn to the Ranking Member, Representative Roby, for 5 minutes.
        Mrs. Roby. Thank you, Chairman, and I will try not to be
    repetitive. I may ask you to just go a little bit further than
    you have in your previous answers. But, again, thank you all
    for being here, and thank you for your candidness and your
    willingness to appear before this committee.
        Mr. Hughes, I particularly appreciate the level of detail
    that you went into. All of my questions have been answered by
    your testimony here today, but I would like to suggest since
    you were here in the room with the first panel, that we were
    referred to the working group Electronic Public Access, the
    Public User Group. I think that you contribute greatly to the
    courts' openness in that working group. I am not really sure
    how it is set up----
        Mr. Hughes. I applied. I am waiting to hear back.
        Mrs. Roby. Okay. Well, good.
        Mr. Hughes. The jury is still out.
        Mrs. Roby. I am encouraged to hear that because I do think
    that because you are a user of PACER, a power user--is that
    what it was--I think you could really, really help give some
    insight moving forward about how to improve upon the PACER
    system. And then I would just ask, Ms. Schebel, if you would
    just, we were just talking about judicial discretion. And the
    things that I really wanted for you to focus in on and maybe
    expand upon is, you know, there have been arguments out there
    that we should mandate that evidence related to public health
    and safety should not be sealed. And so I just wanted to give
    you an opportunity to maybe even dive a little deeper in your
    response to those arguments beyond what you might have already
    stated.
        Ms. Schebel. Sure. I mean, I think it is important to
    recognize that just because a party is sued, and let's say that
    that party is a manufacturer of some sort, whether it is a drug
    or a consumer product. It doesn't really matter, but that party
    has been sued. There hasn't been a finding that the product
    injures the health, safety, you know, welfare of the general
    public until the finding is made, and usually that is after
    trial. Until that time, I think that corporate defendants have
    an interest in protecting their property and their intellectual
    property rights that are set forth in their documents.
        And, again, just because someone is sued, they shouldn't
    lose those rights to their documents until there has been some
    sort of a finding. And even if there is a finding made, so even
    if you get to trial and even if there is a ruling that a
    product is defective or has caused harm in some way, there is
    an appellate process, and sometimes an appeal after that one
    that is permitted in the Federal courts. And so information,
    again, should not be made public provided the corporate
    defendant can substantiate that there is a compelling need to
    maintain the documents as confidential. They just shouldn't be
    public, and to make them public before that finding has been
    made really would strip those corporate defendants of their
    property rights and their documents.
        It really isn't any different than someone's Social
    Security Number or having your own personal information made
    public, say your medical information made public. Corporate
    defendants have the same interest in privacy to their documents
    as you do in your medical records. And I think that that has to
    be respected in the process and has to be respected by the
    courts.
        Mrs. Roby. Thank you. Mr. Toobin, never ask a witness a
    question you don't already know the answer to, right? But I am
    about to ask you for your perspective, and I don't actually
    know what you are going to say. But you referenced in your oral
    testimony and in your written testimony about the opportunities
    that you have had to cover many very high-profile cases over
    your career, some of which have been televised and some which
    have not. And you were also present for the conversation we had
    with the first panel where you heard from Judge Story that it
    was mixed reviews on having cameras in the courtroom, but he
    specifically cited behavior. And so I am curious based on your
    experience in both televised trials and those that have not,
    how you perceived those cameras in the courtroom affecting
    behavior.
        Mr. Toobin. It is a great question, Congresswoman, and I
    can't, you know, give you a blanket answer for every case. And
    I certainly understood the perspective of the judge who said,
    well, maybe in certain circumstances people's behavior was
    affected. I am not going to lie to you, not least because the
    chairman told me it would be a crime if I did. But the O.J.
    Simpson case was one where, I think, the cameras affected it,
    and unfortunately that has had a poisonous effect on this whole
    debate, even more than 2 decades later.
        But with the exception of the O.J. Simpson case, which was
    so aberrational in so many ways, my impression has been that
    the cameras mostly are forgotten about after about a day in the
    courtroom, that people just go about their business. And I
    guess if there was one thing I objected to about the way the
    judge characterized it, he said, well, there was a possibility
    of a problem here and a possibility with the, you know,
    witnesses and with the judge. You know, I think that is a
    backward way of looking at it. I think the presumption should
    be on openness. The presumption should be that people get to
    see these trials, and if there are certain circumstances that
    require, you know, closing a courtroom to cameras.
        But the idea that every time the cameras have to justify
    themselves and have to prove a negative, that people will not
    be affected, I think that is not the right way to look at it.
    And I think the public will never get the appropriate access if
    that is the way we think about it.
        Mrs. Roby. Well, again, my time has expired, and I just
    want to thank the panel for, again, your candidness and
    appreciate you all taking the time to be here today. So thank
    you very much.
        Mr. Johnson of Georgia. I will now yield 5 minutes to the
    gentleman from Ohio.
        Mr. Jordan. Thank you, Mr. Chairman. I appreciate you
    having this hearing. Mr. Toobin, this morning on national
    television, you said in talking about the whistleblower
    complaint relative to the phone conversation the President of
    the United States had with the president of Ukraine, and the
    President's conduct relative to that country, you said
    ``Today's Justice Department has been corrupted.'' Is that an
    accurate representation of the statement you made----
        Mr. Toobin. It sure is.
        Mr. Jordan. And you were making that relative to the
    complaint that was filed and that you guys were talking about
    in the, it was a group discussion on the show this morning. Is
    that right?
        Mr. Toobin. Yep.
        Mr. Jordan. Okay. Have you read the Department of Justice
    statement relative to this matter?
        Mr. Toobin. I have.
        Mr. Jordan. I might just read it here so we all have it.
    ``The President has not spoken with the Attorney General about
    having Ukraine investigate anything relating to former Vice
    President Biden or his son. The President has not asked the
    Attorney General to contact Ukraine on this or any other
    matter. The Attorney General has not communicated with Ukraine
    on this or any other subject, nor has the Attorney General
    discussed this matter or anything relating to Ukraine with Mr.
    Giuliani.'' You are familiar with that.
        Mr. Toobin. I am.
        Mr. Jordan. And you stand by your statement that the
    Justice Department----
        Mr. Toobin. I sure do.
        Mr. Jordan [continuing]. Is corrupt, and it is based on
    what the whistleblower said in the complaint.
        Mr. Toobin. No, it is not based entirely on that.
        Mr. Jordan. I just asked you what you were talking about
    the whistleblower, and you said it was based on the
    whistleblower. You said the Justice Department is corrupt based
    on what you saw in the complaint.
        Mr. Toobin. It was based on the whistleblower's complaint.
    It was based on the partial----
        Mr. Jordan. Well, it was based on the whistleblower's
    complaint----
        Mr. Toobin. In part and if you let me finish my answer, it
    is also based on the further----
        Mr. Johnson of Georgia. I am going to interject and caution
    my friend from Ohio that this subject is not germane to this
    hearing, and it is disruptive, and it is disrespectful to our
    process----
        Mr. Jordan. Mr. Chairman, you have been through this----
        Mr. Johnson of Georgia [continuing]. That we would have----
        Mr. Jordan. Respectfully.
        Mr. Johnson of Georgia. Well, no, let me finish.
        Mr. Jordan. All right.
        Mr. Johnson of Georgia. It is disrespectful to the process
    that we would bastardize it for political purposes. It is
    within my discretion to allow you to continue along this line,
    and I am going to allow you to continue. But I just want to
    caution you that in the future, I am not going to tolerate this
    kind of imposition in my subcommittee hearings.
        Mr. Jordan. All due respect, it is entirely germane. Plus I
    would like my time----
        Mr. Johnson of Georgia. It is my decision that----
        Mr. Jordan [continuing]. Reset at 3 minutes, 35 seconds.
        Mr. Johnson of Georgia. I will restore. Well, you have no
    right to demand that.
        Mr. Jordan. The heck I don't.
        Mr. Johnson of Georgia. But I will----
        Mr. Jordan. The heck I don't.
        Mr. Johnson of Georgia. No, you don't.
        Mr. Jordan. It was my time, and it was 3:35.
        Mr. Johnson of Georgia. No.
        Mr. Jordan. And I have every right to ask. The witness
    actually in his opening statement brought up Ukraine. I didn't.
    The witness said on national television the very statement I
    said that he said on TV, and he said he agreed that that was an
    accurate representation of what he said. He brought up Ukraine
    in his opening statement.
        Mr. Johnson of Georgia. I am going to----
        Mr. Jordan. You know I have full discretion to ask the kind
    of question I want----
        Mr. Johnson of Georgia. I am going to----
        Mr. Jordan. And I need 3 minutes and 35 seconds on the
    clock.
        Mr. Johnson of Georgia. I am going to restore your time.
        Mr. Jordan. I appreciate it.
        Mr. Johnson of Georgia. I am going to ask you that in the
    future, you respect the integrity----
        Mr. Jordan. This is----
        Mr. Johnson of Georgia. Hold on. I want to respect the
    integrity of my subcommittee hearings and not bring in this
    extraneous issue that has----
        Mr. Jordan. Would you yield for a question?
        Mr. Johnson of Georgia [continuing]. That has no----
        Mr. Jordan. Would the chairman yield for a question?
        Mr. Johnson of Georgia [continuing]. That is not germane to
    this particular----
        Mr. Jordan. This is the Judiciary Committee. We have a
    witness testifying in front of the Judiciary Committee who
    today on national television said the Justice Department is
    corrupt. If that is not relevant, tell me what is for this
    committee.
        Mr. Johnson of Georgia. No, this hearing is about secrecy
    in the judicial----
        Mr. Jordan. That doesn't change the fact that the witness
    brought up Ukraine in his opening statement. This morning on
    national television he said the Justice Department is corrupt.
        Mr. Johnson of Georgia. Mr. Jordan. Mr. Jordan, if we are
    going to have a discourse, I am going to need for you to listen
    to me just as I am listening to you. I object to you bringing
    this subject into his hearing because it is not germane, but I
    am going to allow you to continue.
        Mr. Jordan. Thank you, Mr. Chairman.
        Mr. Jordan. But I am going to ask that in the future, you
    limit yourself to this hearing intruding with extraneous
    material such as this. And with that, I will yield to you----
        Mr. Jordan. I will do my best, Mr. Chairman.
        Mr. Johnson of Georgia. Well, thank you, and I will yield
    you 3 minutes and 30 seconds to continue your questioning.
        Mr. Jordan. A witness who said this morning this morning
    the Justice Department is corrupt on national television,
    basing that, at least in part, earlier said, basing it on the
    whistleblower complaint. We need to remember a few things about
    this whistleblower. He has no firsthand knowledge of the phone
    call. He wasn't on the call. But we do know one thing about
    this whistleblower, Mr. Toobin. He had a political bias. We
    learned that from the inspector general. The inspector general
    told us there was indicia of arguable political bias. Do you
    know what that is? That is Washington speak for this guy hated
    Trump. And yet that is the basis for our witness telling us
    that the Justice Department is corrupt. Let me give you some
    facts----
        Mr. Toobin. Would you like an answer?
        Mr. Jordan. I will in a second. Let me give you a few facts
    just to give a little context to this, facts that happened in
    the Justice Department prior to Bill Barr taking over the
    Justice Department, in fact, things that happened in the Obama
    Justice Department. Are you familiar with this, Mr. Toobin?
    That the Obama Justice Department FBI spied on two Americans
    associated with the presidential campaign? Are you familiar
    with that? Are you familiar with the fact that the Obama
    Justice Department FBI's opened a counterintelligence
    investigation on the Republican Party's presidential candidate
    and didn't tell the candidate they had an investigation, a
    counterintelligence investigation, opened on him? Didn't tell
    him what was going on? Are you familiar with the Obama Justice
    Department's FBI allowed Peter Strzok and Andy McCabe to run
    that investigation? Peter Strzok, the guy who said, don't
    worry, Lisa, we will stop Trump. Trump should lose 100 million
    to zero. Andy McCabe.
        This is not Jim Jordan talking. This is now the inspector
    general. The inspector general said Andy McCabe lied 3 times
    under the oath. The inspector general, Michael Horowitz, said
    that Peter Strzok should have never been allowed to head up
    that investigation, not because he had this bias against
    Clinton or bias against Trump in favor of Clinton, I should
    say, but because he ran the Clinton investigation. He should
    have been prohibited from running that. But the Obama Justice
    Department allowed it to happen.
        The Obama Justice Department allowed the Clinton Campaign,
    paid for a document, the dossier, to be used to go to a secret
    court, Mr. Toobin, to spy on one of the people associated with
    the Trump Campaign. And the former FBI director leaked
    information through his friend to the New York Times in an
    effort to get a special counsel, which he was successful in
    doing. And finally, I would just say this. On January 6th, the
    Obama Justice Department went to the Trump Tower when it was
    President-elect Trump, January 6th, 2017. They told the
    President-elect he was not under investigation, all the while
    trying to set him up as part of their Trump-Russia
    investigation.
        And, again, not my words. That was in the report released
    just 3-and-a-half weeks ago by the inspector general, Michael
    Horowitz. And yet today, based on a whistleblower that had no
    firsthand knowledge, wasn't on the phone call, has a political
    bias against the President, you are saying this Justice
    Department is somehow corrupt.
        Mr. Toobin. Well, if you want to just to talk about the
    whistleblower, one of the extraordinary things about the
    whistleblower was that in the whistleblower's report, there is
    a summary of the phone call between the President of the United
    States and the president of Ukraine. And, of course, as you
    point out, the whistleblower did not have access to the partial
    transcript that we have now seen. But notwithstanding the
    absence of firsthand access to that transcript, the
    whistleblower summary of that phone call was extremely
    accurate, which suggests a great deal of credibility on the
    part of the whistleblower, wouldn't you say?
        Mr. Jordan. How do you know it is extremely accurate?
        Mr. Johnson of Georgia. The gentleman's time has expired.
        Mr. Jordan. Mr. Chairman, are you kidding me?
        Mr. Johnson of Georgia. Yes, it has expired. The
    gentleman's time has expired, and let me say that----
        Mr. Jordan. Are we doing a second round?
        Mr. Johnson of Georgia. It won't be a second round on this
    line of inquiry.
        Mr. Jordan. The heck it won't.
        Mr. Johnson of Georgia. No, it won't. And I want the
    gentleman to know that the next time he comes in----
        Mr. Jordan. Would the Chairman allow one more question for
    Mr. Toobin?
        Mr. Johnson of Georgia. No, I want the gentleman to know
    that the next time he comes into my subcommittee and disrupts
    it in this way, that we----
        Mr. Jordan. How is this disruptive?
        Mr. Johnson of Georgia. Yeah, because you are off topic.
    And so if this should happen again, I am going to be prepared
    through our rules to hold you accountable. And with that----
        Mr. Jordan. Mr. Chairman, the rules allow me to ask the
    question I want to ask. The only thing disruptive is your
    behavior in limiting and interrupting my questions. It was my 5
    minutes. You interrupted. I got one more question that I would
    appreciate being able to ask the witness.
        Mr. Johnson of Georgia. With that, the gentleman is no
    longer recognized, and I will proceed to----
        Mr. Jordan. That is how the Democrats are going to----
        Mr. Johnson of Georgia. I will proceed to round two of the
    questions, and I have a question for Hostin and Mr. Toobin.
    Gallup regularly surveys Americans' views of the Supreme Court,
    and for years, approval or disapproval of the Court has fallen
    on partisan lines. This partisan divide can depend on which
    part has the most representation on the bench or even the
    outcome of certain decisions from the previous term. I am
    interested in both of your views on whether the Supreme Court's
    secrecy plays a role in this divide and how providing video
    access would help ease the divide.
        Ms. Hostin. I think there is no question that providing
    more transparency will help that. And this is purely anecdotal,
    but I had the opportunity to interview Justice Sotomayor
    recently in New York about 2 weeks ago at the 92nd Street Y
    regarding her new book, her children's book. The audience was a
    sold-out audience. It was filled to capacity. And I can tell
    you while we did not address any current political issue, any
    current legal issue, as per the Justice's wishes, there was a
    line around the block of people that could not get into the
    event, and they also waited for 3 hours, those that were
    admitted to the event, for her signature on the books and just
    to meet her.
        And I stayed the entire event, and what I heard over and
    over again was she just seems like a regular person. She is so
    wonderful. She is so warm. They just wanted to get to know her.
    And I think given an experience like that, if more Americans
    were able to just see the justices on television, just to see
    them doing the business of the Court, if we were able to pull
    back the curtains, I think, as my friend, Jeffrey Toobin said
    earlier, we would get that reaction more and more and more. I
    mean, I think Justice Brandeis said it very clearly, ``Sunlight
    is the best disinfectant.'' I think we would have much more
    trust in our system if people were able to see the justices and
    get to know them, and see the business of the Court.
        Mr. Toobin. Mr. Chairman, I have a somewhat different view.
    I really don't know if more access would mean more respect for
    the Supreme Court. I don't have that ability to predict. My own
    sense is that the reason the Court has fallen in public
    estimation is that it is bound up, as so many institutions in
    our country are bound up, with the partisan divisions that are
    so familiar to us. It is increasingly seen as, you know, as
    driven along partisan lines as the Congress, as the race for
    the White House. And I think that is what really is driving the
    diminished respect for the Court.
        I see public access to the Court as an independent value. I
    don't really see it as an instrument to make the Court more
    popular. I think it is a good thing in and of itself.
        Mr. Johnson of Georgia. I am sorry. I want to thank the
    witnesses for coming today.
        Mr. Jordan. Mr. Chairman, you get two rounds of questions
    and I----
        Mr. Johnson of Georgia. And with that, the hearing is
    adjourned. The hearing is adjourned.
        Mr. Jordan. We were told there was a second round of
    questions. This is truly unbelievable the way you guys do----
        [Whereupon, at 4:13 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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